Best v. United States
| Decision Date | 20 November 1980 |
| Docket Number | No. 78-25-CIV-8.,78-25-CIV-8. |
| Citation | 505 F. Supp. 48 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Karl M. BEST, Plaintiff, v. UNITED STATES of America, Defendant. |
Tommy W. Jarrett of Dees, Dees, Smith, Powell & Jarrett, Goldsboro, N. C., for plaintiff.
James L. Blackburn, First Asst. U. S. Atty., Raleigh, N. C., by William Woodward Webb, Asst. U. S. Atty., Raleigh, N. C., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This action which was filed on June 14, 1978, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., came on for trial before the Court without a jury at New Bern, North Carolina, on November 3, 1980. The plaintiff, Karl M. Best, was present in court and through his counsel, Tommy W. Jarrett, Esquire, and the defendant was represented by Assistant United States Attorneys William Woodward Webb and Dennis I. Moore. In his original Complaint the plaintiff alleged, in essence, that on or about May 1, 1977, an employee or employees of the defendant, acting within the scope of their office and employment while in the operation of government aircraft, dumped on his property a large quantity of aircraft fuel or other toxic substance causing the destruction of 19.8 acres of corn thereby damaging him in the amount of $5,564.00. On November 6, 1980, the plaintiff, pursuant to Rule 15 of the Federal Rules of Civil Procedure and by leave of the court filed an Amendment to Complaint claiming, inter alia, that the defendant through its alleged actions on or about May 1, 1977, violated the "taking clause" of the Fifth Amendment to the Constitution of the United States of America and should, therefore, pay to him just compensation for his losses.
The contested issues for trial by the Court were stated in the final Pre-Trial Order dated October 21, 1980, and agreed to by counsel as follows:
A new issue has, of course, now emerged as a result of the Amendment to Complaint filed on November 6, 1980. That issue, as framed by this Court, is quite simply:
Did the defendant, through the actions of its employees, take the plaintiff's property without paying just compensation therefor in violation of the Fifth Amendment to the Constitution of the United States of America?
At the completion of the plaintiff's evidence and again at the close of all the evidence, the defendant moved, under Rule 41(b) of the Federal Rules of Civil Procedure, to dismiss this action on the ground that upon the facts and the law the plaintiff had shown no right to relief. This motion was taken under advisement by the Court. On the basis of the stipulated facts, the evidence of the parties offered and accepted in open court, and the argument of counsel, the Court now makes the following
1. During the 1977 crop year the plaintiff was the lessee of a certain farm owned by Delphia Rose Smith which was and is located on the Arrington Bridge Road about six miles south of Goldsboro, North Carolina, and about three miles south of Seymour Johnson Air Force Base.
2. During the 1977 crop year the plaintiff had planted and had in cultivation two fields of corn on the Smith farm, one field having a total acreage of 14.2 acres, and the adjoining field having a total acreage of 12.1 acres.
3. On or about May 27, 1977, the plaintiff was advised by two friends that they had discovered that his corn crop on the Smith farm was deteriorating. The plaintiff himself had not been out to the farm since the end of April, 1977.
4. The plaintiff, upon being so advised, immediately went out to the Smith farm where he observed and smelled an oily substance on the corn crop. The exact area of the deterioration was oval shaped and covered several acres on both fields. The plaintiff also saw that treetops on adjacent property were damaged.
5. Not surprisingly, Government aircraft constantly traversed the area around Goldsboro and Seymour Johnson Air Force Base which, of course, includes the Smith farm, and for that reason it was and is the plaintiff's belief that the oily substance on the corn emanated from a fuel or other toxic substance dump by one of these aircraft on or about May 1, 1977.
6. The plaintiff did not see a Government airplane drop any fuel or other substance on or in the vicinity of his corn crop in May, 1977, nor does he know of anyone who did. In point of fact, neither the plaintiff nor any other person observed any fuel or substance dumping by any aircraft on or in the immediate vicinity of the corn crop in May, 1977.
7. Private air traffic, such as cropdusters and cargo airplanes, is and was also allowed in the area encompassing the Smith farm, but there is no evidence before the Court that such air traffic was or was not responsible for any dumping on the plaintiff's crops in May, 1977, or at any other time.
8. The plaintiff did not have any tests conducted to determine what the oily substance on the corn consisted of or what its origin might be.
9. The two witnesses for the plaintiff, Frank H. Baker and Durwood Davis, both testified that they made visits to the Smith farm in May of 1977, after the deterioration of the plaintiff's corn was discovered, and also observed an oily substance on the crop, adjacent treetop damage, and an oval shaped pattern to the deterioration.
10. Mr. Baker additionally testified that the trees and the corn were damaged on their eastern sides and that it was his opinion that the damage had been caused by "windborne oil," but "where it came from, I don't know."
11. Mr. Davis likewise opined that windborne oil had caused the damage and similarly confessed ignorance as to the source of the oil.
12. Neither witness, both of whom were employed by the Wayne County Agricultural Stabilization and Conservation Service in May of 1977, conducted tests on the corn crop or surrounding soil to determine the nature or origin of the oily substance.
13. The plaintiff filed his administrative claim with the Department of the Air Force on June 2, 1977, and said claim was denied on January 9, 1978.
14. The only reported incident of a fuel dump by an employee of the defendant during the month of May, 1977, occurred on May 12, 1977. On that date, Lieutenant Colonel, then Major, Jerry Sharpe, as he so testified at trial, was operating an F-4 phantom jet in a flight pattern which took him initially due west of Seymour Johnson Air Force Base and then to the north/northwest, just south of Rocky Mount, North Carolina. At that point Major Sharpe refueled from a tanker but immediately discovered a mechanical failure necessitating the dumping of a substantial quantity of fuel in order to land the aircraft. Accordingly, he commenced dumping fuel as he proceeded to descend, in a south/southeast direction, from 22,000 feet to 6,000 feet, whereupon he began a circular pattern continuing to dump fuel. Lieutenant Colonel Sharpe testified that when he completed his fuel dump, his aircraft was at 1320 L, 17202 at 3529° N, 7732° W, 6,000 feet altitude, traveling at 310 knots, dumping 650 pounds of fuel per minute or a total of 8,000 pounds of JP-4 fuel (the standard Air Force jet fuel). He also...
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