Switzerland Company v. Udall

• Decision Date: 17 January 1964
• Docket Number: Civ. No. 2138.
• Citation: 225 F. Supp. 812
• Court: U.S. District Court — Western District of North Carolina
• Parties: SWITZERLAND COMPANY, a Corporation and Joseph H. Walker, Plaintiffs, v. Stewart L. UDALL, Conrad Wirth, and Sam P. Weems, Defendants.

225 F. Supp. 812

SWITZERLAND COMPANY, a Corporation and Joseph H. Walker, Plaintiffs, v. Stewart L. UDALL, Conrad Wirth, and Sam P. Weems, Defendants.

Civ. No. 2138.

United States District Court W. D. North Carolina, Asheville Division.

January 17, 1964.

Carswell & Justice, Charlotte, N. C., for plaintiffs.

William Medford, U. S. Atty., Robert J. Robinson, Asst. U. S. Atty., Asheville, N. C., for defendants.

WARLICK, District Judge.

This action, filed on April 3, 1963, is brought by the plaintiffs against the defendants as another in a series of lawsuits instituted by them and having to do with the same subject matter, but against different defendants.

Following the hearing of any number of motions and incident rulings, it ultimately reached trial and was heard in the Charlotte Division by agreement, during the first week in November past, when a full hearing was had.

The action primarily seeks to have the defendants show cause why a mandatory injunction should not be entered requiring them to remove certain physical obstacles and barriers erected by them across certain access roads along the Blue Ridge Parkway, and to restore said roads to their original condition; and to permanently enjoin and restrain the defendants from interfering with the use of said roads, or any of the accesses thereto, a recovery being sought under Chapter 85, Sec. 1361 of Title 28, U.S.Code, as enacted by the Congress on October 5, 1962. 76 Stat. 744.

From the pleadings and the voluminous records, together with the exhibits offered and evidences heard at the trial, and in keeping with Rule 52 Title 28, U. S.Code, the following facts are found.

The Plaintiff, Switzerland Company is a corporation organized under the laws of North Carolina, and Joseph H. Walker is a resident and citizen of the State of Florida.

The defendant Stewart L. Udall is Secretary of the Interior of the United States of America and is charged with the administration and control of the Department of the Interior, and its various agencies, among which is the National Park Service. Conrad L. Wirth is the Director of the National Park Service, and as such is charged with the responsibility for the maintenance and administration of all National Parks, including Blue Ridge Parkway. Sam P. Weems is Superintendent of the Blue Ridge Parkway and as such is charged with the maintenance, administration and control of said Parkway and the enforcement of the laws and regulations governing its maintenance and use. That all three are officers, agents and employees of the United States of America.

The defendants Udall and Wirth are officially residents of the District of Columbia but actually reside in the State of Maryland. The defendant Weems is a citizen and resides in the State of Virginia.

The Switzerland Company, following its incorporation in 1909, became the owner of approximately 1200 acres of land, as is shown by the conveyance to it by the late Heriot Clarkson, an attorney of Charlotte, North Carolina, who had previously purchased said lands in varying tracts through the years past. He was the majority and controlling stockholder, and its directing head.

The property as such was held for development and sale as a recreational section for summer vacationers and home owners. It lay atop and along the crest of the Blue Ridge Mountains in Mitchell and McDowell Counties. Roads were developed and accesses were made to various spots; some homes were built and generally its position reflected its promoters' ideas. Obviously it was a highly regarded area. Home sites were sought after and through restrictions the purchasers were selected. An observation tower, erected from native stone, had been built and access to it for public use was laid out. Atop this tower a beautiful panoramic view of the valleys lying below was possible and the grandeur of the mountains could be obtained. The tower was given the name of Kilmichael.

Sometime during the early nineteen thirties the Congress of the United States enacted legislation creating the Blue Ridge Parkway through the states of Virginia and North Carolina, and between the Shenandoah and the Great Smoky Mountains National Parks, and authorized the acquisition of a right of way for said Parkway of sufficient width, but not exceeding a maximum of 200 ft., and setting out therein the manner of the acquisition of said right of way, its administration and maintenance and otherwise providing for its construction, — the routes to be laid out as nearly as possible so as to generally follow the crest of the Blue Ridge Mountains, through these two states, and being about five hundred miles in length.

Incidentally this legislation brought about the fulfillment of a dream entertained by millions through the years and has created one of the great travel areas in Eastern America.

Simply stated, among other things the law as enacted by the Congress required that the Governing Officials of the two states through which it was to be constructed, were to convey to the United States a title in fee simple to the right of way, free and clear of any incumberances.

When the necessary surveys had been made and the routes selected and accepted, and the notices given, the State of North Carolina undertook through the various laws necessary as enacted by its General Assembly to acquire the needed areas by purchase or condemnation. Failing to secure title by agreement and conveyance, and pursuant to Chapter 2 of the Public Laws of North Carolina, Session 1935, as amended by Chapter 42 of the Public Laws of said state, 1937, and by virtue of Chapter 33 of North Carolina General Statutes entitled "Eminent Domain", the State of North Carolina, through its agency, the North Carolina State Highway and Public Works Commission, as the above statutes required, filed the maps and other evidences showing the right of way in the office of the Register of Deeds for Mitchell County and similarly in the office of the Register of Deeds for McDowell County, on the 28th of April, 1937, indicating that this state agency as of the date of such filing had appropriated for use as a federal parkway, the lands described and set out in the maps filed, — thereby condemning 74.47 acres, in fee simple, and approximately 12.12 acres of land, for the purpose of an easement for said Blue Ridge Parkway, together with an additional 1.73 acres known as the "J.W. Cox" land, all of which lands condemned were owned and held by the Switzerland Company.

This project affecting the Switzerland Company and its ownership of said lands as condemned, was designated as Sec. 2-L of the Blue Ridge Parkway, which maps as filed, in the offices of the Register of Deeds for the two counties and used as the medium of condemnation do not include any roads, public or otherwise, as set out thereon.

Thereafter, on March 4, 1938, the State of North Carolina, through its then Governor Clyde R. Hoey, acting for and at the request of its agency, the State Highway and Public Works Commission, executed and delivered to the United States of America, acting on behalf of and at the request of its agency, The National Park Service of the Department of the Interior, a warranty deed in fee simple, wherein among other things conveying to the United States by such deed, the 74.47 acres in fee simple and approximately 12.12 acres which had been taken for the purpose of a scenic easement, including the 1.73 acres of the "J.W. Cox" land, all previously owned by the Switzerland Company. This deed was duly registered.

That subsequently and in the six months period as required by the law, the Switzerland Company filed its petition, having failed to agree with the State of North Carolina as to the value of the land so taken by condemnation, and set out that it had suffered a loss through the value of the land taken and the damage to the remainder of the land by such taking, in the sum of $50,000. An answer was thereupon filed by the defendant, the North Carolina State Highway and Public Works Commission, in which it sets up various defenses as was shown therein.

Various required steps were taken, commissioners were appointed, and a study of the premises made and a report filed by such appraisers. An appeal was thereafter taken to the Findings made and filed and the action was thereupon set down for trial on its merits in the Superior Court of Mitchell County.

The cause was heard at the March 1939 term of the Superior Court of such county, at which hearing I presided, for that at such time I was a Judge of the Superior Court of North Carolina. Now, a quarter of a century later, the cause comes back to me for an additional determination as a District Judge of the United States.

One issue was submitted to the jury, in words as follows: "1. What sum, if any, is petitioner entitled to recover of the defendant for the appropriation of and damage to lands of the petitioner described in the petition, over and above all general and special benefits accruing to petitioner's lands by reason of the construction of the parkway?"

After a trial lasting one week, in which four night sessions became necessary, the jury selected to try the cause and coming as it did from a county other than Mitchell, answered the issue: $25,000.00."

The defendant, the North Carolina State Highway and Public Works Commission, perfected its appeal to the Supreme Court of North Carolina where the trial below was affirmed. Switzerland Co. v. North Carolina State Highway Commission, 216 N.C. 450-462, 5 S.E.2d 327.

At such hearing in the Superior Court Mr. Heriot Clarkson, who had long previous to the time of the trial become a Justice of the Supreme Court of North Carolina, and who was yet majority stockholder and an officer in the Switzerland Company, testified at considerable length, and gave his opinion as to the damage suffered and sustained by the Switzerland Company by the taking of the lands conveyed to the United States. Among other...