184 F.2d 616 (7th Cir. 1950), 10101, Sickman v. United States

Docket Nº:10101, 10103, 10102.
Citation:184 F.2d 616
Party Name:SICKMAN et al. v. UNITED STATES (two cases). RYAL et al. v. UNITED STATES.
Case Date:October 24, 1950
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 616

184 F.2d 616 (7th Cir. 1950)

SICKMAN et al.

v.

UNITED STATES (two cases).

RYAL et al.

v.

UNITED STATES.

Nos. 10101, 10103, 10102.

United States Court of Appeals, Seventh Circuit.

October 24, 1950

Page 617

Robert L. Lansden, David V. Lansden, Cairo, Ill., for appellants.

A. Devitt Vanech, Assistant Attorney General, Roger P. Marquis, John -C. Harrington, Department of Justice, Washington, D.C., William W. Hart, U.S. Atty., Ernest R. McHale, Asst. U.S. Atty., East St. Louis, Ill., Ray M. Foreman, Asst. U.S. Atty., Danville, Ill., for appellee.

Before MAJOR, Chief Judge, and KERNER and DUFFY, Circuit Judges.

DUFFY, Circuit Judge.

The plaintiffs in the three suits before us are either owners of or tenants on farms located along the westerly side of the Horseshoe Lake State Game Preserve in Alexander County, Illinois. The actions are brought under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671-1680, to recover $26, 500 alleged damages to their crops of corn and soybeans claimed to have been destroyed in 1946 and 1947 by migratory waterfowl, principally Canada geese. The district court sustained defendant's motion to dismiss the amended complaints. Plaintiffs elected to stand on their pleadings and the actions were dismissed. The appeals followed.

The complaints allege that Horseshoe Lake State Game Preserve for many years has served as a wintering ground for large numbers of geese which are migratory waterfowl, the protection of which has been assumed by the United States of America pursuant to treaties with Great Britain and Mexico. Plaintiffs allege that the federal government, by the action or non-action of its employees, agents or servants, is liable to plaintiffs for damages by reason of one, some, or all of the following: (a) defendant was negligent in failing to protect plaintiffs' crops from depredations by geese; (b) defendant created a nuisance by reason of which plaintiffs' crops have been destroyed and damaged; (c) defendant took no steps to protect plaintiffs' crops from damages although the predatory character of geese and their proclivities for damaging crops was known; (d) defendant is an insurer of plaintiffs' crops against damage by geese; (e) defendant cannot avoid liability by non-action; (f) defendant's action in 1946 in keeping the geese stirred up by the use of aircraft, flares, explosives, bombs, etc. caused damage to plaintiffs which otherwise would not have resulted except for defendant's wrongful acts; (g) defendant, by permitting geese to damage plaintiffs' crops has interfered with plaintiffs' exclusive occupation, enjoyment and dominion over their crops, and the right to utilize such crops as they see fit; (h) defendant, by having wild geese in its possession and control, is responsible for any depredations which such geese may commit; (i) by permitting Canadian geese to congregate in vast numbers at the State Game Preserve, knowing the propensity of such geese to damage crops, defendant has negligently caused the damage to plaintiffs' crops; (j) by neglecting and failing to concentrate the geese in Horseshoe Lake State Game Preserve, or in another area, by feeding, herding or driving, defendant has negligently failed to perform the duty

Page 618

owing to plaintiffs; (k) defendant, when geese are in the United States of America, is the owner of and has possession of said geese, or is trustee for the high contracting parties to the treaties, and, by reason of said trust, owes the duty to protect innocent persons from harm or damage.

Pertinent sections of the Federal Tort Claims Act which waive immunity of the sovereign are 28 U.S.C.A. § 1346(b) and Sec. 2674, which read as follows:

Sec. 1346(b): 'Subject to the provisions of chapter 173 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, * * * for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government...

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