Loy Ree B. Marlowe Ballam v. United States of America, and State of South Carolina

Citations: 747 F.2d 915; 1985 A.M.C. 2110; 1984 U.S. App. LEXIS 17441Docket: 83-1120

Court: Court of Appeals for the Fourth Circuit; October 23, 1984; Federal Appellate Court

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Loy Ree B. Marlowe Ballam filed a lawsuit against the United States in the District Court for the District of South Carolina, claiming $8,804 in damages for erosion of her property caused by the Atlantic Intracoastal Waterway (AIWW). The district court had jurisdiction due to the claim being under $10,000. The United States contended that the lawsuit should be dismissed on two grounds: first, a release signed by Ballam's father, the previous property owner, barred the suit; second, the erosion was not compensable because the property was subject to the government's dominant navigational servitude, which negated the possibility of a governmental taking.

The AIWW was authorized for improvement in 1931, with the State of South Carolina required to provide rights of way for its construction. Ballam's father conveyed a perpetual easement to South Carolina for the AIWW, explicitly stating that it was for construction purposes and recognizing that the waterway would be maintained as navigable waters. This conveyance included a release of all claims for damages related to the construction and maintenance of the AIWW.

Subsequently, South Carolina transferred the easement to the United States, which constructed the waterway, initially measuring 8 feet deep and 75 feet wide, later expanded to 12 feet deep and 90 feet wide. As a result of this expansion, 53 feet of the easement remained above water, with erosion caused by passing vessels affecting both the easement and Ballam’s adjacent property, encroaching upon 2,000 square feet of her land. The case raises significant legal issues regarding easements, government servitudes, and property damage claims.

The grantor waives and releases the grantee and its affiliates from any claims for damages related to the construction and maintenance of a waterway, with this waiver intended as a binding, continuing covenant on the grantor and their heirs or successors. The government argues this release prevents the current lawsuit; however, the district court determined it applies only to the easement, not the grantor's retained land. Citing Hilton v. Duke Power Co., the court emphasized that the intent behind the release is a factual issue influenced by surrounding circumstances and the language of the release.

The district court concluded that the parties likely intended the release to cover only issues arising from activities on the easement, not erosion, which is considered destructive rather than a part of construction or maintenance. Furthermore, while naturally occurring bodies of water in Horry County would be classified as navigable and not compensable by the U.S. under the navigational servitude, the United States does hold jurisdiction over man-made navigable waters. However, mere navigability does not automatically grant the government a right to public access, as established in Kaiser Aetna and Vaughn v. Vermilion Corp.

In this case, public access was anticipated from the outset, as evidenced by the grantor's prior knowledge of public use intentions when the easement was conveyed. The waterway was to be funded by the U.S., and the grantor's predecessor either received compensation for the easement or accepted it due to the perceived benefits, acknowledging that the waterway would be part of the navigable waters of the United States.

Ballam's predecessor and others understood that the easements granted were intended to create conditions identical to those existing in adjacent properties affected by naturally occurring segments of the Atlantic Intracoastal Waterway (AIWW). The parties involved anticipated that the situation would remain unchanged following the construction of the AIWW, treating it as if it were a naturally formed waterway. Consequently, the AIWW in Horry County is regarded as a natural, publicly navigable waterway subject to the U.S. government's dominant navigational servitude.

The Fifth Amendment mandates compensation from the government for property taken, but the government is not liable for damages that would have occurred irrespective of the waterway's construction. Relevant case law, including Sanguinetti v. United States and Loesch v. United States, underscores that the government is not liable for flooding or erosion that neither increased frequency nor severity compared to natural conditions. 

In this case, although the waterway was constructed by the government, Ballam is precluded from claiming it is artificial, as no changes were made beyond those initially planned. The waterway is treated as a natural river, and the government cannot be held liable for erosion damages unless it can be shown that these were directly caused by government actions. Since the erosion was attributed to wave wash from vessels rather than government intervention, the district court should have ruled in favor of the United States.

The judgment was reversed and remanded for entry in favor of the United States. A dissenting opinion questions the assumption that the original easement created conditions equivalent to those of a natural waterway. The dissent argues that the deed limited the easement's scope to a specified area, which authorized the construction of a canal connecting two natural waterways, thus challenging the majority's interpretation.

The easement conveyed to the State of South Carolina grants a perpetual right to enter, excavate, and maintain a specified tract of land (numbered 37-A) for the construction and upkeep of an inland waterway. The easement also allows for the use of the remaining land on that tract for depositing dredged material and other necessary purposes, while reserving certain rights for the grantor and their successors. The text emphasizes that the easement does not extend beyond the described boundaries, highlighting that if broader land rights were intended, they should have been explicitly stated in the deed. The author critiques the majority's interpretation of the easement, suggesting it overreaches the document's intent, particularly regarding the government's maintenance responsibilities. The author argues that a government taking requires just compensation, and expanding the easement without additional compensation is impermissible. Comparisons are drawn to situations involving highways causing land destruction, asserting that the government should not escape liability for damage caused by the waterway's construction. The majority's argument attributing erosion to "wave wash" rather than government actions is challenged, as it overlooks the government’s role in situating the waterway across the land. Ultimately, the author supports upholding the district court's decision due to the lack of provision for land use beyond the easement's explicit boundaries and the resultant damages incurred by the grantor.

The deed from Ballam's predecessor specifies that the waterway's construction must adhere to the project report in H.R.Doc. No. 41, 71st Cong. 1st Sess. 1929, as adopted in the Act of July 3, 1930. This report outlined that the intracoastal waterway (AIWW) from Cape Fear River to Charleston should be 12 feet deep and 90 feet wide, initially excavated to 10 feet and 75 feet, respectively. The plaintiff owns only part of the lands adjacent to the easement granted by her predecessor. While parts of the AIWW include natural bodies of water, the section affecting the plaintiff's land is entirely man-made. Before the AIWW's construction, the plaintiff’s land was landlocked, situated 25 to 50 feet above sea level.

Historically, navigable waters were defined by their tidal influence, a standard superseded by the navigable-in-fact test established by the Supreme Court in 1871. The AIWW meets both criteria of being navigable and subject to tidal flow. The navigational servitude allows the U.S. to make improvements to navigable waters without compensating private property owners for resulting damages, provided these improvements do not raise the stream's level. This principle applies to any damage from government actions aiding navigation, such as dredging.

The text clarifies that prior to the easement's execution and the government's construction, there was no inland waterway on Mrs. Ballam's land. The assumption that the easement grants the U.S. a navigational servitude equivalent to that existing on natural waterways is challenged. The law and the terms of the easement do not support such a conclusion, nor was that the intention of the parties involved.