Ballam v. U.S., 86-1058

• Decision Date: 28 November 1986
• Docket Number: No. 86-1058,86-1058
• Parties: Loy Ree B. Marlowe BALLAM, Appellee, v. The UNITED STATES, Appellant. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1017

806 F.2d 1017

Loy Ree B. Marlowe BALLAM, Appellee, v. The UNITED STATES, Appellant.

Appeal No. 86-1058.

United States Court of Appeals, Federal Circuit.

Nov. 28, 1986.

Maria A. Iizuka, Dept. of Justice, Washington, D.C., argued for appellant. With her on the brief were F. Henry Habicht, II, Asst. Atty. Gen. and Robert L. Klarquist. Also on the brief were Vinton DeVane Lide, U.S. Atty., and Glen E. Craig, Asst. U.S. Atty., Columbia, S.C.

Augustine T. Smythe, Buist, Moore, Smythe & McGee, Charleston, S.C., argued for appellee. With him on the brief was Morris A. Ellison. Also on the brief was H.F. Bell, Chesterfield, S.C.

Before MARKEY, Chief Judge, NICHOLS, Senior Circuit Judge, and BISSELL, Circuit Judge.

NICHOLS, Senior Circuit Judge.

Appellee Ballam brought this suit in the United States District Court for the District of South Carolina under the "Little Tucker Act," 28 U.S.C. Sec. 1346(a)(2), claiming "just compensation," not over $10,000, for erosion of her upland, called by her a "taking" of it, resulting from waves on a portion of the inland waterway (Atlantic Intracoastal Waterway), running across it. This portion, unlike most of the waterway, is artificial, cut by the United States through her land pursuant to an easement so authorizing, granted by her predecessor-in-title in 1931 to South Carolina, and by it retransferred to the United States. The district court (Spears, J.), after trial, made findings and conclusions of law, upholding appellee's claim and awarding $8,804, of which $664 was for land already lost to erosion and the remainder for the anticipated cost of protecting the remainder by sloping and revetment. 552 F.Supp. 390 (1982). The United States appealed and we reverse. We hold no taking was shown and therefore no just compensation is due.

I

The waterway is an ambitious undertaking to create a safe sheltered passage along the coast for the smaller natures of vessels. It makes use mostly of natural waters inside the barrier islands, already there if needing dredging and buoys, but includes some artificial cuts such as that here involved. It does not involve use of any dams to raise the natural water level, which remains at or near that of the adjacent ocean, and thus the case does not present the "flowage easement" problem such as the Army Engineers often present to the courts in connection with their river improvements. Numerous "flowage easement" cases are strained and distorted by the parties herein to make them fit the instant issues.

The original grant of the easement to South Carolina by O.J. Bell, dated October 15, 1931, recites his awareness that by the Rivers and Harbors Act of 1930, Congress provided for a section of the waterway, from Cape Fear River, North Carolina, to St. Johns River, Florida, local interests to provide free of cost rights-of-way sufficient for the canal prism and the disposal of spoil therefrom. The easement as he granted it was 1,700 feet in length and 320 feet wide. As enlarged in 1941, the canal was about 235 feet wide at the "top" of the waterway. Ballam, who now owns but a part of Bell's original tract on the north side of the cut, has within it 58 feet of the unused portion of the right-of-way. Bell received $1 in consideration from the state which, in turn, granted the easement to the United States as all parties intended. The easement is--

[T]o enter upon, excavate, cut away, and remove any and all of [two tracts as specified by metes and bounds] as may be required at any time for construction and maintenance of the said inland waterway, or any enlargement thereof, and to maintain the portion so excavated and the channel thereby created as a part of the navigable waters of the United States; and the further perpetual right and easement to enter upon, occupy and use any portion of said [tracts, as above stated] not so cut away and converted into public navigable water as aforesaid, for the deposit of dredged material, and for such other purposes as may be needful in the construction, maintenance, and improvement of the said inland waterway; * * *.

There was also a waiver of damages as follows:

The grantor does hereby waive and release the grantee, its successors and assigns and its or their officers, agents, servants, and contractors from any and all claims for damages which may result from the construction and maintenance of the waterway and the deposit of spoil or other matter as hereinbefore stated; this waiver and release of damages being intended as a continuing covenant which shall run with the land and be binding upon the grantor and on his, her, its heirs, successors and assigns.

There is nothing express in this grant as to how erosion by wave action was to be dealt with; what is implied we consider later. There is no evidence the parties anticipated the problem. Erosion commenced, however, and is found to have been caused principally by the wash from vessels using the waterway. Another Mr. Bell commenced complaining on behalf of his family to the Army Engineers who had built the waterway and were operating it. A letter by the district engineer, February 5, 1976, to Mr. Bell, acknowledges that "erosion is a problem all along this portion of the waterway." He states, however:

A review of Federal responsibilities concerning bank erosion reveals that the Corps of Engineers is without authority to undertake works to control bank erosion on private lands bordering the Waterway.

He suggests they consult the South Carolina State Development Board--

[W]hich is the sponsor for the Waterway project and the agency designated to provide the items of local cooperation necessary for Federal participation in the project construction and maintenance.

Apparently the idea here is that having undertaken to provide necessary rights to the Federal Government without cost, South Carolina ought to bear this unforeseen cost. He ends, however, he will be pleased to advise Mr. Bell regarding what type of structure might be required to "combat your particular erosion problem." Translated from Bureaucratese, this appears to mean that Mr. Bell and those he represents must bear the revetment or like expenses that are needed themselves, or get them from South Carolina.

Mr. Bell filed this action in 1982, seeking damages not over $10,000 and injunctive relief. South Carolina was joined but dismissed on the ground it was not the party damaging the Ballam property, a determination not challenged in this appeal. The decision appealed from, after a trial before Judge Spears without a jury, holds that the United States cannot invoke a navigation servitude because its rights are derived from the easements granted and not from its sovereign rights to aid navigation. Even if they were, however, they would not include the right to erode "fast lands," which are well above high tide. He refused grant of an injunction, because the "Little Tucker Act" does not so provide.

The case then took an unfortunate turn. The government appealed to the Fourth Circuit although the Federal Courts Improvement Act, Pub.L. No. 97-164, was then in effect, and provided that jurisdiction of "Little Tucker Act" appeals resided here. 28 U.S.C. Sec. 1295(a)(2). The Fourth Circuit proceeded in all good faith to decide the case on the merits. 747 F.2d 915 (1984). It held for reversal by a divided panel. Ballam petitioned for certiorari and the Supreme Court vacated the judgment and remanded with directions to transfer to this court. --- U.S. ----, 106 S.Ct. 844, 88 L.Ed.2d 886 (1986). This has been done and so the case is here, all this time and litigation cost for $8,804. It is suggested, "to save judicial resources," we should adopt the vacated decision as our own, which possibly we could do by taking its words as ours, though we could not revive the jurisdiction of the Fourth Circuit. We agree generally with what it says, and are greatly aided by its analysis. However, we prefer to state our legal conclusion in our own words in view of our position as the sole appellate court to decide, under the Supreme Court, the meaning of the Tucker Act with respect to claims under the Constitution.

II

The district court and the Fourth Circuit both take up first the government's reliance on the clause waiving future claims for damages, according to them a threshold defense. Both say it is unavailable for that purpose. We agree on the simple ground that it does not clearly and unambiguously waive any claim except a claim against the government for doing what it is elsewhere given the right to do, i.e., to dig and maintain a canal and deposit spoil on the portion of the banks within the easement boundaries. We must construe the 1931 grant as a whole and not decide the case on this portion of it extracted from its context.

The government also relies on a defense under the statute of limitations. 28 U.S.C. Sec. 2401(a). When the right of action first accrued may turn, however, on what property right the government is supposed to have taken and by what act the government took it. We will, therefore, return to the statute of limitations issue after we have answered these basic questions.

III

Turning now to the merits, the question is often rhetorically stated to be whether the government may take, without compensation, all of Mrs. Ballam's upland beyond the easement line (appellee's brief at 30), or that she faces, if the government prevails, "potentially the loss of her entire property without compensation" (dissent of Judge Ervin, 747 F.2d at 920). The real issue, however, is much narrower. It is who, Mrs. Ballam or the government, must defray the cost, found to be $8,160, to provide a revetment stopping the erosion. This would protect a property found to be worth $65,000, and the government, having no wish to erode further, offered to assist her by advice if she elected to do it. It is only whether that cost should be shifted to the government that is at issue here.

It should go without...