UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
____________
No. 95-30916
____________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
194.08 ACRES OF LAND, MORE OR LESS, SITUATED
IN ST MARTIN PARISH, STATE OF LOUISIANA,
Defendant,
DANIEL A WILTZ; and JUANITA ELLIS WILTZ,
Defendants-Appellants.
Appeal from the United States District Court
For the Western District of Louisiana
March 9, 1998
Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART,
Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Daniel and Juanita Wiltz (the “Wiltzes”) appeal the district
court’s grant of summary judgment in favor of the United States.
The district court invalidated the conveyance of a deer hunting
servitude from a previous owner to the Wiltzes because the
government had already condemned the property that the servitude
burdened and held that the government had the authority to condemn
the servitude. We affirm.
I
This appeal arises out of the United States’ attempts to
acquire land for the Atchafalaya Basin Floodway System in Louisiana
(the “Project”). Congressional authorization for the Project dates
back to 1928, but in 1985 and 1986, Congress greatly expanded the
Project’s scope by authorizing the acquisition of 23,000 acres for
public access and for sporting and recreational activities,
including hunting, with the proviso that the land be acquired from
“willing sellers.” Accordingly, the U.S. Army Corps of Engineers
began to contact property owners in areas where it desired to
acquire land for the Project to determine if they would be willing
to sell their land.
In August 1989, the Wiltzes received a letter from the Corps
of Engineers inquiring whether they would be willing to sell part
of their property in St. Martin Parish, Louisiana, for use in the
Project. This property consisted of tract 167, a 94.08-acre tract,
and tract 206, a 100-acre tract. Both tracts were burdened by a
deer hunting servitude that Texaco had reserved and recorded when
it sold the tracts to a previous owner (the “deer hunting
servitude”).
The letter from the Corps of Engineers explained that the
United States desired to purchase 23,000 acres in fee simple,
excluding minerals, from “willing sellers.” The letter also stated
that if the Wiltzes were willing to sell their tracts of land but
were unable to agree with the government on the price to be paid,
they could agree to have a court determine a fair price in a
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condemnation action. If the Wiltzes were unwilling to sell their
property, the letter stated that the government would proceed to
condemn easements for flowage, developmental control, and
environmental protection.
The Wiltzes consented to sell their property, but they were
unable to agree on a price with the United States. Accordingly,
the Wiltzes signed two “Agreement[s] to Sell and Set Compensation
in Court” for tracts 167 and 206 (the “Agreements”). Each
Agreement recited that the Wiltzes owned the tracts and were
“willing sellers” of fee simple title, excluding minerals and
existing easements for public roads and highways, public utilities,
railroads, pipelines, and the Texaco deer hunting servitude.
Pursuant to these Agreements, the United States instituted
condemnation proceedings on June 14, 1991, in order to have a court
determine a fair price for both tracts. The government deposited
estimated just compensation with the court and filed a Declaration
of Taking that contained a broad description of the estate taken.
The government joined numerous defendants, including the Wiltzes,
Texaceaux Hunting Club, Inc., Continental Resources Co., Southern
Natural Gas Co., and all unknown owners, heirs, legatees and
assigns. Due to a faulty title search on the property, however,
the government failed to join Texaco as a defendant, even though
Texaco had clearly recorded the deer hunting servitude. As a
result, when the government served the named defendants by mail in
August 1991, it failed to serve Texaco, although it did publish a
lis pendens notice in a local newspaper.
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The Wiltzes thereafter decided that they did not want to sell
their property and attempted to withdraw their acceptance of the
Agreements. Protracted litigation ensued, and ultimately, the
Wiltzes and the United States reached a settlement for the
government’s acquisition of the tracts on March 2, 1994, under
which the Wiltzes received all of the estimated just compensation
previously deposited with the court and 94.4 percent of the accrued
interest. This settlement, which the district court duly accepted,
expressly decreed that no value had been included for the deer
hunting servitude.
Still angry that they had not been allowed to withdraw their
acceptance of the Agreements, the Wiltzes continued their challenge
to the government’s taking of their land in a roundabout method:
On March 30, 1994, they purchased the deer hunting servitude from
Texaco, and on April 28, 1994, they filed another answer to the
government’s condemnation action.1 The Wiltzes alleged that
because the government had failed to join Texaco in the
condemnation action, the deer hunting servitude had not been
extinguished by the Declaration of Taking. The Wiltzes also
claimed that neither they nor Texaco had consented to sell the deer
hunting servitude and, accordingly, argued that the government
lacked the authority to condemn the servitude. The district court
granted the government’s motion to belatedly join Texaco as a
1
Texaco subsequently filed an answer stated that it had
conveyed the deer hunting servitude to the Wiltzes in March 1994.
In the event that the conveyance should be held ineffective, Texaco
alternatively asserted that it would be entitled to $50 per acre as
compensation for the taking of the servitude.
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defendant and the Wiltzes’ motion to substitute themselves as
defendants in place of Texaco. The government admitted that the
deer hunting servitude existed prior to its institution of the
condemnation action and that Texaco possessed it at the time of
condemnation. The government also admitted that Texaco was a
necessary party to the complete adjudication of the taking and
served Texaco with a notice of condemnation in May 1994.
The Wiltzes and the government submitted cross-motions for
summary judgment, with the Wiltzes arguing that the United States
lacked the authority to condemn the deer hunting servitude and the
United States arguing that the servitude had been condemned in 1991
and that Texaco’s transfer of the servitude to the Wiltzes was,
accordingly, ineffective. The district court referred the summary
judgment motions to a special master, who filed a report
recommending that the government’s motion be granted. The special
master found that the servitude was within the scope of the estate
that the government condemned in 1991, and that the “willing
seller” requirement did not extend to servitude holders. As such,
the special master found that Texaco’s conveyance of the servitude
to the Wiltzes was ineffective because the servitude had been
extinguished and reduced to a claim for just compensation when the
United States filed the Declaration of Taking. The district court
adopted the special master’s report and granted the government’s
motion. The Wiltzes’ timely appeal followed.
II
We review the district court’s grant of summary judgment in
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favor of the government de novo. See Armstrong v. City of Dallas,
997 F.2d 62, 65 (5th Cir. 1993). Both parties agree that summary
judgment is an appropriate method to resolve this case and that
there are no genuine issues of material fact. They differ only in
whose favor summary judgment should be granted.
A
We first examine whether the scope of the estate that the
government condemned, as set forth in the 1991 Declaration of
Taking, included the deer hunting servitude.2 The default rule in
eminent domain is that a taking in fee simple establishes a new
title and extinguishes all existing possessory and ownership
interests not specifically excepted. See A.W. Duckett & Co. v.
United States, 266 U.S. 149, 151, 45 S. Ct. 38, 38, 69 L.Ed. 216
(1924). Thus, where the government takes fee simple title, it
takes all interests, even those it does not specify; where the
government takes less than fee simple title, it must expressly
indicate what lesser interests are excluded. See Buckhart v.
United States, 227 F.2d 659, 661 (9th Cir. 1955) (holding that a
2
In Louisiana, the term “fee simple estate” is not used,
but is “analogous to full ownership, where the elements of
ownership (uses, fructus and absus) are held in common by one
person.” Reaux v. Iberia Parish Police Jury, 454 So.2d 227, 230 n.2
(La. Ct. App. 1984). The Texaco deer hunting servitude is a
“limited personal servitude,” which is a right that confers a
limited use or enjoyment of property that belongs to another, see
LA. CIV. CODE art. 639 (West 1980), and is roughly analogous to an
easement in other states. See BLACK’S LAW DICTIONARY (5th ed. 1979)
(defining an easement as “a right of use over the property of
another”). In Louisiana, “fishing or hunting rights and the taking
of certain fruits or products from an estate may likewise be
stipulated in the form of a right of use servitude.” LA. CIV. CODE
art. 640 cmt. (b).
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Declaration of Taking “wipes out all interests” in property that
are not specifically excluded). When a Declaration of Taking is
ambiguous, we construe the scope of the estate taken in a
Declaration of Taking in light of the purposes for which the estate
is sought to be taken, the language of the entire declaration, and
the surrounding circumstances. See United States v. Pinson, 331
F.2d 759, 760-61 (5th Cir. 1964).
We first note that the Declaration of Taking stated that the
United States was taking fee simple title, less certain excepted
interests. Comparison of the narrower language used to describe
the estate taken in the Agreements and the broader language used in
the Declaration of Taking as well as the prominent mention of the
Texaco deer hunting servitude in the Agreements suggests that the
government intended the Declaration of Taking to be all-inclusive,
save for the specifically excepted interests.3 Pursuant to FED. R.
3
Both Agreements state that the Wiltzes are “owners” of
tracts 167 and 206 and that they are
‘willing sellers’ of fee title, excluding minerals, as
more fully described in the Attached Exhibit ‘B,’ said
land also being subject to existing easements for public
roads and highways, public utilities, railroads and
pipelines, and subject to the [Texaco Deer Hunting
Servitude].
By contrast, the Declaration of Taking described the estate taken
as:
fee simple title to the land, subject however, to
existing easements for public roads and highways, public
utilities, railroads and pipelines; excepting and
excluding from the taking all coal, oil, gas, and all
other minerals in and under said land and all appurtenant
rights used in connection with the exploration,
development, production and removal of said oil, gas and
all other minerals, including any existing structures and
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CIV. P. 71A, the government joined all other interest holders (with
the exception of Texaco) when it filed the Declaration of Taking,
while it neither consulted with nor obtained the consent of these
other interest holders with regard to the Agreements, suggesting
again that the government intended the Declaration of Taking to
include all interests not specifically excepted. Moreover, the
government was seeking to acquire land for public access and
sporting and recreational use, including hunting. It is difficult
to imagine that the government would acquire land for hunting use,
inter alia, while at the same time preserving Texaco’s hunting
rights. Cf. Pinson, 331 F.2d at 762 (“It would be patently absurd
to hold that the government, in taking by eminent domain a flowage
easement over land, intended at the same time to preserve a prior
flowage easement held by another over the same land.”). Finally,
when the United States and the Wiltzes settled, the Wiltzes
received all of the estimated just compensation but only 94.4
percent of the accrued interest; 5.6 percent of the accrued
interest was reserved to compensate Texaco for the deer hunting
servitude. If the Declaration of Taking did not include the deer
hunting servitude, there would have been no need to reserve this
5.6 percent for Texaco. Accordingly, we find that the estate taken
in the Declaration of Taking included the deer hunting servitude.
B
Having determined that the Declaration of Taking encompassed
the Texaco deer hunting servitude, the critical issue in this case
improvements . . ..
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becomes the validity of the Declaration of Taking. If the
Declaration of Taking is valid, then title to tracts 167 and 206
passed to the government in July 1991, when it filed the
Declaration of Taking. See 40 U.S.C. 258a (1997 Supp.) (“Upon the
filing said declaration of taking and of the deposit in the court
. . . title to the said lands in fee simple absolute, or such less
estate or interest therein as is specified in said declaration,
shall vest in the United States of America . . . .”). Texaco’s
subsequent conveyance of the deer hunting servitude in March 1994
would therefore be ineffective, either because the Declaration of
Taking extinguished Texaco’s servitude and replaced it with a claim
for compensation in July 1991 (and Texaco could not sell what it
did not own) or because Texaco’s conveyance of the servitude
violated the Assignment of Claims Act, 31 U.S.C. § 3727 (1983).4
See United States v. Dow, 357 U.S. 17, 20-21, 78 S. Ct. 1039, 1044,
2 L.Ed.2d 1109 (1958) (invalidating a property interest transfer
where the government instituted a condemnation action prior to sale
4
The Assignment of Claims Act provides that
(a) In this section, “assignment” means))
(1) a transfer or assignment of any part of a
claim against the United States Government or
of an interest in the claim; or
(2) the authorization to receive payment for
any part of the claim.
(b) An assignment may be made only after a claim is
allowed, the amount of the claim is decided, and a
warrant for payment of the claim has been issued.
31 U.S.C. § 3727.
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of the interest but filed the Declaration of Taking after its sale
because the condemnation action extinguished the prior owner’s
interest and replaced it with a claim for just compensation);
United States v. Mock, 476 F.2d 272, 273 (4th Cir. 1973) (holding
a property interest transfer to be invalid either because the
former owner no longer owned the property or because the transfer
violated the Assignment of Claims Act where the interest was
transferred after a Declaration of Taking was filed).
Before deciding whether the Declaration of Taking is valid,
however, we first address a related point. The government urges us
to hold that Texaco’s conveyance of the deer hunting servitude
violates the Assignment of Claims Act without looking at the merits
of this appeal. We reject this suggestion because the government
failed to notify or join Texaco as a defendant when it instituted
condemnation proceedings and filed the Declaration of Taking in
1991. See FED. R. CIV. P. 71A (c)(2) (“[A]ll persons having or
claiming an interest in that property whose names can be
ascertained by a reasonably diligent search of the records,
considering the character and value of the property involved and
the interests to be acquired” must be joined). We look to state
law to determine what interests are sufficiently important to
require joinder under Rule 71A, see Georgia Power Co. v. Sanders,
617 F.2d 1112, 1116 (5th Cir. 1980) (en banc), and under Louisiana
law, a servitude is an important property interest. See LA. CIV. CODE
ANN. art 639 & art. 640 cmt. (b) (West 1980). Therefore, Rule 71A
mandated that the government join Texaco, and its failure to do so
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means that Texaco and its assigns can challenge the validity of the
taking. See United States v. Catlin, 324 U.S. 229, 241, 65 S. Ct.
631, 637, 89 L.Ed. 911 (1945); United States v. Herring, 750 F.2d
669, 673-74 (8th Cir. 1984) (holding that lack of notice to a party
that should have been notified that its property interest was being
condemned does not invalidate the taking, but preserves the party’s
ability to subsequently challenge the statutory validity of the
taking and file a claim for compensation); United States v. 125.2
Acres of Land, 732 F.2d 239, 243-44 (1st Cir. 1984) (same). The
government also argues that publication of a lis pendens notice in
a local newspaper provided Texaco with sufficient notice of the
taking; we reject this argument because publication notice is
constitutionally inadequate where the owner could be informed by
more effective means. See Mullane v. Central Hanover Bank & Trust
Co., 339 U.S. 306, 314-16, 70 S. Ct. 652, 657-58, 94 L.Ed. 865
(1950). Accordingly, we consider the validity of the Declaration
of Taking.
The Wiltzes challenge the validity of the Declaration of
Taking by contending that the United States lacked the authority to
condemn property for public access purposes under the Water
Resources Development Act of 1986, Pub. L. No. 99-662, § 601, 100
Stat. 4082, 4137, 4142 (1986). The Wiltzes recognize that the sole
defense to a condemnation action is a lack of authority. See United
States v. 162.20 Acres of Land, 639 F.2d 299, 303 (5th Cir. 1981).
Citing the principle that a condemnee may challenge “the validity
of the taking for departure from the statutory limits,” Catlin, 324
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U.S. at 240, 65 S Ct. at 637, they contend that the Act authorized
the acquisition of land in fee simple from “willing sellers” only,
and that the United States was required to obtain the consent of
Texaco, which it admittedly failed to get. They further argue that
the government lacked the power to condemn the servitude because
the authorization to condemn easements for flowage, development
control, and environmental protection if property owners were
unwilling to sell their property for use in the Project implicitly
limited the Corp of Engineers to condemning only these easements
and not other property interests.
1
We first address the Wiltzes’ argument that the “willing
seller” requirement extends to servitude owners and that the
government was required to obtain the consent of Texaco. The
special master and district court held that this case is governed
by United States v. Certain Parcels of Land in Fairfax County, 345
U.S. 344, 73 S. Ct. 693, 97 L.Ed. 1061 (1953). In that case, the
Belle Haven Realty Corporation, holder of the fee to a sewer system
the government sought to utilize, agreed to accept nominal
compensation from the government for its sewer properties in
exchange for the government’s agreement to take the system and to
protect Belle Haven householders from future charges for its use.
The government then filed a condemnation petition and a Declaration
of Taking and took possession of the system. Belle Haven
householders, who later alleged that they had been granted
easements in the system, were neither consulted nor joined as
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defendants. They subsequently attacked the taking of the system as
unauthorized under the Lanham Act of October 14, 1940,5 ch. 862, 54
Stat. 1125, 42 U.S.C. § 1521, repealed by Act of July 3, 1952, ch.
570, § 1(a)(12), 66 Stat. 3362, because under the 1943 amendment to
that Act, the government could acquire existing public works only
from “willing sellers,” and the government had not obtained their
consent. The Court held that the corporation had consented to the
taking of the system and the householders were not “owners” whose
consent was required prior to the taking. Id. at 348-49, 73 S. Ct.
at 695-96.
The Supreme Court noted that while the Lanham Act contained a
provision permitting the government to acquire “improved or
unimproved lands or interests in lands” by condemnation, the 1943
amendment to the Act at issue in Fairfax County authorized the
acquisition of existing public works only “with the consent of the
owners thereof.” Id. at 348, 73 S. Ct. at 695. The Court
explained that the consent requirement in the amendment did not
obviate the condemnation provision in the Act because consent can,
inter alia, “represent an election to have value determined by a
court rather than by the parties.” Id., 73 S. Ct. at 695.
Crucially, in response to the lot owners’ argument that the Act
required the consent of all of the holders of interests in a piece
5
The Lanham Act of October 14, 1940 provided relief for
defense areas with an existing or impending housing shortage by
authorizing the condemnation of land for construction sites. 54
Stat. 1125. The 1943 amendment to the Act authorized the
acquisition of existing public works where the government obtained
the consent of the owners.
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of property, the Court limited the “willing seller” requirement:
In deciding who are “owners” here, we look to the scheme
of the Act itself. We think it unlikely that in providing
for the condemnation of public works, Congress at the
same time intended to make preliminary negotiations so
cumbersome as to virtually nullify the power granted. Yet
the interpretation pressed by respondents would have that
effect. It would compel the government, before taking
public works, to deal with the holder of every servitude
to which the property might be subject.
Id. at 349, 73 S. Ct. at 696.
Neither the authorization provisions of the Water Resources
Development Act nor the facts of this case differ sufficiently from
those in Fairfax County to provide reason to stray from the Supreme
Court’s binding precedent. Factually, as contemplated by the
instruction that the government acquire land from “willing
sellers,” the Wiltzes consented to the sale of their land and
agreed to have compensation set in a court proceeding. Texaco, the
holder of the deer hunting servitude, was neither consulted nor
joined as a defendant. The Wiltzes, having obtained the servitude
from Texaco, now attack the taking of the servitude as unauthorized
under the Water Resources Development Act because the government
did not obtain Texaco’s consent prior to the taking.
The grant of authority in the 1943 amendments to the Lanham
Act is not meaningfully distinguishable from the grant of authority
in the Water Resources Development Act which, as explained by the
Chief of Engineers’s report and the Real Estate Design Memorandum
discussed below, permits the acquisition of land from “willing
sellers” and contemplates condemnation proceedings between the
government and “willing sellers” to resolve “problems.” The rule
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of Fairfax County also serves the pragmatic purpose of facilitating
land acquisition by the government; requiring the government to
obtain the consent of every servitude holder, as the dissent
suggests, would greatly impede the ability of the government to
acquire land because the owner of any servitude could hold out and
extract windfall profits for his or her consent, no matter how much
the owners of other interests in the property desired to sell their
interests. See Fairfax County, 345 U.S. at 349, 73 S. Ct. at 696.
The legislative history of the Water Resources Development Act
and various Corps of Engineer memorandum, while not clear, also
suggest that Congress intended to balance the “willing seller”
requirement with practical concerns. The Water Resources
Development Act authorized the Atchafalaya Basin Project to be
carried out substantially in accordance with a February 28, 1983
report issued by the Chief of the Corps of Engineers. See Pub. L.
No. 99-662, 100 Stat. 4082, 4137 (1986). The 1983 report described
the land subject to potential acquisition as “approximately 50,000
acres of lands identified by the State [of Louisiana] as being
available from ‘willing sellers.’” Department of the Army, Office
of the Chief of Engineers, Atchafalaya Basin Floodway System, LA
¶ 3(a)(4) (Feb. 28, 1983). Various subsequent appropriation acts
authorized the disbursement of public monies to purchase property
in fee simple for the Project, in accordance with this report. See
Continuing Appropriations, Fiscal Year 1988, Pub. L. No. 100-202,
101 Stat. 1329, 1329-110 (1987); Supplemental Appropriations,
Fiscal Year 1985, Pub. L. No. 99-88, 99 Stat. 293, 313 (1985).
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Other statutes, however, directed the Corps of Engineers to
“expedite” the acquisition of fee simple title to property for the
Project. See Energy and Water Development Appropriations Act,
Fiscal Year 1991, Pub. L. No. 101-514, 104 Stat. 2074, 2078 (1990).
The Real Estate Design Memorandum issued by the Corps of Engineers
in 1988 outlining the acquisition of land for the Project also
carefully limited the willing seller requirement to “landowners.”6
Accordingly, we hold that in enacting the Water Resources
Development Act, Congress did not intend to require the Corps of
Engineers to obtain the consent of servitude holders when it used
the term “willing seller.”7
6
The Memorandum stated:
In order to identify “willing sellers” we propose to have
the property appraised for fee title purchase as well as
for acquisition of appropriate easements. We will inform
the landowners as to the value of fee title for public
access and begin preliminary negotiations. . . . If there
are problems we will ask landowners to sign a statement
that they are willing to proceed with condemnation in
order to resolve the problem.
. . . For this project, negotiations are required
even if landowners are not willing sellers since
developmental control and environmental protection
easements are required over the land if it is not
purchased in fee.
United States Army Corps of Engineers, Flood Control, Mississippi
River and Tributaries, Atchafalaya Basin Floodway System, LA: Real
Estate Design Memorandum No. 1, at 3 (2d Rev.) (August 1988)
(emphasis added).
7
The Wiltzes cite several responses by the Corps of
Engineers and an assistant attorney general to inquiries by
Louisiana Senators Breaux and Johnston for the proposition that the
Corps could acquire “fee title only from willing sellers.” Even
assuming the responses could bind the Corps, however, we find these
letters to be ambiguous because they discuss only fee title
acquisition and not whether the “willing seller” requirement
extends to servitude holders or whether the United States can
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The Wiltzes argue that it would be inequitable not to require
the consent of servitude holders because, in some circumstances,
the holder of a servitude may have rights greater than those of the
fee owner. The Wiltzes also argue that the “willing seller”
requirement should extend to servitude holders because under state
law, the Wiltzes did not have the power to affect Texaco’s rights
as a servitude holder))i.e., the Wiltzes could not sell what they
did not own. See LA. CIV. CODE art. 620. This latter argument is
echoed by Chief Judge Politz’s dissent, which contends that “[t]he
critical error in the majority’s analysis results from a failure to
accord to the servitude at issue that which the Civil Code
mandates.” With regard to the Wiltzes’ first contention, and Chief
Judge Politz’s dissent, the present case presents no such
circumstances, but it is possible that no servitude might be
sufficiently important because in Fairfax County, the Supreme Court
held that the consent of the lot owners was not required even
though they were owners pro tanto of the sewer system and their
interests in the sewer system comprised “the only real value that
it had.” 345 U.S. at 350, 73 S. Ct. at 696 (Vinson, C.J.,
dissenting). With regard to the Wiltzes’ second argument and to
Chief Judge Politz’s dissent, in Fairfax County, the Supreme Court
specifically held that the willing seller requirement, and the
corresponding issue of whose consent is required, are a matter of
federal, not state, law. Fairfax County, 345 U.S. at 349, 73 S.
condemn servitudes when the landowner consents to the sale.
Therefore, we do not accord any weight to these responses.
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Ct. at 696 (“In deciding who are ‘owners’ here, we look to the
scheme of the Act itself.”). Therefore, the United States was not
required to obtain Texaco’s consent before condemning the deer
hunting servitude.
2
Having decided that the “willing seller” requirement does not
extend to servitude owners, we address the Wiltzes’ argument that
the authorization to condemn easements for flowage, development
control, and environmental protection if property owners were
unwilling to sell their property implicitly limited the Corps to
using its condemnation powers only to acquire these easements and
not to condemn other property interests. The Declaration of Taking
Act cannot supply any authority to condemn property because it is
only a procedural vehicle by which the government may take
possession of land that is being condemned. See United States v.
Dow, 357 U.S. 17, 23, 78 S. Ct. 1039, 1045, 2 L.Ed.2d 1109 (1958).
We find that there is no basis for the claim that the Corps of
Engineers lacked the authority to condemn the deer hunting
servitude. The federal condemnation statute gives the government
the power to condemn any property that Congress has authorized it
to acquire. See 40 U.S.C. § 257 (1986) (“In every case in which .
. . any other officer of the Government has been, or hereafter
shall be, authorized to procure real estate for . . . public uses,
he may acquire the same for the United State by condemnation, under
judicial process, whenever in his opinion it is necessary or
advantageous to the Government to do so . . . .”). Under the
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auspices of the Water Resources Development Act, Congress directed
the Corps of Engineers to “acquire necessary interests in real
estate for all features of the project, flood control, development
control, environmental protection, and public access.” Pub. L. No.
100-202, 101 Stat. 1329-110 (1987). This same act also directed
the Corps to “expedite the acquisition, in fee simple, of lands,
excluding minerals, for public access in the Atchafalaya Basin
Floodway System.” Id; see also Pub. L. 101-514, 104 Stat. 2074,
2078 (1990). As both the special master and the district court
noted, this language clearly authorizes the acquisition of land,
and, implicitly under section 257, the condemnation of lesser
property interests for the Project. See South Dakota v. United
States Dept. of the Interior, 69 F.3d 878, 882 (8th Cir. 1995)
(holding that a statute that authorized the department to acquire
land in trust for Indians impliedly authorized condemnation);
United States v. 125.2 Acres of Land, 732 F.2d 239, 244 (1st Cir.
1984) (rejecting the argument that the United States lacked the
authority to condemn land where the relevant statute gave the
government “broad power to acquire, establish, maintain and
operate” air navigation facilities); United States v. 3.38 Acres of
Land, 484 F.2d 1140, 1142 (4th Cir. 1973) (holding that a general
appropriations act may provide a sufficient basis for condemnation
where Congress intended the act to authorize the acquisition).
Against the broad panoply of these cases widely interpreting
the government’s condemnation power, the Wiltzes bring no authority
to our attention to support their contention that authorization to
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condemn an easement if the property owner does not consent to sell
bars the government from condemning lesser property interests.
Moreover, concluding that the government could not condemn lesser
property interests would undercut our holding that the “willing
seller” requirement does not extend to servitude holders because
the government would then have no way to acquire lesser interests
save for obtaining the consent of their holders. Accordingly, we
affirm the district court’s holding that the government was
authorized to condemn the deer hunting servitude.
C
Our holdings that the Declaration of Taking included the deer
hunting servitude, that the United States was not required to
obtain the consent of Texaco prior to condemning the servitude, and
that the government was authorized to condemn the servitude render
Texaco’s conveyance of the servitude to the Wiltzes ineffective.
As a result, Texaco can submit a claim for compensation for the
taking of the deer hunting servitude because the government failed
to notify or join it in the condemnation action. See Dow, 357 U.S.
at 20-21, 78 S. Ct. at 1044. (“The owner at the time the Government
takes possession ‘rather than the owner at an earlier or later
date, is the one who has the claim and is to receive payment.’”
(quoting 23 Tracts of Land v. United States, 177 F.2d 967, 970 (6th
Cir. 1949)). The Wiltzes may argue that it would be inequitable to
hold the conveyance ineffective because Texaco will receive double
payment for the servitude, once from the Wiltzes and once from the
government if it files a claim for compensation for the servitude.
-20-
The Supreme Court rejected this precise argument in Dow, however,
noting that there are contractual means by which later purchasers
such as the Wiltzes can protect themselves in the event that a
conveyance turns out to be ineffective.8 See Dow, 357 U.S. at 27,
78 S. Ct. at 1047.
Accordingly, the district court’s grant of summary judgment in
favor of the United States is AFFIRMED.
ENDRECORD
8
Chief Judge Politz’s dissent contends that because the
government did not join Texaco and give it the required Rule 71A
notice, the government’s taking of the deer hunting servitude is
invalid and the government must therefore compensate the Wiltzes
for its value. Contrary to this argument and as our opinion
discusses above, courts generally hold that the failure to give
notice does not invalidate a taking, but preserves the right of the
holder to challenge the taking. See United States v. Herring, 750
F.2d 669, 673-74 (8th Cir. 1984); United States v. 125.2 Acres of
Land, 732 F.2d 239, 243-44 (1st Cir. 1984). The government
therefore validly took the deer hunting servitude in 1991 and
Texaco could not transfer it to the Wiltzes in 1994. As such, the
right to compensation belongs to Texaco, not to the Wiltzes.
-21-
POLITZ, Chief Judge, dissenting:
The majority opinion fails to apply the Louisiana Civil Code provisions
controlling immovable property and I must respectfully dissent.
In my opinion the unique characteristics of Louisiana’s civil law involving
immovables, the common-law equivalent of real property, are dispositive of the
issue before us today and these provisions mandate reversal. Although eminent
domain powers are derived from federal law,9 a proper view of federalism requires
that the law of the state where the immovable property is located become the
controlling federal rule when a court must determine property interests and the
proper disposition thereof.10
Under the Louisiana Civil Code, fee simple title and easements do not exist
as such. The common-law term “fee simple” corresponds to what in civil law is
known as “perfect ownership.”11 “Perfect ownership” gives the unlimited right to
use, enjoy, and dispose of one’s property, and these rights, termed the “usus,”
“fructus,” and “abusus,” must be united in the same person to constitute “perfect
ownership.”12 When, as is presented in this case, the property is subject to a limited
personal right-of-use servitude, the element of “usus” is restricted and ownership
is burdened with a real right in favor of another, leaving the property owner with
9
United States v. Certain Parcels of Land in Fairfax County, 345 U.S. 344 (1953).
10
Georgia Power Co. v. Sanders, 617 F.2d 1112 (5th Cir. 1980).
11
Wilson v. Aetna Ins. Co., 161 So. 650 (La.App. 1935).
12
Id.
only “naked ownership.”13 As naked owners the Wiltzes could not, as the majority
holds, sell to the government a property interest they did not own, i.e., the
common-law equivalent of fee simple title. That is not legally possible under the
controlling civil law provisions.
The critical error in the majority’s analysis results from a failure to accord
to the servitude at issue that which the Civil Code mandates. Under Louisiana’s
civil law system, “servitudes are restraints on the free disposal and use of
property.”14 A limited personal right-of-use servitude involves an element of the
right of ownership -- the “usus” element.15 Louisiana courts have underscored that
a servitude under Louisiana law is not legally identical to an easement under the
common law because the servitude owner occupies a significantly superior
position. Under the civil law, the owner of the servient estate can do nothing to
diminish the use of the servitude or make it more inconvenient.16 Accordingly,
Fairfax County,17 upon which the majority heavily relies, is distinguishable, not
13
La. Civ. Code art. 478.
14
Buras Ice Factory, Inc. v. Department of Highways of La., 103 So.2d 74, 80
(La. 1957).
15
3 A.N. Yiannopoulos, Personal Servitudes §§ 1, 237 (3d ed. 1989).
16
Arkansas Louisiana Gas Co. v. Cutrer, 30 So.2d 864 (La.App. 1947);
Louisiana Power & Light Co. v. Bennett, 107 So.2d 468 (La.App. 1958); La.
Civ. Code art. 748; see also La. Civ. Code art. 645.
17
345 U.S. 344.
-23-
dispositive18 and, most importantly, cannot be applied in a civil law setting with its
unique property ownership structure. In light of the unyielding legal provision that
a limited personal right-of-use servitude includes an element of the right of
ownership under civil law, when land that is burdened with a servitude is taken by
eminent domain, if the government is to obtain the common-law equivalent of fee
simple title the government must take both ownership and servitude, making the
person entitled to the servitude a necessary party to the proceedings. The
government in this instance not only failed to obtain the servitude holder’s consent,
but it failed to make the servitude holder a party to the underlying proceedings by
giving the requisite Rule 71A notice.
The government did not obtain the common-law equivalent of fee simple
title. It could not do so from the Wiltzes alone; it did not do so by adding Texaco,
assuming it had the power to do so.19 The Texaco deer-hunting servitude, a real
interest in the property, has not legally been acquired by the government. It
belongs to the Wiltzes. They should be compensated for its fair value if they are
deprived of its ownership as the majority has affirmed. I must dissent. I would
18
The Lanham Act of October 1940 controlled in Fairfax County. The
condemnation authority granted by Congress in that Act, as amended in 1941
authorizing condemnation of public works, including sewers, is significantly
legally different from the power granted in the instant case.
19
Under the Water Resources Development Act of 1986, Pub.L. No. 99-662,
§ 601, 100 Stat. 4082, 4137, 4142 (1986), the government’s power herein was
limited to securing full ownership from willing sellers. Its powers of expropriation
were limited to acquiring easements over private land for flood control and
environmental protection. It was not given authority to expropriate property for
recreational development and public access. Nonetheless, that effectively has been
done herein.
-24-
vacate the summary judgment entered by the district court and remand for entry of
summary judgment in favor of the Wiltzes.
-25-
United States v. 194.08 Acres of Land
Court: Court of Appeals for the Fifth Circuit
Date filed: 1998-03-09
Citations: 135 F.3d 1025
Copy Citations