Korgel v. U.S.

• Decision Date: 21 April 1980
• Docket Number: No. 79-1310,79-1310
• Citation: 619 F.2d 16
• Parties: Albert KORGEL and Margaret Korgel, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 16

619 F.2d 16

Albert KORGEL and Margaret Korgel, Appellants, v. UNITED STATES of America, Appellee.

No. 79-1310.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 6, 1979.

Decided April 21, 1980.

Jon R. Kerian, Bosard, McCutcheon, Kerian, Schmidt, Holum & Rau, Minot, N. D., filed brief for appellant.

James R. Britton, U. S. Atty., and Herbert A. Becker, Asst. U. S. Atty., Fargo, N. D., filed brief for appellee.

Before GIBSON, Chief Judge, ^* and STEPHENSON and HENLEY, Circuit Judges.

HENLEY, Circuit Judge.

Plaintiffs-appellants brought suit in the United States District Court for the District of North Dakota under the Federal Tort Claims Act (FTCA) for flooding allegedly caused by the government's construction and operation of the Minot Air Force Base in North Dakota. At the close of the plaintiffs' case defendant moved to dismiss on the ground that the statute of limitations contained in the FTCA barred recovery. The court granted the motion and plaintiffs appeal. We affirm.

I.

The present controversy stems from the flooding of approximately 360 acres of plaintiffs' farmland following the start of construction on the Minot Air Force Base which is located a mile and a half north of the plaintiffs' land. The flooding apparently occurred because of the surcharging of ground waters by the construction and operation of the Air Force Base. As the district court explained, the runoff from the construction of concrete sidewalks, streets and runways together with the daily use of over a million gallons of water caused an impervious curtain or "slug" of water to saturate the area below the Minot Air Force Base. This in turn blocked the flow of water in subsurface channels. As a result of this impediment, the water table rose and this caused water to collect on the Korgels' land.

Although the Korgels' land was lower than the lowest point available for much of the water to escape on the surface, prior to construction of the base water had always drained off the Korgels' property through subsurface outlets. Even when the Korgels' land was flooded by heavy precipitation from 1950-53, the land was still useful for farming by 1954. But the flood waters caused by the Air Force Base surcharging did not materially recede from the time they first impounded on the plaintiffs' land in 1969. ¹

It was not until October, 1976, however, that the plaintiffs took any action. On October 7, 1976 plaintiffs filed a damage claim with the Department of the Air Force for damages in the amount of $600,000.00. ² Because the Air Force did not act on their claim, they filed suit against the United States on August 5, 1977 under the FTCA, 28 U.S.C. §§ 1346(b), 2671 et seq., claiming damages in the amount of $350,000.00 for negligently and wrongfully causing water to impound upon their land. Trial commenced in January of 1979, but the case was dismissed because the district court found the plaintiffs' cause of action accrued in 1969 and under the applicable statute of limitations, 28 U.S.C. § 2401(b), the suit was not timely filed. 28 U.S.C. § 2401(b) provides:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

II.

On appeal plaintiffs first argue that 28 U.S.C. § 2401(b) is inapplicable where, as in the present case, there has been a taking of real property for which the fifth amendment of the Constitution requires compensation.

Plaintiffs' argument, however, is badly flawed; the plaintiffs did not advance nor could they have advanced this nontort claim in the district court, ³ Lenoir v. Porters Creek Watershed Dist., 586 F.2d 1081, 1087-88 (6th Cir. 1978); Sherar v. Harless, 561 F.2d 791, 794 (9th Cir. 1977); Myers v. United States, 323 F.2d 580, 583 (9th Cir. 1963), and it is established that a reviewing court will generally consider a case only on the theory upon which it was tried in the trial court.

III.

Plaintiffs additionally argue that even if § 2401(b) does apply to the present case, the statute of limitations had not run at the time they brought suit. Plaintiffs contend that this case involves a continuing trespass because new flooding occurs annually, and thus they had a new cause of action each year and are at least entitled to recover for injuries subsequent to October 7, 1976. Furthermore, plaintiffs claim that even if they cannot bring successive lawsuits, their single cause of action did not accrue, as the district court concluded, in 1969.

We are not persuaded by plaintiffs' arguments. As to plaintiffs' contention that the statute of limitations had not run because the flooding was a continuing trespass, we note that where all damages both past and future can be presently estimated and recovered in one action, successive action cannot be brought for recurring or continuing damages. Rygg v. United States, 334 F.Supp. 219 (D.N.D.1971). Cf. United States v. Dickinson, 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947); Konecny v. United States, 388 F.2d 59, 65 (8th Cir. 1967). See generally 54 C.J.S. Limitations of Actions § 169, p. 128. Because the flood waters had not materially receded since they impounded on the Korgels' farmland and caused a permanent injury of a direct and complete character, we conclude that the Korgels did not have a new cause of action each year.

We are also unconvinced by plaintiffs' claim that they did not, and in the exercise of reasonable diligence, could not have discovered they had a cause of action until many years after the time of the initial flooding in 1969.

We note that it is questionable whether the test in the instant case to determine when the cause of action accrues depends on claimants' awareness of a cause of action. A similar test was rejected by the Supreme Court in the medical malpractice context, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the area in which courts have typically shown the greatest willingness to extend the limitations period. Id. 100 S.Ct. at 358 n.7. It thus seems doubtful that we should take the liberty in this case to extend the general rule that a tort claim accrues at the time of the plaintiff's injury. Id. at 359; Rygg v. United States, supra, 334 F.Supp. at 221. ⁴

But even in applying plaintiffs' test to the present case, it is clear that the plaintiffs still fail to establish a timely claim. After carefully reviewing the record, we are convinced that plaintiffs did discover, or in the exercise of reasonable diligence, could have discovered they had a cause of action more than two years prior to October 7, 1976, the date when the suit was commenced. We note that by 1974 the Korgels' valuable farmland had been inundated for approximately five years and the flood waters had not materially receded during this period. Further, it had become common knowledge in the area that the Air Force Base...