Lacy v. United States

• Decision Date: 04 November 1954
• Docket Number: No. 14869.,14869.
• Citation: 216 F.2d 223
• Parties: Leonard C. LACY, Appellant, v. UNITED STATES of America, upon the relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

216 F.2d 223 (1954)

Leonard C. LACY, Appellant, v. UNITED STATES of America, upon the relation and for the Use of the TENNESSEE VALLEY AUTHORITY, Appellee.

No. 14869.

United States Court of Appeals Fifth Circuit.

November 4, 1954.

Erle Pettus and Erle Pettus, Jr., Birmingham, Ala., Jackson, Rives, Pettus & Peterson, Birmingham, Ala., of counsel, for appellant.

Charles J. McCarthy, Sol. Tenn. Valley Auth., Joseph C. Swidler, General Counsel, Knoxville, Tenn., R. Lynn Seeber, Knoxville, Tenn., for appellee.

Before BORAH, RIVES and TUTTLE, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a summary judgment entered pursuant to the District Court's opinion reported in 116 F.Supp. 15. The summary judgment required appellant to remove certain structures placed by him under or in close proximity to a transmission line constructed and maintained across his property by the Tennessee Valley Authority (hereinafter called TVA), as agent for the Government, and enjoined their further maintenance within fifty feet of the center line of the transmission line.

On July 10, 1946, appellant's predecessor in title, one J. W. Turner, granted to TVA a written option to purchase a transmission line easement across the property in suit in the name of the United States. So far as the record shows, this option was never recorded. On May 8, 1947, Turner and his wife executed a grant of easement to the United States which was thereafter duly recorded in the office of the Judge of Probate of DeKalb County, Alabama, where the land lay. Meanwhile, however, on October 26, 1946, Turner had conveyed the property to appellant by warranty deed, making no mention of the outstanding option, and that deed had been recorded in said probate office on February 6, 1947. Appellee very properly concedes in brief:

"For purposes of the motion for summary judgment we accept, as we must, the statements in appellant\'s affidavits that when he bought the property he had no knowledge of any rights claimed by appellee and that construction of the transmission line did not begin until several months after the appellee had acquired the property."

In Alabama the appellee's option for the purchase of the easement was entitled to record, Alabama Code 1940, Title 47, Sections 95 and 96. If properly filed for record, the option would have operated as constructive notice to subsequent purchasers. Alabama Code 1940, Title 47, Section 102. Purchasers subsequent to the execution of the option but prior to the time it is filed for record are, of course, not bound by constructive notice. Spradling v. May, 259 Ala. 10, 65 So.2d 494, 499. The option was not filed for record. Appellant denied that he had any actual notice of the option, or that the appellee had entered upon the lands at the time of his purchase, and strongly supported those denials by affidavits of himself and others. Absent actual notice or prior entry of appellee into possession of the easement, appellant, as a bona fide purchaser, took title free from any claim of the appellee under its unrecorded option. Concededly, appellee has paid appellant no compensation for the easement across his property.

Appellee made no offer to do equity. It contends that its entry upon the property, even though wrongful, and the construction of the transmission line thereon constituted a taking of an easement and vested title to such easement in the United States, and in support of that contention it cites Hurley v. Kincaid, 285 U.S. 95, 52 S.Ct. 267, 76 L.Ed. 637; Campbell v. United States, 266 U.S. 368, 45 S.Ct. 115, 69 L.Ed. 328; United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746; and United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206. None of those decisions goes to the length contended for by the appellee. They simply hold that when there has been an actual taking by the Government there arises an implied promise on its part to compensate the property owner. The leading case relied on, Hurley v. Kincaid, supra, 285 U.S. at page 104, 52 S.Ct. at page 269, uses the expression, "* * * the illegality, on complainant's own contention, is confined to the failure to compensate him for the taking * * *." None of the cases goes so far as to hold that, so long as the Government is guilty of that illegality, it may enjoin the property owner from the use of his own lands without itself offering to do equity especially so, when, as in this case, the land owner may be barred from an action to recover compensation by the statute of limitations, 28 U.S.C.A....