“[The] argument [that] the cause of action accrued whenever Mrs. Ballam had reason to know that erosion on the waterway was going to be a problem---hardly requires to be refuted: anticipation that land in future will wash away if nothing is done is not accrual.”
How later courts described this case
- “[The] argument [that] the cause of action accrued whenever Mrs. Ballam had reason to know that erosion on the waterway was going to be a problem---hardly requires to be refuted: anticipation that land in future will wash away if nothing is done is not accrual.”
- "If the only relevant precedent was that of the Supreme Court, it is certain that the Payne complaint would have withstood the government's motion for a judgment on the pleadings.”
- “[AJnticipation that land in future will wash away if nothing is done is not accrual.”
- “[A]nticipation that land in future will wash away if nothing is done is not accrual”
Written by the judges who cited it.
Later courts went against this
Overruled by William Eugene Owen, as of the Estate of Caroline Pearson Payne v. The United States, 851 F.2d 1404 (1988)
” Ballam v. United States, 806 F.2d 1017, 1022 (Fed. Cir.1986), overruled by Owen v. United States, 851 F.2d 1404 (Fed.Cir.1988) (on a Fifth Amendment takings issue).
The opinion
BISSELL, Circuit Judge,
dissenting-in-part.
I respectfully dissent to part III of the majority opinion. The majority analyzes the taking issue by looking first at what property right Ballam alleges was taken by the government. The majority says the right asserted is the right to be compensated for the cost of a revetment, which both parties concede is necessary to stop the erosion of Ballam’s land. The majority concludes that the taking issue resolves itself when one realizes that the government does not claim the right to erode Ballam’s land.
I do not think the majority correctly answers the question it says is the key to the case: What property right does Ballam assert was taken by the government? The right asserted is not the right to be compensated for a revetment, rather it is the right to exclusive use of her property. It is true, that the government does not claim the right to erode Ballam’s property, but the wave action in the waterway dug by the government is daily taking a portion of Ballam’s property and denying her the exclusive use of it. The government does not claim the right to take more, but the wave action will continue to do so until a revetment is built.
A homey analogy illustrates the problem. If my neighbor and I own adjoining lots, to which each has exclusive use, and my neighbor’s dog comes upon my lot and digs up my flower bed, under the majority’s analysis I must forego all damages as it is I who must bear the cost of erecting a fence to stop the “taking” of my flowers, because my neighbor does not claim a right to have his dog come upon my property and disturb my flower bed.
The district court found that Ballam was entitled to damages in the amount of $644 for property lost through erosion, and $8,160 to protect the land from future erosion for a total damage award of $8,804. In my example, applying the district court’s damage analysis, I would be entitled to *1024 damages of X amount of dollars for my flowers plus X amount to build a fence to keep an uncontrollable and continuing trespasser off my property. Under the majority’s analysis, I would be entitled to no damage award as it is my responsibility to keep the trespasser off my land while my neighbor bears no responsibility for my lost flowers or for the prevention of any recurrence.
In this case, if the easement granted by Ballam’s predecessor in title and assigned to the government means anything, it means that Ballam has given up the right to exclusive use of that portion of her land described in the easement, but not the rest of her land. In my view, Ballam has a right to the exclusive use of her property outside the easement. The government should not be allowed to take that property right without just compensation.
The remedy in this situation is, however, different than in most taking cases because the taking is continuous. Our courts cannot enjoin the waves or my neighbor’s dog; they can, however, require the responsible party, in this case the government, to bear the cost of erecting a barrier that will prevent the taking from continuing. Furthermore, contrary to the majority’s analysis, the government should be required to compensate Ballam for her eroded land outside the easement.
I agree with the position of the trial court and Judge Ervin as posited by the majority: “[T]he easement grant defines the area the government has a right to impair in any manner, and thus the mutual rights and duties are unlike those that would obtain with a natural waterway.” Majority op. at 1022.
The government argues that even if a navigational servitude did not exist, there is insufficient causation to establish a com-pensable taking under the fifth amendment. I agree with Judge Ervin’s rebuttal to this “wave wash argument”:
The problem with this argument, however, is that it ignores the obvious; but for the government the waterway would not have crossed Mrs. Ballam’s land. I am hard-pressed to determine who or what, other than the government, is responsible for the damage. To draw a distinction between “wave wash” and the government amounts to a distinction without real meaning.
Ballam v. United States, 747 F.2d 915, 920-21 (4th Cir.1984) (Ervin, J., dissenting).
I would affirm the decision of the trial court.