K. Patrick Kruchten, et al. (hereinafter “Kruchten”) appeal the district court’s 1 summary judgment award to the United States in an action brought under the Federal Tort Claims Act (“FTCA”). 28 U.S.C. §§ 2671-2680 (1988). We affirm.
I. BACKGROUND
Kruchten is the owner of farm land along the Minnesota River in Yellow Medicine County, Minnesota, which lies adjacent to land held in trust by the United States for the Upper Sioux Indian Community. In 1984 wаters on the Minnesota River washed out a man-made embankment on the Sioux land, cutting a new channel across that land and Kruchten’s property. The embankment at issue was built prior to 1938, when the United States acquired title to the land on behalf of the Sioux. It is not known who built the embankment. Clearly the flooding involved here would have taken place had the embankment never been erected. The United States was informed of the flooding in 1984. No repairs have been made.
Initially, Kruchten sought unsuccessfully to obtain administrative relief through the Department of the Interior. However, despite the fact that the St. Paul, Minnesota division of the Army Corps of Engineers in 1987 conducted a study of the situation, pursuant to the Flood Control Act, 33 U.S.C. §§ 701-709b (1988), and recommended that a project to repair the washout be initiated, the Corps’ Washington D.C. office informed personnel in St. Paul during a telephone communication that it would not authorize the project.
In 1988 Kruchten filed a four-count complaint against the United States seeking damages of $28,665.00, which rеpresent the value of failed crops on the relevant land for the years 1985-1987. In the various counts Kruchten alleged the United States was negligent in its maintenance of the embankment. Kruchten made the claim that “purposeful refusal of the defendant to repair the [embankment] in 1984, or at any time thereafter, does constitute not only negligence, but actually purposeful trespass by diverted water.” In addition, Kruchten claimed that a fifth amendment “taking” of his property had occurred, 2 and that the water which flowed across his property constituted a nuisance.
The government sought summary judgment on the grounds that it is immune from such a claim under the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a), and that it had no actionable duty to Kruchten. The district court found that there was no basis fоr government liability here.
The law of the state in which the alleged tort occurred — in this case, Minnesota — governs all substantive issues in a Federal Tort Claims case.
See United
II. DUTY OF CARE
On appeal, Kruchten concedes that the district court was correct in its order insofar as it applied the law on the first two theories of relief which he raised.
3
He contends, however, that the failure of government to comply with an alleged duty to maintain the embankment was negligent conduct. He argues that the district court errеd in its determination that
Kunz v. Utah Power & Light Co.,
In Kunz, the Ninth Circuit held that downstream landowners established liability against Utah Power and Light Company for negligent operation of a water storage system. The company in 1917 had dammed and diverted a river for irrigation purposes, and later the plaintiffs suffered damages when their lаnd was flooded after heavy spring runoffs. The Kunz court concluded that the company had a duty to protect the landowners from flooding because the landowners demonstrated reasonable reliance on the company’s affirmative aсts in damming the river.
The district court distinguished Kunz in two primary respects. First, in Kunz, the power company had dammed the river, thereby diverting its flow. By contrast, in this case, the government merely acquired property upon which an embankment had already been built. Second, in Kunz, there was evidence that the landowners relied upon the power company with regard to flоod control protection. Evidence of consultations about flood control between the parties, a change in the type of farming in which the landowners engaged beginning at the time of the defendant’s construction of the water storage systеm, and efforts actually to minimize flooding, all considered together were significant factors to the Kunz court in finding reliance. In contrast, the district court here found that there were “no consultations with plaintiffs or other actions by defendant such as to create a relationship which would justify plaintiffs in relying on the United States to prevent such flooding”.
Kruchten argues that although there is no indication of reliance in the record, there is nothing in the record to indicate an
absence
of reliance. The use of such a “nеgative,” however, is not a sufficient showing of reliance for the plaintiffs’ negligence claim to survive summary judgment.
See generally Celotex Corp. v. Catrett,
There are other distinctions between Kunz and the instant case. In Kunz, the defendants actually diverted the course of the river. Here, by contrast, the builder of the embankment, whoever it might havе been, simply sought to maintain the stream in its channel and prevent it from running across his land. Such defensive conduct in our view does not under applicable law engender the kind of relationships, nor the duty, found to exist in Kunz.
Moreover, “[i]n the absence оf contract, custom, or statute, no duty is imposed by common law ... upon one who erects a dike for flood protection of lands.... ”
Clark v. United States,
In Kunz, the court of appeals wrote:
‘The question appears to be essentially one of whether the defendant has gone so far in what he has actually done, and has gotten himself into such a relationship with the plaintiff, that he has begun to affect the interests of the plaintiff adversely, as distinguished from merely failing to confer a benefit upon him.’
Kunz,
Whereas in Kunz, the defendants acted affirmatively to create a relationship with the plaintiffs and affect their interests, in our view, the government has done very little here other than buy land. We do not believe such purchase alone gives rise to a relationship from which a duty to ensure neighboring lands against flood damage can be found, whether one be a private citizen or the United States government. We therefore defer to the district court, and find no such duty under Minnesota law.
III. TRESPASS
We now examine the question whether Kruchten has a valid trespass claim under the law of Minnesota. In Minnesota, “unpermitted invasion of premises constitutes trespass
quare clausum fregit.” Whittaker v. Stangvick,
“One is subject to liability to another for trespass ... if he intentionally ... causes a thing [to enter the land of another] or ... fails to remove from the land a thing which he is under a duty to remove.” Restatement (Second) of Torts § 158 (1965). It is, of course, arguablе that the failure of a party to maintain a dike would constitute “causing” the water to flow onto plaintiffs’ land. See id. comment i. And “[o]ne who takes possession of land upon which there is an ... artificial condition unreasonably dangerous to persons or prоperty outside of the land is subject to liability for physical harm caused to them by the condition....” Restatement (Second) of Torts § 366 (1965). But “a cause of action for trespass does not arise from mere omission to perform a duty; there must be some affirmativе act by violence or force, direct or imputed, and the injury must be immediate and not consequential.” 87 C.J.S., Trespass § 4, at 958 (1954).
An old case, however, dоes provide some guidance. In that case, which involved an embankment built on the Canadian River in Indian Territory, this circuit held that
[a] riparian owner may construct the necessary embankments, dikes, or other structures to maintain his bank of the stream in its original condition, or to restore it to that condition, and to bring the stream back to its natural course; and if he does no more, riparian owners upon the opposite or upon the same side of the stream can recover no damages for the injury his aсtion causes them.
Gulf, C. & S. F. Ry. v. Clark,
We have found no Minnеsota case law which supports a trespass theory where a vendee takes land upon which an embankment already exists and then elects not to repair the embankment after subsequent deterioration. The district court not unreasonably сoncluded that no basis for government liability existed. In the circumstances, we will not disturb this determination as it relates to a trespass claim.
IV. DISCRETIONARY FUNCTION EXCEPTION
Even if there were a duty under
Kunz,
if the decision not to repair the embankment was one made by government officials exercising policy judgment, then the government may not be sued under the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a).
See Dalehite v. United States,
However, since we have already concluded that the district court did not err in holding there is nеither a duty nor a trespass under Minnesota law, we need not determine whether the action or inaction by the government here falls within the discretionary function exception. 4
Since Kruchten made no allegations in his complaint which give rise to contested factual issues, summary judgment for the government is warranted.
See Celotex Corp.,
Notes
. The Honorable Edward J. Devitt, United States Senior District Judge, District of Minnesota.
. According to Kruchten, an action before the United States Claims Court on an inverse condemnation claim is currently pending. Wе note this may well be the proper forum for an alleged "taking” of property case.
See United States v. Causby,
. First, Kruchten relied upon the seminal case of
Rylands v. Fletcher,
L.R. 3 H.L. 330 (1868), arguing below that a strict liability theory was applicable. Next, he contended that
Mathewson v. Hoffman, 77
Mich. 420,
. Finally, Kruchten argues that the government was negligent pursuant to the doctrine of res ipsa loquitur, as discussed in
City Water Power Co. v. City of Fergus Falls,