concurring in part and dissenting in part.
{1 While I agree that all of the Grand River Dam Authority's (GRDA) appeal must be reversed, I dissent from the resolution of these appeals by the Majority.
T2 I concur with the Majority's Decision that the fifteen-year Statute of Limitations applies to each of the individual landowner's claims for just compensation for taking of personal property. However, because there are issues about the taking and dates of taking, I would have the trial court apply the fifteen-year limitation only after the takings issues are resolved.
I. GRDA Appeals.
1 3 My point of departure from the Majority begins with its direction to the trial court to re-determine the dates of takings and interests taken, either of a flowage easement or fee simple interest, The Majority's directive to the trial court does not comport with the facts of the case as to each individual landowner and omits consideration of a temporary taking along with the separate measure of damages where the taking is temporary.
T 4 Although each landowner suffered from flooding caused by GRDA, there are material facts unique to each case. Thus, a review of the facts and the trial court's dispositions are in order.
15 Flooding occurred in 1986, September 19983, April 1994 and June 1995. The 1986 *12flood affected the Shaws' property. The trial court's finding that about one-half of the flood water depth in 1986 was due to GRDA has not been disputed in this appeal. The 1986 flood also affected the Pryors' property, but Pryors did not own the property at that time, having purchased it in 1989 with knowledge of the 1986 flood. Each flood in 1993, 1994 and 1995, above a pre-existing flowage easement, was caused by GRDA for all of the properties. |
A. Perrys' Property ~Facts.
T6 Perrys' property was flooded in September 1998, along with the crawl space of the residence. The residence and property were subject to flooding in April 1994, and June 1995. On each occasion, the Perrys cleaned and restored their residence and moved back into it.' The trial court itemized a list of damages on each occasion including value of time and the costs of cleaning and restoring. The Perrys were deprived of the use and enjoyment of the home on each flood event ranging from forty hours in 1998 and 1995 to three months in 1994. The April 1994 flood was the flood that reached the highest elevation and the court ruled that this flood constituted a taking of the flowage easement on Perrys' property and established the date of taking as April 7, 1994. Damages were awarded for clean-up time and costs as to all floods and for the easement.
B. Pryors' Property Facts.
T7 Pryors' property was subject to flooding in September 1998, but not the residence. The floods of April 1994, and June 1995, also affected the residence. The property also flooded in 1986 to a depth of five feet, with three and one-half feet of that flood due to natural causes and the balance the GRDA Dam operation. The owners in 1986 abandoned the property and Pryors acquired the property in 1989, after being informed of the 1986 flood history.
T8 On each occasion during their ownership, the Pryors' cleaned and restored their property and moved back into the residence. The 1998 flood did not enter their home. The 1994 flood resulted in two feet of water in the home. The 1995 flood had water in the duct work under the house. The trial court itemized a list of damages on each occasion including value of time and the costs of cleaning and restoring.
19 The Pryors were deprived of the use and enjoyment of the home for six months after the 1994 flood. On the occasions of the 1993 and 1995 floods, they spent a number of hours in cleaning and restoration. The trial court found that this series of floods "significantly impacted and interfered with" Pryors' use and enjoyment of their property. However, they continued to live there until 2005, when they sold the property. No flowage easement was taken, but the trial court awarded damages for clean-up time and costs and diminished value of the property.
C. - Shaws' Property Facts.
1 10 Shaws' property was subject to flooding in September 1998, April 1994, and June 1995. The property and residence was also the subject of flooding in October 1986 to a depth of four feet, of which about one-half of the depth of the flood water was due to natural causes and the balance due to the GRDA Dam operation.
{11 On each occasion until 1995, the Shaws' cleaned and restored their property and moved back into the residence. After the 1995 flood, Shaws abandoned the property due to the series of floods from 1986 to 1995, but retained title to the property.
{12 Damages were incurred for cleaning and restoring the property after the floods, until 1995. The trial court itemized these damages and awarded Shaws damages for clean-up time and costs attributed to the 1986, 1998, and 1994 floods. The trial court prorated the 1986 damages based upon natural cause. j
1 13 The fair market value of Shaws' property before the 1998 flood was $54,600.00 and the value of the real property was $500.00 after the 1995 flood. Approximately, one-half of the property was subject to the existing flowage easement, but the home was on the one-half above the flowage easement.
T14 The sum of $54,600.00 was awarded for the diminished value of their property *13caused by the series of floods from 1993 to 1995. The trial court established June 2, 1995, as the date of taking and that the fee was taken, so GRDA was awarded the fee title as of that taking date.
II. Analysis of the Taking Claims.
115 "Inverse condemnation" is not a means of property acquisition but, rather, is the landowner's remedy for uncompensated takings of property for public use. The Majority correctly observes that whether a taking has occurred and the date of the taking present questions of fact in inverse condemnation cases.1
1 16 Moreover, a taking may result from a series of actions, either continual or continuous in nature. Arkansas Game and Fish Comm'n v. U.S., -- U.S. --, 133 S.Ct. 511, 184 L.Ed.2d 417 (2012); State ex rel. Dep't of Transp. v. Hoebel, 1979 OK 63, 594 P.2d 1213; Henthorn v. Oklahoma City, 1969 OK 76, 453 P.2d 1013.
17 In addition, a taking may be permanent or temporary. Material Service Corp. v. Rogers County Bd. of Comm'rs, 2012 OK CIV APP 17, 19, 273 P.3d 880, 885. The measure of compensation is not the same for a permanent taking as for a temporary taking.
[ 18 A permanent "taking" of property, or an interest in property, consummates a transfer of the property, or an interest in property, to the taker on the date of taking. The date of taking establishes not only the date of transfer, but also the date on which the value of the transfer is to be calculated. This rule is self-evident in cases of a single action resulting in a taking. This rule provides for full compensation to an inverse condemnation claimant. Also, the rule establishes a reasonable and efficient criterion in eases of ongoing or repeated action. Thus, damages can be made certain and bear a reasonable relationship to the responsibility of the taker to pay compensation.
19 In the case of a temporary taking, the cases reflect different approaches to achieve the just compensation result. One method is to determine the rental value of the property for the petiod it was taken plus any actual damage sustained as a result of that taking. | Another method would compensate based upon the loss of the economic use of the property. "It has been said that, in cases involving a temporary taking, the best approach is a flexible approach that will compensate for losses actually suffered while avoiding the threat of windfalls to plaintiffs at the expense of substantial government liability." Material Service Corp., 2012 OK CIV APP 17 at 1 10 n. 5, 273 P.3d at 886 n. 5.
20 Restoration costs may be awarded in temporary taking cases instead of diminution in value. Fowler Irrevocable Trust 1992-1 v. City of Boulder, 17 P.3d 797, 805-06 (Colo. 2001); Sunburst Sch. Dist. No. 2 v. Texaco, 2007 MT 183, ¶ 38, 388 Mont. 259, 165 P.3d 1079, 1087-88 (2007) (pointing out that a residence is the type of property that the owner would wish to repair).
[ 21 I would hold that, in cases of a temporary taking of real property, the measure of compensation is the rental value for the temporary period of the taking plus any actual damages and restoration costs. In cases of a permanent taking of any type of property, the measure of compensation is the fair market value of the property interest taken on the date of taking, plus any actual damages and restoration costs.
III. Application to Each Landowner.
A. Perrys' Property.
122 The trial court's damage determinations for each of the three flood years, 1998-1995, included: (1) restoration costs, including personal time; (2) losses related to personal property; and (8) accumulated diminution of value of the real property over repairs and restoration, with that sum apparently being awarded for the flowage easement granted to GRDA. However, there was a single taking of a flowage easement only in 1994.
*1423 The trial court found that the taking by GRDA amounted to a flowage easement, with the date of taking of April 7, 1994. There is a fact-dependent point at which a substantial interference with the landowner's use and enjoyment of the property constitutes a taking. Here, in Perrys' case, the trial court made a single finding of a taking. Given a single taking, the trial court erred in assessing damages over a three-year period.
1 24 In a single taking case, with a taking date in April 1994, the damages for personal property losses, restoration and cleaning incurred prior to or after that date of taking do not represent just compensation for the taking in April 1994. It is true, under the facts here, that the Perrys sustained losses in 1993 and 1995 and that GRDA is responsible for those losses. However, in a single taking case, the claims for the 1998 and 1995 losses are not supported by a taking theory and would then be ordinary damage claims.2
125 However, the trial court also made findings that the 1998 and 1995 floods constituted interference with the Perrys' use and enjoyment of their property. This finding is a predicate to the ultimate conclusion that a taking, temporary or permanent, has also occurred in those two years. Nevertheless, the trial court did not specifically find either a permanent or temporary taking attributed to these two floods.
126 Therefore, I would rule that the trial court must specifically determine from the evidence whether the 1998 and 1995 floods also constituted takings, and if so to define the nature of the takings of the Perrys' real property as temporary or permanent. The existence of these takings is a necessary requisite to an award of compensation for these events and the method of calculation of compensation.3
1 27 In the event the trial court determines that a taking occurred as a result of any of these other floods, then I would have the trial court determine whether any personal property was also taken and award compensation, if any, for the personal property taken. If the trial court finds that there was not a taking, then the acknowledged losses do not become losses to be compensated in an inverse condemnation proceeding.
28 All compensation for any taking must be calculated as of the date of taking. At first, it would appear that recovery of compensation associated with restoration after the 1994 flood is inconsistent with recovery of compensation associated with diminution of value as a result of the flowage easement. However, the facts show that Perrys returned to the residence after the 1994 flood that resulted in the taking of the flowage easement, thereby not foreclosing any cleaning and restoration costs.
29 The trial court incorrectly aggregated all three flood years to determine the diminution in value of Perrys' real property. The measure of damages in the Perrys' case for the taking of a flowage easement is the diminution of the market value of their property, with the valuation date being the date of taking, April 7, 1994. Moreover, it is necessary to consider the effect of any determination of a permanent taking in 1998. Thus, I would also reverse the judgment for Perrys for compensation for the flowage easement on this ground.
30 Personal property taken is subject to compensation and the claim therefore is not time barred. Nevertheless, there must be a determination that the personal property was taken and a date of taking. The trial court's judgment denying recovery for personal property compensation must be reversed and this aspect of the case is remanded for the required takings determinations.
B. The Pryors' Property.
[ 31 The trial court found that the Pryors sustained temporary takings as to each of the
*15floods in 1993, 1994 and 19954 The judgment does not specifically find a date, or dates, of taking. -
132 The trial court's separation of compensation for the restoration and clean-up suggests three takings dates, one for each flood year. However, the aggregation of the three years for purposes of calculating diminished value, suggests that the last flood year culminated in a permanent taking. Nevertheless, the Pryors' journal entry is that the trial court made a finding of a temporary taking.
133 Thus, the judgment is internally inconsistent and its findings do not resolve the issue of compensation. The trial court's assessment of both restoration and diminution of value damages was inconsistent in light of the conclusions that; (1) restoration costs were incurred to restore the property to its condition prior to each flood; and (2) takings in each case were temporary.
I 34 Ordinarily, "restoration" and "diminution of value" are mutually inconsistent as measures of damages.5 Property that is "restored" would not lose its pre-restoration value. On the other hand, property that is not, or cannot be, fully restored would diminish in value and, to that extent, the entity using the property has taken a property interest. Here, the Pryors' judgment is inconsistent as drafted because it finds both a restoration to original condition and a diminution of value.
135 However, the trial court's award of damages for restoration associated costs for the 19983, 1994 and 1995 floods amounted to sums "to restore the property to its condition immediately before the flood." 6 This conclusion is not consistent with a partial restoration case where both restoration costs and diminution of value could be considered to make the property owner whole for a permanent taking.
I 36 Next, the trial court used the measure of compensation applicable to a permanent taking. As shown above, the measure of compensation for temporary takings is the rental value for the temporary period taken plus any actual damages and restoration costs. Therefore, I would reverse the judgment for fair market value and remand for redetermination of compensation for the temporary taking of the Pryors' real property. The denial of their claim for personal property compensation would also be reversed to determine whether personal property was taken on the date, or dates, of takings as found by the trial court and to award just compensation for such takings, if any.
*16T37 Therefore, I would reverse the trial court's judgment as to the amount of compensation awarded to the Pryors for restoration and- associated costs and for diminution of value and remand to decide the date, or dates, on which a temporary taking occurred and to award compensation for the temporary taking.
C. The Shaws' Property.
138 The trial court awarded the Shaws cleaning and restoration damages due to the 1993 and 1994 floods. The trial court awarded a prorated sum for the 1986 flood based upon the finding that one-half of that flooding of their property was naturally caused. In each instance, the trial court found that the Shaws expended the sums to restore their property to its original condition.
1 39 Shaws abandoned their property after the 1995 flood. The trial court established the June 2, 1995, flood date as the date of taking and determined that the extent of the taking was the entire fee interest as of that date. The trial court's selection of this date as the taking date, rather than one of the other three flood dates, and the extent of the taking, is inconsistent with an award of compensation for the other flood events absent a finding of a taking, temporary or permanent, on those prior occasions.
[ 40 The trial court did not use a market value immediately before the 1995 flood as the beginning value for the Shaws' real property. However, GRDA specifically does not contest the calculation of damages. Therefore, GRDA waived any error in the selection of a beginning valuation date. Therefore, I would not disturb the finding of $54,200.00, as the value of the real property before the onset of the 1995 flood.
T 41 The selection of the 1995 flood date as the taking date results in similar legal issues as those in the other two eases.7 Thus, absent a date of taking corresponding to the earlier floods in 1986, 1998 and 1994, the damages associated with these events become claims not based upon inverse condemnation. - As a result, GRDA is responsible for the damages for restoration associated costs and personal property losses, but the Shaws' claim for these pre-1995 events would be time-barred if there were no earlier takings.
€{42 This Court should require that the trial court must specifically determine whether the 1986, 1998 and 1994 floods also constituted separate takings of Shaws' property, 'and, if so, to define the nature of the takings and fix just compensation, if any, in accord with those findings. The existence of those takings is a necessary requisite to an award of just compensation for these events. After making these findings and awarding any compensation, the trial court should then be directed to adjust the fee taking, if appropriate, to account for prior permanent takings of the real property. In the event the trial court determines that a taking occurred as a result of any of these earlier floods, then the court should further be directed to determine whether any personal property was also taken and award compensation, if any, for the personal property taken.
D. Statute of Limitations. °
1143 The Majority correctly rules that the appropriate limitation period is fifteen years for the inverse condemnation claim for taking personal property. This result is consistent with the case authority where the claim involved only real property and is consistent with the "transactional approach" in civil actions. The result avoids having divergent limitations periods for components of a single claim. However, I would further rule that whether the plaintiffs may avail themselves of the fifteen-year period in this instance depends upon whether a taking has occurred, and whether a taking occurred is also an issue for the real property parts of the case.
IV. Summary
{44 When, as here, a government entity damages real or personal property by its actions, the injured party might seek compensation either under a theory from ordinary civil litigation, or under a special proceeding, termed inverse condemnation. The *17injured party must establish the fact of taking in order to recover.
145 The taking occurs when the governmental action has resulted in the substantial interference with the use and enjoyment of the injured party's property. The fact of taking may be permanent or temporary and - may include personal property. In inverse condemnation cases, whether there is a substantial interference with the use and enjoyment of property, the extent of the taking and the compensation for the taking are questions for the trier of fact.
1 46 A taking might result from a series of acts, here a series of floods. In such cases, the trier of fact determines the date (or dates if more than one taking is found) on which the substantial interference occurred. However, the trial court must determine: (1) whether the taking is permanent or temporary, and, if permanent the extent thereof; and (2) a date, or dates, of taking. Then, when a decision is reached that a taking has ' in fact occurred and its scope, together with the date of taking, the trier of fact can proceed to the question of just compensation.
147 In the cases under review, the trial court made findings consistent with takings on each flood event. However, as to the Landowners Shaws and Perrys, the trial court also fixed only single date of taking. Nevertheless, the trial court awarded compensations covering the entire series of floods affecting these Landowners. The trial court erred and must find also that a taking occurred on each occasion in order to provide an inverse condemnation basis for an award of compensation as to each occasion.
148 The trial court's judgment contains inconsistent measures of compensation for the Shaws and the Perrys. Recovery for total restoration and diminution of value of the same property are mutually inconsistent. Here, the trial court's judgment and findings reached inconsistent results by awarding both types of recovery. In an appropriate set of facts and findings, an injured party might be entitled to recover restoration associated costs and diminution of value when the restoration was not to original condition after the taking. However, the trial court must make findings consistent with both types of compensation, which it did not do here.
[ 49 In the -case of the Landowner Pryors, the trial court found temporary takings, but did not define the extent of the takings or any dates of taking. Nevertheless, the trial court awarded the Pryors diminution of value and restoration to original condition costs. Here also the trial court must establish takings, dates of taking, and compensations appropriate to the nature and extent of the taking. In addition, the trial court must determine whether the 1986 flood constituted a taking, and if so, the nature of the taking and account for that it in its consideration of the 1998, 1994 and 1995 floods.
. At oral argument, GRDA conceded that a taking occurred, but did not concede the dates as found by the trial court.
. I do not agree with GRDA's position that the award of a 1994 flowage easement precluded damages occurring within the easement in 1995. Perrys had not been paid for the easement in 1995 and it did not then exist by virtue of a court decree. It would be unfair to impose a constructive notice of the easement on them.
. The final determination may affect the compensation calculation for a subsequent event, and the trial court can make such adjustment as the case warrants.
. Thus, they had no interest in 1986 subject to a taking and compensation. The trial court did not account for whether the 1986 flood also amounted to a taking, and, if so, the extent of the 1986 taking. GRDA would have the taking occur in 1986, apparently to deprive Pryors of some or all of the compensation. However, this position was taken for the first time on appeal.
It is noted that the trial court did award compensation to the Shaws for the 1986 flooding. Initially, this would appear to be an inconsistent outcome, resulting in a windfall recovery to the Pryors for failure to account for a taking prior to their ownership of the property.
However, I would conclude otherwise. First, assuming a permanent taking in 1986, GRDA had not paid compensation for the taking and it would be unfair to charge the Pryors with constructive notice of an undefined, uncompensated taking even though they were aware of the 1986 flooding.
Second, all of the takings in Pryors' case are temporary. Unless GRDA were awarded a fee taking retroactively, the temporary taking would still be supported by the evidence and a reduction of compensation would result in a windfall for GRDA.
. The market value approach is the usual means of measuring damages, but not always. See Fowler Irrevocable Trust 1992-1, 17 P.3d at 803; City of Tulsa v. Mingo Sch. Dist. No. 16, 1976 OK CIV APP 27, 559 P.2d 487 (in a partial taking case, the restoration costs are appropriate measure of damages where property has special use).
The case of State v. Levick, 1961 OK 215, 365 P.2d 141, is distinguished. The Court held that the before and after market value was the correct measure of damages where the State sought a temporary right to remove sand and gravel. There, unlike here, the State physically removed, took possession and used materials from the owner's property.
. A total restoration would authorize consideration of damages measured by rental value or costs of alternative living arrangements during the restoration period. See Gledhill v. State, 123 Neb. 726, 243 N.W. 909 (1932) (the damages for property taken temporarily is not the market value, but the value of the use for the period damaged).
. However, the trial court made no award for personal property losses from the 1995 flood and there were no restoration associated costs for that flood.