North Counties Hydro-Electric Co. v. United States

170 Ct. Cl. 241, 1965 U.S. Ct. Cl. LEXIS 91, 1965 WL 8252
CourtUnited States Court of Claims
DecidedApril 16, 1965
DocketCong. No. 2-59
StatusPublished
Cited by9 cases

This text of 170 Ct. Cl. 241 (North Counties Hydro-Electric Co. 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
North Counties Hydro-Electric Co. v. United States, 170 Ct. Cl. 241, 1965 U.S. Ct. Cl. LEXIS 91, 1965 WL 8252 (cc 1965).

Opinion

ColriNS, Judge,

delivered the opinion of the court:

This is a congressional reference case, filed pursuant to H. lies. 189,1st Sess., 86th Cong., agreed to by the House of Bepresentatives on May 19, 1959. That resolution directed this court to “proceed with * * * [H.B. 5093, a bill for the relief of plaintiff, introduced in the House on February 26, 1959] in accordance with the provisions of sections 1492 and 2509 of title 28 of the United States Code and report to the House of Bepresentatives, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand as a claim, legal or equitable against the United States, and the amount of damages, if any, legally or equitably due from the United States to the claimant, the statute of limitations, the plea of res judicata, laches, any lapse of time, or any prior court decision of this claim by any court of the United States to the contrary notwithstanding. [243]*243The Court of Claims is directed to consider the records of any previous trial of this case.” (See finding 20, infra.) 1

Plaintiff is an Illinois corporation, which owns and, since 1925, has operated a hydroelectric power development on the Fox River (hereinafter referred to as the “Fox”) near Dayton, Illinois. Plaintiff’s dam and plant are located 5.75 miles upstream from the confluence of the Fox with the Illinois River (hereinafter referred to as the “Illinois”) at Ottawa, Illinois.

This is the third occasion on which plaintiff has been before the Court of Claims, seeking monetary relief against the Government for losses and damages to its plant. Plaintiff’s persistent contention is that the operation of the Starved Rock dam on the Illinois, 8.7 miles downstream from the confluence of the two rivers at Ottawa, has created the basic conditions responsible for the floodings of plaintiff’s plant. Plaintiff now seeks just compensation for the “taking” of its property by the periodic impairment of the plant’s ability to earn income. In the alternative, plaintiff seeks recovery based upon an “equitable claim” in the broad sense.

The construction of the Starved Rock dam was begun by the State of Illinois and completed by the Federal Government. The dam has been operated by the defendant since 1933. The pool behind the Starved Rock dam extends upstream in the Illinois 13.5 miles and embraces the area of the mouth of the Fox at Ottawa. The dam creates a backwater pool of relatively still water which extends up the Fox approximately 2.5 miles from its confluence with the Illinois. The channel of the Fox below Dayton is narrow and, in its lower half, is tortuous. Its bed is rock. In its natural state, the Fox falls 20 feet from plaintiff’s dam at Dayton to its mouth. Since the construction of the Starved Rock dam, the channel of the Fox has been widened and deepened by the backwater of the pool. As a result, the Fox has lost 8.5 feet of its natural fall from Dayton.

The area involved in northern Illinois has severe cold weather each year. The weather records show no significant [244]*244change since 1870. Before was pool filled in 1983, floods did occur in the area, but they were due not to ice jams but primarily to heavy rains and to melting snow. The floodwaters could and did flow down to the Illinois. The unusual ice jams in 1943,1952, and 1960, have caused the water above the pool to rise to levels which have flooded plaintiff’s powerplant and equipment. Within a space of 17 years, 1943-60, plaintiff has suffered extensive damage from the three major winter floods. On a number of other occasions, ice jams of lesser magnitude occurred in the Fox, but plaintiff seeks no damages on account of these minor jams.

The first of the major ice jams within the ice gorges, that flooded plaintiff’s powerhouse to a depth of 4.5 feet, occurred in March 1943. (See finding 15, infra.) Plaintiff’s machinery and equipment were damaged and the plant was closed down and out of operation between March 3 and April 16,1943. Thereafter, on December 26, 1944, plaintiff filed its first suit against the United States. Plaintiff alleged then that its damage resulted from the Starved Bock dam. After a full trial on the merits, this court denied relief and dismissed plaintiff’s petition. North Counties Hydroelectric Co. v. United States, 108 Ct. Cl. 470, 70 F. Supp. 900 (1947).

The dismissal of the first suit was based in part upon plaintiff’s failure to prove at trial that the Starved Bock dam caused the flooding (i.e., that the 1943 ice jam on the Fox Biver was continuous from the frozen pool of the Starved Bock dam to plaintiff’s plant, 3% miles upstream). Secondly, the court found that “whether there will be a periodical recurrence of the 1943 ice condition resulting in permanent damage to plaintiff’s property is purely speculative” (at p. 484). The court stated “that the flooding of an owner’s land on but one occasion does not constitute a taking” (at p. 485), citing Peabody v. United States, 231 U.S. 530 (1913); Portsmouth Harbor Land & Hotel Co. v. United States, 250 U.S. 1 (1919); and other cases.

Plaintiff’s second action was filed in 1953 after another severe flooding which occurred in January and February 1952, and one of less severity in 1946, which, however, did [245]*245not enter the powerplant. In Jannary 1952, plaintiff’s generator floor was, as 9 years previously, 4.5 feet under water. Plaintiff was compelled to close its plant from January 29 to February 17,1952. The Trial Commissioner in that case found that the Starved Rock dam was the cause of the 195'2 flooding, as well as the probable cause of the earlier flooding in 1943. However, the court sustained the defendant’s plea that the first decision was res judicata, and, therefore, dismissed the petition without considering the merits. North Counties Hydro-Electric Co. v. United States, 138 Ct. Cl. 380, 384, 151 F. Supp. 322 (1957).2 The court explained its holding as follows (at 383):

* * * In the first case, as in this, it was necessary to show the inevitability of the recurrence of these floods. Intervening events have made this no more possible now than it was then.
Plaintiff has had its day in court and, under the rule of res adjudicata, it cannot again litigate the same issue heretofore tried in the same cause of action against the same defendant.

Also, the court noted that the issue of causation of the ice jam “was tried in the first action and was decided adversely to plaintiff for failure of proof” (at 383). The opinion further stated (at 382) that “Two floodings * * * do not constitute a taking.” The court cited United States v. Cress, 243 U.S. 316 (1917), and other cases.

In the First Session of the 86th Congress, the bill for the relief of plaintiff (H.R. 5093) was introduced, and by H. Res. 189, sufra, was referred to this court.3 The third and present action was filed on July 24,1959, pursuant to H. Res. 189. (See finding 20, infra.)

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Bluebook (online)
170 Ct. Cl. 241, 1965 U.S. Ct. Cl. LEXIS 91, 1965 WL 8252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-counties-hydro-electric-co-v-united-states-cc-1965.