Perry v. Grand River Dam Auth.

• Decision Date: 31 December 2013
• Docket Number: 109,715,109,716.,109,714
• Citation: 2015 OK CIV APP 12,344 P.3d 1
• Parties: Robert and Brenda PERRY, David and Stacy Pryor, and John and Janet Shaw, Plaintiffs/Appellees; Counter–Appellants, and Robert Asbell and Teresa Asbell, et al., Plaintiffs, v. GRAND RIVER DAM AUTHORITY, Defendant/Appellant; Counter–Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

344 P.3d 1

2015 OK CIV APP 12

Robert and Brenda PERRY, David and Stacy Pryor, and John and Janet Shaw, Plaintiffs/Appellees; Counter–Appellants

and

Robert Asbell and Teresa Asbell, et al., Plaintiffs

v.GRAND RIVER DAM AUTHORITY, Defendant/Appellant; Counter–Appellee.

109,714

109,715

109,716.

Court of Civil Appeals of Oklahoma, Division No. IV.

Dec. 31, 2013.

Certiorari Denied Nov. 17, 2014.

N. Larry Bork, Mary E. Christopher, Goodell, Stratton, Edmonds & Palmer, L.L.P., Topeka, Kansas, and Scott R. Rowland, Renee DeMoss, Gable Gotwals, Tulsa, Oklahoma, for Plaintiffs/Appellees.

Joseph R. Farris, Belinda Aguilar, Millicent L. Hughes, Feldman, Franden, Woodward, Farris & Boudreaux, Tulsa, Oklahoma, and Phil R. Richards, Whitney R. Mauldin, Randy Lewin, Richards & Connor, Tulsa, Oklahoma, for Defendant/Appellant.

Opinion

JERRY L. GOODMAN, Judge.

¶ 1 Grand River Dam Authority (GRDA) appeals the trial court's orders awarding damages in inverse condemnation to Robert and Brenda Perry (Perrys), David and Stacy Pryor (Pryors), and John D. and Janet M. Shaw (Shaws). Perrys, Pryors, and Shaws counter-appeal the court's ruling denying their request for damages for personal property.¹

FACTS

¶ 2 The Grand River Dam Authority (GRDA) was created by the State of Oklahoma for the purpose of constructing the Pensacola Dam on the Grand River to create the Grand Lake O' the Cherokees (Grand Lake) which is an impoundment of waters flowing from the Neosho and Spring Rivers and their tributaries into Grand River. The dam and resulting lake provide flood control, electricity, water, recreation, and irrigation for the affected watersheds. GRDA is regulated by the Federal Energy Regulatory Commission (FERC) and from its inception has possessed the power of eminent domain. Pursuant to this power, GRDA obtained flowage easements on real property to an elevation of 760 feet NGVD, an elevation related to sea level.²

¶ 3 Perrys, Pryors, and Shaws (collectively “Landowners”) own real property above 760 feet NGVD on Grand Lake. In October 1986 (1986 flood), Shaws' property sustained flooding.³ Subsequently, Perrys, Pryors, and Shaws' properties flooded in September 1993 (1993 flood), April 1994 (1994 flood), and June 1995 (1995 flood). On October 5, 2001, Perrys, Pryors, and Shaws, as well as a number of other landowners, filed suit against GRDA for inverse condemnation.⁴ GRDA denied any taking had occurred.

¶ 4 GRDA subsequently filed a motion for summary judgment, asserting Landowners' claims for damage to real and personal property were time-barred by 12 O.S.2011, § 95. Landowners disagreed, asserting issues of limitations, damages and causation had been resolved in Dalrymple, et al. v. Grand River Dam Authority, CJ–94–444 (Dalrymple ), wherein 100 landowners filed suit against GRDA for injury to their property resulting from flooding from the Pensacola Dam. Therein, the trial court adopted the findings of the court appointed referee, hydrologist Dr. Forrest Holly, Jr., who determined, inter alia, that “the existence and operation of Pensacola Dam caused a quantifiable increase in the magnitude and duration of flooding above 760 feet NGVD....” (Holly Report.) In the present case, the trial court adopted the Holly Report, finding the same recurring floods at issue in Dalrymple are at issue in the present case.

¶ 5 On May 14, 2010, the trial court granted GRDA partial summary judgment, finding Landowners' personal property claims were time-barred by 12 O.S.2011, § 95(A)(3). Subsequently, by order filed on June 28, 2011, the court made separate findings of fact as to each Landowner's inverse condemnation claim.

With respect to the Perrys, the court found:

• The property was subject to flooding in 1993, 1994, and 1995. All of the flooding above 760 feet NGVD was caused by the existence and operation of the GRDA Dam. After each flood, Perrys cleaned and restored their residence. Perrys sold the property in 2001.

• GRDA interfered with the use and enjoyment of the property and thereby took a flowage easement upon all of the Perrys' property to an elevation of 771 feet NGVD. The court established the date of taking as April 7, 1994, finding the 1994 flood reached the highest elevation. The court awarded just compensation of $32,990.00 for diminution in value, restoration costs as to all floods, and for the flowage easement taken.

With respect to the Pryors, the court found:

• The property was subject to flooding in 1993, 1994, and 1995. All of the flooding was caused by the existence and operation of the GRDA Dam. On each occasion, Pryors cleaned and restored their property.

• The property also flooded in 1986 to a depth of five feet. The court accepted the Mussetter Report, which attributed three and one-half feet of that flood to natural causes and the balance to the GRDA Dam operation.⁵ However, Pryors did not acquire the property until 1989. Pryors sold the property in 2005.

• A temporary taking from 1993 to 1995 and awarded just compensation of $60,850.00 for restoration costs and diminution in value of the property.

For the Shaws, the trial court found:

• The property was subject to flooding in 1993, 1994, and 1995, and the flooding was caused by the existence and operation of the GRDA Dam. The property was also flooded in 1986 to a depth of four feet. The court accepted the Mussetter Report, which found 50% of the flooding was due to natural causes and 50% to the GRDA Dam operation.

• Shaws' restored their property after each flood. However, after the 1995 flood, the Shaws abandoned the property, retaining title to the property.

• A fee title was taken on June 2, 1995, and awarded just compensation of $114,850.00 for restoration costs and diminution in value of the property.

¶ 6 GRDA appeals the judgments awarding Landowners damages of just compensation. Landowners counter-appeal the court's ruling that their personal property claims were barred by the two-year statute of limitations under 12 O.S.2011, § 95(3).

STANDARD OF REVIEW

¶ 7 In inverse condemnation cases, whether there is a taking and the amount of damages are questions of fact for the trier of fact. Therefore, the judgment of taking and amount of damages will be affirmed if supported by any competent evidence. Material Serv. Corp. v. Rogers Cty. Bd. of Comm'rs, 2012 OK CIV APP 17, ¶ 5, 273 P.3d 880, 883.

ANALYSIS AND REVIEW

A. Condemnation

¶ 8 Condemnation, also known as eminent domain, is the power to take private property for the public good. Williams v. State ex rel. Dept. of Transp., 2000 OK CIV APP 19, ¶ 13, 998 P.2d 1245, 1248 (citing Harn v. State ex rel. Williamson, 1939 OK 40, 184 Okla. 306, 87 P.2d 127 ). The right of condemnation is a fundamental attribute of the sovereign state. City of Tahlequah v. Lake Region Elec., Co-op., Inc., 2002 OK 2, ¶ 7, 47 P.3d 467, 471. Eminent domain generally refers to legal proceedings in which the state or other authorized entity asserts its authority to condemn property for public use. Williams, 2000 OK CIV APP 19, at ¶ 15, 998 P.2d at 1249. Conversely, “[i]nverse condemnation is an action brought by a property owner seeking just compensation for land taken for a public use, against a government or private entity having the power of eminent domain. It is a remedy peculiar to the property owner and is exercisable by him where the taker of the property does not bring eminent domain proceedings.”

Drabek v. City of Norman, 1996 OK 126, ¶ 4, 946 P.2d 658, 659 (citing Black's Law Dictionary 825 (6th Ed.1990)).

¶ 9 In the present case, Landowners filed an inverse condemnation proceeding against GRDA asserting a series of floods resulted in a taking of their private properties without just compensation in violation of Oklahoma Constitution, Article II, § 24. Article II, § 24 provides, in relevant part:

Private property shall not be taken or damaged for public use without just compensation. Just compensation shall mean the value of the property taken, and in addition, any injury to any part of the property not taken....

Landowners contend the trial court's finding of a taking and the determination of the date of taking should not be disturbed on appeal as there is competent evidence to support the court's findings.

¶ 10 GRDA disagrees, contending originally on appeal that: 1) the intermittent flowage of water for temporary periods of time on Landowners' properties cannot be considered a taking,⁶ and 2) the undisputed facts show the Shaws and Pryors' properties were flooded and taken by naturally-occurring floods, not flooding resulting from the operation of the Dam.⁷ At oral arguments held on July 10, 2013, however, GRDA conceded a taking of Landowners' properties for purposes of inverse condemnation had occurred.⁸ GRDA asserted that for the Shaws and Pryors, a taking occurred in 1986, and for the Perrys, a taking occurred in 1993.⁹

¶ 11 Article II, Section 24 of the Oklahoma Constitution does not define what actions constitute a taking. Case law has found a taking where land is physically taken and occupied, where government action substantially interferes with the use and enjoyment of property, or where government overtly exercises dominion and control over property. Material Serv. Corp., 2012 OK CIV APP 17, at ¶ 5, 273 P.3d at 883. “The ultimate question is whether there is a sufficient interference with the landowner's use and enjoyment to constitute a taking by a sovereign.” Henthorn v. Oklahoma City, 1969 OK 76, ¶ 10, 453 P.2d 1013, 1015. The sufficiency of interference is equated to “substantial” interference. State ex rel. Dept. of Transp. v. Hoebel, 1979 OK 63, ¶¶ 9–10, 594 P.2d 1213, 1215. Moreover, the trier of fact decides the question of substantial interference. Henthorn, 1969 OK 76, at ¶ 15, 453 P.2d at 1016 ; Mattoon v. City of Norman, 1980 OK 137, ¶ 11, 617 P.2d 1347, 1349. Conversely, “[a]cts done in the proper exercise of the police power which merely impair the use (or value) of property do not constitute a ‘taking.’ ” April v. City of Broken Arrow, ...