United States v. 1,629.6 ACRES OF LAND, ETC., STATE OF DEL.

• Decision Date: 03 December 1971
• Docket Number: Civ. A. No. 3532.
• Citation: 335 F. Supp. 255
• Parties: UNITED STATES of America, Plaintiff, v. 1,629.6 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF SUSSEX, STATE OF DELAWARE, the Island Farm, Inc., et al., Defendants.
• Court: U.S. District Court — District of Delaware

335 F. Supp. 255

UNITED STATES of America, Plaintiff, v. 1,629.6 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF SUSSEX, STATE OF DELAWARE, the Island Farm, Inc., et al., Defendants.

Civ. A. No. 3532.

United States District Court, D. Delaware.

December 3, 1971.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

F. L. Peter Stone, U. S. Atty., Wilmington, Del., Charles F. MacMullan and Harry W. McKee, Attys. Department of Justice, Washington, D. C., for the United States of America.

James M. Tunnell, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., Ralph J. Luttrell, Washington, D. C., of counsel, for defendant, The Island Farm, Inc.

H. James Conaway, Jr., Jack B. Jacobs and Doris M. Toll, of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendant, Jennie H. J. Layton.

OPINION

CALEB M. WRIGHT, Chief Judge.

The United States of America (Government) commenced this suit in eminent domain to condemn 1,629.6 acres of land in Sussex County. The initial complaint named as defendant The Island Farm, Inc. (Island Farm), and was subsequently amended to include as an additional defendant Jennie H. J. Layton (Layton).

Since the Government has possession of the land, the remaining consideration is to establish just compensation. The Court previously granted the motion of Island Farm requesting that a commission be appointed to determine the value of the condemned land.¹

Prior to the designation of the commission and pursuant to an evidenced conflict concerning title to a segment of the condemned land, the Government joined Layton as a party defendant. The instant decision involves the determination of the ownership of the disputed portions of land to which both defendants claim title. In addition, the Court must resolve the question of the ownership of a certain area of land adjacent to, but outside of the land condemned in this proceeding. The Court's decision with respect to the title of land within the taking will determine to whom the monetary award is payable; however, any resolution of the ownership of land outside of the condemned parcel will be for the sole purpose of establishing just compensation for the land taken.²

Prior to the taking, in 1968, Layton and Island Farm were adjoining land owners separated in major part by the Deep Hole Creek.³ Layton's property bordered on the Delaware Bay and consisted predominately of barrier beach land, sand and marsh. In the area pertinent to this dispute, Island Farm's acreage was primarily marsh and fast land.

The title dispute between Layton and Island Farm involves the land in the area of a small portion of the eastern boundary at the southeastern corner of Parcel D (Tract 79c) of the condemned land. When defining the land to be taken, the Government utilized the Island Farm's deed description except for the area of land subject of this title dispute. Both of the boundaries immediately north and south of the disputed portion, Deep Hole Creek and Broadkill River respectively, coincide with the deed description of Island Farm's original title for all purposes pertinent to this opinion. However, for a distance of 37.4 chains (approximately 2,468 feet) running generally northsouth, the Government arbitrarily established a straight line as the eastern boundary of that segment. The boundary was so delineated because in that area, the initial boundary as described in the Island Farm deed, was not readily ascertainable.⁴ Subsequent to the Government's filing of the complaint herein the defendants raised their conflicting contentions with regard to title to the condemned lands and the appropriate allocation of the monetary award. The dispute evinced the importance of the delimitation of the exact location of the Island Farm-Layton boundary and its relationship to the Government's arbitrary designation and made necessary the delineation of the Island Farm and Layton interests in the property prior to condemnation.

FACTUAL BACKGROUND

The land condemned by the Government is now part of the Prime Hook National Wildlife Refuge and lies immediately north of the Broadkill River in Broadkill Hundred, Sussex County, Delaware.

Prior to 1907, all of the property pertinent to the resolution of this title dispute was owned by George and Della Hall. It was comprised of two separate parcels:

1. A single piece of barrier beach land, starting below the southern terminus of Deep Hole Creek at its junction with the Broadkill River and extending to the then existing entrance of the Deep Hole Creek in the Delaware Bay approximately two miles to the north (what is presently primarily Layton's land), and

2. A parcel of marsh and fast land to the west of the barrier beach and separated from it along its entire length by the Deep Hole Creek (Island Farm's property). Running north from its confluence with the Broadkill River, Deep Hole Creek was then a navigable waterway and the sole means of access between the Broadkill River and the Delaware Bay.⁵

In 1907, the Government purchased 5.8 acres of barrier beach land from the Halls for purposes of constructing an inlet and jetty to stabilize the navigational channel between the Broadkill River and the Bay.⁶ The 5.8 acres lay approximately one-quarter mile north of the Broadkill River—Deep Hole Creek juncture. On this acreage, the Government constructed a jetty which curved from north-east to south-west from approximately 250 feet into the Delaware Bay across the barrier beach and the Deep Hole Creek to the eastern edge of the marsh or fast land.⁷ The Government, also, dredged a channel along the southern, concave edge of the jetty, thereby creating an inlet providing a navigable waterway for access to the Deep Hole Creek and the Broadkill River.⁸

In 1921, Della Hall sold the remaining barrier beach land to Layton. The conveyance consisted of two parcels, one immediately north of the Government's 5.8 acres and one immediately to the south. The deed purports to convey parcels bounded immediately on their northern or southern edge by the 5.8 acre parcel owned by the Government. However, at the time of the transfer some of the southern parcel had been eroded away by the Broadkill Inlet.⁹

In September, 1936, the marsh or fast land which was west of the Deep Hole Creek was deeded to H. Carlton Draper (Draper) who several months thereafter transferred title to Island Farm.¹⁰ Although the deed described the entire eastern boundary as the channel of Deep Hole Creek, in the area south of the jetty a substantial portion of the Deep Hole Creek had been obliterated by the inlet and accompanying channel to Broadkill River.¹¹ A portion of Island Farm's land bordered on the Broadkill Inlet and was not separated from the Delaware Bay by any barrier beach land.¹²

Shortly after Draper had purchased his property, the Government constructed a second inlet, Roosevelt Inlet, to provide a navigable channel to the Broadkill River. Built in 1938, Roosevelt Inlet lay several miles south of Lewes Inlet and its confluence with the Broadkill River and became the principal channel between the Delaware Bay and the Broadkill River. Broadkill Inlet rapidly assumed a subordinate role as a navigational waterway and eventually began to shoal up. In 1953, the Government authorized the abandonment of the Broadkill Inlet for navigational purposes. While the precise date of its closure is not ascertainable from the record, apparently, by 1954, the inlet had completely filled in to reform an unbroken barrier beach.¹³ This alluvium extended from the Bay to the edge of Island Farm's property, thereby completely blocking the flow of water from the terminus of Deep Hole Creek just north of the jetty to the Broadkill River approximately one-half mile to the south.¹⁴ The old channel of Deep Hole Creek was not ascertainable as a waterway from several hundred feet north of the jetty, Point 9 on the Government's Description of Taking, to the Broadkill River, Point 10. As has been indicated, the Government arbitrarily established a straight line between these two points as the boundary of the land subject to this condemnation proceeding.

Between its construction in 1907 and its closure approximately 47 years later, Broadkill Inlet was subject to sizable fluctuations in size and depth. Substantial portions of Island Farm's land fronting on the inlet and Draper's southern parcel of barrier beach land were eroded away and covered by water. In addition, immediately north of the jetty, the Deep Hole Creek move westward and opened a channel around the southwest tip of the jetty. The precise location at which the inlet initially closed is disputed by the parties; however, the evidence clearly indicates that manner of the closing was predominantly the slow and gradual process of accretion.¹⁵

In 1957, Layton purchased from the Government whatever lands it then owned in the area of the jetty.

In 1968, with the consent of Island Farm, Layton dredged a ditch between Points 9 and 10 connecting the Deep Hole Creek with the Broadkill River. Known as the "Thompson Ditch", it runs in a roughly straight line, except for a portion of approximately 350 feet immediately north of Point 10, and is slightly east of the Government's arbitrary line.

After the present title dispute arose, the Government conducted a field survey to delineate the channel of the defunct Deep Hole Creek between Points 9 and 10. Conducted by Mr. Roger Tornstrom (Tornstrom) and assistants, the survey resulted in the demarcation of a line purporting to represent the channel of Deep Hole Creek as of the date of the study, May 1969. The line had numerous bends and intersected the Government's arbitrary line on five occasions excluding the two terminal points. Although some portions of the Tornstrom line are actually under water, most of it is delineated on solid land. Approximately 3.7 acres of land in these parcels lies to the east of the purported channel of Deep Hole Creek but is contained within the land...