B-137765, DEC 19, 1958

B-137765: Dec 19, 1958

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MATERIAL FOR CONSTRUCTION OF THE LEVEE WAS TO BE OBTAINED FROM RIVERSIDE "BORROW PITS" WHICH WOULD SERVED AS A DRAINAGE CHANNEL FOR SOME OF THE LAND BETWEEN THE LEVEE AND THE RIVER AFTER THE LEVEE HAD BEEN CONSTRUCTED. THE NATURAL DRAINAGE OF THE AREA WAS INTERRUPTED SO THAT ANY SURFACE WATER RUNOFF DRAINED INTO THE RIVERSIDE BORROW PIT. WHICH DID NOT HAVE A DRAINAGE OUTLET. TEMPORARY DAMS WERE CONSTRUCTED AT THE COMPLETED BORROW PIT TO HOLD BACK THE WATER FROM THE LOWER PART TO ENABLE THE CONTRACTOR TO REMOVE SOME OF HIS EQUIPMENT. TURNIP GREENS WERE DAMAGED OR DESTROYED. THE CORPS OF ENGINEERS REPORTED THAT WHILE THE FLOODING MIGHT HAVE BEEN MINIMIZED. SO THAT NO MATERIAL CROP DAMAGE WOULD HAVE RESULTED IF THE CONTRACTOR'S DITCH HAD NOT BEEN DAMMED AND A SMALL AMOUNT OF ADDITIONAL EXCAVATION HAD BEEN PERFORMED.

B-137765, DEC 19, 1958

PRECIS-UNAVAILABLE

MR. SECRETARY:

ON OCTOBER 13, 1958, THE CORPS OF ENGINEERS, U.S. ARMY, FORWARDED HERE FOR SETTLEMENT THE CLAIM OF ROBERT MILTON HENDRIX AND DANIEL F. HENDRIX OF FINLEY, TENNESSEE, IN THE AMOUNT OF $6,625, AND THAT OF T. E. PRICHETT AND R. B. CANNON OF FINLEY, TENNESSEE, IN THE AMOUNT OF $2,200, BOTH CLAIMS REPRESENTING DAMAGE TO TRUCK CROPS IN THE VICINITY OF HELOISE, TENNESSEE, AS A RESULT OF THE FLOODING OF LAND FARMED BY THE CLAIMANTS IN MAY 1958. THE CORPS OF ENGINEERS RECOMMENDED THAT THE HENDRIX CLAIM BE ALLOWED IN THE AMOUNT OF $4,074 AND THAT THE PRICHETT AND CANNON CLAIM BE ALLOWED IN THE AMOUNT CLAIMED.

ON SEPTEMBER 13, 1956, THE UNITED STATES ACTING THROUGH THE CORPS OF ENGINEERS, U.S. ARMY, AWARDED THE PIONEER CONTRACTING CO., INC., A CONTRACT FOR CONSTRUCTION OF LEVEE ITEM NO. L-838, HELOISE, TENNESSEE, A PART OF THE MISSISSIPPI RIVER LEVEE. MATERIAL FOR CONSTRUCTION OF THE LEVEE WAS TO BE OBTAINED FROM RIVERSIDE "BORROW PITS" WHICH WOULD SERVED AS A DRAINAGE CHANNEL FOR SOME OF THE LAND BETWEEN THE LEVEE AND THE RIVER AFTER THE LEVEE HAD BEEN CONSTRUCTED. AS CONSTRUCTION OF ITEM NO. L838 PROGRESSED SOUTHWARD, THE NATURAL DRAINAGE OF THE AREA WAS INTERRUPTED SO THAT ANY SURFACE WATER RUNOFF DRAINED INTO THE RIVERSIDE BORROW PIT, WHICH DID NOT HAVE A DRAINAGE OUTLET. THE CONTRACTOR EXCAVATED A DITCH TO PROVIDE DRAINAGE FROM THE COMPLETED BORROW PIT TO A PARTIALLY COMPLETED BORROW PIT FURTHER DOWN THE RIVER. HEAVY RAINS DURING THE FIRST PART OF MAY FLOODED THE BORROW PITS AND TWO SMALL, TEMPORARY DAMS WERE CONSTRUCTED AT THE COMPLETED BORROW PIT TO HOLD BACK THE WATER FROM THE LOWER PART TO ENABLE THE CONTRACTOR TO REMOVE SOME OF HIS EQUIPMENT. WHEN THE WATER IN THE COMPLETED BORROW PIT REACHED NATURAL GROUND LEVEL IT OVERFLOWED ACROSS ADJACENT FIELDS INUNDATING CROPS ON LAND FARMED BY THE CLAIMANTS. AS A RESULT OF THE FLOODING, CROPS OF PEAS, SPINACH, MUSTARD GREENS, AND TURNIP GREENS WERE DAMAGED OR DESTROYED.

THE CORPS OF ENGINEERS REPORTED THAT WHILE THE FLOODING MIGHT HAVE BEEN MINIMIZED, SO THAT NO MATERIAL CROP DAMAGE WOULD HAVE RESULTED IF THE CONTRACTOR'S DITCH HAD NOT BEEN DAMMED AND A SMALL AMOUNT OF ADDITIONAL EXCAVATION HAD BEEN PERFORMED, THEY CONCLUDED THAT THE CONTRACTOR WAS NOT RESPONSIBLE FOR THE FLOODING ON THE BASIS THAT IT RESULTED FROM THE CONSTRUCTION OF THE PARTIALLY COMPLETED WORK IN ACCORDANCE WITH THE CONTRACT SPECIFICATIONS. THE CORPS OF ENGINEERS CONSIDERS BOTH CLAIMS MERITORIOUS IN THE RECOMMENDED AMOUNTS.

THERE ARE TWO PRINCIPLES OF LAW UPON WHICH THESE CLAIMS MIGHT BE BASED. EITHER THE UNITED STATES OR ITS AGENTS COMMITTED A TORT UPON THE CLAIMANTS OR THE GOVERNMENT ACTION IN THIS CASE CONSTITUTED A TAKING OF PRIVATE PROPERTY FOR PUBLIC USE FOR WHICH JUST COMPENSATION MUST BE MADE. CF. MILLA V. UNITED STATES, 46F. 738.

IT IS WELL ESTABLISHED THAT IN THE ABSENCE OF SPECIFIC STATUTORY PROVISION THE GENERAL ACCOUNTING OFFICE DOES NOT HAVE JURISDICTION TO SETTLE CLAIMS AGAINST THE GOVERNMENT SOUNDING IN TORT. SEE 1 COMP.DEC. 283; 14 COMP.GEN. 855; ID. 931.

THE FIFTH AMENDMENT TO THE CONSTITUTION PROVIDES THAT PRIVATE PROPERTY SHALL NOT BE TAKEN FOR PUBLIC USE WITHOUT JUST COMPENSATION. AN IMPLIED CONTRACT TO MAKE PAYMENT THEREFOR HAS BEEN HELD TO ARISE FROM SUCH A TAKING. UNITED STATES V. GREAT FALLS MANUFACTURING CO., 112 U.S. 645.

ON THE QUESTION OF "TAKING" OF PROPERTY WITHIN THE MEANING OF THE FIFTH AMENDMENT THE COURTS IN THE MAIN ADHERE TO THE PRINCIPLE THAT IN ORDER TO CONSTITUTE A "TAKING" WHERE FLOODING BY WATER IS CONCERNED THERE MUST BE: (A) A DIRECT INVASION OF PLAINTIFF'S PROPERTY BY THE WATERS OF THE GOVERNMENT; AND (B) THAT THE INVASION OF SUCH WATERS "MUST BE PERMANENT" SO THAT THE INVASION IS A RECURRENT ONE AMOUNTING TO AN EASEMENT; AND THAT OTHERWISE "THE DAMAGE, IF ANY, IS CONSEQUENTIAL AND AMOUNTS TO TORT ONLY." NORTH V. UNITED STATES, 94 F.SUPP. 824. IT IS ALSO CLEAR THAT "PROOF OF DAMAGE ALONE DOES NOT NECESSARILY PROVE A TAKING," YASEL V. UNITED STATES, 93 F.SUPP. 1000. ACTION ON THE PART OF THE GOVERNMENT WHICH IMPOSES A TEMPORARY, OCCASSIONAL, OR INCIDENTAL INJURY IS REGARDED AS A CONSEQUENTIAL DAMAGE AND DOES NOT AMOUNT TO A "TAKING." BEDFORD V. UNITED STATES, 192 U.S. 217.

IN SANGUINETTI V. UNITED STATES, 264 U.S. 146, CONGRESS AUTHORIZED THE CONSTRUCTION OF A CANAL BY MEANS OF WHICH THE WATERS OF A SLOUGH IN CALIFORNIA WERE DIVERTED INTO A RIVER. THE CANAL WAS CONSTRUCTED IN ACCORDANCE WITH PLANS PREPARED BY THE GOVERNMENT ENGINEERS. A DIVERSION DAM WAS PLACED IN THE SLOUGH IMMEDIATELY BELOW THE INTAKE OF THE CANAL. THE EXCAVATED MATERIAL WAS PUT ON THE LOWER SIDE OF THE CANAL, MAKING A LEVEE. WHEN THE CANAL FILLED AS A RESULT OF THE LEVEE, THE WATERS FROM THE CANAL WERE CAST ON THE UPPER SIDE OF THE CANAL, FLOODING PLAINTIFF'S LAND. EVEN THOUGH IT WAS THE GOVERNMENT'S WATER WHICH FLOODED PLAINTIFF'S LAND, THE SUPREME COURT HELD IT DID NOT CONSTITUTE A "TAKING." THE COURT APPEARED TO BASE ITS DECISION ON THE FOLLOWING.

"NONE OF THE LAND OF APPELLANT WAS PERMANENTLY FLOODED, NOR WAS IT OVERFLOWED FOR SUCH A LENGTH OF TIME IN ANY YEAR AS TO PREVENT ITS USE FOR AGRICULTURAL PURPOSES. IT WAS NOT SHOWN, EITHER DIRECTLY OR INFERENTIALLY, THAT THE GOVERNMENT OR ANY OF ITS OFFICERS, IN THE PREPARATION OF THE PLANS OR IN THE CONSTRUCTION OF THE CANAL, HAD ANY INTENTION TO THEREBY FLOOD ANY OF THE LAND HERE INVOLVED, OR HAD ANY REASON TO EXPECT THAT SUCH RESULT WOULD FOLLOW ***."

THE COURT IN NORTH COUNTIES HYDRO ELECTRIC CO., V. UNITED STATES, 70 F.SUPP. 900, EXPRESSED THE PRINCIPLE AS FOLLOWS:

"IT IS CLEAR UNDER THE AUTHORITIES THAT THE FLOODING OF AN OWNER'S LAND ON BUT ONE OCCASION DOES NOT CONSTITUTE A TAKING. BEFORE THERE CAN BE A TAKING, A SERVITUDE MUST HAVE BEEN IMPOSED UPON THE LAND, THAT IS TO SAY, A SUBJECTION OF THE LAND FOR A MORE OR LESS DEFINITE TIME TO A USE INCONSISTENT WITH THE RIGHTS OF THE OWNER."

IN THE CASE UNDER CONSIDERATION IT IS CLEAR THAT THE LANDS IN QUESTION WERE NOT PERMANENTLY FLOODED AND THAT THE GOVERNMENT IN THE PREPARATION OF THE PLANS FOR AND THE CONSTRUCTION OF LEVEE ITEM NO. L 838, DID NOT INTEND THEREBY TO FLOOD ANY OF SUCH LANDS. CONSEQUENTLY, WE CONCLUDE THAT THE ACTION OF THE GOVERNMENT HERE IMPOSED A TEMPORARY INJURY WHICH MUST BE REGARDED AS A CONSEQUENTIAL DAMAGE OR TORT AND DID NOT AMOUNT TO A "TAKING" WITHIN THE MEANING OF THE FIFTH AMENDMENT TO THE CONSTITUTION. WITH RESPECT TO CASES INVOLVING A "TAKING" AND FOR WHICH JUST COMPENSATION MUST BE PAID, SEE 33 U.S.C. 591, 50 U.S.C. 171, AUTHORIZING THE SECRETARY OF THE ARMY TO MAKE PAYMENT UNDER CERTAIN CIRCUMSTANCES IN SUCH CASES.

ACCORDINGLY, WE DO NOT HAVE JURISDICTION TO ALLOW OR DISALLOW THE CLAIMS IN QUESTION AND ARE RETURNING HEREWITH THE FILES THEREON FOR SUCH FURTHER ADMINISTRATIVE ACTION AS IS DEEMED APPROPRIATE. IN THIS CONNECTION, WE SHOULD LIKE TO CALL YOUR ATTENTION TO THE PROVISIONS OF 10 U.S.C. 2733, PROVIDING FOR THE ADMINISTRATIVE REPORTING TO CONGRESS OF CLAIMS EXCEEDING $1,000 FOR PROPERTY LOSS, PERSONAL INJURY OR DEATH INCIDENT TO THE NONCOMBAT ACTIVITIES OF THE MILITARY DEPARTMENTS.