Farm Ponds: Caveat Emptor

I ran into an old friend and co-worker outside of a store in Charlotte the other day.

He is at a stage in his life where it will be a real challenge to spend all of the money he and his wife saved for retirement. One of the things they did this year was to have a farm pond dug on their property. The good news is that they had a very specific contract written. The bad news is that the firm that was the counterparty did not come close to meeting the specifications that were in the contract:

• "Best practices followed"
• 220 feet in one direction by 
• 110 feet in the other direction with 
• A maximum depth of 12' to 15'.

Due to the amount of rain we had this spring and summer, the pond quickly filled to the overflow outlet.

My friend is a numbers guy and in his professional life he dealt with suppliers who tried to shave the deliverables. It was not in his nature to accept that the pond met the specs.

He went out and measured the depth of the pond and the very deepest spot he could find was about 7'6" deep. He purchased a laser measuring tool and calibrated it at the high school football field. The pond measured 150' by 75' instead of 220' by 110'. He measured the slope of the side of the pond and the distance of the water's edge to the spoils pile. The "Best practice" slope is 3 feet of run for 1 foot of drop. He measured 8-to-1. I forget what the "Best practice" for the spoils pile was but it was already washing back into the basin.

My friend called his lawyer to let him know there was a "situation" and then he called the firm.

The firm's representative showed up and pooh-poohed my friend's allegations. "We dug nearly a hundred ponds like this and you are the first customer to complain."

"I don't care about your other customers. This is the contract you signed and you are in breech of the contract." my friend informed him.

And then he proceeded to rub the representative's nose in every gory detail. He made the representative wrap tape around a kayak paddle at 1' increments and then paddled around the pond with him and let the rep look for the deepest spot. The deepest the rep could find was 6'-6". 

The rep waved his hands and said it was because fill had washed back into the excavation.  "That may be so, but it does not let you off the hook" my friend hammered him with. My friend pulled out the contract and made him read the paragraphs about distances, spoil piles and stabilizing erosion IN THE CONTRACT.

Then my friend used wood construction shims, a cinder block and a 48" bubble level to determine the amount of slope by measuring the distance from each end to the ground. "Three-to-one is "Best practice" and that means the distances should be different by 16 inches" my friend informed him. My friend let the rep lug the cinder block around to find any place where the slope was correct. Nearly all of the measurements were between 5" and 6". The rep could not find any place where it measured more than 8".

Then my friend had the rep use the laser measure to shoot distances across the pond with my friend standing on one bank and the rep standing on the other.

The firm came back FOUR TIMES before they threw in the towel. They did not have the equipment required to deliver a pond that conformed to the specifications that were in the contract they signed. What that means, of course, is that the other hundred they had already dug could not possibly be to specification.

They made a cash settlement rather than go to court. My friend is using the settlement to hire a guy with a drag-line and a bulldozer to push the spoils bank to the Best-practice distance.