606 84 Acres of Land In Tarrant County, Texas v. United States

• Decision Date: 19 April 1971
• Docket Number: No. 1316,1316
• Citation: 28 L.Ed.2d 658,91 S.Ct. 1368,402 U.S. 916
• Parties: 2,606.84 ACRES OF LAND IN TARRANT COUNTY, TEXAS, and Frank Corn, et al. v. UNITED STATES
• Court: U.S. Supreme Court

402 U.S. 916

91 S.Ct. 1368

28 L.Ed.2d 658

2,606.84 ACRES OF LAND IN TARRANT COUNTY, TEXAS, and

Frank Corn, et al.

v UNITED STATES.

No. 1316.

Supreme Court of the United States

April 19, 1971

Rehearing Denied June 7, 1971.

See 403 U.S. 912, 91 S.Ct. 2203.

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, whom Mr. Justice BLACK joins, dissenting.

In 1945 Congress authorized the Benbrook Dam and Reservoir Project on the Clear Fork of the Trinity River near the southwest outskirts of Fort Worth, Texas. The authorization stated in part:

'The improvement of the Trinity River and tributaries, Texas, for navigation, flood control, and allied purposes is hereby approved and authorized in accordance with the reports contained in House Document Numbered 403, Seventy-seventh Congress.' § 2, 59 Stat. 18.

The project described in House Document 403 called for a gated spillway dam to be located on the Clear Fork at river mile 11.3. The storage capacity of the reservoir in acre feet of water was to be dead storage, 603; conservation storage, 30,603; and controlled (combined conservation and flood control) storage, 208,850. The elevation of the spillway crest was 672 feet and the top of the dam was 702 feet. Approximately 6,200 acres of land would have been required. Projected cost of the land was $483,600 and the entire project was estimated to cost about $5,205,502.

The project that was subsequently built bears little resemblance to the one described in House Document 403. It is located 3.7 miles farther upstream at river mile 15. It is an uncontrolled spillway type. The notch crest of the spillway is 710 feet, and the main spillway crest is 724 feet. The top of the dam is 747 feet. The storage capacity in acre feet of water as stated by the Definite Project Report is dead storage, 17,750; conservation storage, 88,250; and controlled storage, 410,013. Over 13,000 acres of land were acquired at a cost of about $2,500,000; total project cost was well over $14,000,000.

This case arose when the United States filed a petition for condemnation of petitioner's land in federal district court. Some 1,207 acres were finally sought. Of this land some lies below the elevation of 697.1 feet (conservation pool elevation, the maximum water level of the pool below flood stage). That land below elevation 697.1 is not involved in the case here. But some 647 acres lie above that elevation. The Army Corps of Engineers took that land for recreation purposes. Petitioners claim that taking is not authorized by law. Petitioners have consistently contended that the land was taken for recreation purposes and that was not authorized under statutes authorizing the Benbrook Project and that the project, as built, was so radically and materially changed that it had to be resubmitted to Congress for a new authorization.

Shortly after the Government filed its condemnation suit, petitioners' predecessor, Richardson, instituted discovery proceedings. The Secretary of the Army refused to submit and the District Court abated the cause with bare legal title left in the Government and possession restored to petitioner pending the Government's obedience to the court's discovery orders. The Court of Appeals for the Fifth Circuit affirmed this action. United States v. Richardson, 204 F.2d 552 (1953). The Government later submitted to discovery and discovery showed, as General Sturgis, former Chief of the Corps, admitted to a congressional subcommittee, that 'it could have been very embarrassing to have justified his [the Secretary's] certification of the public need of all this particular taking.'¹

As a result of a congressional investigation and discovery in this case certain facts about this case emerged. Petitioners allege that prior to 1953 the Corps had a 'field practice' of taking more property than was authorized in order to create land for purely recreational purposes. According to the District Court, 309 F.Supp. 887, almost simultaneously with the 1945 authorization the Corps in the present case began its plans for twice as much land as had been authorized with much of the excess for purely recreational purposes. Maps were prepared showing the locations of the recreational facilities. The final recreational plans for the project were in the form of Appendix VIII E to the Definite Project Report. In preliminary drafts certain proposed expenses were designated as 'for recreation,' but in final drafts they were credited to 'preparation of master plan.' Similarly the maps initially showed 'recreational areas,' but in final stages the label was changed to 'reservoir management.' In addition Appendix VIII E was stamped 'Not for Public Release.' According to the District Court, no other appendix was so classified. Id., at 896.

Justification for the excess land was necessary. The District Court found that to accomplish this, the Corps created the Great Storm and used its Great Storm as a basis for its spillway design on the dam as built. It is said that the storm will indeed be great, if it ever comes, dumping some 28.2 inches of rain in the area within a 60-hour period. The likelihood of this happening is said not to be high. Average annual rainfall in the area is 31.3 inches. The greatest storm ever recorded there dropped 12.57 inches in a 57-hour period. The District Court says the Great Storm was invented from a storm near Thrall, Texas in 1922. Thrall is 130 miles from the Gulf of Mexico and over 150 miles from the Benbrook Project. The Thrall storm dropped an uncertain amount of rain and reports of the amount increased as the years passed. The District Court found that in all probability about 18-19 inches were dropped in a three-day period in Thrall.

But even with the Great Storm, recordbreaking though it would be, the District Court found that the Corps could not justify the height of the spillway necessary to obtain the land it wanted for recreational purposes. But one Great Storm deserves another and that, it is said, is what the Corps postulated. The Great Storm was assumed to come right after another big storm had dropped large amounts of rain in the area, thus preventing any opening of the dam gates. Furthermore none of the spillway design criteria made any...