Herriman v. United States

8 Cl. Ct. 411, 1985 U.S. Claims LEXIS 962
CourtUnited States Court of Claims
DecidedJune 25, 1985
DocketNo. 647-83L
StatusPublished
Cited by14 cases

This text of 8 Cl. Ct. 411 (Herriman 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
Herriman v. United States, 8 Cl. Ct. 411, 1985 U.S. Claims LEXIS 962 (cc 1985).

Opinion

OPINION

NETTESHEIM, Judge.

This case comes for decision after trial. See J.B. Herriman v. United States, No. 647-83L (Cl.Ct. Jan. 29, 1985) (order denying defendant’s motion for summary judgment on taking). The court considered post-trial briefing to be unnecessary, a view concurred in by plaintiffs’ counsel. Plaintiffs complain that the Government, [412]*412through the Army Corps of Engineers (the “Corps”), took a permanent easement on their land by operating two dams and reservoirs in such a manner as to cause a river linking the dams to back up onto their property.

FACTS

In addition to the facts stipulated by the parties and those recited on the record at the conclusion of trial, the following facts are found.

The subject property (“plaintiffs’ property”) consists of 253.2 acres (160 acres acquired in 1977, known as the Thompson tract, and the remaining 93.2 in 1980, known as the Roberts tract) located in Muskogee and Haskell Counties, near Muskogee, Oklahoma. To the west of plaintiffs’ property, the North and South Canadian Rivers flow into Eufaula Lake through Eu-faula Dam (jointly referred to as “Eufau-la”) and emerge as the Canadian River which flows downriver past plaintiffs’ property and into the Robert S. Kerr Lock, Dam, and Lake (“Kerr”). Eufaula is located at Canadian River mile (“RM”) 27.3; plaintiffs’ property, at river mile 9.3, which signifies 9.3 miles from the confluence of the Canadian River and the Arkansas River at Kerr.

Plaintiffs J.B. and Pebble Herriman (“plaintiffs”) are husband and wife. Throughout his life Mr. Herriman has been involved with farming in the vicinity. He has both operated a family farm and owned or leased additional farmland. Mrs. Herri-man was raised on a farm and is an active farmer. Neither Mr. nor Mrs. Herriman had personal knowledge of the use to which the two tracts comprising plaintiffs’ property had been put prior to 1977, the year they began negotiations to acquire the 160-acre Thompson tract; nor did they know anything about the impact of flood conditions on the subject property prior to the construction of the two dams involved in this case.

Both Eufaula and Kerr were authorized by the Rivers and Harbors Act of July 24, 1946, Pub.L. 525, 60 Stat. 634 (1946), and were subsequently designated by Congress in 1971 as part of the McClellan-Kerr Arkansas River Navigation System (the “project”). The project was adopted for the purpose of conferring multiple benefits on the Arkansas River Basin and along the Mississippi River. From Kerr the Arkansas River makes its way to join the Mississippi River.

The Corps commenced construction of Eufaula in 1956, and the dam was placed in operation in 1964. Although constructed primarily to control flooding, Eufaula also provides power and water supply, sediment control,1 and recreation benefits. Eufaula [413]*413aids the McClellan-Kerr Navigation system by assisting in maintaining regulated flows of water. Flows are measured in cubic feet per second (“c.f.s.”). Releases of water depend on such factors as power requirements, navigation water requirements, the amount of water in storage, river flows downstream, and weather conditions. Originally, the Corps planned to regulate flooding by discharging water from Eufaula Lake at a rate not to exceed 100,000 c.f.s., although up to 1968 releases did not exceed 13,000 c.f.s. An operating policy was adopted in 1968 of regulating releases at the lower rate of 40,000 c.f.s., ostensibly because land had emerged from the river downstream and was being used for agricultural purposes.

Construction of Kerr Dam began in 1964 and was completed in 1970. The authorized project purposes for Kerr were navigation, power, and recreation. Except for periodic drawdowns of two feet for power generation, Kerr Lake is operated with a more or less constant navigation pool elevation of 460 NGVD (“National Geodetic Vertical Datum,” a method of measurement which replaced mean sea level) in the vicinity of the dam.

Plaintiffs’ property is located in what has been over the millenia the flood plain of the Canadian River. Lay and expert witnesses for both parties described the Canadian River itself as dynamic. According to Jewell T. Wood, plaintiffs’ expert structural engineer/hydrologist, rivers in general are one of the most dynamic subjects that engineers deal with. “[A] river changes moment by moment, day by day, and it has changed through the [millenia].” Transcript, May 24, 1985, at 1197 [hereinafter cited as “Tr.”].

A plat from the Government Land Office Survey published in 1898 reveals that as early as 1896-1898 the land that became plaintiffs’ property was visible. Beginning at least 1907-1916, the Thompson tract was farmed by adjoining landowner Lloyd W. LaFave’s uncle and father. From 1916 to 1928, although this witness had left the property, his father leased it and Mr. La-Fave helped his father farm it. Raymond Snow, a life-long resident of the area who now farms land adjoining plaintiffs’, saw all of the property being farmed during the 1930’s. Aerial photographs taken from 1939-1962 show that as of 1939 part of the property was covered by the river and that by 1952, apparently as a result of the flood of record in 1943, all of the property was in the active stream channel, which is sandy and barren. Some of the property had emerged by 1962, and the balance was out of the active channel by 1964. From 1964 to 1984, plaintiffs’ property was not covered with water continuously except during periods of floods. Mr. Snow saw what became plaintiffs’ property cultivated in the late 1960’s; Mr. Ward also observed cultivation in the early 1970’s. In the late 1960’s, land downstream had become capable of cultivation post-Eufaula, as appears from the testimony of David B. Kannady, Chief of the Lower Arkansas River Regulation Unit, Hydrology-Hydraulics Branch of the Corps, that farmers had complained about releases from Eufaula in 1968 which exceeded 50,000 c.f.s.—the first since 1964 to exceed 13,000 c.f.s.—inundating their property.

The amended complaint charges that defendant has raised and lowered the flow of the Canadian River across plaintiffs’ property and thereby deprived plaintiffs of access

during critical agricultural periods and that the Defendant has, from time to time, inundated the cropland of the Plain[414]*414tiff[s] by virtue of its operation of said Project to the extent that Plaintiff[s] [have] been unable to conduct agricultural activities thereon as had been done prior to the regulation of the Canadian River by the Defendant.

Amended Compl. ¶ 4. Plaintiffs’ theory of causation is both that the Corps regulated discharges from Eufaula to cause longer periods of flooding than pre-Eufaula and that as the Canadian River flowed into Kerr Lake a backwater effect was produced causing the river to back up onto plaintiffs’ property.

In December 1976 plaintiffs inspected both the Thompson tract of 160 acres and the lesser 93.2-acre Roberts tract prior to acquiring the former. Plaintiffs could see that it had been farmed—specifically, it appeared that hay had been cut from certain pieces. Plaintiffs have planted soybeans and/or wheat on their land. According to both Mr. Herriman and defendant’s expert botanist, wheat follows a crop cycle that begins in September with planting, continues with fertilizing, and ends with harvesting in the first half of June. Soybeans are planted in May for a single crop, and by June if wheat and soybeans are double-cropped.

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Cite This Page — Counsel Stack

Bluebook (online)
8 Cl. Ct. 411, 1985 U.S. Claims LEXIS 962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herriman-v-united-states-cc-1985.