Jacobs v. United States

• Citation: 45 F.2d 34
• Decision Date: 19 December 1930
• Docket Number: No. 5852.,5852.
• Parties: JACOBS v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

45 F.2d 34 (1930)

JACOBS v. UNITED STATES.

No. 5852.

Circuit Court of Appeals, Fifth Circuit.

November 28, 1930.

Rehearing Denied December 19, 1930.

A. A. Kelly, of South Pittsburgh, Tenn., and Chas. C. Moore, of Chattanooga, Tenn., for appellant.

C. B. Kennamer, U. S. Atty., of Birmingham, Ala. and R. M. Sims, Asst. U. S. Atty., of Florence, Ala.

Before BRYAN and WALKER, Circuit Judges, and HOLMES, District Judge.

WALKER, Circuit Judge.

This was a suit under the Tucker Act, 28 USCA § 41(20). The appellant sought to recover the alleged amount of damage caused by a dam constructed by the appellee under acts of Congress across the bed or channel of the Tennessee river, in Jackson county, Ala., at a location known as "Widow's Bar," to a farm owned by appellant and lying along Jones creek, a tributary of the Tennessee river, which dam was about eight miles below that farm and the mouth of Jones creek, and was completed about October 1, 1925. The court's findings of fact included, in addition to findings to the effect that that dam was constructed as above stated and for the purpose of providing water of sufficient depth throughout the year to facilitate navigation of the Tennessee river along its course, the following:

"That the said Widow's Bar Dam was designed to raise the river at extreme low water at the dam about 11 ft., so as to back up the water in the river to Hale's Bar Dam, located about twenty-six (26) miles up the river from Widow's Bar Dam, raising water at Hale's Bar at extreme low water one foot, deepening the channel and forming a canal for navigation at all seasons. This Widow's Bar Dam would not cause the river to overflow the banks of the river or its tributaries at low water and permanently submerge any lands, but would slightly increase the height of intermittent rises in the river up to a volume of 150,000 ft. per second. Intermittent rises occur in the Tennessee River every year, principally the winter and early spring months. * * *

"After completion of the Dam, complaint of damages was made by different land owners above the Dam, and thereupon, the defendant, United States, caused a survey to be made of the land above Widow's Bar Dam during the summer and fall of 1926 to ascertain what lands, if any, above the Dam might have been damaged by reason of the building of the Dam, including farm of the plaintiff, E. P. Jacobs. This survey was made by running contours at intervals of two feet elevation above the Widow's Bar Datum and calculating back water curves at various volumes of second feet flow in the river, ranging from twenty thousand to one hundred and fifty thousand cubic feet per second. Maps and drawings, illustrating this survey were prepared by the Engineers of the defendant and introduced in the evidence. The topographic map of Jones Creek and vicinity showing the farm of the plaintiff, E. P. Jacobs, the lands of his slightly affected together with crops growing on the land in the year 1929 introduced in evidence is made Exhibit F hereto; also another topographical map of the said plaintiff's farm introduced in evidence is made Exhibit No. 1 hereto, for the purpose of showing more plainly the contour elevations as found by the survey. All said maps to be sent up as a part of the record in case of appeal without being copied.

"As a result of this survey engineers of the defendant determined and the Court so finds that one hundred and fifteen and two-tenth acres of the farm of the plaintiff, E. P. Jacobs, above described, lies between contour elevations five hundred and ninety-two and five hundred and ninety-nine. Pursuant to authority from the Chief Engineer of the War Department, the District Engineer's Office of the United States at Florence, Alabama, wrote a letter to each land owner thought to be affected, including the plaintiff in this case of which the following to E. P. Jacobs is a sample:

"`800.222-WB. September 29, 1927.

"`Purchase of flowage rights.

"`Mr. E. P. Jacobs, Bridgeport, Ala. Dear Sir: This office has had under investigation for some time the effect of the construction of Widow's Bar Dam on the value of land adjacent to the pool formed by said dam. This investigation has now been concluded and it is found that part of your land lying below 599 contour, which is 14 feet higher than the crest of the dam, is subject to overflow more frequently than before the dam was constructed.

"`The government, therefore, desires to purchase from you the right to overflow that portion of your land lying below the 599 foot contour, the upper limit of flood damage which can be attributed to the construction of the dam. The area of this portion is 115.2 acres, more or less, and the Chief of Engineers has agreed to recommend payment of the sum of $1,082.31 for the easement of flowage on this property, subject to establishment of valid title.

"`Please advise me at your earliest convenience whether you are willing to accept this amount in payment of the right to overflow your land. If you will accept the amount, the necessary abstract and conveyance will be prepared as soon as practicable, free of cost to you. If an examination of your title shows that same is defective the War Department will cause condemnation proceedings to be instituted provided the amount of the award is agreed upon in advance.

"`In the event you are unwilling to accept the settlement offered, you may have recourse to the courts for relief, suing either in the local United States District Court or in the Court of Claims.

"`Yours very truly "`Hugh P. Oram "`Captain, Corps of Engineers, District of Engineers.'

"All of said letter being admitted as competent by the Court over objections of counsel for the defendant, except the amount offered, that part being ruled incompetent by the Court.

"Some of the land owners accepted the offers and were paid the amount of damage estimated by the engineers of the defendant. Plaintiff declined the offer and brought this suit.

"All the acreage on the plaintiff's farm estimated by the engineers of the defendant to be slightly affected was subject to periodical or intermittent overflows from the river, prior to the construction of the dam in times of flood.

"The Court finds that all said acreage was subject to periodical or intermittent overflows from the river prior to the construction of the dam, and that the construction of the dam did not back water over any petitioners land, and that it requires a rise in the river of from seven and five-tenths feet to twelve and five-tenths feet above a twenty thousand foot per second flow to overflow said lands since the construction of the dam. That the overflows reaching petitioners land after the construction of the dam were not continued, but only occasional; that at most, said lands which had been subject to overflow before the dam was built became slightly more subject to such overflows since its construction. That plaintiff has not been ousted, nor has his customary use of the land been prevented unless for short periods of time. It was used for agricultural purposes prior to the construction of the dam, and is still capable of being so used, and has been used for farming purposes. Its use for agricultural purposes was impaired by the flood waters after the dam was built to some extent."

In the argument for appellant attention was called to provisions of two general rivers and harbors acts. One of those provisions, contained in such act approved July 27, 1916, made appropriation "for continuing improvement by the construction of locks and dams between Chattanooga, Tennessee, and Browns Island, Alabama, in accordance with the report submitted in House Document Numbered Three hundred sixty, Sixty-second Congress, second session, as modified by the report of the Board of Engineers for Rivers and Harbors, printed in Rivers and Harbors Committee Document Numbered One, Sixty-fourth Congress, first session, * * * Provided, That no contract shall be entered into for the construction thereof until the local interests shall assume and pay all claims for flowage damage or arrange to do so in manner satisfactory to the Secretary of War: Provided further, That one high dam or two low dams may *...