Loesch v. United States

• Decision Date: 11 March 1981
• Docket Number: 435-75,No. 240-75,1-76,430-75,111-76 and 307-77.,240-75
• Citation: 645 F.2d 905
• Parties: Earl LOESCH and Henriella Bynon v. The UNITED STATES. George R. WAGNER et al. v. The UNITED STATES. Nicholas and Margaret PURCELL v. The UNITED STATES. John H. McGEHEE et al. v. The UNITED STATES. James CHOUINARD et al. v. The UNITED STATES. Letha M. TOLLIVER, Administratrix of Estate of Alfred Tolliver, deceased et al. v. The UNITED STATES.
• Court: U.S. Claims Court

645 F.2d 905

Earl LOESCH and Henriella Bynon v. The UNITED STATES.

George R. WAGNER et al. v. The UNITED STATES.

Nicholas and Margaret PURCELL v. The UNITED STATES.

John H. McGEHEE et al. v. The UNITED STATES.

James CHOUINARD et al. v. The UNITED STATES.

Letha M. TOLLIVER, Administratrix of Estate of Alfred Tolliver, deceased et al. v. The UNITED STATES.

Nos. 240-75, 430-75, 435-75, 1-76, 111-76 and 307-77.

United States Court of Claims.

March 11, 1981.

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Norman E. Hay, Indianapolis, Ind., attorney of record, for plaintiff. Charles S. Gleason, Gleason, Hay & Gleason, Indianapolis, Ind., of counsel.

Hubert M. Crean, Washington, D. C., with whom was Asst. Atty. Gen. James W. Moorman, for defendant. Dorothy R. Burakreis, Washington, D. C., of counsel.

Before COWEN, Senior Judge, and KUNZIG and SMITH, Judges.

OPINION

PER CURIAM:

These consolidated cases come before the court on plaintiffs' exceptions to the recommended decision (including an opinion, findings of fact, and conclusions of law) filed by Trial Judge Thomas J. Lydon.

The court hereby adopts the trial judge's findings and opinion as the basis for its judgment in the case. The findings, however, are not printed herein since his opinion sets forth the facts necessary for an understanding of the decision.

Therefore, the court concludes as a matter of law that plaintiffs are not entitled to recover, and their petitions are hereby dismissed.

OPINION OF THE TRIAL JUDGE

LYDON, Trial Judge: In these six consolidated cases,¹ owners of land adjacent to and/or on tributaries of the Ohio River,² seek to recover just compensation under the fifth amendment, on the theory of inverse condemnations, for damages to their lands resulting, they claim, from governmental actions emanating from the construction and operation of certain high-lift navigation locks and dams on the Ohio River. In substance, plaintiffs' claims are twofold. First, plaintiffs maintain that the construction and operation of the dams in question were such as to cause erosion on their lands thereby, in effect, taking their lands and entitling them to just compensation. Second, plaintiffs contend that defendant, acting through the United States Army, Corps of Engineers (the Corps), in obtaining flowage easements from them in connection with the dam projects in question was guilty of fraud and misrepresentation, particularly in the determination of the ordinary high water mark (OHWM), such that the compensation plaintiffs received for said easements was less than they were entitled to receive for what was actually taken from them.³ For reasons to be discussed hereinafter, it is my opinion that plaintiffs are not entitled to recover and that their petitions should be dismissed.

I.

The Ohio River is formed by the junction of the Allegheny and Monongahela Rivers at Pittsburgh, Pennsylvania, and then flows for 981 miles to Cairo, Illinois, where it joins the Mississippi River. It is a navigable river for its entire length, falling 429 feet in its 981-mile course from Pittsburgh to Cairo.

The Ohio River is considered to be a "pleistocene river," i. e., it was formed at or before the glacial period. This period is believed to have begun about a million years ago. While the Ohio River is considered to be basically an alluvial river, i. e., one which erodes, transports and deposits sedimentary materials, its riverbanks at many locations are composed of bedrock, which serves to control not only the position of the channel at those locations but also to control the river's ability to erode at those points. These bedrock sites can contribute to erosion at other riverbank sites by diverting river currents toward such sites. Similarly, river current action serves to explain why riverbank erosion generally occurs on the outside of bends in the river.

The Ohio River, like other rivers, is dynamic. The highly variable flow of an unregulated river exerts considerable erosional forces on a river's bed and banks. In the general dynamics of a shifting and meandering alluvial river, materials will shift position by erosion at one riverbank point and material deposition at another point. Accordingly, at any given time on most natural rivers, including the Ohio River, riverbanks can be found to be eroding, other riverbanks in the process of healing, and still other riverbanks in stable condition. Erosion of riverbanks on the Ohio River, as a natural phenomenon, has been taking place for hundreds of years.

Climatic conditions greatly affect river dynamics. It is well established that during flood periods, when river flow velocities are high, riverbank erosion generally can be expected to occur in varying degrees depending on circumstances. Velocity of the flow of a river, it is conceded, plays a most important role in riverbank erosion. It is also clear that precipitation affects riverbank conditions and contributes to erosion thereof. Further, uses, urban and/or agricultural, to which riparian lands are put can also cause and/or contribute to erosion of riverbanks. Finally, the construction and operation of artificial structures on rivers can, under some circumstances, alter the hydrology of river flow characteristics, sediment propensities, etc., such as to affect the natural inclinations of river action and thereby induce riverbank erosion at points where it may not have occurred absent the artificial structures. In any discussion of erosion, factors of topography, soil composition and characteristics, and river site location play important roles in causative determinations.

Improvement of the Ohio River for navigation purposes began in 1824. In 1878, a 6-foot canalization of the upper Ohio River began by construction of a system of locks and movable dams. Later a 9-foot canalization program throughout the entire length of the river was completed in 1929 with the construction of a system of 49 low-lift locks and dams. These low-lift dams had an estimated life of between 50-75 years. After the Second World War, there was a tremendous increase in river tonnage on the Ohio River. This, in turn, resulted in increases in the size of tows and barges on the river. This increased traffic and larger river vessels created delays at the low-lift dams and presented a serious obstacle to navigation on the Ohio River.⁴

In 1954, a modernization program to aid navigation on the Ohio River was undertaken. This program called for the construction of 19 high-lift locks and dams to replace the existing low-lift dams on the Ohio River. The high-lift dams on the Ohio River were constructed under the authority of the River and Harbor Act of March 3, 1909, 35 Stat. 817.⁵ As of the date of trial, 17 of the high-lift dams had been constructed and were operational. One high-lift dam was under construction as of the date of trial, and construction of the last high-lift dam had been authorized. As a result of this modernization program, a smaller number of high-lift dams with larger locks eliminated the time-consuming and costly multiple lockages required by a greater number of low-lift dams and thereby improved navigation on the Ohio River. Three of these high-lift dams are involved in this litigation, i. e., the Meldahl Locks and Dam, the Cannelton Locks and Dam, and the Newburgh Locks and Dam.

Meldahl Dam is located some 436 river miles below Pittsburgh, Pennsylvania. Construction on this project began in 1959 and was completed in 1964. The normal pool elevation of 485 feet mean sea level (m. s. l.) was reached on March 28, 1965. Meldahl Dam replaced four low-lift dams (Nos. 31, 32, 33 and 34). The pool created by this dam covered some 96 river miles and terminated below the Greenup Locks and Dam. Eleven plaintiffs own land adjacent to the Ohio River within the Meldahl pool. In general, construction of the Meldahl Dam, and attendant impoundment of river water, raised the level of the Ohio River in the vicinity of the riparian lands of plaintiffs Chouinard, Griffith, McNelly, Poston, C. Rice, E. Rice, Schwab, Wood and Skelton by 24 feet, and in the vicinity of the riparian lands of plaintiffs Cunningham and Tolliver by 17 feet. It should be noted that there was only a 2-foot increase in the water level of the Ohio River in the upper reaches of the Meldahl pool as a result of the construction of the dam. There is no reliable evidence in the record as to whether or not the Meldahl Dam was constructed with a 12-foot channel capability. The dam was operated, as far as can be determined on this record, to provide a 9-foot channel. Flowage easements attendant to this project were obtained by the Corps by purchase or condemnation from riparian landowners during the period 1961-1963.⁶

Cannelton Dam is located approximately 3 river miles upstream from Cannelton, Indiana, and some 114 river miles downstream from Louisville, Kentucky. Construction on this project began in 1962, and the project was completed and dedicated in 1974. The normal pool elevation of 383 feet m. s. l. was permanently reached on August 17, 1972. Cannelton Dam replaced three low-lift dams (Nos. 43, 44 and 45). The pool created by this dam covered some 114 miles and terminated below the McAlpine Locks and Dam at Louisville, Kentucky. Eleven plaintiffs own land adjacent to the Ohio River within the Cannelton pool. In general, construction of the Cannelton Dam, and attendant impoundment of river water, raised the level of the Ohio River in the vicinity of the riparian lands of plaintiffs Loesch, Bynon, Wagner and Leatherbury by 25 feet, in the vicinity of the riparian lands of plaintiffs Glenn, Purcell, J. McGehee (Tract 3828 E), Cox, Eaton and Williams by 16 feet, and in the vicinity of the riparian lands of plaintiffs E. McGehee and J. McGehee (Tracts 5101 E and 5112 E) by 9 feet. It should be noted that there was no increase in the water level of the Ohio River in the upper reaches, comprising about 20 percent...