Opinion of the Court 146 C. Cls. The plaintiffs, however, contend that from the time of the 1883 survey improvements of the drainage were made by the settlers and farmers in the area and there was distinct improvement in the drainage from the Lake Alice-Lake Irvine area as early as 1905 or 1906 and in the 1920's. On the other hand, the United States points out that the farmers constructed dikes, dams and earthplugs for the purpose of preventing particular areas from being flooded and that these structures acted as barriers to the flow of water and caused it to remain on lands from which it normally would have drained off. We do not find support for either contention. While it is beyond dispute that any structures which would interfere with the runoff from the Lake Alice area or which would take away from the area storage capacity on the lake would have an effect on the area, it appears beyond doubt that the crux of the problem was the sudden collection of water and the lack of efficient drainage to enable it to run off promptly. In some years the flooding was more limited than in others but this appears to be the result of climatic conditions rather than any structures built by the farmers or the Fish and Wildlife Service. Whatever improvements were made by the local residents did not remedy the condition for the floodings continued in the years 1906, 1908, 1915, 1919, during the early 1920s to 1925 and in 1933. Moreover, we think it is significant that the North Dakota State Water Conservation Commission in its Ninth and Tenth Biennial Reports, excerpts from which appear in our findings of fact, did not suggest that the floodings resulted from the activities of the Fish and Wildlife Service but on the contrary attributed the flood condition to the heavy rains and spring runoff into the vicinity of Mauvais Coulee which was not being relieved quickly enough due to poor drainage from Lake Irvine. Another factor was that during the 1930 drought period the stream bed of Mauvais Coulee between Lake Irvine and Devils Lake became partially filled with drift material which resulted in greatly reducing the capacity of the stream. The plaintiffs say that the Fish and Wildlife Service failed in its duty, through its easements, in clearing this streambed of the drift material and thus relieving the drain 691 Findings of Fact age problem. But the record does not show that the Fish and Wildlife Service knew or was informed by the plaintiffs of this condition. It was reported in the Ninth Biennial Report of the North Dakota State Water Commission for the period July 1, 1952, to June 30, 1954. It appears that the farmers affected by the floods contacted the Commission in respect to methods of correcting the flood condition. Steps were then taken to interest other government agencies in constructing flood protection work and watershed improvement facilities. The Fish and Wildlife Service participated with the Commission in the "blowing out" of a channel between Lake Alice and Lake Irvine in which both agencies shared in the costs. But this clearing of the channel did not relieve the situation. The Chain Lakes Water Conservation and Flood Control District, which was organized in the Spring of 1955 for the purpose of alleviating flooding of lands in the Lake Alice-Lake Irvine area, asked for a 40 foot channel from the outlet of Lake Irvine which, it was estimated, would provide only partial flood relief for this area. And, shortly thereafter, all structures built by the Fish and Wildlife Service were breached or removed but due to heavy spring runoff in 1956 the area was again flooded. We conclude that plaintiffs' lands were damaged by reason of adverse weather conditions, the topography of the area, and the inadequate outlet of Lake Irvine, but not as a result of the activities of the Fish and Wildlife Service in connection with the establishment and maintenance of the migratory refuges. We, accordingly, conclude that the plaintiffs are neither legally nor equitably entitled to recover. The plaintiffs' petition will, therefore, be dismissed. It is so ordered. LARAMORE, Judge; MADDEN, Judge; WHITAKER, Judge, and JONES, Chief Judge, concur. FINDINGS OF FACT The court, having considered the evidence, the report of Trial Commissioner Roald A. Hogenson, and the briefs of the parties, makes findings of fact as follows: Findings of Fact 146 C. Cls. 1. The petition in this case was filed on October 12, 1956, pursuant to the provisions of a special jurisdictional act, to recover alleged damages of approximately $835,000, representing losses allegedly sustained by the plaintiffs from the flooding of their lands in the vicinity of Lake Alice, North Dakota, as a result of certain activities of the Fish and Wildlife Service in the establishment and maintenance of migratory wildlife refuges. The special jurisdictional act, Private Law 713, 84th Cong., 2d Sess., 70 Stat. A95, entitled "An Act to confer jurisdiction upon the United States Court of Claims to hear, determine, and render judgment upon the claims of Roy Cowan and others arising by reason of the flooding of land in the vicinity of Lake Alice, North Dakota", approved June 27, 1956, provides as follows: 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 to hear, determine, and render judg ment upon the claims of Roy Cowan, Dorothy Gessner, Norris Larson, L. A. Anderson, Albert and Evelyn Moen, Allan Overland and Reuben Overland, Reuben Overland, C. N. Barrett, as agent of certain landowners, Joseph Hartl, Annie Elsperger, John F. Elsperger and Kathleen Elsperger, his wife, Robert M. Elsperger, Roman F. Elsperger, Bernard F. Lange, Roy A. Noltimier, Donald Noltimier and Agatha Noltimier, his wife, Henry Noltimier, Maude Wright Webster, Ewald Henke, Harry L. Overland and Bella Overland, John Magnuson, Roy G. Sylvester and Walter E. Sylvester, as to the liability of the United States, if any, either legal or equitable, for losses alleged to have been sustained by said persons arising by reason of the flooding of land in the vicinity of Lake Alice, North Dakota, as a result of the activities of the Fish and Wildlife Service in connection with the establishment and maintenance of a migratory wildlife refuge. SEC. 2. Notwithstanding any statute of limitations or lapse of time, suit upon such claims may be instituted by the claimants within 1 year after the enactment of this Act. Proceedings for the determination of such claims and review thereof, and payment of any judg ments thereon shall be had as in the case of claims over which said court has jurisdiction under section 1491 of title 28 of the United States Code. 691 Findings of Fact SEC. 3. Nothing contained in this Act shall be construed as an inference of liability on the part of the United States Government. 2. The 22 groups of plaintiffs named in the special jurisdictional act and listed in the petition filed in this case are the owners and farm operators or tenant farmers on a sharecropping basis of numerous tracts of land which are located for the most part near or adjacent to Lake Alice or to the east and south of Lake Irvine in North Dakota. The various ownerships and their exact location with respect to Lake Alice and Lake Irvine are shown in separate colors on a map placed in evidence. 3. Lake Alice, also known as Lac Aux Mortes, is located in T. 156 N., R. 66 W., Ramsey County, North Dakota, and has a surface area of about 3,000 acres. Lake Irvine lies generally to the west and southwest of the southern half of Lake Alice, and the distance between the two lakes at their nearest points varies from less than one-half mile to a mile at the most. Lake Irvine has a surface area of about 4,000 acres. In early July 1957, the depths of the water in Lake Alice varied generally from 2.2 to 2.7 feet, with the greatest depth being 3.7 feet. These water depths existed on Lake Alice when the water level was 1441.7 feet m. s. 1. at a time when the bottom of the outlet to the lake was at 1441.8 feet. At the same time, Lake Irvine had a depth of 3.3 feet, with two areas at the north and south ends as shallow as 2.7 feet, and Lake Irvine then had a water level at 1441.1 feet m. s. 1. with the bottom of its outlet then at 1441.3 feet. 4. Chain Lake, which actually consists of two separate and irregularly shaped lakes, sometimes called the Twin Lakes, lies to the east and southeast of Lake Alice in T. 156 N., Rs. 65 and 66 W. The westernmost boundary of north Chain Lake is about one-half to three-fourths of a mile directly east of Lake Alice. South Chain Lake is about 2 miles southeast of Lake Alice in T. 156 N., R. 65 W. North and south Chain Lake each has a surface area of approximately 1,200 acres and is quite shallow, having a maximum depth of 3.6 feet in early July 1957. North Chain Lake then had a water level of 1442.5 feet m. s. 1., and south Chain Lake was at 1443.2 feet. Findings of Fact 146 C. Cls. 5. Mauvais Coulee enters the north end of Lake Alice at a point in Sec. 2, T. 156 N., R. 66 W., which is shown on defendant's exhibit 5. The coulee has numerous tributaries which flow into it at various points north of Lake Alice and carries the drainage from an area of approximately 700 square miles of land located to the north and northwest of Lake Alice. The main course of Mauvais Coulee begins about 28 airline miles north of Lake Alice at or near the north boundary of Sec. 19, T. 161 N., R. 66 W., and meanders in a southerly direction through Brumba Lake and Snyder Lake and then into Lake Alice. Some of its tributaries commence several miles farther from Lake Alice to the northwest. The course of drainage continues from Lake Alice into Lake Irvine through a shallow channel about half a mile long, located in Sec. 21, T. 156 N., R. 66 W., on the southwestern boundary of Lake Alice. The drainage then flows south out of Lake Irvine through a narrow outlet at the southern boundary of the lake in Sec. 32, T. 156 N., R. 66 W., and then through a dug ditch about a mile long in Sec. 5, T. 155 N., R. 66 W., and on down Mauvais Coulee to a point in Sec. 2, T. 155 N., R. 67 W., where the outlet channel from Silver Lake joins Mauvais Coulee, at which point the defendant constructed the Silver Lake dam and spillway hereinafter mentioned in these findings. Thereafter, Mauvais Coulee enters Pelican Lake in T. 154 N., R. 66 W., and then empties into Devils Lake in T. 153 N., R. 66 W. A map placed in evidence by defendant graphically illustrates the relative geographical location of the various points and areas mentioned above and in the two preceding findings of fact, being based upon the General Highway Transportation Maps of the North Dakota Department of State Highways, covering Benson, Ramsey and Towner Counties, North Dakota. The red lines and arrows on the map show the general location and direction of the tributaries which flow into Mauvais Coulee from the 700-square-mile drainage area north and northwest of Lake Alice. The lines and arrows in brown and green relate to the Chain Lake and the Dry-Sweetwater Lakes drainage area (hereinafter mentioned), excess waters from which ultimately enter Lake Irvine and then Mauvais Coulee, and finally Devils Lake. In addition, this map shows |