specially concurring.
I concur in the lead opinion of this Court. Adopting the “project completion” rule puts Idaho in line with the majority of courts called upon to determine the time the statute of limitations begins to run in a direct physical taking/inverse condemnation case. In United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947), the Supreme Court cogently set forth both the sound legal reasoning and policy considerations supporting this rule:
The Government could, of course, have taken appropriate proceedings, to condemn as early as it chose, both land and flowage easements. By such proceedings it could have fixed the time when the property was taken.
The Government chose not to do so. It left the taking to physical events, thereby putting on the owner the onus of determining the decisive moment in the process of acquisition by the United States when the fact of taking could no longer be in controversy. ... [T]he claim traces back to the prohibition of the Fifth Amendment, nor shall private property be taken for public use, without just compensation. The Constitution is intended to preserve practical and substantial rights, not to maintain theories. One of the most theory- ridden of legal concepts is a cause of action. This Court has recognized its shifting meanings and the danger of determining rights based upon definitions of a cause of action unrelated to the function which the concept serves in a particular situation.
.... 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.
We are not now called upon to decide whether in a situation like this a landowner might be allowed to bring suit as soon as inundation threatens. Assuming that such an action would be sustained, it is' not a good enough reason why he must sue then or have, from that moment, the statute of limitations run against him....
When dealing with a problem which arises under such diverse circumstances procedural rigidities should be avoided. All that we are here holding is that 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. at 747-749, 67 S.Ct. at 1384-1385, 91 L.Ed. at 1793-1794 (internal citations and quotations omitted); see also Pierpont Inn, Inc. v. State, 70 Cal.2d 282, 74 Cal.Rptr. 521, 449 P.2d 737 (1969).
Certainly, in this case, the Highway District could have fixed the time when the property was taken by instituting an action to condemn whatever interest C & G may have owned in the land. However, it voluntarily chose not to do so.
Despite its choice not to institute condemnation proceedings, the Highway District nevertheless asserts that C & G should be estopped from pursuing its rightful claim even if that claim is not barred by the statute of limitations. The Highway District’s mis-perception of its property rights (easement) should hardly inure to its benefit to allow such an estoppel. In effect, C & G was told to “go fight city hall” if it disagreed with the Highway District’s erroneous contention that it had an easement in the property and could build a road upon it- without' paying just compensation. If any party should receive the equitable benefit of an estoppel, quasi or otherwise, then I would favor its being used against the Government’s affirmative defense of raising the statute of limitations in the first place under the circumstances- de*147scribed herein. Given our decision, that issue is now moot.
Justice Pro Tem HOHNHORST concurs.