When you are building a sewer, grading is important. Otherwise, the stuff might not "flow" correctly, if you get our drift. Okay Public Works Authority built a sewer, and guess what? "The work performed by OPWA caused extensive damage" to private property, and the "lines installed by OPWA had not been properly graded."
Not good. The jury in the inverse condemnation lawsuit that followed awarded $73k in compensation. The court of appeals, however, tossed the verdict because OPWA did not possess the power of eminent domain to take property for sewage lines. And to be liable for inverse in Oklahoma, the defendant must possess the eminent domain power.
In Barnett v. Okay Public Works Authority, No. 117792 (Mar. 8, 2022), the Oklahoma Supreme Court concluded that the utility possesses the eminent domain power to take property for sewer lines. The decision turned on the language in the statute delegating the power to a "public trust" such as OPWA. The statute delegates to OPWA the power to take property for transporting, delivering, treating, and furnishing water. That, OPWA argued, is a one-way street. Taking sewage away from homes is not "delivering" clean water to those homes, it asserted.
The Supreme Court disagreed. "The transportation of potable water goes hand-in-hand with the transportation of wastewater or sewage. To take OPWA's position would leave public trusts empowered with the right of eminent domain to run potable water lines to residents but deny public trusts the power to run wastewater sewer lines from household [sic] after use." Slip op. at 9. Having concluded that, the Supreme Court also found it easy to conclude that the sewer was a public use.
This avoids what we think is the more interesting question -- must a property owner even need to show that a public utility has the eminent domain power in order to assert an inverse claim? We don't think so, but that bridge wasn't necessary to cross in this case, so we get why the court didn't.
Barnett v. Okay Public Works Authority, No. 117792 (Okla. Mar. 8, 2022)
