U.S. v. 101.88 Acres of Land, More or Less, Situated in St. Mary Parish, State of La.

• Citation: 616 F.2d 762
• Decision Date: 05 May 1980
• Docket Number: No. 77-2768,77-2768
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 101.88 ACRES OF LAND, MORE OR LESS, SITUATED IN ST. MARY PARISH, STATE OF LOUISIANA, and John M. Singleton et al., and unknown owners, Defendants, Avoca, Incorporated, a Louisiana Corporation, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 762

616 F.2d 762

UNITED STATES of America, Plaintiff-Appellee, v. 101.88 ACRES OF LAND, MORE OR LESS, SITUATED IN ST. MARY

PARISH, STATE OF LOUISIANA, and John M. Singleton

et al., and unknown owners, Defendants,

Avoca, Incorporated, a Louisiana Corporation, Defendant-Appellant.

No. 77-2768.

United States Court of Appeals, Fifth Circuit.

May 5, 1980.

John T. Nesser, III, New Orleans, La., for defendant-appellant.

Martin Green, James W. Moorman, Asst. Attys. Gen., Peter R. Steenland, Jr., Carl Strass, Attys., Dept. of Justice, Washington, D. C., Edward Shaheen, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, TJOFLAT and REAVLEY, Circuit Judges.

WISDOM, Circuit Judge:

This appeal concerns the claim of a landowner for damages in a condemnation proceeding for the government's use of lands contiguous to those condemned.

On February 1, 1977, the United States filed a complaint in condemnation and a declaration of taking covering certain lands in the Atchafalaya River and in Bayou Chene, Bayou Boeuf, and Bayou Black. The taking was authorized by P.L. 90-483, August 17, 1968, 82 Stat. 731, as amended by P.L. 93-251, March 3, 1974, 88 Stat. 28. Funds for the improvements were allocated by P.L. 94-355, July 12, 1976, 90 Stat. 891. Thirty-one tracts of land were condemned, all of them ridges rising from the Atchafalaya River or a bayou. Notice of condemnation was served on more than 200 persons and organizations believed to have an interest in the condemned lands.

Avoca, Incorporated, answered the complaint, claiming ownership of 29 of the 31 tracts. The answer alleged that the government's complaint was inaccurate, because it relied on an incorrect ordinary high water line to delineate the taking. The answer is in the nature of a counterclaim. Avoca alleged that the government was taking certain land without paying for it. The land in question, Avoca Island, was used to raise crops until 1927, when an exceptionally high flood broke through the levees around the island and inundated it. The levees have never been reconstructed and currently the main body of Avoca Island that is above water is surrounded by water and "island-like" portions of the levee remnants. Essentially, Avoca claims that the water which flooded part of the island is not navigable and that the property now submerged by the 1927 flood water is not subject to a navigation servitude in favor of the United States.

The government seeks to condemn only the levee remnants above the ordinary level of the water that surrounds them. The government project maps show that certain overflowed lands between the levee remnants and the main body of the island are designated to hold dredge spoil from the navigation improvements project. Avoca argues that the government will use this land, knows it will use it, and contends it should be allowed compensation for the submerged land that the government will utilize. Unless this claim is allowed Avoca will be forced to seek compensation for the submerged areas in a separate proceeding in another court. The United States contends that the submerged land is subject to a navigation servitude and hence that it may use it without payment. In any case, the government contends, Avoca cannot force the district court to redraw the boundaries of an accurate and otherwise valid taking.

In response to Avoca's objection to the use of the ordinary high water line to describe the taking, the government filed an amended complaint. It substituted a description in courses and distances of all the tracts of land listed in its original complaint. In response to Avoca's objection that the government was taking more than it had described in the condemnation declaration, the government filed a motion to strike. The motion requested that any claim be struck from the answer that sought compensation for land not condemned.

The district court granted the government's motion. The court reasoned:

(I)t is highly questionable whether this Court has jurisdiction to expand the issues in this condemnation proceeding to determine the navigability of the overflow waters and defendant's right to compensation for the government use of the submerged land referred to in project maps attached to plaintiff's petition. If jurisdiction does exist, I perceive no advantage, from the standpoint of judicial economy, which would accrue by injecting into this suit a separate, complex issue of navigability of the flood waters.

Avoca appeals from the grant of the government's motion.

I.

We must first ascertain whether we have appellate jurisdiction. Aside from a few narrow exceptions, appeals lie only from "final decisions" of district courts. 28 U.S.C. § 1291. The ruling on the government's motion was not a final decision. A district court, however, may certify issues for appeal before final decisions, under Fed.R.Civ.P. 54(b), when there is no just reason for delay, or under 28 U.S.C. § 1292(b), when there is a controlling, significant, but undecided question of law. In the present case, there was no certification. Because the ruling was neither certified for appeal nor a final decision, the appeal will lie only if it is within a class of exceptions to the final decision rule.

The relevant exception was cut in Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and embroidered in Gillespie v. U. S. Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199. It concerns "collateral" orders, and embraces "that small class (of interlocutory orders) which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated". Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528.

Interlocutory orders are not lightly considered within the Cohen ambit. ¹ In In re Nissan Motor Corp. Antitrust Litigation, 5 Cir. 1977, 552 F.2d 1088, we noted that for an interlocutory order to be a member of the class of exceptions, "(1) the substance of (the order) must be independent and easily separable from the substance of other claims, (2) at least part of the question of collateralness is determined by the need to secure prompt review in order to protect important interests of any party, and (3) the finality issue is to be examined in the light of practical, rather than narrowly technical, considerations". Id. at 1094-95 (quoting Diaz v. Southern Drilling Co., 5 Cir. 1970, 427 F.2d 1118, 1123, cert. denied, 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115).

Applying this three-part test, we take jurisdiction under Cohen. The first requirement is that the order be "independent and easily separable from the substance of other claims". The core contention in the part of Avoca's answer that the district court struck was that its claim for compensation was triable in the condemnation proceeding. Avoca's argument is essentially a procedural objection to the conduct of the case: the government by its pleadings ought not to be able to bifurcate the determination of the compensation. This issue is "easily separable from the substance of other claims". It is not a claim on the merits, but rather a claim about which court should hear the merits. It raises a distinct question that can be decided without affecting the determination of compensation for the lands described in the declaration. It is therefore collateral. ²

The second requirement of Cohen is that "at least part of the question of collateralness is determined by the need to secure prompt review in order to protect important interests of any party". In this case, prompt review allows both the final determination of Avoca's right to a jury trial concerning compensation for Avoca Island, and the protection of Avoca's interest in the most compendious and least costly resolution of its claims. Avoca will have the right to a jury determination if it can raise its claims in the condemnation proceeding. It will not have such a right if forced to seek compensation in a separate proceeding under 29 U.S.C. § 1346(a)(2), or in the Court of Claims under 28 U.S.C. § 1491. It would be well to decide this issue now. For if we refuse to permit review until the entry of a "final decision" by the district court, and then on appeal decide that Avoca's claim could have been raised, we will put Avoca to the perhaps considerable expense and inconvenience of two trials where one would have done.

The third part of the Cohen test requires the application of the maxim that an appellate court should consider an appeal in light of pragmatic rather than technical concerns. This aspect of the test was drawn out in Gillespie v. United States Steel Corp., 1964, 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199. The petitioner in Gillespie sought recovery under the Jones Act and under the Ohio wrongful death statute for unseaworthiness. On the defendant's motion, the court struck from the plaintiff's complaint all references to Ohio statutes or to unseaworthiness. Gillespie appealed the ruling on the motion to the Sixth Circuit. That court, over defendant's objection that there was no "final decision" for § 1291 purposes, determined the merits "as though it were submitted on appeal". The Supreme Court affirmed, pointing out that to hear the appeal would not inconvenience the parties or increase their costs and concluded that the resolution of the question was "fundamental to the further conduct of the case". ³

While we recognize that "in condemnation proceedings appellate review may be had only upon an order or judgment disposing of the whole case . . . " Catlin v. United States, 1945, 324 U.S. 229, 233, 65 S.Ct. 631, 633-34, 89 L.Ed. 911, c...