Petition — Miller v. United States

“a 0 6 Gilice- Supe Co .

CASE NUMBER __ mie 8 196:

3n the

Supreme Court of the Gnited Pees

October Term 192

Charlies M. Miller Petitioner

he United States tespondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

W. DENT GITCHEL

Suite 400

Two Financial Centre

Little Rock, Arkansas 72211

(501) 224-6703

Counsel of Record for Petitioner

Of Counsel:

H. CLAY ROBINSON

Post Office Box 1584

Fort Smith, Arkansas 72902

QUESTIONS PRESENTED FOR REVIEW

The Court of Appeals for the Federal! Circuit incorrectly

ruled that (i) the navigational servitude of the United States

extends to high, fast lands of the Petitioner above the ordinary

high waterline of the Arkansas River and (ii! an Arkansas River

improvement, the Morrilton Cut-off, constructed in 1950 is in

the scope of a project for which the Corps of Engineers did the

planning in the late 1950's, thereby making the Petitioner's

property subject to a taking without any right to just

compensation therefor.

PARTIES

The caption to this Petition shows all parties to the

proceedings sought to be reviewed.

TABLE OF CONTENTS

Questions presented for review

Parties

Table of Contents

Table of Authorities

Reference to opinions of lower Courts

Jurisdiction

Constitutional provisions and statutes involved

Concise statement of the case

Procedure

Facts

Basis for federal! jurisdiction

Argument ..

Conclusion

Appendix ....

Unpublished opinion of the United States

Court of Appeals for the Federal Circuit

decided May 11, 1983, in Appeal No. 83-568,

Charles M. Miller v. United States........

Opinion of the trial judge (Colianni) of the

Court of Claims filed June 14,1978 .......

Page

iil

Order of Court of Claims, en banc, entered

November 21, 1979

Order of Court of Claims entered February 8,

1980

Judgment and opinion of the United States

Claims Court in Charles M. Miller v. United

States, Docket No. 66-75, decided October 19,

1982, and reported at 550 F. Supp. 669, 1

USCCR No. 12

4

TABLE OF AUTHORITIES

Cases:

Bonelli Cattle Co. v. Arizona, 414 U.S. 313 (1973)

Oklahoma ex rel. Phillips v. Guy F. Atkinson Co..

313 U.S. 508 (1940)

Oregon v. Corvallis Sand & Gravel Co., 429 U.S.

363 (1977) .. .

United States v. Kansas City Life Ins. Co.,

339 U.S. 799 (1950) _. ere ae

United States v. Miller, 317 U.S. 369 (1943)

United States v. Twin City Power Co., 350 U.S.

222 (1965) ....... date b ian ak demon ata arate

Constitutional Provisions:

ae OR Be ee

A-25

.A-29

A-30

Statutes:

Civil Functions Appropriation Act of 1950,

Pub. L.No, 81-355, 63 Stat. 845

Flood Control Act of May 15, 1928, Pub. L. No.70-391,

45 Stat. 534

Flood Control Act of June 15, 1936, Pub. L. No. 74-738,

49 Stat. 1570

Flood Control Act of June 15, 1936, Pub. L. No. 74-678,

49 Stat. 1508

3

Rivers and Harbors Act of July 24, 1946, Pub.L. No. 79-526,

60 Stat. 641

Pub.L. No. 97-164, 96 Stat. 27 (April 2, 1982)

28 U.S.C. §1254(1)

28 U.S.C. §1491

Ark. Stat. Ann. §10-204, et seq.

8

9

2

3n the

Supreme Court of the Anited States

October Term 1982

Charles M. Miller Petitioner

VS.

The United States Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PETITION FOR WRIT OF CERTIORARI

REFERENCE TO OPINIONS OF LOWER COURTS

These are listed in chronological order:

(a) Opinion of the trial judge (Colaianni) of the Court of

Claims filed June 14, 1978.

(b) Order of Court of Claims, en banc, entered

November 21, 1979, remanding case to trial judge.

(c) Order of Court of Claims entered February 8, 1980.

(d) Judgment and Opinion of the United States Claims

Court in Charles M. Miller vs. United States. Docket

No. 66-75, decided October 19, 1982, and reported at

550 F.Supp. 669, 1 USCCR No. 12.

2

(e) Unpublished Opinion of the United States Court of

Appeals for the Federal Circuit, decided May 11,

1983 in Appeal No. 83-368, Charles M. Miller vs.

United States.

JURISDICTION

Review is sought by writ of certiorari under 28 U.S.C.

§1254(1) of a judgment of the United States Court of

Appeals for the Federal Circuit entered May 11, 1983.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

UNITED STATES CONSTITUTION, Amendment V:

“(Njor shall private property be taken for public

use, without just compensation.”

28 U.S.C. §1491:

“The Court of Claims shall have jurisdiction to

render judgment upon any claim against the United

States founded either upon the Constitution, or any Act

of Congress, or any regulation of an executive

department, or upon any express or implied contract

with the United States, or for pas a or dk secueenni

damages in cases not sounding in tort.

Rivers and Harbors Act of July 24, 1946, Pub. L. No. 79-526, 60

Stat. 641:

“The following works of improvement of rivers,

harbors, and other waterways are hereby adopted and

authorized to be prosecuted under the direction of the

Secretary of War and supervision of the Chief of

Engineers, in accordance with the plans and subject to

the conditions recommended by the Chief of Engineers

in the respective reports hereinafter designated:

Arkansas River and tributaries, Arkansas and

Oklahoma: The multiple-purpose plan recommended in

the report of the Chief of Engineers dated September

20, 1945, and letter of the Chief of Engineers dated

March 19, 1946, is approved, and for initiation and

partial accomplishment of said plan there is hereby

authorized to be appropriated the sum of $55,000,000; . .

Civil Functions Appropriation Act of 1950, Pub. L. No. 81-355,

63 Stat. 845:

“The following sums are appropriated, out of any

money in the Treasury not otherwise appropriated, for

the fiscal year ending June 30, 1950, for civil functions

administered by the Department of the Army and for

other purposes, namely:

Emergency fund for flood control on tributaries of

Mississippi River: For rescue work and for repair or

maintenance of any flood-control work on any

tributaries of the Mississippi River threatened or

destroyed by flood. in acordance with section 9 of the

Flood Control Act, approved June 15, 1936 (49 Stat.

1508), $500,000... .”

Flood Control Act of June 15, 1936, Pub.L. No. 74-678, 49 Stat.

1508:

“The sum of $15,000,000 is authorized to be

appropriated as an emergency fund to be allocated by

the Secretary of War [Secretary of Army] on the

recommendation of the Chief of Engineers in rescue

work or in the repair or maintenance of any flood-

control work on any tributary of the Mississippi River

threatened or destroyed by flood heretofore or

hereafter occurring: . . . and also in the construction,

repair, or maintenance, and in the reimbursement of

4

levee districts or others for the construction, repair, or

maintenance of any flood-control work on any of the

tributaries or outlets of the Mississippi River that may

have been impaired, damaged, or destroyed by caving

banks or that may be threatened or impaired by caving

banks, or such tributaries, whether or not such caving

has taken place during a flood stage: Provided further,

That if the Chief of Engineers finds that it has been or

will be necessary or advisable to change the location of

any such section, such change may be approved and

authorized.”

5

CONCISE STATEMENT OF THE CASE

Procedure. In 1975, the Petitioner, Charles M. Miller,

filed a Complaint in the Court of Claims under 28 U.S.C.

§1491 alleging that his farm, which is riparian to the

Arkansas River, had received additional flooding as a result

of the Corps of Engineers placing into operation Lock and

Dam No. 8 (Toad Suck Ferry) in November, 1969. The trial

court ordered a bifurcated proceeding and the case went to

trial in October, 1977, on liability only. The trial juage in

June, 1978, filed a recommended decision and conclusions of

law determining that there had been a taking from the

Petitioner's property for which compensation would be

owed. The United States sought review of those

recommendations in the Court of Claims, which, by a

decision en banc, entered an order on November 21, 1979,

remanding the case to the trial judge for a determination of

certain specified factual! issues. A hearing was had before

the trial judge in August, 1981, on the remanded points. On

October 1, 1982, the Act of April 2, 1982, Pub.L. No. 97-164,

96 Stat. 27, became effective whereby the Court of Cleims

trial judges became equivalent to United States district

judges whose decisions would then be reviewed by the

newly created United States Court of Appeals for the

Federal Circuit. The newly-empowered trial judge then

rendered a decision on October 19, 1982, ruling that the

Government's navigational servitude insulated it from

liability to the Petitioner for the taking of his property. The

Petitioner appealed that ruling to the United States Court

of Appeals for the Federal Circuit which on May 11, 1983,

sustained the trial judge's decision. The Petitioner now

seeks review by a writ of certiorari.

Facts. In chronological sequence the substantive facts

from which are derived the issues in this case are as follows:

— In1936, the Petitioner acquired a farm of approximately

1,834 acres south of and riparian to the Arkansas River

in Conway County, Arkansas. In Conway County, the

6

River generally flows from west to east, however the

bulk of the Petitioner's farm was located in a looping

bend of the River and in effect formed a peninsula

jutting north. In ensuing years the peninsula migrated

to the east with erosion on the west side and accretion

on the east. By 1950, erosion had reduced the property

to approximately 1,000 acres.

In 1946, Congress enacted the Rivers and Harbors Act

of July 24, 1946, Pub.L. No. 79-526, 60 Stat. 641, which

authorized a multiple-purpose project on the Arkansas

River.

In the Civil Functions Appropriation Act of 1950,

Pub.L. No. 81-355, 63 Stat. 845, funds were appropriated

for the Morrilton Cut-off, however, without reference to

the multiple-purpose project authorized by the Rivers

and Harbors Act of July 24, 1946.

In 1950, the Corps of Engineers began construction of

the Morrilton Cut-off. In that construction, the

peninsula which constituted the bulk of the Petitioner's

farm was lopped off at the base by a new channel which

eliminated the looping bend in the River. Part of the

Petitioner's property was left south of the new channel!

and the bulk of the property, the former peninsula, was

to the north of the new channel but as an island

surrounded on the other three sides by the old river

channel. The Corps acquired 248 acres of the

Petitioner's property for the Cut-off.

Over the next several years the old channel to the north

of the Petitioner's property largely filled in and became

high, fast land. In 1962 the Petitioner obtained an

Emerged Land Deed from the State of Arkansas to

approximaely 800 acres pursuant to Ark. Stat Ann

§10-204, et seq.

7

— In 1956, the Corps of Engineers began construction of

the Arkansas River Navigation System (now McClellan-

Kerr Arkansas River Navigation System).

In the 1960s, the Corps constructed Lock and Dam No. 8

(Toad Suck Ferry) approximately 9'/2 river miles down.

stream from the Petitioner's property. For that project

the Corps acquired a crescent-shaped sliver of land

along the east, northeast part of the property which the

Petitioner had acquired from the State of Arkansas, 17

acres in extent, between elevation 265-268 m.s.1.

— In November 1969, the Corps placed Lock and Dam No.

8 in operation, closed the gates and established a pool

behind the dam to an elevation of 265 m.s.l.

— By 1974, it became apparent to the Petitioner that his

property was flooding longer than before Lock and Dam

No. 8 was placed in operation and therefore he filed suit

under 28 U.S.C. §1491, supra

Basis for Federal Jurisdiction. The basis for federal

jurisdiction in the Court of Claims in the first instance was 28

U.S.C. §1491.

8

ARGUMENT

THE COURT OF APPEALS FOR THE FEDERAL

CIRCUIT INCORRECTLY RULES THAT (i) THE

NAVIGATIONAL SERVITUDE OF THE UNITED STATES

EXTENDS TO HIGH, FAST LANDS OF THE PETITIONER

ABOVE THE ORDINARY HIGH WATERLINE OF THE

ARKANSAS RIVER AND (ii) AN ARKANSAS RIVER

IMPROVEMENT, THE MORRILTON CUT-OFF,

CONSTRUCTED IN 1950 IS IN THE SCOPE OF A PROJECT

FOR WHICH THE CORPS OF ENGINEERS DID THE

PLANNING IN THE LATE 1950s, TREREBY MAKING

THE PETITIONER'S PROPERTY SUBJECT TO A TAKING

WITHOUT ANY RIGHT TO JUST COMPENSATION

THEREFOR.

The ruling by the court of appeals for which review is

sought is not only wrong but has two significantly adverse

impacts upon the prior state of the iaw. It has effectively raised

title questions to tens of thousands, perhaps millions, of acres of

lanc riparian to the various navigable rivers of the United

States. It has also determined contrary to prior Supreme Court

rulings that the navigational servitude extends to high, fast

lands: ove the ordinary high waterline of a navigable river.

In Oklahoma Ex Rel Phillips v. Guy F. Atkinson Co.,

313 U.S. 508, 516, et seq. (1940), there is a good history of

Government flood control and navigation efforts on the

Mississippi River System, up to 1940. In summary, there

have been Congressional plans for navigation and flood

control on the Mississippi River System, including the

Arkansas, at least since 1852, including specifically the

Flood Control Act of May 15, 1928, Pub.L. 70-391, 45 Stat.

534, and the Flood Control Act of 1936, Pub.L. 74-738, 49

Stat. 1570, and fer the Arkansas, an authorization for a

multiple-purpose project contained in the Rivers and

Harbors Act, of July 24, 1946, Pub.L. No. 79-526, 60 Stat.

641.

9

If. as is ruled in the decision from which this appeal is

taken, a Congressional authorization for a plan of river

improvement creates a “project” such that accretional

deposits, or avulsive changes, do not thereafter vest title in

the riparian owners along the river for which Congress has

established the plan, for all practical purposes landowners

have lost most of their riparian rights. Even if the decision

‘s somewhat more limited and only comes into play where

the Corps of Engineers has built dikes, revetments, done

hank stabilization work, or whatever, one suggests that

nonetheless the bulk of the riparian property along

navigable rivers in the United States is affected by the

decision because the Corps of Engineers has continuously

through the years tinkered with the rivers, here a dike,

there a revetment, cut-off, rechannelization, etc. See, e.g.,

the Flood Control Act of 1936, supra. which lists dozens of

specific projects authorized to be built. An example of the

application of the new rule is that ina number of other cases

filed by the Petitioner's attorneys against the United States

pursuant to 28 U.S.C. §1491, both in Lock and Dam No. §

and Lock and Dam No. 13, the Government is in essence

claiming that any accretion deposited after 1946, or perhaps

1949, is subject to the navigational servitude, the

Government can flood the property, and the landowners

damages are damnum absque injuria.

The ruling appealed from has also applied the

government's navigational servitude to high, fast land

above the ordinary high waterline of the River with

unknowable effects on the correlative rights and interests

of the United States, the states and private landowners.

It is clear from United States v. Kansas City Life Ins.

Co., 339 U.S. 799 (1950) that the navigational servitude

extends only to property located between the ordinary high

waterline on one bank of the river and the ordinary high

waterline on the other bank, is bounded by the ordinary

high waterlines, and does not extend to high, fast lands

10

located beyond those lines. ' In extending the navigational

servitude to land located beyond the river bank, the lower

court has largely based its decision on dicta in Bonelli

Cattle Co. v. Arizona, 414 US. 313 (1973). Bonelli is

concerned with title, not damages, and the issue in the case

is whether federal or state law determines the vesting of

title to accretion and avulsive changes.

The ruling of Bonelli is that federal law governs and

that dry land, thrown up by rechannelization of a navigable

river, belongs to the riparian owner and not to the State of

Arizona. In reaching that decision, the court thoroughly

discusses the Equal Footing Doctrine, evulsion, accretion,

and related matters and then renders the ruling off the case

but with a condition, as follows:

“ .., Accordingly, where land cast up in the Federal

Government's exercise of the servitude is not related to

furthering the navigational or related public interest,

the accretion doctrine should provide a disposition of

the land as between the riparian owner and the State...

. » 414 US. at p. 329.

The opinion continues:

“Similarly, riparian lands may suffer noncompensable

losses or be deprived of their riparian character

altogether by the State or Federal Government in the

exercise of the navigational servitude. /n compensation

for such losses, land surfaced in the course of such

governmental activity should inure to the riparian

‘There are cases, see e.g., United States v. Twin City Power Co.,

350 U.S. 222 (1955), which in a fashion extend the navigational servitude

to property mghts, not surface land ownership, which exist outside the

banks of a river: a landowner may not recover an increment of value to his

property which derives from the flow of the stream.

“Bonelli is reversed by Oregon v. Corvallis Sand & Gravel Co., 429

U.S. 363 (1977) which holds that state, not federal, common law governs

these land title questions.

11

vuner where not necessary for the navigational project

or its purpose... .” 414 U.S, at p. 329 (emphasis added)

The court offers no examples and cites no cases as

exemplars of the operation of the condition to the vesting of

title, that the land not be needed for the project or its

purpose. The decision in the present case is that dry land

deposited as a result of the Morrilton Cut-off is “necessary

to the navigational project or its purpose” because the

Government flooded that land as part of the overall river

navigation project, thus needing that property for “its

purpose.” Consequently the effect of the decision is that any

land which may be deposited as accretion, or suffer an

evulsive change, after a project is conceived of by Congress

and where the Government has performed any river

improvements affecting the flow of the river in the area, is

needed for the project and thus title to that property does

not vest in the riparian owner. If the land is flooded, it is

needed for the project and thus the Government is

immunized from paying just compensation for a taking. One

doubts that is the intention of the Bonelli language quoted

above. Rather, the type of fact situation intended to be

addressed is where, for example, the Government

constructs a coffer dam or new channel, to dry up a portion

of the riverbed in order to construct under dry conditions a

dam or other river improvement. Under those

circumstances the title to the surfaced land should not vest

in the riparian owner. But the extension of that concept to

cases where the land is not thrown up by the specific

construction activity for which the land is needed and

where the purpose for which it is needed is to flood it, is to

bring chaos to previously clear legal relationships.

Doubtlessly the court of appeals was concerned that

the Petitioner is getting something for nothing at the

expense of his Government. But there is a long-standing

legal doctrine to protect the Government from excessive

payments of just compensation as expounded in United

States v. Miller, 317 U.S. 369 (1943) and its progeny. The

12

procrustean wielding of Bonelli not only causes legal chaos,

but is totally unnecessary.

The Miller doctrine is that a landowner whose

property is taken for a project cannot be paid as part of his

just compensation the value of benefits that the property

has received because known to be in tie scope of the

project. Application of the Miller doctrine has the further

advantage that the concept of the “scope of the project”

which is the desideratum for barring or allowing benefits to

the landowner is one which is thoroughly discussed in

Miller and other cases following it. Finally, Miller addresses

damages (just compensation) and not vesting of title. The

practical problem with making the issue one of title vesting

is that it leaves title to vast areas of property in limbo, both

tracts which will be affected by the project and tracts which

will not, from the time that a project is authorized by

Congress until the project has been fully completed. For the

Arkansas River, that time span was at least from 1946 when

the navigation project was authorized, until 1969 when the

bulk of the project was placed in operation. There is no

necessity for placing in question such vast areas of riparian

property for periods of decades. Miller on the other hand, is

a specific for the disease being treated. It protects the

Government from paying to a landowner benefits conferred

upon the landowner by the Government. As the Court well

recognizes in Bonelli “[t}here are a number of interrelated

reasons for the application of the doctrine of accretion, etc.”

414 U.S. at p. 539. One of the primary reasons there stated is

the “compensation theory’: because riparian land is at the

mercy of the wanderings of the river and a riparian owner is

subject to losing land by erosion beyond his control, he

should receive the benefits from any additions to his lands

by the accretions thereto which are equally beyond his

control. But under Bonelli as applied by the court of appeals

under circumstances which will frequently recur, the

landowner is subjected to losing his property by erosion

with no offsetting right to ownership of accretion as

compensation therefor.

13

We submit that appropriate application of the Miller

doctrine to the facts of the present case would not insulate

the Government from paying compensation to the

Petitioner. The specific issue is:

“The question then is whether the [petitioner's]

lands were probably within the scope of the project

from the time the Government was committed toit..

. » 317 US. at p. 377.

In the present case, although the Government has been

committed to the project at least since 1946, until the plans

for the navigation project could be completed, in the late

1950s, with a determination of the location of specific dams

and other river improvements, none of the property along

the river was “probably within the scope of the project,”

unless one would apply that concept as meaning, under the

circumstances, that all property along the river is in the

probable scope of the project. Surely by that terminology it

is meant that there must be some consideration by which

one can determine property which probably will be affected

and separate that from property which probably will not be

affected. Nothing of that kind existed before the late 1950s.

The trial court specifically found:

“... The [navigation] plan was changed many times

as the Corps found ways of simplifying the system.

In 1960 or shortly thereafter, it was decided that the

Toad Suck Ferry Lock and Dam No. 8 would be

located 9'2 miles downstream from plaintiff's

property, and that the elevation of its upstream

navigation pool would be fixed at 265 feet... .”

Opinion of June 14, 1978 at p. 4.

Further, in applying the Miller doctrine, one must be

cognizant of its purpose which is to avoid the Government

recompensing a landowner for increases in the fair market

value of his property resulting from the location of the

governmental project. It is clear in the present case that the

14

benefit, and consequent increase in fair market value, of the

Petitioner's property prior to 1969 is not derived from the

navigational project but from accretions subsequent to the

construction of the Morrilton Cut-off. The appropriation for

the Morrilton Cut-off is contained in the Civil Functions

Appropriation Act of 1950, supra, which relates the

appropriation not to the 1946 Act which authorized the

navigation project, Rivers and Harbors Act of July 24, 1946,

supra, but instead to an Act of June 15, 1936. Pub.L. No.

74-678, supra

15

CONCLUSION

The lower court decisions in this case are an instance of

“throwing out the baby with the bathwater.” This Court

should grant certiorari in order to correct these erroneous

decisions which otherwise will be stare decisis (i) for the

proposition that the Government's navigational servitude

extends to fast lands above the ordinary high water mark of

navigable rivers: thereby reversing decades of effort.

culminating in U’nited States v. Kansas City Ins. Co., supra,

by this Court to define the servitude; and (ii) placing in

limbo an unknown number of land titles held by riparian

landowners. Neither result is necessary: there are entirely

adequate precedents, the Miller case and its progeny, to

apply to the determination of the type of issue presented by

this controversy.

Respectfully submitted,

W. DENT GITCHEL

Suite 400

Two Financia! Centre

Little Rock, Arkansas 72211

(501) 224-6703

Counsel of Record for Petitioner

Of Counsel:

H. CLAY ROBINSON

Post Office Box 1584

Fort Smith, Arkansas 72902

A-l

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

CHARLES M. MILLER, Appeal No. 83-568.

Appellant, :

v.

THE UNITED STATES,

Appellee.

Decided: May 11, 1983

Before MARKEY, Chief Judge, DAVIS and BALDW IN, Circuit

Judges. BALDWIN, Circuit Judge.

DECISION

The judgment of the United States Claims Court (trial

court), dismissing appellant's petition alleging a compensable

taking under the fifth amendment, is affirmed.

OPINION

We agree with the trial court’s conclusion that the

government's navigational servitude extends fully to emerged

lands within the former riverbed of a channel converted to a

nonnavigable tributary by exercise of the government's

perogative to improve navigation. See, e.g., Lewis Blue Point

Oyster Co. ». Briggs, 229 U.S. 82, 87 (1913). See also United

States v. Grand River Dam Authority, 363 U.S. 229, 232-33

(1960) (federal control of a navigable stream extends to a

nonnavigable tributary). As appellee correctly stated,

appellant's title, derived from Arkansas under state law, was

subject to a servitude in favor of the government. Accordingly,

A-2

no liability can arise from the 1969 reinundation, admittedly the

result of a navigational improvement on the Arkansas River, by

virtue of the government's servitude. See Coastal Petroleum

Co. v. United States, 524 F.2d 1206, 1109-10 (Ct. Cl. 1975), and

cases cited therein.

Appellant's attempt to apply the holdings of Miller »v.

United States, 317 U.S. 369 (1943), to the present case is

without merit. We can find no basis in the record for

questioning the trial court's conclusion that the flooding of

appellant's land in 1969 was necessary to the same

navigation project which caused the initial emergence of the

land. At the very least, appellant has failed to demonstrate

two takings, separated by a period of time, as a prerequisite

tousing a “scope of the project” analysis in accordance with

Miller. See City of Van Buren, Arkansas v. United States,

697 F.2d 1058, 1061 (Fed. Cir. 1983).

IN THE UNITED STATES COURT OF CLAIMS

TRIAL DIVISION

No. 66-75

(Filed June 14, 1978)

CHARLES M. MILLER )

) Taking; Easement;

v. ) Flood Control; Surface

) Water; Ground Water

THE UNITED STATES )

W. Dent Gitchel, attorney of record, for plaintiff. Cearley,

Gitchel, Bogard and Mitchell, Gordon and Gordon, H. Clay

Robinson, and Pearce, Robinson & McCord, of counsel.

A-3

John E. Lindskold, with whom was Assistant Attorney

General James W. Moorman, for defendant.

OPINION*

COLAIANNI, Trial Judge: This case, brought pursuant to

28 U.S.C. §1491, involves an alleged inverse “taking” by the

Government of flowage and underflowage easements over

farmland located riparian to the Arkansas River. Plaintiff

claims that the operation of the McClellan-Kerr Arkansas River

Navigation System (hereinafter the “Project”) has resulted in

increased duration of flooding on part of his property, and in

the raising of the ground water table thereunder to such an

extent that he cannot tractor farm crops, such as soybeans and

alfalfa, thereon. The parties’ joint motion under Rule 13lic) fora

separate trial and determination of liability was allowed, so only

that issue is herein addressed. For reasons which follow, it is

concluded that defendant's actions resulted in a “taking” for

which, under the Fifth Amendment, plaintiff is entitled to

“just” compensation.

Background Facts

Plaintiff, in 1936, became the owner of a 1,834-acre tract of

land in Perry County, Arkansas. This tract (hereinafter, the

“Property”) was at one time located within a northward loop of

the Arkansas River.

The Arkansas River was highly unstable in its natural

state. Because of its heavy sediment load, it presented serious

impediments to navigation. The river could overnight change

from a mere trickle of water to a rushing torrent, change its

course, and destroy improvements along its banks.

*The trial judge’s recommended decision and conclusion of law are

submitted in accordance with Rule 134(h).

Ad

During the late forties, erosion transformed plaintiffs

property into a peninsula delimited by a “horseshoe” band of

the Arkansas, and reduced his acreage to between one-third

and one-half of its original size. The Corps of Engineers

(hereinafter the “Corps”) became concerned, as they expected

that the river would soon cut itself a new channel! across the

neck of the peninsula. Such a natural “avulsive change” would

have been a serious setback to river navigation, as the new

channel would probably contain sharp, difficult-to-navigate

bends. The United States therefore acq .red 248 acres from

plaintiff for $34,000 and planned the construction on this

acreage of a new, easily navigable channel for the river

(hereinafter the “Morrilton Cutoff’ or “Cutoff").

In May 1950 the Corps constructed a pilot channel across

the neck of the ox bow. The abrasive action of the river soon

widened the channel to the desired extent, and its northern

bank was stabilized by the Corps in 1952 by the construction of

a suitable revetment.

The new channel captured most of the flows of the

Arkansas. As a result of water flowing through the old

channel at lesser velocities, sediment was deposited. The

silting-up of the ox bow was accelerated by the Corps’

construction of two dikes at the upstream end of the old

channel in 1952 to divert flows away from the old river bed.

The old channel became an ox bow lake, a nonnavigable

tributary of the Arkansas. Eventually the plaintiff sought

and obtained title to the emerged lands, and began to farm

them. Of the 1,719 acres currently comprising the Miller

farm or Property, approximately 800 acres lie on the pre-

Cutoff bed of the Arkansas River.

In 1956 the Corps began the construction of the

Project, authorized by Congress back in 1946.' Seven

tributary lakes were to be converted into multiple-purpose

’

"Rivers and Harbors Act of July 24, 1946, 60 Stat. 641,

AS

reservoirs for low-flow regulation, sediment control, flood

control, domestic and industria] water supply, and hydro-

electric power. In addition, the main stem of the river was

to be “canalized” by 17 navigation locks and dams. (When

completed, the Project was to provide a 448-mile long

navigational channel from around Tulsa, Oklahoma, to the

Mississippi River.) By 1964 the last of the upstream flood

control reservoirs had been readied for flood control

operation, the primary object of the authorizing legislation.

The canalization plan was changed many times as the Corps

found ways of simplifying the system. In 1960 or shortly

thereafter it was decided that the Toad Suck Ferry Lock

and Dam No. § would be located 9'2 miles downstream from

plaintiff's Property, and that the elevation of its upstream

navigation pool would be fixed at 265 ft. The Property is

riparian to this pool. In 1965 wing dikes were constructed

downstream of the Property, and in 1969 the downstream

Dam No. § was closed.

Since then, the Property — which had always been sub-

ject to overflows—has allegedly suffered from increased

frequency and duration of flooding at certain elevations.

Plaintiff attributes this increased flooding to the backwater

effect of the downstream structures and the prolonged

releases of water from the flood contro] reservoirs after the

passage of major storms. Plaintiff similarly alleges that the

water table underlying the Property has been raised—in

excess of Government projections—by the Project, to the

detriment of his farm. Plaintiff demands compensation for

the alleged “takings.”

Defendant would dispose of plaintiffs “taking”

arguments at the threshhold by a finding that the lands

affected were formerly a part of the river bed of the

Arkansas and therefore subject to the navigational

Ab

servitude of the United States.? Defendant's contention is

unpersuasive and must be rejected.

It is admitted by defendant that title to the bed of the

Arkansas, which vested in the State of Arkansas by virtue

of the “equal footing” doctrine, revested in plaintiff after

rechannelization of the river. Oregon ex rel State Land

Board ». Corvallis Sand & Gravel Co., 429 U.S. 363, 372

(1977); Ark. Stat. Ann, §10-204, et seg. But defendant insists

that it retains a navigational servitude over the abandoned

bed under the doctrine of avulsion,

Navigational servitudes, both federal and state, exist

because of the paramountcy of the public interest in

riparian commerce.’ L’nited States v. Kansas City Life Ins.

Co., 339 U.S, 799, 804-06 (1950); United States v. Chicago,

M., St. P. & P. R. Co., 312 U.S. 592, 596-97 (1941). The federal

and state governments may do whatever they deem

advisable to further the interests of navigation without

hecoming obligated to compensate for harm caused to lands

situated below the normal high-water mark. /d.

The norma! high-water mark of the Arkansas River in

the vicinity of the Property is 265 ft.‘ It is the contention of

the plaintiff that the construction of the Project has caused

compensable damage to portions of the Property lying

above 268 ft.* According to the Supreme Court, “(hjigh-

water mark bounds the bed of the river, Lands above it are

’This court must, of course, also evaluate the effects of the Project

on at least those lands that remain from plaintiff's original 1936 purchase.

In addition, defendant has not shown how this argument would dispose of

plaintiffs claim for compensation for the alleged ground water damage.

"See Commerce Clause, U.S. Const., art. I, §8, cl. 3.

“All altitude references are with respect to mean sea level (MSL).

*The United States acquired by condemnation a flowage easement

over the lands lying between 265 and 268 ft.

A:T

fast lands and to flood them is a taking for which

compensation must be paid.” United States v. Willow River

Power Co., 324 U.S. 499, 509 (1945). If, then, plaintiff's

factual contentions are correct, it would seem that he is

entitled to compensation.

Defendant contends that the land within the old ox

how, when under navigable water, is subject to the

navigational servitude of the United States; that the

Morrilton Cutoff was an “artificial avulsion”; that under

Arkansas and federal law an “artificial avulsion” does not

disturb property rights and interests; and that the land,

though no longer the bed of a navigable waterway, is still

subject to the federal navigational servitude. Defendant's

position is erroneous.

Since time out of mind, rivers have been used to mark

the boundaries between estates, counties, provinces, and

nations. This custom has both advantages and disadvan-

tages. The chief disadvantage is that river channels are not

static. Some rivers “migrate” a good deal. The Arkansas

River is a case in point. In the last 150 years the Arkansas

has migrated completely across what is now the Miller

property, and the scars of former river channels can be seen

miles from the present location of the river.

This natural phenomenon has been a continuing source

of litigation as to riparian rights. Again and again the

common law courts have had to resolve boundary disputes

between abutting riparian landowners. Certain rules

relating to “accretion” and “avulsion” evolved which have

withstood the test of time,

When the banks of a “boundary” stream “are changed

by the gradual and imperceptible process of accretion or

erosion,’ the stream remains the boundary line. “But when

[the stream] suddenly and perceptibly abandons its old

channel! [ve., suffers an “avulsion”), * * * the boundary

remains at the former line.” Philadelphia Co, v. Stimson,

223 U.S. 605, 624 (1912).

AS

In Bonelli Cattle Co. v. Arizona, 414 U.S. 313, 325-26

(1973), a case involving a federal rechanneling of the

Colorado River, the rationales for the common law doctrines

were explained.* The doctrine of accretion recognized that

the “quality of being riparian, especially to navigable water,

might] be a property's most valuable feature.” while the

doctrine of avulsion “mitigate[d] the hardship that a shift in

title caused by a sudden movement of a river would cause

the abutting landowners were the accretion principle * * *

applied.”

The Federal Government is not the “owner” of the bed

of the Arkansas. It is merely the holder of a navigational

servitude thereover. The existence of this servitude is

obviously dependent on whether the Arkansas remains an

artery of interstate commerce. If it permanently dried up to

the point of nonnavigability, the navigational servitude

would likewise evaporate.

Defenadant. relying upon the doctrine of avulsion,

argues that the rechanneling of the Arkansas did not

automatically divest existing interests over the old river

bed. Thus, defendant contends that title to the old river bed

and the navigational easement remained respectively with

the State of Arkansas and the United States. Defendant's

argument is unsupported by both legal precedent and logic.

No cases have been cited by defendant, and a review of

relevant precedent fails to disclose a single case that would

continue the United States’ navigational easement over

nonnavigable waterways.

Moreover, defendant's argument for the application of

the avulsion doctrine to a federal navigational servitude is

*While the Supreme Court has refused to impose its interpretation

of these doctrines (i.e. a federal common law) on the state courts, Oregon

ex rel State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363

(1977), nevertheless the historical analysis contained in Bonelli Cattle Co.

Arizona. 414 U.S. 313 (1973), is deserving of respect.

AY

logically unpersuasive. As set forth in L’nited States v.

Chicago, M., St. P. & R. Co., supra, at 595-96, the intent of

Congress to regulate commerce explains the creation of the

servitude in the first instance:

Commerce, the regulation of which between the

states is committed by the Constitution to Congress,

includes navigation. ‘The power to regulate

commmerce comprehends the control for that purpose,

and to the extent necessary, of al] the narigable waters

of the United States which are accessible from a State

other than those in which they lie. For this purpose they

are the public property of the nation, and subject to all

the requisite legislation by Congress.” [Citation omitted

and emphasis added.}

Defendant has not shown how this constitutional intent

would be furthered by the continuation of its navigational

easement over a nonnavigable river bed. Defendant's interest

in navigation is best served by holding, in situations such as

this, that its navigational easement follows the navigable

stream.

Defendant has also made an appeal for “fairness and

equity’:

[T]he United States intentionally created lands in the

bed of the river in the course of constructing a

navigation project. To make the United States acquire a

flowage easement over the same lands in order to

operate the same project does not comport * * * [with

the notion of “just” compensation].

But defendant would have us give the United States a

windfall, an easement over many acres of dry land.

Defendant in effect wants a servitude over the present, as

wel! as a former bed of the Arkansas River. If given such a

servitude, defendant could then logically demand a

servitude over all the former beds of the river te., over the

entire flood plain of the Arkansas, and the Federal

AW

Government would be able to flood any stretch with

impunity. Indeed, the evidence of record demonstrates that

the Arkansas has at one time or another meandered over

virtually the entire expanse of plaintiff's property. Thus, to

grant defendant's appeal would in substance be holding that

the defendant has a right to flood all of plaintiff's property

with impunity. This is the reductio ad absurdum of

defendant's position. It is the need tor fairness and equity

that requires that defendant be denied the windfall it seeks.

Nor does this resolution result in a windfall to

plaintiffs.

(Riparian lands may suffer noncompensable losses or be

deprived of their riparian character altogether by the

State or Federal Government in the exercise of the

navigational servitude. In compensation for such losses,

lands surfaced in the course of such governmental!

activity should inure to the riparian owner where not

necessary to the navigational project or its purpose

[Bonelli Cattle Co... Arizona, supra, 414 U.S. at 329.]

Every proprietor whose land is * * * bounded [by a

navigable stream] is subject to loss by the same means

which may add to his territory: and as he is without

remedy for his loss in this way, he cannot be held

accountable for his gain. |New Orleans ». United States,

12 U.S. (10 Pet.) 292, 298 (1836).]

When an avulsion occurs, the private boundary lines

ure not shifted, but the navigational servitude is. The

navigational servitude follows the perambulations of the

Arkansas River.

Its hed may vary and its banks may change, but the

Federal power remains paramount over the stream,

*** The public right of navigation follows the stream

*** and the authority of Congress goes with it.

[Philadelphia Co. . Stimson, 223 U.S, 605, 634-35 (1912).

All

Flood Controk Background Facts

In the 1940's, when the Arkansas River was still in its

natural state, a heavy rainfall would swell it into a raging

torrent, causing it to overflow its hanks and inflict heavy

losses to both shipping and riparian property. When the

rainfall subsided, the flood waters quickly receded. If the

elevation of the river surface were plotted as u tunction of

time. a flood would be graphed as a tall, slender peak. Flood

regulation shortens and broadens these peaks,

Flood regulation is accomplished by temporarily

detaining potential tlood waters in flood contro! reservoirs.

There are seven flood control reservoirs in the Project. (All

are upstream of the Property.! Flood regulation began in

the 1963-65 period,

Flood water detention “knocks the crest off” the flood,

and thereby protects higher-lying lands from inundation.

But this protection comes at the expense of the lower-lving

lands, which will remain inundated for longer periods. The

capacity of flood control reservoirs is finite, and the

retained waters must eventually be released. The sooner

they are released, the sooner the reservoirs are ready to

cope with the next rainfall, But a quick release will retard

the ebbing of the flood waters, and thereby have a

deleterious effect on lower-lying riparian lands. On the

other hand, a slower discharge rate that results in flows of

the Arkansas River of 80,000 CFS,’ or higher, presents

other problems since it will draw out the reservoir

reemptying process and prevent navigation on the

Arkansas for a longer period of time." A necessary

consequence of flood control is that some lands may be

flooded more frequently, rather than less.

CFS" is cubic feet per second,

*Navigation on the Arkansas is not possible at flows of 80,000 CFS

or higher

A-12

The Project has furthered navigation on the Arkansas

by, inter alia, constructing 17 navigation locks and dams.

The Toad Suck Ferry Lock and Dam (No. §), completed in

November 1969, is &S'.-miles downstream from. the

Property,

Pla net's First Tal ing The org Flow age Ease ment

Plaintiffs first allegation is that the backwater effect

ot the Toad Suck Ferry Lock and Dam (No. &!* and various

revetments and wing dikes, in conjunction with the flood

control operations of the upstream reservoirs, has resulted

in increased flooding of the lower-lving portions of the

Property.

A “taking” may be bottomed on governmental action

resulting in increased duration or frequency of flooding.

Where property on a river is subject to intermittent

overflows in its natural state and the construction of a

down-river dam makes it more subject to overflows

than before, the difference is merely one of degree for

purposes of compensation. [King v. United States, 192

Ct.Cl. 548, 552, 427 F.2d 767 (Ct.Cl. 1970) (“taking”

established ).|

The propensity of the Property to flooding is a function

of the rainfall pattern over the Arkansas River watershed,

the local hydrology, and the flood contro] regulation plan. In

determining whether a “taking” has occurred, the

propensity of the Property to future flooding is what must

be ascertained. To the extent that the aforementioned

factors will retain their present values, historical data is

*The Government's present flowage easement between 265 and 264

it. is keved to the continued operation and maintenance of this dam. By

liking this easement, the Government implicitly admitted that it

expected the dam to have a deleterious and compensable effect on the

Miller lands. Plaintiffs allegation is really that this effect was more

pervasive than the Government had expected.

A-13

useful to the resolution of the flooding propensity question.

One way of expressing this data is a “rating curve.” A

rating curve’? reflects only the effect of “the lay of the land”

on the vulnerability of the land to floods. If the post-Project

rating curve were higher than the pre-Project rating curve,

this would suggest that a taking had occurred.’'

Plaintiff's pre-Project and post-Project rating curves

are based on river surface profiles’? ot major floods

obtained over the years 1957-68 and 1970-73, respectively.

Defendant's pre-Project rating curve is based on a 1940

river survey, and its post-Project rating curve is based on

profiles taken during the years 1957, 1967 and 1970.

Plaintiff's and defendant's pre-Project rating curves

are significantly different, and this difference is

attributable to the Morrilton Cutoff. The Cutoff shortened

the river by several miles and thereby lowered the rating

curve of the river. Defendant insists that this benefit to the

‘Os “rating curve’ is a graphical representation of the relationship

hetween the volume of water flowing past a mile-post in unit time (in

cubic feet per second) and the elevation of the water surface. Elevations

are plotted along the ordinate, and flows along the abscissa. Elevations,

when referred to an arbitrary zero, are called “stages. and the flows are

sometimes called “discharges.

"Further complicating the analysis is the lack of river data at the

Property. The National Weather Bureau's Morrilton gauge, upstream of

the Property, is the nearest source of stage information. The United

States Geological Service's gauges at Dardanelle and Van Buren, both

upstream of the Property, and at Little Rockk, downstream, record the

average daily discharges at those locations. Therefore, it is necessary to

interpolate and adjust this data in order to discover the flows and stages

experienced al the Property.

‘24 “river surface profile’ is a graphical representation of the

relationship, at a particular time (such as immediately after a flood),

between the elevation of the river surface (in feet above mean sea level,

“MSL") at various points in its course (mileposts! and the distance of the

mileposts from a reference point \the confluence, in 1940, of the Arkansas

and Mississippi Rivers). Elevations are plotted along the ordinate and

mileposts along the abscissa.

A-l4

Property must be taken into account. Plaintiff claims that it

has already been taken into account, either in the

bargaining that occurred during the negotiation of the 1950

sale, or as an element in fixing just compenstion for acreage

condemned in 1969. Defendant's surface water expert, Mr.

Henson, testified that the benefits of the Cutoff to the

Property would have been obvious to a hydrologist even in

1949,

Curiously, plaintiff and defendant both rely on United

States v. 62.17 Acres of Land, Etc., in Jasper County, 538

F.2d 670 (5th Cir. 1976). This case involved, as the court put

it, “a second taking from a single tract.” The landowner first

sold 1,800 acres to the Government, in furtherance of the

construction of the Sam Rayburn Dam and Reservoir. Later

the Government sought to obtain 62 acres by condemnation,

again in furtherance of the Rayburn project. The landowner

admittedly had benefited from the proximity of the project.

It was held, 538 F.2d at 676, that there was a rebuttable

presumption that these benefits were considered in the

context of the negotiated sale (see 33 U.S.C. §596), and that:

The Government thus must bear the burden * * * of

demonstrating that anything less than what was then

the present value of the enhancement which would

accrue to the remainder was actually offset * * *. [538

F.2d at 677).

The Government has not met this burden.

But even if the Government could rebut the

presumption arising from the 1950 sale, it is not permitted

to rebut the presumption arising from the 1970

condemnation. Title 33 U.S.C. §595 (1970) directed the

district court which adjudicated the Miller (265 to 268 ft.)

flowage easement condemnation proceeding to “take into

consideration by way of reducing the amount of

compensation or damages any special or direct benefits to

the remainder arising from" the construction of the

A-15

Morrilton Cutoff. It cannot be doubted that this mandate

was obeyed in United States v. 28.00 Acres of Land, Civ.

No. LR-69-C-118 (E.D. Ark., W.D., May 7, 1970), wherein

compenstion was fixed for said flowage easement.

Negotiated sales and condemnation proceedings are not

legally equivalent: the latter give rise to an irrebuttable

presumption of full offset. See Jasper County, at 676. This is

a logical conclusion from the mandatory language of 33

U.S.C. §595.

Defendant correctly points out that deciding whether

or not a taking has occurred involves “comparing physical

facts relating to regulated and unregulated conditions.” But

this observation is not very helpful in determining which

unregulated state, pre-Cutoff or post-Cutoff, is the proper

starting point. If the benefits to plaintiff which accrued

when the Morrilton Cutoff was constructed have already

been weighed in the scales of justice, they should not be

weighed again. It is therefore concluded that recovery

should be based only on data reflecting the post-Cutoff state

of the river. whether pre-Project or post-Project. Only

plaintiff has presented a complete set of comparative post-

Cutoff rating curves.

A “taking” can also be shown by a shift of the “stage-

frequency’ curve for the property.'? According to

defendant, an increase in frequency of flooding occurred

only at elevations 266.5'* and below, well within defendant's

existing easement. According to plaintiff, flooding was

increased at elevations at least as high as 272 ft. Plaintiff

attributed this alleged adverse phenomenon to the Project,

and specifically to the operation of the flood control

reservoirs.

"94 stage-frequency curve indicates the number of days each year

that a river surface will reach a given stage.

'4Defendant’s curves also show an apparent increase in flooding

frequency between 273.5 and 276.5 ft.

A 16

It is not necessary, of course, that some portion of the

Property be continuously flooded for the effect of the

Project to be deemed a “taking.”'® United States v. Cress,

243 U.S. 316, 328 (1917):

There is no difference of kind, but only of degree,

between a permanent condition of continual overflow

by back-water and a permanent liability to intermittent

but inevitably recurring overflows; and, on principle,

the right to compensation must arise in the one case as

in the other.

One corollary to the Cress rule is that a single flood

does not constitute a “taking.” Hartwig v. United States,

202 Ct.Cl. 801, 809 (1973). Indeed, if flooding is infrequent,

even three floods do not constitute a “taking.” North

Counties Hydro-Electric Co. v. United States, 170 Ct.Cl.

241, 249-50 (Cong. Ret. case, 1965) (floods in 1943, 1952, and

1960). But if flooding can be expected, on average, “once

every eight years,” that is enough. Stockton ». United

States, 214 Ct.Cl. 506, slip op. at 11 (Ct.Cl. No. 226-74, July 8,

1977): cf. Barnes ». United States, 210 Ct.Cl. 467, 474, 538

F.2d 865 (1976) (“one year out of five’). As will become

apparent, portions of the Property have been subjected,

and will probably continue to be subjected, to extended

flooding on an almost yearly basis. However, in order to

better understand the flooding to which the Property was

subjected, it is necessary to acquire a rudimentary

knowledge of the operations of flood control reservoirs.

There are two basic flood regulation schemes. Both

depend on monitoring the river flow past a certain point,

e.g., Van Buren, Arkansas. The tributaries of the Arkansas

River collect rain water from a_ 138,000-square-mile

"*It might here be noted that even a 2-day flood might cause

compensable damage to crops and soil. Cf. Karch v. United States, Ct.Cl.

No, 298-69, finding 15, slip op. at 22 (Trial Div., January 27, 1977).

(Findings adopted by App. Div., December 14, 1977.)

A-17

watershed. Funneled through Van Buren, all of this water

eventually flows past the Property.

Originally, the Arkansas River was to be controlled

according to a 150,000 CFS “straight release” plan. When,

as a result of a storm, the flow past Van Buren rose to

150,000 CFS, the rise would be stemmed by detaining

“excess waters in the flood contro] reservoirs. Following

the storm, the reservoirs were reemptied by releasing the

detained waters (though without letting the total flow

exceed 150,000 CFS) so as to maintain a 150,000 CFS flow at

Van Buren until pre-storm levels in the reservoirs were

regained.

Though not clear from the record, it appears that the

150,000 CFS straight release was abandoned because of a

miscalculation of the resulting stage at Van Buren.

Unacceptable flooding occurred at Van Buren when waters

were released at 150,000 CFS. However, a lower “flowstick”

would maintain the reservoirs at a higher fill level and leave

downstream riparian property more vulnerable to

successive storms. Therefore, a more sophisticated

“variable release” plan was adopted. It was published in the

Lake Regulation Master Manual (April 1976), though it

seems to have been utilized even before publication. The

flow regulation level was to be based on the unutilized

capacity of the flood contro] reservoirs and that time of year

with a higher flowstick being employed during the rainy

season, and when the reservoirs contained more water than

usual."®

Plaintiff's hydrologist, Mr. R.J. Beuhler, examined the

flow gauge records at Van Buren and the flood storage

®The 150,000 CFS yardstick was to be used only when 50 percent

of the basins were filled in October and November or 4U percent at other

times. A 105,000 CFS yardstick was to be used when about 17 percent of

the basin was used in April. May, or June, or 27 percent at other times. A

40,000 CFS yardstick was to be used when about 7 percent of the basin

was used in April, May, or June, or 17 percent at other times.

\1s

records for the various reservoirs for the period 1970-74.

The former showed the actual! flows at Van Buren for the

regulated river, and the latter showed when, during given

flood, the reservoirs started to empty. Mr. Buehler had

already made a recession curve study of natural floods and

found that natural floods, unregulated floods, fall from

150,000 DFS down to the 40,000 CFS range in about 3'.

days. With this information in hand, Mr. Buehler derived

discharge profiles for “deregulated” 1970-74 flood events.

He then compared the “regulated” and “deregulated” river

discharge profiles for the flood events occurring in May

1980, June 1973, October 1973, November-December 1973,

March 1974, June 1974, and November 1974. In each case he

found that regulation increased the duration of the

discharge at Van Buren corresponding to a river surface

elevation of 270 ft. at the Property.

Mr. Buehler admitted that his 1970-74 data had shown

that the Arkansas was not always regulated according to

the “straight release” plan supposedly in effect, though he

averred that as to the June 1974 flood event, “it's clear that

about [a] 150,000 CFS release was used.” Nevertheless,

perhaps because Mr. Buehler recognized the uncertainties

inherent in the above analysis, he decided to show more

clearly the effect of a 150,000 CFS straight release plan by

applying it to Van Buren flow gauge records for the

unregulated floods of 1935, 1938, and 1943. His comparison

of the hypothetical! profiles with the observed profiles once

again suggested that the duration of flooding at elevation

270 on the Property was increased.

However, defendant argues that the Arkansas River

was actually regulated on an ad hoc basis:

Plaintiff has shown that the regulatory plan for the

flood control operation of * * * [the Project] was initially

designed for releases of 150,000 c.f.s. to pass at 22 feet at

the Van Buren gauge. However, the construction of

bank stabilization structures upstream from Van Buren

AY

over-constricted the channe! and reduced its carrying

capacity. Consequently, when severe flooding occurred

in 1973 and 1974, the Corps of Engineers did not release

stored flood waters in accordance with the established

plan of regulation. Instead, in attempting to relieve the

problem at Van Buren, the Corps of Engineers released

flood waters on an experimental! or ad hoc basis. As a

result, in April 1976 the Corps of Engineers temporarily

revised the flood control regulation plan from a straight

150,000 c.f.s. to a variable release plan. Finally, in

October 1976 the Corps of Engineers initiated a study to

determine the manner in which releases wil] be made in

the future.

Defendant concedes that, as a result of the regulation

of the Arkansas during the 1973 and 1974 floods, “the

duration of flooding was increased at the lower elevations of

the Miller property.” But defendant maintains that ad hoc

releases, however damaging, are merely tortious in nature,

as they are “random,” “temporary,” and “contrary to the

regulatory plan.”

It seems likely that the Arkansas River, for the

immediate future, will be regulated according to the

variable release plan outlined by the Lake Regulation

Master Manual (April 1976). Defendant has used a computer

model to construct two hypothetical elevation hydrographs.

Both predict the behavior of the Arkansas River in the

vicinity of the Miller tract during 1940-74, but one assumes

that the Arkansas remained in its natural state, and the

other assumes that the river was regulated according to the

Lake Regulation Master Manual guidelines during the

entire 35-year period.'’ A comparison of these hydrographs

‘’The period 1940-74 saw the gradual! alteration of the Arkansas

River from its natura! state into its present form. Defendant's first

hydrograph was constructed by mathematically “deregulating the river,

i+., “adding back” the stored water and ‘routing’ it to Van Buren. Then

defendant's second hydrograph was constructed by applying the Lake

Regulation Master Manua! plan to the hypothetical “natural” river.

Needless to say, these calculations are based on a number of assumptions:

still, they give a feel for the effects of a variable release plan, and are

therefore felt to be helpful

A 20

lends credence to plaintiff's position that such regulation

will inevitably subject portions of the Property lying above

268 ft. to an increased duration of flooding.'®

It is, of course, true that other, higher-lying portions of

the Property would have been benefited by the Project, and

that this court will eventually have to weigh benefits

against detriments in order to determine “just”

compensation. But for the threshhold issue of liability

presently before the court, it is enough to find that the

Project will inevitably increase the duration of flooding on

certain portions of the Property not subject to the flowage

easements possessed by the Government, and that this

increase constitutes a “taking” for which “just”

compensation must be accorded.

Elevation at which Duration of

Flooding was (or would have heen!

Flood Event Increased as a Result of Regulation

November 194) Kelow 275

April-May 1942 274

May-June 1943 277

April 1944 273

April-May 1945 276

October 1945 27:

May-June 1949 275

May 1950 272

July 1951 274

May-July 1957 275

October November 1959 275

May June 1961 275

April-May 1970 273

March-June 1973 276

November December 1973 275

March 1974 275

June 1974 275

November December 1974 275

The easement taken by defendant will give defendant

the privilege of occasionally inundating the lands lying

hetween 268 and 275 ft. by the release of impounded waters

from the flood control reservoirs of the Project.'®

Plaintiff's Second Taking Theory:

I'ndertlowage Easement

Plaintiff's second allegation is that the Project caused

certain areas of the Property to be damaged “by the raising

of the water table to a level so close to the surtace of those

areas as to interfere with the use thereof.”

It is settled law that a “taking” may result when the

water table is raised by governmental action. United States

». Kansas City Ins. Co., 339 U.S. 799, 809-10 (1950); Barnes ».

United States, 210 Ct.Cl. 467, 473-74, 475, 538 F.2d 865

(1976); Tri-State Materials Corp. v. United States, 213 Ct.Cl.

1, 550 F.2d 1, 211977). Among the adverse effects of higher

ground water which, if sufficiently permanent in nature,

give rise toa ‘taking’ are:

(Diestruction of the land for pasture purposes,

extensive cattail growth, killing of trees, rotting of

crops, failure of seeds to germinate, and inability to use

farm machinery on the land. [Barnes, supra, at 473-74.]

In 1959-64 the United States Geological Service

‘hereinafter “USGS"), at the request of the Corps, prepared

two maps, one representing the actual ground water

91 a revision in the flood control strategy is imminent, it may be

necessary to ask defendant to account for the value of this easement from

the time of the taking until the time of the revision, and for the value of

the easement subsequent to the revision. And these values would reflect

the differing vulnerability of the Property to flooding attributable to the

old and new plans.

Although the time of taking, from n. 18, supra, appears to be April

1970, a decision on this point is not necessary at this time and,

accordingly, is deferred to the accounting stage.

A-22

surface at the Property at the time of the study, and tne

other representing the projected, post-Project, water table.

The projection was based on the following three

assumptions: (1! the Project was completely constructed; (2)

the Toad Suck Ferry Lock and Dam No. § had been closed:

and (3) the associated navigation pool was being regulated

at 265 ft.

Mr. Gilbert J. Stramel testified that a 4-ft. rise in the

water table at the Property had been projected by the

USGS, but that, in his opinion, the ground water table had

actually risen 6 ft.

It is well known that a shallow water table can damage

crops. According to defendant, this occurs when the water

table is ‘2 ft. below the surface. Plaintiff contends that even

a 3-ft. table ean have an adverse effect.

Defendant relied heavily on a Department of

Agriculture (hereinafter “DOA™) study. However, the

projectional phase of this study considered only a single

form of crop damage (oxygen starvation), and ignored the

capillary action of clay soils.?° The record leaves open the

question of whether a 3-ft water table at the Property would

cause the rotting of crops planted on clay soils.

On the basis of the DOA study of the effect of the

Project on crops planted in the McLean Bottoms, the

Government adopted a 3-ft. taking criterion. Plaintiff

argues that since defendant heavily relied on other DOA

observations at McLean as evidence of what the Arkansas

River might have done to the Property, the 3-ft. taking

criterion should be adopted in this case. In addition, plaintiff

relies on a quotation from a USGS/Corps of Engineers’

publication which, in discussing dam site evaluation, said

?°Capillary action causes a moistening of soil (the “capillary fringe”)

lying above the water table. The capillary fringe is more extensive in

clay-type soils. The clay fields of the Property are located essentially at

elevations 273 and below.

A-23

that “it was assumed that land utilization would be affected

where the depth to ground water was five feet or less.”

‘Emphasis added.) The relevancy of these prior criteria is a

matter of dispute.

Mr. Hal Walker, the son of the tenant farmer on the

Property. testified that since the closing of the Toad Suck

Ferry Lock and Dam No. § in 1969, he had been able to get

only a single crop out of the 300 acres near the ox bow lake.

He had, of course, planted more than one crop, but in some

vears it had been too wet to plant a crop there at all. Both

surface water and ground water interfered with the

planting of the crop. And on other occasions, they interfered

with the harvesting of the beans he had managed to plant,

and he lost the crop because of rotting.

Mr. Walker further testified that before the Dam, he

farmed alfalfa on the Property, but that he no longer

attempts it. “[T]he water will get up and kill it.” The alfalfa

field was on “some of the highest land” of the Property.

Even if no crop damage has occurred, it is apparent

that the use of farm machinery on the clay fields has been

hindered by the Project. According to Mr. Walker, after the

closing of the Toad Suck Ferry Lock and Dam No. 8 it

became impossible to tractor farm the shore of the ox bow

lake. This crescent of “blackland” was wet “all the time.” He

testified that if he were to try to drive a tractor across the

wet areas, he would not have been able to get out. The

tractor would “just bog down.” These wet areas were areas

which had been tractor farmed prior to the Project.

On cross-examination, Mr. Walker indicated that he

“constantly” had problems with machinery when farming

the blacklands, and that these problems were not confined

to a narrow strip ("20 ft.” was suggested by counsel for

defendant), but was in fact as wide as 500 ft. in certain

places.

-

fe

cin

Mr. Henson, defendant's expert, argued that sogginess

could make it impossible to run heavy machinery over the

farmland, but felt that the problem disappeared when the

water table was 1 ft. or more deep. Mr. Henson, however, is

not a farmer by trade, whereas Mr. Walker had, at the time

of his testimony, helped his father farm the land for some 13

vears. It is further noted that Mr. Henson's testimony was

based on the McLean Bottoms study. Mr. Henson,

moreover, admitted that while soybeans did grow in the

soggy McLean soil referred to, “they never could combine

them.”

To the extent that the raising of the water table by the

Project has hindered the tractor farming of the Property, a

“taking has occurred, and the plaintiff is entitled to just

compensation therefor. Barnes v. United States, supra.

The various USGS’ and Corps of Engineers’

peizometric studies, as expressed in the form of contour

maps and cross-sectional profiles, are the most persuasive

evidence on the ground water effect of the Project, and they

clearly show that the Project has caused the water level

beneath the Property to rise toa height of 270ft., 2 ft. above

the upper bound of defendant's existing flowage easement.

It is, accordingly, concluded that the defendant has

taken an underflowage easement, permitting it to raise the

water table to 270 ft.?’ Since the testimony of record does

not show which acres of the Property are affected — either

in terms of direct crop damage or in terms of “non-

combinability” — plaintiff will have to present appropriate

proofs during the accounting phase.

In sum, it is concluded that the operation of the Project

by defendant has resulted in increased frequency or

duration of flooding on, and a raised water table under,

portions of the Property not servient to defendant's flowage

easement, and plaintiff therefore is entitled to

compensation.

*"The highest altitude reached by the water table in 1976 was 271

A-25

IN THE UNITED STATES COURT OF CLAIMS

No. 66-75

CHARLES M. MILLER

V.

THE UNITED STATES

H. Clay Robinson, for plaintiff. W. Dent Gitchel

attorney of record. Cearley, Gitchel Bogard & Mitchell

Gordon & Gordon, and Pryor, Robinson, Taylor and Barry.

of counsel.

John E. Lindskold, with whom was Acting Assistant

Attorney General Sanford Sagalkin, for defendant.

Before FRIEDMAN, Chief Judge; COWEN, Senior

Judge: DAVIS, KASHIWA, KUNZIG, BENNETT and

SMITH, Judges, en bane.

ORDER

After hearing oral argument en banc in this difficult

and complicated case, and after again considering the briefs

of the parties and the supplemental statements furnished

by them, the court finds, with regret, that it is necessary to

remand this case to the trial judge to make additional

findings of fact and/or conclusions of law.

The trial judge's decision is vacated, because we

believe it rests in part upon erroneous conclusions of law.

The tria¥Judge concluded that when the former channel of

the Arkansas River filled in and became non-navigable after

the Government constructed the cutoff, the Government's

navigation servitude over the non-navigable channel was

lost. He held that the continued existence of the servitude

depended upon “whether the Arkansas remains an artery of

interstate commerce.” This conclusion appears to be

contrary to the decision of the Supreme Court in Oklahoma

. Atkinson Co., 313 U.S. 508, 523 (1941). See also, United

States v. Commodore Park: Inc., 324 U.S. 386, 393 (1945) and

Allen Gun Club ». United States, 180 Ct.C}. 423, 429 (1967).

The court does not agree that when the Government

purchased the 248.26 acres from plaintiff in 1950, the

purchase price was reduced by the value of the benefit

accruing to the plaintiff in the form of emerged land which

plaintiff now says is worth $1,690,000. Contrary to the trial

udge's holding, it is also the view of the court that there is

no irrebuttable presumption that in the 1970 condemnation,

the amount paid was reduced hy the extent of any benefit

accruing to plaintiff through the construction of the cutoff.

In addition, the court finds that the following are

crucial issues of fact (or mixed questions of law and fact)

which have not been found by the trial judge or are not

readily ascertainable from undisputed evidence of record:

1. Although it is well settled that the Government's

navigation servitude extends to all submerged property

within the bed of a navigable river from ordinary high-

water mark on one side to ordinary high-water mark on the

other, there is a factual dispute as to how much of the land

in controversy was located above the ordinary high-water

mark of the river prior to the construction of the 1950

cutoff. How much of that land is located within the area of

the former bed of the river and how much outside the

former bed?

2. It is undisputed that at least part of the land in

issue emerged from the bed of the river after the cutoff, but

A-27

there is a dispute as to whether the surfaced lands, which

are the subject of plaintiffs claim, are necessary to the

continued operation of defendant's “navigational project or

its purpose.” See Bonelli Land and Cattle Co. v. Anzona,

414 U.S. 313, 329 (1973).

3, Another question, the answer to which is essential

to the disposition of this case, is “ hether the lands in issue

here “were probably within the scope of the project from

the time the Government was committed to it.” United

States v. Miller, 317 U.S. 369, 377 (1943); United States v.

Reynolds, 397 U.S. 14, 21 (1970), and L’nited States v. 62.17

Acres of Land, ete., in Jasper County, 538 F.2d 670 (5th Cir.

1976). In this connection the trial judge should determine

whether or not, at the time of the 1950 cutoff, the

Government was committed to the project which later

caused the flooding of plaintiff's lands for which

compensation is now sought.

4. Have the benefits which plaintiff has received as 4

result of the Government's activities been greater than the

damage he has sustained? United States v. Sponenbarger,

308 U.S. 256, 266-67 (1939); United States »v. Miller, 317 U.S.

369 (1943); John B. Hardwicke Co. ¥. United States, 199

Ct.Cl. 388, 467 F.2d 488 (1972). Defendant claims that

plaintiff is suing for the taking of land that emerged from

the bed of the river as a result of Government activities.

Also, the defendant asserts, but plaintiff does not agree,

that the completion of the project authorized by the Act of

1946 and the operation of the dam has decreased the

duration, frequency and elevation of floods on lands in the

vicinity of plaintiffs property as compared with the floods

which occurred on the 1834 acres of plaintiff's land prior to

the beginning of the project.

IT IS THEREFORE ORDERED that the case is

remanded to the trial judge with instructions to make

findings of fact on each of the issues listed above, and where

A.25

there are mixed questions of law and fact, to state his

conclusions of law thereon. The trial judge may rely on

evidence that is already of record, but he should also permit

either party to offer any additional non-cmulative evidence

which is relevant and material.

In connection with the 1969-70 condemnation (finding

20\, the trial judge is instructed to make findings of fact

stating whether or not: (a! prior to the condemnation action,

plaintiff made a written offer to sell the easement to the

defendant and the offer was accepted by defendant; ‘b!

defendant advised plaintiff that it was necessary to file a

friendly condemnation suit to clear title to the easement; (ce!

the district. court's judgment was based upon and

incorporated the offer and acceptance (option contract), and

d) the option contract, any other agreement of the parties,

or the judgment of the district court contained a provision

that the $400 paid by the defendant for the easement took

into consideration “by way of reducing the amount of

compensation or damages any special or direct benefits”

aceruing to plaintiff as a result of defendant's navigation

project, and if so, to what extent was the compensation paid

plaintiff reduced by the value of said benefits’

BY THE COURT

s Daniel M. Friedman

DANIEL M. FRIEDMAN

Chief Judge

IN THE UNITED STATES COURT OF CLAIMS

No. 66-75

CHARLES M. MILLER

THE UNITED STATES

A-29

H. Clay Robinson, for plaintiff. W. Dent Gitchel

attorney of record. Cearley, GitchelL Bogard & Mitchell

Gordon & Gordon, and Pryor, Robinson, Taylor and Barry,

of counsel.

John E. Lindskold. with whom was Acting Assistant

Attorney General Santord Sagalkin, tor defendant.

Before FRIEDMAN, Chief Judge: COWEN, Senior

Judge; DAVIS, KASHIWA, KUNZIG, BENNETT and

SMITH, Judges, en bane.

ORDER

This case comes before the court on plaintiff's motion of

December 10, 1979 for clarification of the court's order

entered November 21, 1979. Plaintiff inquires if there is still

open for further proof, the issue as to whether the benefits

accruing to plaintiff in the form of emerged land were taken

into account in determining the compensation for the 1950

taking. In order to avoid further delay in the proceedings

before the trial judge, the court hereby deciares that in its

order of November 21, 1979, this issue was resolved against

the plaintiff.

BY THE COURT.

s Danie! M. Friedman

DANIEL M. FRIEDMAN

Chief Judge

Feb. 8, 1980

A 30

UNITED STATES CLAIMS COURT

No. 66-75

CHARLES M. MILLER

JUDGMENT

THE UNITED STATES

Pursuant to the opinion of October 19, 1982, it was held

that plaintiff is not entitled to compensation with the

complaint to be dismissed.

IT IS ORDERED AND ADJUDGED this date,

pursuant to Rule 58, that the complaint is dismissed.

Frank T. Peartree

Clerk of Court

By: s/ Linda A. Eddins

Deputy Clerk

Oct. 20, 1982

NOTE: As to appeal, 60 days from this date, see FRAP 4a)

IN THE UNITED STATES CLAIMS COURT

No. 66-75

(Filed October 19, 1982)

Inverse condemnation;

' retention of naviga-

CHARLES M. MILLER

v. ' tional servitude so

' jong as required for

THE UNITEDSTATES project.

H. Clay Robinson, attorney of record, for plaintiff. Pryor,

Rohinson, Taylor & Barry, of counsel.

John E. Lindskold, with whom was Assistant Attorney

General Carol E. Dinkins, tor defendant.

~ OPINION

COLAIANNI, Judge. Plaintiff in this case has alleged a

“taking” by the Government of a flowage and undertlowage

easement on farm property riparian to the Arkansas River in

Perry County, Arkansas. Plaintiff's complaint is that his land

suffers increased flooding and duration of flooding as a result of

the operation of the McClellan-Kerr Arkansas River

Navigation System. He further maintains that the project has

raised the ground water table under his land and that he is

consequently unable to machine farm parts of the land.

A trial was held on the issue of liability and I concluded

that defendant's actions resulted in a compensable “taking”

under the fifth amendment. On June 14, 1978, a recommended

decision and findings of fact were submitted to the court to that

effect. In response to exceptions by defendant, the court, by

order of November 21, 1979, remanded the case back to the trial

division for additional findings of fact on specific questions

which the court deemed necessary for a determination of the

case.

Following the remand and pursuant to order, a pretrial

conference was held to determine if a trial would be necessary

At

to answer the court's questions. As a result of the conterence,

the parties stipulated responses to questions 1-4 of the

November 21st order. These stipulations were contained in a

“Memorandum Re Pretrial Conference,” dated April 7, 1981.

Thereafter, in a further effort to respond to additional

questions, the parties stipulated answers to the court's

questions (a), (b) and ic). The stipulation regarding the latter

questions was accepted on August 19, 1981, in open court.

One question of fact remained to which the parties were

unable to stipulate an answer. Thus, on August 19, 1981, a trial

was held in Little Rock, Arkansas, to hear testimony and

receive exhibits on this final issue.

When this case was remanded, it was deemed to have

been remanded for a resolution of only those specific factual

questions detailed in the court's order of November 21, 1979.

Accordingly, no additional recommended opinion was to have

been proposed to the court by the trial judge. However, with

the implementation of the Federal Courts Improvement Act of

1982 and the resulting dissolution of the Court of Claims and

the creation of the new Claims Court, this has changed.

As of October 1, 1982, the trial division of the Court of

Claims became the United States Claims Court. With this

change, the new Claims Court judges were charged with the

responsibility of reaching final decisions in cases brought

before the court. The former Court of Claims judges have

become appellate judges of the new Court of Appeals for the

Federal Circuit, and their duties include hearing appeals from

final judgments rendered by the Claims Court. Because of

these changes, it is incumbent upon me to do more than simply

refer the findings of fact and conclusions of law to the new

appellate court in answer to the particular questions included in

the remand order from the former Court of Claims judges; I

must now reach a decision as to the issues not already resolved

and render a final judgment in this case.

Add

Therefore, based on a review of the entire record,

including the conclusions of law contained in the remand

order, the stipulations of the parties, and the additional

evidence received at trial, I have concluded that there has

been no taking in this case, and that plaintiff is thus not

entitled to compensation tor the flooding of his property.

Back grou nad

A portion of the facts contained in the June 14, 1978,

opinion, useful to the understanding of the decision on

remand, are set forth here again as hackground.

Plaintiff, in 1936, became the owner of a 1,834-acre

tract of land in Perry County, Arkansas. This tract

(hereinafter, the “property”! was at one time located within

a northward loop of the Arkansas River. The Arkansas

River was highly unstable in its natural s*»te. Because of its

heavy sediment load, it presented serious impediments to

navigation. The river could overnight change from a mere

trickle of water to a rushing torrent, change its course, and

destroy improvements along its banks.

During the late forties, erosion transformed plaintiffs

property into a peninsula delimited by a “horseshoe” bend

of the Arkansas, and reduced his acreage to between one-

third and one-half of its original size. The Corps of

Engineers (hereinafter the “Corps”! became concerned, as

they expected that the river would soon cut itself a new

channel across the neck of the peninsula. Such a natural

“avulsive change” would have been a serious setback to

river navigation, as the new channel would probably contain

sharp, difficult-to-navigate bends. The United States

therefore acquired 248 acres from plaintiff for $34,000 and

planned the construction on this acreage of a new, easily

navigable channel for the river (hereinafter the “Morrilton

Cutoff” or “Cutoff”.

\ 34

In May 1950 the Corps constructed a pilot channel

across the neck of the ox bow. The abrasive action of the

river soon widened the channel to the desired extent, and

its northern bank was stabilized by the Corps in 1952 by the

construction of a suitable revetment. The new channel

captured most of the flows of the Arkansas. As a result of

water flowing through the old channel at lesser velocities,

sediment was deposited. The silting-up of the ox bow was

accelerated by the Corps’ construction of two dikes at the

upstream end of the old channel in 1952 to divert flows away

from the old riverbed. The old channel became an ox how

ake, a nonnavigable tributary of the Arkansas. Eventually

the plaintiff sought and obtained title to the emerged lands,

and began to farm them. Of the 1,719 acres currentiv

comprising the Miller farm or property, approximately S00

acres lie on the pre-cutolf bed of the Arkansas River.

In 1956 the Corps began the construction of the

MecClellan-Kerr Arkansas River Navigation Project,

authorized by Congress back in 1946.' Seven tributary lakes

were to be converted into multiple-purpose reservoirs for

low-flow regulation, sediment control, flood control.

domestic and industrial water supply, and hydroelectric

power. In addition, the main stem of the river was to be

“canalized” by 17 navigation locks and dams. (When

completed, the project was to provide a 448-mile long

navigational channel from around Tulsa, Oklahoma, to the

Mississippi River.) By 1964 the last of the upstream flood

control reservoirs had been readied for flood control

operation, the primary object of the authorizing legislation.

The canalization plan was changed many times as the Corps

found ways of simplifying the system. In 1960 or shortly

thereafter, it was decided that the Toad Suck Ferry Lock

and Dam No. 8 would be located 91/2 miles downstream from

plaintiffs property, and that the elevation of its upstream

navigation pool would be fixed at 265 ft. The property is

‘Rivers and Harbors Act of July 24, 1946, 60 Stat. 641.

A-35

riparian to this pool. In 1965 wing dikes were constructed

downstream of the property, and in 1969 the downstream

Dam No. 8 was closed.

Plaintiff alleged in his complaint that the closing of the

dam resulted in greater flooding to his land and that the

operation of flood control] reservoirs caused increased

duration of flooding on the property. He also complained

that he is unable to farm his crops with heavy machinery

because the project has raised the water table under the

farm. I originally found that there was a substantial inter-

ference with plaintiff's use of his land as a result of the

project and that the portions of the property so affected

were not servient to any flowage easement defendant had

over plaintiff's land. I therefore concluded that there was a

“taking” and that plaintiff was entitled to compensation, but

since —

[T]he testimony of record does not show

which acres of the property are alfected—

either in terms of direct crop damage or in

terms of “noncombinability” —plaintiff will

have to present appropriate proofs during

the accounting phase.’

ba

Although defendant maintained that the Government

held a navigation servitude over the property within the

former bed of the Arkansas, it was never made entirely

clear that all the “land in controversy” was part of this

riverbed. Defendant's rationale is further grounded in the

common law doctrines of “avulsion” and “accretion.”

Accretion is the process by which deposits of soil are

gradually added to one’s land by the operation of natural

causes. Avulsion is the sudden addition or loss to land due

to a radical change in the course of a river or stream.

Miller v. United States, Ct.Cl. Trial Div., No. 66-75, Opinion of

June 14, 1978, at 31.

A-36

In the former instance, common law recognizes that

property lines measured by the water will change gradually

with the migration of the river or stream. However, with

avulsion, the law acknowledges the drastic impact of the

boundary change to the landowner and does not in that case

shift property title with the shift in the water's course.

Thus, the avulsion doctrine mitigates the hardship that the

sudden movement of a river or stream would have on the

abutting landowner. Bonelli Cattle Co. v. Arizona, 414 U.S.

313, 327 (1973).

Defendant maintained that the creation of the cutoff

was an artificial avulsion and that the property interest

held by the Government, that is, the navigation servitude,

did not shift with the river. The court on remand allowed

that the former riverbed might still be subject to a

servitude even though it was no longer a navigable

waterway, but focused on the Bonelli requirement that

there must exist a navigation purpose to retain an interest

in the exposed land.

Defendant also insisted that benefits to plaintiffs

property had to be taken into account in deciding if there

had been a taking. Plaintiff claimed that benefits from the

project had already been considered either in the

bargaining that occurred in the negotiation of the 1950 sale

of land to defendant or as an element of compensation for

acreage condemned in 1969-70. It was determined in the

recommended opinion that there was a presumption that

these benefits were considered in the context of the

negotiated sale in 1950, and that this presumption had not

been rebutted. Further, it was determined that there was

an irrebuttable presumption that benefits were considered

in the 1970 condemnation proceedings, based on the

directives or 33 U.S.C. §595 (1970). This section of the code

required that the Government “take into consideration by

way of reducing the amount of compensation or damages

any special or direct benefits to the remainder” arising from

Government projects.

The conclusion was that benefits from the 1950

Morrilton Cutoff could not be weighed again in determining

plaintiff's recovery from lands taken. The court on remand

disagreed with the conclusion that the consideration of

benefits was decided by presumption. and directed that

further factfinding be done on this issue.

Discussion

The decision I come to in this case incorporates the

legal conclusions articulated by the court in its remand

order. Thus. the Government did not necessarily lose its

navigation servitude over surfaced lands within the

boundaries of the former bed of the Arkansas River, up to

its mean high water level, when the channel became

nonnavigable. Whether the Government continues to hold

the navigation servitude depends on whether the emerged

lands are needed for the continued operation of the

navigation project which caused the resurfacing of the land.

This conclusion is in keeping with the decision reached in

Bonelli Cattle Co. v. Arizona, supra, at 329.

The facts of the Bonelli case are similar to those in the

instant case. Plaintiff Bonelli acquired title to a parcel of

land abutting the east boundary of the Colorado River. The

land was originally granted by patent to the Santa Fe

Pacific Railroad Company in 1910. In 1912, upon admission

to the Union, Arizona succeeded the Federal Government to

title of the Colorado River bed. Over the years, the river

moved eastward, resulting in the submergence of plaintiffs

land. In 1959, the Federal Government rechannelled the

river, causing the water of the river to withdraw from much

of plaintiffs land.

Plaintiff brought suit to quiet title to the emerged land,

but the State of Arizona maintained that the title to the

former riverbed remained with it. The Supreme Court

disagreed. It held that since there was no longer any public

need for the land, the state's title was defeasible, since

A-3%

public need for the land was the basis for vesting title with

the state in the first place. The court found that where —

(Liand cast up in the Federal Government's exercise of

the servitude is not related to furthering the

navigational or related public interests, the xccretion

doctrine should provide a disposition of the land as

between the riparian owner and the state.

Id. at 329.

Similarly, the court held, riparian lands may suffer

noncompensable losses in the exercise of the Government's

Thus, the facts in the instant case must be reviewed in

the context of the Bonelli holding. Question 2 of the remand

order focused on this point. The court asked:

2. It is undisputed that at least part of the land in

issue emerged from the bed of the river after the cutoff,

but there is a dispute as to whether the surfaced lands,

which are the subject of plaintiffs claim, are necessary

to the continued operation of defendant's “navigational

project or its purpose.” See Bonelli Land and Cattle Co.

v. Arizona, 414 U.S. 313, 329 (1973).

The parties stipulated the following response: “It is

necessary to flood the ‘lands in controversy’ to permit

navigation on the Arkansas River.”

Thus, the plaintiff conceded that the flooding of the

former riverbed portion of his land is necessary for the

navigation project. In view of the parties’ stipulated

response, the next question which must be addressed is

whether any of the “lands in controversy” are subject to a

navigation servitude. This issue is treated by question 1 of

the order:

AL38G

1. Although it is well settled that the Government's

navigation servitude extends to al] submerged property

within the bed of a navigable river from ordinary high-

water mark on one side to ordinary high-water mark on

the other, there is a factual dispute as to how much of

the land in controversy was located above the ordinary

high-water mark of the river prior to the construction of

the 1950 cutoff. How much of that land is located within

the area of the former bed of the river and how much

outside the former bed?

The stipulated answer to this question was as follows:

Plaintiff will accept the Government's survey that all

“lands in controversy” are situated within the area of

the former riverbed as it existed prior to the

construction of the 1950 cutoff for purposes of

determining whether a taking occurred.

Looking at these stipulated responses in light of the

Bonelli case, I find that they are dispositive of this case.

Since all of the land in controversy is within the former

riverbed, and the flooding of the land is necessary to the

navigation project which caused the emergence of the land

initially, then the Government has a navigational servitude

over all of the land in controversy. Therefore, there has

been no taking under the fifth amendment.

Having concluded that there has been no taking, it

becomes unnecessary to consider the additional questions

posed by the court on remand.’

?

*These questions, which except for question (d), are the subject of

the parties’ stipulations, go to the issue of whether benefits to plaintiff's

land were considered in connection with compensation paid to plaintiff for

an easement in 1968. The discussion of benefits would only be relevant if

part of the land interfered with by the Government were outside the

former riverbed for it would then become necessary to determine

compensation for the taking. In such a case, the Government would be

entitled to offset benefits to the land resulting from its project against

any detriment to the property to see if a taking has occurred. See United

States ». Sponenbarger. 308 U.S. 256 (1939).

A-40

CONCLUSION

Based on the foregoing, the court concludes as a matter

of law that plaintiff is not entitled to compensation for the

flooding of his property, within the former riverbed of the

Arkansas River, which is necessary to the continued

operation of defendant's navigation project, and the petition

is dismissed.