533 F.3d 419 (6th Cir. 2008), 06-6369, Burlison v. United States

Docket Nº:06-6369.
Citation:533 F.3d 419
Party Name:James I. BURLISON, Rodney L. Waits, and Buford O'Neal Tankersley, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
Case Date:July 17, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 419

533 F.3d 419 (6th Cir. 2008)

James I. BURLISON, Rodney L. Waits, and Buford O'Neal Tankersley, Plaintiffs-Appellees,

v.

UNITED STATES of America, Defendant-Appellant.

No. 06-6369.

United States Court of Appeals, Sixth Circuit.

July 17, 2008

Argued: Oct. 30, 2007.

Page 420

ARGUED:

Lane M. McFadden, United States Department of Justice, Washington, D.C., for Appellant. J. Houston Gordon, Law Office of J. Houston Gordon, Covington, Tennessee, for Appellees.

ON BRIEF:

Lane M. McFadden, United States Department of Justice, Washington, D.C., for Appellant. J. Houston Gordon, Law Office of J. Houston Gordon, Covington, Tennessee, for Appellees.

Before: BATCHELDER, MOORE, and COLE, Circuit Judges.

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OPINION

KAREN NELSON MOORE, Circuit Judge.

This case concerns an appeal by the United States from a district-court decision holding that landowners in Tennessee possess an easement over a field-access road that traverses the Lower Hatchie National Wildlife Refuge. The landowners (“Plaintiffs-Appellees" ) sought to quiet title to the access road pursuant to the Quiet Title Act, 28 U.S.C. § 2409a, and the U.S. District Court for the Western District of Tennessee entered judgment in their favor. The United States also appeals the district court's holding that the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. § 668dd, as amended, does not give Congress or the United States Fish and Wildlife Service the authority to regulate Plaintiffs-Appellees' easement, which “predate[d] the Government's ownership of the servient tenement." Burlison v. United States, No. 04-2597, 2006 WL 2546564, at *10 (W.D.Tenn. Aug.31, 2006). We agree that Plaintiffs-Appellees have an easement by reservation over the field-access road. We also hold, however, that the federal government has the power under 16 U.S.C. § 668dd(d)(1)(b), enacted pursuant to the Property Clause, to regulate in a reasonable manner Plaintiffs-Appellees' use of their easement. We therefore AFFIRM the judgment of the district court in part and REVERSE in part.

I. FACTS AND PROCEDURE

A. Factual Background

The lands at issue in this case lie near the convergence of the Mississippi and Hatchie Rivers and the historic town of Fulton, in Lauderdale County, Tennessee. Joint Appendix (“J.A." ) at 49 (Joint Pretrial Order at 12). Plaintiffs-Appellees James I. Burlison, Rodney L. Waits, and Buford O'Neal Tankersley own a two-thirds interest in the Rorie tract, which is at the southern-most tip of the lands. J.A. at 44-45 (Joint Pretrial Order at 7-8). The Rice tract lies directly to the north, and to the north of that tract lies the Sullivan tract. J.A. at 173 (1972 Map). The Rorie tract is landlocked; Plaintiffs-Appellees have and their predecessors had no means to access their lands except over the historic field-access road passing through the former Sullivan and Rice tracts, which now form part of a U.S. wildlife refuge. J.A. at 42 (Joint Pretrial Order at 5). The road travels along the old river bluff where the Mississippi used to flow, from Highway 87 to the banks of the Hatchie River. J.A. at 31 (Douglas Dep. at 25); J.A. at 49 (Joint Pretrial Order at 12); J.A. at 173 (1972 map).

1. Succession of Title

The Rorie and Rice tracts and the majority of the Sullivan tract once formed part of lands held in unity by A. Lea & Co. J.A. at 43 (Joint Pretrial Order at 6). In 1888, the lands that later became the Rice and Rorie tracts were separated from the Lea property and assigned to the Bacon family. Id. By 1928, Myra Bacon Rice owned both the Rice and Rorie tracts. Id. Cyburn H. Sullivan, III bought what is now known as the Sullivan tract from Charles Shoaf, who inherited the land from his father, Charlie Shoaf. J.A. at 211 (Sullivan Dep. at 10). The record does not make clear when Charlie Shoaf bought the Sullivan tract from A. Lea & Co or when Sullivan bought the tract from Charles Shoaf, but the timing is immaterial.

In 1941, Myra Bacon Rice and her husband deeded what is now known as the Rorie tract to Elvy Rorie and his wife. J.A. at 44 (Joint Pretrial Order at 7). The tract then passed to Elvy Rorie's three

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children: Conrad J. Rorie, Virginia Rorie Wright, and Elvy Rorie, Jr., who held the land as tenants in common. Elvy Rorie, Jr. farmed the lands for the benefit of his co-tenants. Id. Upon his death in 1998, Elvy Jr.'s one-third interest in the lands passed to his three children, Elvy Rorie III, Margaret Rorie Sansom, and Susan Rorie Davis. Id. In 1999, the two daughters deeded their two-ninths interest in the Rorie tract to C & L Farms, Inc. Id. In 2002, Conrad J. Rorie and the heirs of Virginia Rorie Wright deeded their two-thirds interest in the Rorie tract to Plaintiffs-Appellees, who now hold the land in fee simple absolute. J.A. at 44-45 (Joint Pretrial Order at 7-8).

In 1993, the trustees of the Ralph E. Rice, Jr. and Hallie M. Rice Family Trust deeded the Rice tract to the U.S. government for use as a national wildlife refuge administered by the Secretary of the Interior, through the U.S. Fish and Wildlife Service (we hereinafter refer to this deed as “the Rice Deed" ). J.A. at 485-86 (Rice Deed at 1-2). The grantors assigned all the legal and equitable rights to the property, “SUBJECT, HOWEVER, to existing easements for canals, ditches, flumes, pipelines, railroads, public highways and roads, telephone, telegraph, power transmission lines and public utilities." Id. at 486 (italics added). Thus, the title possessed by Plaintiffs-Appellees to the Rorie tract and the U.S. title to the Rice tract originated with a common owner: Myra Bacon Rice.

The government also owns the northern-most tract of the lands in question. In 1985, Cyburn Sullivan and his wife had deeded the Sullivan tract to the U.S. government, for use as a national wildlife refuge (we hereinafter refer to this deed as “the Sullivan Deed" ). J.A. at 510-11 (Sullivan Deed at 1-2). The United States acquired the land in fee simple and “unencumbered SUBJECT, HOWEVER, to ... [e]xisting easements for canals, ditches, flumes, pipelines, railroads, public highways and roads, telephone, telegraph, power transmission lines and public utilities." Id. at 512 (italics added).

2. Use of the Access Road

The partition of the A. Lea & Co. lands to the Bacon family in 1888 did not expressly grant any easement in favor of the landlocked property now known as the Rice and Rorie tracts. J.A. at 159 (Rice Dep. at 43). From 1941 forward, however, Plaintiffs-Appellees and their predecessors (members of the Rorie family) used the field-access road through the property of the federal government's predecessors in title (Shoaf, Sullivan, Rice) to access their lands. J.A. at 45 (Joint Pretrial Order at 8). Milton Rice testified that he and his family recognized the Rories' right to use the road over the Rice tract, without needing to ask for permission. J.A. at 131 (Rice Dep. at 15). Similarly, during the time that members of the Rice family owned the Rice tract, they enjoyed access to the road over the Sullivan tract, without needing to ask permission from the people who owned the lands to the north. J.A. at 125, 131-32 (Rice Dep. at 9, 15-16). Occasionally, Charles Shoaf would put a gate up on the access road, but Rorie could always get a key and Rice also obtained a key through Rorie. J.A. at 128 (Rice Dep. at 12). Furthermore, Cyburn Sullivan, III testified that when he purchased the Sullivan tract from Charles Shoaf, Shoaf told him that an easement traversed the property; accordingly, Sullivan never required Rice to ask permission to use the road. J.A. at 217-18 (Sullivan Dep. at 16-17).

There exists some confusion in the record as to whether any lands were at one time sold off the Sullivan tract. J.A. at 123-24 (Rice Dep. at 7-8). Regardless of

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the nature and timing of the sales, purchasers who owned property south of Highway 87 had to use the field road to access their properties. J.A. at 148-50 (Rice Dep. at 32-34).

After the federal government purchased first the Sullivan and, later, the Rice tracts, the Rice and Rorie families enjoyed continued use of the field-access road. Milton Rice testified that the government never put him on notice that it had the “right to prevent me or my family members (as owners), or anyone else to whom we gave permission to go on to the Rice lands, from using the roadway at any time we chose to do so." J.A. at 178 (Rice Aff. at 4). In 1991, the Fish and Wildlife Service put up a gate on the field-access road between the Sullivan and Rice tracts. The Fish and Wildlife Service issued a key to Milton Rice pursuant to a Special Use Permit, to enable him to access the Rice tract south of the national wildlife refuge located on the Sullivan tract. J.A. at 143-45 (Rice Dep. at 27-29); J.A. at 197 (Permit Letter). Rice, however, testified that he understood the key not to restrict his access but rather to enable him, as well as Rorie, to access their properties when the road was closed to the general public during the waterfowl-migration season, from November 15 to March 15. J.A. at 145 (Rice Dep. at 29). The Fish and Wildlife Service issued keys and Special Use Permits to Milton Rice and Elvy Rorie, Jr., among other individuals, in 1991, and to Elvy Rorie, Jr. in 1993, 1994, 1995, 1996, 1997, and 1999. J.A. at 461-73 (Defendant's Exs. 54-63). The Fish and Wildlife Service issued a key and Special Use Permit to Plaintiff-Appellee Tankersley in 2002. J.A. at 475 (Defendant's Ex. 65).

In 2002, the government locked a gate across the field-access road and denied Plaintiffs-Appellees permission to use the road between November 15, 2002 and March 15, 2003.1 A government agent told Plaintiffs-Appellees on November 20, 2003, that, “I just don't want you on the access road. It disturbs the waterfowl and damages the road." Id. On November 15, 2004, the government again prevented...

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