Switzerland Company v. Udall

• Citation: 337 F.2d 56
• Decision Date: 30 September 1964
• Docket Number: No. 9385.,9385.
• Parties: SWITZERLAND COMPANY, a corporation, and Joseph H. Walker, Appellants, v. Stewart L. UDALL, Conrad Wirth, and Sam P. Weems, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

337 F.2d 56 (1964)

SWITZERLAND COMPANY, a corporation, and Joseph H. Walker, Appellants, v. Stewart L. UDALL, Conrad Wirth, and Sam P. Weems, Appellees.

No. 9385.

United States Court of Appeals Fourth Circuit.

Argued June 12, 1964.

Decided September 30, 1964.

Guy T. Carswell and James F. Justice, Charlotte, N. C., (Francis O. Clarkson, Jr., Carswell & Justice, and Craighill, Rendleman & Clarkson, Charlotte, N. C., on brief), for appellants.

Richard N. Countiss, Atty., Dept. of Justice, and William Medford, U. S. Atty. (Ramsey Clark, Asst. Atty. Gen., and Roger P. Marquis, Atty., Dept. of Justice, on brief) for appellees.

Before SOBELOFF, Chief Judge, HAYNSWORTH, Circuit Judge, and HEMPHILL, District Judge.

HAYNSWORTH, Circuit Judge.

Concluding that this was an action against the United States to which it had not consented, the District Court dismissed this action brought nominally against three individuals who occupy the offices, respectively, of the Secretary of the Interior, the Director of the National Park Service and the Superintendent of the Blue Ridge Parkway. The relief sought by the plaintiffs is a compulsory removal of obstructions, deliberately erected by employees of the National Park Service, of a road, and the continuing maintenance of access over that road, to the Blue Ridge Parkway. We agree with the District Judge that this action for injunctive relief is not maintainable.

In 1909, the plaintiff, Switzerland Company, acquired a tract of some 1200 acres lying along the crest of the Blue Ridge Mountains, portions of which it proceeded to subdivide and develop as sites for summer residences. Some roads were laid out, and sometime later a stone tower, known as Kilmichael Tower, was constructed to provide residents and visitors with an unobstructed 360° view of the mountain scenery of the area. A road, ten feet in width, was constructed, running between Kilmichael Tower and other portions of Switzerland's lands, and this road came to be known as "The Kilmichael Tower-Wohlford Road." It is this road and access over it to the subsequently constructed Blue Ridge Parkway, which is the subject of controversy.

In 1937, at the request of the United States, the State of North Carolina by condemnation took a fee simple title to a strip of land, 200 feet in width, running through lands of the Switzerland Company. It also took certain related scenic easements. The land and the easements North Carolina thus acquired it conveyed to the United States in 1938. The deed recited that it was a transfer of the grantor's proprietary estate and was not a surrender of state sovereignty. North Carolina expressly reserved the right to maintain "existing public roads" within the area, subject to location changes that might be effected by supplementary agreement. This grant, of course, was for the purpose of construction by the United States of the Blue Ridge Parkway, which was planned ultimately to connect the Shenandoah National Park in Virginia with the Great Smoky Mountains National Park in North Carolina-Tennessee.

Thereafter, the United States proceeded with the construction of a section of the Blue Ridge Parkway within the 200-foot wide strip acquired by it from North Carolina and running through lands of the Switzerland Company and others. As laid out, the Parkway crossed the Kilmichael Tower-Wohlford Road and other roads in the community known as Little Switzerland. When the trial of Switzerland's right to just compensation was held in 1939, this section of the Parkway and certain connections with existing roads were actually under construction. These included connections with the Kilmichael Tower-Wohlford Road on either side of the Parkway.

There was physical access to the Blue Ridge Parkway to and from Kilmichael Tower-Wohlford Road in either direction until 1960. For the latter portion of the period, however, there were in existence license agreements between the Park Service and the Switzerland Company, authorizing the connection as if for a private rather than a public road. In 1960, Switzerland insisted that it was not a gratuitous licensee, that it had an absolute right of access to the Parkway over the road, and it refused to accept a renewal license agreement. The Park Service then erected physical barricades which prevented access to the Parkway from either direction from the Kilmichael Tower-Wohlford Road. This action effectively shut off access to the Tower and to certain lands, in the vicinity of the Tower, owned by the Switzerland Company and the individual plaintiff, Walker. We infer that it is important to the plaintiffs to establish a right of access to the Parkway rather than permissive access to the Parkway in order to develop their lands in that area for residential or commercial use. On the other hand, the National Park Service is intent upon the avoidance of acquisition of rights by prescription when there are no pre-existing rights of access. Thus, this controversy ensued.

The plaintiffs claim that the National Park Service had no right to obstruct the Kilmichael Tower-Wohlford Road because it was a public road at the time of condemnation, reserved by North Carolina in its deed to the United States. The District Court concluded that it was not a public road within the meaning of the deed, and this conclusion is not without support. Its preliminary finding that the road originally was laid out for "public use" is not a contradiction, and it does not require a contrary conclusion. Undoubtedly the Switzerland Company wished to make its Kilmichael Tower accessible to the public, but, during some of this period, at least, it charged admission fees to the Tower. During one winter when the tower was being damaged by vandals, the Switzerland Company, itself, closed the road to avoid further depredation. In a deed to the predecessor in title to the plaintiff, Walker, the Switzerland Company included a reservation of control of the road, and the same reservation for Switzerland's benefit was included in the subsequent deed to Walker.

Whether the public may have acquired some interest in the road, however, is not determinative of the plaintiffs' factual contention. Though it may have been laid out for use by the public and though it may have been used by the public, the question is whether or not it was a public road as that term was used in the reservation in the deed from North Carolina to the United States. That question is not answered by a finding that the public had used the road or that its constructor had intended that the public use it.

The intention of the parties to the deed from North Carolina to the United States is persuasively indicated by a supplemental agreement executed some three months after delivery of the deed. This agreement purports to provide for the location and construction of every crossing of every public road with the Blue Ridge Parkway in the area. It specifically provides for four such crossings in the Little Switzerland community, one of which was to be by a grade separation structure without interchange of traffic, while the other three were to have access roads or were to be crossings at grade. The Kilmichael Tower-Wohlford Road was not mentioned in any way in the supplemental agreement purporting to cover all public roads within the reservation clause of North Carolina's deed. North Carolina never has maintained this road, and, if it had intended to reserve the right of maintenance, the reasonable inference is that the road would have been mentioned in the agreement which purports to be all inclusive of the roads to which the reservation was intended to apply.¹

We have set forth the underlying facts and the substantive contentions of the parties, not for the purpose of reviewing the merits of the ultimate conclusion of the District Judge that the road in question was not a public road within the meaning of the reservation in North Carolina's deed,² but for the purpose of putting the controversy in its context. It is apparent that the plaintiffs are contending, as bounding owners on a public road, that they are entitled to continued access to the Parkway because the United States, in acquiring the fee simple title to the strip of land, acquired no right from North Carolina to close the public roads. On the other hand, it has been the position of the National Park Service that it has a right to close this road, a private road in its view, and, indeed, that under the authorizing statute it has no power to grant more than a terminable, permissive right to use this road within the boundaries of the land the United States owns in fee. If the plaintiffs are granted the relief they seek, of course, the employees of the National Park Service, under the direction of the individual defendants, will be required to remove the obstructions and barricades and provide continued access from the Kilmichael Tower-Wohlford Road to the Blue Ridge Parkway.

It is under these circumstances that we face the preliminary question as to...