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CRAVENS v. UNITED STATES

June 23, 1958

BYRON CRAVENS AND THELMA CRAVENS, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT. OWEN A. TOMLINSON AND LOUISE TOMLINSON, PLAINTIFFS, V. UNITED STATES OF AMERICA, DEFENDANT. LEON SHIGLEY AND SYBLE SHIGLEY, PLAINTIFFS, V. UNITED STATES OF AMERICA, DEFENDANT. COUNTY OF LOGAN, STATE OF ARKANSAS, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: John E. Miller, District Judge.

  Statement

These three actions involve similar fact situations and were consolidated for trial. In each case plaintiffs contend that they are property owners, and that in the spring of 1957 all access to their property was cut off for a period of approximately one month by the waters of Blue Mountain Lake, a lake created by the Government's construction of Blue Mountain Dam on Petit Jean River near the boundary line between Logan County and Yell County, Arkansas. Plaintiffs contend that in the future their only access road, a county road, will be subject to permanent intermittent overflows which will again cut off plaintiffs' access to their property.

In each of the cases the defendant, United States of America, pleads the statute of limitations. In Civil Action No. 1358 the defendant also relies upon the defense of res judicata, and in Civil Actions Nos. 1359 and 1360 said defendant contends that the plaintiffs are not the proper parties to bring the actions.

In each of the cases the Government has filed third-party complaints against Logan County, Arkansas, alleging that in the event plaintiffs recover against defendant, defendant in turn is entitled to recover against the county under an indemnity agreement.

Upon these issues the cases were tried to the court without a jury on June 3, 1958, and at the conclusion of the trial the Court took the cases under advisement. The Court has had an opportunity to give thorough consideration to the pleadings, evidence introduced at the trial, and briefs of the parties, and now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.

Findings of Fact

   Findings of Fact Relating to Plaintiffs' Claims against the
                            Defendant

1.

Each of the plaintiffs is a citizen and resident of the Fort Smith Division of the Western District of Arkansas. The defendant is the United States of America, and the third-party defendant is the County of Logan, State of Arkansas. This is an action by the plaintiffs against the Government under the Tucker Act, 28 U.S.C.A. § 1402 et seq.

2.

On February 9, 1939, the plaintiff, Byron Cravens, purchased 158 acres of land in Logan County, Arkansas, the title being taken in his name only. On January 11, 1951, the plaintiffs, Byron Cravens and Thelma Cravens, purchased an additional seven acres adjacent to the original 158 acres, and title was taken in their names as tenants by the entirety. The land was and is intersected by a county road known as the Bethel Church Road.

On November 30, 1954, the plaintiffs, Owen A. Tomlinson, and Louise Tomlinson, as tenants by the entirety, purchased 160 acres a short distance east of the Cravens property, said land being intersected by the Bethel Church Road.

On July 28, 1956, plaintiffs, Leon Shigley and Syble Shigley, entered into a contract to purchase 60 acres of land southeast of the Tomlinson property. A deed was made by the property owners to Charles I. Evans as security for the purchase price which was furnished by Evans. As soon as Evans is repaid the purchase price, he is obligated to convey the property to the Shigleys, and in the meantime they are to have the beneficial ownership and possession of the property. The Shigley property is not directly adjacent to the Bethel Church Road, but the property is reached by a private road leading from the Bethel Church Road.

3.

The Bethel Church Road, above referred to, is a county road and is the only road furnishing ingress and egress to the Cravens, Tomlinson, and Shigley properties. Bethel Church Road runs in a generally east-west direction, and shortly west of the Cravens property there is a low point in the road and two culverts less than 100 yards apart. The elevation at this point is 418.2 feet. Prior to the spring of 1957 the road at this point had never been inundated by the waters of Blue Mountain Lake. On occasions in time of heavy rain the road would be covered by water for short periods of time, ordinarily not exceeding one hour, but this was not water from the lake.

East of the Cravens, Tomlinson, and Shigley properties the Bethel Church Road crosses Crow Creek, and at that point the road has an elevation of 405 feet. The Bethel Church Road at Crow Creek has been inundated by the waters of Blue Mountain Lake on various occasions.

4.

Blue Mountain Dam was completed in 1947, and was so constructed that the spillway is 419 feet above mean sea level. The first time the water was permitted to run over the spillway was in the spring of 1957. The water began running over the spillway on May 23, 1957, and on that day the river stage was 419.65 feet. The water remained at an elevation in excess of 419 feet until June 18, 1957, when the elevation was 418.90 feet. The high point was reached on May 26 when the elevation was 422.54 feet. On June 19 the elevation was 418.50 feet; June 20, 418.05 feet; June 21, 417.60 feet; June 22, 417.18 feet.

As heretofore stated, the elevation at the low point west of the Cravens property is 418.2 feet, and the elevation at Crow Creek, east of the three properties, is 405 feet. Thus, from May 23, 1957, until June 19, 1957, both Crow Creek and the low point west of the properties were inundated by the waters of the lake. During that time it was impossible for vehicles to travel on the Bethel Church Road across Crow Creek or across the low point west of the properties. In fact, the water reached a depth of approximately 4 1/2 feet at the low point west of the Cravens property and was at an even greater depth at the Crow Creek crossing. At the point west of the Cravens property the water covered the road for a distance of approximately 150 yards. During most of the time the road was inundated at the two points above mentioned, the only way plaintiffs could reach their property from the outside or reach the outside from their property was to use a boat; wade acoss the water; walk or ride a horse across property to the north to reach the Hog Thief Valley Road (which runs in an east-west direction about three-quarters of a mile north of the Bethel Church Road); or ride a tractor across a field owned by other people to the north. During the last week of the flooding some of the plaintiffs were able to reach the Hog Thief Valley Road by means of an old logging road over private property.

Of course, the flooding of the road caused great inconvenience to the plaintiffs. For example, the plaintiff Cravens was in the farming, livestock and trucking business and operated three trucks. During the flooding one of his trucks was trapped at his home and the other two trucks were trapped outside the flooded area. At the same time, his son was home on a Navy leave, and his son's car was trapped inside the flooded area. When the leave was up, the son was forced to leave the car at his father's home. The plaintiff Shigley's automobile was trapped outside the flooded area, and he was forced to leave it parked on the Hog Thief Valley Road and walk back and forth to the automobile from his home, a distance of approximately a mile and a half. Some of the plaintiffs had cattle, and it was very difficult to obtain feed for them. The ordinary mail service was discontinued. Luckily, school had just let out for the summer, and the flooding did not disrupt the schooling of plaintiffs' children. In addition to the above, there were many other inconveniences suffered by plaintiffs as a result of the flooding of the access road.

Not only was the Bethel Church Road inundated at the low point west of the Cravens property, but also approximately 1 1/2 acres of the Cravens land was inundated.

5.

The Corps of Engineers has records from 1916 to date with reference to elevations of the river. The elevation of 419 feet has been reached in four years — 1927, 1935, 1945, and 1957. In the future it reasonably can be expected that the water elevation will exceed 419 feet approximately once each ten years.

6.

The Cravens property, containing 165 acres, has about 120 acres of grassland and 45 acres of timberland. It has a nice modern home, large cement-block garage, two barns, and a well house, and is generally in good condition. The fair market value of the property, prior to the flooding of the access road, was $18,000. Subsequent to June 1957 the value of the property, subject to the easement created by the subjection of the property to the results of the permanent intermittent overflows of the access road in the future, was $15,500. Thus the Cravenses were damaged in the sum of $2,500.

7.

The Tomlinson property, containing 160 acres, has about 80 acres of grassland and 80 acres of timberland. The Tomlinsons purchased the property when it was in a rundown condition, and have done a considerable amount of work in improving the property. Additional rooms were built on the house and a large broiler house was constructed. The fair market value of the property, prior to the flooding of the access road, was $11,000. Subsequent to June 1957 the value of the property, subject to the easement created by the subjection of the property to the results of the permanent intermittent overflows of the access road in the future, was $9,400. Thus the Tomlinsons were damaged in the sum of $1,600.

8.

The Shigley property contains 60 acres and a farm house that is not modernized. The fair market value of the property prior to the flooding of the access road was $3,000. Subsequent to June 1957 the value of the property, subject to the easement created by the subjection of the property to the results of the permanent intermittent overflows of the access road in the future, was $2,400. Thus the Shigleys were damaged in the sum of $600.

9.

The United States had obtained a flowage easement from Logan County, Arkansas, covering the county roads within the boundary of the dam and reservoir area. This easement was recorded in the Northern District of Logan County, Arkansas. All the plaintiffs reside in the Southern District of Logan County, Arkansas, and the easement was not filed or recorded in that district. The plaintiffs, at the time they acquired their properties, had no notice of the Government's flowage easement.

Prior to the spring of 1957 the plaintiffs did not know and had no reason to believe that the waters of Blue Mountain Lake would inundate the Bethel Church Road at the low point or branch west of the Cravens property.

10.

The plaintiff, Byron Cravens, had previously filed a case in this Court, Civil No. 1136, seeking to recover damages for the impairment of his access roads. At the time of the prior suit the Bethel Church Road at Crow Creek had been inundated by the waters of the lake, but the road at the low point west of the Cravens property was not inundated by the lake waters. Certain other roads in the area were also inundated by the lake waters, and Cravens was required to travel on the Hog Thief Valley Road, which was and is a relatively inferior road. The Court held that the Government was not liable because of the inconvenience caused by the inundation of the shortest and best route from Cravens' property to surrounding towns, and that the access to Cravens' land was not ...


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