B Amusement Company v. United States, Cong. 1-54.

• Decision Date: 20 January 1960
• Docket Number: No. Cong. 1-54.,Cong. 1-54.
• Citation: 180 F. Supp. 386,148 Ct. Cl. 337
• Parties: B AMUSEMENT COMPANY, et al. v. UNITED STATES.
• Court: U.S. Claims Court

180 F. Supp. 386

148 Ct. Cl. 337

B AMUSEMENT COMPANY, et al. v. UNITED STATES.

No. Cong. 1-54.

United States Court of Claims.

January 20, 1960.

Louis Kranitz, St. Joseph, Mo., for plaintiffs. Richard K. Lyon, Washington, D. C., was on the briefs.

Howard O. Sigmond, Washington, D. C., with whom was Perry W. Morton, Asst. Atty. Gen., for defendant.

WHITAKER, Judge.

This case is before the court pursuant to H.R. Resolution No. 475, 83d Congress, 2d Session, by which the court has been requested to determine whether plaintiffs have a legal or equitable claim against the United States, and the amount, if any, legally and equitably due thereon, and to report its conclusions to the House.

Plaintiffs sue to recover property losses and damages sustained by them as a result of a flood on the Missouri River in the vicinity of Kickapoo Bend south of St. Joseph, Missouri. The flood in question took place in March 1949 and resulted from the melting of an ice gorge which jammed the river in the vicinity of Iatan Bend. Plaintiffs' claims rest on the allegation that the ice gorge which caused the flood was in turn caused by certain pile dikes and revetments which had been negligently placed in the river by the Army Corps of Engineers for purposes of flood control and navigation.

The facts of the case show that the Missouri River in its natural state was a wide, meandering, braided stream which flowed through a flood plain or valley which varied in width from 2½ to 10 miles. The channel was composed of numerous, shallow, interlaced streams of varying width separated by bars and islands. By the Act of January 21, 1927 (44 Stat. 1010, 1013), Congress approved a plan for the improvement of the Missouri for purposes of navigation. By the acts of August 30, 1935 (49 Stat. 1028, 1034) and March 2, 1945 (59 Stat. 10, 19), the original plan was expanded and modified to provide for both a larger and deeper navigable channel as well as a plan for flood control.

To carry out these plans, it was necessary that the Corps of Engineers narrow and stabilize the river channel. This approach is the only one that is feasible on a river such as the Missouri. It is an alluvial stream and the only way it can be harnessed is to use its inherent qualities. Thus, the depth of the navigable channel is maintained by allowing the river to scour the bottom. To accomplish this, the width of the river is first narrowed and stabilized within the flood plain by the process of accretion. This is done by the location of pile or trail dikes placed parallel to the river bank and surrounded by rock fill. The river gradually deposits sediment around these dikes and thus creates an effective dam which forces the river down the designed channel and keeps it from meandering over the entire flood plain.

At the time of the flood in 1949, the designed channel, in the area in question, was composed of three bends which formed an ox yoke. The middle link is Iatan Bend joined upstream by Oak Mill Bend and below by Kickapoo Bend. Running off from Oak Mill Bend and Iatan Bend were two natural chutes or depressions, there before the Corps of Engineers started on the project, which tended to allow the river water to bypass the designed channel. These chutes were called Oak Mill Chute, which ran off on the Kansas side, and Iatan Chute, which bypassed the channel on the Missouri side. To contain the river within the design channel the Corps of Engineers placed pile dikes at the head of both Oak Mill and Iatan Chutes. At the time of the flood in the winter of 1948-1949 these dikes were not sufficiently high to dam off all of the water running into the chutes and some did bypass the design channel.

On the inner or Kansas side of Iatan Bend at approximately mile 422, there was a submerged pile structure, designated 437.3L. This structure had originally been designed to contain the channel existing prior to the flood of 1943. After that flood, the river changed its course. The engineers then adopted the new course, but this left structure 437.3L, which was originally on the Missouri side, along the Kansas bank. The engineers saw no reason to remove the structure, but merely shortened it so that it protruded only a few feet into the new design channel, and not at all into the navigation portion of the channel. In this position, it supported the Kansas bank.

Along the outer side of Iatan Bend the engineers had constructed a long curving pile dike which paralleled the Missouri shore, which constricted the water, so that its scouring action produced the necessary depth for navigation. The 1948 hydrograph shows that there was a very good navigation channel proceeding around the bend ranging in depth from 6 to 26 feet.

The Missouri River has ice on it each year and this has been a factor in most of the early spring floods. In December 1948 the first ice block on the river was observed between mile 476.5 and 478.5 approximately 50 miles up the river from Iatan Bend. By January 5, 1949 the ice had moved downstream and lodged at mile 421 on Iatan Bend at the point where Oak Mill Chute returns to the main channel. By January 8, the ice at mile 421 moved downstream, but it continued to hold fast immediately upstream at mile 422, approximately at the location of the submerged structure 437.3L. Ice continued to form in the river and by January 11, 1949 a block of ice extended from mile 421 to mile 434.5. There were also four other blocks of ice further upstream at this time. On January 15 and 16 various blocks of ice moved downstream and gorged at mile 422. This gorge held fast and by January 31 the ice had extended up the river for some 100 miles.

There was little movement of the ice gorge after this time until March. In February, the engineers made an effort to dislodge it with explosives, which proved unsuccessful. In late February, the weather warmed and the tributary streams began to thaw and rise, some even flooded. The Corps of Engineers issued flood warnings daily and advised all residents that when the ice moved out water levels would be unpredictable.

On March 6, 1949, at 3:45 a. m. the lower end of the ice from mile 422 to mile 428 went out; at 8:00 a. m. the block from mile 428 to 430 went out; and by 9:30 a. m. the rest of the long jam began to move. It was at this time that the flooding occurred on plaintiffs' properties.

Plaintiffs base their legal claims on two theories: first, that the flooding constituted a taking compensable under the ...