finding taking due to government operation of a gunnery range located adjacent to plaintiffs’ property which caused physical damage to the property and caused the residents to move
How later courts described this case
- finding taking due to government operation of a gunnery range located adjacent to plaintiffs’ property which caused physical damage to the property and caused the residents to move
- “The measure of plaintiffs’ recovery is for the temporary taking____ This standard, differing somewhat from that applicable where a full interest is acquired, allows not only compensation for the use and occupancy of the property but also for the loss of improvements and the cost of placing the property in its pre-taking condition (if it has diminished in value).”
- "The measure of plaintiffs' recovery is for the temporary taking (from 1954 through 1959)," when the plaintiff's land was subject to intermittent physical invasions during that period.
- “The measure of plaintiffs’ recovery is for the temporary taking (from 1954 through 1959).”
Written by the judges who cited it.
Distinguished
Distinguished by Georgia Power Co. v. United States, 633 F.2d 554 (1980)
Eyherabide is inapposite to our facts; nor do we find, the supporting cases cited on this point by plaintiff to be helpful (e.g., Pete v. United States, 209 Ct. Cl. 270, 531 F. 2d 1018 (1976)).
The opinion
WHITAKER, Senior Judge
(dissenting in part):
The evidence in this case does not convince me that it was the defendant who destroyed the structures on plaintiffs’ ranch. Finding 16 says they were destroyed “as a direct result of the acts of the defendant and of vandalism by unknown individuals.” In my judgment this finding should have read, “as the direct result of the acts of the defendant or of vandalism by unknown individuals.” My authority for this is the majority opinion itself.
It states:
“The structures on the land (except, perhaps, for the tanks and some of the corrals) were destroyed between 1957 and 1959, apparently by dynamite (or other explosives) and burning. We do not know who is directly responsible for this damage. There were vandals in the area, but it is also possible that naval personnel blew up the improvements in connection with some of their ordnance activities.4”
The footnote four (4) therein referred to reads:
“There is evidence, on the part of the defendant, that this destruction *572 did not result from aerial bombardment, but it may be that land explosives were used for some naval purpose or project.” 1
Notwithstanding the indefiniteness of the proof as to who was responsible for the destruction of the structures, the majority apparently holds the defendant responsible therefor because its agent, the guard, had told the owners’ caretaker that he was a trespasser, that the land upon which he was residing was a part of the gunnery range, and that, if he did not get off, he would be arrested, and that thereafter the owners could find no one else who was willing to come and live there.
For this reason, apparently, the finding above quoted further says: “The vandalisfn was the natural result and product of defendant’s acts.” I cannot see how this conclusion can be drawn. After the owners had been apprised of the guard’s visit to their caretaker, they complained to the 11th Naval District and were informed by it that the personnel on the gunnery range “were not correctly informed as to the limits” of the range, but that they had been instructed “to avoid further annoyance to your clients or interference with their operations on this property.” (Finding 10.)
By this time it was true the former caretakers of the property had left, but I do not think the defendant was responsible for the owners’ inability to find other caretakers who were willing to reside on the property. They stated that when they took several prospective caretakers out to the property, the prospects were scared away by warning signs on the roads leading to the property reading: “DANGER AREA, keep out, Aerial Gunnery Range, U. S. Naval Property.” The opinion very frankly says that these signs must have been placed there when the Government had a lease on the plaintiffs’ property and had not removed them but, independent of this, whenever the prospective caretakers saw those signs, the owners, of course, told them that they did not apply to their property but only to the land north of it, which was the area of the gunnery range.
It is no doubt true that people were not particularly anxious to live so close to a gunnery range, but it is also true, no doubt, that they were not anxious to live in this area in the midst of a desert so far removed from civilization or any other habitation.
The fact that the owners could not get another caretaker to reside on their property, for which defendant was not responsible, certainly does not make it responsible for any vandalism that may have been committed.
In short, I simply do not believe that the plaintiffs have carried the burden on them of showing that it was the defendant who was responsible for the destruction of these structures.
However, I think that, while evidence of the imposition of a servitude on the land by the defendant is weak, the shell holes in the barn and the garage and the main house are persuasive that the defendant probably did use it to some extent as a part of the gunnery range itself. I am not particularly happy about holding the defendant liable for imposing a servitude on the land, but what I have mentioned, together with the other reasons relied upon by the majority, inclines me to go along with the majority on this feature of the case.
. True, the opinion had previously stated that large shell holes were discovered in the barn, the garage, and the main house; but, while this was a damage to these pieces of property, it was not a destruction of them, and therefore, it was not a taking of them compensable under the Fifth Amendment.