White v. United States

Citation193 F.2d 505
Decision Date29 January 1952
Docket NumberNo. 12689.,12689.
PartiesWHITE et al. v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

P. J. Gallagher, Martin P. Gallagher, Ontario, Or., for appellant.

A. Devitt Vanech, Asst. Atty. Gen., Henry L. Hess, U.S. Atty., Portland, Or., William H. Veeder, Sp. Asst. to the Atty. Gen., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

POPE, Circuit Judge.

This was an action by the appellants, owners of a parcel of land in the State of Oregon, against the United States, to recover damages they claim to have suffered when their lands were deprived of water for a period of three weeks in July, 1946, because of breaks in the canal of the Owyhee Irrigation project. The project had been constructed by the United States pursuant to the Reclamation Act of 1902, 32 Stat. 388, as supplemented and amended, 43 U.S.C.A. § 373 et seq. The Whites' lands were irrigable under the project, and were within the boundaries of the Owyhee Irrigation District which had executed a contract with the United States in which, among other things, the District agreed to reimburse the United States for construction, operation and maintenance costs incurred by it in connection with the project.

In appellants' complaint liability was predicated upon specified acts of negligence charged in respect to the construction and maintenance of the canal by the United States, which the complaint asserts, gave rise to liability under the Tort Claims Act of August 2, 1946.1 The pre-trial order, however, set forth that appellants claimed that under its contract with the Irrigation District the United States owed a duty to furnish this water to the plaintiffs who were the real parties in interest under the contract. Appellants also claimed they were entitled to recover, as for a tort, under the Tort Claims Act. They asserted that it was immaterial whether their claim was founded on contract or tort: that if the facts show a tort, the Act mentioned suffices; and if the facts developed indicate a contractual relationship, appellants are entitled to relief under the Tucker Act.2

The trial court held that it "makes no difference whether the Whites could sue on the contract or not, either in tort or contract", that "under the law of Oregon, by assuming the operation and maintenance of the canal, the Government became a common carrier of water. It thereby incurred the duty to use reasonable care to effect delivery to the Whites * * *. And, since this is all that the plaintiff asks of the Government, whether on the theory of contract, tort based on contract or as a result of the duty established by the laws of the state upon one assuming to act as common carrier of water * * * the same basis for recovery is laid." The court found that "it was the duty of defendant to exercise reasonable care at all times herein involved in the construction, operation, maintenance and repair of the north canal, including proper inspection and for all purposes pertinent in these cases." But the court also found that "The plaintiffs failed to prove by a preponderance of the evidence that the defendant failed to exercise that degree of care". Judgment was therefore for the United States.

Appellants say that the court erred in that it evaluated the evidence "on the basis of a pure tort instead of on the basis of omission to perform a contractual duty". They contend that the United States was obligated by its contract to deliver water to them; that when it failed to make delivery, it had the burden "to exculpate itself from liability". It is said that appellants made a prima facie case by "proving the contract and failure to deliver water in accordance with its terms and consequent damage to their crops", and that the court went astray in holding that they had the burden of proving that their loss was proximately caused by some negligence on the part of the United States or its representatives.

It is a short answer to this contention that the record discloses no such contract to deliver water to the appellants. The only contract proven was one between the United States and the Owyhee Irrigation District. And even if it could be said that it was a contract expressly made for the benefit of appellants and other landowners, and that therefore they might sue thereon, yet the only provision therein relating to delivery of water expressly negatives any liability for failure by the United States. It recites: "On account of drought, inaccuracy in distribution, or other causes, there may occur at times a shortage in the water supply for lands of the District, and while the United States will use all reasonable means to guard against such shortage, in no event shall any liability accrue against the United States, its officers, agents or employees for any damage, direct or indirect, arising therefrom, nor...

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9 cases
  • Clark v. United States
    • United States
    • U.S. District Court — District of Oregon
    • 23 Octubre 1952
    ...v. Manor Real Estate & Trust Co., 4 Cir., 176 F.2d 414. 7 28 U.S.C.A. § 1346(b). 8 The White case was affirmed by the Ct. of App., 9 Cir., 193 F.2d 505. 9 Todd v. Pacific Railway & Navigation Co., 59 Or. 249, 110 P. 391, 117 P. 300; Chambers v. Everding & Farrell, 71 Or. 521, 136 P. 885, 14......
  • Baker v. United States
    • United States
    • U.S. District Court — Southern District of Iowa
    • 13 Febrero 1964
    ...as to liability for negligence, Fair v. U. S., 234 F.2d 288 (5 Cir. 1956); as to the doctrine of res ipsa loquitur, White v. U. S., 193 F.2d 505 (9 Cir. 1951); as to the doctrine of respondeat superior, William v. U. S., 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Callaway v. Garber, ......
  • United States v. Marshall
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 22 Marzo 1956
    ...exists as to the United States. Air Transport Associates v. United States, 9 Cir., 1955, 221 F.2d 467, 471. See White v. United States, 9 Cir., 1951, 193 F.2d 505, 507. Negligence is ordinarily a question of fact to be resolved by the trier of fact. Ford v. Connell, 1949, 69 Idaho 183, 204 ......
  • Wright v. United States
    • United States
    • U.S. District Court — District of Montana
    • 27 Junio 1979
    ...Cir. 1963); United States v. Johnson, 288 F.2d 40 (5th Cir. 1961); United States v. Hull, 195 F.2d 64 (1st Cir. 1952); White v. United States, 193 F.2d 505 (9th Cir. 1951); United States v. Kesinger, 190 F.2d 529 (10th Cir. 1951). 3 United States v. Ridolfi, 318 F.2d 467 (2d Cir. 1963); Whi......
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