851 F.2d 1404 (Fed. Cir. 1988), 87-1405, Owen v. United States
| Citation | 851 F.2d 1404 |
| Party Name | William Eugene OWEN, as Executor of the Estate of Caroline Pearson Payne, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee. |
| Case Date | July 18, 1988 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Federal Circuit |
Page 1404
Page 1405
Kenneth A. Pels, Borzilleri, Baker & Pels, Washington, D.C., argued for plaintiff-appellant. With him on the brief was Andrew F. Reish.
Maria A. Iizuka, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were Roger J. Marzulla, Acting Asst. Atty. Gen., Frank W. Donaldson, U.S. Atty., Birmingham, Ala., Patricia N. Young and Martin W. Matzen. Also on the brief was Carolyn J. Lynch, U.S. Army Corps of Engineers, Washington, D.C., of counsel.
Before MARKEY, Chief Judge, FRIEDMAN, RICH, DAVIS, SMITH, NEWMAN, BISSELL, ARCHER and MAYER, Circuit Judges, [*] and BENNETT, Senior Circuit Judge.
BENNETT, Senior Circuit Judge.
Appellant William Eugene Owen, in his capacity as executor of the estate of Caroline Pearson Payne, 1 brought suit in the United States Claims Court against the United States, seeking compensation for losses allegedly incurred when dredging in the Tombigbee River by the Army Corps of Engineers (Corps) resulted in erosion which caused Payne's land and eventually her house to topple into the river. The Claims Court granted the government's motion for judgment on the pleadings, finding that the Tombigbee River was navigable water and that the government's activities were immunized from suit by its dominant navigational
Page 1406
servitude. Specifically, the court held that the decisions in Pitman v. United States, 457 F.2d 975, 198 Ct.Cl. 82 (1972), and Ballam v. United States, 806 F.2d 1017 (Fed.Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987), both of which were binding on that court, precluded any possible recovery of compensation for a Fifth Amendment taking under the facts alleged in the Payne complaint.
Having considered the present appeal in banc in order to clarify our precedents with respect to the scope of the government's navigational servitude, we now reverse the judgment of the Claims Court, overrule those portions of Pitman and Ballam which are inconsistent with the following opinion, and remand this case for further proceedings not inconsistent herewith.
BACKGROUND
The Tennessee-Tombigbee Waterway Project was initially authorized by Congress in 1946. 2 The design for the component of the project relevant to this appeal, the Demopolis Lake Navigation Channel to extend navigation between Demopolis, Alabama, and the Tennessee River, was approved on April 28, 1976. As part of that project component, the Corps dredged and widened portions of the existing channel of the Tombigbee River and increased the arcs of certain river bends. Prior to commencing construction on the Demopolis Lake Navigation Channel, the Corps knew that the redesign of the existing river channel would result in increased erosion and sloughing of some property adjoining the river bed. However, the Corps decided that the cost of conducting a preconstruction study to identify those areas most likely to be affected by the resulting erosion and sloughing would exceed the cost of any after-the-fact acquisition by inverse condemnation of property specifically affected by the construction. Therefore, no such study was made nor was any fast land condemned or acquired by the government prior to the actual construction, which took place between 1976 and 1978. See Payne v. United States, 730 F.2d 1434, 1435 (11th Cir.1984).
The Payne property was located on the banks of the Tombigbee River in Greene County, Alabama, along a portion of the river in which the construction took place. According to the complaint filed in this action, the Corps modified the course of the Tombigbee River "by dredging a large amount of the riverbed and the bank upstream and across from the Plaintiff's property." These actions allegedly caused the river channel to be somewhat straightened and the arc of the curve of the river bend upstream of the property to be increased. The complaint went on to allege that "[t]he activities of the United States Corps of Engineers caused the velocity of the current striking the riverbank adjoining the Plaintiff's property to be increased substantially." The alleged result of the increased river velocity was increased erosion of the river bank adjoining the Payne property to the point that the erosion eventually undermined her house and caused it to collapse into the river. According to the complaint, the house was uninhabitable after April 13, 1979.
In 1981, Payne brought suit in the United States District Court for the Northern District of Alabama, alleging that the government's construction activities constituted a taking of her property and were a violation of the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2674 (1982). The district court dismissed the Tucker Act taking claim without prejudice since Payne sought more than $10,000, the maximum permitted for Tucker Act claims brought against the United States in federal district courts. See 28 U.S.C. Sec. 1346(a)(2). The district court then granted the government's motion for summary judgment on the FTCA claim, holding that the FTCA's discretionary function exception, 28 U.S.C. Sec. 2680(a)
Page 1407
(1982), 3 immunized the government from liability.
On appeal, the Eleventh Circuit affirmed, holding that the government's decision not to conduct any preconstruction studies to determine the location and extent of damages likely to result from the construction was a discretionary decision of the type exempt from review under the FTCA. Payne, 730 F.2d at 1436-37. Although affirming the district court's decision holding the government immune from tort liability, the Eleventh Circuit noted that Ms. Payne had a remedy in the Claims Court in which she could pursue her inverse condemnation action under the Tucker Act, 28 U.S.C. Sec. 1491 (1982).
In February 1985, Ms. Payne filed the present action in the Claims Court. As noted, the government moved for judgment on the pleadings which was granted on the basis of the government's navigational servitude and the decisions in Pitman and Ballam.
OPINION
-
Standard of Review
Under the government's view of this case, it is very significant that the complaint contains no allegation or inference that the Corps raised the high-water level of the river or that the Corps had invaded Payne's property or otherwise caused the water to overflow her land. The government argues that the Fifth Amendment to the Constitution of the United States only mandates compensation for government takings of property, not for mere damage to property, and that there can be no taking without an actual physical invasion of the Payne property by the government. Furthermore, in the government's view, since all the construction occurred below the high-water mark within the bed of the river, any damage which resulted therefrom outside the river bed is merely indirect and consequential damage, which cannot be held to be a compensable taking in light of the government's dominant navigational servitude. Finally, the government argues that Payne had no property interest in the uninterrupted natural flow of the Tombigbee River as against the government's authority to improve navigation under its dominant servitude.
However, a motion for judgment on the pleadings should be granted only where "it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of his claim." Branning v. United States, 215 Ct.Cl. 949, 950 (1977). Thus, regardless of whether the trial court is convinced that the plaintiff is unlikely to prevail at trial, the court should only grant a defendant's motion for judgment on the pleadings if the defendant is clearly entitled to judgment on the basis of the facts as the plaintiff has presented them. Therefore, in reviewing the grant of a judgment for the defendant on the pleadings, we must assume each well-pled factual allegation to be true and indulge in all reasonable inferences in favor of the nonmovant, Ms. Payne. See Jewelers Vigilance Comm., Inc. v. Ullenberg Corp., 823 F.2d 490, 492, 2 USPQ2d 2021, 2023 (Fed.Cir.1987); Wager v. Pro, 575 F.2d 882, 884-85 (D.C.Cir.1976).
-
The Central Issue
We agree that, for the purposes of this appeal, we must assume that the erosion resulting from the increased velocity of the Tombigbee River against the appellant's land occurred below the high-water mark. Furthermore, it is also undisputed here that there was no direct overflow of the appellant's property as it was erosion occurring below the high-water mark which undermined the land and house located above the high-water mark to the point that both land and house fell into the river. However, despite no allegation that the Corps itself invaded Ms. Payne's property,
Page 1408
in our view the complaint contains quite a sufficient allegation of a governmental invasion of Ms. Payne's property since we must assume as true the allegation that the increased erosion of appellant's land was due to the government's construction activities. 4 We recognize, however, that a sufficient allegation of government invasion of appellant's property alone is not enough to support the conclusion that a compensable taking may have occurred under the facts as alleged in Payne's complaint. The critical issue to be resolved here is whether the circumstances set forth in the complaint could possibly constitute a compensable taking when viewed, as it must be, in light of the government's dominant navigational servitude and the related Supreme Court caselaw binding on this court.
-
The Navigational Servitude
The nation's navigable waters have always been considered "public property" and since the early days of the nation...
To continue reading
Request your trial
-
This is unprecedented: examining the impact of vacated state appellate court opinions.
...as ours.... We agree generally with what it says, and are greatly aided by its analysis."), overruled on other grounds, Owen v. U.S., 851 F.2d 1404, 1416 (Fed. Cir. 1988); see also Nez Perce Tribe, 847 F. Supp. at 808 ("The Court is of the view that the rationale of the [vacated] opinion is......