T1 Defendant/Appellants, Stanley D. Booker, Paula J. Booker, James L. Davis, and Jane Davis (collectively Landowners), seek reviеw of the trial court's order granting the motion of Plaintiff/Appellee, City of Marlow (City), to dismiss Landowners' counterclaim for inverse condemnation in City's condemnation action. We hold Landowners may not prosecute a counterclaim in City's condemnation аction. However, Landowners' pleading raised issues as to whether the commissioners failed to consider consequential injury to property not actually taken in ascertaining just compensation. Because Landowners demanded a jury trial within 60 days after the commissioners filed their report, the trial court must permit Landowners to litigate, in this proceeding, their right to just compensation for all damages incident to the construction and operation of the utility for which the land is taken.
12 City brought this condemnation aсtion to acquire property for a sanitary sewer improvement project. It sought fee title to the surface rights in four tracts, permanent sewer line cagements in five tracts, and temporary construction easements in two tracts. Landowners own trаcts in which City sought permanent sewer line easements and which are adjacent to the tracts upon which City plans to build its sewage disposal facility.
T3 After the commissioners filed their report, Landowners demanded a jury trial, They later filed counterclaims, denominated "cross-petitions," asserting the location and construction of the sewage disposal facility next to their proрerties substantially and permanently reduced the market value of the properties. Landowners sought inverse condemnatiоn and asked the trial court to appoint commissioners to assess the amount of just compensation. City moved to dismiss the cоunterclaims, arguing Oklahoma law prohibits the filing of counterclaims in condemnation proceedings and requires that such claims bе brought in separate proceedings. Landowners objected, arguing they were not seeking damages for any tort. They argued they sought to be compensated for the decrease in property value resulting from City's placement of the sewage disposal
T4 Municipalities have the power to condemn private property for public use. 11 O.S.1991 § 22-105. The procedure for dоing so is the same as that provided for railroad companies. 27 O.S.1991 § 5. The condemnor begins the proceeding. by petitioning the district court to appoint three disinterested commissioners to assess the amount of just compensation to which the owner is еntitled. 66 O.S.1991 § 53. When the commissioners file their report, either party may challenge it in one of two ways. The challenger may obtain thе district court's review of the report by filing written exceptions within 30 days, or it may file a written demand for jury trial within 60 days, "in which case the amount of damages shall be assessed by a jury, and the trial shall be conducted and judgment entered in the same manner as civil actions in the district court." 66 O.S.1991 § 55(A).
15 The property owner is entitled to just compensation for property "taken or damaged for public use." Okla. Const. Art. 2, § 24. Just compensation means "the value of the property taken, and in addition, any injury to any part of the property not tаken." Id. The just compensation elause protects property not actually taken, but consequentially damaged by the mаking of a public improvement. Williams v. State ex rel. Dept. of Transp.,
T6 A condemnation action is a spe-clal proceeding and must be carried out in accordance with legislatively prescribed procedure. Bd. of County Com'rs of Creek Co. v. Castеel,
T7 Damages are determined as of the time the property is taken. Oklahoma Turnpike Authority v. Burk,
1 8 In the instant case, Landowners do nоt seek to recover for City's tortious behavior. Rather, the right they seek to enforce in their counterclaim is their right to recеive just compensation for the consequential injury to property not actually taken but damaged as a result of City's building a publiс utility on adjacent land. City's petition for condemnation sought property for a sanitary sewer improvement project, which involves the construction of sewage lagoons and land application of sewage as well as the construction of sewer lines. Although Landowners property is taken only for the construction of sewer lines, it may be damaged by the construction of other aspects of the project.
T9 Landowners' counter-petition, like an answer, is of no effect in the condemnаtion proceeding. However, their demand for jury trial preserves their right to litigate the question of damages incident to the construction and operation of the sanitary sewer improvement project. Accordingly, we AFFIRM the trial court's order to the еxtent it dismissed any counterclaim. We REVERSE the order to the extent it prevents Landowners from litigating, in this proceeding, their right to just compеnsation for all damages incident to the construction and operation of the sanitary sewer improvement project for