Willis v. United States

• Decision Date: 14 May 1943
• Docket Number: No. 85.,85.
• Citation: 50 F. Supp. 99
• Court: U.S. District Court — Southern District of West Virginia
• Parties: WILLIS et al. v. UNITED STATES.

50 F. Supp. 99

WILLIS et al. v. UNITED STATES.

No. 85.

District Court, S. D. West Virginia.

May 14, 1943.

Conley, Thompson & Neff, of Charleston, W. Va., for plaintiffs.

Lemuel R. Via, U. S. Atty., of Huntington, W. Va., Charles M. Love, Jr., Asst. U. S. Atty., of Charleston, W. Va., and Thomas L. McKevitt, Atty. Department of Justice, of Washington, D. C., for defendant.

MOORE, District Judge.

The plaintiffs instituted this action on April 5, 1940, to recover compensation for alleged appropriation by the United States of America of a strip of land on the bank of the Great Kanawha River, together with improvements thereon, owned by the plaintiff Willis and under lease for coal mining purposes to the plaintiff Coalburgh-Kanawha Mining Company, and damages to the residue. The action is grounded on the Tucker Act, 28 U.S.C.A. § 41(20).

The War Department, in the year 1934, for the purpose of improving navigation in the Great Kanawha River, erected the Marmet Dam at a point several miles below the Willis property. It was put into operation on May 12, 1934, and the result was a rise in the elevation of the normal pool stage at the Willis property of 12.10 feet. It is necessary in the normal operation of the dam to vary this level from time to time up to the limit of an additional five feet; so that after the dam was put into operation that part of the Willis land lying between elevations 577.90 and 590.0 was permanently submerged, and the land lying between elevations 590.0 and 595.0 was occasionally submerged. The land permanently submerged comprises 3.671 acres, and that occasionally submerged comprises 1.009 acres.

Approximately thirty years prior to the erection of the Marmet Dam the then owner of the Willis land had constructed approximately 2,600 feet of cribbing at the edge of the water for the purpose of protecting the bank against breaking and erosion. This consisted of a log structure filled with rocks. It was six feet wide at the base, four feet wide at the top and about four feet high. At the time the water level was raised by the construction of the Marmet Dam, the logs had virtually disappeared, having rotted and worn away; but the rocks had become imbedded in the soil and vegetation so as to form a permanent part of the river bank, and so as to constitute a shield and protection against the natural erosive action of the waters of the stream. There was also located on the Willis land a combination rail and river tipple. That part which served as a river tipple was built upon a foundation which extended out well into the bed of the stream.

The Marmet Dam was not the first dam to be erected in the Great Kanawha River below the Willis land. In the year 1880 the river was improved by a series of locks and dams of which one, known as Lock Four, was built a short distance below the Willis land, and caused a rise in the normal pool stage of the river at the Willis land of approximately three and one-half to four feet above the normal stage which existed before any dams were built.

The United States of America did not institute any proceeding for the condemnation of the Willis land; the theory of its counsel being, as shown in this litigation, that the land flooded as the result of the construction of the Marmet Dam was below the ordinary high water mark, and therefore subject to be taken by the United States without compensation for the purpose of improving navigation.

The disputed questions of fact in this case are:

(1) Did the construction of the Marmet Dam cause a rise in the water level at the Willis land above the ordinary high water mark; or, to express it in another way, was land flooded which was not already in the bed of the river?

(2) If the plaintiff is entitled to damages, what is the amount of damage?

"The dominant power of the Federal Government, as has been repeatedly held, extends to the entire bed of a stream." United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 313 U.S. 543, 61 S.Ct. 772, 775, 85 L.Ed. 1064. In the early case of Alabama v. Georgia, 23 How. 505, 515, 16 L.Ed. 556, the bed of a river is defined as "that portion of its soil which is alternately covered and left bare, as there may be an increase or diminution in the supply of water, and which is adequate to contain it at its average and mean stage during the entire year, without reference to the extraordinary freshets of the winter or spring, or the extreme droughts of the summer or autumn." Is this definition inconsistent with the statement in the case first cited above to the effect that the river bed includes all land below the ordinary high water mark? I think not.

Rivers such as the Great Kanawha, fed as they are by mountain streams and springs, become in their navigable reaches fairly constant in respect of water level. They do not run dry, although in seasons of great drought they may for a time noticeably decrease in volume. They are subject to floods, but these occur only during brief periods of heavy rainfall. The ordinary day to day or week to week fluctuations in the level of the water take place within a comparatively...