Hammonds v. Ingram Industries, Inc.

• Decision Date: 01 November 1983
• Docket Number: No. 81-5817,81-5817
• Citation: 716 F.2d 365
• Parties: C.H. HAMMONDS and his wife Dean Hammonds, Billy Watson and his wife Donnie Watson, Plaintiffs-Appellees, v. INGRAM INDUSTRIES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 365

716 F.2d 365

C.H. HAMMONDS and his wife Dean Hammonds, Billy Watson and his wife Donnie Watson, Plaintiffs-Appellees, v. INGRAM INDUSTRIES, INC., Defendant-Appellant.

No. 81-5817.

United States Court of Appeals Sixth Circuit.

Argued Feb. 16, 1983.

Decided Sept. 6, 1983.

Rehearing Denied Nov. 1, 1983.

James G. Apple (argued), Stites, McElwain & Fowler, Louisville, Ky., for defendant-appellant.

Thomas L. Osborne (argued), Osborne, Deatherage & Fletcher, Paducah, Ky., James A. Harris, Jr., Paducah, Ky., for plaintiffs-appellees.

Before MERRITT and JONES, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

Ingram Industries, Inc. appeals from a judgment entered on a jury verdict in a trespass action for damages of $345,000 arising from Ingram's dredging sand from several islands in the northern half of the Ohio River which had been patented by C.H. Hammonds and Billy Watson. On appeal, Ingram advances numerous contentions, both legal and factual, concerning the existence of the islands, the nature of the trespass involved in the dredging, the attachment of riparian rights to islands, and the amount of damages awarded. Because we find each of Ingram's contentions to be without merit, we affirm the judgment of the district court.

I. Background

On October 2, 1966, Watson sighted five islands in the northern half of the Ohio River in Livingston County, near Ledbetter Landing, Kentucky. Watson informed Hammonds of his discovery. Following a survey of the islands, Watson, Hammonds and their spouses (plaintiffs) patented the islands from the Commonwealth of Kentucky for $5.00 and obtained the deed in January, 1967, pursuant to Ky.Rev.Stat. Sec. 56.210. The islands, which occupy approximately 3.8 acres, are located between mile 928.7 and mile 929.3 on the Ohio River. Although plaintiffs attempted to cultivate the islands, they were unsuccessful and used the islands for recreational purposes only.

The first confrontation between Ingram and plaintiffs occurred in 1974 when plaintiffs filed a formal protest with the United States Corps of Engineers (Corps of Engineers) concerning Ingram's application for a permit to dredge sand and gravel in the Ohio River from mile 922 to mile 937. On February 25, 1974, Charles Everhart, Ingram's president, in a letter to plaintiffs, stated:

I can assure your clients that if these islands are located in the area, we shall not disturb either the islands or their riparian accretions. Since we are unable to identify the islands in question, it would be most helpful if we could be furnished a map or sketch of their location. In any event, if they are there, we shall not disturb them in any way.

On March 23, 1974, plaintiffs furnished Ingram with copies of the 1966 island survey and the deed. As a result of the communications plaintiffs dismissed their protest with the Corps of Engineers. Apparently, there was no further contact or communication between Ingram and plaintiffs for five years.

On September 21, 1979, Ingram began dredging in the northern half of the Ohio River at approximately mile 928.8. When plaintiffs discovered the dredging, they protested to Ingram. In a letter dated October 12, 1979, Ingram denied that it had dredged in the immediate area of the islands but stated that it "would not hesitate to dredge in the general area at any time these islands are nonexistent at pool stage." ¹ According to Ingram's records, dredging operations were conducted intermittently from September 21, 1979 through January 7, 1980 at mile 928.8, resulting in the removal of 128,400 tons of sand from that area.

On January 10, 1980, plaintiffs initiated a diversity action in the United States District Court for the Western District of Kentucky seeking damages and equitable relief. A hearing was held on February 29, 1980, on plaintiff's motion for a temporary injunction, after which the district court entered an order concerning an agreement reached by the parties. A jury trial on the merits of the case was held in May, 1981. At trial, plaintiffs contended that Ingram intentionally trespassed on their islands and was liable for the value of the sand dredged from the islands. Ingram, at the close of plaintiffs' case, moved for a directed verdict on the ground that plaintiffs had failed to prove the existence of the islands, their standing as owners of the islands to pursue a trespass action, and their damages. The court denied the motion. The jury returned a verdict for plaintiffs and awarded damages in the amount of $345,000. The district court denied Ingram's motion for judgment NOV and for a new trial.

Ingram perfected an appeal, assigning numerous errors that raise issues concerning the existence of the islands, the nature of the trespass, riparian rights, and the determination of damages.

II. Existence of the Islands

Ingram argues that the trial court erred in denying its motion for judgment NOV because of the nonexistence of the islands at the time of the alleged trespass. Ingram presented three bases for its position: (1) plaintiffs failed to prove the continuing existence of the islands; (2) the islands were merely dredge spoils that were not patentable; and (3) the correct standard for determining the existence of islands is existence at normal pool stage.

It is well-settled that the standard to be applied in reviewing a trial court's denial of a motion for judgment NOV is identical to that raised by a motion for a directed verdict. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251, 61 S.Ct. 189, 194, 85 L.Ed. 147 (1940). In Scharfenberger v. Wingo, 542 F.2d 328 (6th Cir.1976), Judge McCree described the standard as follows:

Judgment notwithstanding the verdict is not proper unless the evidence is such that there can be but one reasonable conclusion as to the proper verdict. It should not be granted if there is a conflict in the evidence, and credibility of evidence is not to be considered in passing on a motion for judgment. Greer v. United States, 408 F.2d 631 (6th Cir.1969); Moore's Federal Practice, Par. 50.07(2) (Second Edition). [Emphasis added.]

Id. at 333 (quoting Reeves v. Power Tools, Inc., 474 F.2d 375, 380 (6th Cir.1973)).

A. Continued Existence and Permanence of the Islands

Ingram argues that the plaintiffs failed at trial to establish that the islands they patented were in existence at the time of Ingram's alleged trespass and that they were permanent. ² Ingram's argument raises both factual and legal issues.

A factual issue is raised by Ingram's contention that the aerial photographs of the river which do not disclose the existence of the islands, the individual testimony that the islands ceased to exist after 1974, and the testimony that the islands varied in size and were generally underwater compel a finding that the islands ceased to exist or were impermanent. The standard of review, described above, precludes Ingram's prevailing on the factual issue because here the evidence is conflicting. As Ingram concedes, there was testimony that the islands existed above the water for eight to nine months of each year. Additionally, there was testimony that the islands were visible above water at the time of the trial. Because of the conflicting evidence, this court will not disturb the district court's denial of judgment NOV on the ground that the evidence compels a contrary judgment.

The legal issue raised by Ingram's argument is whether islands which are submerged for three months of each year may be permanent. The decisions of the Kentucky courts indicate that occasional flooding or periodic submergence of islands does not require a finding that the islands are not permanent. In Turk v. Wilson's Heirs, 266 Ky. 78, 83-84, 98 S.W.2d 4, 7 (1936), the court treated as an island land in the Mississippi River none of which is "more than a few feet above the water at ordinary stage of the river" and which periodically is submerged. More to the point is the finding in Berry v. Snyder, 66 Ky. (3 Bush) 266, 270-71 (1867), of the continuing identity of a sandbar even though that bar was covered by water for three to four months of each year, often to such depth as to "admit the largest and heaviest laden steamers plying on the river to pass over it." Whitson v. Morris, 304 Ky. 447, 201 S.W.2d 193 (1946), which is cited by Ingram, is not to the contrary. In Whitson, the court held that once a patented island is washed away its owners lose all proprietary interests in that land and obtain none in any island that later might emerge. Although Whitson explicitly recognizes that islands might be washed away and disappear, as happened in that case where an island disappeared after being submerged for a number of years, it does not gainsay that an island's submergence effects its disappearance only if lasting for an extended period of time. Id. at 196, 453, 201 S.W.2d at ("rule of reappearance after submergence does not seem applicable where the submergence was in fact ... a complete disappearance for an extensive period."). Accordingly, there is no basis for holding that the trial court erred in not directing a verdict or granting judgment NOV for Ingram on the ground that plaintiffs failed to establish the continued existence and permanence of the islands.

B. Islands as Dredge Spoils and Part of the Bed of the Stream

Ingram contends that the evidence established that the islands patented by plaintiffs were created by the settling of dredge spoils, i.e., mud and sand loosened from the bed of the river by dredging performed by the Corps of Engineers in the area, and that such islands cannot be patented. These contentions are meritless.

As an initial point, the evidence cited by Ingram allows, but does not compel, the inference that the islands were created by the Corps of Engineers' dredging in the area of the islands. The evidence that the composition of the islands is similar to that of dredge spoils is corroborative of Ingram's...