United States v. 967.905 ACRES OF LAND, ETC., COOK CO., MINN., 5-66 Civ. 6.

• Decision Date: 11 September 1969
• Docket Number: No. 5-66 Civ. 6.,5-66 Civ. 6.
• Citation: 305 F. Supp. 83
• Parties: UNITED STATES of America, Plaintiff, v. 967.905 ACRES OF LAND, MORE OR LESS, Situate IN COOK ET AL. COUNTIES, STATE OF MINNESOTA, et al. Claim of Jacob PETE and James Pete, Landowners as to tracts 3520Cc and 4098.
• Court: U.S. District Court — District of Minnesota

305 F. Supp. 83

UNITED STATES of America, Plaintiff, v. 967.905 ACRES OF LAND, MORE OR LESS, Situate IN COOK ET AL. COUNTIES, STATE OF MINNESOTA, et al. Claim of Jacob PETE and James Pete, Landowners as to tracts 3520Cc and 4098.

No. 5-66 Civ. 6.

United States District Court D. Minnesota, Fifth Division.

September 11, 1969.

Robins, Davis & Lyons, by Solly Robins and Steven H. Goldberg, St. Paul, Minn., for defendants.

Ralph E. Koenig, Asst. U. S. Atty., Minneapolis, Minn., and Carl Strass, U. S. Dept. of Justice, Washington, D. C., for plaintiff.

NEVILLE, District Judge.

This eminent domain proceeding, commenced January 20, 1966 presents a fact situation characterized by the land-owners' counsel as unique if not in fact sui generis. Such seems to be true, at least to the extent that neither counsel have been able to furnish the court with any prior decisions or authorities involving similar facts. The issue, simply stated, is whether certain property is included in the "taking" effected by the Federal government's condemnation action.

The United States, in cooperation with the Dominion of Canada, established a wilderness area under the authority found in the Wilderness Act passed by Congress in 1964, 16 U.S.C. § 1131 et seq. The area lies along the international boundary between the United States and Canada and is partly in northern Minnesota. This has been named The Boundary Waters Canoe Area and encompasses some four million acres. It includes numerous sizeable lakes and chains of lakes, linked to each other in many instances by rapids, rivers or creeks. The area is dedicated to perpetual wilderness and no commercial activities may be carried on within its boundaries. With minor exceptions, private permanent structures are prohibited, no mechanical portages are permitted, and no resorts or public hostelries may exist. None but handpowered boats are allowed except on certain restricted routes. The area is designed to remain substantially roadless, and entering the area by airplane is banned. It is one of the last remaining areas of its kind in North America and attracts Boy Scouts, campers, sportsmen, Izak Walton League members and others from the entire United States and Canada, usually for several-day to several-week canoe trips, fishing outings, etc.

Consonant with this objective, the United States condemned all the privately owned property in The Boundary Waters Canoe Area, including two separate tracts, one owned by Jacob Pete alone, and in the other of which Jacob Pete and his son James Pete own undivided interests with persons who are not parties here.

Some 35 years ago, more or less, Jacob Pete acquired a one-fourth interest in real property known in this proceeding as the Hoist Bay Property on Basswood Lake, comprising approximately 12 acres of fast land, of which four acres are on high ground with the remaining eight acres presently devoted to wild rice beds. He acquired also a 40 acre tract not on the lakeshore but on a portage to the Hoist Bay property, which tract the government has included with the Hoist Bay property as part of parcel #3520Cc in the condemnation proceedings.¹

Over the years Jacob Pete, who later conveyed a partial interest to his son James, erected on the Hoist Bay property a main cabin 18 by 24 feet with an annex, a storage building or tool shed, a lumber shed, an ice house, a gasoline house, a service dock, a boat landing area, other miscellaneous improvements, and a device with heavy steel rails analogous to a railroad track running from shore into the lake used in conjunction with a motor or tugger to pull heavy boats out of the water. He conceived the idea of building what he has called cabin barges or cabin boats. These are rather large and ponderous with a two-story or two-deck superstructure which can sleep 12 people or more in bunks. The first deck includes an open area for eating and recreation, and provides space for a kitchen and equipment for the boat. At the time of the institution of the condemnation proceedings the Petes had three such boats in service on Basswood Lake. Two others had previously been hauled up on shore and rough foundations built under them. They were used as cabins. Another such boat was situate on the steel rails, apparently having been hauled up for repairs but which were never made following the institution of these condemnation proceedings. Though the Petes owned but a one-fourth interest in the realty, it is admitted that they had the entire ownership of the improvements thereon.

Petes' customers motor or fly to Ely, Minnesota and from thence drive a short distance to Winton, Minnesota where on a dock owned by the Petes they board a launch and are transported several miles across Fall Lake to a dock which is on one end of what is known as the four-mile portage. The four-mile portage is over land, including the 40 acre tract in which Petes have an undivided interest, and is accomplished by vehicular transportation presently in the form of an old school bus on a revitalized logging road to Basswood Lake and thus to the Petes' Hoist Bay place. A customer may, after the portage, board one of the cabin barges. These are motorized and are taken out into Basswood Lake for a period usually of several days. Two or more smaller rowboats which are used for fishing excursions generally are trailed behind the cabin barges. The Petes furnish a cook and the supplies for the boats. The 12 acre piece is referred to by the government as a base for this operation.

The cabin barges in service are steel-hulled and are estimated by witnesses to weigh between 25 and 40 tons. The government does not gainsay that the former boats which prior to the condemnation date had been brought up and put on foundations on the land, and thereafter used by fishermen and tourists as cabins are included in the "taking." The government's principal contention is that the three boats which are in service and afloat on Basswood Lake are personal property and not fixtures, and therefore are not included within the "taking" and so should not be considered in the awarding of just compensation.

From the evidence, the court is convinced that it is not possible to float the three boats out of, nor feasibly to remove them by any other means from, Basswood Lake short of nearly complete dismantling. The water inlets to, and the outlet from, Basswood Lake involve rapids and a difference in elevation of some 20 to 30 feet. Canoeists portage on land around these. The overland four-mile portage from Fall Lake is a narrow, rough road originally a logging road which at the request of the Government was viewed by the court, counsel and all jurors who traversed it to the Hoist Bay property. It is heavily lined with trees, many of them second growth. It has a wooden bridge in at least one place and on the particular branch road to Jacob Pete's property it has been cut through rocks which are close on both sides. A continuation of the portage road before the Pete branch off is not quite as narrow as the branch but does not differ materially from the remainder of the portage road. The testimony is, and such was observed by the court on the viewing, that to transport the boats out, even in wintertime so they could be brought over hard ground and then across the ice on Fall Lake to Winton would involve the cutting of perhaps hundreds of trees on the four-mile portage, would require the rebuilding or reinforcement of the wooden bridge and perhaps even the blasting of some rock. Further, the road passes through some low marshy spots and the testimony is that such ponderous objects would become mired, though wintertime frozen ground might obviate this if the snow would permit of movement. The court is convinced from his own observation that moving the boats out is a practical impossibility.

The testimony is that the boats were built on the premises; that the first steel hull was fabricated off the premises at a boatworks, but such difficulty was incurred in attempting to transport the hull to Hoist Bay that it had to be cut with a steel torch in part in order to reduce its size and then it was necessary to reweld it on the premises. The court believes that with the difficulty incurred just with the hull, the boats with their present superstructure would present an insoluble moving problem. The other boats were built by having the steel plates brought to the premises and fabricated there by steelworkers. The superstructure was then built as to all boats by carpenters, plumbers, electricians, etc. at Hoist Bay. The boats are licensed and approved by the United States Coast Guard as seaworthy and the Petes operate under a hotel and motel license from the State of Minnesota.

There was uncontradicted testimony by a mover of heavy machinery and equipment as to the practical impossibility of moving the boats across the four-mile portage and uncontroverted evidence given by two boat manufacturers that to dismantle the boats and transport them broken down, even assuming the hulls could by proper blow-torch cutting be moved out, would completely destroy their value and the cost to rebuild them somewhere else would be as much as to start anew.

Counsel for the landowner points out that the boats are peculiarly adapted solely to Petes' operation and have no value otherwise. He attempts to make some point of the fact that on the actual date the government filed its condemnation proceeding, i.e., January 20, 1966, it was in the dead of winter and two of the boats had been hauled up out of the water and were thus on the land, annexed by gravity and the third was in a slip which the landowner had entrenched into his own premises and was frozen in the ice. He claims that the boats are analogous to fixtures and therefore should be included within the government's "taking."

The government stoutly resists this contention. It admits it should pay for the land and the improvements thereon, including the...