Sickman v. United States

• Decision Date: 24 October 1950
• Docket Number: 10103,No. 10102.,No. 10101,10101,10102.
• Citation: 184 F.2d 616
• Parties: SICKMAN et al. v. UNITED STATES (two cases). RYAL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

184 F.2d 616 (1950)

SICKMAN et al. v. UNITED STATES (two cases). RYAL et al. v. UNITED STATES.

Nos. 10101, 10103, No. 10102.

United States Court of Appeals Seventh Circuit.

October 24, 1950.

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 2671-2680, 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 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 while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

Sec. 2674: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages."

Plaintiffs argue that at common law the liability of the keeper for trespasses by animals and birds was most strict, and point out that Illinois is a common law State. Plaintiffs cite Moss v. Pardridge, 9 Ill.App. 490, 492, where the court held that the owner or keeper of wild animals is conclusively presumed to have notice that they are vicious and dangerous, and if he neglects to keep them properly secured he is liable for injuries committed by them, without any proof of his knowledge of their viciousness.

Plaintiffs also invite attention to McPherson v. James, 69 Ill.App. 337, where it was held plaintiff was entitled to damages where defendant's flock of turkeys strayed upon plaintiff's premises, and to Hamilton et al. v. Sampson, 184 Ill.App. 316, where the court sustained a judgment against defendant for killing 74 turkeys belonging to plaintiffs while the birds were foraging on defendant's adjoining farm.

In the oral argument before this court plaintiffs' counsel insisted that the United States Government was the owner of the wild geese, at least while they were within the geographical confines of this nation. If counsel's theory is correct, presumably as such geese passed the Canadian boundary on their northern flight, and the Rio Grande River if they flew that far south, their ownership passed then to the governments of Canada and Mexico respectively. Plaintiffs' theory as to the ownership of migratory wild fowl which have not...