
    COLUMBIA BASIN ORCHARD, SEATTLE ASSOCIATION OF CREDIT MEN, PERHAM FRUIT CORPORATION v. THE UNITED STATES
    [No. 48674.
    Decided July 12, 1955.]
    
      
      Mr. Oliarles L. Powell for plaintiffs. Mr. Lloyd L. Wiehl was on the briefs.
    
      Mr, William H. Veeder, with, whom was Mr. Assistant Attorney General J. Lee Rankin, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

On March 6, 1950, we dismissed plaintiffs’ petition on the ground that their right of action was barred by the statute of limitations (116 C. Cls. 348). Thereafter, Congress passed an Act on May 21, 1954, 68 Stat. (Part 2) A53, conferring jurisdiction on us to hear plaintiffs’ claim “notwithstanding the lapse of time * * and the case is now before us on the merits.

In our prior consideration of the case we made only such findings of fact as were necessary for a decision on the question of the statute of limitations. The findings of fact hereinafter set forth states all the facts necessary for a decision on the merits.

On June 4,1946, defendant filed in the United States District Court for the Eastern District of Washington a declaration of taking of title to some 560 acres of land within the boundaries of the Grand Coulee, in the State of Washington, the property of plaintiff Columbia Basin Orchard, on which plaintiffs Seattle Association of Credit Men and Perham Fruit Corporation held mortgages. Of the property taken, 196 acres were planted in fruit trees, and had been operated as an orchard since 1932. Plaintiff alleges that prior to the condemnation on June 4, 1946, defendant had destroyed the fruit trees on the property, and it sues for just compensation for their value. The value of the trees was not included in the judgment in the condemnation case.

The question presented is whether or not the acts done by defendant constituted a taking. These acts, briefly stated, are as follows:

In preparing a plan for the construction of a dam at the south end of the Grand Coulee, to create a storage reservoir, defendant, through the Bureau of Reclamation, sank a shaft, known as Ankeny Shaft, in the Coulee at a point west of Orchard, Cowfly, and South Cowfly Lakes, and about four miles southwest of a spring which plaintiff used for the irrigation of its orchard. In so doing, the defendant encountered water, which it was necessary for it to pump out. The water pumped from this shaft flowed down to Orchard Lake. Such pumping was done from June 1939 to April 1940. During the early months of 1940 there was unusually heavy rainfall and spring runoff from the snows, which, together with the water pumped from the shaft, caused Orchard Lake to rise to an unprecedented height and to overflow the spring which plaintiff used to irrigate its orchard. The bed of Orchard Lake is an alkali flat, and the water in the lake took from the bed a considerable quantity of salts and alkali. Wb.en the waters from the lake overflowed the spring, the water in the spring became somewhat alkali and salt.

Plaintiff, to correct this situation, erected a dike around its spring, but the water from the lake continued to seep through the dike into the spring. The water in the spring remained contaminated by the water from Orchard Lake until after the waters in Orchard Lake had receded, which was in May 1940. In the meantime, notwithstanding the evident contamination of the spring waters by the waters from Orchard Lake, as shown by their milky color, plaintiff continued to irrigate its orchard. Plaintiff alleges that when the orchard was irrigated with water from the spring, the alkali and salts discharged into it by the water from Orchard Lake accentuated the already alkaline nature of the soil of the orchard so as to bring about a condition in the trees known as plasmolysis; that this condition continued throughout the year 1941 so that it became unprofitable to continue to operate the orchard and it was abandoned.

It is quite difficult to say whether or not the contamination of the spring waters by the waters from Orchard Lake caused the damage to the fruit trees, but the Commissioner has found, under the weight of the testimony, that it did, and we have concurred in the finding.

The question presented is whether or not the discharge of the water from the shaft into Orchard Lake, and the consequent contamination of the orchard spring, and the resultant damage to the trees, constituted a taking by the defendant. We are of the opinion that it did not.

Plaintiff’s proof falls short of showing that the discharge of the waters from the shaft into Orchard Lake would have caused it to overflow the spring. From June 1989 to April 1940 defendant pumped from this shaft some 2,128 acre-feet of water; but during the early months of 1940 there was unusually heavy rainfall and spring runoff from the snows. Instead of a normal rainfall, of 0.75 of an inch, for the last 29 years, in February 1940 there was 3.12 inches of rainfall. Such precipitation was equivalent to 38,000 acre-feet within the water shed of Orchard Lake, as against 2,128 acre-feet which defendant discharged into it from the Ankeny Shaft. Plainly, the discharge of this water from the Ankeny Shaft would not have caused Orchard Lake to overflow the spring, except for the unprecedented rainfall. It is, therefore, impossible to say that the flooding of the spring, or seepage into it, was the natural or probable consequence of the discharge of the waters from the shaft into the lake.

The most that can be said is that the discharge of the waters from the shaft into the lake was a contributing factor towards its overflow, or the seepage into it, but certainly it cannot be said that the overflow or seepage from the lake was the natural or probable consequence of the discharge of these waters into it. To constitute a taking, the overflow of or seepage into the spring must have been the direct, natural or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action. (See cases cited and discussed, infra.) A tort action may lie in the proper forum for such an incidental or consequential injury, but not a suit for just compensation. There must have been an intent on the part of the defendant to take plaintiff’s property or an intention to do an act the natural consequence of which was to take its property.

In Vansant et al. v. United States, 75 C. Cls. 564, 566, we said:

A taking within the meaning of the amendment must have been an intentional appropriation of the property to the public use. * * *

In Horstmann v. United States, 257 U. S. 138, 146, the Supreme Court said:

We think the cases at bar are within the latter decisions, and it would border on the extreme to say that the Government intended a taking by that which no human knowledge could even predict. Any other conclusion would deter from useful enterprises on account of a dread of incurring unforeseen and immeasurable liability. This comment is of especial pertinence. That the result of the Government’s work to the properties of plaintiffs could not have been foreseen or foretold is a necessary deduction from the findings of the Court of Claims. The court found that there is obscurity in the movement of the percolating waters, and that there was no evidence to remove it in the present case, and necessarily there could not have been foresight of their ' destination nor purpose to appropriate the properties.

In Sanguinetti v. United States, 264 U. S. 146, the question was whether or not the erection of a canal which allegedly caused an overflow of plaintiff’s property constituted a taking. The court said, at page 147:

* * * It was not shown, either directly or inferentially, that the Government or any of its officers, in the preparation of the plans or in the construction of the canal, had any intention to thereby flood any of the land here involved or had any reason to expect that such result would follow. That the carrying capacity of the canal was insufficient during periods of very heavy rains and extremely high water was due to lack of accurate information in respect of the conditions to be met at such times. The engineers who made the examination and recommended the plans, determined, upon the information which they had, that the canal would have a capacity considerably in excess of the requirements in this respect.

Finally, the Court said, at pages 149-150:

* * * It was not shown that the overflow was the direct or necessary result of the structure; nor that it was within the contemplation of or reasonably to be anticipated by the Government. If the case were one against a private individual, his liability, if any, would be in tort. There is no remedy in such case against the United States. Keokuk Bridge Co. v. United States, 260 U. S. 125.
The most that can be said is that there was probably some increased flooding due to the canal and that a greater injury may have resulted than otherwise would have been the case. But this and all other matters aside, the injury was in its nature indirect and consequential, for which no implied obligation on the part of the Government can arise. See Gibson v. United States, 166 U. S. 269; Bedford v. United States, 192 U. S. 217; Transportation Co. v. Chicago, 99 U. S. 635; Jackson v. United States, 230 U. S. 1; Horstmann Co. v. United States, 257 U. S. 138; Coleman v. United States, 181 Fed. 599.

See also Cotton Land Co. v. United States, 109 C. Cls. 816, 829.

The Supreme Court has in recent decisions expressed the opinion that a taking is compensable under the Constitution, although the facts are not sufficient to imply an agreement to pay for the land taken. See the discussion of recent decisions of the Supreme Court in Cotton Land Co. v. United States, supra. However, in no case has the Supreme Court ever indicated that an accidental or negligent impairment of the value of property constitutes a taking. It has never departed from the rule that there must have been an intent on the part of the Government to appropriate the property to the use of the public, or to deprive the owner of the beneficial use of it for the benefit of the public. An accidental or negligent impairment of the value of property is not a taking, but, at most, a tort, and as such is not within the jurisdiction conferred on the Court of Claims by Congress. That jurisdiction permits us to award recovery for damages, liquidated or unliquidated, but not “in cases sounding in tort.”

Our opinion in Fonalledas v. United States, 128 C. Cls. 483, upon which plaintiffs rely, is not to the contrary. In that case the Government’s contractor had erected dikes around three sides of an area in which the Government discharged spoil from the dredging of a channel, but it had left one side open. The direct and natural result of leaving this side open with the continued discharge of the spoil on the area caused it to encroach upon plaintiff’s property. It was obvious that the continued discharge of it would cause it to encroach upon plaintiff’s property and, therefore, the continued discharge of it under these circumstances was a deliberate act of the Government’s contractor, which impaired the value of plaintiff’s property and constituted a temporary appropriation of it. From these facts an intent to take could be implied.

In the case at bar the Bureau of Beclamation, as we have found, could not have foreseen that the discharge of this water from the Ankeny Shaft on the Coulee would have caused Orchard Lake to overflow or seep into plaintiffs’ spring. Such seepage or overflow was not the direct, natural or probable consequence of the Government’s act, and for this reason no intent to take can be implied. The most that can be said is that plaintiffs’ spring was contaminated as the result of the negligence of the Government.

Although, it was not true at the time of the act complained of in this case, today plaintiffs may have a right of action under the Tort Claims Act (28 U. S. C. 2671, et seq.). But to such an action the Government might well have interposed the defense that the act of the plaintiff itself in irrigating these trees, with knowledge of the fact that the spring waters had been contaminated, was contributory negligence, or the proximate cause of the damage, which perhaps would have barred a recovery. We have found that the waters had receded from the lake by May 22, 1940, and that by the middle of the summer the waters of the spring were no longer contaminated. This being true, it would seem that plaintiffs could have waited until the contamination had disappeared before irrigating its trees, and the damage of which it now complains would not have occurred.

The plaintiffs’ damage was not the direct, natural or probable result of the defendant’s action, but rather the incidental and consequential result of the defendant’s authorized activity. It is well settled that consequential damages form no basis for a recovery under the Fifth Amendment.

It results that plaintiffs’ petition must be dismissed.

Laramoke, Judge; MaddeN, Judge; LittletoN, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Currell Vance, and the briefs and argument of counsel, makes findings of fact as follows:

1. Each of the plaintiffs’ Columbia Basin Orchard, Seattle Association of Credit Men, and Perham Fruit Corporation, is- and was, at all times pertinent to these proceedings, a corporation organized and existing under and by virtue of the laws of the State of Washington.

2. At all times herein mentioned, up to June 4, 1946, the plaintiff, Columbia Basin Orchard, was the owner of certain real property in Grant County, Washington, described as follows:

A tract of land containing two and no/10 (2.0) acres more or less, lying and being in the northwest quarter of the southeast quarter (NW%SE14) of section three (3), township, twenty-five (25) north, range twenty-eight (28) east, Willamette meridian, more particularly described as:
Beginning at a point 150 feet west of the east bank of that certain irrigation ditch of the Columbia Basin Orchard, a corporation, as now constructed where the same crosses the south line of the northwest quarter of the southeast quarter (NW%SE)4) of said section three (3); thence north 250 feet; thence east 350 feet; thence south 250 feet to the south line of the northwest quarter of the southeast quarter (NW^SE^) of said section three (3); thence west to the point of beginning.
Also, the southwest quarter of the southeast quarter (SW^SE^) of section three (3) ; the west half of the east half (W%E%) and the southeast quarter of the southeast quarter (SE14SE14) of section (10); and the east half (E%) of section fifteen (16), all in township twenty-five (25) north, range twenty-eight (28) east, Willamette meridian, containing five hundred sixty (560) acres, more or less.
Excepting from the east half of the east half (EI/2E14) of said section fifteen (15) and the southeast quarter of the southeast quarter (SE14SE14) of said section ten (10), the right, title and interest of the State of Washington in and to the right of way for existing Secondary State Highway No. 2-F.

3. Plaintiff, Seattle Association of Credit Men, on said date of June 4,1946, held a mortgage on the above-described property. At all times thereafter said mortgage was due and unpaid and amounted at the time of the hearing of this cause, to wit: February 22, 1949, to the sum of $44,732.02. Said mortgage was, until said date of June 4,1946, a lien on the real property described above.

4. Plaintiff, Perham Fruit Corporation, on said date of June 4, 1946, held a mortgage on the above-described property which at the time of the hearing of this cause, to wit: February 22, 1949, was due and unpaid in the sum of $60,-154.98. Until said date of June 4, 1946, said mortgage was a lien on the real property described above.

5. The ownership of plaintiff, Columbia Basin Orchard, of the above-described real estate, and the liens thereon of the other plaintiffs as set out above, continued until June 4, 1946, at which date title was vested in the United States of America, defendant herein, by virtue of the filing of a declaration of taking in the United States District Court for the Eastern District of Washington, Northern Division, pursuant to condemnation proceedings there instituted.

6. The real property above-described consists of 560 acres, more or less, located within the boundaries of the Grand Coulee, State of Washington. Some 196 acres of the property were planted to fruit trees, predominantly pear and apple trees. Such property had been acquired by the corporation in 1932 and had been operated as an orchard until the events hereinafter described. The water from a large spring at the northern end of the property was collected in a sump and from there pumped to the orchard for irrigation purposes.

7. West of the orchard and the spring, and between them and the west wall of the Coulee, was a large alkali flat or playa lake known in this record as Orchard Lake. A small pool of water appeared near the west wall of the Coulee at all times during the year, being fed by a spring or springs. During the spring run-off from the surrounding watershed, the level of the lake would rise and approach the orchard and spring. It had never previously risen, however, during plaintiffs’ operation of the orchard, to a point where it overflowed the spring.

8. South and southwest of Orchard Lake were two other playa lakes known as Cowfly Lake and South Cowfly Lake.

9. During all the times involved in this case, a plan was in preparation for the construction by the defendant of a dam at the south end of the Grand Coulee and the use of the Coulee from that point northward as an equalizing reservoir above Grand Coulee Dam in the Columbia Biver. Pursuant to such plan, exhaustive investigations were made by the Bureau of Keclamation in the floor of the Coulee to determine the suitability of the Coulee for use as a reservoir and to locate suitable foundations for the dam.

10. In pursuance of such investigations the Bureau of Beclamation sank a shaft in the Coulee at a point south and west of Orchard, Cowfly, and South Cowfly Lakes, about four miles southwest of the orchard spring. The purpose of this shaft was to investigate a monocline fault there occurring. This shaft is known in the record as Ankeny Shaft.

11. In the course of the operation of sinking Ankeny Shaft, considerable quantities of water were encountered. In order to pursue the investigations it was necessary to pump out this water, and over a period extending from June 1939 to April 1940, the defendant pumped from Ankeny Shaft and discharged onto the floor of the Coulee some 2,128 acre-feet of water.

12. According to plaintiffs’ testimony, the water pumped from Ankeny Shaft flowed down in a northerly direction to Orchard Lake and contributed to raising the elevation of such lake to a point where it overflowed the orchard spring. Defendant claims that none of the water pumped from An-keny Shaft flowed into Orchard Lake but was caught in South Cowfly Lake and sank through the surrounding soil and through a well which had been dug in South Cowfly Lake to commingle with the ground water of the Coulee. Defendant further claims that there is a shoulder of land between South Cowfly Lake and Orchard Lake of an elevation higher than the elevation of orchard spring.

13. At the time of the occurrences complained of by plaintiffs, there was no doubt that it was plaintiffs’ firm contention that the water from Ankeny Shaft flowed into Orchard Lake. Complaint was promptly made of the occurrence, and investigations were instituted by the Bureau of Reclamation. In a report by the Assistant Solicitor of the Department of the Interior to the Secretary of the Interior regarding this matter, dated November 19, 1942, the following statement is made:

From 1936 to 1940, geologists and engineers of the Bureau of Reclamation sank test shafts in the Grand Coulee area in the vicinity of the Columbia Basin Orchard, in order to determine whether this particular site would be suitable for reservoir purposes. On or about June 16,1939, a test shaft known as the Ankeny Shaft penetrated an underground flow of water. During a period beginning shortly after that date and extending to April 10,1940, water was pumped from the shaft and part of it flowed into Orchard Lake. The melting snows and spring rains, together with the water from this shaft, partially filled the bed of the lake, which by April 1940 had inundated the claimant’s spring.

The same witnesses who were investigating platntiffs’ claim now profess knowledge acquired at the time that the water from Ankeny Shaft did not flow into Orchard Lake. This circumstance was the obvious and complete answer to plaintiffs’ claim. That such answer was not immediately advanced casts doubt on its accuracy.

In view of the above considerations and in view of the positive and unequivocal testimony of plaintiffs’ witnesses on the point, it is found that under the preponderance of the evidence, water pumped from Ankeny Shaft did flow into Orchard Lake and contribute to its rise.

14. During the early months of 1940 there was in and from the watershed around the Coulee in the neighborhood of Columbia Basin Orchard an unusually large precipitation and spring run-off. The level of Orchard Lake rose to an unprecedented height and overflowed the orchard spring, and the waters of the lake and the spring became commingled. The rainfall in February 1940 was 3.12 inches, as compared with a 29-year average, which included February 1940, of 0.75 of an inch. As stated above, the bed of Orchard Lake is an alkali flat and the water in the lake took into solution from the bed a considerable quantity of salt and alkali which in turn became commingled with the water of the spring.

15. It is extremely difficult to determine whether in the spring of 1940 the level of Orchard Lake would have been raised sufficiently to inundate the orchard spring in the absence of the contribution of the water from Ankeny Shaft. At any rate, the proof does not show any intention on the part of the defendant to cause Orchard Lake to overflow plaintiffs' spring, nor does the proof show that it could have been foreseen that the discharge of the water from Ankeny Shaft would have caused Orchard Lake to overflow plaintiffs’ spring. In view, however, of the past and subsequent history of the Orchard, and in view of the fact that the only inundation recorded occurred contemporaneously with this operation, it is found that without the contribution of the water from Ankeny Shaft, Orchard Lake would probably not have overflowed the spring. There is no proof that defendant planned or anticipated that water pumped from Ankeny Shaft would flow into Orchard Lake or would contribute to its rise to the point where it overflowed the orchard spring. Nor is there any proof that the defendant undertook to explore in advance the results of discharging the water from Ankeny Shaft onto the floor of the Coulee.

16. In order to exclude from the spring the waters of Orchard Lake, plaintiff, Columbia Basin Orchard, on April 16,1940, constructed a small dike between the two bodies of water and proceeded to pump water from the spring and irrigate the orchard. As the pumping progressed, the level of the spring was drawn down about two feet. The dike excluded surface flow of the lake water into the spring sump, but seepages under the surface continued, discernible from their milky appearance. The waters from the lake had receded from the spring by May 22,1940, and at least by the middle of the summer of 1940 the spring had cleared up.

17. When Orchard Lake overflowed plaintiff’s spring, plaintiffs’ president notified the Bureau of Beclamation that he feared that their spring would be contaminated by alkali. Although the water in the spring had a milky appearance at the time, plaintiffs nevertheless irrigated their orchard with water from the spring. Thereafter, in the late summer of 1940, the trees and fruit of the orchard began to exhibit the deleterious effects of some treatment they had received. Generally, these effects were characterized by a general appearance of an unhealthy condition evidenced by a poor color and growth of the foliage, a dying of leaves, twigs and whole branches, and a failure of the fruit to attain a normal, healthy growth. Plaintiffs attribute these effects to the alkali in the water transmitted to the spring by its inundation by the waters from Orchard Lake. Their theory is that to the already somewhat alkaline soil of the orchard there was added by the use of such water sufficient additional alkali and salts to bring about a condition described as “plasmolysis.” Plasmolysis results from the plant’s inability to absorb moisture and food through its roots due to an imbalance of the salts in the plant and the surrounding earth and water.

18. As proof of the alkalinity of the water, plaintiffs cite the fact that certain algae which had always existed in the spring sump and which cannot survive under alkaline conditions, disappeared from the spring in the early months of 1940, and that when the water from the spring was used for a spray mixture, over-flocculation occurred. Flocculation is described as that process by which the spray materials are carried in suspension so as to be deposited on the trees in the proper and desired thickness. In the case of over-flocculation, such materials are precipitated in the spray tank and on its agitators and clog the operation.

19. It is the defendant’s contention that the alkalinity of the water was not sufficient to have a deleterious effect on the orchard and that the conditions exhibited by it were the results of fire blight, which is caused by a minute organism. Under the weight of the testimony, the condition was not fire blight, but a general die-back condition brought on by some cause. Since the orchard in previous years of operation by plaintiff, Columbia Basin Orchard, had never exhibited similar symptoms, and since its treatment and cultivation in 1940 were no different from that in previous years except for the condition of the water used for irrigation, it is found under the weight of the testimony that the condition resulted from the contamination by Orchard Lake of the spring and the use of the water therefrom to irrigate the orchard.

20. During the year 1941 the condition of the orchard deteriorated rather than improved, so much so that plaintiff determined not to try to make a commercial crop, and applied a tar oil spray to kill the bloom. However, in the effort to bring the orchard back to a flourishing condition, plaintiff, Columbia Basin Orchard, irrigated it during this year, the waters of the lake having receded from the vicinity of the spring.

21. In 1942 it was early decided that the condition of the orchard did not warrant the expense and effort of producing a commercial crop for that year. Plaintiffs understood that defendant would eventually take the orchard property for the purpose of an equalizing reservoir, and, consequently, they could not plan a long-range program to restore the orchard to productivity and had to operate the orchard on a year-to-year basis. The corporation finally decided in July 1942 to abandon the property as a producing orchard. Nothing was done to preserve the property until the condemnation proceedings instituted by defendant on June 4, 1946.

22. In the condemnation proceedings the value fixed for the property under the instructions of the court was its value at the date of taking, to wit: June 4,1946. The charge of the judge to the jury contained in particular the following instructions:

For the reason that it was considered to have a bearing on this question of the highest and best use to which the property involved was adaptable, evidence has been introduced and admitted to show the reason the fruit orchard on the property was not being operated at the time it was taken by the United States. That evidence is to be considered by you solely as it may affect the use or uses to which the property was adaptable on June 4, 1946, the date of taking, and for no other purpose whatsoever. For example, evidence as to the raising of the level of Orchard Lake was admitted only as an explanation by the defendants as to why the operation of the orchard was suspended. Even though you believe that the owners sustained some damages from the raising of the lake level, nevertheless you must not include any allowance therefor in your verdict. You are not to hold the Government responsible in damages for any loss which may have been occasioned by the owners having ceased to operate the orchard.

CONCLUSION OP LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiffs are not entitled to recover and their petition is dismissed. 
      
      AN ACT
      1 To confer jurisdiction upon the Court of Claims to hear, determine, and render judgment upon certain claims of the Columbia Basin Orchard, the Seattle Association of Credit Men, and. the Perham Fruit Corporation.
      
        Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred upon the Court of Claims, notwithstanding the lapse of time or any provision of law to the contrary, to hear, determine, and render judgment upon all claims of the Columbia Basin Orchard, the Seattle Association of Credit Men, and the Perham Fruit Corporation (all corporations of Washington) against the united States arising out of the flooding during the period, beginning June 1, 1939, and ending April 30, 1940, of certain real property owned by the said Columbia Basin Orchard in Grant County, Washington, insofar as such flooding was the result of certain drilling operations carried out by the Bureau of Reclamation in the course of its investigations preliminary to the construction of a dam and an equalizing reservoir in the Grand Coulee: Provided, however, That nothing contained in this Act shall be construed as an inference of liability on the part of the United States Government.
      Sec. 2. All claims against the United States within the purview of the first section of this Act shall be forever barred unless action is begun thereon within one year after the date of the enactment of this Act.
      Approved May 21, 1954.
     