B-147959, MAR. 5, 1962

B-147959, MAR. 5, 1962

TO MR. GEORGE W. MONTOOTH:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 5, 1962, REQUESTING RECONSIDERATION OF YOUR CLAIM IN THE AMOUNT OF $5,000 AS DAMAGES DUE FROM SILTATION ALLEGEDLY CAUSED BY THE DIVERSION OF THE SANGAMON RIVER, CASE COUNTY, ILLINOIS. THE DIVERSION WAS ACCOMPLISHED BY THE CONSTRUCTION BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, OF AN OUTLET CHANNEL CAUSING THE RIVER TO FOLLOW A DIFFERENT COURSE IN ITS CONFLUENCE WITH THE ILLINOIS RIVER. IT IS ALLEGED THAT THE SILTATION AMOUNTED TO AN INVOLUNTARY TAKING OF YOUR LAND RESULTING FROM THE CONSTRUCTION AND FAILURE BY THE CORPS OF ENGINEERS TO MAINTAIN THE SANGAMON OUTLET CHANNEL AT THE MOUTH OF THE SANGAMON.

YOUR CLAIM WHICH WAS ORIGINALLY FILED WITH THE DISTRICT ENGINEER, CHICAGO, ILLINOIS, WAS FORWARDED TO THIS OFFICE FOR SETTLEMENT TOGETHER WITH A COMPLETE REPORT AND FINDINGS MADE BY THE CORPS OF ENGINEERS WITH RESPECT TO THE CLAIM. THE CORPS OF ENGINEERS REPORTED THE FOLLOWING FINDINGS: THE CHANNEL HAS BEEN MAINTAINED BY THEM SINCE ITS CONSTRUCTION; THE SANGAMON RIVER DOES NOT PASS OVER YOUR PROPERTY; AND THE SILTATION COMES FROM THE ILLINOIS RIVER FOR WHICH THE GOVERNMENT IS NOT RESPONSIBLE. THEREFORE THEY FOUND THAT THE CONSTRUCTION OF THE OUTLET CHANNEL DIVERTING THE FLOW OF THE SANGAMON RIVER DID NOT CAUSE THE ALLEGED DAMAGE TO YOUR PROPERTY. FOR THESE REASONS YOUR CLAIM WAS DISALLOWED BY SETTLEMENT OF THIS OFFICE DATED DECEMBER 4, 1961.

IN YOUR LETTER OF JANUARY 5, 1962, REQUESTING RECONSIDERATION OF THIS CLAIM YOU STATE "THE SANGAMON HAS BEEN FLOWING OVER THESE GROUNDS FOR YEARS EVERY TIME THE SANGAMON GETS UP.' AT THE PRESENT TIME YOU SAY "THE WATER IS FLOWING NORTH FROM THE SANGAMON UP THROUGH THE BACK SLOUGH DITCH AND OVER OUR GROUNDS AND OUT THROUGH THE PLUCKIMEND DITCH INTO THE RIVER.'

UPON RECEIPT OF YOUR LETTER A COPY WAS FORWARDED TO THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, FOR A REPORT OF THE ASSERTIONS MADE BY YOU. WE ARE NOW IN RECEIPT OF A REPORT FROM THE OFFICE OF THE CHIEF OF ENGINEERS CONCERNING THE STATEMENTS MADE BY YOU IN YOUR LETTER OF JANUARY 5. THE DIVISION ENGINEER, U.S. ARMY ENGINEER DIVISION, NORTH CENTRAL, AT CHICAGO, ILLINOIS, HAS REVIEWED YOUR RECENT ASSERTIONS AND AGAIN REPORTS THAT WATERS OF THE NEW SANGAMON RIVER DO NOT FLOW OVER YOUR PROPERTY. THE WATER FROM PLUCKIMEND DITCH AT TIMES FLOWS NORTHERLY INTO THE ILLINOIS RIVER IS WATER WHICH INITIALLY CAME SOUTHERLY FROM THE ILLINOIS RIVER THROUGH BACH SLOUGH AND WAS FORCED BACK NORTHERLY BY THE DAMMING ACTION OF THE HIGHER STAGES OF THE SANGAMON RIVER AT THE EXTREME LOWER END OF TREADWAY LAKE. THESE FACTS WERE ESTABLISHED BY FLOAT TESTS MADE UNDER THE DIRECTION OF A PROJECT ENGINEER OF THE CORPS OF ENGINEERS. FOR YOUR INFORMATION THE FOLLOWING QUOTATION IS ABSTRACTED FROM THE REPORT OF THE PROJECT ENGINEER, PEORIA PROJECT OFFICE, CORPS OF ENGINEERS, DATED FEBRUARY 7, 1962:

"THESE FLOAT TESTS WERE MADE 7 AUGUST 1961 WHEN THE SANGAMON WAS HIGH. IT WAS APPROXIMATELY BANK FULL AND ABOUT 2 PERCENT OF THE FLOW WAS RUNNING THROUGH THE LOW SECTIONS OF THE RIGHT BANK FROM HAGERS SLOUGH TO 1/2 MILE ABOVE THE HEAD OF VEITE SLOUGH. APPROXIMATELY 10 PERCENT OF THE TOTAL SANGAMON RIVER FLOW WAS LEAVING THE SANGAMON AT THE HEAD OF HAGER SLOUGH AND FLOWING WESTERLY. ABOUT 2 PERCENT OF THIS 10 PERCENT WAS MOVING UP STREAM THROUGH COLEMAN LAKE WHERE IT MET THE 2 PERCENT OF OVER BANK FLOW AND MOVED INTO THE EXTREME LOWER END OF TREADWAY LAKE. THIS 4 PERCENT OF THE TOTAL SANGAMON FLOW THEN TURNED DOWN STREAM THROUGH WOOD SLOUGH TO MUSCOOTEN BAY. THERE WAS NO SANGAMON RIVER WATER MOVING UP STREAM INTO TREADWAY LAKE. THIS PILE UP OF SANGAMON RIVER WATER WAS RETARDING THE FLOW THAT LEAVES THE ILLINOIS RIVER THROUGH BACH SLOUGH AND FORCED A LARGE PERCENTAGE BACK INTO THE ILLINOIS RIVER BY REVERSING THE NATURAL FLOW IN PLUCKIMEND SLOUGH. AT THE SAME TIME, IT WAS REVERSING THE NATURAL FLOW OF PLUCKIMEND SLOUGH, THERE WAS STILL A SMALL FLOW LEAVING THE LOWER END OF TREADWAY LAKE AND JOINING THE SANGAMON RIVER WATER REFERRED TO ABOVE.'

IN MATTERS INVOLVING DISPUTED QUESTIONS OF FACTS BETWEEN A CLAIMANT AND A DEPARTMENT OR AGENCY OF THE GOVERNMENT THIS OFFICE IS REQUIRED TO ACCEPT THE FACTS AS REPORTED BY THE ADMINISTRATIVE AGENCY IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME A PRESUMPTION OF CORRECTNESS. 37 COMP. GEN. 696, 699. THEREFORE, AS TO ANY DAMAGES ALLEGEDLY DUE FROM THE FLOW OF THE SANGAMON RIVER OVER YOUR PROPERTY WE MUST ACCEPT THE FINDINGS OF THE CORPS OF ENGINEERS THAT THESE WATERS DO NOT REACH YOUR PROPERTY BUT RATHER SUCH DAMAGE FROM SILTATION ARISES BY REASON OF THE FLOW FROM THE ILLINOIS RIVER, FOR WHICH NO RESPONSIBILITY RESTS WITH THE GOVERNMENT.

FOR THESE REASONS UPON RECONSIDERATION OF YOUR CLAIM THE DISALLOWANCE ACTION OF DECEMBER 4, 1961, MUST BE AND IS SUSTAINED UPON REVIEW.