United States v. Fisher-Otis Company, Inc.

• Decision Date: 14 May 1974
• Docket Number: No. 73-1367.,73-1367.
• Citation: 496 F.2d 1146
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. The FISHER-OTIS COMPANY, INC., and Roy Fisher, Jr., Defendants-Appellants, Raymond H. Coit, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

496 F.2d 1146 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. The FISHER-OTIS COMPANY, INC., and Roy Fisher, Jr., Defendants-Appellants, Raymond H. Coit, Defendant.

No. 73-1367.

United States Court of Appeals, Tenth Circuit.

Argued March 18, 1974.

Decided May 14, 1974.

Rehearing Denied June 11, 1974.

Larry G. Gutterridge, Atty., Dept. of Justice (Wallace H. Johnson, Asst. Atty. Gen., Richard A. Pyle, U. S. Atty., and Edmund B. Clark, Atty., Washington, D. C. on the brief), for plaintiff-appellee.

A. Camp Bonds, Jr., Muskogee, Okl., for defendants-appellants.

Before LEWIS, Chief Judge, DURFEE^*, Senior Judge, and BARRETT, Circuit Judge.

DURFEE, Senior Judge.

The United States instituted this action for declaratory judgment¹ to establish its rights, under a flowage easement deed, in certain tracts of land owned by defendants, the Fisher-Otis Co., Inc., Roy Fisher, Jr., and Raymond H. Coit. Defendants appeal² from an adverse decision in the United States District Court for the Eastern District of Oklahoma declaring that the Government easement prohibits the use of landfill and the construction and/or maintenance of any structures for human habitation within the flowage easement area. We affirm.

The pertinent facts may be simply stated:

The United States acquired the flowage easement from Phil and Elizabeth Huls by recorded deed of March 5, 1960. The easement deed covered that portion of certain tracts of land, situated in Pittsburg County, Oklahoma, lying below 602 feet mean sea level (m. s. l.), and it granted the Government the perpetual right, power, privilege and easement occasionally to overflow, flood and submerge the lands in question as may be required in connection with the operation and maintenance of the Eufaula Reservoir on the Canadian River. The deed included a covenant running with the land, which provided, in pertinent part, as follows:

* * * no structures for human habitation shall be constructed or maintained on the above-described land, and further, that no structures of any type * * * shall be constructed or maintained on the above-described land except such as may be approved in writing by representatives of the Government in charge of said project.

Defendants herein are successors in title to the ownership of the property in question.³

The complaint alleges that defendants have placed (or have permitted to be placed with their knowledge and consent) earth fill within the flowage easement areas so as to raise the surface elevation of the land above 602 feet m. s. l. The United States contends that, as a matter of law, the use of earth fill to raise the elevation of land below 602 feet m. s. l. to above that level cannot circumvent the flowage easement prohibition against construction for human habitation on land with a pre-fill elevation below 602 feet m. s. l. The United States further contends that the use of such landfill is, of itself, in violation of its easement permitting it occasionally to overflow, flood and submerge the land covered thereby.

Defendants, by their answer, generally deny the allegations of the complaint, and specifically deny any encroachment of the flowage easement as claimed by plaintiff.

A pretrial conference was held on August 28, 1972. Subsequently, on September 6, 1972, the District Court entered a pretrial order which provided, in pertinent part, as follows:

After full discussion, it was agreed that prior to proceeding further in the case a determination by the court should be made as to the rights of the parties under the flowage easement purchased by the government in 1960 in the area here involved. This determination should include a decision by the court as to what constitutes structures within the meaning of the easement and to what extent, if any, the defendants may encroach upon the flowage easement area without materially interferring sic with the hydrology of the lake. * * *

The pretrial order provided for the submission of briefs by the parties relative to these legal issues, and further provided as follows:

After the legal rights of the parties have been determined, there remains to be resolved the question of the location on the ground of 602 MSL.

After considering the briefs submitted by the parties, the District Court—having found that defendants had placed, or had permitted to be placed with their knowledge and consent, earth fill within the flowage easement area so as to raise the surface elevation of the land above 602 feet m. s. l.—entered judgment on March 14, 1973, in favor of the United States. The court ruled, inter alia, that the positive and negative rights included in the flowage easement acquisition by the United States are valid and binding on defendants as successors in title to Phil and Elizabeth Huls; that, pursuant to the flowage easement, defendants are prohibited from using landfill within the flowage easement areas having elevation below 602 feet m. s. l.; that defendants are prohibited from constructing and/or maintaining any structures for human habitation within the flowage easement areas other than those that were in place on September 6, 1972; and that defendants are not required to remove landfill that was in place on or before September 6, 1972, but are restricted from building structures for human habitation within areas so filled. It appears that neither party filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, but that the District Court entered judgment for plaintiff sua sponte.

Defendants appeal following the denial, on April 2, 1973, of their motion for new trial. They contend (1) that they were denied a trial with respect to controverted factual issues, in violation of the Fifth Amendment to the Constitution; (2) that the District Court's entry of judgment on its own motion deprived them of due process safeguards of notice and the right to a hearing normally accorded the summary disposition of cases under Rule 56 of the Federal Rules of Civil Procedure; and (3) that there is no basis in law for the judgment of the District Court. Defendants seek reversal and remand for trial.

I

The first question for consideration is whether or not there are genuine issues as to any material fact upon which the outcome of this litigation depends, so that entry of judgment for plaintiff was improper. Defendants claim that they were denied a trial with respect to controverted factual issues, in violation of the Fifth Amendment to the Constitution.

Of course, if there are genuine issues of fact, the granting of summary judgment in a declaratory judgment suit is not in order. United Mine Workers of America, District 22 v. Roncco, 314 F.2d 186 (10th Cir. 1963). Defendants maintain, first of all, that entry of judgment was improvident in the absence of a specific finding as to the location on the ground of the flowage easement. We do not think, however, that a determination of the exact acreage and precise location of the flowage easement is material to the resolution of the legal issues raised in this lawsuit. Plaintiff brought this action only to obtain declaratory relief with respect to issues of law, specifically whether landfilling and construction are prohibited by the terms of the Government's easement deed. Plaintiff requests neither injunctive relief nor an award of money damages.⁴ If the Government had demanded removal of landfill and structures already in place, or if it had sought to enjoin future landfilling and construction within the flowage easement area, then any dispute between the parties as to the ground location of the easement would be a pertinent factual issue for trial, the resolution of which would be necessary before entry of judgment granting such relief. But all the United States asks for in this lawsuit is a determination of the legal relations between the parties, that is, a declaration of its rights under the flowage easement deed. A request for relief may be so limited under the Declaratory Judgment Act, and any further necessary and proper relief based upon the declaratory judgment and any additional facts which might be necessary to support such relief can be sought at a later time. 28 U.S.C. § 2202; Edward B. Marks Music Corp. v. Charles K. Harris Music Pub. Co., 255 F.2d 518 (2d Cir. 1958). The exact ground location of the flowage easement is not an issue of material fact upon which the outcome of this litigation depends, and accordingly, the fact that the issue remains unresolved is no bar to the entry of judgment. Zampos v. United States Smelting, Refining and Mining Co., 206 F.2d 171 (10th Cir. 1953); Broderick Wood Products Co. v. United States, 195 F.2d 433 (10th Cir. 1952).

The District Court specifically found that defendants used landfill to raise the elevation of surface lands within the flowage easement area, and further that defendants built structures for human habitation on the areas so raised. Defendants object to these findings claiming that they specifically denied them in their answer, that they at no time made any admission of such conduct, and that there was no other evidence or proceeding upon which the District Court could have based such findings. We agree with defendants that the record does not support these specific findings of the District Court, and accordingly, that they were inappropriately made. The Government is willing to concede that the District Court's determinations with respect to defendants' past conduct are not binding and that they have no legal effect.⁵ But, the Government argues, it was not necessary in any event to resolve these factual issues in order to enter judgment herein. We agree with the Government's position that the factual issues as to defendants' past conduct with respect to landfilling and building of structures are not material to the legal issues raised or to the relief sought by plaintiff in this suit. Again, plaintiff only seeks a declaration of its rights under the...