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From an examination of the laws of Kansas, referred to in my letter of August 1, 1939, it would appear that Mr. Armstrong can only claim damages from the Government for that erosion which was caused by the additional water drained through his land as a result of increasing the watershed by 39.6 acres, and not for any damage caused by the increased run-off resulting from the improved drainage of the land which naturally drained through his property.
It is our opinion that the water drained from the added 39.6 acres did not cause the damage claimed. The report of E. T. Harden, area soil conservationist for the Kansas area, states that an examination of the 39.6 acres in question revealed that approximately one-third of this area has been a pasture and has had a good grass covering since 1932. The remaining area, though cultivated, indicates very little soil loss since there was very little evidence of siltation in and above the diversion levee erected by the Bureau of Air Commerce in 1938. Siltation at these places would be noticeable had excessive run-off occurred. He attributes the minimum run-off to the fact that Mr. Pinney, the owner of the 39.6 acres in question, has apparently used a good system of crop rotation and that the soil is such that it tends to act as a blotter and consequently reduces run-off. He further stated that an examination of the landing field revealed an excellent cover of vegetation which would assist in controlling soil and water loss from that area.
Mr. Harden's examination of Mr. Armstrong's property showed that Mr. Armstrong, or his tenant, had not taken proper steps to prevent soil erosion. He blames the excessive erosion of Mr. Armstrong's land, first, to the natural terrain of the farm, and secondly, to the improper cultivation of the land; that is, tillage operations parallel to fences, section lines, and off contour have aggravated erosion conditions in the drainage ways. He further states that since this farm receives 80 much natural drainage, the natural drainage ditches should have been permanently grassed. In this connection, it will also be noted that Mr. Armstrong at one time made application to Mr. C. T. Hall, county agricultural agent for Olathe County, Kans., to have his farm used as a soil conservation service demonstration but later requested that he be dropped from their list of applicants. This action certainly indicates that Mr. Armstrong did nothing whatsoever to alleviate the damage he claims to have been done to his property.
The serial map shows that two gullies, an east and a west gully, meet on Mr. Armstrong's property forming a main branch. The conservation report shows that little active erosion occurred in the west gully which drained the added 39.6 acres, but it appears from both the reports of Mr. Hess and Mr. Harden that most of the active cutting occurred in the east gully and in the main branch. This east gully was not affected in any manner whatsoever by the addition of the 39.6 acres added to the watershed area drained through Mr. Armstrong's land. Mr. Hess indicates that though no information could be obtained as to the extent of the eroded gully before the landing field was conditioned, United States Highway No. 50 was constructed about the same time the field was constructed and that it was after the construction of the highway that the residents at the eastern end of the field, which is drained by the east gulley, referred to above, noticed an increased concentration of water draining across their property. This fact would seem to indicate that the damage has been as much or more the result of the concentration of the water by the construction of the highway as by the construction of the landing field. This is why the east gully referred to in Mr. Hess' report and Mr. Harden's report shows greater effect from erosion. Furthermore, Mr. Harden states that from an examination of the type of soil on Mr. Armstrong's property and the channel depth at the north side of the farm a great lapse of time must have occurred for the drainage ditch to have reached the present stage of erosion. According to his report, the channel is still broadening out, although the water drained from the 39.6 acres in question has been diverted back to its natural channel.
In summary, our information is that, (1) The water drained from the 39.6 acres in question did not cause the damage;
(2) The western branch of the gully which drains the area in question has not been greatly damaged;
(3) The eastern branch of the gully, although not affected by the increased watershed, has caused most of the erosion in the main branch;
(4) Neither Mr. Armstrong nor his tenant has cultivated the farm in accordance with approved practices, thus aiding the elements in the erosion of the land;
(5) The process of erosion has been occurring over a long period of time and not just within the 7 years during which the watershed area was increased;
(6) Mr. Armstrong failed to alleviate any damage that has been caused by refusing to accept the aid of the Soil Conservation Service; and
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(7) The damage was caused mostly by the concentration of water in ditches along roads and highways.
For these reasons, the Civil Aeronautics Authority is of the opinion that Mr. Armstrong has no valid claim against the United States Government for damages to his property.
If, however, it is decided by the Committee on Claims that Mr. Armstrong has a valid claim for damages, it is the opinion of the Authority that $3,000 is extremely excessive.
As I stated in my letter of August 1, 1939, Mr. Armstrong agreed in the spring of 1938 to waive all claim for damages previously done to the property if the Government would pay him $175 per year. For the 7-year period between 1931 and 1938 the aggregate compensation for the damage at $175 a year would amount to only $1,225. Even this amount we consider to be excessive.
Mr. Hess' report shows that the assessed value of the land is $40 per acre. The average value of the farm land in this community appears to be approximately $75 per acre. At the most, approximately 5 acres have been damaged, and if the United States Government were to condemn these entire 5 acres, Mr. Armstrong would receive, at most, $75 per acre for the land, or a total of $375. However, inasmuch as the 39.6 acres added to the watershed area is but approximately 1 percent of the total watershed area which drained through Mr. Armstrong's property during the 7-year period from 1931 to 1938, the damage would be but 7 percent of $375, or $26.25.
Enclosed is the complete file on the report we requested from the Kansas City Regional Office. It would be appreciated if the Claims Committee of the House of Representatives would return this report to us for our files upon completion of whatever action is taken regarding this matter. Sincerely yours,
ROBERT H. HINCKLEY, Chairman.
STATE OF KANSAS,
County of Johnson, 88: William Hedrick, being duly sworn on oath, deposes and says that he is 42 years of age, and that he has farmed the E. E. Armstrong land west of Gardner and directly north of the Government intermediate landing field for the 1937 and 1938 seasons; and is farming the land for the 1939 season.
Affiant states that he was born and raised on his father's farm which adjoins the Armstrong land on the southwest and is directly west of the Government intermediate landing field.
Affiant states that he has measured the ditches on the Armstrong land through which water drains from the airport and states that measuring in a direct line from a point where the west ditch enters the Armstrong property to a point where it leaves the Armstrong farm, and measuring the east ditch in a direct line from a point where it enters the Armstrong property to a point where it runs into the west ditch measures 280 rods, and that allowing for bends in the ditches, the two ditches measure 320 rods in length.
The land damaged by erosion along these ditches averages at least 70 feet wide and 320 rods in length, as mentioned above, would make in excess of 8 acres of land damaged and taken out of production and there is at least 2 acres taken out of production at corners and bends in the ditches, which makes a total in excess of 10 acres of land reduced to waste by reason of erosion.
Affiant states that at each heavy rain there is more erosion in the ditches and that land on either side of the ditches is being further depleted.
Affiant further states that a drain tile from the airport property empties water on to the Armstrong property into a small depression and when the airport becomes saturated with water, this tile will sometimes run water continually for a period of 2 weeks, and that last year there was a strip. of wheat 100 feet wide and 60 rods. long that could not be cut on account of the land being too wet. Further affiant sayeth not.
William HEDRICK. Subscribed and sworn to before me this 6th day of June 1939. (SEAL)
J. E. JOHNSON,
Notary Public. My commission expires May 1, 1943.
Srate OF KANSAS,
County of Johnson, 88: W. H. Fraser, of lawful age, being duly sworn on oath deposes and says that he has been a member of the township board of Gardner Township since 1916, and that he has been township trustee of said Gardner Township for the past 12 years, and that as such trustee it is his duty to assess the real estate in said township for tax purposes.
Affiant states that in his opinion the land belonging to E. E. Armstrong in sec. 22, T. 14, R. 22, which lies in Gardner Township and directly north of the Government emergency landing field is worth $75 per acre. Further affiant sayeth not.
W. H. FRASER. Subscribed and sworn to before me this 29th day of May 1939. (SEAL)
R. E. Starokarve Public.
. My commission expires May 1, 1941.
STATE OF KANSAS,
County of Johnson, ss: H. C. Bigelow, of lawful age, being duly sworn on oath, deposes and says that he has been associated with the Farmers Bank, Gardner, Kans., continuously since 1910, with the exception of about 9 months in 1919, when he served in the World War, and has been managing officer of said bank since 1914, and during this period affiant has sold many pieces of real estate in the vicinity of Gardner, Kans., and has made many loans on farm real estate for his institution, for private investors, and for eastern insurance companies.
Affiant states that he is very familiar with land values and knows all about the land sales in the vicinity of Gardner, Kans., and, in his opinion, the value of the E. E. Armstrong land in sec. 22, T. 14, R. 22, Johnson County, Kans., is $75 per
Affiant states that a landowner, owning 80 acres of land in said section 22, adjoining the Armstrong land on the east, was offered $70 per acre for his land last week, and refused the offer, and this land is very similar to the Armstrong
Affiant states that a few years ago he sold two tracts in section 27, which is directly across the road south of the Armstrong land, one adjoining the Government airport on the west, and the other adjoining the Government airport on the east, and one of these tracts sold for $125 per acre and the other $130 per acre. Neither of these farms could be bought today for $125 per acre and neither are overly improved. Further affiant sayeth not.
H. C. BIGELOW. Subscribed and sworn to before me this 27th day of May 1939. (SEAL)
R. K. Srockar Public.
Notary . My commission expires May 1, 1941.
STATE OF KANSAS,
County of Johnson, 88: H. C. Bigelow of lawful age being duly sworn on oath deposes and says that he has been cashier of the Farmers Bank, Gardner, Kans., for more than 25 years last past, and during these years has also been in the insurance and real-estate business.
Affiant states that he is well acquainted with land, and land values in the vicinity of Gardner, Kans., and has acted many times as appraiser of farm lands in connection with estates and also in condemnation proceedings put through the district court.
Affiant states that he knows the soil and topography of the E. E. Armstrong land being SWY4 sec. 22, T. 14, R. 22, and WYSEYA sec. 22, T. 14, R. 22, Johnson County, Kans., hereinafter referred to as the Armstrong land, and is also familiar
with the United States Government emergency landing field, being located on the north part of EYNWY4 and WYNE44 sec. 27, T. 14, R. 22, Johnson County, Kans., hereinafter referred to as the Government landing field-the Government landing field being directly across the highway south of the Armstrong land.
Affiant states that formerly the drainage from the south part of the Government landing field drained south, and that the landing field itself was a little flat and drainage from the west accumulated on the landing field and then drained off to the north through the Armstrong property. A few years ago the United States Government ran a ditch along the west side of their property, which diverted the water coming from the west, and also changed the drainage so that water from the south part of the landing field drained north through the Armstrong property, and due to these drainage ditches the water was speeded up and with such increased volume that it cut deep ditches through the Armstrong property-some deep enough to bury a modern sedan automobile, and also washed off considerable soil-in some places the width of 100 feet and a depth varying from a few inches to 3 feet. Before the drainage ditches were made on the landing field there were no ditches on the Armstrong property that could not be crossed with a plow or grain binder, but now it has caused the farm to be divided into several tracts, as the ditches cannot be crossed.
Affiant states that he sold the farms on both the west side and on the east side of the Government landing field to the present owners, and has been selling farms in this vicinity for the past 25 years, and in his opinion the Armstrong property has been damaged by reason of the facts set out in this affidavit to the value of $25 per acre. Further affiant sayeth not.
H. C. BIGELOW. Subscribed and sworn to before me this 26th day of April 1939. (SEAL)
J. E. JOHNSON, Notary Public. My commission expires May 1, 1939.
STATE OF KANSAS,
County of Johnson, ss: James P. Williams, of lawful age, being first duly sworn on oath, states, that he is a resident of Gardner, Kans., and his present business is real estate and insurance, and that he has sold real estate in the vicinity of Gardner, Kans., for the past 25 years.
Affiant states that he is familiar with the land west of Gardner, owned by the United States Government and used as an emergency landing field, and is also familiar with the 160 acres of land belonging to E. E. Armstrong, which lies directly north of said emergency landing field, and states he has been familiar with this land for the past 25 years.
Affiant states that prior to the construction of the Government emergency landing field, there were no ditches on the Armstrong land but only a natural depression which carried off the drainage, and that all the land was under cultivation and could be farmed as one field and the drainage depressions could easily be crossed with any kind of a farm implement. Also prior to the construction of the emergency landing field, the land on which the field is now situated was level land and a little lower than surrounding land and the drainage from surrounding land flowed on to the landing field and drained off gradually to the north through the Armstrong land. A few years ago, the Government dug deep ditches along their land and also changed the drainage so that much of the water which formerly went south was diverted north and the water flowed across the Armstrong land with such speed and increased volume that it cut deep ditches across the Armstrong land; in some places being as deep as 6 feet and as wide as 20 feet, so makes it impossible to cross these ditches with farm implements and prevents the land from being farmed in one tract as formerly, which is a great inconvenience and damage to the farm. The increased volume of water also washed away the soil along the ditches in some places back as far as 100 feet, and varying in depth from a few inches to 342 feet. There are two ditches across the Armstrong property through which the water drains from the Government landing field, and by reason of these ditches the tenant on the Armstrong land has to go quite a distance out of his way to cross them, which is a big inconvenience and the farm has to be tended in several tracts because the ditches cannot be crossed with farm machinery.
Affiant states that in his opinion these ditches are permanent, and it would be impossible to restore this land to the same condition that it was before the landing field was constructed, and this would greatly effect the salability of the farm if it was put on the market; therefore, from the facts set out above, I consider that great damage has been done to the Armstrong land by reason of the ditches, erosion, inconvenience in farming, and general effect on the salability of the farm. In my opinion the value of the Armstrong 160 acres has been depreciated and damaged at least $25 per acre. Further affiant sayeth not.
James P. WILLIAMS. Subscribed and sworn to before me April 29, 1939. (SEAL]
H. C. BIGELOW,
Notary Public. My commission expires May 1, 1939.
STATE OF KANSAS,
Johnson County, 38: L. B. Harden, of lawful age, being first duly sworn on oath states: That his place of residence is Olathe, Johnson County, Kans.; that his occupation is county agricultural agent of Johnson County, Kans., and that he has been employed in that capacity by Johnson County for a little longer than 442 years. That in his business he travels over Johnson County, examining farms, advising crop rotation, soil, and water erosion problems. That during the time he has been employed by said county, he has traveled over most of the county and is familiar with the lay of the land and condition of the soil in Johnson County.
That he has examined the following-described land, situated in the county of Johnson and State of Kansas, to wit: W48E%, E SW74, sec. 22, T. 14, R. 22, which is owned by E. E. Armstrong of Gardner, Kans. That this land adjoins on the north land owned by the United States Government and used as an emergency landing field for airplanes. That he has personally examined the land owned by Mr. Armstrong and the land owned by the United States Government, which is used as a landing field. From his examination of said land, there has been a permanent damage to the land owned by Mr. Armstrong by reason of the water having been diverted from its natural drainage course by reason of the construction of this landing field, there having been diversion ditches constructed on emergency landing field to divert drainage to adjoining land. The landing field is located in sec. 27, T. 14, R. 22. This diversion ditch intercepts water from adjoining land on the west, thus giving it both increased volume and speed at the time it enters the land owned by Mr. Armstrong and this diversion ditch not only intercepts water from the natural direction of drainage but also intercepts and diverts water which normally drained in a southeasterly direction.
From my examination of the land owned by Mr. Armstrong above described, I find that by reason of the water having been diverted from its natural course, which in turn increased the volume and speed, has caused serious erosion on Mr. Armstrong's land. During the period since the diversion ditch was constructed, the water has cut two ditches through the land owned by Mr. Armstrong. These ditches range in depth from 2 to 6 feet and from 10 to approximately 20 feet in width This has made it necessary to divide the farm land into several fields due to the inability of crossing with farm machinery.
In addition to the diversion ditch on the west side, there was also constructed a diversion ditch on the south and east sides of the landing field which deposited water with increased speed and volume on land owned by W. B. Timberlake, where it flowed diagonally across, entering Mr. Armstrong's land on the east and flowing in a northwesterly direction, joining with the water coming from the southwest diversion ditch. As a result of the diversion of this water, permanent damage has been caused Mr. Armstrong's land, which in my opinion can never be restored. As a result also, the valuation of this land was decreased and the land of Mr. Armstrong, in my opinion, has been injured permanently.
Even though, during the fall of 1938, the diversion ditching system was corrected to a certain extent on the landing field, which will in the future return some of the drainage to its natural course, there will be in my opinion certain future damages due to the fact that the water is diverted from its natural course and enters Mr.