B-147959, JUL. 24, 1962

B-147959: Jul 24, 1962

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MONTOOTH: REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 31 AND APRIL 23. THE DIVERSION WAS ACCOMPLISHED BY THE CONSTRUCTION OF AN OUTLET CHANNEL BY THE CORPS OF ENGINEERS. IN BOTH OF WHICH CLAIMS YOU HAVE A VESTED INTEREST AND POSSESS THE PROPER AUTHORITY TO REPRESENT THE OWNERS THEREOF. SINCE THE LAND AREAS INVOLVED IN THESE CLAIMS ARE IMMEDIATELY ADJACENT TO THE AREA OF LAND INVOLVED IN YOUR CLAIM THE FINDINGS OF FACTS AND CONCLUSIONS AS TO THE LEGAL RIGHTS RESULTING THEREFROM WILL APPLY EQUALLY TO ALL OF THE CLAIMS INVOLVED. TOGETHER WITH THE AFFIDAVITS ENCLOSED WITH YOUR LATTER LETTER WERE FORWARDED TO THE CHIEF OF ENGINEERS. ASSERTS THAT THE STATEMENTS MADE IN YOUR LETTERS AND AFFIDAVITS OF SPORTSMEN SUBMITTED WERE CAREFULLY CONSIDERED.

B-147959, JUL. 24, 1962

TO MR. GEORGE W. MONTOOTH:

REFERENCE IS MADE TO YOUR LETTERS DATED MARCH 31 AND APRIL 23, 1962, REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM FOR DAMAGES TO PROPERTY OWNED BY YOU CAUSED ALLEGEDLY BY THE DIVERSION OF THE SANGAMON RIVER, CASS COUNTY, ILLINOIS. THE DIVERSION WAS ACCOMPLISHED BY THE CONSTRUCTION OF AN OUTLET CHANNEL BY THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, WHICH CAUSED THE RIVER TO FOLLOW A DIFFERENT COURSE IN ITS CONFLUENCE WITH THE ILLINOIS RIVER. IN YOUR LETTER OF APRIL 23, 1962, YOU EXPRESS AN INTEREST IN THE CLAIMS OF THE SCHUYLER GUN CLUB AND THE MONTOOTH AND HAMMERSCHMIDT, IN BOTH OF WHICH CLAIMS YOU HAVE A VESTED INTEREST AND POSSESS THE PROPER AUTHORITY TO REPRESENT THE OWNERS THEREOF. SINCE THE LAND AREAS INVOLVED IN THESE CLAIMS ARE IMMEDIATELY ADJACENT TO THE AREA OF LAND INVOLVED IN YOUR CLAIM THE FINDINGS OF FACTS AND CONCLUSIONS AS TO THE LEGAL RIGHTS RESULTING THEREFROM WILL APPLY EQUALLY TO ALL OF THE CLAIMS INVOLVED.

YOUR LETTERS OF MARCH 31 AND APRIL 23, 1962, TOGETHER WITH THE AFFIDAVITS ENCLOSED WITH YOUR LATTER LETTER WERE FORWARDED TO THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY, FOR A REPORT WITH RESPECT TO THE ASSERTIONS CONTAINED THEREIN. IN REPLY THERETO THE DISTRICT ENGINEER, CHICAGO DISTRICT, CHICAGO, ILLINOIS, ASSERTS THAT THE STATEMENTS MADE IN YOUR LETTERS AND AFFIDAVITS OF SPORTSMEN SUBMITTED WERE CAREFULLY CONSIDERED. IT IS STATED THAT FOR MANY YEARS, DURING EXTREME HIGH STAGES OF THE SANGAMON, THE RIVER LEAVES ITS BANK AND SPREADS FOR MILES OVER THE SWAMPY AREA WHERE THE SANGAMON MEETS THE ILLINOIS RIVER AND THAT THIS OCCURRENCE HAS NOT BEEN CHANGED BY THE CONSTRUCTION OF THE NEW OUTLET CHANNEL. IT IS ADMITTED THAT DURING HIGH STAGES OF THE SANGAMON WHEN ACCOMPANIED BY LOW WATER IN THE ILLINOIS THE SANGAMON MAY SPREAD OVER THESE SWAMPY LANDS INCLUDING THOSE OF THE CLAIMANTS, BUT IT IS POINTED OUT THAT THIS HAS BEEN HAPPENING FOR IN EXCESS OF SIXTY YEARS AND THAT THE SILTATION HAS NOT BEEN AGGRAVATED BY THE CONSTRUCTION OF THE SANGAMON CUT-OFF CHANNEL. FURTHER THE STATEMENTS MADE ON YOUR BEHALF BY THE RESIDENTS OF THE AREA IN THE AFFIDAVITS ENCLOSED THAT THE WATERS OF THE SANGAMON NEVER FLOWED OVER THEIR LAND PRIOR TO THE CONSTRUCTION OF THE CUT-OFF CHANNEL ARE CHALLENGED AS BEING WITHOUT SUPPORT. THE DISTRICT ENGINEER ALSO STATES THAT IT IS THEIR OPINION THE SILT COMPLAINED OF ORIGINATED WITH THE ILLINOIS RIVER WITH EXCEPTION OF A SLIGHT AMOUNT FROM THE SANGAMON WHICH AMOUNT WOULD HAVE SILTED OUT REGARDLESS OF THE EXISTENCE OF THE SANGAMON RIVER CUT-OFF CHANNEL.

THE RECORDS IN THIS CASE CONTAIN THE RESULTS OF A SEDIMENTATION STUDY MADE IN 1960 BY THE CORPS OF ENGINEERS ON THE FLOOD PLAIN IN THE VICINITY OF THE CONFLUENCE OF THE ILLINOIS AND SANGAMON RIVERS. THE PURPOSE OF THE STUDY WAS TO COMPARE THE TOPOGRAPHY OF THE FLOODPLAINS IN THE AREA MENTIONED OVER A PERIOD OF SIXTY YEARS TO DETERMINE WHETHER CERTAIN AREAS ARE FILLING DUE TO DEPOSITION FROM THE SANGAMON RIVER OUTLET CHANNEL. FOR THIS STUDY THERE WAS AVAILABLE TOPOGRAPHICAL DATA FROM THREE SURVEYS MADE OF THIS SAME AREA. THE FIRST SURVEY WAS MADE BY MR. J. W. WOERMANN IN 1902, THE SECOND AND THIRD BY THE CORPS OF ENGINEERS IN 1939 AND 1960 RESPECTIVELY. THE AREA UNDER STUDY INCLUDED SECTION 19 AND PORTIONS OF SECTIONS 18 AND 20, TOWNSHIP 19N, RANGE 11W. FOR SECTION 19 WHEREIN IS LOCATED THE PROPERTY OF THE CLAIMS INVOLVED HERE, WE QUOTE THE FOLLOWING FROM THE REPORT:

"THE MAJOR PORTION OF THIS SECTION IS A LARGE PORTION OF TREADWAY LAKE. A STUDY OF THE DIFFERENCES IN ELEVATIONS AS SHOWN BY THE THREE SURVEYS INDICATES THAT DURING THE 38-YEAR PERIOD FROM 1902 TO 1939, THE CHANGES IN ELEVATIONS IN THE SUBUNITS RANGED FROM AN EROSION OF 1.1 FOOT TO A FILLING OF 11.5 FEET AND WITH THE AVERAGE DEPOSITION RANGING UP TO ABOUT 7 FEET. LIKEWISE, DURING THE 21-YEAR PERIOD FROM 1939 TO 1960, THE CHANGES IN ELEVATIONS RANGED FROM AN EROSION OF 1.1 FOOT TO A FILLING OF 3.2 FEET AND WITH THE AVERAGE DEPOSITION RANGING UP TO ABOUT 3 FEET. IT IS THUS VERY APPARENT THAT THE LAND AND WATER AREAS IN SECTION 19 HAVE BEEN GENERALLY SUBJECTED TO GRADUAL FILLING SINCE 1902 AND THAT THE RATE OF FILLING IS NO GREATER AND PROBABLY SOMEWHAT LESS SINCE THE OPENING OF THE SANGAMON RIVER OUTLET CHANNEL THAN PRIOR TO 1939.'

THE RESULTS OF THE ABOVE STUDY EVIDENCE THAT THE AREA INVOLVED HAS BEEN SUBJECT TO SILTATION FOR SIXTY YEARS AND THAT THE SEDIMENTATION RATE SINCE THE OPENING OF THE OUTLET CHANNEL IS SOMEWHAT LESS THAN THAT PRIOR TO 1939.

THE ABOVE TOPOGRAPHICAL STUDY AND REPORTS OF THE CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, ESTABLISH AND SUPPORT A DETERMINATION THAT THE SILTATION COMPLAINED OF IS NOT TRACEABLE TO THE CONSTRUCTION OF THE SANGAMON OUTLET CHANNEL BUT EXISTED FOR MANY YEARS PRIOR THERETO AND ARISES FROM EXISTING NATURAL CONDITIONS OF THE LAND AREA INVOLVED. THESE CONCLUSIONS ARE CONTRARY TO THE STATEMENTS MADE BY THE CLAIMANTS, AND, ON THEIR BEHALF, BY THE SPORTSMEN IN THEIR AFFIDAVITS ENCLOSED IN THE LATEST CORRESPONDENCE TO THE EFFECT THAT THE WATER OF THE SANGAMON NEVER FLOWED OVER THE LAND IN QUESTION PRIOR TO THE CONSTRUCTION OF THE OUTLET CHANNEL. HOWEVER THE EVIDENCE OF RECORD SUFFICIENTLY CONTRAVENES THESE ASSERTIONS AND IT HAS BEEN THE POLICY OF THIS OFFICE TO ACCEPT FACTS AS REPORTED BY AN ADMINISTRATIVE AGENCY IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME A PRESUMPTION OF CORRECTNESS. 37 COMP. GEN. 696, 699.

THEREFORE, WE MUST FIND THAT THE DAMAGES TO THE LANDS IN QUESTION DO NOT ARISE FROM THE CONSTRUCTION OF THE SANGAMON RIVER OUTLET CHANNEL. UNDER THE CIRCUMSTANCES NO RESPONSIBILITY RESTS WITH THE GOVERNMENT AS TO THESE CLAIMS. FOR THESE REASONS, UPON RECONSIDERATION OF THE CLAIMS IN QUESTION, THE DISALLOWANCE ACTIONS OF DECEMBER 4, 1961, MUST BE AND ARE SUSTAINED UPON REVIEW.

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