Ure v. United States
| Decision Date | 13 March 1950 |
| Docket Number | 3855,3870.,3861 to 3865,3871,No. 3669 to 3853,3669 to 3853 |
| Parties | URE et al. v. UNITED STATES (two cases). WHITE et al. v. UNITED STATES. FINE SHEEP CO. v. UNITED STATES. |
| Court | U.S. District Court — District of Oregon |
Gallagher & Gallagher, Ontario, Or., Robert D. Lytle, Roy Kilpatrick, Vale, Or., for plaintiffs.
Henry L. Hess, U. S. Atty., Portland, Or., William H. Veeder, Sp. Asst. to Atty. Gen., for defendant.
The present opinion concerns the responsibility of the United States to one hundred ninety-three landowners, served by the Owyhee Canal, based on two different type claims arising because of the breaking of the canal, which was under government control. The first class relates to damages on account of the failure to deliver water because of the break, whereby crops were lost. The second class relates to direct trespass of the water upon lands as a result of the break. These cases were consolidated for the purpose of pretrial conference and of taking evidence as to liability. A representative of the cases depending upon failure to deliver water is that of White's. One of the cases of the Ure's was chosen as illustrative of the causes where damage was claimed by floodings.
After a pretrial conference in these causes, there was entered a pretrial order, from which the agreed facts are drawn for the purpose of this memorandum. The Whites claim to own certain land, which it is agreed is situated within the boundaries of the Owyhee Reclamation Project, and that the irrigable area thereof is arid. The land is also within the Owyhee Irrigation District, a quasi municipal corporation of the State of Oregon, which entered into a contract with the United States in 1926. By this contract, the District agreed that it would indemnify and hold harmless United States against any and all costs arising from construction, operation and maintenance of the irrigation system constructed by the defendant to reclaim and serve the irrigated acreage. It is further agreed that on account of drought, inaccuracy in distribution or other causes, there may be shortages in the water supply, and, "while the United States will use all reasonable means to guard against such shortage," the latter and its agents shall have no liability therefor. Sheff White, one of the plaintiffs, entered into a contract with the District, confirming and consenting to the terms of the contract above set out, binding himself, his successors and the irrigable lands to the terms and conditions. The contract was confirmed by decree of a court of competent jurisdiction.
During all of the year 1946, United States was in control of and operating the Owyhee Reclamation Project, including the North canal, which is approximately seventy miles long. A break occurred therein on Sunday, July 14, 1946, at a point about thirty-six miles from the head of the canal. The agents of the government had turned the water into the canal and were controlling the flow of the stream therein. The break was approximately fifty feet wide at its widest point. Water in the canal, which could not be diverted from the canal above and below the break, drained out through the break. Repair work was immediately commenced. On Thursday, July 18, repairs had progressed to a point where the engineer in charge ordered water turned into the canal, which was done. A second break occurred at approximately 1:30 a. m., July 19, 1946, downstream from the first break.
The Whites had paid all water assessments levied by the District against the irrigable land. Although it is not expressly stipulated, there is no doubt but what the crops depending upon irrigation water were damaged by the lack thereof at the season wherein the breaks occurred.
The Whites have made many contentions as to the failure of the United States to furnish water to mature the crops growing on these lands, but, for the purposes of this opinion, they may be summarized briefly. They contend, as far as crop damage was concerned, that they became parties to the contract between the District and the Government and were entitled to the delivery of the water, to which they had legal title as appurtenant to the realty. It is contended that the United States owed a duty to exercise reasonable care in the construction, operation and maintenance of the canal, and that the breach of this duty in several particulars proximately resulted in the break and the failure to deliver water to the land of the Whites for the period from July 14 to July 31. The amount of the damage was reserved by the Court for trial in the event the issue of liability was determined against the Government.
The Ures, and others who suffered direct damage from the invasion of their lands by the rush of waters from the break, claim that, as a result of the waters' escaping from the canal, their lands were flooded and a certain portion was washed away and other portions rendered unusable by deposit of sand, rocks and debris, and that the resulting trough separates one portion of the land from the other. Injuries to structures on the land are also claimed. Although other forms of the basic contention are presented, there is one statement of claim in the pretrial order which is entirely comprehensive. It is said that "because the defendant retained exclusive control and management of the project and all its facilities, it was the duty of the defendant to protect the plaintiffs from the flooding." The land where the break occurred was vested in the United States. The fact that the lower side of the ditch was without lateral support, because the terrain sloped off to a marked degree, is set up. It is claimed that the ditch had a capacity of 451 second feet of water, and that there were 450 second feet being carried at the time of the first break. It is also indicated that this column of water was flowing for a distance of 36.15 miles down to and through the break.
The United States contends, first, that the landowners were not parties to the contract between the Irrigation District and the Government, and, as a result, no duty was owed to them. Disposition of this may be made shortly. Sheff White and Ure accepted the burdens of the contract in accordance with a direct provision therein. According to a proviso thereof, the land could not have obtained water unless the District assessments were paid and unless the contract between the Government and the District were accepted by the landowners. It might thus be indicated that the action was on a contractual liability and therefore could be brought under the Tucker Act. Another phase of the contention of the Government is that, since there was no contractual liability to the Whites, there was no duty owed to them under the contract, and therefore a tort claim for the damage was not maintainable. The argument just above stated also applies to this contention. But neither of these two points need be decided. It makes no difference whether the Whites could sue on the contract or not, either in tort or contract. The Tort Claims Act provides that there shall be a remedy "for injury or loss of property * * * caused by the negligent or wrongful act or omission of any employee of the Government * * * under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."1 Under the law of Oregon, by assuming the operation and maintenance of the canal, the Government became a common carrier of water. It thereby incurred the duty to use reasonable care to effect delivery to the Whites of the amount of water called for by the water right which was a real appurtenance to their land. And, since this is all that the plaintiff asks of the Government, whether on the theory of contract, tort based on contract or as a result of the duty established by the laws of the state upon one assuming to act as a common carrier of water to lands to which the water right is appurtenant, the same basis for recovery is laid. The Government attorneys contend that, in the construction, maintenance and operation of the canal, there was exercised "a strictly discretionary governmental function of the highest character," and therefore that the Government is specifically exempt under the provisions of the Federal Tort Claims Act, 28 U.S.C.A. § 2680(a). The Court is of opinion that this argument is entirely unsound. The Government, in order to collect back the money which it had spent upon the construction of the work and the canal and the operation thereof through an easement which it owned, assumed the management and control of the column of water and the duty to deliver. If it were necessary to so decide, it might be held that this was in a proprietary capacity, but, whether or not that be true, the words of exemption in the Act do not apply to such duties as these. It is also contended that, in selecting the course of the canal, the Government agents had no alternative but to construct it over the type of soil upon which it is located, and had to exercise its discretion as to whether it should construct the canal over the character of soil on which it was constructed or to refrain from constructing it entirely.
The gist of the charge of negligence, however, is that it maintained and operated the canal at a full head knowing the character of soil upon which it was built without lining it with concrete, impervious soil or constructing an impervius core on the lower bank, which was required originally by the plans.
The question of whether ordinary care was exercised by the officers, agents and employees of the Government in the construction, operation and maintenance of the irrigation works, in view of the duty to deliver water to the Whites, comes up for decision. The plaintiffs' charges of negligence are now examined.
There was the theory of the plaintiffs that there was some sort of a reservoir in the...
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