U.S. v. 60.22 Acres of Land, More or Less, Situate in Klickitat County, State of Wash.
| Decision Date | 05 September 1980 |
| Docket Number | No. 78-1132,78-1132 |
| Citation | 638 F.2d 1176 |
| Parties | UNITED STATES of America, Plaintiff-Appellant, v. 60.22 ACRES OF LAND, MORE OF LESS, SITUATE IN KLICKITAT COUNTY, STATE OF WASHINGTON; Dickey Farms, Inc., a corporation; Klickitat County, Washington, a municipal corporation; and Unknown Owners, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Edward J. Shawaker, Washington, D. C., argued for plaintiff-appellant; James W. Moorman, Washington, D. C., on brief.
John L. Schwabe, Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, Or., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of Washington.
Before CHOY and FERGUSON, Circuit Judges, and BARTELS, * District Judge.
The district court determined that a 1938 condemnation judgment did not grant the Government an unrestricted flowage easement over specified lands and, accordingly, fixed just compensation for the easement. Finding the district court's determination to be incorrect, we reverse and remand the case for further proceedings.
In 1975 the Government filed a complaint in condemnation seeking "the perpetual right, power, privilege and easement permanently to overflow, flood and submerge" the described land below the elevation of 83.9 feet mean sea level, to maintain mosquito control, and to clear any brush, debris and natural obstructions detrimental to the project; and also seeking the title to the timber and the improvements on the land. The complaint also sought to keep the land clear of structures for human habitation and other structures, excavations, and landfill projects that did not have Government approval. The Government identified Dickey Farms, Inc. as the record owner.
In August 1976 the Government filed a motion in limine to limit the testimony at trial to reflect that by a 1938 judgment the Government had acquired title to an unrestricted flowage easement up to an elevation of 96 feet above mean sea level on the land in question.
In 1937 the Government had petitioned for condemnation of a flowage easement over several parcels of land near the Bonneville Dam Project. The 1937 petition stated that the dam would raise the water level of the Columbia River so as permanently to flood and to overflow the described lands up to an elevation of 72.5 feet above mean sea level, that the natural flow of the river periodically would raise the water level on these lands up to an elevation of 91 feet above mean sea level, and "(t)hat to provide for seepage, wave action and other matters, the Secretary of War has determined it is desirable and necessary to acquire a flowage easement up to 96 feet above mean sea level" over the described lands. The 1938 judgment ordered the condemnation of the easement.
The district court in the instant case concluded that the 1938 condemnation judgment granted the Government the right permanently to flood the land only up to an elevation of 72.5 feet mean sea level and the right periodically to flood the land up to 96 feet mean sea level, as well as the right to remove debris. The district court concluded that the Government would have to pay just compensation for the right permanently to flood the land up to 83.9 feet mean sea level and denied the Government's motion in limine.
On appeal the Government claims the right to an unrestricted easement. Dickey Farms contends that because the Government complaint in this action identified only Dickey Farms as record owner of the parcel of land in question, the Government is estopped from asserting any ownership rights and, in the alternative, that the language of the 1937 condemnation petition limits the extent...
To continue reading
Request your trial
-
In re Doty
... ... Federal Land Bank $ 96,057.67 ... 1st ... Pulaski County Farm Bureau 4,108.00 ... Steiner ... 10, 1989, whichever occurs last, as more specifically set forth in the cash flows attached ... , however, the creditor filed an action in state court to recover on the guaranty. The Supreme ... Court stated as follows: ... Let us now consider whether his trustee\'s motion under ... the period of time prescribed or allowed is less than eight days, intermediate Saturdays, Sundays, ... United States of America v. 60.22 Acres of Land, 638 F.2d 1176 (9th Cir.1980) ... ...
-
Ford Motor Co. v. Summit Motor Products, Inc.
... ... Before us are four appeals arising out of an action ... motion as anything but one for failure to state a claim. However, Rule 12(b) states in part that ... 60.22 Acres of Land, More or Less, Situate in Klickitat ... Union County Board of Chosen Freeholders, 857 F.2d 191, 194 ... ...
-
Richman Bros. Records, Inc. v. U.S. Sprint Communications Co.
... ... On the merits, Richman asks us to hold that Sprint cannot effectively limit its ... that the district court intended to do no more than transfer to the Commission the question of ... transfer of the case, including its state-law claims, to the Commission, effectively ... (quoting United States v. 60.22 Acres of Land, More or Less, Situate in Klickitat y, State of Wash., 638 F.2d 1176, 1178 (9th Cir.1980), cert ... ...
-
Marriage of Zale, In re
... ... State Farm Mutual Automobile Ins. Co., 175 Ariz. 148, ... , though, would make the court nothing more than another party to a contract, thus ... United States v. 60.22 Acres of Land, 638 F.2d 1176, 1178 (9th Cir.1980), ... section 25-324 (Supp.1997), which authorizes us to order one party to pay the fees and costs ... ...