Parada v. United States, 27464.

• Citation: 420 F.2d 493
• Decision Date: 14 January 1970
• Docket Number: No. 27464.,27464.
• Parties: Benjamin PARADA, and wife, Rosario Jurado De Parada, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

420 F.2d 493 (1970)

Benjamin PARADA, and wife, Rosario Jurado De Parada, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 27464.

United States Court of Appeals Fifth Circuit.

January 14, 1970.

William L. Merkin, Colbert N. Coldwell, El Paso, Tex., for appellants.

Ted Butler, U. S. Atty., R. Caballero, Jamie C. Boyd, Asst. U. S. Attys., El Paso, Tex., Romualdo Cesar Caballero, Trial Atty., U. S. Dept. of Justice, Tax Div., Criminal Section, Washington, D. C., for appellee.

Before GEWIN, THORNBERRY and AINSWORTH, Circuit Judges.

THORNBERRY, Circuit Judge:

This is an appeal from the United States District Court for the Western District of Texas. Appellants, plaintiffs below, are landowners whose land and other property was damaged by water that flowed from a break in an irrigation canal constructed, maintained and operated by the Bureau of Reclamation of the United States Department of the Interior. Plaintiffs brought their actions under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq., alleging that the Government was negligent in that: (1) It failed to inspect the canal at the place where the break occurred; (2) it failed to maintain a sufficient number of employees for proper inspection and maintenance of the canal; (3) it allowed the water to rise to a high level when it knew of the gopher problem in the canal; (4) it failed to inspect the north wall of the canal even after a report that there was an apparent leak in that wall; and (5) it did not furnish properly equipped vehicles for its ditchriders to inspect the area in question.

The Government defended on the theory that the break was caused by the burrowing of gophers and thus was an "act of God." The cause was tried to the court, and the court, unfortunately filing only sparse findings, found that the Government was negligent in failing to inspect the canal properly but that such negligence was not the proximate cause of the damages suffered by appellants.

After reviewing the entire evidence we are "left with the definite and firm conviction that a mistake has been committed," United States v. United States Gypsum Company, 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, and therefore we hold that the district court's finding that the Government's negligence was not the proximate cause of plaintiffs' injuries is clearly erroneous and must be reversed.

The evidence clearly established that the Government was negligent and that its negligence was the proximate cause of the injuries incurred by plaintiffs. The riverside canal is used to divert water from the Rio Grande to the farmers in the area for irrigation uses. The canal is approximately sixteen miles long, and at the point of the break is four feet deep and fifty feet wide. The canal was built of natural soil and its sloping banks are not lined with material impervious to water. Before the break took place, there had been heavy rains in the upper valley, and the extra water from these rains had been diverted into the canal for the benefit of the farmers. Five hundred cubic feet of water were in the canal "down to the point where the flood occurred." Although this was less than the designed capacity, it was higher than average.

The Bureau of Reclamation is responsible for the maintenance and operation of the canal. The Bureau employs ditchriders who daily inspect the canal and make recommendations for repair; they report weaknesses, irregularities or leaks in the canal. The ditchriders are responsible for the distribution of the water and control of the water level in the canal. The purpose of the inspections is to protect the land bordering the canal.

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