U.S. v. 194.08 Acres of Land, More or Less, Situated in St. Martin Parish, State of La.

• Decision Date: 09 March 1998
• Docket Number: No. 95-30916,95-30916
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 194.08 ACRES OF LAND, MORE OR LESS, SITUATED IN ST. MARTIN PARISH, STATE OF LOUISIANA, Defendant, Daniel A. Wiltz; and Juanita Ellis Wiltz, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1025

135 F.3d 1025

40 Fed.R.Serv.3d 74

UNITED STATES of America, Plaintiff-Appellee, v. 194.08 ACRES OF LAND, MORE OR LESS, SITUATED IN ST. MARTIN

PARISH, STATE OF LOUISIANA, Defendant,

Daniel A. Wiltz; and Juanita Ellis Wiltz, Defendants-Appellants.

No. 95-30916.

United States Court of Appeals, Fifth Circuit.

March 9, 1998.

William Brandt Lazarus, Washington, DC, Eric Williams, Robert L. Klarquist, U.S. Dept. of Justice, Env. & Natural Resources Div., General Litigation Section, Washington, DC, Carl Edward Perry, INS, Oakdale, LA, for Plaintiff-Appellee.

Ronald J. Judice, Roy, Bivens, Judice & Henke, Lafayette, LA, for Defendants-Appellants.

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

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Daniel and Juanita Wiltz (the "Wiltzes") appeal the district court's grant of summary judgment in favor of the United States. The district court invalidated the conveyance of a deer hunting servitude from a previous owner to the Wiltzes because the government had already condemned the property that the servitude burdened and held that the government had the authority to condemn the servitude. We affirm.

I

This appeal arises out of the United States' attempts to acquire land for the Atchafalaya Basin Floodway System in Louisiana (the "Project"). Congressional authorization for the Project dates back to 1928, but in 1985 and 1986, Congress greatly expanded the Project's scope by authorizing the acquisition of 23,000 acres for public access and for sporting and recreational activities, including hunting, with the proviso that the land be acquired from "willing sellers." Accordingly the U.S. Army Corps of Engineers began to contact property owners in areas where it desired to acquire land for the Project to determine if they would be willing to sell their land.

In August 1989, the Wiltzes received a letter from the Corps of Engineers inquiring whether they would be willing to sell part of their property in St. Martin Parish, Louisiana, for use in the Project. This property consisted of tract 167, a 94.08-acre tract, and tract 206, a 100-acre tract. Both tracts were burdened by a deer hunting servitude that Texaco had reserved and recorded when it sold the tracts to a previous owner (the "deer hunting servitude").

The letter from the Corps of Engineers explained that the United States desired to purchase 23,000 acres in fee simple, excluding minerals, from "willing sellers." The letter also stated that if the Wiltzes were willing to sell their tracts of land but were unable to agree with the government on the price to be paid, they could agree to have a court determine a fair price in a condemnation action. If the Wiltzes were unwilling to sell their property, the letter stated that the government would proceed to condemn easements for flowage, developmental control, and environmental protection.

The Wiltzes consented to sell their property, but they were unable to agree on a price with the United States. Accordingly, the Wiltzes signed two "Agreement[s] to Sell and Set Compensation in Court" for tracts 167 and 206 (the "Agreements"). Each Agreement recited that the Wiltzes owned the tracts and were "willing sellers" of fee simple title, excluding minerals and existing easements for public roads and highways, public utilities, railroads, pipelines, and the Texaco deer hunting servitude.

Pursuant to these Agreements, the United States instituted condemnation proceedings on June 14, 1991, in order to have a court determine a fair price for both tracts. The government deposited estimated just compensation with the court and filed a Declaration of Taking that contained a broad description of the estate taken. The government joined numerous defendants, including the Wiltzes, Texaceaux Hunting Club, Inc., Continental Resources Co., Southern Natural Gas Co., and all unknown owners, heirs, legatees and assigns. Due to a faulty title search on the property, however, the government failed to join Texaco as a defendant, even though Texaco had clearly recorded the deer hunting servitude. As a result, when the government served the named defendants by mail in August 1991, it failed to serve Texaco, although it did publish a lis pendens notice in a local newspaper.

The Wiltzes thereafter decided that they did not want to sell their property and attempted to withdraw their acceptance of the Agreements. Protracted litigation ensued, and ultimately, the Wiltzes and the United States reached a settlement for the government's acquisition of the tracts on March 2, 1994, under which the Wiltzes received all of the estimated just compensation previously deposited with the court and 94.4 percent of the accrued interest. This settlement, which the district court duly accepted, expressly decreed that no value had been included for the deer hunting servitude.

Still angry that they had not been allowed to withdraw their acceptance of the Agreements, the Wiltzes continued their challenge to the government's taking of their land in a roundabout method: On March 30, 1994, they purchased the deer hunting servitude from Texaco, and on April 28, 1994, they filed another answer to the government's condemnation action. ¹ The Wiltzes alleged that because the government had failed to join Texaco in the condemnation action, the deer hunting servitude had not been extinguished by the Declaration of Taking. The Wiltzes also claimed that neither they nor Texaco had consented to sell the deer hunting servitude and, accordingly, argued that the government lacked the authority to condemn the servitude. The district court granted the government's motion to belatedly join Texaco as a defendant and the Wiltzes' motion to substitute themselves as defendants in place of Texaco. The government admitted that the deer hunting servitude existed prior to its institution of the condemnation action and that Texaco possessed it at the time of condemnation. The government also admitted that Texaco was a necessary party to the complete adjudication of the taking and served Texaco with a notice of condemnation in May 1994.

The Wiltzes and the government submitted cross-motions for summary judgment, with the Wiltzes arguing that the United States lacked the authority to condemn the deer hunting servitude and the United States arguing that the servitude had been condemned in 1991 and that Texaco's transfer of the servitude to the Wiltzes was, accordingly, ineffective. The district court referred the summary judgment motions to a special master, who filed a report recommending that the government's motion be granted. The special master found that the servitude was within the scope of the estate that the government condemned in 1991, and that the "willing seller" requirement did not extend to servitude holders. As such, the special master found that Texaco's conveyance of the servitude to the Wiltzes was ineffective because the servitude had been extinguished and reduced to a claim for just compensation when the United States filed the Declaration of Taking. The district court adopted the special master's report and granted the government's motion. The Wiltzes' timely appeal followed.

II

We review the district court's grant of summary judgment in favor of the government de novo. See Armstrong v. City of Dallas, 997 F.2d 62, 65 (5th Cir.1993). Both parties agree that summary judgment is an appropriate method to resolve this case and that there are no genuine issues of material fact. They differ only in whose favor summary judgment should be granted.

A

We first examine whether the scope of the estate that the government condemned, as set forth in the 1991 Declaration of Taking, included the deer hunting servitude. ² The default rule in eminent domain is that a taking in fee simple establishes a new title and extinguishes all existing possessory and ownership interests not specifically excepted. See A.W. Duckett & Co. v. United States, 266 U.S. 149, 151, 45 S.Ct. 38, 38, 69 L.Ed. 216 (1924). Thus, where the government takes fee simple title, it takes all interests, even those it does not specify; where the government takes less than fee simple title, it must expressly indicate what lesser interests are excluded. See Burkhart v. United States, 227 F.2d 659, 661 (9th Cir.1955) (holding that a Declaration of Taking "wipes out all interests" in property that are not specifically excluded). When a Declaration of Taking is ambiguous, we construe the scope of the estate taken in a Declaration of Taking in light of the purposes for which the estate is sought to be taken, the language of the entire declaration, and the surrounding circumstances. See United States v. Pinson, 331 F.2d 759, 760-61 (5th Cir.1964).

We first note that the Declaration of Taking stated that the United States was taking fee simple title, less certain excepted interests. Comparison of the narrower language used to describe the estate taken in the Agreements and the broader language used in the Declaration of Taking as well as the prominent mention of the Texaco deer hunting servitude in the Agreements suggests that the government intended the Declaration of Taking to be all-inclusive, save for the specifically excepted interests. ³ Pursuant to F ED. R. C IV. P. 71A, the government joined all other interest holders (with the exception of Texaco) when it filed the Declaration of Taking, while it neither consulted with nor obtained the consent of these other interest holders with regard to the Agreements, suggesting again that the government intended the Declaration of Taking to include all interests not specifically excepted. Moreover, the government was seeking to acquire land for public access and sporting and recreational use, including hunting. It is difficult to imagine that the government would acquire land for hunting use, inter alia, while at the...