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Reid v. United States

*fn*: August 16, 1983.

BEN REID, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, THE STATE OF INDIANA, AND FLOYD COUNTY COMMISSIONERS, DEFENDANTS-APPELLEES; BRUCE K. LORCH, PLAINTIFF-APPELLANT, V. UNITED STATES OF AMERICA, STATE OF INDIANA, AND JEFFERSON COUNTY COMMISSIONERS, DEFENDANTS-APPELLEES; MAURICE C. AND MARY F. SMITH, PLAINTIFFS-APPELLANTS, V. UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES; DOROTHY WINKLER, PLAINTIFF-APPELLANT, V. UNITED STATES OF AMERICA, ET AL., DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. NA 80-120-C -- James E. Noland, Judge. Appeal from the United States District Court for the Southern District of Indiana, New Albany Division. No. 80-C-119 -- S. Hugh Dillin, Judge Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 80-C-214 -- Gene E. Brooks, Judge Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 80-C-147 -- Gene E. Brooks, Judge.

Cummings, Chief Judge, Pell and Coffey, Circuit Judges.

Author: Cummings

CUMMINGS, Chief Judge.

These four consolidated cases present a unified attack alleging that the United States and others are trespassing on land owned by the appellants along the banks of the Ohio River. The alleged trespass has occurred due to the construction and operation by the United States of high-lift navigation dams along the Ohio River. The appellants brought their initial petitions for injunctive relief in Indiana state courts, requesting an injunction directing the United States to lower the river level. The cases were all removed to federal district court, which dismissed the complaints. Because we hold that these actions are barred by sovereign immunity, that the cases were improperly filed in state court, and that appellants' sole remedy is an action in federal court under the Tucker Act, 28 U.S.C. §§ 1346 and 1491, we affirm the orders of the district courts.

I. FACTS

Five sets of actions are of particular concern to this appeal. The first set is composed of appellants Reid and Lorch, whose claims to ownership of the properties in question are not disputed by the appellees. The second set is composed of appellants Smith and Winkler, whose claims of ownership are challenged by the appellees. The appellees may also be divided into two sets, the first of which is composed solely of the United States. The second set of appellees consists of the State of Indiana, the Commissioners of Floyd and Jefferson counties, the Spencer County Park and Recreation Board, the Indiana-Michigan Electric Co., and Shelly & Sands, Inc. (This set of appellees will hereinafter be referred to as the "non-federal appellees.") And the final group of importance to this case consists of 17 high-lift navigation dams on the Ohio River, the construction of which was the apparent genesis of this litigation. Several of these groups will be discussed more fully below, beginning with the last.

The function of the high-lift dams is described in detail in Loesch v. United States, 227 Ct. Cl. 34, 645 F.2d 905, 912-13 (1981), certiorari denied, 454 U.S. 1099, 70 L. Ed. 2d 640, 102 S. Ct. 672 (1981). Briefly, the dams replaced 49 low-lift navigation dams along the river. The high-lift dams were constructed to improve navigation by reducing the number of locks a ship or barge needed to pass through on its way up or down the river. The court in Loesch found that these high-lift dams were not flood control dams, and while they could maintain a certain minimum flowage during periods of natural low flow, the high-lift dams did not affect the river level during periods of high flow and could not

cause floods, or increase the number of floods, or affect flood peaks and time intervals, or increase the effect of flood events.

Id. at 913.

Appellants Reid (No. 81-1112) and Lorch (No. 81-2613) both claim title to land along the Ohio River. Both claim that the United States, through the Army Corps of Engineers, is trespassing upon their land and causing erosion thereof by maintaining the Ohio River at an artificially high water level. The relief requested is an injunction requiring the United States to lower the river level to the depth specified in a 1911-1914 survey of the river.

Both appellants also state claims against certain of the non-federal appellees. Appellant Reid claims that Indiana and the Floyd County Commissioners have breached their duty to protect the appellant's property from trespass by the United States. Appellant Lorch makes the same claim against Indiana and the Jefferson County Commissioners.

Appellants Smith (No. 81-2850) and Winkler (No. 81-2852) also allege that the United States is committing trespass and waste on their property. Appellant Winkler also alleges trespass on the part of the State of Indiana, Spencer County Recreation Board, and the Indiana-Michigan Electric Co., and Shelly & Sands, Inc.*fn1 Unlike the situation with respect to appellants Reid and Lorch, however, the appellees here claim that appellants Smith and Winkler do not own the properties in question. Appellants in fact concede as much. The record indicates that Tracts No. 605 and 605-E-1 were acquired by the United States from the Smiths by a judgment of condemnation entered October 2, 1967. Similarly, Tract No. 1108 was acquired by the United States from appellant Winkler by purchase. A warranty deed was recorded on February 18, 1971. The appellants' response is that both of these transfers to the United States are void for failure to comply with Indiana state law.

A continuing theme pressed by all the appellants throughout this litigation concerns Indiana Code §§ 4-21-4-1 and 4-21-4-2. Section 4-21-4-1 confers Indiana's consent to the purchase by the United States of land on the bank of the Ohio and Wabash Rivers for purposes of navigation improvement. Section 4-21-4-2 confers jurisdiction on state courts to adjudge condemnation proceedings brought by the United States against owners of land riparian to the Ohio and Wabash, again for purposes of improving the rivers. This section also sets forth procedures to be followed in such condemnation proceedings. Appellants claim that these statutes are the exclusive means by which the United States may acquire land along the Ohio for river improvement. Appellants Smith and Winkler argue that the transfer of land from them to the United States was void for failure to comply with §§ 4-21-4-1 and 4-21-4-2 and that they are in fact the true owners of the disputed properties. All appellants claim that, because §§ 4-21-4-1 and 4-21-4-2 do not provide for inverse condemnation,*fn2 that remedy is not available to them and they are therefore entitled to an injunction prohibiting trespass by the United States.*fn3

The appellants each filed petitions in various Indiana state courts in 1980 requesting injunctions prohibiting trespass by the appellees.*fn4 The United States removed all the cases to the United States District Court for the Southern District of Indiana. Each of the non-federal ...


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