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has been so badly cut up with ditches they cannot even be crossed ahorseback and are getting worse each year. There was also about 40 acres or more of land that drained in the opposite direction and the natural watershed was changed and now drains across my land.

“This is not a temporary damage but is permanent and will continue to damage me more each year and I feel that something should be done about it.

"Now it will be a great favor to me if you will take this up with the proper Department and ask that an investigation be made by Government engineers or whoever the proper parties might be, and I am willing to leave to anyone whether I have not been damaged in this matter. "Thanking you in advance for what you can do for me in this matter, “Yours very truly,

“E. E. ARMSTRONG."

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This complaint was referred to the Bureau of Air Commerce. On July 29, 1936, L. C. Elliott, district manager of that Bureau, wrote the Assistant Director of Air Commerce stating that the civil engineer of his office had recently investigated the damages reported by Mr. Armstrong and by another neighbor.

The portions of Mr. Elliott's report dealing with Mr. Armstrong's claim are as follows:

"3. Mr. Armstrong has a justifiable complaint in that this office dug a diversion ditch along the entire west side of the field and changed the natural drainage course of surface water draining from approximately 45 acres. The water from this area west of the south portion of the field originally crossed the field and flowed to the southeast in a draw. It will be noted from the drainage sketch that this area is approximately 10 percent of the area affecting Mr. Armstrong's property. His statement that at some places the wash is so deep that it cannot be crossed on a horse is correct, but this condition exists only in about the first 700 feet south of his north property line. The damage of which he complains is not near the field, but between one-quarter and one-half mile north of the field, and after several other drains have entered into the ravine and caused erosion.

“4. In Mr. Armstrong's letter to the Honorable U. S. Guyer, it is stated that the run-off is much faster since the establishment of the field due to leveling the land, ditching and tile drains. This statement is correct, as the run-off is more rapid from a sod surface than from a cultivated area, but it is the opinion of this office that it is a right of a property owner to make any improvements desired, such as smoothing and draining, providing the natural course of drainage water is not changed. It is unfortunate for him that by reason of natural topography, water must flow over his property. The representative from this office did not see Mr. Armstrong, as the latter is in Colorado and will not return until about September 1. However, Mr. Alexander, an official with the State of Kansas Work Projects Administration, advised that Mr. Armstrong had indicated it would be satisfactory if the south portion of the diversion ditch on the west side of the field was filled.”

Presumably, acting on the basis of Mr. Elliott's report, the Bureau of Air Commerce subsequently made plans for installing the southeast

drain” which is shown on the above plat as leading from the ditch which follows the westerly side of the Government property over to the draw or ravine on the property of Hedrick. The work on this drain was completed sometime in the summer of last year (1938). The “southeast drain” is a 30-inch pipe laid underground. Upon its completion, the westerly ditch was blocked at the point shown on the above plat. As a result, all waters that drain into the portion of the west ditch lying south of the blocked-off point, flow through the 30-inch drain and then into the natural dsaw on the Hedrick property.

The right of a land owner in Kansas to drain waters from his lands is fixed by section 24-106 of the Kansas General Statutes. That section provides that a landowner may drain his lands "in the general course of natural drainage by constructing open or covered drains into any natural depression, draw, or ravine upon his own land, whereby the water will be carried by said depression, draw, or ravine into some natural water course or into any drain on a public highway, for the purpose of securing proper drainage to such land; and he shall not be liable in damages therefor to any person: Provided, That the owners of land constructing an outlet to a drain on a public road shall leave the road in as good condition as it was before the drain was constructed.”

If the ditches on the Gardner landing field had not diverted any waters from their natural course of drainage, Mr. Armstrong would have no cause for complaint. The Kansas statute expressly provides that no landowner shall be liable in damages for constructing drains either into a natural depression on his own lands or into a drain on a public highway. The ditches that were originally installed did discharge into à public highway drain and therefore come within the terms of the statute.

The statute, however, does not authorize the landowner to divert waters from their natural course. Mr. Armstrong's complaint and the report from Mr. Elliott, who was the district manager for the Bureau of Air Commerce, agree that about 45 acres of the lands formerly drained into the "draw" on the Hedrick property to the southeast of the landing field, and that the leveling of the field plus the construction of the westerly ditch had the result of diverting the waters from those 45 acres so that they flow to the north and drain through the Armstrong property.

That situation was corrected by the installation of the southeast drain in 1938, accompanied as it was by blocking off the southerly part of the ditch which runs along the west side of the landing field. That drain now carries the rainfall that would normally have flowed to the Hedrick draw and there is no reason to suppose that, at the present time, Mr. Armstrong's land is being obliged to carry any waters they would not have received in a state of nature.

Presumably, the installation of the ditches around the landing field may have increased the speed with which the surface waters are drained off. However, the Kansas statute quoted above seems to have been drawn with the knowledge that the installation of ditches would have this effect and expressly provides that a landowner shall not be liable in damages to any person for constructing ditches which remove waters in the general course of natural drainage.

Although the fault of which Mr. Armstrong complained by his letter of April 19, 1936, has now been corrected, there was a period of approximately 7 years (1931 to 1938) when our predecessor agency was wrongfully diverting the water from 45 acres of land from its natural course of drainage and causing it to flow down the Armstrong ravine. It will be difficult, however, to estimate the amount of damages which Mr. Armstrong is entitled to recover for that 7 years of excess flow.

Presumably, the ravine on the Armstrong farm carries all of the waters with which it is now charged, which would include not only the landing field and the other areas south of the road, but also the part of Mr. Armstrong's farm and any other lands lying in the natural drainage area for that ravine which lie to the north of the road. As the landowners in the drainage area install ditches, there will be a tendency to a more rapid run-off of the rainfall and some erosion is & result that would normally be expected. It seems fair to assume, however, that some part of the erosion that occurred between 1931 and 1938 is due to the discharge of the rainfall from the 45 excess acres.

As bearing on the amount of the damage suffered by Mr. Armstrong, our files contain a letter from Mr. Elliott, district manager of the Bureau of Air Commerce, dated April 6, 1938, which contains the following statement:

"1. A representative of this office has recently been in Gardner in connection with the complaints made by Mr. Armstrong relative to surface waters draining from the intermediate field onto his property. The representative conversed with Mr. Armstrong, looking toward obtaining an agreement granting the Government permission to leave the drainage ditches as are, and the erosion on Mr. Armstrong's property would be taken care of by the owner. The agreement also would waive all claims for damages previously done to the property. Mr. Armstrong advised that such an agreement would be executed for an annual consideration of $175, to remain in effect as long as the Government maintained the intermediate field with drainage ditches in their present location. This consideration was deemed excessive in view of the fact that it appears that the waters draining from the field comprise only about 10 percent of the run-off that is causing the damage.”

If $175 per year represented Mr. Armstrong's estimate of a fair annual compensation for the damages he was suffering his aggregate compensation for the 7 years between 1931 and 1938 would only amount to $1,225. Possibly, interest should be allowed due to the fact that payments were deferred. It is to be noted, however, that Mr. Armstrong's proposition for $175 a year from and after 1938 was to cover all the damages that had occurred prior to that time.

At the present time, we are not informed as to the number of acres on Mr. Armstrong's farm that have been eroded or as to the current market value of that type of land. We have instructed our district office to procure information on those two points and also to make the best estimates it can as to what part of the erosion is fairly attributable to the fact that the Bureau unlawfully drained 45 acres of land into the Armstrong ravine for the 7-year period. As soon as we receive this information, we shall promptly forward it to you as a supplement to this report. Very truly yours,

ROBERT H. HINCKLEY.

THE FARMERS BANK,

Gardner, Kans., April 19, 1936. Hon. U. S. GUYER,

Washington, D. C. · DEAR MR. GUYER: I am writing thinking that possibly you are in a position to be of assistance to me in a proposition that has developed here which I will explain as follows:

A few years ago the Government purchased land just west of Gardner for the purpose of building an airport or landing field, which they proceeded to do.

Now I own a farm of 160 acres adjoining this field, just north of same with roadway between; in leveling off this land and draining of same with ditches, tile, etc., it has caused with each heavy rainfall such a fast flow of water that my land has been badly washed,

This land has been in my family for over 50 years and has always been well taken care of with no ditches that could not readily be crossed with any kind of a farm implement; at present due to the rapidity of the flow of the water, the land has been so badly cut up with ditches they cannot even be crossed a horseback and are getting worse each year; there was also about 40 acres or more of land that drained in the opposite direction and the natural watershed was changed and now drains across my land.

This is not a temporary damage but is permanent, and will continue to damage me more each year and I feel that something should be done about it.

Now it will be a great favor to me if you will take this up with the proper department and ask that an investigation be made by Government engineers or whoever the proper parties might be, and I am willing to leave to anyone whether I have not been damaged in this matter. Thanking you in advance for what you can do for me in this matter, Yours very truly,

E. E. ARMSTRONG.

DEPARTMENT OF COMMERCE,
BUREAU OF AIR COMMERCE,

Fort Worth, July 29, 1936. Subject: Drainage conditions Gardner Field, Site 44-B, Amarillo-Kansas City

Airway.
Assistant DIRECTOR OF AIR COMMERCE,
Air Navigation Division, Department of Commerce,

Bureau of Air Commerce, Washington, D. C.: 1. The civil engineer in this office recently visited the Gardner Field and investigated drainage conditions and damages reported done to adjacent lands owned by Messrs. Armstrong and Timberlake.

2. Mr. Timberlake's complaint is that water from the ditch at the east end of the field flows across the road during heavy rains and through his front yard and across his driveway before getting into the natural drain. The road ditch is not of sufficient size to carry the water west to the culvert. It is recommended that a ditch be cut across the corner of the field as indicated on the enclosed contour map, and the unnecessary portion of the ditch as now constructed filled in. This arrangement was discussed with Mr. Timberlake and meets with his approval.

3. Mr. Armstrong has a justifiable complaint in that this office dug a diversion ditch along the entire west side of the field and changed the natural drainage course of surface water draining from approximately 45 acres. The water from this area west of the south portion of the field originally crossed the field and flowed to the southeast in a draw. It will be noted from the drainage sketch that this area is approximately 10 percent of the area affecting Mr. Armstrong's property. His statement that at some places the wash is so deep that it cannot be crossed on a horse is correct, but this condition exists only in about the first 700 feet south of his north property line, the damage of which he complains is not near the field, but between one-quarter and one-half mile north of the field, and after several other drains have entered into the ravine and caused erosion.

4. In Mr. Armstrong's letter to the Honorable U. S. Guyer, it is stated that the run-off is much faster since the establishment of the field due to leveling the land, ditching, and tile drains. This statement is correct, as the run-off is more rapid from a sod surface than from a cultivated area, but it is the opinion of this office that it is a right of a property owner to make any improvements desired, such as smoothing and draining, providing the natural course of drainage water is not changed. It is unfortunate for him

that by reason of natural topography water must flow over his property. The representative from this office did not see Mr. Armstrong, as the latter is in Colorado and will not return until about September 1. However, Mr. Alexander, an official with the State of Kansas Work Projects Administration, advised that Mr. Armstrong had indicated it would be satisfactory if the south portion of the diversion ditch on the west side of the field was filled.

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DEPARTMENT OF COMMERCE,
BUREAU OF AIR COMMERCE,

Fort Worth, April 6, 1938. Subject: Drainage conditions on the Gardner Field, site 44-B, on the Amarillo

Kansas City Airway. BUREAU OF AIR COMMERCE,

Washington, D. C.: 1. A representative of this office has recently been in Gardner in connection with the complaints made by Mr. Armstrong relative to surface waters draining from the intermediate field onto his property. The representative conversed with Mr. Armstrong, looking toward obtaining an agreement granting the Government permission to leave the drainage ditches as are, and

the erosion on Mr. Armstrong's property would be taken care of by the owner. The agreement also would waive all claims for damages previously done to the property. Mr. Armstrong advised that such an agreement would be executed for an annual consideration of $175, to remain in effect as long as the Government maintained the intermediate field with drainage ditches in their present location. This consideration was

deemed excessive in view of the fact that it appears that the waters draining from the field comprise only about 10 percent of the run-off that is causing the damage.

2. The Bureau has previously approved the installation of a 30-inch underground drain across the south portion of the north-south runway to carry the water that originally flowed to the southeast and over the highway. It was not considered advisable to install this drain without obtaining a permit from the property owners holding the fee on the land between the field and the highway. It appears that the Government would be within its rights to make such improvements to the property as it saw fit. However, if this drain is constructed, the run-off will be concentrated at a point, and the time of run-off shortened. The possibility of causing erosion would be enhanced by such construction. A permit was obtained from Mr. Granville Nells Hedrick and Mrs. Estella R. Hedrick, trustee for the children of James A. Hedrick, deceased, granting the Government permission to discharge waters upon their property and forfeiting the right to make claims for damages resulting from any construction the Government may see fit to make upon its property.

L. C. ELLIOTT,

District Manager.

Civil AERONAUTICS AUTHORITY,

Washington, November 14, 1939. The Honorable AMBROSE J. KENNEDY, Chairman, Committee on Claims,

House of Representatives, Washington, D. C. MY DEAR CONGRESSMAN: I refer again to your letter of June 21, 1939, and to my reply of August 1, 1939. At this time I have available a very thorough and complete report from our Kansas City regional office regarding Mr. E. E. Armstrong's claim against the United States Government for $3,000 damages to his farm lands near Gardner, Kans. The damages are alleged to have been the result of the diversion of drainage water by the Bureau of Air Commerce of the Department of Commerce in the construction of an intermediate landing field adjoining the Armstrong farm. This report makes specific reference to the number of acres eroded on Mr. Armstrong's farm, the current market value of the types of soil eroded, and estimates as to what part of the erosion was fairly attributable to the fact that the Bureau of Air Commerce drained approximately 39 acres of land onto Mr. Armstrong's property for the 7-year period from 1931 to 1938.

The report includes:

(1) The monthly and annual precipitation reports for the years 1925 to 1939, inclusive, for Johnson County, in which the Gardner landing field is located;

(2) The monthly and annual precipitation reports for the years 1889 to 1939, inclusive, for Kansas City, Mo., which is approximately 25 miles northeast of the Gardner landing field;

(3) A copy of aerial map No. ZL-1-112, dated October 1, 1937, of Gardner, Kans., and vicinity;

(4) Two copies of drawings of the same area, numbered C-68;

(5) Two copies of cross-section drawings of the eroded channel on E. E. Armstrong's property, numbered C-67, and one photograph of each of such cross sections;

(6) A letter from Mr. C. T. Hall, county agricultural agent, Olathe, Kans.; (7) A report by E. T. Harden of the United States Department of Agriculture;

(8) A report by Ray I. Hess, assistant airways engineer for the Authority, combining most of the above material; and

(9) Recommendations by both the Kansas City Regional Office and the Airways Engineering Division, of the Authority.

This report shows that the watershed area which drained onto Mr. Armstrong's property prior to 1931 was approximately 621 acres. After the landing field was constructed in 1931, this area was increased on the west by 39.6 acres and decreased on the east by approximately 6.3 acres, making the total watershed area from 1931 to 1938 approximately 654.3 acres. In December 1938 the 39.6 acres lying to the west of the landing field was not drained through Mr. Armstrong's property but was directed back to its natural course by means of an underground 24-inch pipe. The watershed area now draining onto Mr. Armstrong's property is approximately 614.7 acres.

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