U.S. v. Chesapeake & Potamac Tel. Co., 13570.

• Decision Date: 14 July 1980
• Docket Number: No. 79-499.,No. 14206.,No. 13570.,13570.,14206.,79-499.
• Court: D.C. Court of Appeals
• Parties: UNITED STATES et al., Appellants, v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY et al., Appellees.

418 A.2d 114

UNITED STATES et al., Appellants, v. CHESAPEAKE & POTOMAC TELEPHONE COMPANY et al., Appellees.

No. 13570.

No. 14206.

No. 79-499.

District of Columbia Court of Appeals.

Argued October 23, 1979.

Decided July 14, 1980.

Carl Strass, Washington, D. C., a member of the bar of New York, pro hac vice, with whom James W. Moorman, Asst. Atty. Gen., Dept. of Justice, Dirk D. Snell and William E. Hill, Washington, D. C., were on the brief, for appellants. John J. Zimmerman, Washington, D. C., also entered an appearance for appellant, United States.

Whayne S. Quin, Washington, D. C., with whom James A. Stenger, Washington, D. C., was on the brief, for appellees.

Before NEWMAN, Chief Judge, and KERN and HARRIS, Associate Judges.

KERN, Associate Judge:

Appellees own various parcels of realty in downtown Washington abutting certain alleys.¹ They filed applications with the District of Columbia Council (Council) to close these alleys on the ground they were "useless or unnecessary." D.C. Code 1973, § 7-401.² Appellees' applications for alleyclosing were routinely processed through the appropriate District of Columbia agencies and departments and ultimately approved by the Council, subject to a proviso which is the bone of contention in this litigation. The Council conditioned closing the alleys in question upon payment by appellees of the fair market value of the area of land contained in each alley, taking such action because it believed title to the alleys was in the United States.

Appellees filed complaints against the Council and the District of Columbia in the trial court seeking (1) a declaratory judgment that the Council had no right to condition the alley-closings upon payment of such charge, and (2) a mandatory injunction directing the return of the moneys charged which each appellee, pursuant to an agreement executed with the Corporation Counsel, had deposited in escrow pending judicial determination.

The trial court, after taking testimony and hearing argument on cross-motions for summary judgment, entered judgment for appellees.³ It concluded, in a comprehensive opinion, 106 Wash.Law. Rep. No. 104, pp. 1065, 1068-75, June 13, 1978, that title to the alleys was not and never had been in the United States, but rather in the predecessors in title to the appellees. Therefore, title to the land in the alleys reverted to appellees under the terms of the statute. See note 2, supra. The Council could not charge for the alley closings and appellees were entitled to the return of their money being held in escrow.

The trial court, in rendering its ruling, also concluded the United States was not an indispensable party within the scope of Super.Ct.Civ.R. 19(b). Hence, appellees' complaints were not subject to dismissal for their failure to have named the United States as a party defendant. The trial court rested this conclusion on the grounds that (1) the complaints challenged the authority of the Council to impose a payment as a condition precedent to the alley closings and sought return of money being held in escrow, rather than recovery of money from the United States Treasury;⁴ and (2) "the United States is fully aware of this litigation and has actively participated in every phase of this litigation and could have intervened as a party if it had desired to do so."⁵

The Council and the District of Columbia noted a timely appeal from the summary judgment in favor of appellees, but then declined to proceed with their appeal. Whereupon the United States, pursuant to Super.Ct.Civ.R. 24, moved to intervene as a defendant in the case although judgment had already been entered. The trial court denied this motion. The United States noted an appeal from the trial court's ruling on its post-trial intervention motion, and also filed a timely appeal on the merits.⁶

Thus, we are confronted with two issues: whether the trial court, after trial and judgment, properly refused intervention by the United States as a party to the action, and whether the United States may proceed in this court with an appeal on the merits challenging the trial court's decision in favor of appellees.

The court's denial of the post-trial motion to intervene as a party was correct, given the adequacy of representation of the United States' interests at trial by the District, aided by federal attorneys. See Calvin-Humphrey v. District of Columbia, D.C. App., 340 A.2d 795 (1975).

The posture of the United States under the particular circumstances here, viz., the District and the Council having abandoned their appeal, persuades this court to allow the United States to proceed on the merits. Therefore, we grant its motion for leave to intervene, filed with this court after oral argument, for the purpose of appealing the judgment on the merits. After consideration of the arguments by the United States we uphold the trial court's judgment in favor of appellees.

We note, in permitting the United States to proceed with its appeal on the merits, that one who was not a party to the action in the trial court has been allowed to intervene, post-judgment, for the purpose of taking an appeal under certain circumstances: where the proposed intervenor has an "appealable interest," acts promptly after the final judgment, and by its entry into the case on appeal will cause minimal prejudice to the parties already in the case. See, e.g., United Airlines v. McDonald, 432 U.S. 385, 395 n. 16, 97 S.Ct. 2464, 2470 n. 16, 53 L.Ed.2d 423 (1976); United States Casualty Co. v. Taylor, 64 F.2d 521 (4th Cir. 1933). Such intervention has been granted, even when the proposed appellant has had its interests adequately represented in the trial court through its own efforts.

In determining whether the proposed intervenor has an appealable interest, courts have utilized traditional standing principles; the would-be intervenor must be a person "aggrieved" by the decision it seeks to challenge. United States v. Imperial Irrigation District, 559 F.2d 509, 521 (9th Cir. 1977).⁷ Since the District of Columbia has declined to pursue its appeal of the judgment concluding these alleys were not owned by the United States, and since the United States is entitled by statute to the proceeds from the District's closing of any alleys owned by the United States, see note 4, supra, we conclude the United States is "aggrieved" by the decision.⁸ See Smuck v. Hobson, 132 U.S.App.D.C. 372, 377, 408 F.2d 175, 182 (1969); Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 144, 144 F.2d 505, 508, cert. denied, 323 U.S. 777, 65 S.Ct. 190, 89 L.Ed. 621 (1944). We note that its appeal on the merits was filed promptly after final judgment and its participation in this case on appeal cannot be said to prejudice appellees in light of their position that they do not oppose such participation. (Appellees' brief at 13, 31.) Accordingly, we allow the United States to intervene for the purpose of this appeal.

Turning now to the merits, the United States argues first that the instant "case appears to be a dispute over title to land. Litigation over title to land in which the United States claims an interest can take place only in a federal district court." (Brief at 9.) It urges that this case is really an action to quiet title to alleys in which the United States claims an interest "[so] . . . [s]uch an action cannot be entertained in the Superior Court." (Brief at 12.) A reading of the complaints makes it clear, however, that appellees were not bringing an action to establish title to land,⁹ but were seeking relief from action by the Council which they alleged was beyond the Council's authority. Appellees sought, in addition, the return of the moneys they had been required to pay into escrow in order to take advantage of the Council's favorable ruling on their applications for closure of the alleys abutting their lots.

We view this action, therefore, not as a suit to quiet title, which according to the government's argument belongs in a federal district court, but as an action challenging the Council's action under the Street Readjustment Act. We note that the United States District Court of the District of Columbia reached the same conclusion in a case similar to the instant litigation. Thus, in Oliver T. Carr, Jr. v. District of Columbia, (No. 77,445, January 12, 1979), the court rejected the argument that "a 1973 challenge to the authority of the District of Columbia to charge fair market value for the alley space closed" was "in reality a quiet title action pursuant to 28 U.S.C. § 1346(f)."¹⁰

The United States next argues that the trial court's conclusion that "title to the contested alleys was never in the United States" was error. Specifically, the government contends "the appellees' predecessors' original town lot grants . . . are grants from the United States. The original grant documents do not on their face purport to convey any interest in the alleys. . . . Lot numbers alone were used. . . . The abutting owners are here then seeking to go behind their original actual grant documents. They may not do this unless there is an irreconcilable ambiguity in the face of the document strongly suggesting a larger grant. There is no such larger grant language in this case . . ." (Brief at 18-20.)

Appellees' response, which persuaded the trial court, is that "[t]he documents which begin the chains of title herein are the deeds of trust by which the original proprietors conveyed their title to trustees, not the United States. . . . The fact that the deeds convey land by lot number is in no way inconsistent with [appellees'] theory of this case since, at common law, such a conveyance was entirely sufficient to convey both the lot and a portion of the adjacent alley." (Appellees' Supplemental Brief at 2-5.)

In order to place the parties' arguments as to these documents of title (to the original alleys) in perspective, we must turn to the trial court's opinion recounting the history of the creation of...