Jones v. United States

3 Cl. Ct. 4, 1983 U.S. Claims LEXIS 1684
United States Court of Claims·Decided July 11, 1983·No. No. 306-79L·Published·Cited by 10 cases

Opinion

ORDER FOR ENTRY OF JUDGMENT

HARKINS, Judge.

The claims of five of the plaintiffs in this case were resolved by stipulation, and final judgment was entered on those claims on June 18, 1982. This order determines the claim of the remaining plaintiffs, Harold E. and Eunice Preszler (No. 3).

The petition in this case was filed on July 17, 1979, in the United States Court of Claims by six plaintiffs to obtain compensation for the taking of flowage easements over farmlands along the South Dakota bank of the Missouri River. The taking was a result of construction and operation of dams in the Missouri River Basin Water Control Projects. On July 30, 1980, the parties filed a stipulation on liability, in which the United States admitted that it had taken a flowage easement over portions of each of the plaintiffs’ properties, and the parties, including plaintiffs Preszler, agreed that November 30, 1973, was the date of taking of the flowage easement. The stipulation provided that the exact geographical [6] limits and extent as to which each portion of each of plaintiffs’ properties had been effected by the project would be determined subsequently.

During the course of negotiations looking toward settlement of the issue of damages, the parties agreed that the value of the flowage easement that had been taken over the Preszler property was $40,000, on the basis of a hypothetical monthly discharge from Port Randall Dam not exceeding 80,-000 c.f.s.

Plaintiff Harold E. Preszler had requested on July 14,1981, relocation benefits pursuant to Pub.L. No. 91-646 in the amount of $79,244.50 to cover the cost of relocating the irrigation pump and pipeline system. This request for relocation benefits was denied by the Omaha District office on August 10,1981, reconsideration was denied on November 6, 1981, and the denial was affirmed by the Office of the Chief Engineer on April 29, 1982.

On May 28,1982, five of the six plaintiffs filed a stipulation for entry of judgment, dated May 16, 1982, for damages for the taking of a flowage easement and for attorney fees. The stipulation explained that plaintiffs Preszler were unable to enter the stipulation because they claimed the United States had an additional liability for relocation of an irrigation system on the property, which claim the parties were unable to resolve. This liability would be resolved either as part of just compensation in this taking action or in administrative proceedings for relocation benefits under Pub.L. No. 91-646. The parties stipulated that the cause of action involving plaintiffs Preszler would remain separately docketed pending final resolution. The parties also stipulated that 13.65 percent ($9,112.83) of the total attorney fees and expenses incurred to that date was to be attributed to efforts on behalf of plaintiffs Preszler. On June 12, 1982, judgment was entered in accordance with the stipulation.

On July 29, 1982, plaintiffs Preszler by motion requested an order from this court that the taking of the flowage easement over their farmlands included a taking by the United States of an irrigation system located on the property. Plaintiffs’ motion was denied in a Memorandum of Decision filed January 10, 1983. Jones v. United States, 1 Cl.Ct. 329 (Cl.Ct.1983). The January 10, 1983, decision stated that the Presz-lers’ land must be valued as of the date of taking, November 30, 1973, and improvements placed upon the property within the flowage easement after that date, including the irrigation system, are not eligible for inclusion in compensation for the November 30, 1973, taking.

Counsel were allowed time to stipulate the amount of compensation due plaintiffs Preszler; counsel reported that these efforts were unsuccessful. On April 14,1983, counsel in a telephone conference were reminded that at this stage of the litigation the following issues relative to the Preszler claim had been resolved: (1) defendant’s liability for taking a flowage easement on November 30, 1973; (2) the amount of compensation owed by defendant for the flow-age easement, exclusive of claims relative to the irrigation system (by stipulation of counsel at one time); (3) the amount of attorneys fees attributed to efforts on behalf of the Preszlers prior to May 16, 1982; and (4) that the Preszlers’ claims relative to the irrigation system were not compensable. On April 15, 1983, defendant by order was directed to file a motion for an order for entry of judgment. The order stated:

Defendant’s motion shall include a statement of the amount defendant is willing to pay as the value of the flowage easement that has been taken on the Preszler property. The motion also shall include a map of Tract N-117E that depicts the boundaries of the flowage easement, or such other description that defines the scope of the flowage easement that was taken on November 30, 1973.

On defendant’s motion, filed June 1,1983; plaintiffs’ response, filed June 20, 1983; and defendant’s reply, filed July 1, 1983, without oral argument, IT IS ORDERED:

The following findings of fact apply to the claim of Harold E. and Eunice Preszler (3):

[7] (a) The United States is liable for the taking of a flowage easement over plaintiffs’ farmlands. The flowage easement was the result of flooding and altered drainage flows caused by the Government’s construction and operation of dams in the Missouri River Basin Water Control Projects.

(b) The date of taking of said flowage easement is November 30, 1973.

(c) The flowage easement that was taken on November 30,1973, applies to the following described real estate in the County of Bon Homme, State of South Dakota, to wit:

All that portion of Lot 7 of Section 6, Lot 1 of Section 7 and that portion of Lots 1, 2 and the NW%SE% of Section 8, Township 92 North, Range 61 West of the Fifth Principal Meridian, Bon Homme County, South Dakota, lying below the 1,235-foot contour elevation, vertical datum being Mean Sea Level, as depicted on the attached map, together with all accretion thereto.

(d) The flowage easement on the taking date had a value of $40,000, and this amount is the total compensation due plaintiffs Preszler for property taken on November 30, 1973.

Plaintiffs Preszler are entitled to compensation of $9,112.83 for attorney fees and expenses attributable to efforts on their behalf to May 16, 1982. Plaintiffs Preszler are not entitled to attorney fees and expenses expended subsequent to that date in an unsuccessful effort to obtain compensation for costs involved in relocation of the irrigation system. 42 U.S.C. § 4654(c) (1976).

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