This is an appeal from a judgment rendered upon a jury verdict in an action in condemnation brought by the Grand River Dam Authority, herein referred to as the Authority, as plaintiff, against Grand-Hydro, as defendant.
After commissioners were appointed and had fixed the value of defendant’s, property, both parties demanded a jury-trial, resulting in a verdict for defendant of $136,250. (On appeal to this court the cause was reversed and remanded. Grand-Hydro v. Grand River Dam Authority, 192 Okla. 693, 139 P. 2d 798.)
The case was retried and judgment, rendered upon the verdict of the jury, from which plaintiff brings the cause here on appeal. Briefs amicus curiae-have been filed by the State of Oklahoma and by the United States.
There is little dispute about the facts. The Grand-Hydro is a private corporation organized in 1929 and incorporated, for the purpose of generating and distributing electric power. It acquired. *158title to numerous tracts of land along the Grand River, including that involved in this litigation, which consists of some 1,400 acres. Included in this acreage is one 417-acre tract known as the Pensacola site, which is the site of the dam later built by the Authority.
On August 29, 1931, after a proper application therefor was filed, the Conservation Commission of Oklahoma issued to Grand-Hydro a permit to appropriate to a beneficial use 4,000 cubic feet per second of the flow of Grand River and to construct one 50-foot storage and power dam and one 14-foot equalizing dam, pursuant to which extensive engineering investigations and surveys were made by the Grand-Hydro. As pointed out in our former opinion, this permit was in effect at the time of its assignment to the Authority.
In February, 1934, the city of Tulsa, after having obtained a permit to appropriate the waters of Spavinaw creek, a tributary of Grand river, filed suit in the district court of Mayes county to adjudicate the appropriated and unappropriated waters of both streams. In that suit the Grand-Hydro was made defendant along with several cities and towns.
The State Legislature in 1935 created the Grand River Dam Authority as a governmental corporate agency, to develop and sell water power and electric energy in the Grand River basin, and.endowed it with the power of eminent domain.
After being made a party to the city of Tulsa suit and before filing answer, the Authority acquired, on January 10, 1938, by assignment and deed, all of the title and interest of the Grand-Hydro in a 45-mile tract of land and in the permit and license to appropriate the waters of Grand River to a beneficial use. The Authority then, on January 18, 1938, filed its answer and cross-petition, alleging among other things the assignment and the ownership by the Authority of all the interest of Grand-Hydro in the permit and license. About a month later judgment was rendered adjudging that the several municipalities had a prior right to divert and appropriate for municipal purposes very small amounts of the flow of Grand River and that the Authority had a prior right to the remainder of said flow.
In March, 1938, Grand-Hydro conveyed another 10 acres to the Authority and in July conveyed to it the right of entry on all lands at the Pensacola dam site and south thereof. The conveyances of the land were made on condition that the consideration would later be determined by agreement or condemnation and the assignment was on the condition provided for therein:
“It is understood, however, that this assignment and conveyance shall not, in any way, affect or impair the title of Grand-Hydro to any lands owned by it, or any interests therein, and if any lands or interest therein owned by the said Grand-Hydro are acquired by the Grand River Dam Authority by purchase or condemnation, the value thereof or damage thereto shall be ascertained as though this assignment and conveyance had never been made.”
The parties being unable to agree on the value of the property, the Authority filed this action in condemnation February 17, 1939. It was stipulated by the parties that the taking date was January 19, 1940.
In July, 1939, after proper application by the Authority and after a finding that the construction proposed would affect interstate commerce because of its effect on the Arkansas River, the Federal Power Commission issued a license to the Authority to construct, maintain and operate the dam which it later built. The spillway was built on the 45-acre tract acquired by deed and the dam was built on adjacent land still owned by Grand-Hydro but covered by the right of entry. Grand-Hydro had no such federal license nor had it taken any steps toward procuring one.
In the second trial the witnesses, on behalf of the Grand-Hydro, testified *159that the 417-acre tract had a value of $750,000 to $1,000,000 for dam site purpose and the balance of the land had a value of $78,375 to $83,600. The Authority introduced no testimony as to the value of the land for dam site purposes but their witnesses testified the entire 1,400 acres had a value of $34,-500 to $56,656.50.
The numerous assignments of error urged by appellant will be considered in the order presented, first and foremost being whether or not the former opinion of this court constitutes the law of the case on this appeal. The conclusions therein expressed were arrived at after extensive arguments by counsel, the filing of various petitions for rehearing and detailed consideration of every question presented. Many cases are cited by each party stating the rule of law:
. . All questions open to dispute and either expressly or by necessary implication decided on appeal to this court will not be open for review on the second appeal, but such decision becomes the settled law of the case as to all such questions, and is not subject to reexamination.” St. Louis & S. F. Ry. v. Hardy 45 Okla. 423, 146 P. 38.
And the exceptions to the rule:
“. . . The courts uniformly hold that an appellate court may review and reverse its former decision in the same case where it is satisfied that gross or manifest injustice has been done by its former decision, or where the mischief to be cured far outweighs any injury that may be done in the particular case by overruling a prior decision.” Wade v. Hope & Killingsworth, 89 Okla. 64, 213 P. 549.
Although a few courts hold that there is no exception to the general rule, we have consistently held that, if the facts of the particular case warrant, the exception should apply. But, as heretofore stated, the opinion on the first appeal was rendered only after exhaustive study and is the law of this case on all questions therein decided.
On the first appeal we held that the permit of the Grand-Hydro was not invalid ab initio, nor had it expired by its own terms, nor had it been abandoned, nor did the city of Tulsa case so hold.
The doctrine of “the law of the case” is not controlling “where the facts and issues are different in a subsequent appeal from what they were in the former appeal.” Missouri, K. & T. Ry. Co. v. Tulsa, 113 Okla. 21, 238 P. 452 at 456. In this appeal the new or different facts and issues presented consist of the competency of the testimony, as presented in the last trial, of the expert witnesses as to the market value of the dam site; the submission of such testimony to the jury under proper instructions; the effect of Grand-Hydro’s lack of a permit from the Federal Power Commission; the trial court’s refusal to allow counsel to argue to the jury that the condemned land had no dam site value because of such fact; and the allowance of interest.
When the very able argument of the plaintiff in error, on all points except that relating to interest, is summarized and condensed, it can be stated as one proposition: that, by reason of the legislative act creating the Authority, and the issuance of a permit to it by the Federal Power Commission, the value of the land as a dam site was for the special purpose of the taker, the only party who can use it for that purpose. Many authorities are cited to the effect that if the taker is the only one who can use the land for a particular purpose, its value therefor is not an element in fixing the market value. Paramount among the authorities cited are Eichman v. The City of Oklahoma City, 84 Okla. 20, 202 P. 184, and United States v. Boston C.C. & N.Y. Canal Co., 271 Fed. 877. In all of the cases relied upon, the taker, inherently was the only one who could use the property for the specific purpose, usually a governmental function, or the condemnee did not have the power of eminent domain necessary to acquire all the lands needed to use the tract for such purpose.
In the case at bar the condemnor was, by legislative act, exclusively author*160ized to use the Grand River for hydroelectric power, but the use was in the nature of a business enterprise and the condemnee was also possessed of the power of eminent domain.
Appellant contends that the passage of the act creating the Authority was, in effect, a forfeiture of the Grand-Hydro permit and therefore it was not entitled to recover the dam site value of the lands condemned. If such was the intent of the Legislature in passing the act, it was in violation of the Constitution, art. 2, sec. 24. The state cannot, through its law-making body, remove the principal value of private property and, through its- established agency acquire the property by condemnation, basing the reimbursement to the owner on the reduced value. If it were otherwise, it would be possible to circumvent the above section of our Constitution. The value of the right to appropriate water which constitutes one element in fixing the value of land as a dam site was discussed in our former opinion.
The parties themselves realized that the suitability of the land as a dam site was the principal element of value. Otherwise, there would have been no reason for the above-quoted proviso in the assignment of the license and permit. This is further borne out by the stand taken by the Authority in the City of Tulsa case in which the Authority’s answer and cross-petitions set up the assignment as a basis of ownership of all of the Grand-Hydro’s right to appropriate the river flow. The judgment in that case sustained that position.
The testimony of the expert witnesses as introduced was, therefore, competent to prove the dam site value of the property and was in accord with our opinion on the former appeal. To the same effect is the California case of Metropolitan Water Dist. of Southern California v. Adams et al. (Cal.) 116 P. 2d 7, wherein there is an extensive discussion of many of the points herein involved and a collection of many authorities on the subject.
Although the Authority had been granted a license by the Federal Power Commission granting it the exclusive right to use the 417-acre tract as a dam site, it could not thereby take private property without just compensation. Nor was the issuance of such license intended to have that effect because the plain provision requires the licensee to pay all damages to the property of others caused by the construction, operation and maintenance of the project. In addition, the Federal Power Commission based its authority to take jurisdiction upon a finding of fact that the construction and operation of the project “as proposed by the declarant will affect navigable stages of the Arkansas River, a navigable water of the United States, to which said Grand River is tributary.” The commission would have no authority whatever if the dam site were used for the construction of such a dam that the navigability of the Arkansas River would not be affected.
The trial court, therefore, was correct in refusing to allow counsel to argue to the jury the proposition that the lands had no dam site value because of . the provisions of the legislative act creating the Authority and the issuance to it of the license by the Federal Power Commission. The instructions to the jury fully cover all issue submitted and are in harmony with our opinion herein and in the first appeal.
On January 19, 1940, the date of the taking, the Authority paid into court the amount found by the commissioners to be the value of the property, $281,802.74. The jury fixed the value at $800,000 and the judgment of the court allowed interest on $518,197.26, the difference between these two amounts, from said date of taking. The question of interest in this type of case must be reserved by the court, as in St. Louis, E. R. & W. R. Co. v. Oliver, 17 Okla. 589, 87 P. 423, or it must be apparent that the jury omitted it, in *161order for the court to allow the same. Blackwell, E. & S. W. R. Co. v. Bebout, 19 Okla. 63, 91 P. 877. Herein, the trial court instructed the jury to fix the market value of the lands as of the date of taking. Therefore, it was proper to allow interest from that date.
Finding no error, the judgment is affirmed.
OSBORN, BAYLESS, WELCH, CORN, GIBSON, and ARNOLD, JJ., concur. HURST, C.J., and RILEY, J., dissent.