Walsh v. U.S.

Citation672 F.2d 746
Decision Date24 March 1982
Docket NumberNo. 80-3290,80-3290
PartiesEugene C. WALSH and Lois M. Walsh, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Edmund Sedivy, Morrow, Sedivy, Olson, Scully & Eck, Bozeman, Mont., for plaintiffs-appellants.

Allen R. McKenzie, Asst. U. S. Atty., Butte, Mont., argued for defendant-appellee; Rick Anderson, Asst. U. S. Atty., Butte, Mont., on brief.

Appeal from the United States District Court for the District of Montana.

Before BROWNING, Chief Judge, WRIGHT, Circuit Judge, and THOMPSON, * Senior District Judge.

BRUCE R. THOMPSON, Senior District Judge:

Eugene C. Walsh and Lois M. Walsh, plaintiffs, commenced this action in the district court against the United States of America and Cyprus Mines Corporation. Federal jurisdiction was predicated solely upon the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b). No independent basis for federal jurisdiction against defendant Cyprus Mines Corporation was alleged, plaintiffs presumably relying upon the doctrine of pendent jurisdiction.

The complaint alleged that on August 2, 1960, plaintiffs sold and conveyed to defendants a highway easement across lands owned by plaintiffs and used by them for the pasturage of cattle. The easement deed granted to the United States of America and its assigns "an easement and right of way for highway purposes for a highway to be located, constructed, operated and maintained under the authority of the Secretary of Agriculture of the United States." The complaint further alleged that in the fall and winter of 1977-78, the United States of America granted or assigned the right to maintain the roadway to defendant Cyprus Mines Corporation. Cattle guards had been constructed on said easement to contain plaintiffs' cattle. Plaintiffs assert that the defendants negligently permitted the cattle guards to become damaged and filled with dirt, snow and debris and rendered useless for livestock control. Damages to plaintiffs' livestock operation were alleged and separate claims were stated for the years 1971-78 and 1978-79 aggregating in excess of $10,000.

The United States moved to dismiss upon the ground that plaintiffs' complaint rested upon contract and that exclusive jurisdiction was in the Court of Claims. 1 The district court dismissed the complaint as against the United States "because the court lacks jurisdiction." Plaintiffs appealed. Subsequently, the case against defendant Cyprus Mines Corp. has been dismissed with prejudice as fully settled. It appears that the jurisdictional defect found by the court could not be cured by any amendment to the complaint, and thus the order may be treated as final. Blevins v. Ford, 572 F.2d 1336, 1338 (9th Cir. 1978). Inasmuch as the action against Cyprus has also since been dismissed, the judgment appealed from may be treated as a dismissal of the entire action, the court having disposed of all claims against all parties. Anderson v. Allstate Ins. Co., 630 F.2d 677, 680-81 (9th Cir. 1980).

Plaintiffs have consistently insisted in the district court and in this court that they have no interest whatsoever in asserting a contract claim, express or implied, and seek only to assert their rights to damages for conduct ex delicto. They have relied upon section 365 of the Restatement (Second) of Torts 2 and cases sustaining the principles there enunciated.

We find these citations to be inapposite to this case. We are not concerned with the liability of a possessor of land to others "outside the land." The allegations of the complaint implicate the rights and liabilities of the owner of the dominant tenement vis-a-vis the owner of the servient tenement in a common servitude situation involving a horizontal severance of the bundle of rights comprising ownership of real property. The Restatement of Property concerns itself with such problems. Section 485 of Restatement of the Law of Property, Vol. V, Servitudes, provides:

In the case of an easement created by conveyance, the existence and the extent of any privilege and any duty of the owner of the easement to maintain, repair and improve the condition of the servient tenement for the purpose of increasing the effective uses of the easement or protecting the interests of the possessor of the servient tenement are determined by the conveyance. 3

The Restatement comment under the foregoing section makes it clear that the problem has two aspects-who has the privilege of repairing and maintaining the easement, and who has the duty to do so. Both aspects are controllable by the terms of the conveyance, but in the absence of such terms the law grants to the owner of the easement the privilege of entering upon the easement to make reasonable repairs and the law also imposes upon the owner of the easement the duty for the benefit of the owner of the servient tenement to so maintain and repair the easement as to prevent unreasonable interference with the use of the servient tenement.

We find the Restatement principles to be fully supported by established precedent. Perhaps the leading case is Coulsen v. Aberdeen-Springfield Canal Co., 47 Idaho 619, 277 P. 542 (1929). There plaintiff recovered for the loss of a bull which had fallen into a waste ditch created by the canal company's negligent maintenance of the canal. The canal company appealed the adverse judgment, and the Supreme Court of Idaho said:

The duty of maintaining the easement or right of way was upon appellant and not upon respondent. City of Bellevue v. Daly, supra; Durfee v. Garvey, supra (78 Cal. 546, 21 P. 302); Linton v. Miller & Lux, 83 Cal.App. 481, 257 P. 105. The failure of appellant to repair or guard amounts to actionable negligence. 9 R.C.L. 796; Vol. 2, Tiffany on Real Property, 1350; Big Goose & Beaver Co. v. Morrow (8 Wyo. 537, 59 P. 159), supra. This court in Settlers' Irr. Dist. v. A. R. Cruzen Inv. Co. (43 Idaho 736, 254 P. 1052), supra, held that the owner of the dominant tenement was answerable for such damages as might be sustained by the owner of the servient tenement resulting from the failure of the former to properly maintain the works connected with the easement, and in Stuart v. Noble Ditch Co., 9 Idaho, 765, 76 P. 255, and Burt v. Farmers' Co-op. Irr. Co., 30 Idaho, 752, 168 P. 1078, held that a canal company was liable for damages resulting from its negligent operation of its ditch or canal.

Respondent had the right to make every reasonable use of his property over which the spillway had been constructed. He had the right to cultivate his land and to graze his cattle thereon. The only limitation on this right was that no use could be made by him that would interfere with the appellant in the operation, maintenance, or repair of its waste ditch. Of any use consistent with its right appellant could not complain. City of Bellevue v. Daly, supra; 9 R.C.L. 784; 9 R.C.L. 797; 19 C.J. 977; 9 Cal.Jur. 953; Paterson v. Chambers' Power Co. (81 Or. 328, 159 P. 568), supra; Collins v. Alabama Power Co., 214 Ala. 643, 108 So. 868, 46 A.L.R. 1459; Durfee v. Garvey, supra; Harmony Ditch Co. v. Sweeney, 31 Wyo. 1, 222 P. 577; Kentucky & West Virginia Power Co. v. Elkhorn City Land Co., 212 Ky. 624, 279 S.W. 1082. It is not necessary that the right of the owner of the servient tenement to occupy and use his land be expressly reserved to him; it is reserved, unless expressly conveyed. 9 R.C.L. 797; 19 C.J. 978; Rolens v. City of Hutchinson, 83 Kan. 618, 112 P. 129.

It follows that the bull owned by respondent was not a trespassing animal, but was rightfully grazing on the right of way, and that the rules announced by this court in Strong v. Brown (26 Idaho 1, 140 P. 773), supra, and Gould v. Reed (34 Idaho 618, 203 P. 284), supra, have no application. The condition of the waste ditch was not due to its reasonable use by appellant for the purposes contemplated, but was due to an unauthorized burden imposed upon respondent's land, and the failure of appellant to restore the land to its former condition, or to protect respondent in the ordinary use of his property in a manner not inconsistent with the right originally acquired, constituted actionable negligence.

277 P. at 546. The principles enunciated by the Idaho Supreme Court find uniform acceptance among the courts of the Western United States and elsewhere. See, in addition to precedents already cited: United States v. 5.61 Acres of Land, 148 F.Supp. 467 (N.D.Cal.1957); Durfee v. Garvey, 78 Cal. 546, 21 P. 302 (1889); Rehwalt v. American Falls Reservoir District No. 2, 97 Idaho 634, 550 P.2d 137 (1976); Kirk v. Schulz, 63 Idaho 278, 119 P.2d 266 (1941) (easement by prescription); City of Payette v. Jacobsen, 57 Idaho 524, 66 P.2d 1013 (1937); Triplett v. Beuckman, 40 Ill.App.3d 379, 352 N.E.2d 458 (1976); Island Improvement Ass'n, etc. v. Ford, 155 N.J.Super. 571, 383 A.2d 133 (1978); Sinkey v. Board of Comm'rs, 80 Nev. 526, 396 P.2d 737 (1964); Nielsen v. Sandberg, 105 Utah 93, 141 P.2d 696 (1943); Big Goose & Beaver Ditch Co. v. Morrow, 8 Wyo. 537, 59 P. 159 (1899).

This action arose in Montana. The FTCA, 28 U.S.C. § 1346(b), waives the sovereign immunity of the United States over actions for money damages "if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." None of the precedents cited declares Montana law and we have found none. We are, nevertheless, confident that if the case should arise, Montana courts will hold that the private owner of an easement has the privilege and duty of repair and maintenance to prevent unreasonable interference with the uses of the servient tenement and is liable for damages proximately caused by failure or neglect to perform such duty.

Inasmuch as the complaint does state a claim for relief under the FTCA within the jurisdiction of the district court, we must resolve the...

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