Clemones v. Alabama Power Company

• Decision Date: 11 January 1966
• Docket Number: Civ. A. No. 1538.
• Citation: 250 F. Supp. 433
• Parties: W. M. CLEMONES and James Highfield, Plaintiffs, v. ALABAMA POWER COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

250 F. Supp. 433

W. M. CLEMONES and James Highfield, Plaintiffs, v. ALABAMA POWER COMPANY, Defendant.

Civ. A. No. 1538.

United States District Court N. D. Georgia, Rome Division.

January 11, 1966.

Parker, Clary & Kent, Rome, Ga., for plaintiffs.

Matthews, Maddox, Walton & Smith, Rome, Ga., for defendant.

SIDNEY O. SMITH, Jr., District Judge.

This is a removal case in which plaintiff Highfield, as a long-term tenant of certain river-bottom lands on the Coosa River, owned by plaintiff, Clemones, seeks to recover damages for flooding, which he contends was caused by the defendant Alabama Power Company, which erected in 1961 the Weiss Dam downstream on the river. By prior motion for summary judgment, the defendant has raised two questions: (1) lack of jurisdiction on the grounds that defendant is not doing business in Georgia and (2) lack of jurisdiction on the grounds that service through the Secretary of State was ineffectual. At the trial on the main issue, these two defenses were renewed.

PRELIMINARY QUESTIONS

(1) The two jurisdictional questions were determined adversely to defendant by Judge Hooper on his denial of the motion for summary judgment. We find nothing further in the trial to change those rulings. The facts are clear that the defendant power company erected a dam in Alabama and created a reservoir over its lands in Alabama and reaching some 25 miles into Georgia. The purposes of the dam, according to defendant's engineer were to generate power, for flood control, and for recreational purposes. As a regular daily routine, power is generated at the power house in Alabama from the entire reservoir. This power is sold directly to consumers in Alabama by defendant and it sells none directly in Georgia, though it does wholesale power thus generated to the Georgia Power Company, which sells to consumers in the state of Georgia. It maintains in Georgia electronic and mechanical equipment on the banks of the reservoir which furnish information used to assist in the operation of the dam and powerhouse in Alabama. We do not believe any jurisdiction is conferred by the ownership of land.¹ However, the facts recited do constitute "doing business" sufficient to meet the Georgia test. See Sterling Materials Co., Inc. v. McKinley et al., 218 Ga. 574 (2), 129 S.E.2d 770. And, this result does not contravene federal due process. McGee v. International Life Insurance Company, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223.

(2) As to the service of process, the record shows that defendant was served by registered mail by the Georgia Secretary of State. Defendant's objection is that the Secretary of State was not properly "served" in that the original State petition was mailed to that official by plaintiff's counsel instead of being delivered personally by a deputy sheriff or some other officer. The state nonresident service statute provides that service may be effected "by leaving two copies of the petition * * * in the hands of the Secretary of State."² We do not believe this envisions any formal service by an officer on the Secretary of State. If it does, it was effectively waived by the Secretary of State in this instance.³ Liberalized Federal Rule 4(e) states that federal service may be effected on a nonresident "under the circumstances and in the manner prescribed in the (state) statute." Generally, the proper test is whether the defendant nonresident has received proper notice and not whether the state official has received proper notice. In other words, the effectiveness of service is tested at its terminus, and not at an intermediate way-station. See 2 Moore, Federal Practice, § 4.41. Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091. In the instant case, there is no question that the defendant received ample and proper notice from the Secretary of State. Even if defendant has the right to attack the manner of receipt by the state official, it appears that it was sufficient under the terms of the state statute and the affirmative acknowledgment by him.

Accordingly, the court finds against these two jurisdictional defenses, and on the main issues makes the following

FINDINGS OF FACT

Following several years study, the Alabama Power Company constructed in 1961 the Weiss dam on the Coosa River. It has five gates, three spillway and two trash. Never are all gates opened at once because of flood danger downstream.

Prior to the construction, the normal elevation of the Coosa River at the point in question was 550 feet above sea level. After the construction of the dam, the normal summer pool of the reservoir is 564 feet, or an increase of 14 feet. During the winter and spring rains, the elevation is normally lowered to 558 feet in order to pass off a reasonable amount of accumulated surface water.

The defendant owns in fee simple all the land up to elevation 564 and purchased through condemnation some 38 acres of the plaintiff's farm, principally along the old river banks and in a "slough" on the south side of the farm. On adjacent tracts, the defendant owns, through condemnation, a flowage easement up to at least 575 feet to take care of temporary flooding, but owns no flowage easement on the land in question.

Allatoona Dam, a government project, is located upstream and was placed in operation in 1948, some 13 years prior to the construction of Weiss Dam. Allatoona was primarily a flood control facility and generally it reduced the elevation or level of flooding downstream, but increased the duration.

Weiss Dam increased the elevation or level of flooding upstream and also increased the duration of the flooding. During times of heavy rains and "freshets" at the upper end of the reservoir a gradient or wave of water can exist so that the elevation in the reservoir is several feet higher than that maintained by the gates at the dam. The highest setting at Weiss Dam was 568.1 while the highest elevation of floodwater on plaintiff's land was 573 feet.

During the period covered by this suit (1961-Nov. 26, 1963), there were three flood periods for which temporary damages are sought. They are:

                December 11, 1961 — December 31, 1961
                January 1, 1962   — April 20, 1962
                March 16, 1963    — May 15, 1963
                

Prior to the Weiss Dam, the land in question was subject to frequent flooding and during the period 1938 through 1957 natural floods occurred some 22 times. At the mid-point on plaintiff's river frontage (River Mile 264) seven floods attaining elevation of 573 occurred prior to 1961, and all attained elevation of 567.

Plaintiff's farm originally consisted of some 1125 acres. Following the original condemnation, there remained 1090 acres. Of this, some 600-650 acres was in improved pasture, and some 300 acres in row crops, and the remainder in timber and farm yards. Generally, the pastures were on the lower elevations and suffered the most from flooding, while the row crops were on the higher elevations. The following total acreage is covered by water at the flood elevations shown above 567 (normal winter and spring flood stage):

                568      47.70 acres
                570     120.80 acres
                571     181.00 acres
                572     260.70 acres
                573     355.55 acres
                

The frequency of floods has not been increased by the operation of Weiss Dam by the defendant. Floods have continued to occur when brought on by natural causes and the effect of the operation of Weiss Dam generally has been to cause the water to rise higher and stay elevated longer during flood periods than would have been experienced previously from solely natural causes.

As a direct and proximate result of the operation of Weiss Dam, plaintiff's lands were inundated a total of 2922.8 acre-days, over and above normal flooding.⁴

COPYRIGHT MATERIAL OMITTED

Pastures under water are not usable until "dried out" and a reasonable dry-out period is one-half the time they are covered with water. In addition, some of the type grasses used by plaintiff in his pasture (clover, fescue, and orchard) are destroyed and must be reseeded if they remain under water for 10 to 12 days. Six months is a reasonable period for reseeding operations (during which use is denied) following a flood of such length. Thus the total acre-day loss due to Weiss is 23,608.2⁵, or 787 acre-months.

As a result of Weiss Dam, the crop damage in grasses was $2,021.70.⁶

As a result of Weiss Dam, seven acres (out of 25) of oats and rye were destroyed, with a reasonable value of $50.00 per acre, or $350.00. In addition, three acres (out of 100) of open cotton were destroyed, with a reasonable value of $150.00 per acre, or $450.00.

The plaintiff also lost seven head of cattle during one of the floods, of a reasonable value of $1,470.00 but it is impossible to determine whether such loss was due to Weiss Dam or natural causes.

The lands involved have poor natural drainage and insufficient efforts have been made by plaintiff to alleviate this problem. Also, the lands have been overgrazed for the past several years.⁷ As a result the fair rental value of the pasture lands involved is not what it could be if these two factors were absent. A reasonable rental value for plaintiff's pasture is $48.00 per acre per year, or $4.00 per month.

CONCLUSIONS OF LAW

The acts and omissions of the defendant constitute a human agency and, therefore result in a trespass against the defendant even though coupled with acts of God. Here, the facts show that defendant had made a detailed study of flooding in the area prior to the construction of its facility, and the history of climatic variations and other conditions in the particular locality afforded a reasonable warning to it of their likely recurrence. Consequently, the natural events which transpired were not so extraordinary as to free defendant from all liability. Georgia Code Section 105-1407. Goble v. Louisville & N. R. Co., 187 Ga. 243, 200 S.E. 259; Sampson v. General Electric Supply Corp., 78 Ga.App. 2(3), 50 S.E.2d 169; Southern Mills, Inc. v. Newton et al., 91...