USA. v. Srnsky

• Decision Date: 26 September 2001
• Docket Number: No. 01-1163,01-1163
• Citation: 271 F.3d 595
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY A. SRNSKY; DAVID M. SRNSKY, Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 595

271 F.3d 595 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TOMMY A. SRNSKY; DAVID M. SRNSKY, Defendants-Appellants.

No. 01-1163

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: September 26, 2001

Decided: November 14, 2001

Corrected: November 20, 2001 and November 29, 2001

Appeal from the United States District Court for the Northern District of West Virginia, at Clarksburg. Irene M. Keeley, Chief District Judge.

(CA-97-70-2)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL ARGUED: Roger J. Marzulla, MARZULLA & MARZULLA, Washington, D.C., for Appellants. David Jack Lazerwitz, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Nancie G. Marzulla, MARZULLA & MARZULLA, Washington, D.C., for Appellants. John C. Cruden, Acting Assistant Attorney General, Sean H. Donahue, Environment & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Patrick M. Flatley, United States Attorney, Wheeling, West Virginia; James B. Snow, Office of General Counsel, UNITED STATES DEPARTMENT OF AGRICULTURE, Washington, D.C., for Appellee.

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

Vacated and remanded by published opinion. Judge Luttig wrote the opinion, in which Judge Williams and Judge Michael joined.

OPINION

LUTTIG, Circuit Judge:

Tommy and David Srnsky appeal a district court order requiring them to apply for a Forest Service special use permit in order to use a 2.6-mile road through the Monongahela National Forest, which provides the sole access to their home. The district court held that the Srnskys have neither an express nor an implied easement to use the road. In reaching that conclusion, however, the district court failed to consider whether West Virginia common law implied a reservation of such an easement from the facts of the conveyance by which the United States took title to the surrounding land. For this reason, and because we conclude that, contrary to the government's arguments, federal law does not preempt such implied reservations, we vacate the district court's judgment and remand for further proceedings.

I.

In 1935, the Wilmoth family conveyed approximately 742.5 acres of land to the United States, expressly reserving to itself a 6.8-acre interior tract (the "inholding"). J.A. 195. The deed does not expressly reserve a right of access over what has become a national forest. The parties disagree on whether the Forest Service road, which today serves as the sole means of ingress and egress to the inholding, existed at the time of the conveyance. Compare J.A. 182-85 (declarations of Don Phares and David Srnsky), with Appellee's Br. at 15 n.5 (claiming appellants' expert acknowledges the road was built in 1962, J.A. 92).

By 1996, the Srnskys (the current owners of the inholding) completed construction of a home on the inholding. Apparently concerned with the Srnskys' use of the road and the effects such use may have on the surrounding forest and on the buffalo clover, an endangered plant species, the Forest Service demanded that the Srnskys apply for a special use permit in order to continue using the road. When the Srnskys failed to comply with this demand, the Forest Service filed a complaint in district court, seeking to compel the Srnskys to apply for the permit. The government subsequently moved for and was granted summary judgment. J.A. 201-07. The district court rejected the Srnskys' claim that they have an implied easement but, in doing so, addressed only prescriptive easements and easements by necessity.

II.

Pivotal to this case is the sometimes elusive distinction between implied easements by way of necessity and implied easements from prior use (sometimes referred to as easements by implication). At times, courts loosely refer to both as implied reservations or implied easements. Here the distinction proves critical, because easements by implication, in contrast to easements by way of necessity, are not "extinguished merely because the reasonable necessity ceases to exist." Norken Corp. v. McGahan, 823 P.2d 622, 631 (Alaska 1991). For easements by implication, necessity must be established only at the time of conveyance.

Although West Virginia courts have sometimes used inconsistent terminology, see, e.g., Canei v. Culley, 374 S.E.2d 523, 524 (W. Va. 1988) ("A way of necessity is an easement founded on an implied grant or implied reservation.") (citation omitted), by focusing on the elements needed to establish each type of easement, we conclude that West Virginia recognizes both doctrines. In Berkeley Dev. Corp. v. Hutlzer, 229 S.E.2d 732 (W. Va. 1976), the court discussed easements by necessity. The court emphasized the necessity requirement and stated that once created, such an easement "cannot be extinguished so long as the necessity continues to exist." Id. at 851 (emphasis added).

In Stuart v. Lake Washington Realty Corp., 92 S.E.2d 891 (W. Va. 1956), the court dealt with easements by implication. The court described the three elements required for the creation of such easements: separation of title; "necessity that, before the separation takes place, the use which gives rise to the easement shall have been so long continued and obvious or manifest as to show that it was meant to be permanent"; and "necessity that the easement be essential to the beneficial enjoyment of the land granted or retained." Id. at 898-99 (quoting 17 Am. Jur., Easements, S 34); see Miller v. Skaggs, 91 S.E. 536, 537-38 (W. Va. 1917); see also 7 Thompson, Real Property S 60.03(b)(4)(i), at 426 (1994). The court stressed that "there is no implied reservation of an easement . . . unless the burden upon the land conveyed is apparent, continuous and necessary for the enjoyment of the land retained." Stuart, 92 S.E.2d at 898 (emphasis added).

Unlike easements by necessity, these rights by implication "could be lost only by adverse possession by the owner of the servient land." Id. at 901 (quoting Bennett v. Booth, 73 S.E. 909, 910 (W. Va. 1912)). That is, continuing necessity is not required. See also Bennett, 73 S.E. at 909 (holding that such easements pass "with the dominant estate, as appurtenant thereto").

The Supreme Court of Appeals of West Virginia recently confirmed the continuing vitality of easements by implication. See Robertson v. B A Mullican Lumber & Mfg. Co., 537 S.E.2d 317 (W. Va. 2000). "The general rule is that there is no implied reservation of an easement . . . unless the burden upon the land conveyed is apparent, continuous, and necessary for the enjoyment of the land." Id. at 319 (quoting Myers v. Stickley, 375 S.E.2d 595 (1988)). Because easements by necessity do not require an apparent or continuous burden the court could have referred only to an easement by implication.¹

The Srnskys view their claim as a textbook example of an easement by implication. They contend that the Forest Service road is the same road that the Wilmoths had always used to access what became the inholding. They claim that the Wilmoths' use of the road was open, apparent, and necessary before the conveyance. The district court determined, however, that the Srnskys could not demonstrate necessity at the time of the conveyance, because 16 U.S.C. S 478, part of the National Forest Service Organic Act of 1897 ("Organic Act"), 16 U.S.C. SS 473-82, 551, provided the Wilmoths a federal right of access. The plain language of the Organic Act, however, forecloses this conclusion.

Section 478 states:

Nothing [in the Organic Act] shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed . . ..

16 U.S.C. S 478 (emphasis added). First, the statute does not appear to create rights of ingress or egress at all. Second, "actual settlers" has a well-established technical definition. See, e.g., United States v. New Orleans Pac. Ry. Co., 248 U.S. 507, 516 (1918) (describing an actual settler as someone who "had the qualifications named in the homestead law, was expecting to acquire the title under that law, [and] had placed on the land a habitable dwelling in which he and his family were living") (emphasis added). The Wilmoths, far from being "actual settlers," sold the surrounding land to the government.

Finally, with limited exceptions,² the Organic Act applies only to forests reserved from public land. As enacted, section 478 referred not to national forests but to "such reservations[from public land]." 30 Stat. 36 (1897). See also 16 U.S.C. S 475 (discussing "[a]ll public lands designated and reserved" under the Act). The United States purchased this land directly from a private party (the Wilmoths) under the Weeks Act, 36 Stat. 961 (1911), codified at 16 U.S.C. SS 480, 500, 513-19, 521, 552, 563. J.A. 57-58. At the time of conveyance, the land surrounding the inholding was not public land. The Organic Act, we believe, simply has nothing to do with this case. See also 42 U.S. Op. Atty. Gen. 127, 127 n.1 (1962) (concluding that the Organic Act does not apply to land acquired under the Weeks Act).

The district court therefore disposed of the Srnskys' claim too quickly. Because the Organic Act does not apply, further factual development is required, unless, of course, federal law preempts existing easements.

III.

On appeal, the government does not seriously defend the district court's application of West Virginia law. Rather, it contends that whatever common law access rights the Srnskys may otherwise possess, the Organic Act; the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. SS 1701-1784; and the Alaska National...