United States v. Gossler

• Decision Date: 02 April 1945
• Docket Number: Civ. No. 1729.
• Parties: UNITED STATES v. GOSSLER et al.
• Court: U.S. District Court — District of Oregon

60 F. Supp. 971

UNITED STATES v. GOSSLER et al.

Civ. No. 1729.

District Court, D. Oregon.

April 2, 1945.

Ernest Falk and Linus M. Fuller, Sp. Attys., Department of Justice, and William M. Langley, Asst. U. S. Atty., all of Portland, Or., for plaintiff.

Lawrence T. Harris, of Eugene, Or., and James C. Dezendorf, of Portland, Or., for defendants Gallagher.

JAMES ALGER FEE, District Judge.

This action for condemnation of lands came on for trial of value of the interests of defendants Gallagher and intervenors McNutt, in the Gossler tract of land, before the court with a jury. A verdict was returned establishing the market value of these interests and judgment entered. A motion for a new trial has been filed by the defendants.¹ In order that the points raised thereby may be considered in relation to the setting, a review of the course of the proceedings is necessary.

The action was initiated in the usual manner. The complaint alleged that the Gallaghers claimed some interest in the lands owned by the Gosslers in fee. A declaration of taking of a fee-simple interest in the lands was thereafter placed on file. Gallagher answered, setting up a right to use a roadway across the lands taken. The McNutts were permitted to intervene as partial assignees of Gallagher. The United States moved to amend the declaration of taking to acquire the fee of the Gosslers, subject to a use in common of the roadway by the United States and the intervening defendants,² but this was denied since the court believed the circumstances made it inequitable for the Government to withdraw.

Under the regular procedure of this court, a hearing was had as to the market value of the interest of the record owners, and a finding of fact made as to the value thereof. These hearings, although ex parte, usually are in fact trials and a judgment based thereon would be final,³ subject to the usual rules. Such a finding of fact based on sworn evidence tends to protect the United States from fraud,⁴ and tends to protect the judge, who is required to countersign the check disbursing the funds to the landowner based on the evidence taken at the hearing. On stipulation of all parties an order was entered and the judge countersigned checks to the Gosslers for their interest. However, no determination was made at that time as to whether compensation should be paid to the owners of the roadway.

The court thereupon heard argument upon motions to strike and demurrers of the United States to the answers of the McNutts and Gallaghers.

It is said in these answers that Crown-Zellerbach Corporation made an agreement with Gallagher granting, for a period of years, the right to take sand and gravel from real estate owned by Crown-Zellerbach on the Santiam Bar adjacent to the Willamette River and specifically described by metes and bounds. The "Gossler Tract" and another tract known as the "Crocker Tract" intervened between the gravel bar and the county road. The Crown-Zellerbach agreement contemplates a right of way shall be obtained from the county road to the gravel bar and that Crown-Zellerbach have a right to the use of it. The Crockers and the Gosslers, by contracts under seal, granted easements of right of way to Gallagher from the road to the gravel bar for a period of five years, but neither grant mentioned the Crown-Zellerbach land or the gravel pit. Gallagher transferred an interest in all rights created by these contracts to the McNutts. A road was constructed and used on the rights of way, and upon the Crown-Zellerbach property, and bunkers, machinery and equipment were installed. Gravel was hauled from the pits on the Crown-Zellerbach real property over this road. Defendants alleged that because of the taking of the intervening tracts by the Government, they lost the sale of enormous quantities of sand and gravel and profits by virtue of the demand for such commodities at the date of taking, at Camp Adair and upon highway contracts upon which defendants had been awarded the bid.

The position of the Lands Division was that since the property of the Gosslers was acquired in fee simple, payment therefor vested the United States with all interest whatsoever in that area; that Gallagher and the McNutts had no property right in these lands but only an easement in gross and that any damage these litigants sustained was because of frustration of contract for which the United States was not liable.

The court overruled motions and demurrers. For clarity of discussion, the theory of these rulings, upon which the case was subsequently tried, is here indicated. When the United States acquires property by condemnation and an unlimited use is contemplated, all interests in the parcel are abrogated⁵ except those specifically excepted, as was done for public roads in this complaint. The fallacy of the reasoning which lies at the basis of these motions arises from the concept of the title of real property as a thing with physical attributes, whereas title is a conglomerate of jurisdiction and substantive legal rights fused with the residuals of equitable remedies all developed historically out of feudal notions and medieval conditions. By this proceeding the United States does not acquire a physical thing by taking the fee simple title of the Gosslers, but sets up another title by extinguishment of all interests inconsistent with use by the Government. Since the United States is investing itself with an utterly new title⁶ and extinguishing the whole aggregate of rights connected with this piece of ground by condemnation, the Fifth Amendment requires compensation for all property rights so erased.

The United States cannot abrogate all, but pay for the particular right known as the fee simple title alone. The owner of another recognized property interest attached to the soil would then receive no compensation just or otherwise.⁷ Indeed in practice, the value of the fee simple title might well be materially reduced by the existence of this right of way. If payment were made for a specific interest such as the fee title, out of the aggregate, the Government would abrogate the other interests without paying monetary consideration therefor. Such a result does not satisfy the demands of the amendment. The United States is liable to the owner of an easement appurtenant in a suit condemning the fee of the servient estate.⁸

It must be remembered at this point that the question is not who owns the right of way, but whether there exists a property right for which the condemnor must pay compensation. The modern English law does not recognize easements in gross. A profit a prendre may be defined as the power and the privilege to acquire through severance, ownership of some part of the physical substances included in the possession of land.⁹ Such a profit a prendre at common law was an interest in land, and contradistinquished from an easement, could exist in gross. However, a profit a prendre laid a foundation even at common law for the attachment of an easement of right of way appurtenant.

Quaintly enough, there was a profit a prendre in gross consisting of a fishery on the river Ware which savored sufficiently of the soil to serve as a dominant tenement for rights of way connected with the fishing, according to Justice Buckley's interpretation of Note 7 to Hargreave and Butler's edition of Co. Litt. 121 b.¹⁰ Gale¹¹ says, commenting upon this case, "* * * the true test of appurtenancy was the propriety of relation between the principal and the adjunct, which might be found out by considering whether they so agreed in nature and quality as to be capable of union without incongruity." Based upon this the commentator foreshadowed the proper solution of the case at bar by the answer supplied to certain supposititious circumstances as follows: "Applying the above-mentioned test, it is submitted that if the owner of a right to take certain minerals (p) under close A. obtained from the owner of an adjacent close, B., a grant of a way over the close B., or a right to discharge water over it, for him, his heirs and assigns, as appurtenant to the right of mining, an easement would undoubtedly be created and would be appurtenant to the incorporeal right already vested in the grantee."

In modern American law, the distinctions between easements in gross, profits a prendre and easements appurtenant was first slurred over and may now be regarded as non-existent. Even if it be concluded that by strict common law doctrine there was no right in the real property here created, the vast majority of jurisdictions of this country include it in this classification. Under the preferred American doctrine, the burden of the easement granted across the Gossler lands would be imposed upon a grantee thereof, or a disseisor of that parcel, since it is a property interest.

Since no case has arisen in Oregon under the exact circumstances, it cannot be determined whether these interests are property rights in the Gossler land.¹² It is to be assumed that the courts of the state would follow the modern tendency¹³ and it is certain they would be influenced by the fact that these interests are of a commercial nature and by their nature and quality, can be united without incongruity.

The question of what interests should be paid for by the sovereign in condemnation is an intensely practical one. Consideration must then be given to such factors. The interest which must be compensated for in condemnation proceedings have caused the most notable divergences of the courts and one of the most bitter disputes among legal scholars in modern American law. But this matter should be explored realistically.¹⁴ The court should not be hampered by a sylogistic adherence to feudal categories of estates. The concept "easement in gross" should not hamper inquiry even though it is probable no such interest exists in present day English law. Here is a profit a prendre in gross to take gravel from the Crown-Zellerbach...