Cooper v. U.S.

• Decision Date: 02 September 1987
• Docket Number: No. 87-1190,87-1190
• Citation: 827 F.2d 762
• Parties: J.R. COOPER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 762

827 F.2d 762

J.R. COOPER, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 87-1190.

United States Court of Appeals,

Federal Circuit.

Sept. 2, 1987.

Jim Waide, Estes & Waide, Tupelo, Miss., argued for plaintiff-appellant.

Douglas A. Cohen, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on brief were F. Henry Habicht, II, Asst. Atty. Gen., Robert L. Klarquist and Alan Brenner.

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

BISSELL, Circuit Judge.

J.R. Cooper appeals from the judgment of the United States Claims Court, 11 Cl.Ct. 471 (1987), dismissing Cooper's complaint against the United States for compensation for the destruction of timber located on his property. We reverse and remand.

BACKGROUND

During 1979, construction on the Tennessee-Tombigbee Waterway blocked the east fork of the Tombigbee River adjacent to the Cooper farm in Itawamba County, Mississippi. The blockage caused unusual flooding of a two hundred acre section of bottom land of the Cooper farm. The United States Army Corps of Engineers attempted to remove the blockage in 1980, but was unable to do so until 1984. As a result of the blockage, the timbered area of the bottom land was subjected to standing flood water for long periods of time during the spring and summer growing seasons of the 1979-84 period. Thus, the timber in the bottom land became stressed, and some trees began to die, as early as 1979. As of the end of 1979, the number of dead trees, scattered throughout the approximately On October 5, 1982, S.K. Cooper deeded the Cooper farm to his nephew J.R. Cooper, reserving a life estate in the farm. S.K. Cooper died on December 25, 1982. J.R. Cooper filed suit against the United States on December 20, 1984, seeking compensation for the timber destroyed by the flooding.

two hundred acres of timber land, covered the equivalent of approximately two acres of dead trees. By August 20, 1980, approximately ten percent of the trees in the timbered area were dead, and more than fifty percent of the trees in the area were damaged. By September 2, 1984, the dead timber represented the equivalent of approximately seventy-five acres of dead trees. If the clogged condition of the river had continued after 1984, further damage to and destruction of timber in the bottom land would have continued after 1984. Since the removal of the obstruction from the river sometime during the year 1984, the Cooper farm has not been subjected to unusual flooding. 11 Cl.Ct. at 474.

In its opinion, the trial court explained that it viewed the taking at issue, not as a taking of trees, but as a taking of a temporary flowage easement. The flowage easement was taken in 1979, when the flooding began. Although the value of the trees would ordinarily be a proper element of compensation for the taking of the flowage easement, the court reasoned that, because J.R. Cooper did not own the property in 1979, he was not entitled to compensation.

We review Claims Court decisions for errors of law and clearly erroneous findings of fact. Milmark Services, Inc. v. United States, 731 F.2d 855, 857 (Fed.Cir.1984).

ISSUES

1. Did the trial court err in construing the complaint as stating a claim for the taking of a flowage easement instead of a claim for the taking of timber?

2. Did the trial court err in determining when the taking occurred?

3. Did the trial court err in concluding that J.R. Cooper had no property interest in the property taken?

OPINION

To resolve this case, we must answer three questions: what was taken? when was it taken? and from whom was it taken? The trial court's judgment, as explained in its opinion, is consistent with precedent dealing with takings of flowage easements. We think that, although the government may have taken a flowage easement, the plaintiff does not seek compensation for it. Therefore, this case is not controlled by the cases cited by the trial court dealing with flowage easements.

J.R. Cooper claims compensation for the destruction of timber caused by flooding. As he states in his complaint: "The destruction of plaintiff's valuable timberland constitutes a taking of private property for public use." He does not claim compensation for a flowage easement taken by the government, nor is his claim to compensation for the timber predicated on a taking of a flowage easement. It is undisputed that timber was destroyed. Numerous cases hold that the destruction of a property interest is a compensable taking within the meaning of the Fifth Amendment. E.g., Murray v. United States, 817 F.2d 1580, 1583 (Fed.Cir.1987); accord United States v. Virginia Elec. & Power Co., 365 U.S. 624, 627, 81 S.Ct. 784, 787, 5 L.Ed.2d 838 (1961); Armstrong v. United States, 364 U.S. 40, 48, 80 S.Ct. 1563, 1568, 4 L.Ed.2d 1554 (1960); General Box Co. v. United States, 351 U.S. 159, 164 n. 14, 76 S.Ct. 728, 732 n. 14, 100 L.Ed. 1055 (1956). In addition, damages may be awarded under the Fifth Amendment for injuries from a temporary taking where the same injuries would not be compensable if a permanent taking occurred. Kimball Laundry Co. v. United States, 338 U.S. 1, 15, 69 S.Ct. 1434, 1442, 93 L.Ed. 1765 (1949) (going concern value compensable in a temporary taking while not compensable in a permanent taking). Thus, we hold that the...