Seaboard Air Line R. Co. v. County of Crisp of State of Ga.

• Court: U.S. Court of Appeals — Fifth Circuit
• Writing for the Court: TUTTLE, CAMERON and JONES, Circuit
• Citation: Seaboard Air Line R. Co. v. County of Crisp of State of Ga., 280 F.2d 873 (5th Cir. 1960)
• Decision Date: 01 September 1960
• Docket Number: No. 18171.,18171.
• Parties: SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. COUNTY OF CRISP OF THE STATE OF GEORGIA et al., Appellees.

280 F.2d 873 (1960)

SEABOARD AIR LINE RAILROAD COMPANY, Appellant, v. COUNTY OF CRISP OF THE STATE OF GEORGIA et al., Appellees.

No. 18171.

United States Court of Appeals Fifth Circuit.

July 12, 1960.

Rehearing Denied September 1, 1960.

J. C. McDonald, Fitzgerald, Ga., for appellant.

H. H. Perry, Jr., Albany, Ga., Graydon D. Reddick, Cordele, Ga., Perry, Walters & Langstaff, Albany, Ga., Wright & Reddick, Cordele, Ga., for appellees.

Before TUTTLE, CAMERON and JONES, Circuit Judges.

JONES, Circuit Judge.

Crisp County, Georgia, herein called the County, was empowered by an amendment to the Constitution of Georgia¹ to build a dam across the Flint River, and to erect and operate a hydro-electric generating plant at a site upon the river specified in the constitutional provision. A Crisp County Power Commission was created, a bond issue was authorized, and the Commission was empowered by the constitutional provisions to acquire rights of way for transmission lines and for the purpose of building, maintaining and operating dams, ponds, plants and machinery. The Power Commission was "authorized and empowered to employ such agents, servants, and employees, and to make and enter into such contracts as are reasonable and proper in the exercise of the duties and powers herein conferred upon said Commission."

The Flint River, at the site where the dam and generating plant were built, is a navigable stream. The County was required under the Federal Power Act to procure a license. See 16 U.S.C.A. § 791a et seq. The statute, among other things, provides:

"Each licensee hereunder shall be liable for all damages occasioned to the property of others by the construction, maintenance, or operation of the project works or of the works appurtenant or accessory thereto, constructed under the license, and in no event shall the United States be liable therefor." 16 U.S.C.A. § 803 (c).

The dam and hydro-electric plant was built during or before 1930. Since the completion of the dam and power plant, the County has been generating and marketing electric power.

The appellant, Seaboard Air Line Railroad Company, and its predecessors, operated a line of railroad in interstate commerce between Savannah, Georgia, and Montgomery, Alabama. This line of rail had been in operation for many years before the County's dam was built. The Seaboard's tracks crossed the Flint River about eight miles upstream from the site of the dam, by a fill or embankment and a trestle or bridge. The building of the dam and the consequent raising of the water level damaged the embankment of the Seaboard over which its tracks were laid. In 1939 a written agreement was made between the Receivers of the Seaboard's then predecessor and the County. In the preamble to this contract it was recited that "the pool of water impounded by the said dam extends to and beyond the said line of railroad crossing Flint River and has submerged a portion of the embankment constituting part of said railroad line, and the submergence of the said railroad embankment by the aforesaid pool of water has occasioned injury to the said embankment; and the parties hereto have agreed on the terms and conditions pursuant to which said injury shall be repaired and future injury protected against." Included in the agreement, and stating the terms and conditions for protecting the Seaboard's embankment from further injury, was Section 3, which provided:

"Should the normal high water level of the said pool of water be raised by the County or should any change in existing conditions require, whether due to increase in the height or other structural changes in the dam, failure of the rip-rap to be installed hereunder properly to protect the said embankment from injury, or otherwise, County will at its expense take such action as may be necessary to protect said railroad embankment from injury."

By its terms the agreement inured to the benefit of the successors of the then railroad company and its Receivers.

On January 29, 1957, the Seaboard gave notice to the County that the embankment was in a bad state of repair and had been seriously damaged by being undermined by water impounded by the dam. Seaboard made demand upon the County to protect the embankment. The County refused to repair the embankment. On June 28, 1958, the Seaboard brought suit against the County alleging that the Seaboard had made repairs to the embankment at a cost of $54,286.18 for which it prayed judgment. The Seaboard asserted that the County was liable both under the agreement and by reason of the provisions of the Federal Statute under which the Federal Power Commission granted a license to the County. In its answer the County denied some of the Seaboard's factual averments but admitted that it had refused to make repairs on the embankment. The County asserted that the Seaboard's complaint failed to state a claim upon which relief could be granted; and specifically alleged that the contract was ultra vires and unenforceable so far as the County is concerned, that the Federal Statute imposed no liability on the County and if it undertook to do so it would be unconstitutional and void, and that the cause of action of the Seaboard, if any it had, was in eminent domain for damage resulting from a taking when the dam was built, but that any such claim had long since been barred by limitations.

The district court held with the County. It was of the opinion that the Federal Power Act imposed no liability on the County for injuries inflicted upon the property of others by the County's operations. The court held that, under the Georgia Constitution and the decisions construing it, there was no authorization for the County to enter into the contract with the Seaboard, and that the County was prohibited from assuming the obligations which it had undertaken by its contract to discharge. The complaint was dismissed, judgment was entered for the County, and the Seaboard has appealed. We think the district court has misconceived the meaning and purpose of the provision of the Federal Power Act which provided for liability of licensees for damage to property of others, although its conclusion that the liability imposed relates only to legal liabilities already existing has support in two state court decisions. Rice Hope Plantation v. South Carolina Public Service Authority, 216 S.C. 500, 59 S.E.2d 132; Alabama Power Co. v. Smith, 229 Ala. 105, 155 So. 601. If the County had not obtained a license from the Federal Power Commission it would have had no right to build the dam and construct the generating plant. Federal Power Commission v. Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215; First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 U.S. 152, 66 S.Ct. 906, 90 L.Ed. 1143, rehearing denied 328 U.S. 879, 66 S.Ct. 1336, 90 L.Ed. 1647; Georgia Power Co. v. Federal Power Commission, 5th Cir., 1946, 152 F.2d 908. The license is conditioned upon the acceptance of the terms of the Act. 16 U.S. C.A. § 799. It seems to us unlikely that the Congress intended by the language it used to do no more than to disclaim liability on the part of the United States for the acts of the licensee. When the Federal Power Act was passed in 1920, sovereign immunity from suit would have protected the United States from any liability. Cf. Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570. The waiver of the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, did not become effective until many years later. The control of the United States over navigable streams empowers Congress to condition the licenses in any manner it deems proper. No impropriety can be inferred from a requirement that a licensee protect the property of others. That this requirement was imposed by the Act as a condition of a license has been recognized by the Supreme Court. Henry Ford & Son, Inc. v. Little Falls Fibre Co., 280 U.S. 369, 50 S.Ct. 140, 74 L.Ed. 483. See also Grand River Dam Authority v. Federal Power Commission, 10 Cir., 1957, 246 F.2d 453; United States v. Central Stockholders Corp., 9 Cir., 1931, 52 F.2d 322; Levin v. Philadelphia Electric Power Co., D.C. E.D.Pa.1929, 34 F.2d 224. In the year 1939, the same year that the County made its contract with the Seaboard to protect the embankment from injury, the Supreme Court of Washington held that, under the provision of the Federal Power Act, a licensee which erected a dam was liable to a railroad for damages to an embankment. Great Northern Railway Co. v. Washington Electric Co., 197 Wash. 627, 86 P.2d 208. We are unable to reach any different...