Hendricks v. United States

14 Cl. Ct. 143, 1987 U.S. Claims LEXIS 231, 1987 WL 25208
CourtUnited States Court of Claims
DecidedDecember 17, 1987
DocketNo. 9-84L
StatusPublished
Cited by28 cases

This text of 14 Cl. Ct. 143 (Hendricks v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hendricks v. United States, 14 Cl. Ct. 143, 1987 U.S. Claims LEXIS 231, 1987 WL 25208 (cc 1987).

Opinion

OPINION

MOODY R. TIDWELL, III, Judge:

This case came before the court on plaintiffs’ claim of taking without just compensation of the economic remainder of land encumbered with flowage easements purchased by the United States, acting through the U.S. Army Corps of Engineers. The flowage easements permitted the Corps to occasionally flood plaintiffs’ land without incurring liability. Plaintiff, Randall Hendricks, a practicing attorney appearing pro se, and his wife purchased two tracts of land predominantly encumbered with flowage easements with the intent to use the land as a cattle stock farm.1 Plaintiffs claimed that during 1981-1986 the Corps’ use of the flowage easements rendered their land worthless for any purpose and has destroyed the market value of [144]*144the land. In addition, plaintiffs pray for just compensation for the taking, by the same cause, of crops destroyed in 1981-1983 in the amount of $187,066.52. Plaintiffs also requested interest on the amounts claimed, costs and attorneys fees. Defendant denied liability under the terms of the flowage easements, arguing that there was no destruction of the economic remainder of the land, and that the flooding was primarily caused by high rainfall in the area and the resulting flood water in Clear Creek which runs partly adjacent to and on plaintiffs’ property and in the Osage River, a mile and one-half downstream.

FACTS

Construction of the Harry S. Truman Dam and Reservoir was authorized by the Congress of the United States in 1954. Construction began in 1964 and closure of the reservoir occurred in 1977. By the end of 1979 the reservoir had reached the planned multipurpose elevation depth of 706' above mean sea level. The dam is a multipurpose dam designed for flood control, generation of hydroelectric power and protection of fish and wildlife. As such it is operated so as to generally maintain the several purposes in balance, recognizing that from time to time one or another of the purposes will become paramount relative to the others. Congress directed the Corps to purchase fee simple title to lands rising to elevation 742' m.s.l. between the dam and points where the elevations of the main bottom land along the main stem or principal tributaries lie at elevation 710' m.s.l. All lands upstream from these points were to be purchased in fee simple to elevation 710' m.s.l. and flowage easements between elevation 710' m.s.l to elevation 742' m.s.l. The reservoir flood control elevations are 706' m.s.l. to 739.6' m.s.l.

In preparing to acquire flowage easements from landowners the Corps identified those lands that in its opinion would have an “economic remainder” during the time the reservoir was in a flood control stage.2 The measure of compensation for a flowage easement is the diminished difference in the fair market value of the land before compared to after acquisition of the easement. The appraisers who inspected the lands in question considered numerous factors and gave to the Corps and the landowners their conclusions as to the value of the lands, including to what purpose the economic remainder of the land could best be put after acquisition of the flowage easements. A part of the information used by the Corps and the landowners comprised a frequency and duration table derived from, among other factors, a computer-generated water release operation model entitled the “Preliminary Lake Regulation Manual.”

Armed with this information the Corps began to acquire flowage easements. Landowners were told that the frequency and duration table should not be used as a guarantee of the impact of flooding on the flowage easements at any particular time; nor could they assume that the dam water release operational model would be adhered to strictly. Actual water release would be determined by contemporary events and factors and, because the data shown on the frequency and duration table was an average, flooding of their property would be either more or less than shown. The Corps described the frequency and duration table as follows:

Reservoir elevation frequencies are only a statistical estimate based on past hy-drologic experience. They do not constitute a prediction or expectation as to what flooding will occur at specific time on lands in the [area of the] reservoir. Nor are they a specific prediction of how the dam will be operated.

[145]*145It was also made clear to the landowners that the frequency and duration table did not include natural flooding from Clear Creek and the Osage River, i.e., non-dam source flooding, and that natural flooding should be expected to occur as in the past. The frequency and duration table was not the only factor used by the land appraisers. They analyzed and placed varying degrees of weight upon comparable sales, the extent of past natural flooding and the water release operation model. They also considered more objective factors such as natural conditions, topography, location, condition of and improvements to property and the existence and condition of levees.

The frequency and duration table read in conjunction with the water release model and other hydrological factors showed an estimated annual flooding duration of forty-one days to lands at 711' m.s.l. and eleven days at 720' m.s.l. The parties stipulated that flood waters had to reach 722' m.s.l., the lowest portion of plaintiffs’ levee, before plaintiffs’ land would flood.3 In actual operation of the dam, the Corps did not adhere blindly to the proposed operational model. Contemporary human judgment would play a large role in the daily operation of the reservoir. Indeed, the parties stipulated that actual operation of the dam could differ from the water release operational model because flexibility is necessary to account for unforeseen problems. The ability to exercise sound engineering judgment which might result in releases different from those shown in the operational plan was necessary.

The two tracts in dispute were the Ains-worth property and the Schmidt property. The Ainsworth property consisted of forty acres bordered on two sides by Clear Creek approximately 1.5 miles upstream of its confluence with the Osage River. Most of the property is between 710' m.s.l. and 718' m.s.l. and it is bordered on two sides by a levee designed to prevent natural flooding from Clear Creek and the Osage River but the levee has not always been successful. The tract has periodically flooded. At the time of the appraisal in 1977 the cropland area was under four or five feet of water and there was a break in the levee. No crops were grown on the land that year. The corps initially determined that it should purchase or take a 38.3 acre flowage easement and appraised the value of the flow-age easement at $5,850. That sum was unacceptable to Mrs. Ainsworth. Following negotiations with her the Corps agreed to a price of $8,000. The effect of the flowage easement was reported by the appraiser as:

There is approximately 1.20 acres below elevation 706' which [are] located in streambed. The three acres between elevation 706-710' [are] located in Clear Creek and adjoining bank.
The levee along the north and west side of Clear Creek is approximately 8' high. Since the elevation along the bank is about 710' and the levee is about 8' high, this would indicate that the flood water must reach elevation 718-720' before it would breach the levee. This could happen about once every 3 years for a duration of 11 days.

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Cite This Page — Counsel Stack

Bluebook (online)
14 Cl. Ct. 143, 1987 U.S. Claims LEXIS 231, 1987 WL 25208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendricks-v-united-states-cc-1987.