Howell v. United States, Civ. A. No. C80-159R.
| Citation | 519 F. Supp. 298 |
| Decision Date | 26 June 1981 |
| Docket Number | Civ. A. No. C80-159R. |
| Parties | Dr. William Harvey HOWELL, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
COPYRIGHT MATERIAL OMITTED
Frank D. Smith, Jr., Shepherd L. Howell, Cartersville, Ga., for plaintiff.
Jere W. Morehead, Asst. U. S. Atty., Atlanta, Ga., for defendant.
Jurisdiction of this Court is based upon 28 U.S.C. § 1346(f) which grants District Courts exclusive original jurisdiction of civil actions under 28 U.S.C. § 2409a involving actions to quiet title to real property in which an interest is claimed by the United States.
The defendant, United States of America, through the United States Department of Agriculture, Forest Service, caused a survey to be done of the boundary lines of Land Lot Nos. 167, 174, 175 and 176 of the 5th District, 1st Section of Lumpkin County, Georgia, the original lines of these land lots constituting boundary lines between plaintiff and defendant. Plaintiff disagrees with the boundary lines, as claimed by defendant, maintains that they are incorrect and do not follow the original lines as traced in the original 1832 survey of the district of which these land lots are a part. Plaintiff contends that he and his predecessors in title have exercised dominion and control over certain fields and creeks within the area claimed by the Forest Service based on the results of their surveys.
Plaintiff maintains that defendant has failed, or has negligently neglected to properly follow the original 1832 survey of the boundary lines in dispute. This includes a failure to recognize established corners and trees bearing line marks.
Plaintiff's suit is based on actions of defendant that have caused a "cloud on the title" over the specific property within the disputed boundary lines.
Plaintiff in his complaint contends that the United States of America is liable because the actions were taken by employees of the United States Forest Service, a division of the United States Department of Agriculture, which is a governmental unit of the United States of America.
Plaintiff claimed damage in his complaint based on the claim of the defendant to specific properties within the disputed boundary lines.
This Court dismissed plaintiff's claim for monetary damages by Order dated February 19, 1981. The United States contends that the remaining quiet title aspects of this action are barred under 28 U.S.C. § 2409a(f), since this action was not commenced within twelve years from the date plaintiff knew or should have known of defendant's claim to the disputed area.
It is the contention of the United States that the true and correct dividing lines between the land owned by plaintiff and the land owned by the United States are the boundary lines located at the time of the acquisition survey by the Forest Service in 1927-1929. In support of this contention, the United States contends the Forest Service acquisition surveys of 1927-1929 retraced the original 1832 survey. The lines or corners recovered or re-established by the 1927-1929 surveys are the basis of the boundary descriptions by which the United States acquired its lands and are the same lines and corners that the Forest Service has maintained as its boundaries from the time of acquisition to the present.
This action was tried by this Court without a jury on June 1, and 2, 1981. After hearing the testimony, reviewing the evidence and considering the argument of counsel, the Court makes the following findings of fact and conclusions of law.
1. Plaintiff purchased Land Lot Nos. 167, 174, 175 and at least a part of 176 of the 5th District, 1st Section of Lumpkin County, Georgia, on February 29, 1956. Defendant has acquired title to Land Lots 168, 173, 236, 235, 234 and a portion of 233, adjoining lands common to the boundary lines of plaintiff.
2. Boundary lines of said lots were established by the original survey of 1832.
3. In 1969 defendant caused a survey to be done regarding the dividing boundary lines between the lands described above.
4. Mark Kendall was a common predecessor in title to all of the plaintiff's land and the vast portion of the United States' adjoining land.
5. Theodore R. Carder was the plaintiff's immediate predecessor in title.
6. Between 1927-29, during the time surrounding the government's acquisition of its land, the Forest Service conducted acquisition surveys in this area and in the area surrounding this property.
7. The surveys were conducted through the lots of the common predecessor in title, Mark Kendall and other properties.
8. During the period of Theodore Carder's ownership of the plaintiff's property, the Forest Service painted boundary lines in various areas surrounding his property. The painted lines were inconsistent with what he understood to be his property lines.
9. The painted lines placed by the Forest Service generally followed the corners and lines recovered or re-established in the 1927-29 acquisition surveys by the Forest Service.
10. While Mr. Carder did not agree with the location of the painted lines, he took no legal action because the Forest Service did not interfere with his use of the land. Mr. Carder farmed several fields lying within the portion of land claimed by the government. He argued with Forest Service employees when they warned him trees might be planted in some of the fields. He told them the trees would be plowed up.
11. At the time he sold his land to the plaintiff, Mr. Carder told the plaintiff he was only selling him land to the boundary lines as painted by the Forest Service. Although the plaintiff was aware of some problems with the Forest Service over the location of the boundary lines at the time of purchase as a result of having seen some of the painted lines he took no action until 1969 when he first contacted the Forest Service.
12. While the plaintiff also was told at the time of purchase that the property included all of the fields, a straight line connecting the painted trees in the woodland would have placed a portion of the fields within the area claimed by the government.
13. The United States' deeds call for and make reference to the corners as set on the ground by the acquisition surveys.
14. Through the present, plaintiff has maintained active possession of the fields in the areas of both the eastern and southern lines of his property by cultivation.
15. Plaintiff has maintained active possession of Jones Creek and its tributary branches in the area, by actions including building dams for trout pools. At least one of those dams contributed to erosion of a ditch through one of the fields following a heavy rainstorm.
16. There existed in the area of what plaintiff contends is the southeastern corner of Land Lot 174 a wooden stake with the numerals "174" inscribed thereon. This stake was located 115 feet south and 100 feet east of the point claimed by defendant to be the southeast corner of Land Lot 174. This stake is no longer in place. It was in an area disturbed by timber cutting done by defendant during the 1970's without the knowledge or consent of plaintiff.
17. The location of this missing stake is and has been considered to be at the southeast corner of Land Lot 174 by plaintiff, and by Theodore R. Carder, plaintiff's immediate predecessor in title.
18. There exists a chestnut oak tree that has been cut into showing numbers, located on what plaintiff contends is the south line of Land Lot 174.
19. There exists a cucumber tree (sometimes erroneously referred to as a "basswood tree") bearing some hack marks. This tree is hollow in the middle so that ancient marks cannot be recovered if any have ever been made in or on the tree.
20. There exists a white oak tree bearing hack marks which appear to have been made about 1900 to 1910 and which is located on what plaintiff contends is the south line of Land Lot 175.
21. The chestnut oak tree, the cucumber tree, and the white oak tree are and have been considered to be "line trees" at or, in the case of the cucumber tree, near the location of the southern line of plaintiff by plaintiff and by Theodore R. Carder.
22. The original boundaries of the land lots in question as defined by a survey in 1832 was by survey authorized by Georgia Laws approved December 21, 1830, and December 24, 1831, which laws are known as the Gold Lottery Laws.
23. The original plats of Land Lots 174, 175 and 176 for the 1832 survey show Jones Creek and its tributary branches to be located entirely north of the south lines of Land Lots 174 and 175, and north of that part of the south line of Land Lot 176 east of the western property line of plaintiff. (The western property line of plaintiff in that area is a tributary branch that runs northeasterly across the south line of Land Lot 176 according to the original plats).
24. Although the plaintiff apparently was shown or located certain wooden posts or marked trees, inconsistent with the corners and lines established by the acquisition surveys, none of this evidence tied back to the original survey, any other survey or other accepted corner or corners. The plaintiff has offered no evidence to determine when these trees were marked or when the posts were set except the estimated age of hack marks on the white oak.
25. In examining the land which is the subject of this dispute, the plaintiff's surveyor made no independent determination of where the true corners and lines are located. He was shown certain posts and trees by the plaintiff. He did not conduct a survey to determine whether they were boundary markings. The plaintiff has offered no other survey information to show that the lines he claims are true and correct.
26. The boundary lines as claimed by the government and the present location of some streams in the property are inconsistent with some of the distances...
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