US v. Grabler, Civ. A. No. 94-12159-GAO.

• Citation: 907 F. Supp. 499
• Decision Date: 13 October 1995
• Docket Number: Civ. A. No. 94-12159-GAO.
• Parties: UNITED STATES of America v. Peter GRABLER.
• Court: U.S. District Court — District of Massachusetts

907 F. Supp. 499

UNITED STATES of America v. Peter GRABLER.

Civ. A. No. 94-12159-GAO.

United States District Court, D. Massachusetts.

October 13, 1995.

COPYRIGHT MATERIAL OMITTED

George B. Henderson, U.S. Atty's office, Boston, MA, for U.S.

Peter Grabler, Needham, MA, pro se.

MEMORANDUM AND ORDER

O'TOOLE, District Judge.

By this suit, the United States seeks injunctive relief against the defendant Peter Grabler's continuing trespass on land owned by it. The United States has moved for summary judgment both on its claims and on Grabler's counterclaim that alleges the government acted arbitrarily and discriminatorily in refusing either to sell him the land in question or to grant him a lease or easement. There are no genuine issues of material fact as to any of the claims, and the United States is entitled to judgment in its favor as a matter of law.

I. FACTS

The United States owns a 13-acre parcel of land in Needham, Massachusetts, known as "Tract 1712," having acquired it primarily for flood control purposes as a part of the Charles River Natural Valley Storage Project (the "Project"). The U.S. Army Corps of Engineers, New England Division (the "Corps"), manages the land for the United States.

Grabler owns land at 180 Standish Road, Needham, abutting Tract 1712. In September 27, 1988, Grabler asked the Corps to grant him either a lease or an easement covering approximately 9,100 square feet of Tract 1712 so that he could build a tennis court on that land. The Acting Chief of the Corps Real Estate Division responded that the Corps would not grant him any interest in the land.

In the summer of 1991, Grabler planned and built the tennis court anyway, albeit on a slightly different section of land than that mentioned in his 1988 request. About 3,586 square feet of Grabler's tennis court, roughly half its total area, lie within Tract 1712. Grabler admits that he constructed the tennis court partially on Tract 1712, although he insists that he did so inadvertently. Grabler also concedes that he had obtained no license or authorization from any state or local agency or conservation commission with regard to the tennis court, that he removed a number of trees and shrubs as well as three truckloads of soil in the process, and that he introduced material onto the land for the tennis court surface.

In September, 1993, having discovered the encroachment, the Corps questioned Grabler about it. He represented to the Corps at least once that he had received approvals from the Needham Conservation Commission, although in fact he had not. Grabler also tried to persuade the Corps to let him keep his tennis court, offering to swap other land for it or to purchase the land and grant the United States an easement over it. The Corps has consistently rejected such proposals on the ground that compromising on the tennis court would "jeopardize the purpose" of the Project and "create unfavorable precedents regarding other fee-owned areas in the basin."

II. DISCUSSION

Summary judgment is appropriate wherever "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Woodman v. Haemonetics Corp., 51 F.3d 1087, 1091 (1st Cir.1995). The nonmoving party, here Grabler, is entitled to all reasonable inferences that may be derived from the evidence submitted, and the evidence must be viewed in the light most favorable to him. Woodman, 51 F.3d at 1091.

A. The Government's Claims

The government's complaint has two counts. Count I alleges a continuing trespass by Grabler on property belonging to the United States. Count II sets forth a claim that Grabler's construction of the tennis court violated a prohibition against unauthorized structures in water resource development projects under Part 327 of Title 36 of the Code of Federal Regulations.¹

The parties disagree about whether federal or state law governs the trespass issue. This Court has jurisdiction over the case by virtue of 28 U.S.C. § 1345, which grants district courts original jurisdiction over all civil actions commenced by the United States. Neither § 1345 itself nor subsequent case law has established a uniform rule of decision for cases where the United States is a plaintiff, although the Supreme Court has held in this context that "specific aberrant or hostile state rules do not provide appropriate standards for federal law." North Dakota v. United States, 460 U.S. 300, 317-19, 103 S.Ct. 1095, 1105-06, 75 L.Ed.2d 77 (1983); United States v. Little Lake Misere Land Co., 412 U.S. 580, 595-96, 93 S.Ct. 2389, 2398-99, 37 L.Ed.2d 187 (1973); see also Clearfield Trust Co. v. United States, 318 U.S. 363, 366-69, 63 S.Ct. 573, 574-76, 87 L.Ed. 838 (1943); United States v. Belanger, 598 F.Supp. 598, 603-04 (D.Me.1984). The United States suggests that federal common law might control this case, noting the important federal interest in uniform regulation of federally-owned wetlands. On the other hand, Grabler insists that Massachusetts law applies. He points out that Tract 1712 is wholly in Massachusetts, that under 36 C.F.R. § 327.0 state and local regulations "remain in effect where applicable" on Corps water resource projects, and that the United States is acting in its capacity as landowner and proprietor rather than regulator in requesting that he remove the tennis court. In the end, however, even assuming that the United States is "a mere property owner" in this case and has no other governmental interest at stake, cf. United States v. California, 332 U.S. 19, 29, 67 S.Ct. 1658, 1663, 91 L.Ed. 1889 (1947), so that reliance on state law is appropriate, Grabler loses.

There is no material factual dispute that Grabler built a tennis court that lies partly on land owned by the United States. That encroachment constitutes a trespass. See Restatement (Second) of Torts § 158 (1965). Under Massachusetts law, "a landowner is ordinarily entitled to mandatory equitable relief to compel removal of a structure significantly encroaching on his land...." Peters v. Archambault, 361 Mass. 91, 278 N.E.2d 729, 730 (1972). "The government has, with respect to its own lands, the rights of an ordinary proprietor, to maintain its possession and to prosecute trespassers." Camfield v. United States, 167 U.S. 518, 524, 17 S.Ct. 864, 866, 42 L.Ed. 260 (1897). The only serious question is whether any special circumstances exist to justify overriding the landowner's ordinary entitlement to an injunction. This question is addressed in the remedies section of this memorandum. So far as the claims themselves are concerned, the facts of the continuing trespass and the violation of the regulatory prohibition against unauthorized structures are undisputed.

B. Affirmative Defenses

Grabler raises two affirmative defenses to the trespass claim, neither of which has merit. First, he argues that the Massachusetts law regarding "great ponds" provides him with a complete defense to the government's actions. Massachusetts defines a great pond as "a natural pond the area of which is twenty acres or more." Mass.Gen.Laws Ann. ch. 131, § 1 (West 1991). Subject to certain exceptions for local regulation of hunting, fishing, and boating and for water-supply needs, all great ponds are "public for the purpose of hunting or boating thereon" and are "open to all inhabitants of the commonwealth for fishing purposes." Mass.Gen. Laws Ann. ch. 131, § 45 (West 1991). The law has its origins in the Colony Ordinances of 1641-47, which devoted to public use as commons all ponds that contained more than ten acres of water and that had not been appropriated to private use before 1647. Butler v. Attorney Gen., 195 Mass. 79, 80 N.E. 688, 689 (1907); West Roxbury v. Stoddard, 89 Mass. 158, 165-71 (1863). The colonists considered large, freshwater ponds too vital to their survival for any individual to own them and so made them common areas in which all "shall have free fishing and fowling." Deborah K. Paulus, Reflections on Takings: The Watuppa Ponds Cases, 17 W.New Eng.L.Rev. 29, 35-36 (1995).

Grabler contends that Tract 1712 is part of a great pond and that the United States can thus have no ownership rights in that property and cannot maintain a trespass action against him. Putting aside whether, under the Supremacy Clause, U.S. Const. Art. VI, cl. 2, and the Supreme Court cases that make federal law the rule of decision where state law is "hostile," federal regulations trump any ownership limitations created by state law, Grabler's great pond theory is specious. The land on which the tennis court sits is clearly not a great pond within either the letter or the spirit of the Massachusetts statute. A great pond must encompass twenty acres of water. Mass.Gen.Laws Ann. ch. 131, § 1. Even if, as Grabler claims, the area was once part of an ancient waterbody called Lake Charles and is now part of a flood plain, the portion of Tract 1712 currently covered by a tennis court is not a sitting body of water as envisioned by the laws concerning great ponds. In sum, the "great pond" defense holds no water.²

Second, Grabler raises the defense of equitable estoppel. Grabler asserts that through its annual surveys of Tract 1712, the government knew or should have known about his tennis court earlier and that this knowledge equitably estops it from requesting him to remove the completed construction. Equitable estoppel was long thought not to lie against the United States, and not until 1961 did the Supreme Court even suggest in dicta that such an argument might ever prevail. See Office of Personnel Management v. Richmond, 496 U.S. 414, 419-21, 110 S.Ct. 2465, 2468-70, 110 L.Ed.2d 387 (1990); see also Phelps v. Federal Emergency Management Agency, 785 F.2d 13, 16-17 (1st Cir.1986) (noting that the "Supreme Court ... has consistently...