Grand River Dam Authority v. Board of Educ. of Town of Wyandotte, Independent School Dist. No. 1
| Decision Date | 21 December 1943 |
| Docket Number | 31226. |
| Citation | 147 P.2d 1003,193 Okla. 551,1943 OK 424 |
| Parties | GRAND RIVER DAM AUTHORITY v. BOARD OF EDUCATION OF TOWN OF WYANDOTTE, INDEPENDENT SCHOOL DIST. NO. 1. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Proceedings against the Grand River Dam Authority to recover consequential damages caused by the operation of its property may be prosecuted under 82 O.S.1941 § 664, as authorized by 82 O.S.1941 § 862.
2. Where a legal proceeding is properly prosecuted under a particular section of the statutes, this court will not answer a hypothetical question presented by the parties as to whether a cumulative remedy is given by other sections of the statutes.
3. The Grand River Dam Authority is liable to a school district for damages caused to school property by backing up flood water above a level of 750 feet when it had not acquired the right to impound such water above such level, and it is not relieved from liability by reason of the fact that, under its license from the federal government, it was required to and did follow the instructions of the federal authorities in so backing up the waters above such level.
Appeal from District Court, Ottawa County; Wm. M. Thomas, Judge.
Proceeding by the Board of Education of the Town of Wyandotte, Oklahoma Independent School District No. 1, against the Grand River Dam Authority, a public corporation, for damage by water impounded by the Grand River Dam. Judgment for plaintiff, and defendant appeals.
Affirmed.
Edward P. Marshall, General Counsel, Grand River Dam Authority, and Jesse L. Ballard, both of Tulsa, for plaintiff in error.
Frank Nesbitt and Nelle Nesbitt, of Miami, for defendant in error.
This is a suit to recover for damage caused to plaintiff's property by water impounded by the Grand River Dam. The question presented is whether the defendant, the Grand River Dam Authority, is relieved from liability by reason of the fact that in causing such damage it operated its dam in the manner directed by the Secretary of War as it was required to do under its license.
The defendant is a governmental corporation created for the purpose of utilizing the waters of Grand River and its tributaries. 82 O.S.1941 § 861. The plaintiff is a school district whose school property is located in the town of Wyandotte near the confluence of the Neosho and Spring Rivers. After its creation, the defendant, being desirous of constructing a large dam on Grand River, instituted proceedings looking to the procurement of the necessary license from the Federal Power Commission. On February 11 1938, the Commission ruled that the construction of the proposed dam would affect interstate commerce and assumed jurisdiction. On July 5, 1939, the Commission issued a license to defendant, authorizing it to construct the dam upon the terms and conditions set forth therein. Article 13 of the license provides:
On July 11, 1939, defendant accepted the terms of the license and thereafter constructed the Grand River Dam. The waters impounded thereby are known as Lake O' The Cherokees. 82 O.S.1941 § 861.
During October and November, 1941, heavy rainfalls in the water-shed of Grand River above the dam caused a large body of flood water to flow down Neosho and Spring Rivers into said lake. When the waters reached an elevation of 745 feet at the dam, the defendant notified the engineers of the War Department at Tulsa, the designated agents of the Secretary of War, and thereafter regulated the water level of the lake by opening and closing the gates of the dam as directed by said engineers. On October 30, 1941, the engineers directed the defendant to impound the water until it reached an elevation of 749.7 at the dam, and then to permit the outflow to balance the inflow. It was established that when heavy flood waters flow into a stationary body of water, they have a tendency to pile up, so that their elevation above sea level is greater at the point where they flow into the stationary body of water than at the dam. This effect is known as a "back water curve." The defendant notified the engineers at Tulsa that an elevation of 749.7 feet at the dam would mean an elevation of approximately 752 feet at Wyandotte, but it was told to carry out the orders previously given. The defendant thereupon permitted the lake level to build up an elevation of 749.7 feet at the dam, and, because of the resultant back water curve, the lake level at Wyandotte reached an approximate level of 752 feet, or two feet above the elevation to which the defendant had acquired land for the lake bed. As a result the waters of the lake backed upon plaintiff's school grounds and percolated into the school basement and a water well located in the school yard, causing damage in regard to which there is no dispute.
Article 17 of the license granted to defendant by the Federal Power Commission provides: "The Licensee shall be liable for all damages occasioned to the property of others by the construction, operation, or maintenance of the project works or of the works appurtenant or accessory thereto, and in no event shall the United States be liable therefor."
And 82 O.S.1941 § 862 provides: "Provided said District shall be liable for all damage caused by said District, its agents servants and employees in creating, constructing, maintaining or operating said District to any corporation, partnership, person or individual whose property,...
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