National By-Products, Inc. v. United States

Decision Date24 January 1969
Docket NumberNo. 431-65.,431-65.
Citation405 F.2d 1256,186 Ct. Cl. 546
PartiesNATIONAL BY-PRODUCTS, INC. v. The UNITED STATES.
CourtU.S. Claims Court

B. A. Webster, Des Moines, Iowa, attorney of record, for plaintiff. John Gamble and Robert A. Gamble, Des Moines, Iowa, of counsel.

Howard O. Sigmond, Washington, D. C., with whom was Asst. Atty. Gen. Clyde O. Martz, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.

OPINION

DAVIS, Judge.*

The plaintiff, owner of property on the south bank of Papillion Creek, a tributary of the Missouri River near Omaha, Nebraska, claims that the Government breached its informal contract to construct a levee on the plaintiff's side of the creek (south, or right) when it built one on the facing side (north, or left) to protect Offutt Air Force Base from occasional floods, with the result that the plaintiff's property was flooded twice in consecutive months in 1964. Alternatively, plaintiff contends that, by constructing its levee on the left side of the creek without a corresponding one on the right bank, the Government knowingly induced south-bank floods and thereby took a flowage easement over plaintiff's property for which the company is entitled to just compensation. The defendant answers that there was no contract made, that its agents lacked authority to agree to construct a levee on plaintiff's side of the creek, and that the Government is not estopped to deny the existence of such an agreement or its agent's authority. The defendant also asserts that there was no taking, that the damage to plaintiff's property was "consequential", and that plaintiff's cause of action — if any — sounds in tort, beyond this court's jurisdiction, and, in any case, is barred by 33 U.S.C. § 702c (1964) which relieves the United States from liability for flood damage in certain circumstances.

I.

To help in solving as many of these problems as we have to face, we open with a free-hand diagram of the area, put together from a number of the exhibits. Plaintiff National By-Products, Inc.'s properties (prior to the dealings involved in this case) are shaded, with its various buildings and three water wells indicated; it owned land on both sides of Papillion Creek. On the west this property is bounded by the track embankment of the Missouri-Pacific Railroad (MoPac) and a small plot owned by Herman Platt. On the east it abuts the embankment of the Chicago, Burlington & Quincy Railroad (CB&Q). This section of the creek is bounded by the CB&Q railroad bridge on the east and a county road bridge on the west, and is approximately 2,400 feet in length. Further upstream (i. e., to the northwest) there are two additional bridges over the creek, one for the MoPac railroad, the other for U. S. Highway 73-75. The entire reach of the creek shown on the map is about 9,000 feet long. Offutt Field (home of the Strategic Air Command (SAC), vital to the nation's security), lies north of Papillion Creek, and is separated from it by land owned by various individuals, mostly members of the Platt family.

Papillion Creek flows roughly southeast (from the top to the bottom of the diagram) at this point; it turns due east at approximately the lower edge of the diagram and empties into the Missouri River about 4½ miles southeast of plaintiff's property. In this area the Missouri flows substantially from north to

south. In its natural state, Papillion Creek was sinuous with a relatively narrow bottom and sloping, wooded banks. Flooding was relatively frequent and intense, but of short duration. Prior to 1963 the Creek was lined on both sides with farm levees commenced in 1910, varying in height from 6 to 12 feet and composed of uncompacted spoil dredged from the creek bed. They hugged the creek banks with little or no setback, and provided a channel capacity of approximately 10,500 c. f. s. (cubic feet per second) upstream from plaintiff's property.

Floods of from 10,150 to 15,800 c. f. s. occurred on six occasions from July 1948 to June 1960. The one in August 1959 breached the north-bank farm levee just below the MoPac bridge shown on the diagram, at or near the site of northbank levee breaches in prior floods of 1917 and 1932, and as on past occasions flooded a large portion of the Offutt Field area which was the natural flood plain of the overflow en route to the Missouri River. Emergency repairs were made at the point of the breach by the Corps of Engineers.

The Flood Control Acts of 1941 and 1944 proposed a civil works project for the prevention of floods along the Missouri River, involving the construction of dams and levees, including dikes along both sides of Papillion Creek. The Papillion Creek levees were part of two units, R-616 and R-613, each unit comprising a levee on the west bank of the Missouri and a "tie-back" portion along one side of Papillion Creek, connecting the Missouri River levee with high ground upstream on the creek. As authorized by Congress, each unit required assurances of local cooperation — providing of all lands, easements and rights-of-ways; saving the government free from all claims for damage; and maintaining the structures in the future. These assurances were originally given; however, the Korean conflict in the early 1950's caused suspension of the project. Afterwards, dams were constructed on the upper Missouri, decreasing the need for those portions of levee units R-616 and R-613 on the Missouri itself. In addition, the construction of Offutt Field reduced the number of farm acres along Papillion Creek on which the local drainage district could levy assessments. For these reasons the local assurances of cooperation were withdrawn for the whole unit, although there remained sentiment for the construction of the "tie-back" portions if they could be separately authorized. But no such partial unit was approved during the relevant time.

The flood in August 1959 which overran Offutt Field revived the interest of the Corps of Engineers in building levees along Papillion Creek, now as a military project to protect the SAC base. As the preliminary interchanges between the Corps of Engineers and the Air Force began,1 a difference in approach surfaced which was to continue throughout the planning stage. The Corps of Engineers, oriented to general civil works flood control projects, considered that a levee constructed only on the left (north) bank would increase the likelihood of flooding on the right (south) bank, with consequent claims for damages. The Corps therefore urged erection of the "tie-back" portions of the already designed levees, protecting both banks of the creek. The Air Force, interested in the more limited objective of protecting Offutt at the lowest possible cost, and feeling that it could not justify the expenditure of military funds for the protection of private property, refused to authorize the design of any improvements on the right side.

In September 1961 the Corps requested permission to add a right-bank portion to the design, in order to appease local interests opposed to the proposed left-bank levee,2 which appears at this time to have incorporated substantially the plan of the ultimately constructed Offutt levee — a levee set back from the creek as much as 400 feet, designed to contain "once-per-century" (1% probability) floods of 28,500 c. f. s., with an additional two foot freeboard. Permission for the requested additional authority was denied by the Air Force.

Congressional authorization for the construction of an Offutt levee as a military project was contained in Public Law 87-57, June 27, 1961, 75 Stat. 96, 106, "To authorize certain construction at military installations, and for other purposes". This legislation earmarked $541,000 for real estate acquisitions, utility installations, and ground improvements. The Air Force considered the Offutt levee to be strictly a military project, as opposed to a civil works flood control project, although it was designed to fit into the eventual overall flood control program. Accordingly, the Corps of Engineers did not include the Offutt levee in its July 1962 engineering report submitted to Congress concerning the proposed development of flood control measures on Papillion Creek, but referred to it as a military project which had recently been approved for construction.

The Engineers again requested the Air Force, in October 1961, to expand the project to cover the right bank. The CB&Q had expressed opposition to the proposed levee, and refused to cooperate by granting an easement or license to tie the levee into its rail embankment because of the increased danger to its tracks on the opposite (right) bank which would be shielded only by the more vulnerable farm levees. The railroad later estimated that without right-bank levee protection it would be necessary to raise its entire bridge embankment to allow water to flow under it in times of flooding, at an expense of $85,000, plus additional liability to damage claims by farmers east of its tracks who would then be subject to greater flooding. The Corps suggested the inclusion of a right-bank levee as a means for obviating the CB&Q objections. The Air Force Regional Civil Engineer again refused.

During March 1962 the Corps personnel developed a compromise plan for dissolving the CB&Q objections in a way acceptable to the Air Force. The railroad would be paid a large enough sum for its property to be acquired by the Government so as to include an amount sufficient for the CB&Q to build a levee on the right bank to protect its embankment. This extra payment would be justified to the Air Force as a reasonable estimate of the severance damages suffered by the railroad in the taking of its land. In fact, this appeared to be the cheapest method for the CB&Q to maintain the same degree of protection which it enjoyed prior to the new left-bank levee. The Air Force authorized the Corps to design a...

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