dissenting.
I cannot join the court’s award of $4,686.10 in attorney fees and costs for preservation of an interest in real estate worth, exclusive of interest, something less than $100.00 or thereabout.
Here, the money at issue is important, not so much as a factor in determining reasonableness of the award for fees, as in assessing the pre litigation position of the respective parties to the litigation.
The court today finds the government unreasonable in failing to make a prelitigation offer to settle Herring’s claim. Yet one may search the record in vain for any indication that at or immediately before filing of his complaint Herring would have entertained an offer of $100.00 plus interest from date of taking in 1960. On the contrary, Herring’s position, so far as the record reflects, was that he had title to the lands in question and if the government wanted the land it should pay for it at current inflated prices. Indeed, it was the government’s suggestion, never adopted by Herring, that if Herring was entitled to anything, it was compensation at 1960 prices.
It strains imagination to predicate an award of fees on the likelihood that any realistic offer based on 1960 land values would have been accepted. For Herring, a bundle of money, or title to the land, was the thing.1
In considering EAJA claims, it is now accepted in this circuit that substantial justification for the government’s position must be determined by consideration of the totality of the circumstances — prelitigation and during litigation. United States v. 341.45 Acres of Land, 751 F.2d 924, 940 (8th Cir.1984). Today’s majority finds that it cannot conclude that the district court abused its discretion in finding that, under the totality of the circumstances, the government’s position was not substantially justified. The district court made no express findings of its own on the issue of attorney fees. Rather, that court accepted the recommendation of the magistrate, concluded that Herring was a prevailing party, that the position of the government was not substantially justified, and made an award of fees. We may assume that both the district court and the magistrate considered, although they did not detail, the totality of the circumstances as known to them at the time.
However, as the case then stood, this court had not announced its decision in Herring I, 750 F.2d 669, and neither the district court nor the magistrate had reason to believe the basic decision of the district court would be reversed on the merits. Thus, in affirming an award of fees, we have no way of knowing what weight our reversal might have had in the district court’s examination of the totality of the circusmtances. While this court styles its affirmance on the fee award as a failure to find an abuse of discretion, since the totality considered by the district court and the magistrate necessarily was based on an erroneous view of the outcome of the case, in effect it is clear that this court is *123making its own evaluation de novo guided by the magistrate’s view of prelitigation conduct.
Turning then to de novo consideration, I find it difficult to hold that Herring was a prevailing party. Basically, Herring did not sue for compensation, which is yet to be determined;2 he sued for title. There is a distinction between lawsuits regarding the authority and validity of condemnation proceedings and lawsuits concerning the amount of compensation owed to property owners. 341.45 Acres of Land, 751 F.2d at 937 (quoting Government of Virgin Islands v. 19.623 Acres of Land, 602 F.2d 1130, 1135-36 (3d Cir.1979)). Since Herring sued for title, he cannot be considered the prevailing party on that issue simply because he was found to be entitled to some minimal compensation.
It is quite true that a party can be considered a prevailing party if he receives some benefit he sought in bringing the suit, even if he does not win on all issues. 341.45 Acres of Land, 751 F.2d at 936 (quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4990). Herring, however, did not win any substantial benefit he sought in bringing this suit. As stated, he asked for title, and he lost. The government prevailed on most of the significant issues. The government argued that its title could not be voided by insufficient notice and it was correct. Although Herring prevailed on the procedural issue of which statute he could sue under, and on some collateral issues such as adverse possession, the government prevailed on the substantive issue of title.
But accepting for present purposes the conclusion that Herring was a prevailing party in that he won the right to proceed as he did and successfully maintained an attack on the validity of the government’s original service of process and its subsequent possession, it is clear that the government’s litigation position was substantially justified. The majority here concedes as much with respect to the government’s position concerning the use of the Quiet Title Act as a vehicle for collateral attack on title in condemnation cases.
Going further, I find that at trial of the issues of service of process and adverse possession, the government presented a formidable, though losing defense. The government was relying on solemn decrees of the district court awarding possession, fixing compensation and confirming title. For some unknown reason, in deciding the issue of possession the district court apparently took no note of the order of possession and it was unpersuaded by evidence of at least one sign posted on the property by the government, of instructions given to one Jones to keep trespassers off the property, and of at least some degree of intermittent flooding of portions of the land.
With respect to both validity of service upon or notice to Herring and possession the district court relied in part upon Herring’s payment of taxes for years since 1960 and charged the government with knowledge of addresses shown on certain alleged tax receipts for such years, evidently without recognizing that once the land was condemned and notice given, as it was, to county tax officials, the land in question was not subject to local taxation and there was no reason for any government official to be aware of local tax records.
In short, the government might well have won on all issues and arguably should have won on all issues.
Ultimately then the case comes to a de novo decision as to whether the government should have made a prelitigation offer to settle Herring’s claim. Let us examine the state of affairs existing in 1980 when Herring’s claim arose. As of 1980 the government was armed with title based upon condemnation proceedings completely regular so far as the government reasonably could be expected to determine. Service by publication was regular on its face. *124Herring not being found within the jurisdiction and his address being unknown, attempted personal service was returned by the marshal nulla bona.
After twenty years the government’s administrative files had been stripped of detail and were no longer available. The Greers Ferry Dam and Reservoir had been fully operable and operating for many years. The government with good reason had thought its operation and possession for years under facially regular court decrees and a declaration of taking were eminently correct. In such circumstances, what offer of any consequence could the government justifiably make? To ask the question is to answer it — none!
It seems to me that what the court is doing here is imposing punishment for a mistake the court thinks the government made in 1960 in the original condemnation case. If there was such a mistake, which I doubt, it does not justify an award of attorney fees here.
As indicated, I dissent.
. The Indiana humorist, “Kin" Hubbard, has been quoted as saying “When a fellow says ‘It ain’t the money it’s the principle of the thing,’ it’s the money.”
. Since we decided in Herring I, 750 F.2d at 674, that Herring had an equitable lien, the issue of the amount of compensation is only now being decided. It is not suggested that compensation at 1960 levels is much, if any, more than minimal.