Miller v. United States ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DAISY ELLEN MILLER,
Plaintiff-Appellant,
v. No. 96-2534
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Orangeburg.
Charles E. Simons, Jr., Senior District Judge.
(CA-93-1673-5-6)
Submitted: September 9, 1997
Decided: September 25, 1997
Before MURNAGHAN, HAMILTON, and NIEMEYER,
Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
D. Cravens Ravenel, Virginia C. Ravenel, BAKER, BARWICK,
RAVENEL & BENDER, L.L.P., Columbia, South Carolina, for
Appellant. J. Rene Josey, United States Attorney, John B. Grimball,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Daisy Ellen Miller appeals a district court order dismissing her suit
under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994),
as barred under the statute of limitations. Finding no error, we affirm.
This appeal concerns a large drainage ditch carrying surface flow
off of North Air Field near North, South Carolina. The record dis-
closes that in 1944 the United States acquired a perpetual drainage
easement over certain lands for drainage of the nearby air field. The
easement was recorded in public county records the same day. Miller
purchased a lot next to the subject ditch in 1970 and that year built
a house on it 26.4 feet from the edge of the ditch. The drainage ease-
ment covered the parcel of land owned by Miller, as the lot was for-
merly owned by the same grantor that conveyed the easement.
Miller alleged in her January 1991 FTCA claim: (1) that the Air
Force negligently maintained its drainage ditch causing erosion to her
land; (2) that the Air Force tortiously concentrated water in the ditch
eroding her land; and (3) that the Air Force trespassed upon and dam-
aged her land by sending water in concentrated form outside the ease-
ment. See 28 C.F.R. § 14.2 (1992).
Under 28 U.S.C. § 2401(b) (1994), a tort claim against the United
States is barred unless presented in writing to the appropriate federal
agency within two years after the claim accrues or unless the action
is begun within six months after final agency action. The claim
accrues within the meaning of § 2401(b) when the plaintiff knows or,
in the exercise of due diligence, should know both the existence and
cause of her injury. Gould v. United States Dep't of Health & Human
Servs., 905 F.2d 738, 742 (4th Cir. 1990).
During depositions, Miller admitted that she was aware of the ero-
sion problem caused by the ditch and that the air field significantly
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contributed to the problem at least by 1986. Robert H. Holley, Mil-
ler's expert witness, stated in his deposition that he examined Miller's
property and the ditch and informed Miller that the erosion problem
was caused significantly by the bulk of the water coming off the Air
Force base in 1973. Further, Miller, through a friend, directly com-
plained to the Air Field regarding the erosion problem prior to 1986.
We therefore conclude that Miller had knowledge of the erosion
problem and the "critical facts" as to the likely source of the problem
at least by 1986, thereby triggering the two-year statute of limitations.
See United States v. Kubrick, 444 U.S. 111, 122 (1979). Because Mil-
ler filed her FTCA claim well after the two-year period, the district
court appropriately dismissed her claim for lack of jurisdiction.
Accordingly, we affirm the district court order. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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