Mattoon v. City of Norman, 1980 OK 137, ΒΆ 11, 617 P.2d 1347. ΒΆ6 In Oklahoma City v. Wells, 1939 OK 62, ΒΆ 34, 91 P.2d 1077, this Court stated, "Condemnation proceedings do not involve a tort." And this has been the law ever since, without exception.
Messrs. Pope Greene, of Newberry, and Griffith, Coleman Griffith, of Saluda, for Appellant, cite: As to Appellant'saction not being barred except by prescriptive use,not present here: 171 P. 659; 2 Lewis on Eminent Domain, 3rd Ed., Sec. 966; 1 Nichols on Eminent Domain, 3rd Ed., 327, Sec. 4, 102(5); Randolph on Eminent Domain 357, Sec. 393; 18 Am. Jur. 1042, Sec. 394; 91 P.2d 1077, 123 A.L.R. 662; 123 A.L.R. 676; 28 S.D. 1, 132 N.W. 233; 143 N.W. 959; 30 So. 568; 148 P. 439; 9 P.2d 88; 47 P.2d 522; 53 P.2d 387; 234 N.W. 126; (N.C.) 12 S.E. 125; 159 S.C. 481, 157 S.E. 842; 194 S.C. 33, 8 S.E.2d 852; 51 Ill. 502, 89 Am. Dec. 392; 158 S.E. 113, 160 S.C. 10; 85 S.C. 1, 66 S.E. 117. As to the provisions of the six-year Statuteof Limitations not applying to this action: 216 S.C. 500, 59 S.E.2d 132; 59 S.C. 371, 37 S.E. 914; 95 S.C. 268, 78 S.E. 980; 53 Ind. App. 259, 101 N.E. 393; 217 S.C. 458, 60 S.E.2d 894; 178 S.C. 504, 183 S.E. 311; 188 S.E. 505, 182 S.C. 91; 31 S.E.2d 451, 205 S.C. 258.
Plaintiffs' argument is that Art. 2, Β§ 24 of our Constitution reserves to all citizens the right to be compensated in damages where their property is taken or damaged by exercise of the right of eminent domain and that such damages are to be ascertained in a condemnation proceeding. Upon this basis plaintiffs rely upon certain prior decisions to the effect that where property has been taken by eminent domain for public use without the owner's having been compensated therefor, the remedy, i.e., determination of compensation by condemnation proceedings is exclusive. Reliance is placed in Oklahoma City v. Wells, 185 Okla. 369, 91 P.2d 1077, 123 A.L.R. 662; Morton v. Okmulgee Producers and Mfrs.' Gas Co., 207 Okla. 201, 248 P.2d 1028; Stedman v. State Highway Comm., 174 Okla. 308, 50 P.2d 657; Hawks, v. Walsh, 177 Okla. 564, 61 P.2d 1109; Oklahoma City v. Collins-Dietz-Morris Co., 183 Okla. 264, 79 P.2d 791, as supporting such argument. It is unnecessary to discuss and distinguish each of the cases above cited.
Board of County Comm'rs of Creek County v. Casteel, 1974 OK 31, ΒΆ 20, 522 P.2d 608; Graham v. City of Duncan, 1960 OK 149, ΒΆ 16, 354 P.2d 458; Epperson v. Johnson, 1941 OK 374, ΒΆ 0, 119 P.2d 818.Board of County Comm'rs of Creek County v. Casteel, see note 8, supra; Graham v. City of Duncan, see note 8, supra; Oklahoma City v. Wells, 1939 OK 62, ΒΆ 34, 91 P.2d 1077.Board of County Comm'rs of Creek County v. Casteel, see note 8, supra at ΒΆΒΆ 15, 20; Graham v. City of Duncan, see note 8, supra at ΒΆΒΆ 0, 16.
Oklahoma and other jurisdictions have recognized the doctrine of "estoppel by acquiescence". See e.g.: Oklahoma City v. Wells, 185 Okla. 369, 91 P.2d 1077; Becker v. Rolle, 211 Kan. 769, 508 P.2d 509 (1973); Scott v. Jordan, 99 N.M. 567, 661 P.2d 59 (App. 1983). "Acquiescence arises where a person who knows he is entitled to impeach a transaction but neglects to do so for such length of time that, under the circumstances of the case, the other party may fairly infer that he has abandoned his right."
The City bases its position on a public policy argument that property owners should not be allowed to delay the construction of public improvements with injunction suits. The City cites only two cases to support its position: Oklahoma City v. Wells, 185 Okla. 369, 91 P.2d 1077 (1939); Oklahoma City v. Local Fed. Sav. Loan Ass'n, 192 Okla. 188, 134 P.2d 565 (1943). Answering the City's arguments, plaintiffs contend that, unless the City condemns their properties located outside the drainage easements, it can be enjoined from using them for construction of the proposed ditch.
Ordinarily, "interest at a proper rate is a good measure by which to ascertain the amount so to be added." Seaboard Air Line R. Co. v. United States, 261 U.S. 299, 67 L ed 664, 43 S Ct 357; Jacobs v. United States, 290 U.S. 13, 78 L ed 142, 54 S Ct 26, 96 ALR 1; United States v. Creek Nation, 295 U.S. 103, 79 L ed 1331, 55 S Ct 681; Shoshone Tribe v. United States, 299 U.S. 476, 81 L ed 360, 57 S Ct 244; United States v. Klamath M. Tribes, 304 U.S. 119, 82 L ed 1219, 58 S Ct 799; Metropolitan Water Dist. v. Adams, 16 Cal. 2d p. 676, 107 P.2d p. 618; note, 96 ALR pp. 150 et seq.; 29 CJS pp. 1053 et seq.; 18 Am Jur p. 912; Eminent Domain; Warren v. First Div. St. Paul P.R. Co. 21 Minn. 424, 427; see also Oklahoma City v. Wells, 185 Okla. 369, 91 P.2d 1077, 123 ALR 662; 2 Lewis, Eminent Domain, 3d ed. pp. 1319-1321. In Jacobs v. United States, 290 U.S. 13, 78 L ed 142, 54 S Ct 26, 96 ALR 1, supra, suit was brought by the owners of land to recover for damage caused by intermittent flooding as the consequence of the construction of a dam.
The application is not barred by laches. State ex rel. Phillips v. Benners, 172 Ala. 168, 55 So. 298; New O. S. R. Co. v. Jones, supra; State ex rel. City of Mobile v. Board of Revenue Road Com'rs of Mobile County, 180 Ala. 514, 61 So. 814; Dunn v. Ponceler, 235 Ala. 269, 178 So. 40; Montgomery Light Co. v. Lahey, 121 Ala. 131, 25 So. 1006; Oklahoma City v. Wells, 185 Okl. 369, 91 P.2d 1077, 123 A.L.R. 662; Beechwood Imp. Co. v. Farrell, 20 Pa. Dist. Co. R. 285; Carter v. Ridge Turnpike Co., 208 Pa. 565, 57 A. 988; New Mexico Prod. Co. v. New Mexico Power Co., 42 N.M. 311, 77 P.2d 634; Land v. Wilmington W. R. Co., 107 N.C. 72, 12 S.E. 125. If the matter in dispute has, during the time of the delay, been the subject of other legal efforts at redress, the delay is excused and does not constitute laches. Dunn v. Ponceler, supra; 12 Amer. Eng.Ency.Law, 534; Comins v. Culver, 35 N.J. Eq. 94; Galloway v. Barr, 12 Ohio 354; Hunt v. Smith, 3 Rich.Eq., S.C., 465; Pacific R. Co. v. Missouri Pac. R. Co., 111 U.S. 505, 4 S.Ct. 583, 28 L.Ed. 498; Ensminger v. Powers, 108 U.S. 292, 2 S.Ct. 643, 27 L.Ed. 732.
Plaintiff Ator may not eject City from the Roadways because City has already devoted the land to public use; his exclusive remedy is inverse condemnation. See Oklahoma City v. Wells, 1939 OK 62, ΒΆ 32, 91 P.2d 1077, 1081. Conclusion
While this is not a condemnation suit against the owner of the residual interest as in Woodville, the expressway has been built, and if thereby Midwestern's property was taken, it can recover in this reverse condemnation action. See Oklahoma City v. Wells, 185 Okla. 369, 91 P.2d 1077, 123 A.L.R. 662. Following Woodville, we view the reverse condemnation action as if the city condemned a highway right-of-way along the railroad easement and made the railroad and servient owner codefendants.