Johnson v. United States

Decision Date20 June 1973
Docket NumberNo. 439-69.,439-69.
Citation479 F.2d 1383
PartiesLloyd K. JOHNSON and Marion Johnson v. The UNITED STATES.
CourtU.S. Claims Court

David P. Sullivan, Duluth, Minn., attorney of record, for plaintiffs. Robert W. Boyd, Duluth, Minn., of counsel.

William M. Cohen, Washington, D. C., with whom was Asst. Atty. Gen., Wallace H. Johnson, for defendant. John J. Cain, Washington, D. C., of counsel.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KUNZIG and BENNETT, Judges.

OPINION

PER CURIAM :

This case comes before the court on defendant's motion, filed May 8, 1973, in accordance with Rule 141(b), requesting that the court adopt the recommended decision filed March 13, 1973, by Trial Commissioner Franklin M. Stone pursuant to Rule 134(h) as the basis for its judgment in this case. Upon consideration thereof, and without oral argument, since the court agrees with the decision, as hereinafter set forth,* it hereby grants defendant's motion of May 8, 1973, and affirms and adopts the decision as the basis for its judgment in this case. Therefore, plaintiffs are not entitled to recover and their petition is dismissed.

OPINION OF COMMISSIONER

STONE, Commissioner:

Plaintiffs, who are husband and wife, brought this action pursuant to the Fifth Amendment and the Tucker Act, 28 U.S.C. §§ 1346(a)(2) and 1491, seeking just compensation in the amount of $175,0001 for the alleged "taking" by defendant of their asserted right of access to a certain tract of land owned by them situated in Cook County, Minnesota. In the interest of brevity, this land (which is more particularly described in finding 3(a), infra) hereinafter will be identified and referred to simply as "Lot 5."

The east and north boundary lines of Lot 5 abut the Pigeon River, which is the meandering International Boundary Line between the United States and Canada in this area ; and the portions of said Lot of primary concern are in the immediate vicinity of the Pigeon River International Border Crossing between these two countries. Lot 5 is bisected by Minnesota State Highway No. 61, also designated and known as U.S. Highway No. 61 (hereinafter referred to as "U.S. 61"), which is constructed on a highway right-of-way easement held by the State of Minnesota (State), that extends through and across said Lot from the south in a northeasterly direction.

The alleged taking commenced in June 1966 when defendant, as a part of new United States Customs Inspection Facilities constructed, operated and maintained by the Government, installed chain link fences within the State's right-of-way, which extend from the United States' side of the bridge at the above-mentioned border crossing along both sides of said U.S. 61 to terminal points located some distance short of the west boundary line of Lot 5.

Although plaintiffs' petition alleges a taking of only Lot 5, it is essential to a clear understanding of the discussion that follows to know and keep in mind the fact that plaintiffs own another tract of land (more particularly described in finding 3(c), infra), hereinafter identified and referred to in short form as Lot 2, which is located contiguous to the west boundary line of Lot 5 ; and that the State's aforementioned highway right-of-way and U.S. 61 built thereon also extend clear across Lot 2. It will be apparent from the foregoing that portions of Lots 2 and 5 are located on both the north and south sides of U.S. 61 and front on the right-of-way.

Plaintiffs contend that the alleged taking by defendant of their asserted right of access to Lot 5 substantially impairs the commercial development, and reduces the value, of not only said Lot and Lot 2 but also a total all together of approximately 12,000 acres of land owned by them situated in the United States and Canada in various areas within a 15-mile radius of the Pigeon River International Border Crossing. Of this total acreage, plaintiffs assert that approximately 1,200 to as much as 1,500 acres thereof are directly involved. However, the testimony and documentary evidence in the record considered as a whole indicate that in addition to Lots 2 and 5, the other lands owned by plaintiffs, which they seriously feel are affected to a substantial degree, include a tract of land identified as Lot 4, which lies south of, and is contiguous to, Lot 5 ; Lot 3 which lies in a northwesterly direction from, and is contiguous to, Lot 2 ; and an unspecified number of acres of other lands located north of Lots 2 and 3 in the vicinity of the Pigeon River.2

In my opinion, there has been no compensable taking of any of plaintiffs' land or private property rights by defendant and they are not entitled to recover.

Plaintiffs admittedly made arrangements for the purchase of Lots 2, 3, and 5 sometime in 1938 but did not obtain delivery of the deeds thereto until May 1942. At that time there were no roads through or to the lands now in controversy, and the nearest road was "old U.S. 61" which crossed the Pigeon River into Canada at a point approximately 7 miles upstream from the present location of the new U.S. 61. Since 1934, however, the Commissioner of the Minnesota State Highway Department and authorized State officials had proposed that the then existing U.S. 61 should be rerouted as now located. The highway relocation proposal was the subject of considerable controversy engendered by conservation groups, and studies in regard to the project were made by various representatives of the United States Government and the State of Minnesota, over an extended period of time before it was officially approved and authorized. As a result, it was not possible for contracts for construction of the new highway to be let and the roadwork started until 1958. Prior to that time, the State had acquired a necessary highway right-of-way easement from plaintiffs by condemnation.3

During 1958 an official of the General Services Administration (GSA) contacted plaintiff Lloyd Johnson to negotiate for the purchase of portions of plaintiffs' lands, including shoreline land areas within Lot 5 and other sites therein, for use in connection with the planned new Customs Inspection Facilities and the construction of several houses to be occupied by Government employees assigned to duty at said facilities. Mr. Johnson indicated his lack of interest in any such sales of plaintiffs' lands in stating that he intended to hold for commercial development, the property desired by the United States Government. However, at the same time Mr. Johnson offered to give the Government access and other rights to the frontage of Lot 5 located on both sides of U.S. 61 within the first 300 feet closest to the Pigeon River, i. e., the east border of said property, provided the Government agreed that proposed new U.S. Customs Facilities would be built within this 300 feet. This offer was not accepted by the Government, and all other negotiations for portions of plaintiffs' property were dropped.

In April 1959 the State of Minnesota filed a petition in the State District Court initiating a condemnation action against plaintiffs to obtain title in fee simple absolute and certain additional rights of access to other portions of the State's aforementioned right-of-way land involved herein, owned in fee simple by plaintiffs, for trunk highway purposes. In October 1960 the State dismissed and discontinued these condemnation proceedings for reasons not disclosed in the record, with the result that there was no taking of any of plaintiffs' remaining property rights by the State in said action.

Construction of new U.S. 61 was finally completed in November 1963 and it was opened to the general public at that time. In the meantime, a temporary Customs and Immigration station was set up on a site located off on one side of this highway at a point approximately one-half mile from the new border bridge crossing over the Pigeon River, for use until a permanent facility could be established.

In March 1965 the United States commenced condemnation proceedings for three small parcels of land lying entirely within the bounds of the State of Minnesota's highway right-of-way easement, for use in connection with the establishment of permanent Customs Inspection and Immigration Facilities. Plaintiff Lloyd Johnson filed an answer in said proceedings alleging, inter alia, that the plans for construction of the facilities also involved denial of his right of access, and praying that the United States be required to include in said proceedings the condemnation of such additional property rights which the Government allegedly contemplated taking. Johnson's claim was dismissed as being prematurely raised in the opinion of the court in the case of Certain Lands in County of Cook, State of Minnesota, supra. Thus, neither the State's dismissed 1959 condemnation action nor the United States' 1965 condemnation action determined the extent of plaintiffs' right of access to U.S. 61 or their right to compensation, if any, for the alleged taking of said rights. The three small parcels of land were duly condemned by the United States, these being the only portions of land involved herein in which the United States holds title.

The United States, acting through the GSA, applied to and received from the State of Minnesota, a permit dated June 10, 1966, approved and issued by the State's Commissioner, Department of Highways, to construct, operate, and maintain United States Customs Inspection Facilities on the State's right-of-way near the Pigeon River Border Crossing.4 Included in this permit, inter alia, was the right to place and maintain fences and related facilities within the State's right-of-way on both sides of U.S. 61, as appurtenances to said customs facilities. Incident to the construction of said facilities in accordance with State approved plans and specifications, as changed in some instances at the direction of the State, chain link fences were duly installed by defendant along...

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