Bistline v. United States

• Citation: 640 F.2d 1270
• Decision Date: 28 January 1981
• Docket Number: No. 296-77.,296-77.
• Parties: Stephen BISTLINE et al. v. The UNITED STATES.
• Court: Court of Federal Claims

640 F.2d 1270

Stephen BISTLINE et al. v. The UNITED STATES.

No. 296-77.

United States Court of Claims.

January 28, 1981.

Thomas A. Mitchell, Coeur d'Alene, Idaho, attorney of record for plaintiffs.

Dorothy R. Burakreis, Washington, D. C., with whom was Asst. Atty. Gen. James W. Moorman, Washington, D. C., for defendant.

Before COWEN, Senior Judge, and KUNZIG and SMITH, Judges.

ON PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT

COWEN, Senior Judge:

Plaintiffs brought this action to recover damages of $195,000 for the alleged inverse condemnation of 6.4 acres of lakefront property owned by them on Lake Pend Oreille in Northern Idaho. Plaintiffs claim that the construction and operation of the Albeni Falls Dam Project (hereafter the project) by the Corps of Engineers have caused their property to wash away or erode since they purchased it in 1970, some 18 years after the project was put in operation. Specifically they assert that the taking of their property was effected in January of 1972 and June of 1974 by the operation of the project, when adverse storm winds coupled with project waters, cut away the banks of plaintiffs' land above the limits of the flowage easement held by the government and washed portions of their property into the reservoir maintained by the Corps of Engineers. According to plaintiffs, one acre of their land has been washed away. The facts essential to the disposition of this case on the motions for summary judgment are not in dispute. For the reasons to be set forth, we find that there was no Fifth Amendment taking of plaintiffs' property and that defendant's cross-motion for summary judgment should be granted.

I.

The Albeni Falls Dam and Reservoir Project was authorized by the Flood Control Act of May 17, 1950, Pub.L. 516, 81st Cong. 2d Sess., for the regulation of Lake Pend Oreille and for the associated purposes of flood control, navigation, conservation, recreation, and power generation as a part of a comprehensive plan of improvement for the Columbia River system.

The project included a concrete gravity structure with a spillway section occupying the left channel of the Pend Oreille River and a powerhouse. The normal full reservoir pool was established at elevation 2,062.5 feet above mean sea level (m.s.l.). In Senate Document No. 9, 81st Cong., 1st Sess., a report entitled "Improvement At Albeni Falls On The Pend Oreille River, Idaho," it was stated that elevation 2,062.5 feet would be the maximum regulated elevation of Pend Oreille Lake. The report also stated:

Of the total reservoir area at elevation 2,062.5, only some 6,300 acres lie outside the existing meander lines of Pend Oreille Lake and River. These are to be acquired for project purposes. Some additional area will be required for freeboard along the shores of the reservoir to provide against wave wash, ground-water effects, and special severance damages.* * *

It was estimated that the spillway, as designed, would reduce "by amounts up to 1.5 feet the flood levels of Pend Oreille Lake for all floods which, under natural conditions, would cause lake stages between elevation 2,062.5 and elevation 2,076.1 * *."

This history of the area shows that such floods as those which occurred in 1894 and 1948 reached elevations in excess of 2,067.5. In those years, the elevation of the Lake reached 2,075.88 and 2,071.62 feet respectively. If those floods had occurred under post-project conditions, the maximum Lake level would have been 1 to 2 feet lower.

It is undisputed that since the project was completed, it has continuously been operated within the limits authorized by Congress. The project went into operation in 1952. Since that time, the Lake elevation has not, through operation of the Albeni Falls Dam, exceeded 2,062.5. The maximum elevation of the Lake since the project was completed was 2,065.72 feet; this occurred on June 12, 1972, when the gates of the Dam were fully open and the project was not controlling the Lake discharge. The level of the Lake was lower then than it would have been without the Albeni Falls Dam.

On May 21, 1952, through a document entitled "Warranty Easement," the government acquired from George and Emma Munding, plaintiffs' predecessors in title, a flowage easement on the land in issue here. The area covered by the government's easement included the entire 6.4 acres of land by metes and bounds, and thus the description was sufficient to include lands lying above elevation 2,067.5 feet. The easement acquired from the Mundings by the government provided in pertinent part as follows:

Said right of way and easement are for the following purposes and in accordance with the following terms and conditions:

The full perpetual right, power, privilege and easement to intermittently overflow, flood and submerge those portions of the hereinabove described lands lying above elevation 2062.5 feet above mean sea level, United States Coast and Geodetic Survey Datum, with waters of Lake Pend Oreille, the Pend Oreille River and their tributaries and for any length of time to impound upon, overflow, flood and submerge those portions of the hereinabove described lands lying below elevation 2062.5 feet above mean sea level with the waters of Lake Pend Oreille, the Pend Oreille River and their tributaries, all in the construction, operation and maintenance of the Albeni Falls Dam, its appurtenances, reservoir and overflow areas.

* * * * * *

The Grantors in consideration of the specified sum above written, do hereby release the United States of America, and its assigns, from all claims for damages that have accrued or may hereafter accrue to any or all of the above described lands by reason of the overflow of water occasioned by the construction and operations of the said Albeni Falls Project on the Pend Oreille River, Idaho, or by the exercise of any or all of the rights, powers, privileges and easements hereinabove granted.

And the above named Grantors, do hereby covenant that the above described premises are free from all encumbrances and that they will and their heirs, executors and administrators shall warrant and defend the above premises against all lawful claims and demands except: Existing easements for public roads and highways, for public utilities, for railroads and pipelines. Provided, however, that the above warranty provision shall not apply to Grantors' interests in lands not specifically described above and assigned acreages.

The United States of America and its assigns, by the acceptance of this grant, do agree that there is hereby reserved to Grantors, their heirs or assigns, all such rights and privileges in and to the above described lands as may be used and enjoyed without interfering with or abridging the rights and easements herein granted, provided that no dwelling or other structure maintain for human habitation or occupancy on the above described lands shall have a first floor elevation of less than 2067.5 feet above mean sea level.

In June 1970, plaintiffs acquired the land, subject to the government's flowage easement, for the sum of $20,200. No survey of the property was conducted by plaintiffs prior to 1974.

II.

In an effort to overcome the formidable obstacle presented by the easement granted by the Mundings, plaintiffs have submitted a number of affidavits. The affiants include former government attorneys, the plaintiff Stephen Bistline, and a private practitioner. All of the affidavits relate to condemnation actions and settlement negotiations involving other lands upon which easements for the operation of the project were acquired at other times. The purport of these affidavits is that in the acquisition of such other easements, it was the government's position and the understanding of the landowners that the amounts paid for the easements were to compensate the owners for the actual flooding and taking of the land lying below an elevation of 2,062.5 feet m.s.l.; that the easements taken in the area between elevations of 2,062.5 and 2,067.5 feet were primarily intended to provide compensation for any erosion that would result from wave action and that it was not contemplated that there would be a taking of the land above 2,062.5 feet through intermittent flooding. Also, it was not considered that there would be any possibility of damage to or taking of land above an elevation of 2,067.5 feet as a result of flowage of waters, wave action or erosion. The affidavit of plaintiff, Stephen Bistline, contains similar statements; in addition, he avers that there never was any contention by the government that it acquired any right whatever to any property above elevation of 2,067.5 feet.

It is quite clear that these affidavits are in conflict with the unequivocal language of the easement which, as shown above, granted to the government the perpetual right to intermittently overflow, flood and submerge all of the subject land lying above elevation 2,062.5 feet m.s.l. The release clause did not specify that the right to the intermittent flooding of the land was limited to a specific contour elevation. On the contrary, the release applies to all of the land, including that below and above elevation 2,062.5 feet m.s.l. The release is couched in comprehensive terms. It relieved the government "from all claims for damages that have accrued or may hereafter accrue to any or all of the above described lands by reason of the overflow of water occasioned by the construction and...