United States v. 1,629.6 Acres of Land

OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: This appeal arises out of a suit by the United States government to condemn 1,629.6 acres of land in Sussex County, Delaware. The defendants in the action were Island Farm, Inc. (Island Farm) and Jennie H. J. Layton (Layton). The government and Layton have appealed from the decision of the district court and Island Farm has responded with a motion that seeks dismissal of Layton’s appeal or in the alternative a “summary affirmance.” Layton’s appeal takes issue with the district court’s determinations on the boundary and title disputes that arose, between herself and Island Farm, in the litigation. The district court’s decisions on these issues generally favored Island Farm and had the effect of increasing its compensation award and reducing Layton’s. The government’s appeal is concerned primarily with what it contends are errors made in computing the [766] compensation that Island Farm is to receive for the taking of its land.1 Since the facts relevant to these issues are fully explained by the district court, United States v. 1,629.6 Acres of Land, 335 F.Supp. 255 (D.Del.1971), we will not repeat them here. Further, with the exception of a single issue, we are in full agreement with the district court’s analysis and discussion of the questions raised on appeal. As a result, on all issues other than one dealt with below, we affirm on the basis of the district court’s fine opinions. 335 F.Supp. 255 (D.Del.1971); 360 F.Supp. 147 (D.Del. 1973).2 Our only disagreement with the district court concerns its determination on the question of title to the barrier beach lánd in the area designated by the court as Segment II (hereinafter referred to as “Segment II beach land”). See 335 F.Supp. at 277. We feel that the district court erred when it concluded that this land belonged to Island Farm rather than to Layton. Before discussing the merits of this issue, we must deal with a preliminary objection raised by appellant Lay-ton — that is, that the district court lacked jurisdiction to decide this title question. This contention is based on the fact that the Segment II beach land is not a part of the land condemned, but instead is a piece of land severed from the property taken. As a result, resolution of the dispute over title to this land affects these proceedings only through the effect that it has on the severance damages to be awarded to each defendant. This relation to the proceedings is, according to Layton, insufficient to create jurisdiction. We do not agree. The district court clearly has jurisdiction in a eon-demnation proceeding brought by the United States government to fix the amount of compensation awarded, and to apportion it among the claimants, 6 J. Moore, Federal Practice jf 71A.10 [1]. Moreover, this latter right necessarily includes the power to determine who among competing claimants owns the condemned land. See United States v. 22,680 Acres of Land, 438 F.2d 75 (5th Cir. 1971); United States v. Atomic Fuel Coal Co., 383 F.2d 1 (4th Cir. 1967); Tyson v. Iowa, 283 F.2d 802 (8th Cir. 1960); Clark v. White, 185 F.2d 528 (5th Cir. 1950). We believe that the court’s jurisdiction to determine the amount of compensation and its allocation would be significantly hampered if we were to hold that the power to resolve title questions extends only to disputes involving title to the condemned land itself. First, such a ruling would make it impossible for the court to exercise its power to apportion the compensation among competing claimants, in any ease involving a dispute as to the ownership of severed land, since it would be impossible to determine which party was entitled to the severance damages awarded. Second, since damages to the severed land are likely to vary from claimant to claimant, this ruling would also make it impossible, in many cases (including this one), to determine even the amount of compensation to be awarded. Thus, as a practical matter, the jurisdiction of the district court should include the right to resolve title disputes involving severed, as well as condemned, lands so that it can handle all phases of condemnation cases effectively. Since such a holding is entirely compatible with the language of the statutes conferring jurisdiction in this area, 28 U.S.C. [767] §§ 1345, 1358 (1970), we adopt this approach. Accord United States v. 11,-993.32 Acres of Land, 116 F.Supp. 671 (D.N.D.1953).3 With regard to the merits of the dispute over title to the Segment II beach land, we feel that the judgment in favor of Island Farm must be reversed. The district court took the position that Island Farm was vested with riparian rights and that as such it was entitled to accretions forming in front of its property. While we can assume arguen-do that the court’s discussion of the law as it applies to landowners with riparian rights is correct, we cannot accept its initial premise; that is, that Island Farm is vested with riparian rights. As the district court itself noted the general rule is that “riparian rights attach to land adjacent to natural watercourses, but do not attach to land adjoining an artificial channel.” 335 F. Supp. at 271 (emphasis added). Since the Broadkill Inlet was formed by artificial means, this would seem to prevent riparian rights from attaching to the lands owned by Island Farm. However, the district court went on to point out that there are exceptions to this general rule, and it concluded that two of these exceptions were applicable here. The first exception that the court applied is based on the theory of prescriptive rights. Several authorities are cited for the proposition that riparian rights can be obtained on artificial waterways by prescription.4 However, even if we assume that the district court has cited to a correct rule of law, it can have no application here since prescriptive rights cannot be obtained against the federal government.5 This is fatal to Island Farm’s claim since the government owned the land upon which the Broadkill Inlet was constructed until 1957, three years after the inlet had completely filled in to reform an unbroken barrier beach.6 Thus, throughout the period that Island Farm adjoined the artificial waterway, that waterway was owned by the government so that no riparian rights could attach by prescription.7 The second exception to the general rule barring riparian rights in artificial channels that was relied upon by the district court can be summarized as follows: under certain circumstances artificial waterways will be treated ,as though they are natural.8 Once again, the court has cited to what we can assume is a valid rule of law, but has applied it in a case where the facts bar its application. [768] While the cases we have found that rely on this rule are somewhat vague in defining its requirements, the vast majority do share at least one common characteristic — they have applied the rule only in situations where the party invoking it has relied upon use of the artificial waterway that is deemed “natural” for legal purposes.9 Since no such reliance by Island Farm has been suggested here, we feel that this exception cannot be applied.10 Thus, the Broadkill Inlet is to be treated like any other artificial waterway and riparian rights cannot attach to lands adjacent to it.11 As a result, Island Farm cannot obtain title to the Segment II beach land through the operation of the rules that govern the allocation of title to accretions forming in front of lands that are vested with riparian rights since no such rights ever vested in Island Farm.12 The judgment of the district court will be reversed and the cause remanded for a determination of the Island Farm-Layton boundary in the area designated as “Segment II” and for all other adjustments in the judgment of the district court made necessary by our decision. Each party will bear its own costs. [769] Judge HANNUM concurs in this opinion and in Judge ROSENN’s concurrence as well. Footnotes [1] The government also seeks to appeal from the district court’s key title determination with regard to the barrier beach land. We seriously doubt the government’s right to raise this issue on appeal, since it chose not to involve itself in the district court’s proceedings on the question in any way. However, the same issue is raised by Layton, so that we reach it in any case. [2] The issues raised by Island Farm in its “Motion to Dismiss Defendant Layton’s Notices of Appeal, or, in the alternative, for Summary Affirmance of the District Court’s Title Determination” were not raised before the district court or discussed in its opinions. However, these contentions are clearly without merit and will be rejected without further discussion. [3] Layton also argues, in the alternative, that the district court should have abstained from deciding the title issue. Even if we assume that state law is to he applied in resolving the title dispute presented here, see note 10 infra, we cannot accept this contention. As we have noted in the text federal courts make title decisions as a matter of course where the land in dispute is actually taken in the condemnation proceedings. See United States v. 22,680 Acres of Land, supra; United States v. Atomic Fuel Coal Co., supra; Tyson v. Iowa, supra; Clark v. White, supra. If abstention is inappropriate in these eases, it is equally inappropriate in cases like the present one w' ere the court must determine title to land outside the condemned area in order to complete the proceedings. The court in each instance is required to interpret the same body of state law and the issues involved are not made different or more uncertain simply because the property in dispute is not condemned. The mere physical location of the land cannot make abstention more or less appropriate. [4] 335 F.Supp. 271 n. 74. [5] See Annot., 55 A.L.R.2d 554, 563, 576 (1957); 25 Am.Jur.2d Easements & Licenses § 41 (1966). [6] Opinion of the district court, 335 F.Supp. at 261. This finding is not clearly erroneous. [7] Island Farm’s claim to prescriptive riparian rights appears to suffer from a second defect, as well, since adverse use of these rights does not appear to have been established. 93 C.J.S. Waters § 129d (1956). [8] The rule is more fully explained by the district court, 335 F.Supp. at 272. [9] Clement v. State Reclamation Board, 220 P.2d 897, 35 Cal.2d 028 (1950); Natural Soda Prod. Co. v. Los Angeles, 23 Cal.2d 193, 143 P.2d 12 (Cal.1943); Delaney v. Boston, 2 Del. (Harr.) 489 (1839); Stimson v. Brookline, 197 Mass. 568, 83 N.E. 893 (1908); Kray v. Muggli, 84 Minn. 90, 80 N.W. 882 (1901); Taggart v. City of Jaffrey, 75 N.H. 473, 76 A. 123 (1910); Earl v. DeHart, 12 N.J.Eq. 280 (1856); Townsend v. McDonald, 12 N.Y. 381 (1855); Cloyes v. Middlebury Elec. Co., 80 Vt. 109, 66 A. 1039 (1907); Murchie v. Gates, 78 Me. 300, 4 A. 698 (1886). Kansas is the only jurisdiction we have been able to find in which the rule appears to be applicable in cases where there is no apparent reliance upon the artificial waterway by the party invoking it. Hornor v. City of Baxter Springs, 116 Kan. 288, 226 P. 779 (1924); Mo. Pac. R.R. Co. v. Keys, 55 Kan. 205, 40 P. 275 (1895). However, even these cases can be distinguished from the present case since they involve the diversion of natural streams into artificial channels, rather than Hie creation of wholly new waterways. [10] Naturally, other factors in addition to “reliance” may be prerequisite to the application of this rule. However, since this necessary requirement, is absent in this case, there is no need to explore other requirements that may exist. [11] We note that the appellants disagree over whether this title dispute is governed by state or federal law. The government’s brief, at page 8 n.4, asserts that federal law controls since Layton claims under a quitclaim deed from the government. Layton, on the other hand, by arguing that the federal courts should abstain from deciding t'. e question implicitly suggests that state law controls. Since Delaware law coincides with our view of the proper federal rule in this area, we make no attempt to resolve this question. Delaney v. Boston, supra, 2 Del. (Harr.) 489 (1839). [12] We note that the concurring opinion reaches the result that we do, but that they chose to rest their decision, in part, on other grounds. While we take no position on the validity of their thoughtful discussion, we decline to adoj>t tlioir approach because we feel that a decision on the two additional issues they discuss is not necessary in order to resolve the dispute before us. The concurring opinion makes three points: 1) that title to accretions can never vest in adjoining landowners when the waterway involved was created by dredging operations; 2) that title to accretions cannot vest in land originally owned by the government in any case; and 3) that in the absence of a showing that Island Farm lias used its riparian rights, it cannot obtain title to accretions in land originally owned by a private party — that is, by Layton. We note that the concurring Judge’s third point substantially repeats the last point that we made in the text of our opinion: absent reliance, title to the accretions cannot vest in Island Farm under the facts of this case. It is true, that the concurring Judge only applies this rule as against land originally owned by the private party, Layton. However, if the rule is applicable with regard to “Layton’s land” we believe that it is, a fortiori, applicable with regard to the land originally owned by the government. Thus, we believe that a single holding suffices to dispose of the entire issue.