
    SHERMAN WEBB, ET AL. v. THE UNITED STATES
    [Cong. No. 1-68.
    Filed May 1, 1970]
    
      
      Marvin E. Jones, attorney of record for claimants.
    
      David D. Hochstein, with whom was Assistant Attorney General Shiro Kashinoa, for respondent.
    Before Davis, Presiding Commissioner of the Review Panel, Wxlli and Spectok, Commissioners.
    
    
      
       The House of Representatives Report referred to in section 1 of the Act mahes it clear that flood control tvas the sole purpose of the projects authorized for the St. Francis River. H. Rep. No. 2583, 74th Cong., 2d Sess. Moreover, it appears that the Government’s practice of leasing Government-owned lands in reservoir areas for recreational purposes began in 1944, well after final completion of the Wappapello Dam' and Reservoir. See sec. 4 of the Act of December 22, 1944, ch. 655, 58 Stat. 887.
    
   Willi, Commissioner,

delivered the opinion of the Review Panel:

By H.R. Res. 1098 of the 90th Congress, the United States House of Representatives on May 27, 1968, referred H.R. 1624, a bill for the relief of Sherman Webb and others, to the Chief Commissioner of the United States Court of Claims pursuant to 28 U.S.C. § 1492 (1964 ed.) and 28 U.S.C. § 2509 (1965-8, Supp. IV). The Chief Commissioner referred the case to the late Commissioner Richard Arens for proceedings in accordance with the rules, and designated the above members of the Review Panel to consider the trial commissioner’s report on the merits of plaintiffs’ right to recover damages for certain crop losses caused by flooding of the St. Francis River below a dam built and operated by the U.S. Army Corps of Engineers.

On September 26, 1969, following a trial and briefing by the parties, Commissioner Arens issued his opinioii and supporting findings of fact. He concluded that although there was no legal liability, plaintiffs had a valid equitable claim against the United States.

While plaintiffs urged adoption of the commissioner’s opinion and findings, the Government duly excepted to both.

The parties have again briefed their respective positions and have presented oral argument before this panel.

Albeit on somewhat different reasoning, it is held that Commissioner Arens correctly determined that plaintiffs had an equitable right to recover from the Government for the loss of their crops.

The essential facts are summarized here. Complete details are contained in the separately stated findings óf fact accompanying this opinion.

Plaintiffs owned crops, primarily soybeans, growing in 1965 on approximately 8,000 acres of bottom land in southern Missouri and northern Arkansas situated along the St. Francis River, a tributary of the Mississippi, in an area ranging from 22 to 79 miles below the river’s Wappapello Dam and Reservoir, a facility operated and controlled by the U.S. Army Corps of Engineers. The crops in question were destroyed by flooding and the parties are in agreement as to their value at the time of the flood.

The dam, completed in 1941 under authority of section 4 of the Act of June 15, 1986, ch. 548, 49 Stat. 1509, had as its principal objective the protection of downstream landowners from the ravages of devastating floods theretofore common in the area. This legislation, which authorized several different flood control projects, was entitled “An Act for the control of floods on the Mississippi River and its tributaries and for other purposes.”

Structurally, the Wappapello Dam is an earthen fill across the St. Francis River with a 740-foot emergency concrete spillway that crests at an elevation of approximately 395 feet MSL (Mean Sea Level). With its spillway cresting at. that elevation, the dam is capable of impounding 625,000 acre-feet of water in the conically shaped reservoir that was formed behind it. A fixed-position conservation weir at an'elevation of 355 feet MSL is designed to insure a minimum water volume of 38,600 acre-feet in the reservoir.

In order to accommodate the dam’s total water impoundment capability of 625,000 acre-feet, the Government acquired all lands in the reservoir basin up to an elevation of 400 feet MSL — some 5 feet higher than the crest of the spillway. The reservoir area became a popular sports and recreation attraction ; and in due course the Government leased the shoreline lands, beginning at a minimum elevation of 364 feet MSL, to private parties, principally for the erection of fish--ing and boating piers. The more highly elevated Government-owned lands, ranging closer to 400 feet MSL, were leased for agricultural purposes. In all instances, the leases expressly-stated that the lands involved were subject to flooding.

In 1963, in deference to the interests of the shoreline lessees, the Corps of Engineers agreed with the Missouri Conservation Commission that from May 1 to. December 15 of each yéar it would attempt to maintain the water level in the reservoir at approximately .359 feet MSL. Stabilization at that level, it is agreed by all parties to this'suit, bore no relationship to flood control considerations or objectives. .

Three parallel tunnels running through the báse of the dam, each equipped with a 10- by 20-foot electrically operated gate, provide the means for a controlled release of water im- ■ pounded by the dam. With a full reservoir and the gates wide open the three tunnels have a maximum flowage capácity. of 18,000 cubic feet of water per second (cfs)..

The channel capacity of the St. Francis Liver before con-. struction of the Wappapello Dam project was between 3,000 and 4,000 cfs. The original plan for the project called for increasing that capacity to 10,000 cfs by providing a series of levees on each bank of the river below the dam. The levees on the west bank were built according to plan but none were built on the east bank because of right-of-way acquisition difficulties.' Since the levee system was never completed, the channel capacity of the river remained essentially unchanged. Despite that fact, the Corps of Engineers adhered to its original plan for operating the dam. This plan, generally known throughout the local area, consisted simply of a 10,000 cfs year-round ceiling on the rate of water release. Thus, the tunnel gates were-not used to restrict discharge until flowage reached that volume of water — a volume more than twice the actual channel capacity of the river, albeit exactly equal to the capacity that was planned but never achieved.

During the so-called “wet” season in the area (December through July), flowage through the dam tunnels frequently exceeded the 3,000 to 4,000 cfs channel capacity of. the river with consequent, downstream flooding of varying severity.. Such flooding did not cause significant damage, however, be-C cause until 1963 most of the downstream riparian lands were wooded and, to the extent that they were under cultivation the crops were harvested and removed, before the onset of the “wet” season.

The growing and harvest season in the area for-crops such as plaintiffs’ primarily spanned the months of . August through November, the so-called “dry” season. As a matter of historical pattern, discharge from the dam during that period had rarely exceeded 4,000 cfs. The record establishes, that between 1941 and 1964 downstream flooding never occurred during the months of August or September, and occurred only .once in- October (1949), and four times in November. (1941, 1951, 1957 and 1958); In the face of this record of experience it was not unreasonable for downstream property owners to clear their woodlands, during the-years 1963-1965, in anticipation of being able to utilize those lands for the production of crops such as soybeans. ■ - •

It was in the context of the above background that the critical events of September 1965 occurred. -

The month began inauspiciously enough. Flowage past the dam was at a rate no greater than 33,0 cfs and the downstream elevation of the river was less than 4 feet, as con-" trasted with a flood stage that ranged from 17 to 20 feet.

The calm was broken,- however, on September 11 and 12 when rains' of unprecedented intensity fell above and below the dam in the aftermath of Hurricane Betsy which-had-struck the Gulf Coast on the 10th and then veered northward. Although more of the same occurred on the 14th, 15th' and 16th, the rate of discharge from the dam still did not exceed 1,600' cfs and the river elevation had not exceeded 13.40 feet. Additional heavy rains fell above and below the dam on the 22nd and by the following day, when it again rained heavily below the dam and moderately above it, the rate of discharge from the dam rose to 6,250 cfs.

It takes approximately 2 days for water released from the dam to reach the closest of plaintiffs’ downstream lands and about! days to reach the farthest.

By September 24 the discharge rate at the dam had risen to 7,000 cfs and elevation of the river had reached flood stage. At that point plaintiffs, who were then experiencing transitory flooding, requested the Corps of Engineers to provide relief by reducing the rate of discharge at the dam.

At the time of plaintiffs’ request for relief, the pool elevation in the reservoir had reached 365.94 feet MSL, a level that was never to be exceeded throughout the entire episode and was almost 29 feet below the spillway crest. In terms of the reservoir’s impoundment capacity, that pool elevation represented an accumulation of 134,080 acre-feet of water, less than 25 percent of the reservoir’s total capacity of 625,000 acre-feet and less than one-third of the 415,700 acre-feet of capacity when the pool elevation is at 385 feet MSL, 10 feet below the crest of the spillway.

In the face of the conditions described above, and fully aware of the 4,000 cfs channel capacity of the river and of the fact that plaintiffs were already undergoing some flooding, the Corps of Engineers refused to make any reduction at all in the 7,000 cfs rate of discharge that was then prevailing. Its sole concession to the plaintiffs’ plight and request for help was to close the tunnel gates to the extent necessary to reduce the maximum possible discharge rate from 10,000 cfs to 7,000 cfs.

Sustained flooding of downstream lands ensued and plaintiffs’ crops were damaged to the extent set forth in H.E. 1624.

Following the events of September 1965, the Corps of Engineers initiated an extended study that culminated in a new seasonal plan of operating procedure for variable flowage control at the Wappapello Dam. The plan, which replaced the single-feature 10,000 cfs year-round flowage ceiling plan that had governed control of the tunnel gates from the inception of the project, was put in effect in October 1967. The new plan applied to the period August 1 through November 30 of each year, that being the historical “dry” season for tbe area which, includes the growing and harvest seasons for such downstream river bottom crops as soybeans. During that 4-month period, the discharge rate at the dam is limited to 3,000 cfs until the pool elevation of the resei'voir reaches 384.74 feet MSL, 10 feet below the spillway crest. Beyond that pool elevation, the discharge rate is increased to 7,000 cfs.

Whatever may be said of the merits of the Corps of Engineers’ actions in operating the dam as it did during the 1965 hurricane crisis,. the1 Government is immunized ■ from legal liability for at least two reasons. First, there is the express provision of the 1928 legislation that originally provided for flood control projects on the St. Francis Fiver to the effect that: “No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters * * Second, there is the specific exclusion from the Federal Tort Claims Act of: “Any claim based upon * * * the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.”

Accordingly, the relevant inquiry becomes whether the plaintiffs have an equitable claim against the United States. While it is true that in this context the word “equity” is used in the sense of broad moral responsibility — what the Government ought to do as a matter of good conscience — it is also true that even under this theory the defendant’s liability must rest on some unjustified act or omission to, act which, caused plaintiffs’ damage. But for that, any award would be a pure gratuity. B. Amusement Co. v. United States, 148 Ct. Cl. 337, 342, 180 F. Supp. 386, 390 (1960). Put otherwise, it has been said that the test of “equity” is whether the claim asserted would be recoverable against a private party. Estates of E. L. Armiger, et al. v. United States, 168 Ct. Cl. 379, 384, 339 F. 2d 625, 628 (1964).

Because the abatement of the hurricane rains approximately coincided with plaintiffs’ requests to the Corps of Engineers for flood relief, a hindsight view of the evidence shows that had the rate of water discharge at the dam been reduced to 3,000 cfs, generally in keeping with the known channel capacity of the river, plaintiffs’ crops would have been saved and the pool elevation of the reservoir would not have been increased significantly. Without more, however, a bare showing that crop damage could have been avoided had the dam been operated differently does not create Government liability under the recognized standard of equitable entitlement previously described. There remains for consideration the dispositive element of causative negligence on the part of the Government.

It is true, as the Government quite correctly insists, that it would be wholly unwarranted to conclude that the Corps of Engineers acted negligently in failing to reduce the rate of discharge at the dam because it should have more accurately foreseen the stoppage of hurricane rains which were practically unprecedented for the area. The Government negligence that so clearly emerges from the present record is in no way dependent on anything so tenuous as an asserted lack of meteorological prescience.

However, given the weather conditions with which it was confronted in September 1965, the Corps of Engineers was grossly negligent in advisedly refusing to operate the dam in any manner consistent with its intended function and purpose. Undeniably, flood control was the predominant, if not exclusive purpose for which federal funds were appropriated to the construction of the Wappapello Dam and Reservoir. An examination of the relevant legislation permits no other conclusion.

A comparison of the reservoir’s storage capacity with the volume of impoundment permitted by the Corps of Engineers during the emergency of September 1965 reveals that, as operated, the flood control capabilities ■ of the dam were never even approached. The highest pool elevation registered in the reservoir at any time during September 1965 was 365.94 feet MSL (28.80 feet below spillway crest) with a resulting impoundment of 134,080 acre-feet of water in the reservoir. This volume of impoundment contrasts with 625,000 acre-feet at spillway level and 415,700 acre-feet at 385 feet MSL (10 feet below spillway level).

.At the time of the 1965 flood emergency, the Corps of Engineers had operated this dam and reservoir complex for almost 25 years. While it could not be expected to foresee the end of the hurricane rains, it had accumulated ample background and experience in correlating the relationship between rainfall and the pool elevation of the reservoir. Accordingly, on September 24 when the Corps of Engineers, knowing that plaintiffs’ crops were being flooded, nonetheless declined to reduce the rate of discharge at the dam to 3,000 cfs, a flowage that could have been accommodated by the channel capacity of the river, it did so with the knowledge that had the rate been reduced to that level the pool elevation of the reservoir would not have reached the spillway crest unless it rained more than it already had during the entire month of September.

In summary, the manner in which the Engineers elected to operate the control gates in the dam bore no discernible functional relationship to the achievement of flood control objectives and can only be rationalized in light of its 1963 compact with Missouri Conservation Commission to maintain a 359-foot MSL pool elevation in the reservoir for the benefit of sports and recreation enthusiasts and its acknowledged concern for the welfare of the lessees of Government lands in the reservoir basin from 364 to 400 feet MSL — lessees whose lease indentures specifically forewarned of flooding possibilities.

That prevention of downstream flooding was clearly subordinate to the above considerations in the eyes of the Corps of Engineers is further indicated by the fact that it was not until 1967 that pre-planned discharge at the dam was ever limited to the channel capacity of the river. At all times theretofore the control gates were attuned to a hypothetical channel capacity of 10,000 cfs that never materalized and was in fact 214 times greater than actual channel capacity.

Finally, the Government suggests that plaintiffs should be denied recovery on the theory that they assumed the risk of flood damage by planting soybeans in areas where they knew that flooding had occurred in the past.

Of course it is true that simply by building a flood control dam the Government does not become a guarantor against downstream flooding. Thus, persons such as plaintiffs are and should be held to assume the risk of damage from flooding that occurs despite the exercise of reasonable care in the operation of the flood control facility.

On the other hand, in the context of equitable entitlement, these plaintiffs and persons like them may justifiably assume that when the Government builds a dam for the announced purpose of flood control, the completed facility will be operated in a manner reasonably calculated to effectuate that purpose. Such persons are not, however, obliged to shoulder the risk that, without notice to them, the Government might sometime decide that, instead of operating the facility in a manner that accords unqualified priority to prevention of downstream flooding, it will compromise the facility’s capacity to control flooding in order to promote other interests, such as the recreational suitability of a reservoir that was initially built for the predominant purpose of impounding run-off waters which would otherwise exceed a river’s channel capacity and cause flood damage. The evidence demonstrates most convincingly that this is what occurred here and plaintiffs cannot conscionably be held to have assumed the risk of their consequent loss.

For the above reasons, the trial commissioner’s conclusion as to the validity of plaintiffs’ equitable claims is affirmed, and they are therefore due from the United States the respective amounts totaling $295,790.24, set forth in H.E. 1624 of the 90th Congress, 1st Session, reproduced in finding 1 accompanying this opinion.

Spectok, Commissioner,

concurring:

I concur in this decision and believe it to be strongly supported by the record. However, I do not join in the opinion of the majority of the panel because that opinion is not predicated, as it states, “on somewhat different reasoning” from that set forth in Trial Commissioner Arens’ opinion, but rather is based on substantially the same reasoning. I would therefore prefer merely to adopt Commissioner Arens’ opinion, in which he concludes as we all do, that plaintiffs have an equitable claim in the moral or nonjuridical sense traditionally used in Congressional Reference cases.

Findings oe Fact

Congressional Proceedings

1. (a) On January 10, 1967, during the 1st Session of the 90th Congress, there was introduced in the House of Representatives, a bill, HR. 1624, providing in part as follows:

* * * That the Secretary of the Treasury is authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to each of the following named persons the amounts set forth opposite their respective names in full settlement of their claims against the United States for losses and damages they suffered due to the flooding of their lands due to the release of waters of the Wappapello Reservoir on or about September 25, 1965, without warning or notice which would have enabled them to take steps to avoid or minimize losses from the flooding caused by that release:
Tenant Landlord Acres Damages Dam-(name and address) (name and address) farmed to tenant ages to landlord
Sherman Webb, Qulin, Self. 185 $3,587.50 .. Missouri.
Hershel 0. Vernon, Route 1, Taylor TTnderwood, 145 2,104.00 $1,052.00 Fisk, Missouri. Route 1, Fisk, Missouri.
T. D. Burleson, Dexter, Louise Bombolasbi, 400 3,261.34 1,630.66 Missouri. Route 1, Dudley, Missouri.
LeRoy Cato, Route 1, E. B. Bowie, Route 1, 140 3,306.67 1,663.33 Dudley, Missouri. Dudley, Missouri.
Milburn Taylor, Route 1, .do. 150 2,200.00 1,100.00 Dudley, Missouri.
Loyd Thompson, St. Marlin Tinsley, Granite 70 1,366.67 683.33 Francis, Arkansas. City, Illinois (2210 Illinois Aye.)
Pete Sandlin, Route 1, E. B. Bowie, Route 1, 160 3,876.00 1,938.00 Dudley, Missouri. Dudley, Missouri.
Arvil Bowie, Route 1, do. 280 5,197.34 2,598.66 Dudley, Missouri.
BenW. White, Route 1, Self. 290 4,100.00 . Campbell, Missouri.
H. L. Underwood, Route 1, .do. 80 492.00 . Campbell, Missouri.
Joe Vanderfeltz, Route 1, do. 80 252.00 . Campbell, Missouri.
Clem Bader, Route 1, .do.. 340 1,414.00 ... Campbell, Missouri.
E. B. Bowie, Route 1, .do. 800 31,430.00 . Dudley, Missouri.
Tenant Landlord Acres Damages Dam-(name and address) (name and address) fanned to tenant ages to landlord
W. H. Bowling, Route 1, E. B. Bowie, Route 1, 380 $7,462.67 $3,731.33
Virgil T. Low, Route 2, Self.. 612 4,760.00 .
Lawrence Sherfius, Route 1, Dudley, Missouri. Louise Bombolaski, Route 1, Dudley, 240 6,835.50 2,917.75
Robert Feiser, Route 1, Campbell, Missouri. John Feiser, Route 1, Campbell, Missouri. 16 753.34 376.66
Do..... Armstrong Cork Co., Route 1; Campbell, Missouri. 19 886.66 443.34
Robert Feiser, Route 1, Campbell, Missouri. L. F. Feiser, Route 1, Campbell, Missouri. 7 326.66 163.34
Do.. Self. 7 490.00 .
John F. Stenger, Route 1, _do. 65 602.80 .
Marvin Fadler, Route 1, Bemie, Missouri. Joe Osborn and Jack Osborn (partners), 969 13,348.05 6,674.02
Do. J, D. Flagg, Piggott, 396 3,217.46 1,608.73
Robert White, Route 1, Bemie, Missouri. Joe Osborn and Jack Osborn (partners), 600 15,950.00 7,975.00
Jerrell Stone, Route 1, Bemie, Missouri. Billie J. Barker, Route 1, Bemie, Missouri. 240 2,930.34 1,465.16
Rex L. Young, Route 1, Jack Bowie, Route 1, 650 7,757.87 3,878.93
Cranston C. Smith, Route 1 Self. 117 3,787.50 ..
Ornas Shipman, Bemie, Missouri. Elmo Moore, Piggott, Arkansas. 170 1,355.47 677.73
Kenneth Minton, Route 3, Self. 1,105 11,790.00 .
E. A. Hawkins and H. A. Hawkins, Route 3, Missouri. E. B. Bowie, Route 1, Dudley, Missouri. 1,095 17,766.67 8,883.33
Amos Linville, Route 1, Missouri. Self. 105 2,003.00 .
Jess Creecy, Route 1, Dudley, Missouri. Louise Bombolaski, Route 1, 173 4,503.01 2,251.51
John L. Bowie, Fisk, Missouri. E. B. Bowie, Route 1, Dudley, Missouri. 700 18,918 67 9,459.33
.
Lofton Linderman, Fisk, _do. 76 1,182.00 .
Mike Feiser, Route 1, _do. 95 848.70 .
H. B. Talkington, Dexter, Missouri. Louise Bombolaski, Route 1, Dudley, 360 5,491.20 2,745.60
B. N. Maxwell, Route 1, Campbell, Missouri. Self. 75 1,687.50 ..
Missouri. .
Dud C. Lewis, Route 2, Piggott, Arkansas. _do. 153 2,938.46 .
Fred Templemire, Route 1, Missouri. .
Lee Lipsey, Route 1, _do. 80 1,080.00 .
O. Q-. Branch, Route 1, E. B. Bowie, Route 1, 180 2,017.34 1,008.66
Dudley, Robert Stoner, Route 1, _do. 250 4,282.67 2,141.33
Do. Louise Bombolaski, Route 1, Dudley, 288 7,498.67 3,749.33
Elmer Battles. Route 1, Dudley, Missouri. E. B. Bowie, Route 1, Dudley, Missouri. 100 1,669.34 834.66

(b) A similar bill, H.R. 16309, had previously been introduced on July 18, 1966, in the House of Representatives during the 89th Congress, and a hearing thereon had been conducted on September 15, 1966, by a subcommittee of the Committee on the Judiciary to which the bill had been referred.

(c) On August 17,1967, a hearing on the bill, H.R. 1624, was conducted by a subcommittee of the Committee on the Judiciary to which the bill had been referred.

(d) On March 13, 1968, during the 2d Session of the 90th Congress, there was submitted in the House of Representatives a resolution, H.R. Res. 1098, providing:

Resolved, That the bill (H.R. 1624) entitled “A bill for the relief of Sherman Webb, and others”, together with all accompanying papers, is hereby referred to the Chief Commissioner of the Court of Claims pursuant to sections 1492 and 2509 of title 28, United States Code, for further proceedings in accordance with applicable law.

(e) On April 1, 1968, the Committee on the Judiciary of the House of Representatives in Report No. 1236 reported favorably, without amendment, the bill, H.R. Res. 1098.

(f) On May 21, 1968, H.R. Res. 1098 was adopted by the House of Representatives.

(g) On May 27, 1968, the Clerk of the House of Representatives certified and referred the pertinent documents in the case to the Chief Commissioner of the United States Court of Claims.

Oourt Proeeedmgs

2. (a) On June 10, 1968, plaintiffs filed their petition, addressed to the Chief Commissioner.

(b) On Jume 14, 1968, the Chief Commissioner issued an order of reference to a trial commissioner and a designation of a review panel.

(c) On July 22, 1968, plaintiffs filed their first amended petition.

(d) On August 16, 1968, defendant, the United States of America, filed its answer.

(0) On September 19,1988, a pretrial conference was conducted by the trial commissioner at which time exhibits were introduced into evidence by both parties and counsel stipulated that the itemization of damages set forth in H.R. 1624 (above referred to) and totaling $295,790.24 was correct. Defendant’s counsel did not, however, concede any liability, legal or equitable, on the part of defendant.

(f) On January 16, 1969, plaintiffs filed their second amendment to the petition.

(g) On January 31, 1969, defendant filed its answer to plaintiffs’ second amendment to the petition.

(h) On March 4 and 5, 1969, a trial was conducted by the trial commissioner at Cape Girardeau, Missouri, at which time additional exhibits were introduced into evidence and oral testimony was adduced by both plaintiffs and defendant.

(i) On April 11,1969, plaintiffs filed their proposed findings of fact, brief and argument.

(j) On July 2,1969, defendant filed its proposed findings of fact and brief.

(k) On July 23, 1969, plaintiffs filed their objections to defendant’s proposed findings of fact, and their reply brief and argument.

Plaintiffs’ Claim

3. (a) Plaintiffs were at all pertinent times the legal owners of certain crops, principally soybeans, growing on about 8,000 acres of land in Stoddard, Dunklin and Butler Comities, in southern Missouri, and in Clay County, Arkansas, all bordering on the St. Francis River. The land is located from about 22 to 79 miles south of Wappapello Dam and Reservoir situated in Wayne County, Missouri, on the St. Francis River.

(b) The St. Francis River flows in a southerly direction in a snake-like pattern and has a capacity to hold within its banks water releases from all sources (including releases from the dam and from drainage ditches below the dam) of 3,000 to 4,000 cubic feet a second (cfs) before overflowing. Flood stage of the river is from 17 to 20 feet. Water from the dam takes 2 days to reach a point in the river opposite the northern-most area of the above land and 7 days to reach the southern-most area.

(c) Plaintiffs claim that the damage to the crops, itemized in H.R.. 1624 (above referred to) and agreed by defendant as being correct as itemized and in total amount, was the direct and proximate result of the unnecessary release by defendant, without warning, of water from the reservoir in an amount far exceeding the capacity of the St. Francis River channel, with resulting flooding of plaintiffs’ land.

(d) Defendant, in addition to asserting that plaintiffs are not entitled to recover as a matter of law, asserts that:

(1) the damage to plaintiffs’ crops was caused by natural flooding as a result of unusually heavy and unprecedented rainstorms which occurred in September 1965, below and above the dam and reservoir;
(2) such damage occurred in marginal areas which were subject to natural flooding prior to and since the construction of the dam and reservoir, and that plaintiffs assumed the risk of damage by such flooding when they planted their crops in such areas;
(3) defendant operated the dam and reservoir in a proper manner with due and careful regard for existing circumstances and contingent weather conditions;
(4) by limiting the outflow from the reservoir, defendant prevented much greater flooding and more extensive damage than would have occurred to plaintiffs’ crops and land if they had not benefited by the partial protection afforded by the dam and reservoir;
(5) because of the unusually heavy rains in September 1965, above and below the dam and reservoir, many of plaintiffs’ marginal lands would have been flooded with resulting crop losses even though the outflow from the reservoir had been restricted to 3,000 cfs during the periods of heavy rainfall; and
(6) the damage to plaintiffs’ crops occurred several weeks prior to the normal harvesting period and the crops were not ready for harvest at the time the flooding occurred.

Flooding Prior to Construction of the Dam

4. (a) Prior to construction of the dam and reservoir in 1941, St. Francis Fiver discharges in excess of channel capacity at the area where the dam and reservoir are presently located were as follows:

Bate of discharge (in cubic feet
Date: per second)
Avgust 1915_ 85,000
May 1920_ 37,300
April 28, 1921_ 42,700
April 23, 1922_16, 000
May 17, 1923_ 27,200
May 31, 1924_10, 300
November 9,1925_ 23, 000
February 27, 1926_14,400
April 16, 1927_49,100
June 22, 1928_ 34,700
May 15, 1929_ 24,400
January 15, 1930_ 34, 600
March 9, 1931_J_ 9, 420
December 26, 1932_15, 900
May 15, 1933_ 82, 500
April 8, 1934_ 5, 960
March 12, 1935_ 56, 300
November 5, 1936_11,400
January 16, 1937_ 40, 500
February 20, 1938_31, 000
April 18, 1939_ 27,300
April 21, 1940_ 5,400

Since the channel capacity of the river is 3,000 to 4,000 cfs, it is evident that severe flooding resulted below the present location of the dam and reservoir.

(b) At all of the times above indicated, the lands herein involved were mostly wooded, so that the damage from the flooding was relatively slight.

Construction of the Dam a/nd Reservoir

5. (a) The Wappapello Dam and Keservoir project was constructed by the then Department of War pursuant to various Congressional flood control measures. (33 TJ.S.C. § 702, et seq.) The primary purpose of the Wappapello Dam and Reservoir was to give flood control protection to all areas below the dam, extending some 200 to 250 miles downstream where the St. Francis River flows into the Mississippi River. The area to be protected includes plaintiffs’ lands which are located on the St. Francis River from about 22 to 79 miles south of the dam.

(b) The spillway crest (top of the dam) is 394.74; feet MSL (Mean Sea Level), with a maximum storage capacity in the reservoir of 625,000 acre-feet. With full reservoir the outflow is 18,000 cfs. A pool elevation in the reservoir of 385 feet MSL represents an impoundment of 415,700 acre-feet. There are three tunnels about a mile long through the base of the dam, in each of which is an electrically operated gate to control the outflow of water. The reservoir is cone-shaped, with an increasingly greater area for accommodation of water as it rises. In normal operation, there is a minimum water level in the reservoir of 355 feet MSL with 38,600 acre-feet in the reservoir, which is maintained by a conservation weir.

(c) In the acquisition of the property upon which the dam and reservoir are situated, the Government acquired land behind the reservoir up to an elevation of 400 feet MSL. This land was then leased by the Government to private parties, with the leases providing that the land was subject to flooding if the elevation of the water in the reservoir reached 364 feet MSL.

(d) The original plan for the project provided for a flood-way below the dam with levees on each side of the St. Francis River to accommodate releases up to 10,000 cfs. The levees on the west bank were constructed soon after the completion of the reservoir, but because of failure to acquire rights-of-way, the planned levee for the east bank was never constructed.

(e) There are various gauges which reflect the elevation of the water in the reservoir and the elevation of the water downstream.

Operation of the Dam and Reservoir

6. (a) In June 1941, the dam and reservoir were put into operation under the control of the United States Army Corps of Engineers, with District Headquarters in Memphis, Tennessee, and Division Headquarters in Vicksburg, Mississippi.

(b) Notwithstanding the fact that the levee system originally planned had not been completed, the initial plan of operation, known generally throughout the area, called for a maximum release of water from the dam of 10,000-cfs in an “all season” plan, without deviation during any part of the year. In other words, under the plan, after the height of the conservation weir was reached, there was to be no restriction on the outflow until it reached 10,000 cfs, at which point the gates would be activated. Accordingly, until the maximum of 10,000 cfs was reached, the outflow was, for all practical purposes, controlled by inflow caused by rains. Since the capacity of the St. Francis Eiver to hold within its banks waters from all sources is 3,000 to 4,000 cfs (finding 3(b), supra), it is obvious that when the outflow from the dam exceeded this rate, flooding occurred.

(c) Clearing of the lands herein involved, which as previously indicated (finding 4(a), supra) had been mostly wooded, began in 1953, but most of the land was cleared in the period from 1963 to 1965.

(d) In 1963, the Corps of Engineers entered into an agreement with the Missouri Conservation Commission,'in the interest of recreation and sports activities, to maintain the reservoir water level from May 1 to December 15, at approximately 359 feet MSL, which was 4 feet above the weir elevation. There was, however, no other change in the plan of operation which might at any time affect the 10,000 cfs maximum outflow.

Floodmg After Construction of the Dam

7. (a) After the dam and reservoir were put into-operation, the amount of flooding was substantially reduced, although as indicated in the below chart, on several occasions between November 2,1941, and April 8,1964, there were discharges from the dam at a rate which caused flooding downstream.

Rate of discharge (in etibio feet Date: per second)
11/2/41 _ 7,640
4/11/42 _ 7,260
12/30/42 _ 9,270
5/25/43 _ 6,430
4/16/45 _21, 800
2/15/46 - 10,400
5/18/46 _10,400
6/3/46 _ 7,430
4/13/47_ 7,040
4/27/47 _ 9,960
1/3/48 _10,000
4/2/48 _ 6,800
2/4/49 _10,900
3/28/49 _ 9,140
10/23/49 _ 6,540
1/18/50 _10,500
2/15/50 _10, 000
4/5/50 _10,000
5/14/50 _10,200
2/23/51 _ 9,990
7/15/51 _ 6,390
11/26/51 _ 9,410
3/13/52 _ 8,490
4/15/52_ 7,170
6/11/54 _ 6,910
3/23/55 _ 9,700
4/6, 9, 10/57_10,100
5/23, 26, 27, 29, 30/57_10,000
6/1, 7, 8, 9/57_•_10,100
7/4/57 _10, 000
11/20/57 _ 7,240
12/21/57 _ 9,450
3/27/58 _10,060
5/7/58 _ 9,090
7/20/58 _ 7,880
11/19/58 _ 8,220
12/20/59 _ 7,190
3/8,9/61_ 8,280
5/13/61 _10,140
1/24/62 _ 8,700
3/23/62 _ 8,850
3/14, 16/64_10,100
4/8/64 _ 7,220

(b)The months of August through November are generally considered in the area to be “dry” months in which rainfall and consequent outflow from the dam are less than during the other months. It is clear from the above chart that between 1941 and 1964, flooding never occurred in the “dry” months of August and September, and that flooding occurred only once in October and four times in November.

Events of September 1965

8. (a) In September 1965, prior to September 11, the outflow from the dam did not exceed 330 cfs and the elevation of the St. Francis Biver was less than 4 feet.

(b) On September 11 and 12 unusual and unprecedented rains for September fell above and below the dam area in the wake of Hurricane Betsy which had struck the Gulf Coast on the 10th of the month and had moved northward. Additional heavy rains fell in the area on September 14,15 and 16. The outflow from the dam, however, during this period (11th to 16th) did not exceed 1,600 cfs and the elevation of the St. Francis Biver did not exceed 14.2 feet. Thereafter, the outflow from the dam dropped from a maximum of 936 cfs on the 17th to 620 cfs on the 21st and the elevation of the river did not at any time exceed 13.40 feet.

(c) On September 22, additional heavy rains fell above and below the dam area and on that day the outflow from the dam rose to 2,270 cfs. Local flow into the river (from drainage ditches, etc.) below the dam aggregated about 1,400 cfs. The elevation of the river did not, however, exceed 13.40 feet.

(d) On September 23, slight rain fell near the dam but heavy rains fell below the dam and on that day the outflow from the dam rose to 6,250 cfs. Local flow into the river below the dam rose to an aggregate of 3,800 cfs. Though the capacity of the St. Francis Biver is sufficient to hold within its banks only 3,000 to 4,000 cfs of water flow, the evidence does not establish to what extent plaintiffs’ lands were flooded on September 23 by the combination of local flow of 3,800 cfs and waters released from the dam several days earlier (roughly 600 cfs). In any event, any flooding caused thereby was transitory and temporary since by September 24, local inflow dropped to 1,200 cfs and by September 25, local inflow was zero.

(e) On September 24, the outflow from the dam rose to 7,000 cfs. Local flow into the river below the dam was 1,200 cfs. The elevation of the river reached 21.60 feet (flood stage). The United States Army Corps of Engineers, in response to complaints from plaintiffs that their crops were being flooded, ordered that the maximum outflow from the dam be reduced from an authorized 10,000 cfs to 7,000 cfs. The United States Army Corps of Engineers knew that the lands herein involved were planted in crops which would be flooded when the 3,000 to 4,000 cfs capacity of the St. Francis Fiver was exceeded.

(f) The record does not establish that there was a significant cumulative effect on the elevation of the river, and consequent flooding, by the occurrence on the same days, as above indicated, of the increased outflow from the dam and the flow into the river from sources below the dam. (See finding 3 (b), supra, in which it is noted that water from the dam takes from 2 to 7 days to reach a point in the river opposite the lands herein involved.) It is clear, moreover, that the flow into the river from local sources was not sustained over a lengthy period of time, as was the increased outflow from the dam.

(g) During the period from September 25 through the remainder of September, the outflow from the dam went from a high of approximately 7,000 cfs to a low of 4,250 cfs, all of which was, of course, in excess of the capacity of the St. Francis Fiver. The elevation of the river continued at flood stage, with readings of approximately 22 to 24 feet elevation.. There is no indication in the record of any rainfall either above or below the dam, nor is there any indication of any flow into the river from sources below the dam during this period.

(h) From September 1 through September 22, the elevation of the water in the reservoir was between 358.74 and 359.07 feet MSL. From September 23 through September 30, the elevation of the water in the reservoir went, from a high of 365.94 feet MSL on September 23 to a low of 361.25 feet MSL on September 30. The highest elevation of the water in the reservoir (365.94 feet MSL) was thus 28.80 feet below the spillway crest (394.74 feet MSL) and represented an im-poundment of 134,080 acre-feet. The peak inflow into the reservoir was 32,230 cfs on September 23. This was after a sudden and progressive increase over the preceding day or two, and was followed by an equally sudden and progressive decline over the succeeding day or two.

(i) During the month of September, the total precipitation in the area of the dam and reservoir was 10.38 inches, whereas the normal precipitation in such area for September was 3.24 inches. The evidence shows that because of dry conditions in early September, the 10.38 inches of rain produced only 2.10 inches of runoff into the reservoir, but that any additional rain would have resulted in about 70 percent runoff. The reservoir could have taken 7 inches more runoff before reaching the spillway crest (394.74 feet MSL), which would have required about 10 more inches of rain, a highly improbable and unlikely event.

The Notice Issue

9. (a) On September 23, 1965, the United States Corps of Engineers (although not specifically charged by law or regulation to do so) sent a bulletin to the local offices of the Weather Bureau of the United States Department of Commerce warning of the impending flood stages of the St. Francis River and suggesting that protective measures be taken. This warning was transmitted by the Weather Bureau to certain radio stations serving the general area, although apparently it was not sent to stations located in the immediate area which was flooded.

(b) Testimony and exhibits introduced at the trial-by both parties establish that the majority of the types and varieties of crops planted by plaintiffs, particularly soybeans, were not ready for harvest on the dates the damage to the crops occurred.

(c) The evidence does not establish that the damage to the crops could have been significantly mitigated by an earlier or more extensively broadcast notice of the impending flooding.

10. In April 1966, as a result of studies which, were conducted by the United States Army Corps of Engineers over the period of several months, a plan of operation was formulated providing for variable rates of maximum releases from the dam. Under this plan which was placed into effect in October 1967, the maximum outflow from the dam from August 1 through November 30 of each year is 3,000 cfs until the elevation of the water in the reservoir reaches 384.74 feet MSL (10 feet below the spillway crest). When the water in the reservoir rises above 384.74 feet MSL, the maximum outflow from the dam is increased to 7,000 cfs.

Trial Testimony

11. The testimony and exhibits at the trial are incorporated in the foregoing findings. The following additional testimony was given at the trial:

(a) Plaintiffs’ expert, a consulting drainage engineer, testified that if the outflow from the dam had been limited during September 1965 to 3,000 cfs, the elevation of the water in the reservoir would not have reached a level approaching 380 feet MSL, and that there would have been no flooding.

(b) Defendant’s expert, the chief of the Operation Division of the Memphis Engineer District of the United States Army Corps of Engineers, testified that had the outflow from the dam been limited to 3,000 cfs there would have been no flooding; that at the time in question he felt that there would be “considerable risk” in reducing the outflow to 3,000 cfs because he “didn’t know how much more it was going to rain.” He further testified that a computation could have been made without difficulty to determine how long it would be before the dam would reach its maximum capacity, assuming a cutback of outflow to 3,000 cfs and a continuation of the rise in water level of the reservoir; but that he did not know whether anyone made such a computation. He estimated, however, that if the outflow had been so reduced, and if the rain had continued, it would have been “a matter of days” before the danger point would have been reached where the water would have gone over the spillway.

(c) Defendant’s expert, the chief of the hydraulics branch, Engineering Division of the Memphis Engineer District of the United States Army Corps of Engineers, testified that if at the time in question the outflow from the dam had been reduced to 3,000 cfs, the water in the reservoir would have risen to 366 feet MSL, or 18.74 feet below the 384.74-foot level referred to in the April 1966 plan (finding 10, supra). He further testified that in retrospect the margin of safety was too wide and that “we were very conservative” and “probably way off base,” but that the United States Army Corps of Engineers did not at the time in question know how intense the rain would be and that he was apprehensive that if the outflow would be reduced to 3,000 cfs “we could get enough rain” to result in a rise of the water in the reservoir up to and over the spillway crest. He further testified that the rate at which water was released through the dam was determined by the flowage necessary to maintain the reservoir at 359 feet MSL, in accordance with agreements with the Missouri Conservation Commission, and “ha[d] nothing to do with flood control.”

(d) The evidence fails to establish why the United States Army Corps of Engineers did not utilize its accumulated knowledge and experience regarding the relationship between continued rainfall and the increase of pool elevation in the reservoir.

Ultimate Findings and Conclusions

12. (a) Considering defendant’s assertions (finding 3(d), supra), in light of the facts, it is concluded that:

(1) the damage to plaintiffs’ crops was not caused by natural flooding, but by the unnecessary release of excessive amounts of water from the dam;
(2) there was no assumption of risk by plaintiffs of the flooding that occurred;
(3) in operating the dam and reservoir, defendant did not give proper deference to the primary purpose of downstream flood control, but rather gave priority to maintaining the level of the reservoir to satisfy agreements with the Missouri Conservation Commission;
(4) the fact that plaintiffs would have suffered greater damage had there been no dam, does not bear on the issue of the causation of the damage to plaintiffs’ crops; and
( 5) although the maj ority of plaintiffs’ crops were not ready for harvest at the time the flooding occurred, the damage inflicted by the flooding prevented a subsequent harvest.

(b) Had the United States Army Corps of Engineers reduced the outflow of the dam at the time in question to 3,000 cfs, the water in the reservoir would not have arisen beyond 366 feet MSL (28.74 feet below the spillway crest) and there would have been no flooding of plaintiffs’ land and no damage to their crops.

(c) The failure of the United States Army Corps of Engineers to so reduce the outflow, constituted, under all the facts and circumstances, an unjustified omission to act that was the direct cause of plaintiffs’ loss.

■ (d) Although plaintiffs do not have a legal claim against the United States, they do have a valid equitable claim, and, accordingly, there is equitably due them from the United States the amounts set forth in H.E. 1624 of the 90th Congress, 1st Session, quoted in finding 1(a), supra.

[See Priv. L. No. 91-167, approved September 26, 1970, 84 Stat.] 
      
       Sections 3 and 10 of the Act of May 15, 1928, eh. 569, 45 Stat. 534, 536, 538.
     
      
       Section 421 of the Federal Tort Claims Act, eh. 753, 60 Stat. 842, 845.
     