WA Ross Const. Co. v. Yearsley, 11353.

• Decision Date: 02 June 1939
• Docket Number: No. 11353.,11353.
• Citation: 103 F.2d 589
• Parties: W. A. ROSS CONST. CO. v. YEARSLEY et al.
• Court: U.S. Court of Appeals — Eighth Circuit

103 F.2d 589 (1939)

W. A. ROSS CONST. CO. v. YEARSLEY et al.

No. 11353.

Circuit Court of Appeals, Eighth Circuit.

May 10, 1939.

Rehearing Denied June 2, 1939.

Clay C. Rogers, of Kansas City, Mo., and John M. Dierks, of Nebraska City, Neb. (Paul Jessen, of Nebraska City, Neb., and O. C. Mosman and C. Jasper Bell, both of Kansas City, Mo., on the brief), for appellant.

Robert Van Pelt, of Lincoln, Neb. (Dwyer & Dwyer, of Plattsmouth, Neb., and Perry, Van Pelt & Marti, of Lincoln, Neb., on the brief), for appellee Lawrence Yearsley.

Before SANBORN, THOMAS, and VAN VALKENBURGH, Circuit Judges.

SANBORN, Circuit Judge.

This is an action at law brought by Lawrence Yearsley and George Yearsley, who were the owners of an undivided two-thirds interest in a 250-acre farm and its accretions bordering upon the Missouri River in Otoe County, Nebraska, against the appellant, W. A. Ross Construction Company (hereinafter referred to as the contractor), — which had, under a contract with the United States, constructed dikes in the Missouri River for the purpose of improving navigation, — to recover damages due to the erosion of the plaintiffs' "accretion land" caused by the deflecting of the current of the river against it by the dikes and by the wash from the paddle wheels of the appellant's steamboats. The owner of the other undivided one-third interest in the land refused to join the Yearsleys as a plaintiff in the action, and was therefore made a defendant. Issues were joined; the case was tried to a jury; and from a judgment for $806 against the contractor entered upon a verdict for the plaintiffs, this appeal was taken.

In their amended petition, filed in December, 1937, the plaintiffs, alleged, in substance, that they were the owners of an undivided two-thirds of the land in suit; that for a period of about three years, the contractor had been engaged in construction work on the Missouri River, changing its course; that it had built dikes in the river and had used large boats with paddles and pumps to wash away land along its banks, and, in so doing, had washed away 100 acres, more or less, of good pasture and farm land belonging to the plaintiffs, which was worth $50 an acre; that during the month of July, 1937, by reason of the dikes built by the contractor in close proximity to the plaintiffs' land, the waters of the river were cast upon their land, completely destroying the blue grass thereon and impairing the value of the land; that, in addition, the contractor had cut trees and brush growing upon it; — all to the plaintiffs' damage in the sum of $8,000, for which judgment was prayed.

The contractor, in its answer, admitted the plaintiffs' interest in the land in suit; admitted that it had done construction work and built dikes in the Missouri River for more than three years; but denied that it had, by such construction work, washed away any part of the plaintiffs' land, produced artificial erosion, or changed the course of the river, except to confine it between stabilized bank lines as set and defined by the Government Engineers in charge of this work for the Government of the United States. It denied any trespassing, tree cutting, or flooding of the plaintiffs' land. It asserted that all of the construction work which it had performed and of which the plaintiffs complained had been performed under written contracts with the Government and under the directions of the Secretary of War and the supervision of the Chief of Engineers of the United States, for the purpose of improving the navigation of the Missouri River as authorized by an Act of Congress, and that the construction work so performed by the contractor was a part of the plan of the Government to establish a permanent navigable six-foot channel in the Missouri River; and that if the construction of the dikes by the contractor for the Government, in aid of navigation, had injured the plaintiffs' land, the injury was not of a character which entitled the plaintiffs to compensation or damages.

The plaintiffs in their reply admitted that the contractor was operating under a Government contract, and alleged that the contract did not contemplate the taking of their land without just compensation and due process of law, and that the contractor's acts resulting in the destruction of a part of their land was a violation of their rights under the Fifth Amendment to the Constitution of the United States, U.S.C.A., prohibiting the taking of private property for public use without just compensation.

Upon the trial, the evidence failed to sustain the claim of the plaintiffs that the contractor was responsible for the cutting of trees or for the flooding of the lands in suit. The evidence established that two dikes built in the river above, and one dike built opposite, their land had diverted the channel or the current of the river from the Iowa shore to the Nebraska shore, and that, as a result, the "accretion land" of the plaintiffs to the extent of perhaps 95 acres had been eroded and carried away. There was also evidence tending to show that in extending the dike opposite the plaintiffs' land from the Iowa shore toward the Nebraska shore, the contractor, apparently to keep open an adequate channel for navigation between the end of the dike and the shore, accelerated the erosion of the plaintiffs' land by using the paddle wheels of its steamboats to increase the action of the current. There was no evidence, however, to show that this "paddle washing" had done anything more than hasten the inevitable. It was undisputed that the work which the contractor had done in the river bed was all authorized and directed by the Government of the United States for the purpose of improving the navigation of this navigable river.

The plaintiffs were entitled to maintain this action against the contractor alone, even though the construction work complained of was done under the authority and direction of the United States. The rule is that an officer or agent of the United States may be sued where he has exceeded his authority or acted under an authority not validly conferred; and the exemption of the United States from liability for tort does not protect its officers or agents from personal liability to persons whose rights of property have been wrongfully invaded by them. Little v. Barreme, 2 Cranch 170, 178, 2 L.Ed. 243; United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 27 L.Ed. 171; Noble v. Union River Logging Railroad Co., 147 U.S. 165, 171, 172, 13 S.Ct. 271, 37 L.Ed. 123; Belknap v. Schild, 161 U.S. 10, 18, 16 S.Ct. 443, 40 L.Ed. 599; Tindal v. Wesley, 167 U.S. 204, 214, 215, 222, 223, 17 S.Ct. 770, 42 L.Ed. 137; Scranton v. Wheeler, 179 U.S. 141, 152, 21 S.Ct. 48, 45 L.Ed. 126; Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 620, 32 S.Ct. 340, 56 L.Ed. 570; Goltra v. Weeks, 271 U.S. 536, 545, 46 S.Ct. 613, 70 L.Ed. 1074; Ickes v. Fox, 300 U.S. 82, 97, 57 S.Ct. 412, 81 L.Ed. 525. There was no lack of valid authority and no wrongful invasion of the plaintiffs' property rights unless the construction of these dikes by the contractor constituted a taking or appropriation of so much of the plaintiffs' land as was washed away as a result of the diversion of the current by the dikes.

It is apparent that the vital question in this case is whether the building of the dikes in the Missouri River which diverted the current, which, after its diversion, eroded the plaintiffs' land, constituted an appropriation or taking of property for which compensation should be made, or whether the loss suffered by the plaintiffs was "merely a consequential damage incident to a public...