SUMMERS, Justice.
Plaintiffs/appellants1 seek certiorari to resolve the question of whether statutes of limitation operate to bar their actions for recovery of damages allegedly caused by defendants’ negligent design and construction of part of a municipal water system. Although numerous issues were raised before the trial court and the Court of Appeals, and were properly preserved in plaintiffs’ petition to this Court, we limit ourselves to the single issue which resolves the matter, and hold that these actions are not barred by statutes of limitation or repose because the plaintiffs at all times pertinent acted in a sovereign capacity to protect vested public rights.2
All parties agree that plaintiffs Oklahoma City Municipal Improvement Authority (OCMIA) and Oklahoma City Municipal Facilities Authority (OCMFA) function as public trusts established pursuant to Oklahoma statutes, with the plaintiff City of Oklahoma City (City) as beneficiary. Further, none of the defendants contest the factual statement from plaintiffs that OCMFA is the financing vehicle for public funds used in emergency repairs of the system and also processes and receives federal funds used to construct and maintain the system. The actions below focus upon Phase III of a plan for the extension and improvement of water mains from Lake Stanley Draper to the Oklahoma City Area, with this phase consisting of 8⅛ miles of pipe stretching from the Draper Lake pumping station to Southeast 29th and Douglas Boulevard. On May 24, 1974 defendants completed work on Phase III and recommended its acceptance. Between July 10 and October 8, 1974 OCMIA and the City accepted Phase III as formally complete. We need not determine the precise date of completion and recognize only that the earliest acceptance date mentioned falls precisely ten years before plaintiffs [133]*133filed suit to recover damages for ten breaks in the pipe which breaks began in June 1980. Plaintiffs filed these suits on June 10, 1984.
Defendants, each of whom assumed responsibility for all or some portion of the design and/or construction of Phase III responded to plaintiffs’ actions with motions for summary judgment alleging that the statute of repose at 12 O.S.1981 § 1093 as well as all applicable statutes of limitation bar suit against them. The trial court granted defendants’ motions, from which orders plaintiffs appeal.
The Court of Appeals, in a divided opinion affirmed the trial court, finding that operation of a water line does not affect the public generally in that it constitutes a proprietary function of government.4 We disagree.
Since 1913, this court has followed the general rule that statutes of limitation do not apply to a government entity seeking in its sovereign capacity to vindicate public rights, and “that the maxium, ‘nullum tempus occurrit regi, ’5 is not restricted in its application to sovereign states or governments, but that its application extends to and includes public rights of all kinds, and that it applies to municipal corporations as trustees of the rights of the public ...” Foot et al. v. Town of Watonga, 37 Okl. 43, 130 P. 597, 598 (1913). Adoption of the general rule in Foot protected the municipality in a property action in which the town held title to a lot designated for use by the general public. Holding against an estoppel theory, the court ruled that the public’s rights stood paramount “no matter how lax the municipal authorities may have been in asserting [them].” Foot 130 P. at 598.
Cases cited by all the parties herein follow and clarify the general rule announced in Foot. These cases focus primarily upon whether the right affected is a public right or private right. Herndon v. Board of Commissioners in and for Pontotoc County, 158 Okl. 14, 11 P.2d 939 (1932); State ex rel. Cartwright v. Tidmore, 674 P.2d 14 (Okl.1983).
In the Herndon decision, this Court held that the trial court properly overruled defendant’s demurrer in an action to compel conveyance of land used for the county courthouse, and that the statute of limitations did not apply to bar the county’s action. The court stated the general rule and announced that the test to determine the nature of the right affected is “whether the right is such as to affect the public generally or to merely affect a class of individuals within the political subdivision.” Id. 11 P.2d at 941.
As an example of a matter involving purely private rights, the Herndon court cited Board of County Commissioners of Woodward County v. Willett, 49 Okl. 254, 152 P. 365 (1915). The court in Willett ruled that the statute of limitations barred the county from recovering excess salary paid to a teacher because the suit affected only private rights “for the reason that the people of the state have no interest in the funds of the county illegally paid out and sought to be recovered, but only that part of the public within the confines of the county are interested in the funds.” Id. 152 P. at 365.
In 1986, the Oklahoma Court of Appeals partly distinguished the 1915 Willett scenario from one in which the statute of limitations would not prohibit a county’s action to recover monies paid under contracts pursuant to an alleged scheme of [134]*134bribes and kickbacks. State ex rel. Board of County Commissioners v. Shelton, 727 P.2d 103 (Okla.App.1986). The Court of Appeals again followed the general rule, and noted that the “court’s perception of ‘public right’ has developed to the point of being more realistic and workable in terms of modern social and economic conditions.” Id. at 106.
This more realistic perception first appeared in the appeal from an action to recover principal and interest on bonds purchased with monies from a county’s sinking fund in which the trial court sustained the defendant’s plea to the five year statute of limitations. Board of County Commissioners of Oklahoma County v. Good Township, 188 Okl. 151, 107 P.2d 805 (1940). The court found that the funds at issue involved constitutional and statutory provisions which “stamp the investment with a public interest”, and that “the distinction [between public and private rights of a political subdivision] should be bolstered by every reasonable presumption favorable to government immunity from the limitation.” Id. 107 P.2d at 807.
These cases, which announce and clarify the general rule focus either upon property disputes in which the property at issue is held for use by the general public, or situations in which the public through legislative control expresses general concern in the rights at issue. This court’s most recent pronouncement regarding governmental immunity from limitations follows the others and upholds the public’s right to require compliance with statutory schemes for governmental contracting and bidding. State ex rel. Cartwright v. Tidmore, 674 P.2d 14 (Okl.1983).
In Tidmore, this Court held that the state’s action to recover money paid to defendant under a contract was not barred by the statute of limitations where the state was suing in its sovereign capacity to vindicate legal rights which are public in nature. We reasoned that laws “requiring competitive bidding and written contracts protect the public at large by promoting economy in government and reducing the likelihood of fraud.” Id. at 16.
Free access — add to your briefcase to read the full text and ask questions with AI
SUMMERS, Justice.
Plaintiffs/appellants1 seek certiorari to resolve the question of whether statutes of limitation operate to bar their actions for recovery of damages allegedly caused by defendants’ negligent design and construction of part of a municipal water system. Although numerous issues were raised before the trial court and the Court of Appeals, and were properly preserved in plaintiffs’ petition to this Court, we limit ourselves to the single issue which resolves the matter, and hold that these actions are not barred by statutes of limitation or repose because the plaintiffs at all times pertinent acted in a sovereign capacity to protect vested public rights.2
All parties agree that plaintiffs Oklahoma City Municipal Improvement Authority (OCMIA) and Oklahoma City Municipal Facilities Authority (OCMFA) function as public trusts established pursuant to Oklahoma statutes, with the plaintiff City of Oklahoma City (City) as beneficiary. Further, none of the defendants contest the factual statement from plaintiffs that OCMFA is the financing vehicle for public funds used in emergency repairs of the system and also processes and receives federal funds used to construct and maintain the system. The actions below focus upon Phase III of a plan for the extension and improvement of water mains from Lake Stanley Draper to the Oklahoma City Area, with this phase consisting of 8⅛ miles of pipe stretching from the Draper Lake pumping station to Southeast 29th and Douglas Boulevard. On May 24, 1974 defendants completed work on Phase III and recommended its acceptance. Between July 10 and October 8, 1974 OCMIA and the City accepted Phase III as formally complete. We need not determine the precise date of completion and recognize only that the earliest acceptance date mentioned falls precisely ten years before plaintiffs [133]*133filed suit to recover damages for ten breaks in the pipe which breaks began in June 1980. Plaintiffs filed these suits on June 10, 1984.
Defendants, each of whom assumed responsibility for all or some portion of the design and/or construction of Phase III responded to plaintiffs’ actions with motions for summary judgment alleging that the statute of repose at 12 O.S.1981 § 1093 as well as all applicable statutes of limitation bar suit against them. The trial court granted defendants’ motions, from which orders plaintiffs appeal.
The Court of Appeals, in a divided opinion affirmed the trial court, finding that operation of a water line does not affect the public generally in that it constitutes a proprietary function of government.4 We disagree.
Since 1913, this court has followed the general rule that statutes of limitation do not apply to a government entity seeking in its sovereign capacity to vindicate public rights, and “that the maxium, ‘nullum tempus occurrit regi, ’5 is not restricted in its application to sovereign states or governments, but that its application extends to and includes public rights of all kinds, and that it applies to municipal corporations as trustees of the rights of the public ...” Foot et al. v. Town of Watonga, 37 Okl. 43, 130 P. 597, 598 (1913). Adoption of the general rule in Foot protected the municipality in a property action in which the town held title to a lot designated for use by the general public. Holding against an estoppel theory, the court ruled that the public’s rights stood paramount “no matter how lax the municipal authorities may have been in asserting [them].” Foot 130 P. at 598.
Cases cited by all the parties herein follow and clarify the general rule announced in Foot. These cases focus primarily upon whether the right affected is a public right or private right. Herndon v. Board of Commissioners in and for Pontotoc County, 158 Okl. 14, 11 P.2d 939 (1932); State ex rel. Cartwright v. Tidmore, 674 P.2d 14 (Okl.1983).
In the Herndon decision, this Court held that the trial court properly overruled defendant’s demurrer in an action to compel conveyance of land used for the county courthouse, and that the statute of limitations did not apply to bar the county’s action. The court stated the general rule and announced that the test to determine the nature of the right affected is “whether the right is such as to affect the public generally or to merely affect a class of individuals within the political subdivision.” Id. 11 P.2d at 941.
As an example of a matter involving purely private rights, the Herndon court cited Board of County Commissioners of Woodward County v. Willett, 49 Okl. 254, 152 P. 365 (1915). The court in Willett ruled that the statute of limitations barred the county from recovering excess salary paid to a teacher because the suit affected only private rights “for the reason that the people of the state have no interest in the funds of the county illegally paid out and sought to be recovered, but only that part of the public within the confines of the county are interested in the funds.” Id. 152 P. at 365.
In 1986, the Oklahoma Court of Appeals partly distinguished the 1915 Willett scenario from one in which the statute of limitations would not prohibit a county’s action to recover monies paid under contracts pursuant to an alleged scheme of [134]*134bribes and kickbacks. State ex rel. Board of County Commissioners v. Shelton, 727 P.2d 103 (Okla.App.1986). The Court of Appeals again followed the general rule, and noted that the “court’s perception of ‘public right’ has developed to the point of being more realistic and workable in terms of modern social and economic conditions.” Id. at 106.
This more realistic perception first appeared in the appeal from an action to recover principal and interest on bonds purchased with monies from a county’s sinking fund in which the trial court sustained the defendant’s plea to the five year statute of limitations. Board of County Commissioners of Oklahoma County v. Good Township, 188 Okl. 151, 107 P.2d 805 (1940). The court found that the funds at issue involved constitutional and statutory provisions which “stamp the investment with a public interest”, and that “the distinction [between public and private rights of a political subdivision] should be bolstered by every reasonable presumption favorable to government immunity from the limitation.” Id. 107 P.2d at 807.
These cases, which announce and clarify the general rule focus either upon property disputes in which the property at issue is held for use by the general public, or situations in which the public through legislative control expresses general concern in the rights at issue. This court’s most recent pronouncement regarding governmental immunity from limitations follows the others and upholds the public’s right to require compliance with statutory schemes for governmental contracting and bidding. State ex rel. Cartwright v. Tidmore, 674 P.2d 14 (Okl.1983).
In Tidmore, this Court held that the state’s action to recover money paid to defendant under a contract was not barred by the statute of limitations where the state was suing in its sovereign capacity to vindicate legal rights which are public in nature. We reasoned that laws “requiring competitive bidding and written contracts protect the public at large by promoting economy in government and reducing the likelihood of fraud.” Id. at 16. We further found that the general rule rests upon sound policy that “public interest shall not be prejudiced by the negligence of public officers to whose care it is consigned.” Id. at 16.
From these cases we distill the general rule that statutes of limitation shall not bar suit by any government entity acting in its sovereign capacity to vindicate public rights, and that public policy requires that every reasonable presumption favor government immunity from such limitation. In applying this rule to the issue presently before us, we must determine whether plaintiffs below acted in a sovereign capacity, and whether the rights at issue rise to the level of public rights.
Throughout their arguments the defendants misguidedly equate the govem-mental/proprietary functions applicable to the principle of sovereign immunity from liability with the sovereign’s capacity to bring an action.6 Some courts in determining whether the sovereign may claim immunity from statutes of limitation have rested their decision upon the function performed. See e.g., Reeves v. City of Phoenix, 1 Ariz.App. 157, 400 P.2d 364 (1965). Established principles of Oklahoma law differ, and in making such a determination the Oklahom court has focused not upon the function performed, but the ultimate right at issue. In light of the court’s abrogation of the common law doctrine of sovereign immunity7 and the legislative response thereto which eliminated the distinction between governmental and proprietary functions,8 we would consider it inappropriate to repudiate the existing test in favor of a new one turning on the governmental versus proprietary function.
None of the litigants contest that the operation of a waterworks is a proprietary [135]*135function. Southwestern Light and Power Co. v. Elk City, 188 Okl. 540, 111 P.2d 820 (1941); City of Muskogee v. Turner, 186 Okl. 459, 98 P.2d 1095 (1940). However, the character of the plaintiffs function does not control. We will not attach “controlling importance to the source through which or from which the state acquires the right rather than the nature of the right and whether the failure of its enforcement affects public as distinguished from private enterprise.” State ex rel. Land Commissioners v. Hall, 191 Okl. 257, 128 P.2d 838 (1942).
In Hall, this court ruled that the state acted in its sovereign capacity in a foreclosure action notwithstanding the fact that the state merely derived its capacity to proceed against the grantee under the mortgage assumption clause. This action was not time barred because the “public interests shall not be prejudiced by negligence of public officials to whose care they are consigned.” Id. 128 P.2d at 841.
The case before us presents no right as tenuous as the derivative right acquired in Hall. Here, the plaintiffs function within the statutory framework of Title 60 of the Oklahoma Statutes in their trustee — beneficiary relationship. The governing statutes provide inter alia that the “trustee, or trustees, under such an instrument or will shall be an agency of the state ...” 60 O.S.1981 § 179 (emphasis supplied). Further, dissolution of the public trust requires approval of the governing body of the beneficiary and the governor. 60 O.S.1981 § 180(a). Consequently, the plaintiffs OCMIA and OCMFA must bring their actions in a sovereign capacity since their authority to do so emanates from a pervasive statutory scheme which governs all of their activities as agencies of the state. The City as beneficiary of OCMIA and OCMFA joins its trustees as a political subdivision seeking to enforce its rights also in its sovereign capacity.
Sovereign capacity differs from sovereignty itself. The State of Alabama argued that its counties should receive the same treatment under a state legislative apportionment act as that received by the original thirteen states in relinquishing “some of their sovereignty in agreeing to join together ‘to form a more perfect union’ ”. Reynolds v. Simms, 377 U.S. 533, 574, 84 S.Ct. 1362, 1388, 12 L.Ed.2d 506 (1964). The United Stated Supreme Court refused to apply the so called “federal analogy”, stating that
“political subdivisions ... never were an never have been considered as sovereign entities. Rather, ... these governmental units are created as convenient agencies for exercising such of the governmental powers of the state as may be entrusted to them, and the number, nature and duration of the powers conferred upon them ... rests in the absolute discretion of the state.” Reynolds at 575, 84 S.Ct. at 1388; Hunter v. City of Pittsburg, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907).
We do not suggest that the appellants before us exist as sovereign entities. We merely adhere to existing law that confers upon them by virtue of their status as state agencies the power to act in a sovereign capacity free from statutes of limitation in order to vindicate vested public rights.
Having found that all the plaintiffs appear in their sovereign capacity, we focus finally upon the nature of the rights affected by this long term plan for the extension and improvement of water mains used to supply water to the Oklahoma City area. In making this determination, we must examine the undisputed activities of plaintiffs to determine if they affect the public generally. Sears v. Fair, 397 P.2d 134 (Okl.1964).
This Court defined public right in an action in which a writ of mandamus issued compelling the Secretary of State to deliver notary commissions to those appointed by the governor. State v. Lyon, 165 P. 419 (Okl.1917). The court ruled that it could not assume jurisdiction “unless the public has some right in the question before the court,” and defined the word public to mean “pertaining to the people, or affecting the community at large; that which concerns a multitude of people,” ... and further defined “right” as “a well founded [136]*136claim; an interest; concern; advantage; benefit.” Id. at 420.
Just as Lyon required this court to determine whether the office of notary' affected the business of the whole people of the state, so must we make a similar determination with respect to the delivery of adequate potable water to the Oklahoma City area. In so doing, we discover that the delivery of utility services has often been discussed in this forum.
This court granted a writ prohibiting the Corporation Commission from assuming jurisdiction over a public trust engaged in providing water to the Oklahoma County area. Oklahoma County Utility Services Authority v. Corporation Commission, 478 P.2d 352 (Okl.1970). The court described the utility authority saying that “[i]ts services are used by the public, and its activities are of public consequence. It is a public business, or 'a business effected with a public interest. The same may be said of a city owned and operated water distribution system.” Id. at 353. (emphasis supplied).
Additionally, this court examined the documents creating OCMIA and upheld the validity of that trust in Harrison v. Barton, 358 P.2d 211 (Okl.1960). At trial, the parties entered numerous findings of fact, one of which recites the purposes of the trust and includes among other things the construction of “public utility properties ... for use by the United States of America, or the State of Oklahoma, or by authority for agencies of the United States or Oklahoma, or any municipality thereof, or any political subdivisions, including the beneficiary of said trust, the City of Oklahoma City.” Id. at 213-14.
OCMIA’s original purpose clearly contemplated a nationwide range of rights affected by water delivery. Regardless of any changes which may or may not have occurred in the trust indenture, the overall purpose of the trusts before us continues to affect the public generally. OCMFA receives federal funds. The statutes controlling public trusts confer upon them status of state agencies. Delivery of adequate drinking water affects every single person who resides in or travels through the Oklahoma City area. In upholding the validity of a similar trust, this court found that the “trust was created to furnish utility services to the inhabitants of unincorporated areas in Oklahoma County, services and facilities for safeguarding the public health, the protection of persons and property and to promote generally the public welfare of such character as may be the authorized or proper function of the beneficiary of the trust.” Board of County Commissioners of Oklahoma County v. Warram, 285 P.2d 1034 (Okl.1955).
We find it inconceivable that the rights at issue could be anything but public rights. As the flow of notarized documents throughout the state affects the business rights of the general public,9 so too the flow of water in Oklahoma City affects the rights not only of the citizens whose water travels through those 8½ miles of pipe, but also the rights of travelers, of fairgoers, of horserace fans, and of businesses contemplating expansion or relocation here. Water is fundamental to existence. This necessity entitles the general public to expect an adequate water supply in the Oklahoma City area.
That statutes of limitation fail to bar plaintiffs’ actions does not resolve one final issue with respect to the statute of repose found at 12 O.S.1981 § 109. We noted the inherent difference between a statute of limitations and one of repose in Smith v. Westinghouse, 732 P.2d 466 (Okl.1987) stating that
[t]hey are different in the sense that a statute of limitations serves to place a limit on the plaintiffs time to bring an action. After the prescribed time period has lapsed, a statute of limitation serves to extinguish the remedy for the redress of an accrued cause of action. A statute of repose, by way of contrast, restricts potential liability by limiting the time during which a cause of action can arise. It thus serves to bar a cause of action before it accrues. In a practical sense, a [137]*137statute of limitation implicity seeks to punish those who sleep on their rights, while a statute of repose, operates to bar some plaintiffs’ recovery, no matter how diligent they may have been in asserting their claims. Id. at 468-69 n. 11.
However, the first leak in the Phase III water system at issue occurred in June, 1980, a period well within the time constraints imposed by 12 O.S.1981 § 109 during which a cause of action may accrue. Consequently, since plaintiffs’ initial right of action accrued and vested within the prescribed time period, the statute governs in this case not the substantive issue of the existence of a right, but the procedural aspect of the availability of a remedy. Once a cause of action arises, applicable statutes of limitation begin to operate placing a limit on the plaintiff’s availability of remedy. Since plaintiffs initial cause of action arose and vested during the ten year period prescribed by law, public policy compels us to adhere to the general rule that public rights should not be prejudiced by the tardiness of officials to whom those rights are entrusted. State ex rel. Cartwright v. Tidmore, 674 P.2d 14, 16 (Okl.1983).
Accordingly, we grant certiorari and vacate the opinion of the Court of Appeals, holding that neither statutes of limitation nor repose shall bar plaintiffs’ actions brought.in their sovereign capacity to vindicate vested public rights. In so holding we apply existing Oklahoma norms, recognizing but in no way expanding the remedies available to the state and its subdivisions. We reverse the orders of the district court granting summary judgment, and remand the matters for further proceedings below.
DOOLIN, C.J., HARGRAVE, V.C.J., and LAVENDER, SIMMS and ALMA WILSON, JJ., concur.
KAUGER, J., concurs in part, dissents in part,
HODGES and OPALA, JJ., dissent,