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Private Takings in Oklahoma Under Article II, §23 of the Oklahoma Constitution

By Stephen P. Gray & M. Scott Major

The purpose of this article is to acquaint the practitioner with a little-known procedure for handling access and utility issues involving real property in Oklahoma – a private cause of action for eminent domain. Under Article II, §23 of the Oklahoma Constitution, a private person may condemn private land of another for 1) a private way of necessity or 2) for drains or ditches across lands of others for agricultural, mining or sanitary purposes.1 Oklahoma law specifically provides that private condemnation can be accomplished pursuant to statutory proceedings, but the issue of inverse condemnation, in which a party is seeking compensation for a private taking, is not as cut and dry. There is, however, authority that supports an implied cause of action for inverse condemnation by a private property owner against a private person.

CONDEMNATION ACTION UNDER THE ‘RAILROAD STATUTES’
Oklahoma law provides that a private property owner can accomplish a private taking “in like manner as railroad companies,”2 and such a taking may be accomplished pursuant to the procedures set forth in the “Railroad Statutes” for condemnation.3 Hence, any private person, firm or corporation may utilize the power of eminent domain for the limited purposes set forth in Article II, §23 under the Railroad Statutes.

AUTHORITY FOR AN INVERSE CONDEMNATION ACTION FOR PRIVATE TAKING IN EMINENT DOMAIN
As to the basis for an inverse condemnation claim by a private property owner, there is authority to support the positions that an implied cause of action is available under Oklahoma’s statutory and constitutional scheme for condemnation proceedings. If a private party has the power of eminent domain for the limited purposes set forth in Article II, §23, it is only logical that an aggrieved property owner adjacent to such person would also have an action for inverse condemnation against an offending neighbor. An inverse condemnation cause of action arises when there is an “ongoing and substantial interference” by another private party with the landowner’s use of the property.4 Oklahoma case law recognizes that an implied cause of action exists under certain circumstances.5 In Keizor v. Sand Springs Ry. Co., the Oklahoma Court of Civil Appeals held that the factors to determine whether a private cause of action may be implied when a private remedy is not provided by statute are as follows:

(1) is the plaintiff one of the class for whose especial benefit the statute was enacted? (2) is there any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one? (3) is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for plaintiff: and (4) is the cause of action one traditionally relegated to state law so that it would be inappropriate to infer a cause of action based solely on federal law?

When one looks at the first factor, a private party is clearly included in the class intended to benefit from the protection of Oklahoma condemnation statutes.6 Moreover, under the second prong there is indication of legislative intent expressed in 27 O.S. §6 that such actions are to proceed under the Railroad Statutes. 66 O.S. §57 is a Railroad Statute that allows an inverse condemnation action. As to the third prong (“[I]s it consistent with the underlying purposes of the legislative scheme to imply such a remedy for plaintiff?”), clearly the answer is yes, in that courts have long recognized the right to bring an action for inverse condemnation.7 It can thus be argued that a private property owner also has the right of an inverse condemnation action against another private party under the appropriate facts and circumstances, but there is another reason to pursue a private inverse condemnation action against another private person.

There are two constitutional provisions concerning eminent domain. As discussed above, the first is Article II, §23 of the Oklahoma Constitution. The other is Article II, §24, which states in pertinent part:

Private property - Public use - Character of use a judicial question. Private property shall not be taken or damaged for public use without just compensation.

It is readily apparent that an action brought under Article II, §24 is a public entity taking for a public use, while Article II, §23concerns a private party taking for a private use. When one compares Article II, §23 to Article II, §24, the language is substantially similar. The operative language of both constitutional provisions is “no … property shall be taken or damaged.” Moreover, 27 O.S. §6 empowers a private property owner to proceed in condemnation in like manner to the railroad companies. The Railroad Statutes provide for both regular condemnation and inverse condemnation takings.8 Moreover, 66 O.S. §57 provides the right of inverse condemnation:

[P]rovided, that in case any corporation or municipality authorized to exercise the right of eminent domain shall have taken and occupied, for purposes for which it might have resorted to condemnation proceedings, as provided in this article, any land, without having purchased or condemned the same, the damage thereby inflicted upon the owner of such land shall be determined in the manner provided in this article for condemnation proceedings.

The language of the two constitutional provisions is so similar to come within the doctrine of in pari materia,9 which states that similar provisions on the same subject are to be construed together in interpreting the material provisions. Applying the doctrine of in pari materia to the two constitutional provisions would, therefore, lead to the conclusion that an inverse condemnation action for a private party proceeding is authorized under Article II, §23. This conclusion is further supported by case law allowing inverse condemnation for public takings under Article II, §24.10

STATUTE OF LIMITATIONS FOR PRIVATE CAUSES OF ACTION FOR EMINENT DOMAIN
Premises considered, although the viability of causes of action for private-party condemnation and inverse condemnation action is established under Article II, §§23 and 24, the question of the applicable statute of limitations for such actions remains. The Oklahoma Court of Civil Appeals summarized the answer aptly in Perry v. Grand River Dam Authority.11 In Perry, the court found that Art II, §24 does not contain a limitations period and does not make any distinctions between real and personal property.12 Instead, §24 provides for “just compensation to all private property that is taken or damaged.”13 However, looking to the Oklahoma Supreme Court’s holding in Drabek v. City of Norman,14 the Perry court found that early case law in Oklahoma established a statute of limitations of 15 years when “there has been a taking of real private property without just compensation.”15 Because condemnation proceedings “do not involve a tort” and inverse condemnation takes the form of a “special statutory proceeding to ascertain just compensation,” the court found that the two-year statute of limitations for torts did not apply.16 The Perry court then held that the appropriate limitations period for an inverse condemnation proceeding is 15 years.17 Although the Perry court’s holding pertained to Article II, §24 public takings, borrowing again from the doctrine of in pari materia, one may reasonably conclude that the Perry court’s holding would also apply to §23 and that 15 years is the applicable statute of limitations period for a private party taking of personal real property or private party inverse condemnation actions.

CONCLUSION
Article II, §23 of the Oklahoma Constitution recognizes a private right of action to acquire private property through eminent domain. 27 O.S. §6 empowers a private property owner to acquire private property by condemnation pursuant to the Railroad Statutes. Although no Oklahoma appellate courts appear to have examined the issue, there is sufficient authority under Oklahoma law to assert a cause of action for inverse condemnation by a private property owner against another private party.18 Accordingly, practitioners need to be aware of a cause of action in eminent domain for a client in the limited circumstances where a private taking may lie.

ABOUT THE AUTHORS
Stephen P. Gray was born and raised in Oklahoma, residing in Broken Arrow. He graduated from the TU College of Law in 1980. He has been in private practice since 1990, practicing real estate and eminent domain matters.

M. Scott Major is a native Oklahoman who lives in Collinsville. He is a third-year law student at the TU College of Law. Prior to law school, he was an advanced placement English teacher at Owasso High School and an overseas humanitarian worker in China.

1. “No private property shall be taken or damaged for private use, with or without compensation, unless by consent of the owner, except for private ways of necessity, or for drains and ditches across lands of others for agricultural, mining, or sanitary purposes, in such manner as may be prescribed by law.” Article II, §23 of the Oklahoma Constitution (emphasis added).
2. “Any private person, firm or corporation shall have power to exercise the right of eminent domain in like manner as railroad companies for private ways of necessity or for agriculture, mining and sanitary purposes.” 27 O.S. §6.
3. 66 O.S. §§51 through 66.
4. See Perry v. Grand River Dam Authority, 2015 OK CIV APP 12, 344 P.3d 1; State ex rel. Dept. of Transp. v. Hoebel, 1979 OK 63, ¶9-10, 594 P.2d 1213, 1215.
5. See Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, 861 P.2d 326.
6. See 27 O.S. §6; 66 O.S. §57.
7. See, e.g., Hoebel, 1979 OK 63, 594 P.2d 1213.
8. 66 O.S. §§57 66.
9. Groom v. Wright, 1912 OK 25, 121 P. 215.
10. See, e.g., Perry v. Grand River Dam Authority2015 OK CIV APP 12, 344 P.3d 1; State ex rel. Dept. of Transp. v. Hoebel, 1979 OK 63, 594 P.2d 1213.
11. 2015 OK CIV APP 12 ¶26, 344 P.3d at 20.
12. Id. (¶26).
13. Id.
14. 1996 OK 126, ¶4, 946 P.2d 658, 659.
15. Id.
16. Id. 344 P.3d at 20, 27.
17. Id.
18. 66 O.S. §57; State ex rel. Dept. of Transp. v. Hoebel, 1979 OK 63, 594 P.2d 1213.

Originally published in the Oklahoma Bar Journal -- OBJ 90 pg. 50 (January 2019)