Nunnally v. United States

• Decision Date: 26 December 1956
• Docket Number: No. 7308.,7308.
• Citation: 239 F.2d 521
• Parties: Claude A. NUNNALLY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

239 F.2d 521 (1956)

Claude A. NUNNALLY, Appellant, v. UNITED STATES of America, Appellee.

No. 7308.

United States Court of Appeals Fourth Circuit.

Argued November 28, 1956.

Decided December 26, 1956.

George R. Humrickhouse and Robert N. Pollard, Jr., Richmond, Va. (C. O'Conor Goolrick, Fredericksburg, Va., on the brief), for appellant.

A. Donald Mileur, Atty., Dept. of Justice, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., Lester S. Parsons, Jr., U. S. Atty., Norfolk, Va., Edwin J. Slipek, Asst. U. S. Atty., Richmond, Va., and Roger P. Marquis, Atty., Dept. of Justice, Washington, D. C., on the brief), for appellee.

Before PARKER, Chief Judge, SOBELOFF, Circuit Judge, and THOMSEN, District Judge.

THOMSEN, District Judge.

Plaintiff's appeal in this action under the Tucker Act, 28 U.S.C.A. § 1346(a) (2), raises the question whether his property or any interest therein has been taken by the United States within the meaning of the Fifth Amendment. The complaint also alleged a claim under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), but plaintiff concedes that he proved no case under that act.

The United States established the Dahlgren Naval Proving Ground at Dahlgren, Virginia, in 1918. Since that time sixteen-inch naval guns and many other types of ordnance have been tested there.

In 1939 plaintiff and another physician, Dr. N. Talley Ballou, purchased Wood Island, which has an area of about one acre, and is located in Machodoc Creek about 2,300 yards from the then boundaries of the Proving Ground. They built a house and other improvements on the island, and used it for recreational purposes.

In 1944 the United States acquired by condemnation, as an addition to the Proving Ground, 1,641 acres in the area known as Tetotum Flats or Pumpkin Neck, located on the south shore of Machodoc Creek, about 800 feet from Wood Island.

Since November, 1945, the United States has conducted two types of tests on Pumpkin Neck: aircraft drops and fragmentation tests. Aircraft drops are made to learn how a weapon behaves in falling and striking the ground; most of those tests are made with weapons that do not contain explosives. In fragmentation tests the weapon is placed inside a circular arena made of steel plates, lined with boxes of sawdust or fiberboard, which trap the fragmented pieces; their purpose is to learn where the parts of an ordnance item go when it explodes.

There are two main testing areas on Pumpkin Neck: the octagon target, approximately 3,000 feet from Wood Island, and the pyramid target, approximately 7,000 feet from the island and from main administration buildings on the Proving Ground. A third area, known as the Howland Point area, about 2,000 feet from the island, was used in September and October, 1955, for ground detonations. Pumpkin Neck is not used as a bombing range.

The government's records show that over a 4½ year period, 1950 to 1955, aircraft drops were made on 73 days, on only nine of which explosives were used. The great majority of the explosive items contained only one pound of black powder, six contained three pounds, eight contained four pounds, five contained twelve pounds, and ten contained 125 pounds of explosives. Ninety-three percent of the drops were made on the pyramid (far) target. All were controlled drops made by aircraft using predetermined courses. None of the courses passed over Wood Island; but on a few occasions the aircraft failed to fly on the prescribed course, and flew over the island. On all but nine of the flights the lowest altitude reached by the airplane was at least 2,000 feet. A few came over at treetop height. Fragmentation tests during a 6½ year period, 1949 to 1955, were made on 399 days, but few of the items contained more than 250 pounds of explosives. The intensity with which Pumpkin Neck is used for fragmentation tests is not increasing. The largest charge ever exploded there, 1,800 pounds, was set off in 1946. No tests were made on Sundays or at nights.

In August, 1946, about nine months after the tests began on Pumpkin Neck, plaintiff purchased Dr. Ballou's half interest in the island. Thereafter plaintiff made additional improvements to the house and to the land. He continued to use the island for vacations, for weekends, and for an occasional afternoon visit in the middle of the week, until 1950, when he purchased a new vacation spot nearer his home.

Plaintiff's property on Wood Island has not been physically damaged as a result of the activities on Pumpkin Neck. Some of the ceiling panels in the house have fallen but it was not proved that they...