Carvin v. Arkansas Power and Light Co.
| Decision Date | 02 March 1994 |
| Docket Number | Nos. 92-1984,92-2000,s. 92-1984 |
| Citation | 14 F.3d 399 |
| Parties | Eugene CARVIN; Donna Carvin, on behalf of themselves and all others similarly situated; James H. Breashears; Sharlene G. Breashears; Clifton E. Buck; Frances M. Buck; Dennis Carvin; Sara E. Bentley; Milton Couch; Janet M. Couch; Edwin C. Coulson; Anna Jeanette Coulson; Howard Cranford; Janice Cranford; Hazel Goodman; Jimmy W. Harris; Sandra D. Harris; Guy M. Hauser; James D. Honold; Willie Mae Honold; M.L. Hooper; Unknown Spouse of M.L. Hooper; Michael L. Hulsey; Unknown Spouse of Michael L. Hulsey; Effie Jenkins; Donna M. Johnson; Charles B. Joplin; Clarice M. Joplin; Fred B. Kruse; R. MacLambert; Patricia Lambert; T.M. McGregor; Aileen McGregor; Michael E. Mitchell; Brownie K. Mitchell; Russell A. New; Joe N. Nowell; Patsy M. Nowell; A.W. O'Keefe; Wayne Parsons; Roxanne M. Parsons; James W. Raney; Norma J. Raney; Evelyn W. Ray; John W. Rayfield; Lucille M. Rayfield; Terry J. Rickard; Patsy Rickard; Clark B. Robertson; Ruby Robertson; B.E. Rust; Kenneth M. Schnoeblen; Jean Schnoeblen; Leon E. Scott; Unknown Spouse of Leon E. Scott; Billy J. Smallwood; Mary S. Smallwood; Hoyt W. Smart; Virginia A. Smart; William F. Smith; William H. Stovall; Patricia Lee Stovall; A.W. Taylor; Lois Irene Taylor; Donna J. Whistle; Jerry S. Yahoda; Jane L. Yahoda; Chester I. Ziemienski; Anna Q. Ziemienski, Plaintiffs-Appellants, v. ARKANSAS POWER AND LIGHT COMPANY, an Arkansas Corporation, Defendant-Appellee, Federal Signal Corporation, an Illinois Corporation, Defendant, Entergy Services, a Delaware Corporation, Defendant-Appellee. Martin D. DANFORD; Faye A. Danford; Anthony Dematteo; Nancy Dematteo; Stanley P. Dodd; Sally P. Dodd; Harry D. Peterson; Elaine R. Peterson, Plaintiffs-Appellants, v. ARKANSAS POWER AND LIGHT COMPANY, an Arkansas Corporation; Entergy Services, Inc., a Delaware Corporation, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Clark W. Mason, Little Rock, AR, argued, for Anna Ziemienski; Stephen Boynton, Washington, DC, argued, for Elaine R. Peterson (John P. Lewis and Wm. Roberts Wilson, on brief), for appellants.
William H. Sutton, Little Rock, AR, argued (Walter A. Paulson, II, on brief), for appellees.
Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BATTEY, ** District Judge.
In this diversity case, two groups of landowners appeal from a summary judgment denying their claims for real and personal property loss caused by a flood, which they claimed resulted from the negligence of the Arkansas Power & Light Company and Entergy Services, Inc. The district court 1 entered summary judgment for AP & L because the plaintiff landowners held the land subject to flowage easements in favor of AP & L. On appeal, the landowners argue that the easements do not affect their negligence claims, that AP & L breached a statutory duty owed them, that AP & L was estopped from exercising its easement rights, and that the defendants breached their duty to warn the landowners of the flood. We affirm the judgment of the district court.
These cases arise out of a flood on Lake Catherine on May 19-20, 1990. Lake Catherine is third and smallest in a series of three lakes created by hydroelectric dams on the Ouachita River near Hot Springs, Arkansas. The dam farthest upstream is Blakely Mountain Dam, an Army Corps of Engineers dam which creates Lake Ouachita, the largest lake in the chain, at a normal volume of 2,151,000 acre feet with flood control volume of an additional 617,000 acre feet. AP & L owns and operates the next two dams, Carpenter Dam and Remmel Dam, and the lakes they create. The lake behind Carpenter Dam is Lake Hamilton, maintained at 399 feet above sea level, with a normal volume of 190,560 acre feet. Lake Catherine lies below Carpenter Dam and is created by Remmel Dam. Lake Catherine's normal pool elevation is maintained at 305 feet above sea level and its normal pool volume is 36,700 acre feet.
Entergy Services, Inc. acted as the agent of AP & L in supervising the release of water from Carpenter and Remmel Dams. Entergy is a sister corporation to AP & L, so we shall refer to them collectively as AP & L.
Though at the time Remmel Dam was built, the land surrounding Lake Catherine was primarily woods and pastures, there has since been extensive development on the shores of Lake Catherine, ranging from mobile homes to lake houses.
On May 19 and 20, 1990, extraordinarily heavy rains fell in the Ouachita River Basin, especially over the lower end of Lake Hamilton and much of Lake Catherine. In the twelve-hour period from 6:00 p.m. May 19, 1990 to 6:00 a.m. May 20, 1990, there was rainfall of ten inches at Carpenter Dam, seven inches at Remmel Dam, and twelve inches in nearby Hot Springs, with most of the rain falling between 8:00 p.m. and 3:00 a.m. The pool elevation on Lake Hamilton was 399.16 feet above sea level at 8:00 p.m. on May 19, but after four hours, had risen to 402.12 feet, and was still rising. During this time the gates on Carpenter Dam were opened in order to avoid flooding on Lake Hamilton. The combination of the discharge from Lake Hamilton and the inflow of rain from Lake Catherine's drainage area flooded the shores of Lake Catherine. The tail water from Carpenter Dam rose from a normal elevation of 305 feet, to an elevation of 331 feet by 4:00 a.m. on May 20. Before the flooding, the pool elevation at Remmel Dam was near normal at 304.33 feet, but the pool at Remmel Dam crested at 7:00 a.m. on May 20 at an elevation of 317.50 feet, although all spillway gates were fully opened by 3:00 a.m.
The flowage was estimated as the highest ever known in the area, although the gauge that would have made the measurement was destroyed when the flood carried it away. The highest record of flow recorded was 140,000 cubic feet per second in 1923, and the United States geological survey, calculating from high water marks at the lost gauge's former location, estimated the flow as at least 166,000 cubic feet per second. The flood caused massive damage to the landowners' real estate around the lake and to personal property left there, since the water went up to the roofs of many houses.
The landowners held their property subject to flowage easements created by reservations in the deeds to their predecessors in title, by outright purchase from their predecessors in title, or in one case, by court decree in a condemnation case. At the time Remmel Dam was built in 1923-24 and when the project was expanded in 1947 (and even later in some cases), AP & L systematically purchased and reserved easements on all the land adjacent to Lake Catherine permitting flooding to the levels it determined could be flooded in a "worse case scenario," using a study conducted during construction of Remmel and Carpenter Dams. The language of the easements varied, but all reserved or conveyed flowage and submersion rights either to a certain elevation varying according to location along the lake, or covering the entire parcel.
The instruments fall into several general categories. First, there were easements by reservation in which AP & L conveyed property, reserving:
the right to use and to appropriate and to clear of brush and trees and other obstructions and to submerge by water, all lands lying ... below the elevation of 307 feet above mean sea level. 2 ... It is herein expressly reserved, however, to the grantor, its successors and assigns, the right to flood any part of said lands by water or waters impounded by a dam or dams now or thereafter constructed and/or maintained across the Ouachita River.... It is also expressly agreed that the grantor ... shall not be liable for damages to said lands or to other property placed on said land by reason of construction or maintenance or operation of such dam or dams....
(Emphasis added.)
The second form used is a simple reservation of "the right at all times to flood any and all of said lands " (emphasis added) and provides that AP & L "shall not be subject to damages on account of floods from natural or other causes...."
The third form is a grant of easement to:
use, to appropriate, to clear of trees, brush and other obstructions and to submerge by water the following described lands ... these acreages being those portions of the above described tracts which would be flooded by or surrounded by waters impounded by a dam proposed to be constructed on the Ouachita River, when said waters are raised to an elevation [the specified elevation varies from deed to deed, ranging from elevations of 315 to 329 feet above mean sea level.]
(Emphasis added.)
One other parcel is covered by a reservation of "all flowage rights reserved [in a previous instrument] up to the 320 foot contour line."
Finally, the easement created by condemnation decree gives "the right and privilege of overflowing said lands with water impounded by said dam, all of the above described lands that may be overflowed with such water [those at and below 317 feet m.s.l.]." (Emphasis added.)
The landowners do not contest that the instruments creating the easements were validly recorded.
After the flood, the landowners in this appeal as well as other plaintiffs brought suit, claiming that AP & L was negligent in managing Lake Catherine's level, in that AP & L opened the gates on Carpenter Dam without opening the Remmel Dam gates at the same time. The landowners also claimed that AP & L failed to adequately warn them of the sudden inundation in order to permit them to remove their personal property from the area. Further, they claimed that Ark.Code Ann. Sec. 15-22-210(1), imposed a duty on AP & L to protect them. Finally, the landowners argued that AP & L is estopped from flooding their land because AP & L permitted them to build improvements on the land and supplied electricity to their houses...
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