United States v. Certain Lands in Town of Jamestown, R.I.

• Decision Date: 22 April 1899
• Docket Number: 2,570.
• Citation: 112 F. 622
• Parties: UNITED STATES v. CERTAIN LANDS IN TOWN OF JAMESTOWN, R.I. In re NEWLIN et al.
• Court: U.S. District Court — District of Rhode Island

112 F. 622

UNITED STATES v. CERTAIN LANDS IN TOWN OF JAMESTOWN, R.I.

In re NEWLIN et al.

No. 2,570.

United States Circuit Court, D. Rhode Island.

April 22, 1899

Charles A. Wilson, U.S. Dist. Atty., for the United States.

William P. Sheffield, Jr., and Clarke Burdick, for claimants.

On Motion to Dismiss

BROWN District Judge.

That the erection and use of a fortification for coast defense are considered by the owner of a summer residence located upon neighboring lands, not taken for the public use, 'to defeat much of the purpose he had in view in the purchase thereof, and in making his erections and improvements thereon,' or even that the value of his estate is impaired thereby, gives him no right to compensation. Acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a 'taking,' within the meaning of the constitutional provision for compensation. Northern Transp. Co. v. City of Chicago, 99 U.S. 635, 642, 25 L.Ed. 336; Gibson v. U.S., 166 U.S. 269, 17 Sup.Ct 578, 41 L.Ed. 996; Meyer v. City of Richmond, 172 U.S. 82, 19 Sup.Ct. 106, 43 L.Ed. 374. Therefore the only grounds for compensation set forth in the claims of these persons whose lands have not been taken, that require further consideration, are the alleged appropriation or destruction of certain rights to use and restrain the use of the lands taken. The allegations as to the possession of such rights, however, are too general and may involve conclusions of law.

The objection that there is not properly on the record any legal right in the lands taken is well grounded. It is a familiar rule of pleading that the commencement of particular estates must be shown. Steph. Pl. Sec. 308; 1 Chit. Pl. § 504.

Before proceeding to decide whether the condemnation for the purposes of coast defense necessarily involves a taking or destruction of rights of a certain class, and whether compensation would be due therefor, we should first require proper allegations of the existence and origin of these rights. Upon these, accompanied by proper reference to the deeds, the legal sufficiency of the titles may be determined as a preliminary question.

Though the claims are imperfect, an opportunity should be given to amend by striking out such parts as relate to compensation for damages merely consequential to the public use and by inserting proper allegations of title. Therefore the motion to dismiss will be held, and leave is granted to amend within 20 days.

On Demurrer to Claims.

(January 6, 1902.)

No land of these claimants is actually taken by the decree of condemnation. Nor do their lands adjoin the lands taken by the United States. The claimants are owners of lots on that large trace at the southern end of Conanicut Island, at the entrance of Narragansett Bay, known and platted as 'Ocean Highlands.' Many lots on this plat have been sold by the Ocean Highland Company subject to restrictions or conditions the design whereof is to make every portion of Ocean Highlands subject thereto for the benefit of every other portion. Certain lots subject to these restrictions, and belonging to other persons, have been condemned by the United States for 'the location, construction, and prosecution of works for fortifications and coast defense,' otherwise described as 'military uses.'

The claimants first assert that the taking of these lands has destroyed the rights to restrict their use, and that these rights of restriction are appurtenant to the estates of the claimants as 'negative easements.' The claimants next contend that the destruction of these 'negative easements' is a taking of their property by the United States, and that they are entitled to compensation therefor. For the United States it is contended that these rights are not taken, and that the claimants are not entitled to compensation.

The restrictive provision contained in the deeds of part of the land actually taken is as follows:

'But this deed is on condition that no slaughter house, smith shop, steam engine, furnace, forge, bone-boiling establishment, iron or brass foundry, no manufactory of chemicals of any description, of gas, soap, fish guano, fish oil, kerosene, or other oil, no brewery, distillery, bar, ale house, drinking saloon, or other place for the manufacture, compounding, or selling of any kind of intoxicating liquors, in any manner or form, shall ever be erected, located, used, or suffered in or upon any part of said granted land, and that no other noxious, dangerous, or offensive trade or business whatever shall ever be done, carried on, or permitted in or upon said land or any part thereof, with the understanding, however, that this shall not exclude from said land any invention, apparatus, or machine appurtenant to a dwelling house, for lighting or warming the same or supplying the same with water; and said conditions may be at any time enforced, by action, injunction, or otherwise, by said grantor, is successors and assigns, against said grantee, and his heirs and assigns, forever, and also by the owner or owners, occupant or occupants, for the time being, of any portion of said Highlands, on the said plat thereof, against any owner or owners, occupant or occupants, for the time being, of said granted land, or of any part thereof, forever; the design being to have the conditions hereof in every deed given by said grantor in the premises, and make every portion of said Ocean Highlands subject to said condition for the benefit of every other portion thereof, forever.'

Other provisions except from these conditions certain portions of the tract, with which we are not concerned, as well as 'every part wheresoever hereafter occupied by a hotel in actual use as a hotel, and large enough for the commodious entertainment of at least fifty guests.'

In considering whether there is a taking of any rights of the claimants, we must refer to the purpose for which the lands subject to these restrictions were condemned, to wit, 'the location, construction, and prosecution of works for fortifications and coast defense. ' It must be assumed that the lands taken will be applied to that public use, which in this case is the basis of the right to condemn. No weight can be given to the claimants' contention that, if the United States should abandon its use of the land taken, and convey its title to private individuals, its grantees would have the right to carry on any of the offensive trades mentioned in the Highlands deed. See Railway Co. v. Doe, 114 U.S. 340, 5 Sup.Ct. 869, 29 L.Ed. 136; 10 Am. & Eng.Enc.Law (2d Ed.) 1088, 1130; Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 249, 251, 17 Sup.Ct. 581, 41 L.Ed. 979. The proper inquiry is whether the necessary effect of the condemnation of other lands for the purpose specified was to take and destroy the restrictive rights and 'negative easements' of the claimants, and whether this is a taking for which compensation must be made.

Upon first impression, it would seem that the result of this condemnation was rather to perpetuate the purpose of these restrictive conditions than to destroy it. If, appurtenant to A.'s estate, is the right to prevent the erection of a house on adjoining lands of B., the condemnation of B.'s land for a public building may destroy A.'s right to control the use of B.'s land, and in some cases be considered a taking of A.'s property. But, if B.'s land is condemned for an open park, thereby rendering it morally sure that no building will ever be erected thereon, surely the state need not pay A. for the loss of that which he has not lost, but which has been more effectually secured to him. Looking at the condition, it may be said, as a matter of common sense, that the appropriation of land to coast defense effectually prevents its use by private persons for noxious, dangerous, or offensive trade or business, for a slaughter house, brewery, distillery, bar, ale house, bone-boiling establishment, manufactory of soap, fish guano, fish oil, kerosene, or other oil; and it is safe to say that applying the land to coast defense neither necessarily nor in any probability, in these respects, destroys or impairs or 'takes' the rights of restriction, or conflicts with their purpose. It is, however, conceivable that coast defense may require the erection and use of a smith shop, steam engine, furnace, forge, or iron or brass foundry.

Conceding the possibility that one of these may be erected and used by the United States upon these premises, can we say that this present possibility of a future use by the United States makes the present taking of other lands a present appropriation of the claimants' property rights? I am of the opinion that it does not. In Chicago, B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 241, 17 Sup.Ct. 581, 41 L.Ed. 979, the inquiry was 'whether the necessary effect of proceedings in the court below was to appropriate to a public use any property right * * * without compensation being made or secured to the owner. ' If we are to inquire whether, in this case, the necessary effect of this condemnation of other lands is to expose these claimants or their successors in title to a violation of any of these conditions, the answer must be that it is certainly not a necessary effect. On the contrary, there is a very great degree of probability that none of these things will ever be done, or, if done, that the detriment therefrom will be too unsubstantial for serious consideration or for pecuniary estimation.

There are no allegations of fact upon which a finding of a probable interference...