Anderson v. United States

174 F. Supp. 945, 146 Ct. Cl. 691, 1959 U.S. Ct. Cl. LEXIS 177
United States Court of Claims·Decided July 15, 1959·No. No. 441-56·Published·Cited by 2 cases

Opinion

Maris, Circuit Judge,

sitting by designation, delivered the opinion of the court:

By a Special Act, the Congress conferred jurisdiction upon this court to hear, determine, and render judgment upon the claims of 22 groups of plaintiffs as to the legal or equitable liability of the United States for losses allegedly sustained by reason of the flooding of their lands in the vicinity of Lake Alice, North Dakota, as a result of the activities of the Fish and Wildlife Service in connection with the establishment of certain migratory wildlife refuges. The plaintiffs, who are owners and farm operators of the land here involved, or tenant farmers on a share-cropping basis, claim that certain structures built by the Fish and Wildlife Service caused their lands to be flooded during various years between 1940 and 1956 for which they seek compensation in the amount of approximately $835,000. The United States, on the other hand, disclaims any responsibility for the flooding of the plaintiffs’ lands.

It is a generally accepted rule that one cannot lawfully divert water from its natural watershed or by artificial structures cause water to flow in another direction or over lands upon which it would not otherwise have gone if to do so will deprive a landowner of the use or the fruits of his property. Pumpelly v. Green Bay Company, 1871, 80 U.S. 166, 181; United States v. Cress, 1917, 243 U.S. 316; Soules v. [693] Northern Pac. Ry. Co., 1916, 34 N.D. 7, 157 N.W. 823; Reichert v. Northern Pac. Ry. Co., 1918, 39 N.D. 114, 167 N.W. 127; Ferderer v. Northern Pac. Ry. Co. 1950, 77 N.D. 169, 42 N.W. 2d 216. See also Burkhardt v. United States, 1949, 113 C. Cls. 658 ; Fonalledas v. United States, 1952, 123 C. Cls. 483. But it is necessary to prove that any damage suffered from such action was the direct result of the activities complained of and there is no liability for damages caused by flooding where it appears that the flooding would have occurred anyway. Yazel v. United States, 1950, 118 C. Cls. 59, 71-73; Coates v. United States, 1953, 124 C. Cls. 806, 811-813; Crites v. United States, 1955, 132 C. Cls. 544. See also Sanguinetti v. United States, 1924, 264 U.S. 146. Therefore, any legal or equitable liability on the part of the United States in this case must be established by a proper showing by the plaintiffs that the activities of the Fish and Wildlife Service in connection with the establishment of the refuges were the cause of plaintiffs’ losses.

The tracts of land which are the subject of this case are situated in North Dakota in the vicinity of Lake Alice (or Lac Aux Mortes) and Lake Irvine. Severe drought conditions existed in North Dakota during the 1930’s as a result of which Lake Alice and Lake Irvine and the other lakes in the Mauvais Coulee area north of Devils Lake became dry, or practically so. In 1935 and 1936 the Fish and Wildlife Service established the Lac Aux Mortes (Lake Alice) National Wildlife Befuge. Numerous flooding easements were acquired by the United States around the shoreline of Lake Alice. Between 1935 and 1938 the Fish and Wildlife Service established five easement refuges in the Mauvais Coulee area for the protection and preservation of migratory waterfowl. These refuges were established at Bock Lake, Brumba Lake, Snyder Lake, Lake Alice and Silver Lake. Dams, dikes and ditches were constructed to divert natural water courses and drainage areas in order to restore water in these dry or nearly dry lakes for the purpose of creating the migratory waterfowl refuges.

The years here involved are from 1940 to 1956. The spring runoffs were not as severe in the years 1940 through 1947 and in 1952 and 1953 as in the years 1948 through 1951, and [694] in 1955 and 1956. The evidence does not establish that the plaintiffs suffered floodings in 1940, 1941, 1948, 1944, 1952 and 1953. Floodings occurred in varying degrees in the years 1942, 1945 through 1951, and 1954 through 1956. The amount of water which drained into the Lake Alice-Lake Irvine-Chain Lake area in some years exceeded the reservoir capacities of the lakes and the capacity of the outlet of Lake Irvine, the lower of these lakes, to discharge. Because these lands were low, in comparison with the surrounding countryside, and had poor drainage, the water stood for substantial periods of time until it was too late to plant crops. In 1954 the flooding was not due to spring runoff but followed heavy rainfall in May and June 1954 after the farmers had put their lands into crop and the growing crops were destroyed.

Pressure for relief had mounted among the farmers. The Fish and Wildlife Service, in cooperation with the North Dakota State Conservation Commission, had by January 1955 breached or removed all of the refuge structures. Despite the breaching or removal of these structures, the flooding of the low lands occurred again in 1956. The snowfall in the winter preceding the 1956 runoff was the second heaviest during the period of years involved, being exceeded only by the snowfall in the winter preceding the flooding in 1950. No flooding of lands occurred during 1957 up to late in July 1957.

The plaintiffs say that the floodings were caused by the structures built by the Fish and Wildlife Service. The United States, however, argues that these structures did not cause, affect, or contribute to the flooding but that there were other reasons for the flooding; among them, the nature of the lands themselves, their location adjacent to shallow lakes and their low elevation compared to the surrounding countryside, the extremely poor and sluggish drainage throughout the Devils Lake Basin, the excessive rainfall and the heavy spring runoff following abnormal snowfall during some winters, the vast amount of drainage, the silting and clogging of Mauvais Coulee and the small, narrow and shallow outlet from Lake Irvine through which all the drainage had to pass. We think that the record amply supports the position of the United States.

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Anderson v. United States, 174 F. Supp. 945, 146 Ct. Cl. 691, 1959 U.S. Ct. Cl. LEXIS 177 (cc 1959).

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