U.S. v. 434.00 Acres of Land More or Less, in Camden County, State of Ga., 85-8776

• Decision Date: 27 June 1986
• Docket Number: No. 85-8776,85-8776
• Citation: 792 F.2d 1006
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 434.00 ACRES OF LAND MORE OR LESS, IN the COUNTY OF CAMDEN, STATE OF GEORGIA; and Michael R. Nettles, et al., Defendants, Edward Leroy Cornelly, Jr., Harry B. Mahon, Melodie H. Mahon, Lacy Mahon, and Nancy Mahon, Richard A. Altobellis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1006

792 F.2d 1006

UNITED STATES of America, Plaintiff-Appellee, v. 434.00 ACRES OF LAND MORE OR LESS, IN the COUNTY OF CAMDEN,

STATE OF GEORGIA; and Michael R. Nettles, et al.,

Defendants,

Edward Leroy Cornelly, Jr., Harry B. Mahon, Melodie H.

Mahon, Lacy Mahon, and Nancy Mahon, Richard A.

Altobellis, Defendants-Appellants.

No. 85-8776.

United States Court of Appeals, Eleventh Circuit.

June 27, 1986.

David W. Foerster, Lacy Mahon, Jr., Jacksonville, Fla., for owner of parcel 33.

Edmund A. Booth, Jr., Asst. U.S. Atty., Augusta, Ga., Sarah P. Robinson, Dept. of Justice, Washington, D.C., for plaintiff appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before JOHNSON and ANDERSON, Circuit Judges, and GARZA ^*, Senior Circuit Judge.

JOHNSON, Circuit Judge:

The United States government had earlier secured an easement over parcels of land owned by the appellants. Now the government seeks to take these properties in exchange for just compensation. Under our Constitution private property is, in all cases, held subject to the exigencies of the public good. "The constitutional guarantee of just compensation is not a limitation of the power to take, but only a condition of its exercise." Long Island Water Supply Co. v. Brooklyn, 166 U.S. 685, 689, 17 S.Ct. 718, 720, 41 L.Ed. 1165 (1897). The question posed by this case is whether compensation tendered was just compensation.

I.

Parcel 33, owned by appellant Altobellis, is 57 acres of undeveloped land along the North River in Camden County, Georgia. Parcel 34, owned by appellants Cornelly and the Mahon family, is adjacent to parcel 33 and constitutes 89 undeveloped acres along the same river.

In 1955 the United States Army secured a large block of land near these parcels to be used for the Kings Bay Ammunition Loading Terminal. As part of the plans for this Terminal, the Army secured a restrictive "safety area" easement over portions of these two tracts of land. The easements limited building on or use of the easement area of the fees due to the risk of injury from possible explosions. This conveyance gave to the United States "an easement and right for the establishment, maintenance, operation and use of a safety area, in connection with the Kings Bay Ammunition Loading Terminal" over parcels 33 and 34. The Army also secured identical easements over two parcels directly across New Point Peter Road from parcels 33 and 34. The easement was freely assignable for any purpose to any party at the government's discretion.

In 1978 the Army transferred the Kings Bay Terminal and its accompanying servitudes to the United States Navy for use as a new Trident Submarine Base. The transfer reserved for the Army the right to maintain ammunition outload capability at Kings Bay in the event of war in Europe. In 1980 the Navy was relieved of this reservation; all Army interest in the land and the easements terminated. The new submarine base has set off a land boom in Camden County. The construction of the base necessitated use of the parcels for purposes beyond the scope of the easements--namely the manufacture and storage of torpedoes--and the parcels were condemned in 1983 according to the usual process. Also condemned were the parcels across the road; the government reached an agreement with those owners as to the amount of compensation. ¹

At issue is whether the easements over parcels 33 and 34 had been abandoned due to use of the land for a purpose different than that for which the easements were originally granted. Whether the easements were abandoned would affect the fair market value of the land now being taken and, hence, whether the amount of compensation awarded for the present taking was just.

By the trial judge's own motion a Land Commission was appointed under Fed.R.Civ.P. 71A(h) to take evidence and to fix a fair value for the properties. Upon motion of Altobellis, the court was requested to consider whether the easements on the parcels had been abandoned. The trial court held an evidentiary hearing and determined that the current use of the easement and the original use for which it was granted are the same: "for use in the event of outbreak of war in Europe." The court determined that the easement had not been abandoned and that the owners had not met the high burden required under Georgia law to show abandonment of an express easement.

To conserve resources in the event of reversal on appeal, however, the commission was ordered to make a valuation of the property both if burdened and unburdened by the easement. The commission heard testimony from a government expert and from three experts hired by the appellants. Inevitably they came to different conclusions as to the fair value of the land. The government's expert valued parcel 33, burdened with an easement, at $57,000; Altobellis' two experts valued it at $176,000 and $157,000. The land commission concluded that the fair value of parcel 33 was $57,000 if burdened and $399,000 if unencumbered. The government's expert valued parcel 34 with easement at $71,200, while the Cornelly/Mahon expert valued it at $311,500. The commission found an encumbered value of $89,000 and an unencumbered value of $335,000.

The owners of each parcel filed objections only as to the encumbered value determination. Altobellis claimed that the commission failed to consider the sale value of similar property, with the same easement, across New Point Peter Road, that it failed to consider recent after-the-fact sales, and that it failed to use the proper valuation method for a portion of the land to be used for fill dirt purposes. As to parcel 34, the owners objected to the commission's failure to consider the sales across the road on similar property, and failure to consider an after-the-fact sale.

The trial court overruled the objections and adopted the commission's report as not clearly erroneous, entering final judgment on September 11, 1985. The owners of both tracts appeal.

II.

This case presents two issues: A) whether the trial court erred in finding that the easements had not been abandoned; and B) whether the trial court erred in adopting the land valuation report of the commission.

A.

Whether the easement has been abandoned or has expired is a factual question entrusted to the sound discretion of the trial court. It may be reversed on appeal only if clearly erroneous. Fed.R.Civ.P. 52(a).

The gist of the appellants' argument is that the easements here were granted for a specific purpose--for use by the Army in connection with its ammunition depot. That purpose, they claim, never came into being because the government never developed the depot. The government disputes this, ² but in any event appellants also argue that the easements are no longer being used for the original purpose and hence are no longer valid encumbrances on the properties. Thus just compensation due is the fair market value set for the fee unburdened. Appellants attempt to draw a distinction between the trial court's characterization of the issue as whether the easement has been abandoned generally (which requires a showing of intent) and their characterization that there has been an abandonment of original purpose. When the purpose for which the easement was granted ceased to exist, appellants argue, the easement expired, rather than was abandoned.

The appellants premise their argument on a heavy citation to cases decided by various state courts, and by reference to hornbooks that collect cases, to show that the common law of property prohibits using a restrictive easement for any purpose other than that for which it was explicitly granted. They also show the existence of a common law rule to the effect that when an easement is created to accomplish a specific purpose, and that purpose ceases to exist or to be achievable, the servitude terminates by expiration.

The demonstration of these common law rules is not so much wrong as off the mark. What the appellants have failed to understand is that the cases they cite involve easements granted in the context of private business dealings or where the only governmental interest was sub-national. ³ The holder of the servitude here is the federal government. Congress has provided by statute the only way by which the United States may be divested of a property interest such as an easement: it must be declared to be surplus property available for disposal through sale, lease, transfer or other express act and attended by the usual transfer of title documents. ⁴

Likewise, the Supreme Court has held that the federal government "is not to be deprived of [its property] interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property...." United States v. California, 332 U.S. 19, 40, 67 S.Ct. 1658, 1669, 91 L.Ed. 1889 (1947); see also Higginson v. United States, 384 F.2d 504, 507 (6th Cir.1967) (per curiam ) ("A subsequent abandonment of the original purpose for which land was acquired [by the federal government] does not affect the validity of the condemnation.... Also, title to property which is vested in the United States government cannot be returned to the original land owners without Congressional authorization."), cert. denied, 390 U.S. 947, 88 S.Ct. 1034, 19 L.Ed.2d 1137 (1968). The statute and case law simply lift this matter out of the realm of the common law and render the cases appellants cite irrelevant. ⁵

The argument fails for a second reason. We assume, arguendo, that the government is bound by the common law of property and that an easement granted for a specific purpose expires when that purpose can no longer be achieved. While the easement here was granted for the purpose of a safety area around an ammunition depot, that statement of purpose was qualified by language that gave the government a free and absolute right to assign that easement in perpetuity "to any individual,...