Eyherabide v. United States

• Decision Date: 14 May 1965
• Docket Number: No. 95-60.,95-60.
• Citation: 345 F.2d 565,170 Ct. Cl. 598
• Parties: Dominic EYHERABIDE, Jean M. Eyherabide, Raymond Castanchoa and Marie Castanchoa v. The UNITED STATES.
• Court: U.S. Claims Court

170 Ct. Cl. 598, 345 F.2d 565 (1965)

Dominic EYHERABIDE, Jean M. Eyherabide, Raymond Castanchoa and Marie Castanchoa v. The UNITED STATES.

No. 95-60.

United States Court of Claims.

May 14, 1965.

Stephen Eyherabide, Bakersfield, Cal., for plaintiffs. Mack, Bianco, King & Eyherabide, Bakersfield, Cal., of counsel.

Kenneth H. Masters, Washington, D. C., with whom was Acting Asst. Atty. Gen., J. Edward Williams, for defendant.

Before LARAMORE, Acting Chief Judge, DURFEE, DAVIS and COLLINS, Judges, and WHITAKER, Senior Judge.

DAVIS, Judge.

The owners of a small tract adjacent to, and surrounded on three sides by, the Navy's Mojave Gunnery Range "B" sue for just compensation for the temporary taking of their property from 1954 through 1959.¹ There were no formal proceedings to seize or acquire rights in this land, and defendant denies that it intended to exercise the power of eminent domain, but plaintiffs urge that nevertheless the defendant's interference with their property was so great that it necessarily amounted to a taking.

Federal law recognizes that, although there may be no official intention to acquire any property interest, certain governmental actions entail such an actual invasion of private property rights that a constitutional taking must be implied. See, e. g., Goldblatt v. Hempstead, 369 U.S. 590, 594, 82 S.Ct. 987, 8 L.Ed.2d 130 (1962); Armstrong v. United States, 364 U.S. 40, 48-49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960); United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 2 L.Ed. 2d 1228 (1958); United States v. Kansas City Life Ins. Co., 339 U.S. 799, 809-810, 70 S.Ct. 885, 94 L.Ed. 1277 (1950); United States v. Dickinson, 331 U.S. 745, 748, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947); United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946); United States v. General Motors Corp., 323 U.S. 373, 378, 65 S.Ct. 357, 89 L.Ed. 311 (1945); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 413, 43 S.Ct. 158, 67 L.Ed. 322 (1922); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U.S. 327, 43 S.Ct. 135, 67 L.Ed. 287 (1922); Block v. Hirsh, 256 U.S. 135, 155-156, 41 S.Ct. 458, 65 L.Ed. 865 (1921). The interference with use or possession may be so substantial and of such a character that it cannot be done without compensation under the Federal Government's regulatory and executive powers. Where these factors exist and a constitutional taking is implied, it is assumed that the United States has acquired a definite interest in the property, permanent or temporary, such as fee title an easement, a servitude, or a leasehold.

In this case we have a series of occurrences which culminated in the near-total deprivation of the owners' use of their property for the period of almost six years for which they ask compensation. As in the flooding, avigation-easement, and projectile-easement cases, we think that the combined acts of invasion and interference, if properly attributable to the defendant, were so great that a taking must be implied.

The Navy's Mojave Gunnery Range "B" is an enormous and desolate area of about 700 square miles in the Mojave desert of California, used for testing naval aerial ordnance of various kinds. Plaintiffs' small ranch of 80 acres forms an indentation in the southern boundary of the gunnery range which surrounds it on the east, west, and north. This ranch is the only improved property for miles around. During and after World War II, from mid-1943 to mid-1947, the tract was leased by the former owners to the Navy and utilized as an integral part of the gunnery range. Since July 1, 1947, the Government has had no claim on the property — except as it may have involuntarily acquired a temporary interest by the events to be described. The Eyherabides (one-half of the plaintiffs) purchased the ranch in May 1952, together with another couple who sold their share to the Eyherabides in September 1956; the Castanchoas (the other plaintiffs) acquired their one-half interest later, in December 1956.

When the ranch was bought in 1952 it had several improvements: two small but complete houses, a barn, a tank house with shower room and tank, a garage, sheds, corrals, windmill and tower, a pump, pipelines, and trees. At that time these improvements had not been damaged by shells, rockets, explosives or other instrumentalities of naval ordnance. The new owners installed livestock scales. Their purpose was to use the property, which had one of the few sources of water in the region, as a headquarters for their sheep-herding and grazing activities covering a very wide area in the general vicinity. To that end, caretakers were installed on the property to guard against vandals and maintain the facilities.

Shortly after the Eyherabides and their then co-owners acquired the land in 1952, they became aware of a series of interferences — most of them clearly attributable to defendant but others which cannot be directly tied to any source. In August 1953, four of the pack burros on the ranch were found shot to death, but it is not known by whom. Early in 1954, a naval security guard employed by the gunnery range visited the ranch, at least three times, and warned the caretakers that they were trespassers, the land belonged to the Government and formed part of the bombing range, bombs and rockets were used on the property which was in a danger zone, and the caretakers should move on pain of arrest. The defendant maintained all around the gunnery range — including spots on all the roads leading to the ranch and on posts very close to the ranch buildings² — warning signs stating: "DANGER AREA, KEEP OUT, Aerial Gunnery Range, U. S. Naval Property." These were apparently a relic of the World War II days when the ranch was a part of the range, but the signs were left standing in such positions that persons approaching the ranch would reasonably consider the warnings to continue to refer to plaintiffs' property as well as the range proper. That would be the normal inference.

In the spring of 1954, an airplane dropped two fuel tanks about an eighth of a mile from the ranch house; in the early fall of 1954 another plane dropped two unidentified "silver" objects very close to plaintiffs' south fenceline. These droppings may well have been outside the ranch property, but they were sufficiently near that as a result the caretakers, thinking also of the guard's prior warnings, moved off the property in October 1954. After that, the owners were unable to obtain any caretakers, although they made numerous attempts and even took seven or eight prospective occupants out there. The Government's warning signs frightened them all.

From time to time after 1952, the owners found shell casings in the barn, and 20-mm. casings, tow targets, rockets, and gas tanks at other places on the property. They also discovered large shell holes in the barn, the garage, and the main house. None of these objects, or this damage, existed before the ranch was acquired in 1952; it is also probable that most (if not all) of the objects came onto the land after the caretakers left in the fall of 1954; the holes in the structures were definitely made thereafter.³ The owners likewise found similar objects as far as 10 to 15 miles south of the ranch and of the southern boundary of the range. Shortly before the trial of this case (April-May 1962), naval airplanes were landing just south of the ranch (and therefore outside of the range).

The structures on the land (except, perhaps, for the tanks and some of the corrals) were destroyed between 1957 and 1959, apparently by dynamite (or other explosives) and burning. We do not know who is directly responsible for this damage. There were vandals in the area, but it is also possible that naval personnel blew up the improvements in connection with some of their ordnance activities.⁴ With commendable candor, defendant's counsel informed us, at the oral argument, that in December 1962 naval officers, thinking that the ranch formed part of the range, selected the tanks as a target for rocket practice, and the tanks were destroyed at that time.⁵ This last incident is outside the period for which plaintiffs sue, but it highlights the significance of the events which did occur within the critical timespan.

It is indisputable, as this recital shows, that the owners of the ranch were unable to use it for any but minimal functions⁶ from the early part of 1954 through 1959, and that the property must have diminished in value during that period through the damage and destruction of the improvements (as well as the inability to use it as a ranch and sheep-herding headquarters). This was not a marginal harm, but a nearly total deprivation of the benefit of the tract. If the defendant was responsible for the acts causing this loss, the injury to the owners was so great that a taking can properly be implied. There were repeated physical invasions of various types on the land itself — the guard's directions to the caretakers to leave; droppings of fuel tanks and tow targets; entry of shells and rockets; damage and destruction of the buildings and improvements. Isolated invasions, such as one or two floodings or sprayings, do not make a taking (see North Counties Hydro-Electric Co. v. United States, 151 F.Supp. 322, 323, 138 Ct.Cl. 380, 382-383 cert. denied, 355 U.S. 882, 78 S.Ct. 149, 2 L.Ed.2d 112 (1957); B Amusement Co. v. United States, 180 F.Supp. 386, 389, 148 Ct.Cl. 337, 341-342 (1960); Harris v. United States, 205 F. 2d 765, 767-768 (C.A.10, 1953)), but repeated invasions of the same type have often been held to result in an involuntary servitude. See Portsmouth Co. v. United States, supra, 260 U.S. at 329-330, 43 S.Ct. 135; United States v. Sponenbarger, 308 U.S. 256, 267, 60 S.Ct. 225, 84 L.Ed. 230 (1939); United States v. Causby, supra, 328 U.S. at 266-267, 66 S.Ct. 1062; Harris v. United States, supra. We see no reason why combined and cumulative invasions of...