Turner v. United States

23 Cl. Ct. 447, 1991 U.S. Claims LEXIS 297, 1991 WL 127188
CourtUnited States Court of Claims
DecidedJuly 11, 1991
DocketNo. 111-88L
StatusPublished
Cited by5 cases

This text of 23 Cl. Ct. 447 (Turner 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
Turner v. United States, 23 Cl. Ct. 447, 1991 U.S. Claims LEXIS 297, 1991 WL 127188 (cc 1991).

Opinion

OPINION

BRUGGINK, Judge.

Plaintiffs in this action are the present or former owners of two parcels of land in Itawamba County, Mississippi. They contend that the activities of the United States, acting through the Army Corps of Engineers (the “Corps”), resulted in a taking of an easement on their property through flooding and sediment deposition. Jurisdiction attaches under the Tucker Act1 by virtue of the takings clause of the Fifth Amendment to the Constitution. The action is presently pending on remand from the Federal Circuit, which reversed an earlier grant of summary judgment in favor of the Government.2 The Claims Court had held that the facts alleged did not demonstrate that the flooding was inevitably recurring. The appellate court, reversed, finding that there were disputed issues of fact precluding summary judgment. The case was assigned on remand to the present judge. After trial and a visit to the property, the court concludes that a taking occurred, and that plaintiffs are entitled to recover.

FACT FINDINGS

The property in question consists of two parcels of bottom land along Twenty Mile Creek, close to its juncture with the East Fork of the Tombigbee River. Tract I consists of 483.5 acres. It lies about three miles river miles (“RM”) above the juncture. Tract II consists of 118 acres and is bordered by both Twenty Mile Creek and the East Fork of the Tombigbee. It lies about one and a half RM above the juncture. Plaintiffs Jimmy Crane, Johnny [449]*449Crane, and Edwin Wilburn purchased both tracts in 1978.3 In June 1979, plaintiff Neal Turner bought both tracts from Wilburn and the Cranes.4

Twenty Mile Creek is a stream in northeastern Mississippi. It is about 30 miles in length and drains an area of approximately 174 square miles. The creek flows in roughly a southeasterly direction. It was once a meandering stream that flowed through the bottom land of the Tombigbee watershed between the East Fork and higher ground to the southwest. Because the natural stream bed had little carrying capacity it frequently topped its banks during heavy rains. For that reason, beginning as early as 1910, the creek was re-channelized to a somewhat different, and straighter, alignment slightly northeast of the old meander patterns. This early work did not drastically increase the carrying capacity of the creek, but apparently provided some flood protection, at least until the creek bed became silted or overgrown. The Federal Government became involved with the enactment of the Flood Control Acts of June 22,1936, and August 28,1937, which authorized clearing and rechanneliz-ing work in the lower reaches of Twenty Mile Creek and other tributaries of the Tombigbee.

In 1958, Congress authorized certain flood control projects on 22 streams entering the Tombigbee River, including Twenty Mile Creek. Flood Control Act, Pub.L. No. 85-500, 72 Stat. 307 (1958). Work on the Twenty Mile Creek portion was begun in December 1965, and completed in January 1967, when the completed project was turned over to the local sponsor, the Tom-bigbee River Valley Water Management District (the “Management District”). With respect to Twenty Mile Creek, the project was confined to the stretch from RM 0, which is the terminus of the creek at the point it joins the East Fork, to RM 11.1.

Work on the stretch of the creek between RM 0 and RM 9.1 involved channelizing the creek bed to a specified profile. Most of this work consisted of substantially widening and frequently deepening the channel. The particular shape of the profile depended on the stretch of the creek involved. The Corps’ design called for staging the elevation of the creek bed so that the channel was successively deeper as it approached the East Fork. From RM 9.1 to 11.7, work consisted solely of clearing and snagging along the natural channel.

The project was designed to accommodate a flood of 0.33 year recurrence frequency. To put it differently, it was not intended to handle floods which occur less frequently than once every four months. Presumably a flood that could be anticipated to occur only once a year, for example, would top the banks as designed.

In fact the execution of the work resulted in a very different profile than the one put on paper. The contractor who excavated the creek bed was instructed to place the dredged materials along both banks of the creek in a spoil pile of uniform height and shape. Although Corps witnesses at trial demurred at the suggestion that this spoil pile in fact constituted a levee, several internal Corps memos refer to the phenomenon as a levee, and the court’s observation confirms that assessment. The levee is virtually unbroken for miles on both sides of the creek, and appeared to be approximately 10 to 15 feet above the natural contour. It was deliberately left open at a few points where there were distinct natural drainage channels into the creek. One such point was at the south corner of Tract I, where the drainage ditch from the field fed into Twenty Mile Creek. There was a small bridge over the ditch to make driving the levee possible. The levee is driveable in reasonable weather, even at places where it drops down to the original level. The Management District maintains the channel and the levee to keep down vegetation.

[450]*450The immediate effect of the project was to increase the water surface gradient of the creek between RM 11.7 and O. The creek was initially able to handle a substantially larger volume of water, and the gradient resulted in much faster discharge into the East Fork.

Soils in the Twenty Mile Creek bottom are highly erodible. Much of the bottom land was already in cultivation prior to the work in 1965-66, and considerably more was converted to row crop cultivation thereafter. Almost immediately after completion of the project, there were complaints from the upstream landowners of serious erosion problems. As will be discussed more fully below, increased velocity of the water flow after the project work added to the sediment carrying capacities of the creek, which in turn destabilized the stream bed, particularly upstream of RM 11.7. This was partly through a process known as headcutting, in which soil at the banks of a creek and at the margin of all its feeders sloughs into the water. In the succeeding years, there has been continuous collapse of the creek bank, and general erosion.

Complaints over erosion led Congress in 1980 to fund modifications to Twenty Mile Creek. Pub.L. No. 96-304. This funding was for the purpose of constructing two “grade control” structures and to do related bank stabilization work. Subsequently, the Corps constructed a grade control structure at RM 11.7 and another at RM 19.9. The purpose of these structures is to break the velocity of the water flow and thereby reduce the headcutting effect during floods. In addition, several sections of the creek above 11.7 were protected by placing riprap along the banks or by planting willows.

The present lawsuit is not directly concerned with the upstream erosion and loss of farmland. Rather, it is concerned with a phenomenon that manifested itself somewhat later. It can best be summarized by setting forth plaintiffs’ theory of causation in one place since the court ultimately finds that it is correct. Plaintiffs contend that the erosion upstream of their property resulted in deposition of sand in the lower reaches of the creek and at the juncture of Twenty Mile Creek and East Fork.

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Cite This Page — Counsel Stack

Bluebook (online)
23 Cl. Ct. 447, 1991 U.S. Claims LEXIS 297, 1991 WL 127188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-united-states-cc-1991.