Lynn v. United States

• Decision Date: 26 March 1940
• Docket Number: No. 9278.,9278.
• Parties: LYNN v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Fifth Circuit

110 F.2d 586 (1940)

LYNN v. UNITED STATES et al.

No. 9278.

Circuit Court of Appeals, Fifth Circuit.

March 26, 1940.

Paul Johnston and Gerry Cabaniss, both of Birmingham, Ala., for appellant.

William C. Fitts, Jr., General Counsel, Tennessee Valley Authority, of Knoxville, Tenn., Sidney J. Kaplan, Sp. Asst. to Atty. Gen., and Jim C. Smith, U. S. Atty., and

W. R. Bradford, Asst. U. S. Atty., both of Birmingham, Ala., for appellees.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

The petition of appellant was brought against the United States expressly under the Tucker Act, 24 Stats. 505, as amended 43 Stats. 972, 28 U.S.C.A. § 41(20); and against Tennessee Valley Authority which under the Act of its creation, 48 Stats. 58, 16 U.S.C.A. § 831, et seq., may sue and be sued. She prayed a judgment against the United States for the fair value of lands and easements belonging to her taken through raising the waters of the Tennessee River by Wheeler Dam, and for a declaratory judgment as to her rights under a deed she had previously made to the United States, and if necessary that the deed be reformed. Against Tennessee Valley Authority she prayed a money judgment for injuring her lands, and a declaration of her rights. Tennessee Valley Authority moved to dismiss the petition because it stated no claim against it. The United States moved to dismiss because no claim was stated against them, for want of jurisdiction under the Tucker Act, and for misjoinder of the Tennessee Valley Authority likely to cause confusion about a jury trial. The district court sustained both motions, and this appeal followed.

The facts must be taken from the petition. Prior to October 25, 1935, appellant owned a productive farm of 323 acres lying along the Tennessee River and nearly all river bottom land. That nearest the river was 8 to 10 feet higher than that more remote, and the latter was drained by two systems of ditches and drains, one of which led into a natural cave and through it to the river; the other led into a concrete box from which the accumulated water was taken by underground drains which emptied into the river above its usual surface level. The United States, through Tennessee Valley Authority and its agents, undertook to control floods and improve navigation by erecting Wheeler Dam across the river below the farm. Appellant's lands were surveyed, the maps showing her drains, and the intended lake levels were indicated. It was desired to acquire for the United States 104 acres of the land along the river, and appellant, on assurances that the lake would not interfere with the drainage of her other land, executed a deed to the United States covering the 104 acres, in fee simple with full warranty and with no mention of the drains. At the same time, however, on her insistence that her drainage rights be protected in writing, there was inserted in a license given her to occupy the 104 acres till flooded, following an agreement that she waived all right to claim damages to crops or the like because of backwater, headwater, or surrendering possession or otherwise, these words: "This provision being expressly limited to the land conveyed to the United States on this date." The license shows that the water was to be raised to the 556 foot level, and another exhibit shows that while the land sold off along the river had an elevation of 568 feet the reserved lands were elevated from 562 feet down to 558 feet. The petition alleges that the raised waters of the river now for long periods obstruct the outlets of the drains and impound and back up the surface waters on her lands causing the most of the land to remain boggy and swampy and incapable of profitable cultivation. It is alleged that she as a matter of law had an implied reserved easement to discharge her drains through and under the lands she deeded, the drains being open and obvious, and necessary to the enjoyment of her lands, and to obstruct them was not only a tort by the Tennessee Valley Authority but also a taking of her property for a public use by the United States for which she has a remedy under the Tucker Act.

Appellant contends that Rule of Civil Procedure 20, 28 U.S.C.A. following section 723c, authorizes the joinder of a claim against Tennessee Valley Authority with one against the United States under the Tucker Act. We think otherwise. The authority to make rules of procedure and to supersede inconsistent statutes given the Supreme Court by the Act of June 19, 1934, 28 U.S.C.A. §§ 723b, 723c, related only to actions at law and suits in equity. A proceeding under the Tucker Act is neither. In it only claims for money can be adjudicated. Reformation can be had of the contract on which the money claim arises, but not equitable relief as to land. Appellant's prayers for reformation of the deed and a declaratory judgment would have to be ignored. United States v. Jones, 131 U.S. 1, 9 S.Ct. 669, 33 L.Ed. 90; United States v. Milliken Imprinting Co., 202 U.S. 168, 26 S.Ct. 572, 50 L.Ed. 980. The claim for money here asserted is at law rather than in equity, but the proceeding is not an action at law; a jury is not allowed, and is not demandable under the Seventh Amendment. The Tucker Act waives sovereign immunity from suit in court in the classes of claims it specifies, on procedure and with reservations which it sets out. 28 U.S.C.A. §§ 761, 762, 763, 764. The proceeding is sui generis. It does not fall under the new rules of procedure any further than by Sect. 761, supra, it fell under the old ones. It is not to be embarrassed by joining other litigants who may be entitled to jury trial, and whose liability must necessarily depend on different principles.

But, in the spirit of Rule 21, the petition ought not to be dismissed for the misjoinder, but the claims ought to be separated for trial, with a repleader if deemed advisable. We shall consider each claim.

That against the United States can be only for money for a taking of property under the Constitution. The deed previously made cannot be reformed. The license provision above quoted says only that no liability is waived as to the land not conveyed; it creates none. But reformation is not needed, for we are of opinion that notwithstanding the deed which appellant made in fee simple with full warranty, there is implied a reserved easement to maintain and use the established drains which were open and obvious and necessary to the enjoyment of her land not conveyed, no other convenient way of draining them being in existence. Hamby v. Stepleton, 221 Ala. 536, 130 So. 76; Birmingham Trust & Savings Co. v. Mason, 222 Ala. 38, 130 So. 559. 17 Am.Jur., Easements, Sect. 75, 82.

An easement is property which when taken must be compensated, if in itself valuable. Monongahela Navigation Co. v. United States, 148 U.S. 312, 13 S.Ct. 622, 37 L.Ed. 463; United States v. Welch, 217 U.S. 333, 30 S.Ct. 527, 54 L.Ed. 787, 28 L.R.A.,N.S., 385, 19 Ann.Cas. 680. But it does not follow that what has happened is a taking of which complaint may be made. Nothing has been done to appellant's drains except to raise the river to the 556 foot level. She knew that was to...