Perry v. Grand River Dam Authority

2015 OK CIV APP 12, 344 P.3d 1, 2013 Okla. Civ. App. LEXIS 146

• Court: Court of Civil Appeals of Oklahoma
• Decided: December 31, 2013
• Docket: Nos. 109,714, 109,715 and 109,716
• Status: Published

Opinions

JERRY L. GOODMAN, Judge.

11 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

T2 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

1 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 flood-ing.³ Subsequently, Perrys, Pryors, and Shaws' properties flooded in September 1998 (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. _

T4 GRDA subsequently filed a motion for summary judgment, asserting Landowners claims for damage to real and personal property were time-barred by 12 0.8.2011, § 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.

T 5 On May 14, 2010, the trial court granted GRDA partial summary judgment, finding Landowners' personal property claims were time-barred by 12 0.8.2011, § 95(A)@G). 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 operation⁵ - However, Pryors did not acquire the property until 1989. Pryors sold the property in 2005.

e A temporary taking from 1998 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 Mus-setter 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.

e 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.

T6 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 0.8.2011, § 95(8).

STANDARD OF REVIEW

T7 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

18 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 Horn 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.8d 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, "(inverse 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 peceu-liar 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 ©d.1990)).

T9 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.

T 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, 458 P.2d at 1016; Mattoon v. City of Norman, 1980 OK 137, ¶ 11, 617 P.2d 1347, 1349. Conversely, "[alets 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, 1989 OK 70, ¶ 14, 775 P.2d 1347, 1351.

{12 With respect to flooding, the Oklahoma Supreme Court has held that continual flooding caused by the construction of a public highway, if serious enough to constitute substantial interference with the use and enjoyment of the property, may constitute a taking. Hoebel, 1979 OK 68, at ¶ 10, 594 P.2d at 1215. The majority rule is that flooding may constitute a taking if the flooding is severe enough so as to effectively destroy or impair the land's usefulness. Id. at 18, 594 P.2d at 1215 (citing 2 Nichols on Eminent Domain, § 6.23(8), and 26 Am. Jur.2d, Eminent Domain, § 65). See also Henthorn, 1969 OK 76, 453 P.2d 1013 (Sy1.2)(holding frequent aircraft flights over a landowner's property may constitute a taking). "Ordinarily, the question of whether a continuing interference is substantial enough to constitute a 'taking' under Section 24, Art. 2, Constitution, is one for the jury." Id.

1 13 The U.S. Supreme Court recently reiterated - requirements for - determining whether there has been a taking under the Fifth Amendment to the U.S. Constitution in Arkansas Game and Fish Comm'n v. U.S., - U.S. --, 188 S.Ct. 511, 184 L.Ed.2d 417 (2012). The Court noted "[the Takings Clause is 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."" Id. at 518 (quoting Armstrong v. United States, 364 U.S. 40, 80 S.Ct. 1568, 4 L.Ed.2d 1554 (1960)). In addition, "[when the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner." Id. (quoting Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Reg. Planning Agency, 535 U.S. 302, 122 S.Ct. 1465, 152 L.Ed.2d 517 (2002)).

-T 14 The issue in Arkansas Game and Fish was "whether government actions that cause repeated floodings must be permanent or inevitably recurring to constitute a taking of property." Id. at 518. The Court concluded that government-induced "recurrent floodings, even if of a finite duration, are not categorically exempt from Takings Clause lability." Id. at 515. The temporary nature of the flooding did not automatically exclude it from being a compensable event under the Takings Clause. While time or duration was the relevant factor in determining the existence of a compensable taking, the Court held "(allso relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action." Id. at 522. Thus, the duration of a physical invasion is not determinative of whether or not the government may be held liable for a taking. Regardless of whether the invasion is temporary or permanent, takings liability under the Takings Clause can attach to any federal government action that constitutes a substantial interference with the use and enjoyment of the property. Although not controlling, we find Arkansas Game and Fish persuasive.)¹⁰

15 The majority rule in this country is that flooding may constitute a taking if the flooding is severe enough so as to effectively destroy or impair the land's usefulness. See Hoebel, 1979 OK 68, ¶ 8, 594 P.2d at 1215. In the present case, Landowners' properties were subject to a series of recurring floods in varying degrees in 1986, 1998, 1994, and/or 1995. The trial court found the floods were caused by the existence and operation of the Pensacola Dam and that the floods constituted a sufficient interference with Landowners' use and enjoyment of their properties to constitute a taking. Based on our review of the record, we find competent evidence from which the trial court, as the trier of fact, could conclude that a taking of Landowners properties has occurred.

1. Date of Taking and Interest Taken

116 The date of taking establishes not only the date of transfer, but also the date on which just compensation is to be determined. The date of taking in a condemnation case is the date when the condemnor pays the amount of the commissioners' award into court. State ex rel. Dept. of Transp. v. Post, 2005 OK 69, ¶ 9, 125 P.3d 1183, 1186-87. Unless a party makes a timely request for a jury trial, the commissioners' report establishes compensation. Conversely, in an inverse condemnation proceeding, the commissioners' report serves no purpose and just compensation, along with whether and the date a taking has occurred, are questions of fact for the trier of fact. Id. at 17, 125 P.8d . at 1186.¹¹

117 At oral arguments, GRDA asserted the Shaws and Pryors' date of taking was the 1986 flood and the Perrys' date of taking was the 1993 flood.¹² GRDA maintains the taking occurred upon the first substantial governmental interference with the properties and that any subsequent damage to the properties simply constitutes further evidence that the governmental interference was indeed substantial. GRDA contends there is only a single, permanent taking for each Landowner because the need for the properties has not ceased as flooding will inevitably recur again, citing Perkins Whistlestop, Inc. v. State ex rel. Dept. of Transp., 1998 OK CIV APP 7, 1 7, n. 4, 954 P.2d 1251, 1254, (stating there is only one taking). Thus, GRDA maintains: 1) any damages before the date of taking are time-barred; 2) any damages after the date of taking are barred because the property had previously been taken; and 3) the only damages that may be properly awarded are those for the value of the property interest taken.

118 Landowners disagree, asserting their properties were subject to a series of recurring flooding and that the trial court correctly determined the dates and interests taken.

{ 19 In the present case, the court determined the dates and interests taken as follows:

April 7, 1994; the beginning date of the flood in the series of floods which reached the highest elevation on their property; a flowage easement

ePryors: a temporary taking from September 1998 through June 1995

® Shaws: June 2, 1995; the beginning date of the last flood in the series of floods; a fee title

120 In an inverse condemnation proceeding involving a series of floods, i.e., intermittent - and - inevitably - recurring flooding, as in the present case, we conclude the date of taking is not the date the first flood substantially interferes with the landowner's use and enjoyment of the property. Rather, the date of taking is that date when it becomes clearly apparent that the series of flooding is caused by the government or governmental entity having the right of eminent domain, is of a permanent nature ie., although intermittent and temporary in duration, is inevitably recurring, and substantially or sufficiently interferes with the landowner's use and enjoyment of the property.¹³ See Henthorn, 1969 OK 76, at 1 10, 453 P.2d at 1015. The determination of these questions by the trier of fact will not be disturbed on appeal if supported by competent evidence.

1121 With respect to the interest taken, GRDA initially asserted the proper remedy was a flowage easement. A flowage easement is the right to overflow the land of another in the accumulation and maintenance of an artificial body of water. 78 Am.Jur.2d Waters § 261 (2011). In its supplement briefing after oral argument, however, GRDA asserted granting a flowage easement may be unrealistic and that the transfer of a fee simple interest may be the only rational remedy in this case.

122 The determination of the appropriate interest taken is a question of fact for the trier of fact. If Landowners are capable of making valuable uses of their property despite the recurring flooding, a flowage easement may be the appropriate interest taken. However, if the trier of fact determines a Landowner's property is no longer useful for any purpose, GRDA's actions may constitute a complete taking. This is a question of fact for the trier of fact.

123 Accordingly, we reverse and remand to the trial court for a redetermination of the dates of taking and interests taken, either a flowage easement or fee simple interest, in accordance with this opinion. The determination of these issues is a prerequisite to the determination of an award of just compensation. - However, the Court notes that pursuant to Art. II, § 24 of the Oklahoma Constitution, Landowners are entitled to recover just compensation for all property taken or damaged for public use whether the damages are direct or consequential. "[The required payment for "Just compensation' is not limited to property 'taken,' but extends also to property 'damaged.' " Williams, 2000 OK CIV APP 19, at ¶ 14, 998 P.2d at 1249. "The essential consideration in determining compensation for a taking of a property interest is to put the property owner in as good a position as it would be if no taking had occurred." Material Serv. Corp., 2012 OK CIV APP 17, at 118, 273 P.3d at 887 ¹⁴

B. Statute of Limitations

124 Landowners counter-appeal, asserting the trial court erroneously applied the two-year statute of limitations in 12 0.8. 2011, § 95(A)(8) to their personal property losses. Landowners contend the fifteen-year inverse condemnation limitation period applies to all property taken, asserting personal property taken by flooding is an element of the total value of a landowner's award of just compensation. - Landowners maintain that subjecting real and personal property to differing statute of limitations is arbitrary and inconsistent with the underlying policy of Article II, § 24 of the Oklahoma Constitution and fails to make the landowner "whole" and, in reality, collapses the entire action to a two-year statute of limitation whenever personal property is taken. Finally, Landowners assert that rules of statutory construction require rejection of the two-year provision, noting § 95 sets forth the limitations periods to bring "[elivil actions other than for the recovery of real property" and generally pertains to a list of tort actions.

25 GRDA disagrees, asserting Oklahoma statutes clearly provide that a fifteen-year limitations period applies to "an action for the recovery of real property ..." and a two-year limitation period for damages to personal property, citing 12 O.8.2011, § 95(8). GRDA asserts that personal property is not "taken," i.e., the government does not take title to the property as it does with real property, but is merely damaged or injured, citing State ex rel Dept. of Transp. v. Little, 2004 OK 74, 119, 100 P.3d 707, 717 ("A condemnee is entitled to compensation for 'damages to personal property incident and necessarily caused by the exercise of the power of eminent domain in taking land."") Thus, GRDA contends the statute of limitations for personal property is properly two years.

126 Article 2, § 24 of the Oklahoma Constitution does not contain a limitations period, nor does it distinguish between real and personal property, but extends just compensation to all private property taken or damaged.¹⁵ In Drabek v. City of Norman, 1996 OK 126, at ¶ 4, 946 P.2d at 660, the Oklahoma Supreme Court noted that "InJjeither statute nor constitution establishes a limitation period for bringing a suit in inverse condemnation. Case law has determined limitations periods based on whether there has been a taking." The Court subsequently held the fifteen-year prescriptive period was appropriate where there was a taking of real property without just compensation. Id., 1996 OK 126, at ¶ 5 & 16, 946 P.2d at 660 & 661-62 ("Early case law established the fifteen-year period governing adverse possession to be the appropriate limitation period in an inverse condemnation proceeding where there was a taking of plaintiff's property for public use without compensation.") The applicable limitation period for personal property in an inverse condemnation action has not been addressed in Oklahoma.

127 Condemnation proceedings, including inverse condemnation, do not involve a tort and are not, strictly speaking, civil actions or suits. Inverse condemnation is a special statutory proceeding for the purpose of ascertaining just compensation. Drabek, 1996 OK 126, at ¶ 8, 946 P.2d at 660; Oklahoma City v. Wells, 1939 OK 62, 91 P.2d 1077. In an inverse condemnation proceeding, the claim for "just compensation" includes all taken or damaged property, whether real and personal. The proceeding is designed to determine in a single action all compensation for property taken from private persons for public use.

$28 If the Court applies the two-year limitation period as GRDA asserts, widely divergent limitations' periods to recover just compensation for the same governmental action in the same inverse condemnation proceeding would be applicable. "The underlying purpose of statutes of limitations is to prevent the unexpected effort at enforcement of stale claims concerning which persons interested have been thrown off their guard by want of prosecution for a long time." Wing v. Lorton, 2011 OK 42, ¶ 11, 261 P.3d 1122, 1125 (citing Seitz v. Jones, 1961 OK 283, ¶ 11, 370 P.2d 300, 802). It is designed to end stale claims and compel parties to diligently pursue their claim before relevant facts are obscured through the passage of time. Id.

129 In the present case, a party could be deprived of a component of just compensation, ie., personal property damages, through application of multiple statutes of limitations even though recovery of just compensation for real property and associated damages remains viable. Article II, § 24 of the Oklahoma Constitution provides that "Private property shall not be taken or damaged for public use without just compensation...." "The term 'property' as used in our Constitution regarding the taking of private property for public use for which just compensation must be paid includes not only real estate held in fee, but also easements, personal property and every valuable interest which can be enjoyed and recognized as property." Little, 2004 OK 74, at ¶ 22, 100 P.3d at 718.

This court should never be unmindful that a landowner is entitled to be compensated fully when the latter's property is taken by the government in the exercise of the eminent domain power. The mandate of both the state and federal constitutions strongly supports full indemnification by just compensation. The command requires that the condemnee be placed as fully as possible in the same position as that occupied before the government's taking.

Id. at ¶ 23, 100 P.3d at 718 (citing Oklahoma Turnpike Auth. v. New Life Pentecostal Church of Jenks, 1994 OK 9, ¶ 12, 870 P.2d 762, 766). Furthermore, a limitations period should not become an instrument of injustice. See 54 C.J.S. Limitations of Actions § 2 (2018).¹⁶

130 Accordingly, we decline to impose such a result and find the appropriate statute of limitations period applies to the claim and not to the individual components of relief in an inverse condemnation proceeding. Thus, we hold the appropriate limitations period is fifteen years for an inverse condemnation proceeding for the taking or damaging of all private property, including real and personal. This result avoids divergent limitations periods for components of a single claim and does not require the owner to resort either to piecemeal or premature litigation to ascertain just compensation. Thus, the trial court erred in applying the two-year statute of limitations to Landowners' personal property claims, and this portion of the trial court's order is reversed.

131 REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

THORNBRUGH, P.J., concurs and and RAPP, J., concurs in part and dissents in part.

1 . By order dated August 15, 2011, the Oklahoma Supreme Court ordered Appeal Nos. 109,714, 109,715, and 109,716 consolidated under surviving Appeal No. 109,714. In addition, this Court declines to strike the amended designation of record.

2 . A flowage easement permits GRDA to flood privately-owned property, if necessary, for the operation of the project.

3 . Pryors' property also sustained flooding in 1986, although they were not the owners of the property. - Apparently, the previous owner abandoned the property after the 1986 flood.

4 . Perrys, Pryors, and Shaws' claims were severed for procedural reasons and are the only landowners involved in the current appeal.

5 . Dr. Robert A. Mussetter was another expert in the Dalrymple case.

6 . GRDA asserted no taking occurred because Landowners restored and returned to their homes and continued to live on the property. Thus, the properties usefulness was not destroyed or seriously or substantially impaired to the point Landowners could not exercise dominion and control.

7 . For example, GRDA asserted a taking of the Shaws' property did not occur because the property was flooded by four feet of water in 1986 and 50% of this was due to naturally-occurring flooding. Thus, the additional flooding caused by GRDA's operation of the dam affected a house already flooded and "taken" by naturally-occurring flooding.

8 . This Court granted GRDA's motion for oral arguments by order dated June 3, 2013.

9 . GRDA's concession, rejected by Landowners, is only a statement against interest. Its concession cannot usurp the functions of the court to decide questions of law and the trier of fact to decide issues of fact. In inverse condemnation proceedings, whether there is a sufficient interference with the landowner's use and enjoyment to constitute a taking, and the date of taking, is a question of fact for the trier of fact. See Henthorn v. Oklahoma City, 1969 OK 76, 453 P.2d 1013.

10 . The parties dispute the applicability of Arkansas Game and Fish to the present case. GRDA asserts it is inapplicable because a permanent condition exists in the present case that will inevitably recur. Landowners disagree, asserting the case supports its positions of multiple temporary takings. GRDA further asserts the federal and state takings clauses are distinct as held in Board of Cty. Comm'rs of Muskogee Cty. v. Lowery, 2006 OK 31, 136 P.3d 639. In Lowery, the Oklahoma Supreme Court held the Oklahoma Constitution provides private property protection to Oklahoma citizens beyond that which is afforded them by the Fifth Amendment to the U.S. Constitution. Thus, Oklahoma's constitutional eminent domain provisions place more stringent limitations on governmental eminent domain power than the limitations imposed by the Fifth Amendment to the U.S. Constitution. Lowery did not hold as GRDA asserts.

11 . In an inverse condemnation proceeding, issues regarding whether a taking has occurred, the date of taking, and the measure of damages are all questions of fact for the trier of fact. See e.g., State ex rel. Dept. of Transp. v. Post, 2005 OK 69, 125 P.3d 1183 (In an inverse condemnation proceeding, the commissioners' report is irrelevant and does not decide the issue of a taking); Williams v. State ex rel. Dept. of Transp., 2000 OK CIV APP 19, 113, 998 P.2d 1245 (determination of a taking must be made by the trier of fact). Conversely, regular condemnation proceedings are governed by legislatively-prescribed procedures which are ordinarily designed to resolve only the issue of just compensation. These procedures are not designed to deal with the issue of whether there has been a taking since an actual taking must occur before the process can begin. Thus, condemnation procedures, including the appointment of commissioners, are not followed in inverse condemnation proceedings.

12 . - Again, it is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation. Almota Farmers Elevator & Warehouse Co. v. United States, 409 U.S. 470, 473-74, 93 S.Ct. 791, 35 LEd.2d 1 (1973).

13 . This rule should not be read to exclude a temporary flood invasion from takings liability. This rule only applies to those situations involving intermittent and inevitably recurring flooding.

14 . In the present case, GRDA chose not to condemn Landowners' properties despite recurrent flooding. Following each flood, Landowners restored and repaired their properties, not knowing that their properties would be subject to recurring flooding caused by operation of the Pensacola Dam. Landowners were required to file for inverse condemnation and are entitled to be fully compensated under the law as a result of the taking. See also fn. 18, infra.

15 . A plaintiff may recover for personal property in an inverse condemnation case. The wording of Art. II, § 24 of the Oklahoma Constitution does not distinguish the type of property covered in the Article. State ex rel. Dept. of Transp. v. Little, 2004 OK 74, 100 P.3d 707; Blincoe v. Choctaw Oklahoma & Western RR. Co., 1905 OK 120, 16 Okla. 286, 83 P. 903; see Broward County v. Rhodes, 624 So.2d 319 (Fla.Dist.Ct.App. 1993) (recognizing that personal property may be the subject of inverse condemnation); Hawkins v. City of La Grande, 315 Or. 57, 843 P.2d 400 (1992). This Court notes the case of Pete v. U.S., 569 F.2d 565 (Cl.Ct.1978), where the plaintiffs were held to be entitled to recover litigation expenses in a successful inverse condemnation action for the taking by a federal agency of their personal property. In State ex rel. Dept. of Transp., 2004 OK 74, at 122, 100 P.3d at 718, the Court stated:

[Art. II, § 24] is not by its terms limited to real property nor does it exclude from compensable injury damage to personal property when an entire tract of land is taken. 'The term 'property' as used in our Constitution regarding the taking of private property for public use for which just compensation must be paid includes not only real estate held in fee, but also easements, personal property and every valuable interest which can be enjoyed and recognized as property." ...

16 . The federal court applies the stabilization doctrine in flooding cases. In United States v. Dickinson, 331 U.S. 745, 749, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), the U.S. Supreme Court held "[when a taking is caused by a continuous process, it is not complete, for purposes of determining when the claim arose, 'until the situation becomes stabilized.'" In Dickinson, the government took property through a "continuing process of physical events." The landowners filed an inverse condemnation proceeding alleging the flooding was a taking. The Court ruled that under such circumstances, because the government had put the "onus of determining the decisive moment in the process of acquisition by the United States" on the landowner, the landowner was permitted to postpone filing suit "until the situation [became] stabilized." Id. at 748-49, 67 S.Ct. 1382. "The Fifth Amendment expresses a principle of fairness and not a technical rule of procedure enshrining old or new niceties regarding 'causes of action'-when they are born, whether they proliferate, and when they die." Id. at 748, 67 S.Ct. 1382. Thus, Dickinson warned against applying an excessively rigid rule when the government takes property through a gradual physical process. Id. at 749, 67 S.Ct. 1382. "[When the Government chooses not to condemn land but to bring about a taking by a continuing process of physical events, the owner is not required to resort either to piecemeal or to premature litigation to ascertain the just compensation for what is really 'taken.'" Id. Although not controlling in Oklahoma, we find the stabilization doctrine persuasive in determining the applicable statute of limitations in the present case.