United States v. Ure

• Decision Date: 12 September 1955
• Docket Number: No. 14127,14128.,14127
• Citation: 225 F.2d 709
• Parties: UNITED STATES of America, Appellant, v. Ira R. URE and Edna B. Ure, husband and wife, Edward O. Muir and Mary W. Muir, husband and wife, and Clarence Roberts and Afton W. Roberts, husband and wife, doing business under the name and style of Owyhee Farms, Appellees. UNITED STATES of America, Appellant, v. FINE SHEEP COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

225 F.2d 709 (1955)

UNITED STATES of America, Appellant, v. Ira R. URE and Edna B. Ure, husband and wife, Edward O. Muir and Mary W. Muir, husband and wife, and Clarence Roberts and Afton W. Roberts, husband and wife, doing business under the name and style of Owyhee Farms, Appellees.

UNITED STATES of America, Appellant, v. FINE SHEEP COMPANY, a corporation, Appellee.

Nos. 14127, 14128.

United States Court of Appeals Ninth Circuit.

September 12, 1955.

J. Lee Rankin, Asst. Atty. Gen., William H. Veeder, Sp. Asst. to Atty. Gen., C. E. Luckey, U. S. Atty., Portland, Or., for appellant.

Gallagher & Gallagher, Ontario, Or., Robert D. Lytle, Roy Kilpatrick, Lytle, Kilpatrick & Schroeder, Vale, Or., for appellee.

Before HEALY, BONE, and ORR, Circuit Judges.

HEALY, Circuit Judge.

The two suits presently before us were brought against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. Judgments in damages were awarded below in favor of appellees for the flooding of their lands following breaks in what is known as the North canal of the Owyhee Reclamation project, centered in Malheur County, Oregon. This is a project constructed and being operated by the United States Reclamation Service.

One hundred ninety-one other suits growing out of the same breaks were brought by water users served by the canal seeking damages for loss of crops consequent on the government's failure to deliver water for a period following the occurrence. Their lands were not subjected to flooding. The two groups of cases were by the court consolidated for the purpose of pre-trial conference and the taking of evidence as to liability. In the group not involving flooding the court found that the United States was not chargeable with negligence, but had exercised due care in the performance of its obligation to deliver water. Upon appeal that decision was affirmed. White v. United States, 9 Cir., 193 F.2d 505. On the same record the trial court granted its judgments against the government in the flooding suits now under consideration. The opinion of the court (Judge Fee) in the consolidated cases is reported in D.C., 93 F.Supp. 779.

The North canal is one of the major structures of a project which has converted a largely arid region into a rich agricultural area. Its source of supply is the Owyhee River, where the Service erected a dam impounding waters of that stream at a point some 35 miles distant from the scene of the flooding. The canal was built in 1935 pursuant to plans of competent engineers of the Service, who followed the general practices of canal construction in the area. The canal's location was necessarily determined by the source of the water and by the terrain. Eleven years of successful operation preceded the breaks.

The first break occurred on July 14, 1946, a half-hour after the second of two daily inspections by ditch riders had failed to disclose existence of any danger. The second break occurred five days later at a point some 30 feet below the first, a few hours after repairs of the first break had been completed. At the points where the breaks occurred the canal is located on the lower slope of a hill. Normally, the water flowed in the portion of the canal which had been excavated in the natural soil, that is to say, the flow was not against the built-up portion of the bank. The canal at this place was not lined with any special material. The slope from the lower bank toward the cultivated lands below is gentle, but its steepness increases sharply some distance below the canal. An engineer who observed the second break testified that the bottom of the canal went out — not the built-up bank. The lands on which the damages from the flooding occurred lie at least a half mile distant from the breaks and approximately 260 feet below the canal in elevation. The escaping waters from both breaks followed an identical course.

It appears customary in respect of canals of this type to make engineering inspections during the non-irrigation season (when water is not flowing in the canal) and to make two inspections each day by non-engineers (ditch riders) while the canal is in operation. This was the practice followed by the Service in the present instance, and the inspections made disclosed no danger. An investigation of the first break did not reveal its cause or disclose any indication of further peril. Repairs were made hurriedly to permit the resumption of irrigation at the earliest possible moment. Extensive investigations after the second break disclosed that the earth four feet below the bottom of the canal was saturated with water and had completely broken down. The inability of this saturated subsoil to support the weight of the water flowing through the canal was advanced by the government in its showing as the cause of the breaks. However, the trial court found that the cause after the lengthy period of operation was conjectural.

The court predicated its judgment against the government in the present cases primarily upon the principle of absolute liability enunciated in Rylands v. Fletcher, 1 E.R.C. 236, L.R., 3 H.L. 330. That principle, of course, is that one who permits a highly dangerous instrumentality or agency which is located on his property and is under his control to escape and damage another is liable for the damage irrespective of negligence or fault. The court was of the view that the Rylands v. Fletcher doctrine is accepted in Oregon, and language found in a subsequent Oregon decision, Brown v. Gessler, 191 Or. 503, 230 P.2d 541, 23 A.L.R.2d 815, probably confirms the view. At the time of the decision below, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427, had not been decided. In Dalehite the Court held that the Federal Tort Claims Act may be invoked only on a "`negligent or wrongful act or omission'" of a government employee. "Absolute liability, of course," said the Court, "arises irrespective of how the tortfeasor conducts himself; it is imposed automatically when any damages are sustained as a result of the decision to engage in the dangerous activity. The degree of care used in performing the activity is irrelevant to the application of that doctrine. But the statute requires a negligent act. So it is our judgment that liability does not arise by virtue either of United States ownership of an `inherently dangerous commodity' or property, or of engaging in an `extrahazardous' activity." Emphasis supplied. Dalehite v. United States, 346 U.S. at pages 44-45, 73 S.Ct. at page 972. Clearly, then, the basic principle relied on below may not now be applied. Cf. Rayonier, Inc., v. United States, 9 Cir., 225 F.2d 642.

Another legal ground to which the trial judge resorted and ably developed was the common law doctrine of liability without fault applicable in cases of trespass upon the property of another. For present purposes, as the judge recognized, this doctrine is indistinguishable from the principle of absolute liability enforced in cases involving the employment of an inherently dangerous agency. In light of the holding in Dalehite this ground, too, must be rejected in cases brought under the Tort Claims Act. Cf. Harris v. United States, 10 Cir., 205 F.2d 765.

Res ipsa loquitur, also, was relied on by the trial court as supporting its holding. As that doctrine is generally understood it has its basis in inferences of negligence drawn by the trier of fact. In White v. United States, supra, involving the identical facts now being considered, the trial court found the doctrine inapplicable, and we affirmed the decision. The conflicting determination in the present cases is traceable to the trial court's...