Karlson v. United States

• Decision Date: 03 March 1936
• Docket Number: No. 10369-10371.,10369-10371.
• Citation: 82 F.2d 330
• Parties: KARLSON et al. v. UNITED STATES. OSEID v. SAME. McCAGHERTY v. SAME.
• Court: U.S. Court of Appeals — Eighth Circuit

82 F.2d 330 (1936)

KARLSON et al. v. UNITED STATES.

OSEID v. SAME.

McCAGHERTY v. SAME.

Nos. 10369-10371.

Circuit Court of Appeals, Eighth Circuit.

March 3, 1936.

I. K. Lewis, of Duluth, Minn. (John H. Hougen, of Minneapolis, Minn., and C. E. Berkman, of Chisholm, Minn., on the brief), for appellants.

Donald D. Harries, of Duluth, Minn. (John E. Read, K. C. of the Nova Scotian Bar, Legal Adviser, Department of External Affairs, and T. L. Cory, of the Ontario Bar, Department of the Interior, both of Ottawa, Canada, on the brief), for Government of Canada (appearing pursuant to provisions of Protocol Accompanying Convention to Regulate Level of Lake of the Woods).

C. U. Landrum, Sp. Asst. U. S. Atty., of Detroit Lakes, Minn. (George F. Sullivan, U. S. Atty., of St. Paul, Minn., and D. N. Lindeman, Atty., U. S. War Department, of Duluth, Minn., on the brief), for appellee.

Before STONE, SANBORN, and THOMAS, Circuit Judges.

SANBORN, Circuit Judge.

These are appeals from three judgments entered upon the verdicts of a jury in a condemnation proceeding brought by the United States.

The United States and Canada, in 1925, entered into a Treaty to regulate the water levels of the Lake of the Woods, which lies partly in Canada and partly in the United States. This Treaty (Lake of the Woods Convention, signed February 24, 1925, proclaimed July 17, 1925, 44 Stat. part 3, p. 2108) provided for lake levels higher than those which existed when the lake was in its natural state. Natural levels had not prevailed since 1898, when the first dams were built in the outlets of the lake in Canada, where it flows into the Winnipeg river. The Treaty of 1925 was entered into for the purpose of putting into effect the recommendations made by the International Joint Commission created by the Treaty of 1909 (36 Stat. part 2, p. 2448). That commission, after hearings and extensive study, had recommended a method for the regulation and control of the waters of the lake to provide the most advantageous use of such waters and those flowing into and out of the lake. The final report of the commission was made May 18, 1917. It constituted the basis for the Treaty of 1925. By the terms of this Treaty, a flowage easement was permitted up to elevation 1064 sea-level datum upon all lands bordering on the Lake of the Woods in the United States, and the United States assumed all liability to the owners of such lands for the costs of such easement. (Article VIII of the Treaty.) The government of Canada, on this account, by article X of the Treaty, agreed to pay the United States $275,000, and if this sum was insufficient, to cover the cost of the undertakings assumed by the United States under article VIII of the Treaty, to pay, in addition, one-half of the cost in excess of that sum, if the expenditure was incurred within five years of the coming into force of the Treaty. Congress, in order to carry into effect the provisions of the Treaty of 1925, by an act (May 22, 1926, 44 Stat., part 2, p. 617, amended April 18, 1928, 45 Stat., part. 1, p. 431) directed the Secretary of War to acquire, by purchase or by condemnation, "the flowage easements up to elevation one thousand and sixty-four sea-level datum" (section 1) upon all lands in the state of Minnesota bordering on the Lake of the Woods, Warroad river, and Rainy river; and provided that compensation should be made in accordance with the Constitution of Minnesota, which provides (article 1, § 13): "Private property shall not be taken, destroyed or damaged for public use, without just compensation therefor first paid or secured."

Pursuant to this Act of Congress, the United States brought this condemnation proceeding, in which the appellants herein, among others, were named as respondents. They will be so referred to in this opinion, and the United States will be referred to as "petitioner."

In its original petition, the petitioner, following the language of the act, sought "the perpetual easement, right and privilege" to overflow respondents' lands up to elevation 1064 sea-level datum. The court, in accordance with the Minnesota practice, appointed commissioners to determine compensation, and awards were made by them. Thereafter, by leave of the court, the petitioner amended its petition to show that what it was seeking to acquire was "the full, complete and perpetual right, power and privilege to raise and regulate the levels of the Lake of the Woods in accordance with the provisions of the aforesaid Treaty Treaty of 1925 and in consequence of which to overflow and otherwise affect the lands hereinafter described by such raising and regulation of said waters in accordance with said Treaty, be the consequences thereof to said tracts what they may." The judgment prayed for in the amended petition was that the petitioner "acquire the perpetual easement, right and privilege as against all the respondents and against all persons or parties whomsoever to raise and regulate the levels of the Lake of the Woods in accordance with the provisions of the aforesaid Treaty and in consequence of which to overflow and otherwise affect the lands hereinbefore described by such raising and regulation of said waters in accordance with said Treaty, be the consequences thereof to said tracts what they may."

After the awards of the commissioners had been filed, both the petitioner and the respondents took appeals from such awards to the United States District Court for the District of Minnesota. The cases were consolidated for trial, and the issues were brought on for trial before the court and a jury. The evidence adduced at the trial is not included in the bill of exceptions. It appears from the record that counsel for respondents in their opening statement advised the jury that the principal issue in the case was "the amount of compensation to which respondents were entitled on account of the imposition by petitioner of a perpetual flowage easement on respondents' lands up to elevation 1064 sea-level datum according to the terms of the Treaty herein involved." (Italics ours.)

The record also shows: That there was testimony that respondents' lands were low-lying lands not far from the shore of the lake and were affected by the flowage easement acquired. That it was respondents' contention upon the trial that, since the petitioner had acquired a perpetual flowage easement up to elevation 1064 sea-level datum, they were entitled to the fair market value of their land below elevation 1064 on the date of the acquisition of the flowage easement. That, over objection and exception of the respondents, the petitioner was permitted to show the use made by respondents of their lands lying below elevation 1064 and below elevation 1062.5 (the highest level authorized by the Treaty, although an easement to 1064 was permitted to care for wave and wind action and seepage while the level of the lake was at elevation 1062.5) and down to ordinary high-water mark with the easement imposed thereon. That respondents contended that, since the Treaty permits the level of the lake to reach elevation 1062.5 and to remain there indefinitely, any right which respondents may have to occupy or use their lands below that elevation is permissive and as a matter of law without market value; hence evidence that, with the lake under control, as provided by the Treaty, the lands below elevation 1062.5 had been and could be used was inadmissible. That the petitioner, on the other hand, contended that the acquisition of the easement was in accordance with the Treaty, and that evidence of any beneficial use of which the lands below elevation 1064 were capable with the easement imposed thereon should be considered in estimating damages or compensation. That the court below ruled in favor of the petitioner and received evidence, over objection and exception, that for some periods, while the levels of the Lake of the Woods were under regulation as provided in the Treaty, the level of the lake had not reached elevation 1062.5, but, on the contrary, had been below elevation 1059, and that the respondents had used their lands below elevation 1062.5 during such periods for pasture and hay, and had raised other crops thereon, and, at the time of the trial, they were using some of their lands below elevation 1062.5.

The record further shows that, at the close of the evidence, the respondents requested the court to instruct the jury as follows:

"1. The government has acquired the absolute right to flood respondents' lands up to elevation 1062.5 sea level datum, and the respondents have no right to the use or occupancy of the surface of their respective lands which shall in any way interfere with the government's absolute and permanent right to flood the same up to elevation 1062.5 sea level datum. Accordingly, you are instructed not to consider any use or occupation which respondents might make of their respective lands up to elevation 1062.5 at such times as their said lands may not be flooded up to said elevation, for such use and occupation, if any has been proved by the evidence, will be permissive only, and may not be considered by you as in any way mitigating or reducing the damage or compensation which respondents are entitled to receive on account of the perpetual flowage easement imposed upon their lands."

This instruction the court refused to give. It did give three other instructions which the respondents then requested, and which are as follows:

"2. In determining whether or not any use or occupancy which respondents may make of their respective lands below contour 1064 sea level datum or any other contour or elevations specified by the Treaty has any fair market value, you are instructed that you should take into consideration the frequency with which said lands may be flooded or injuriously affected by water on account of the imposition of said flowage easement, the length of time during which said lands or any part thereof may be...