Iowa-Wisconsin Bridge Co. v. United States

• Decision Date: 11 July 1949
• Docket Number: No. 46079.,46079.
• Citation: 114 Ct. Cl. 464,84 F. Supp. 852
• Parties: IOWA-WISCONSIN BRIDGE CO. et al. v. UNITED STATES.
• Court: U.S. Claims Court

84 F. Supp. 852

114 Ct. Cl. 464

IOWA-WISCONSIN BRIDGE CO. et al. v. UNITED STATES.

No. 46079.

United States Court of Claims.

July 11, 1949.

COPYRIGHT MATERIAL OMITTED

Fred A. Ontjes, Mason City, Iowa (Wm. C. Green, St. Paul, Minn., on the brief), for plaintiff.

Marvin J. Sonosky, Washington, D. C., and A. Devitt Vanech, Asst. Atty. Gen., for the defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judge.

HOWELL, Judge.

The plaintiff sues to recover just compensation for the alleged taking of its property by reason of the construction by the Government of Lock and Dam No. 9 in the Mississippi River 15.5 miles downstream from plaintiff's property.

In 1928 Congress authorized¹ the corporate predecessor of the plaintiff (sometimes hereinafter called the Bridge Company) to construct, maintain and operate a bridge and approaches thereto across the Mississippi River at or near Lansing, Iowa, to a point opposite in the State of Wisconsin. In 1930 and 1931 the Bridge Company secured the necessary approval of the War Department of its plans and specifications for the steel bridge across the Mississippi River and for the construction of the approach on the Wisconsin side of the river consisting of wooden pile bridges over Big, Indian, Stevens, Henderson and Winneshiek sloughs. The project was completed and opened to traffic in June 1931.

At the site of the steel bridge, the Mississippi River is approximately 1,200 feet wide from bank to bank, and the bridge is approximately 1,600 feet long. Between the east bank of the Mississippi River and a point opposite near DeSoto, Wisconsin, there is an expanse of valley or bottom land cut by various sloughs, including the ones mentioned above.

The Bridge Company's project consists of an approach leading eastward from the town of Lansing, Iowa, to the Mississippi River, a high steel fixed span across the Mississippi River, and a roadway or dike leading eastward from the east end of the steel bridge on the Wisconsin side. The roadway and approach on the Wisconsin side extends easterly for about 2½ miles from the east bank of the Mississippi River to a point near DeSoto, Wisconsin, and consists of a road on a raised earthen embankment or dike, with wooden bridges traversing the several sloughs. The sloughs as approached from the Mississippi River, and the lengths of the wooden bridges traversing the sloughs, are: Big Slough, 288-foot bridge; Indian Slough, 20-foot bridge; Stevens Slough, 15-foot bridge; Henderson Slough, 30-foot bridge; Winneshiek Slough, 432-foot bridge including its extension over the Burlington Railroad right-of-way. Winneshiek Slough itself was 250 feet wide and Big Slough 148 feet wide at the time the bridges were constructed. On October 3, 1942, the Secretary of War and the Chief of Engineers approved the Bridge Company's plans for the replacement of the timber bridges across Stevens and Indian sloughs with solid fills and in 1944 Stevens Slough was filled in where it intersects the dike roadway.

Plaintiff's right-of-way on the Wisconsin side of the Mississippi River is 200 feet wide except for approximately ¼ mile at the eastern end where it is 300 feet wide. Prior to the construction of the dike, the elevation of the land within the right-of-way was approximately 620 feet above mean sea level. Ordinary high-water stage at the site of the Bridge Company's project was 616.5 feet and the height of the dike was approximately elevation 629 feet, leaving a vertical spread of 12½ feet at times of ordinary high water. As built, the dike was approximately 80 feet wide at the base and about 30 feet wide at the top. In many places the shoulders have now broken back to 25 or 26 feet.

In constructing the dike, the Bridge Company first cleared the trees and vegetation from all but the extreme fringes of the right-of-way. Working from the center of the right-of-way, earth was scooped up from each side to build the embankment, leaving borrow pits on each side for the entire length of the roadway. The pits were from 4 to 6 feet deep but were not of uniform width. Along about 60 percent of the length of the dike the borrow pits extended to the boundary of the right-of-way on each side of the dike. Along the remainder of the dike, berms of natural ground were left between the outside of the borrow pits and the boundary of the right-of-way, such berms varying in width from 15 to 25 feet. A berm of natural ground 4 to 5 feet wide was also left between the toe of the dike and the borrow pits. As the roadway or embankment approached the several sloughs, no earth was scooped up from the natural ground along the side of the dike for a distance of from 10 to 30 feet from the bank of each slough. Such natural ground barriers were substantially larger on each side of the dike adjacent to the west bank of Winneshiek Slough. On each side of the embankment, narrow pieces of ground were left undisturbed in the borrow pits at intervals for the purpose of obstructing the longitudinal flow of water in the borrow pits. Two small embankments for driveways leading to small farms near Winneshiek Slough served a similar purpose. The dike was surfaced with bluff-run material and used as a road.

When the dike was built, ordinary low-water stage at the site of the project was 611.91. The bottom of the borrow pits along both sides of the dike ranged in elevation from 614 to 616 feet so that little or no water stood in the pits except at times when the water approached ordinary high of 616.5 and in times of flood.

Lock and Dam No. 9 is one of a series of navigation dams constructed in the Mississippi River in order to create a ninefoot channel between the mouth of the Illinois and the Twin City Dam, as provided by the Act of July 3, 1930, c. 847, 46 Stat. 918, 927. It is located 15.5 miles downstream from the bridge property and consists of a lock and concrete dam with 13 gates in the Mississippi River and an earthen section 9,300 feet long extending from the west end of the dam to the west side of the valley. In closed position the maximum and crest elevation of the gates is 620 feet above sea level. The gates of the dam were lowered for the first time for the purpose of maintaining full pool on April 11, 1938, and full pool level was reached April 18, 1938. The dam is operated to maintain project pool elevation of 620 feet at Lansing, 15 miles north of the dam although when the dam is in operation the pool at Lansing often exceeds 620 feet from a few inches to as much as a foot. When the flow of the river is sufficient to maintain pool level of 620 at Lansing without the help of the dam, the gates are lifted clear of the water. The pool of the dam extends back about 30 miles to Lock and Dam No. 8 at Genoa, Wisconsin. The Bridge Company's property is located in the vicinity of Lansing, about midway in the pool of Dam No. 9.

In February, 1944, plaintiff filed its first petition in this case alleging that a servitude had been placed upon its dike and bridges for which it was entitled to just compensation. The project had been and was then being operated as a toll bridge by the Bridge Company or its receivers. On March 18, 1945, large volumes of ice came down Big and Winneshiek Sloughs which jammed and piled up against the trestles and bents of the wooden pile bridges and forced out several spans from each bridge which have not been replaced. Following the destruction of parts of the bridges, plaintiff amended its petition to include this circumstance.

Claims Relating to the Dike

The land in plaintiff's right-of-way on which the dike was constructed was fast ground lying generally from two to five feet above ordinary high water mark of 616.5, averaging approximately 620 for the entire length. The bottoms of the borrow pits on either side of the dike were scooped out to elevation 616 in some instances and to 614 in others. Prior to the time the dam was placed in operation natural high water mark was at elevation 616.5 and when the water reached that elevation it would contact the sides of the dike. The water level would fluctuate and for a substantial portion of the year there was little or no water in the borrow pits. Vegetation grew in the pits and trees and bushes grew on either side of the embankment and on the berms. Within a year or two after the dike was constructed, it had settled and become firm, and until after the dam was placed in operation it remained in good condition with only the usual amount of maintenance by occasional rip-rapping and minor repairs to the road surface.

After the dam was put in operation the water level at the site of the dike never dropped below elevation 620. This resulted in the permanent presence of at least from 4 to 6 feet of water in the borrow pits. The entire dike became saturated to elevation 620 and, by capillary action, the earth in the dike became wet for at least 5 feet above that elevation. This condition of saturation and permanent wetting caused landsides and sloughing of the sides and slopes of the embankment and berms and a consequent breaking away of the shoulders of the roadway. There was also resulting damage to the surface of the roadway. Vegetation growing in the borrow pits was destroyed as well as any vegetation on the sides of the dike growing below elevation 620. As the bank sloughed off, trees on the side dropped down to the lower elevation and died for lack of fast ground for their roots. Wave wash in the pits caused erosion at elevation 620, cutting into the dike and washing soil away from the roots of trees at that level.

We have found that the maintenance of pool level 620 by the Government has made it necessary to place a quantity of rock on the slopes of plaintiff's roadway in order to stabilize them, to restore the shoulders of the road where they have sloughed off, and to raise the roadway a few inches. Adequate protection of the slopes of the embankment will require the deposit of...