United States v. Kansas City Life Ins. Co., supra.
So, when the federal government improves navigable streams by means of locks and dams in the interest of navigation and thereby raises the ordinary high-water mark of the navigable stream or the normal pool level beyond the pre-dam ordinary high-water mark, and private property is damaged in whole or in part, said taking on the part of the government is in subordination to the Fifth Amendment and subject to the responsibility of the government for damages that are sustained as a proximate result thereof. See United States v. Virginia Electric & Power Co., supra; United States v. Cress, 243 U.S. 316, 37 S. Ct. 380, 61 L. Ed. 746 (1917).
In short, the United States is liable for the destruction of the property owner's rights where the destruction is caused by raising the ordinary high-water mark of the navigable stream or the normal pool level beyond the pre-dam ordinary high-water mark, even though the ordinary high-water mark or normal pool level was raised in the interest of navigation or in pursuance of improving a navigable stream. United States v. Kansas City Life Ins. Co., supra. Furthermore, if the navigational servitude is exercised above the ordinary high-water mark, beyond the bed of the river, it is irrelevant that damage might have been caused by the underflowing of the land through percolation of the river waters rather than by flooding. See United States v. Kansas City Life Ins. Co., supra.
On the basis of the above legal principles, it is the considered judgment of the Court, after full and complete hearing and meticulous review of the record and evaluation of applicable law that (1) the construction of Lock and Dam No. 6 did raise the ordinary high-water mark to and above the elevation of portions of the sewage system and the normal pool level above the pre-dam ordinary high-water mark, (2) the value of plaintiff's sewage system is not attributable solely to the flow of the Allegheny River and to its riparian location but instead, the sewage system has value independent of the flow of the stream and the riparian location, value which has been damaged by the acts of defendant to an extent to be determined at the trial of the damages issue and therefore (3) the Borough of Ford City is entitled to recover against the United States.
FINDINGS OF FACT
1. Plaintiff, Borough of Ford City, (hereinafter referred to as Borough) is a municipal corporation located in Armstrong County in the Commonwealth of Pennsylvania. It received its charter in 1898 and has operated as a borough form of government continuously since that time. It is situated on the left or easterly bank of the Allegheny River, one of the navigable waterways of the United States.
2. Borough brings this action pursuant to the Act of Congress approved June 29, 1960, Public Law 86-538, 74 Stat. 252, which confers jurisdiction upon this Court, notwithstanding laches or any statute of limitations, to '* * * hear, determine, and render judgment on the claim of the borough of Ford City, Pennsylvania, for damage to its sewer system allegedly due to the construction by the Department of the Army of a lock and dam designated as lock and dam numbered 6, on the Allegheny River.'
3. The principal townsite has an approximate elevation of 782 feet.
4. Borough constructed its sewage collection system in 1898 in accordance with good engineering practice and in reliance on the natural level, temporary high waters, width and flow of the Allegheny River in its natural open river condition existing prior to the effect of Lock and Dam No. 6 on the river's elevation and high-water mark. Another section was added to this system in 1922. Borough has continuously owned and operated this sewer system for its residents. The system works by gravity The system works by gravity flow with three outfalls into the Allegheny River. Sometime prior to October, 1928, the three outfalls discharged raw sewage directly into the Allegheny River at the following locations and elevations:
ELEVATION AT RIVER
Invert n2 Crown n3
First Street 765.61 770.28
Eighth Street 764.04 768.54
Power House Alley 768.01 771.34
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