PHILLIPS, Circuit Judge.
In 1921, the City of Eufaula, pursuant to the provisions of Art. 12, Ch. 10, Revised Laws of Oklahoma 1910, C.O.S.1921, §§ 4583 to 4619, inclusive, created Street Improvement District No. 2. To finance the improvements in such district, the city, on July 15, 1921, issued its street improvement bonds in the aggregate sum of $44,478.95, due on or before September 1, 1931, with interest at 6 per cent per annum. To pay the principal and interest on the bonds, assessments payable in ten annual installments, beginning September 1, 1921, where duly levied against all the lots and tracts of land within the district. The installments bore interest at the rate of 7 per cent per annum before maturity and a penalty of 18 per cent per annum thereafter. On May 12, 1936, Meyer, as a holder of 19 of such bonds, brought this action against the city for a money judgment for the amount of unpaid installments of assessments levied against property owned by the city within the-improvement district hereinafter referred to, plus interest and penalties. On July 25, 1935, Lots 5 and 6, Block 81, located within the paving district, were conveyed to the city and, on August 31, 1935, were conveyed by it to the State of Oklahoma, as trustee for the Oklahoma National Guard, to be used as a site for an armory. Thereafter, an armory was constructed on such lots as a Works Progress Administration project. At the time of the conveyance of such lots to the city, the assessment installments against lot 5, maturing in 1921, 1922, 1924, 1925, and 1926, and the assessment installments against lot 6, maturing in 1921, 1925, and 1926, had been paid. The remainder of the ten annual installments of assessments levied against such lots, with matured interest and penalties, remain unpaid.
On a former appeal, Meyer v. City of Eufaula, 10 Cir., 154 F.2d 943, we remanded the case with instructions to enter a money judgment against the city for the unpaid installments levied against such lots in accordance with the principles announced in Wilson v. City of Hollis, 193 Okl. 241, 142 P.2d 633, 150 A.L.R. 1385. On remand, the trial court concluded that Meyer was entitled to judgment against the city for the amount of the unpaid installments assessed against such lots, with statutory interest and penalties thereon to July 25, 1935, aggregating $2,684.40, and for interest on the latter amount at the rate of 6 per cent per annum from July 25, 1935, to the date of the judgment, and awarded judgment for $4,617.17. The city has again appealed.
Two questions are presented. The first is whether the court should have awarded interest and penalties after the date the city acquired such lots.
In Wilson v. City of Hollis, supra, the court held that public policy prevented the forced sale of publicly-owned property to pay improvement district assessments and that, while the statute under which the improvement district was created and the bonds issued undertook to make the amount due on the bonds a lien against all of the property in the improvement district, it was not a true lien against public property because of the lack of a method of enforcement. It further held that mandamus would not lie to compel a municipality, owning property within an improvement district, to levy taxes to pay the matured and unpaid assessments against such property, and accrued interest.
[465]*465It further held that the bondholder was entitled to recover a money judgment against the municipality for the amount of the unpaid installments of assessments levied against the property of the municipality within the improvement district, with interest at the rate of 7 per cent per annum to the date of maturity of each of such installments, and that such judgment should be paid, as are other judgments, under § 28, Art. 10, Const, of Okl., and 62 O.S.1941, § 431 et seq. It further held that no delinquency that would carry with it additional interest or penalty could accrue against public property, since the provisions relating to delinquency and penalty were not intended to apply to municipalities.
It seems clear to us that under the principles laid down in Wilson v. City of Hollis, the judgment should have been limited to accrued interest and penalties to July 25, 1935, when the city acquired the property.
The second question is whether the amount of the recovery should be further limited to the value of such lots 5 and 6 on July 25, 1935, exclusive of the value of the improvements thereafter placed thereon, under the doctrine of Dickinson v. Brown-Crummer Inv. Co., 10 Cir., 137 F.2d 615, and on the theory that the acquisition of the lots by the city was an equivalent of a condemnation thereof.
The second question was raised by this court on its own motion. Additional briefs and oral arguments were requested.
Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides, “In pleading to a preceding pleading, a party shall set forth affirmatively * * * estoppel.” There was neither pleading nor proof of facts by the city which would constitute a basis for a holding that Meyer was estopped to deny that the city acquired the lots by condemnation.
The doctrine that a taking by a municipality or a public service corporation, vested with the power of eminent domain, of land necessary for its corporate purpose, with or without the consent of the owner, may, where elements of estoppel are present, be equivalent to title by condemnation was first announced by the Supreme Court of Oklahoma in St. Louis & S. F. R. Co. v. Mann, 79 Okl. 160, 192 P. 231, 232. The court there said:
“Where a public service corporation (prior to statehood), vested with the power of eminent domain, enters into actual possession of land necessary for its corporate purposes, with or without the consent of the owner, and the owner remains inactive, stands by, and permits a railroad or public service corporation to go on and spend large sums of money in constructing its roads, telegraph or telephone lines, pipe lines, plants, or other necessary fixtures, the owner is estopped from maintaining either trespass or ejectment, and will be regarded as having acquiesced therein, and is restricted to a suit for damages for the value of the land, on the theory that the appropriation by the public service corporation under such circumstances is equivalent to title by condemnation.”
The court referred to the rule as “the doctrine of estoppel based on self-appropriation” and refused to apply it in that case because the elements of estoppel were not present. The court said: “It would be necessary to show that the plaintiff had knowledge of the appropriation and with full knowledge acquiesced in the expenditure of money in making the improvements thereon.”
The general rule as laid down in St. Louis & S. F. R. Co. v. Mann, supra, was followed in Peckham v. Atchison, T. & S. F. Ry. Co., 88 Okl. 174, 212 P. 427, 428, and in City of Seminole v. Fields, 172 Okl. 167, 43 P.2d 64, 66.
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PHILLIPS, Circuit Judge.
In 1921, the City of Eufaula, pursuant to the provisions of Art. 12, Ch. 10, Revised Laws of Oklahoma 1910, C.O.S.1921, §§ 4583 to 4619, inclusive, created Street Improvement District No. 2. To finance the improvements in such district, the city, on July 15, 1921, issued its street improvement bonds in the aggregate sum of $44,478.95, due on or before September 1, 1931, with interest at 6 per cent per annum. To pay the principal and interest on the bonds, assessments payable in ten annual installments, beginning September 1, 1921, where duly levied against all the lots and tracts of land within the district. The installments bore interest at the rate of 7 per cent per annum before maturity and a penalty of 18 per cent per annum thereafter. On May 12, 1936, Meyer, as a holder of 19 of such bonds, brought this action against the city for a money judgment for the amount of unpaid installments of assessments levied against property owned by the city within the-improvement district hereinafter referred to, plus interest and penalties. On July 25, 1935, Lots 5 and 6, Block 81, located within the paving district, were conveyed to the city and, on August 31, 1935, were conveyed by it to the State of Oklahoma, as trustee for the Oklahoma National Guard, to be used as a site for an armory. Thereafter, an armory was constructed on such lots as a Works Progress Administration project. At the time of the conveyance of such lots to the city, the assessment installments against lot 5, maturing in 1921, 1922, 1924, 1925, and 1926, and the assessment installments against lot 6, maturing in 1921, 1925, and 1926, had been paid. The remainder of the ten annual installments of assessments levied against such lots, with matured interest and penalties, remain unpaid.
On a former appeal, Meyer v. City of Eufaula, 10 Cir., 154 F.2d 943, we remanded the case with instructions to enter a money judgment against the city for the unpaid installments levied against such lots in accordance with the principles announced in Wilson v. City of Hollis, 193 Okl. 241, 142 P.2d 633, 150 A.L.R. 1385. On remand, the trial court concluded that Meyer was entitled to judgment against the city for the amount of the unpaid installments assessed against such lots, with statutory interest and penalties thereon to July 25, 1935, aggregating $2,684.40, and for interest on the latter amount at the rate of 6 per cent per annum from July 25, 1935, to the date of the judgment, and awarded judgment for $4,617.17. The city has again appealed.
Two questions are presented. The first is whether the court should have awarded interest and penalties after the date the city acquired such lots.
In Wilson v. City of Hollis, supra, the court held that public policy prevented the forced sale of publicly-owned property to pay improvement district assessments and that, while the statute under which the improvement district was created and the bonds issued undertook to make the amount due on the bonds a lien against all of the property in the improvement district, it was not a true lien against public property because of the lack of a method of enforcement. It further held that mandamus would not lie to compel a municipality, owning property within an improvement district, to levy taxes to pay the matured and unpaid assessments against such property, and accrued interest.
[465]*465It further held that the bondholder was entitled to recover a money judgment against the municipality for the amount of the unpaid installments of assessments levied against the property of the municipality within the improvement district, with interest at the rate of 7 per cent per annum to the date of maturity of each of such installments, and that such judgment should be paid, as are other judgments, under § 28, Art. 10, Const, of Okl., and 62 O.S.1941, § 431 et seq. It further held that no delinquency that would carry with it additional interest or penalty could accrue against public property, since the provisions relating to delinquency and penalty were not intended to apply to municipalities.
It seems clear to us that under the principles laid down in Wilson v. City of Hollis, the judgment should have been limited to accrued interest and penalties to July 25, 1935, when the city acquired the property.
The second question is whether the amount of the recovery should be further limited to the value of such lots 5 and 6 on July 25, 1935, exclusive of the value of the improvements thereafter placed thereon, under the doctrine of Dickinson v. Brown-Crummer Inv. Co., 10 Cir., 137 F.2d 615, and on the theory that the acquisition of the lots by the city was an equivalent of a condemnation thereof.
The second question was raised by this court on its own motion. Additional briefs and oral arguments were requested.
Rule 8(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides, “In pleading to a preceding pleading, a party shall set forth affirmatively * * * estoppel.” There was neither pleading nor proof of facts by the city which would constitute a basis for a holding that Meyer was estopped to deny that the city acquired the lots by condemnation.
The doctrine that a taking by a municipality or a public service corporation, vested with the power of eminent domain, of land necessary for its corporate purpose, with or without the consent of the owner, may, where elements of estoppel are present, be equivalent to title by condemnation was first announced by the Supreme Court of Oklahoma in St. Louis & S. F. R. Co. v. Mann, 79 Okl. 160, 192 P. 231, 232. The court there said:
“Where a public service corporation (prior to statehood), vested with the power of eminent domain, enters into actual possession of land necessary for its corporate purposes, with or without the consent of the owner, and the owner remains inactive, stands by, and permits a railroad or public service corporation to go on and spend large sums of money in constructing its roads, telegraph or telephone lines, pipe lines, plants, or other necessary fixtures, the owner is estopped from maintaining either trespass or ejectment, and will be regarded as having acquiesced therein, and is restricted to a suit for damages for the value of the land, on the theory that the appropriation by the public service corporation under such circumstances is equivalent to title by condemnation.”
The court referred to the rule as “the doctrine of estoppel based on self-appropriation” and refused to apply it in that case because the elements of estoppel were not present. The court said: “It would be necessary to show that the plaintiff had knowledge of the appropriation and with full knowledge acquiesced in the expenditure of money in making the improvements thereon.”
The general rule as laid down in St. Louis & S. F. R. Co. v. Mann, supra, was followed in Peckham v. Atchison, T. & S. F. Ry. Co., 88 Okl. 174, 212 P. 427, 428, and in City of Seminole v. Fields, 172 Okl. 167, 43 P.2d 64, 66.
It is true, the Supreme Court of Oklahoma has held that under 66 O.S.1941 § 57, where a corporation or municipality authorized to exercise the right of eminent domain takes and occupies land for purposes for which it might have resorted to condemnation proceedings, “without having purchased or condemned the same,” the remedy of the owner is damages assessed in the manner provided for in condemnation proceedings. See Oklahoma [466]*466City v. Wells, 185 Okl. 369, 91 P.2d 1077; Incorporated Town of Pittsburg v. Cochrane, 195 Okl. 593, 159 P.2d 534; and Oklahoma City v. Local Federal Savings & Loan Ass’n, 192 Okl. 188, 134 P.2d 565. But here such lots were not taken and occupied by the city without it having “purchased or condemned the same.” They were conveyed by the owner to the city and the city took them subject to the delinquent assessments and the statutory lien for the same. Allen v. Henshaw, 197 Okl. 123, 168 P.2d 625, 629; United States v. State of Alabama, 313 U.S. 274, 281, 61 S.Ct. 1011, 85 L.Ed. 1327; and Meyer v. City of Eufaula, Okl., 10 Cir., 154 F.2d 943, 946.
As between the owner and the city, the latter took by purchase, and, in no sense, by appropriation. There was neither pleading nor proof that Meyer had actual knowledge of the conveyance by the owner to the city, or the erection of the armory, until after both events had transpired. The city acquired the property from the owner without making any provision for the application of the purchase price on the unpaid assessments made against the property.
We are constrained to conclude that, absent elements of estoppel, the taking by the city as between it and Meyer cannot be treated as the equivalent to title by condemnation.
Dickinson v. Brown-Crummer Inv. Co., supra [137 F.2d 618], is not to the contrary. In that case there was no conveyance by the owner to the county; appropriation and estoppel were affirmatively pleaded and urged below, as the equivalent of condemnation, and in the opinion we said:
“Where one vested with the power of eminent domain enters into possession of property and makes lasting and valuable improvements thereon and those who have an interest in the property remain inactive and make no objection, the appropriation will be treated as the equivalent of a condemnation. * * *
“Here the bondholders sat by and permitted the expenditure of approximately $13,000 of public funds for improvement of the tract on which they had a lien.”
Thus, it will be seen that our decision in that case was based on an appropriation and estoppel affirmatively raised.
The judgment will be modified by reducing the amount of recovery to $2,684.40, and as so modified, it is affirmed.