Cavin v. U.S.
| Decision Date | 13 February 1992 |
| Docket Number | Nos. 90-5098,90-5106,s. 90-5098 |
| Citation | 956 F.2d 1131 |
| Parties | Benton C. CAVIN, Benton C. Cavin as assignee of Lorna M. Osburn, Benton C. Cavin, as assignee of Robin C. Cavin, Benton C. Cavin, as executor of the estate of Carl T. Cavin, Doreen N. Cavin, Lorna M. Osburn and Dennis C. Osburn, Plaintiffs-Appellants, v. The UNITED STATES, Defendant/Cross-Appellant. |
| Court | U.S. Court of Appeals — Federal Circuit |
William F. Davis, William F. Davis Law Offices, Pacific Palisades, Cal., argued, for plaintiffs-appellants.
Ellen J. Durkee, Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., argued, for defendant/cross-appellant. With her on the brief was Richard B. Stewart, Asst. Atty. Gen. Of counsel, David C. Shilton, Dept.
of Justice, Washington, D.C. Also on the brief was Ellen Hornstein, Office of General Counsel, Dept. of Agriculture, Washington, D.C., of counsel
Before NIES, Chief Judge, NEWMAN and RADER, Circuit Judges.
Benton C. Cavin, et al., sought compensation for the United States Forest Service's activities on real property claimed by the Cavins. The United States Claims Court dismissed Cavins' takings claims for untimely filing, dismissed Cavins' tort claims for lack of jurisdiction, and awarded the Cavins costs. Cavin v. United States, 19 Cl.Ct. 190 (1989). The Cavins appeal the dismissal and request transfer of their tort claims. The Forest Service cross-appeals the award of costs to the Cavins. This court affirms-in-part, reverses-in-part, and remands.
This case concerns a 27-year dispute between the Cavin family and the Forest Service over ownership of 40 acres of mountain land. The Sierra National Forest in Soquel, California bounds the contested land on three sides. Thus, this land is called the "Soquel property."
In 1942, the Cavins purchased the property from a private party. At that time, the chain of title began with a deed dated October 5, 1899. After purchase, the Cavins logged the property and built roads, cabins, and a saw mill.
Over 20 years later, in a January 9, 1963 letter to the Cavins, the Forest Service questioned private ownership of the Soquel property. The Forest Service requested evidence of a patent conveying the land from the Government to a private party. The Cavins could not produce such evidence. Because the Cavins presented no patent, the Forest Service concluded that the Government retained ownership of the property. In a November 24, 1964 letter, the Forest Service informed the Cavins that continued occupancy of the land would constitute trespass.
Sometime in 1969, the Forest Service made alterations on the Soquel property. Over several years, the Forest Service realigned a road across the property (Road 6S-10), bulldozed along a streambed, removed timber, destroyed two cabins, and relocated the property lines. The Claims Court characterized the Forest Service's activities as follows:
[T]he Forest Service refused to institute legal action to settle the dispute, and instead resorted to extralegal tactics to provoke plaintiffs into suing the government. Apparently, the Forest Service declined to sue in order to force the Cavins into a position where they would bear the burden of proof of establishing ownership.
Cavin, 19 Cl.Ct. at 193. The Claims Court considered the Forest Service's conduct "highly offensive." Id. at 192.
Between 1963 and 1975, the Cavins retained several lawyers to help them establish title to the land. They also sought help from their congressional representative. The Forest Service allegedly advised the Cavins' congressman that the land patent application process under the Color of Title Act, see 43 U.S.C. § 1068 et seq. (1988) (last amended in 1953), would not settle the dispute. However, on recommendation of their third attorney, the Cavins filed a Color of Title application with the Bureau of Land Management (BLM) on February 17, 1976.
Following protracted administrative proceedings, on October 5, 1984, the Department of the Interior Board of Land Appeals (IBLA) approved the Cavins' land patent application. The IBLA reduced the property's price from the estimated value of $107,390 to $7,390 for equitable reasons. The Cavins paid this amount and received the patent.
While the IBLA considered the patent application, the Cavins filed seven administrative claims against the Forest Service under the Federal Tort Claims Act. See 28 U.S.C. § 2671 (1988). The Cavins sought compensation for some of the Forest Service's activities on the Soquel property from 1963 through 1984. They did not On March 27, 1987, the Cavins filed a pro se complaint in the Claims Court. Based on the Forest Service's activities, including alterations of the Soquel property, the Cavins sought $419,983.34 in damages. The Forest Service responded with a motion to dismiss the Cavins' taking action as untimely and to dismiss the Cavins' tort action as outside the Claims Court's jurisdiction. The Claims Court granted the motion. The court determined that the Cavins' inverse condemnation claim accrued in 1969 when the Forest Service began its activities. Therefore, the court applied the six-year statute of limitations to foreclose the Cavins' taking claims and dismissed the tort claims for lack of jurisdiction.
seek compensation for the boundary relocation or the road relocation. On May 3, 1988, the Forest Service denied all seven claims. The Cavins did not seek review
Although dismissing the claims, the Claims Court ordered the Forest Service to pay the Cavins' court costs. The Cavins appeal the dismissal of the takings claims and the denial of a transfer of tort claims to the district court. The Forest Service cross-appeals the award of costs.
As a threshold matter, this court must determine the ownership of the Soquel property before the IBLA granted the Cavins' patent application in 1984. The Cavins trace their title to the Soquel property back to a deed dated October 5, 1899. The Cavins, however, cannot produce any evidence of a patent conveying title to the land from the United States to a private party.
Before the 1984 land patent issued, the Cavins could not produce undisputed title to the Soquel property. Without undisputed ownership of the Soquel property at the time of the takings, the Cavins cannot maintain a suit alleging that the Government took their property without just compensation. See, e.g., United States v. Dow, 357 U.S. 17, 20-21, 78 S.Ct. 1039, 1043-44, 2 L.Ed.2d 1109 (1958); Lacey v. United States, 595 F.2d 614, 619, 219 Ct.Cl. 551 (1979). Therefore, the Cavins did not have the requisite ownership to prosecute their takings claim.
The Cavins applied for a patent on the Soquel property in 1976. From 1976 until their payment for the property in 1984, the Cavins were merely claimants under the Color of Title Act. Claimant status endowed the Cavins with priority over later claimants to the same property, not with ownership. Lipscomb v. United States, 906 F.2d 545, 550 (11th Cir.1990). The Cavins' status as claimants under the Color of Title Act did not vest in them an equitable interest in the property sufficient to support their takings suit.
The Color of Title Act is, in effect, an exception to 28 U.S.C. § 2409a(n) (1988). Section 2409a(n) prevents anyone from acquiring an interest in Government property by adverse possession. The Color of Title Act, however, allows long-term possessory claimants to follow a statutory procedure to acquire a land patent from the Government. 43 U.S.C. § 1068. The Act requires the Secretary of Interior to issue a patent for land held by a private party for more than twenty years in "good faith and in peaceful, adverse, possession." Id. To qualify for a patent grant, an applicant must have improved or cultivated the land. The Act also requires the applicant to pay not less than $1.25 per acre for the patent. The Act also precludes issuance of a patent until resolution of all conflicting claims to the property. Thus, until the Secretary determines that an applicant has met the requirements of the Act, an applicant secures no vested property interest in the claimed land. A claimant cannot otherwise obtain an interest in Government property by long-term possession. 28 U.S.C. § 2409a(n).
A series of Supreme Court cases underscores that claimants under the Color of Title Act acquire no property interest until satisfaction of the Act's requirements. The Supreme Court extensively interpreted the General Pre-emption Act, 5 Stat. 453, the predecessor to the Color of Title Act. With respect to property conveyance, both acts operate identically. Lipscomb, 906 A mere entry upon land, with continued occupancy and improvement thereof, gives no vested interest in it. It may, however, give ... a privilege of pre-emption. But this is only a privilege conferred on the settler to purchase land in preference to others.... His settlement protects him from intrusion or purchase by others, but confers no right against the government.
F.2d at 550. Therefore,...To continue reading
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