Lenoir v. Porters Creek Watershed Dist.
| Citation | 586 F.2d 1081 |
| Decision Date | 21 November 1978 |
| Docket Number | No. 76-1640,76-1640 |
| Parties | C. S. LENOIR, Plaintiff-Appellant, v. PORTERS CREEK WATERSHED DISTRICT et al., Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
D. J. Smith, Jr., Dann, Blackburn, Smith & Goldin, Alexander W. Dann, Jr., Memphis, Tenn., for plaintiff-appellant.
E. J. Harris, David O. Kemp, Bolivar, Tenn., for P.C. Watershed.
R. W. Elliott, Ripley, Miss., for P.C. Drainage.
W. J. Michael Cody, U. S. Atty., Daniel A. Clancy, Asst. U. S. Atty., Memphis, Tenn., William A. McTighe, Jr., for the United States.
Before EDWARDS and ENGEL, Circuit Judges and THORNTON, Senior District Judge. *
C. S. Lenoir appeals from a final judgment dismissing his civil action for flood damages to his lands located in Hardeman County, Tennessee.
Porters Creek is a small tributary of the Hatchie River which in turn joins the Mississippi River just north of Memphis, Tennessee. In 1959 the Soil Conservation Service of the United States Department of Agriculture, in cooperation with certain local agencies, promulgated a watershed plan pursuant to the federal Watershed Protection and Flood Prevention Act, ch. 656, 68 Stat. 666 (1954), As amended, 16 U.S.C. §§ 1001-1009 (1976). The plan affected the Porters Creek watershed in Hardeman County, Tennessee and Benton and Tippah Counties in Mississippi. 1
One goal of the Watershed Plan was to improve 126,200 linear feet of the stream channel of Porters Creek. Plaintiff alleged that he owned 3,000 acres of land in Hardeman County through which the entire length of Porters Creek flows. On February 24, 1971, Lenoir granted an easement to the Porters Creek Watershed District over approximately 27 acres of that land:
for or in connection with the construction, operation, maintenance and inspection of the following described works of improvement:
Channel Improvement of Porters Creek and its tributaries, as described in the Watershed Work Plan for Porters Creek Watershed Project, consisting of clearing, enlargement, excavation, and placing of waste excavation material, either or all.
The easement so granted included the right of ingress and egress at any time over the property and reserved to the Grantor "the right and privilege to use the first above-described land . . . at any time, in any manner, and for any purpose not inconsistent with the full use and enjoyment by the Grantee . . . ." Finally, it provided that "the Grantee is responsible for operating and maintaining the above-described works of improvement."
Lenoir's complaint further alleged that following modifications in the stream channel, which accelerated the drainage process, Porters Creek flooded his land and deposited sand and "other infertile sediment on plaintiff's one time rich pasture lands causing them to be unproductive and seriously and greviously (sic) impairing their ability to support plaintiff's livestock." He sought damages in the sum of $750,000.
On December 26, 1973, Lenoir filed suit in the United States District Court for the Western District of Tennessee. Named as defendants were the United States Department of Agriculture, the Porters Creek Watershed District of Hardeman County, Tennessee (Hardeman), the Porters Creek Drainage District of Tippah County, Mississippi (Tippah), the Hardeman Soil Conservation District and the Northeast Mississippi Conservation Service. 2
In his complaint, as amended, Lenoir claimed that the defendants: (a) had negligently designed and constructed the Porters Creek Channel project so as to cause the flooding; (b) had breached their express or implied contracts to maintain the channel projects with the result that the creek was filled with sediment that had reduced its water-carrying ability and drainage capacity; (c) had created a public nuisance; (d) and had "permanently" deprived him of the use of his property, constituting an unconstitutional taking thereof without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution and of similar provisions in the Tennessee and Mississippi Constitutions.
In a series of orders entered by three separate judges of the District, all of Lenoir's On April 15, 1975, the district court dismissed all state law claims for damages against Hardeman and Tippah on the ground that those agencies were engaged in governmental functions with regard to the Porters Creek project and thus were protected by governmental immunity. However, the district judge expressly held that principles of governmental immunity had no application to the inverse condemnation claims. By order of August 7, 1975, another judge of the district court denied Lenoir's motion to amend his complaint to add a trespass cause of action, finding that such a claim sounded in tort and would likewise be barred by governmental immunity. At the same time, the United States' motion to dismiss was granted on the ground that the contract and inverse condemnation claims against it could only be presented to the United States Court of Claims, and the tort claims were barred by the absolute immunity provided by Section 3 of the Flood Control Act of 1928, ch. 569, 45 Stat. 534, 535 (codified at 33 U.S.C. § 702c (1976)). The court also granted summary judgment to Hardeman and Tippah as to the state constitutional claims, on the grounds that the state provisions did not require compensation for negligent conduct and that the plaintiff had waived any rights he might have had by failing to process his complaints under certain statutory procedures provided by Tennessee and Mississippi law. Summary judgment was also granted in favor of Tippah on the Fourteenth Amendment claim, for the reason that defendant did not possess eminent domain powers over Lenoir's property, which admittedly lay solely within the boundaries of Tennessee.
theories of recovery against all of the parties were ultimately dismissed and this appeal followed.
Finally, a third order entered by a third district judge on February 26, 1976, dismissed the Fourteenth Amendment claim against Hardeman, on the ground that the watershed district had no statutory authority for the assessment of taxes for the payment of any judgment in inverse condemnation cases and thus Lenoir could maintain no civil action against Hardeman for such purpose. The third order clearly indicated that the court had finally disposed of all claims as to all parties.
Rule 8(a)(1), Federal Rules of Civil Procedure, requires that a complaint shall contain "a short and plain statement of the grounds upon which the court's jurisdiction depends . . . ." An insistance upon this straightforward requirement of the Federal Rules would, we believe, have simplified the issues both before the trial court and on appeal. Instead we and the district court have been faced with an analytical miasma in which it has been particularly difficult to ascertain whether the court's diversity, federal question, or even pendent jurisdiction was invoked.
UNITED STATES DEPARTMENT OF AGRICULTURE
Lenoir sought recovery under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-680 (1976), on his claims of negligence and nuisance by Department of Agriculture employees. The district court ruled, however, that his claim against the Department was barred by 33 U.S.C. § 702c (1976), which provides that the United States shall not be liable for "any damage from or by floods or flood waters." 3
The plaintiff insists that the provisions of Section 702c are limited only to those projects on the Mississippi River. He notes that Section 702 in the United States Code is titled "Mississippi River" and that certain language refers to flood control on the Mississippi from "the Head of the Passes to the mouth of the Ohio River." This view has not commended itself to those courts which have considered it. 4
Lenoir argues that even if the United States cannot be held liable for negligent design or construction of the project, Section 702c is inapplicable to damages caused by the government's failure properly to maintain and operate the water project. Other circuits have indicated that Section 702c applies equally to negligence in the construction and maintenance of flood water structures. E. g., Graci v. United States, 456 F.2d 20, 25 (5th Cir. 1971); Stover v. United States, 332 F.2d 204, 206 (9th Cir.), Cert. denied, 379 U.S. 922, 85 S.Ct. 276, 13 L.Ed.2d 335 (1964). In this respect, however, plaintiff relies primarily upon Parada v. United States, 420 F.2d 493 (5th Cir. 1970), and Valley Cattle Co. v. United States, 259 F.Supp. 12 (D.Hawaii 1966). We find these cases inapposite.
Parada involved flood damage from a canal used to divert water from the Rio Grande for irrigation use by farmers. It was clearly not a flood control structure and Section 702c was never even discussed by the court. Likewise, Valley Cattle involved a project altogether unconnected with flood control. However, the court upheld the government's liability on the ground that the flood resulted solely from the United States' negligent acts and not from any unusual climatic conditions. Our examination of relevant case law satisfies us that the exception to Section 702c in Valley Cattle is limited to those circumstances in which the sole cause of the injury was governmental negligence. See Guy F. Atkinson Co. v. Merritt, Chapman & Scott Corp., 126 F.Supp. 406 (N.D.Cal.1954); Stover v. United States, 204 F.Supp. 477 (N.D.Cal.1962), Aff'd 332 F.2d 204 (9th Cir.), Cert. denied, 379 U.S. 922, 85 S.Ct. 276, 13 L.Ed.2d 335 (1964). Here the facts before us, framed both by plaintiff's complaint and by undisputed affidavits, establish that the injury to Lenoir's land occurred only after unusually heavy rains. Furthermore, we note that this narrowing construction of Section 702 has been rejected by some courts. E. g., Lunsford v....
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