Petition — 1776 K Street Associates, et al., v. United States of America
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Supreme Court, U. Se" &e
Ff
iLED
FEB 25 1989
! MICHAEL RODAK, JP Re
IN THE “
Supreme Court of the United States
OCTOBER TERM, 1979
“* 79°1314
1776 K STREET ASSOCIATES, et al.,
Petitioners,
Vv.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF CLAIMS
WHAYNE S. QUIN
1666 K Street, N.W.
Suite 600
Washington, D.C. 20006
Attorney for Petitioners
Of Counsel:
MAUREEN DWYER STEWART
WILKES & ARTIS,
CHARTERED
1666 K Street, N.W.
Suite 600
Washington, D.C. 20006
WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
CONTENTS
Page
Preliminary Statement. ...........................:.---sscssseseseeeeseenees 1
Onimion: Tebow a... 2022 --n-.-n---nennn-nnoenneneee nes 1
Sa scewscnsnhmenetnanneccersstneneces 2
Questions Presented .....................---.....---...--2-.0--------2000+- 2
GRE Oe 3
Neen ee sass canaccvenemncnesons 3
Reasons for Granting the Writ ................................-------- 8
II LSS EINE EES I OS Oe ee 22
Decne tcetcennnsncevenennseenerennnecceccere= la
ii
CITATIONS
CASES: Page
Ackerman v. United States, 340 U.S. 193 (1950)... 10
Algonac Manufacturing Co. v. United States, 198
Ct. Cl. 258, 458 F.2a 1878 (1972) ......................... 8
Amsden v. United States, 146 Ct. Cl. 809, 175
FI CRE} sosiretiecarebencticeningininiseieuns 9
Brooks v. Brooks, XXVIII Washington Law Rptr.
BCs Arh. RE ciicdcetmtctoeniclneed 8, 12, 20
Brant v. Virginia Coal & I. Co., 98 U.S. 326
| RSG PSR RRIRER tt Aor LE cept ee ey Wo Bowe 13
Carney Vv. United States, 462 F.2d 1142, 199 Ct.
My | SAAR RRNE TS aA IEE Nad ee ES GORY FOE 8
Carr v. District of Columbia, 371 F.Supp. 293
(D.D.C. 1974), aff'd. without opinion, 521 F.2d
824 (D.C. Cir. 1975), modified, 177 U.S. App.
D.C. 468, $48 F.Bd O17 (ISTE) qc.c2s ea. 8, 15
Carr V. District of Columbia, C.A. 77-445, (D.D.C.
ERY - Te, REN pocrtcesotin scones ieee 14
Carr Vv. District of Columbia, C.A. 77-445, (D.D.C.
SRE TE, TCO vcceteticcadei eisniaihidsnd 6, 8, 14, 15, 19
Chesapeake & Potomac Telephone Co. v. District
of Columbia, et al., C.A. 2671-75 (consolidated
March 28, 1978), 106 Washington Law Re-
porter 1065 (June 13, 1978) ............00000000002...... 6, 8-9, 18
Chicago & N.W. Ry. Co. v. Davenport, et al., 95
Fs Be Cas BE FED otecserte ean 17
Crary v. Dye, 280 U.S. 515 (1980) ......................... 12
Crosley Corporation v. United States, 229 F.2d
Sees, ee ike atactes as Sikes co cceess 13
Erie R.R. v. Tompkins, 304 U.S. 64 (1982) .......... 7,9, 21
Fitzhugh v. United States, 59 App. D.C. 285, 40
je By ERNE RRRA A. Ay Prete sm 4, 12,21
Hanna v. Plumer, 380 U.S. 460 (1965) ................ 11
Hyjack v. Nolan, 366 A.2d 715 (N.J. Super. Ct.
ps |, SE ARUP IIE ORR OPA INT Pires Meer ol Renu a Ry LUO 17
In re Cremida’s Estate, 14 FRD 15 (Alaska
SURNAM rey mee nse ted Neen Opa ony WAI COs 17
Klapprott v. United States, 335 U.S. 601 (1949)... 10
iii
CITATIONS—Continued
Page
Love v. United States, 122 Ct. Cl. 144, 104 F.Supp.
BIRR Cae CMe Rota SEPA 8
Morris v. United States, 174 U.S. 196 (1898).4, 16, 20, 21
Oklahoma V. Texas, 268 U.S. 252 (1925) -................ 13
Parker v. Sager, 85 U.S. App. D.C. 4, 174 F.2d
PT iid hiliilorcchadeen 12, 13
Peoples Bank v. Eccles, 161 F.2d 636 (D.C. Cir.
1947) rev’d. on other grounds, 333 U.S. 426
GESTS STE Sea ROD a Be Pdek CO Die a oO ORE Se 13
Pierce Vv. Cook, 518 F.2d 720 (10th Cir. 1975) ........ 10,17
Polites v. United States, 364 U.S. 426 (1960)......... 8,10
Potomac Steamboat Co. v. Upper Potomac Steam-
oe We ok A EG) |} ares 21
Pratt v. Law, 13 U.S. (9 Cranch) 453 (1815) _...... 4, 20
Puget Sound Alumni of Kappa Sigma v. City of
Seattle, 422 F.2d 799 (Wash. 1967) _................... 13, 16
Radock v. Norwegian America Line Agency, Inc.,
$18 F.2d 688 (2nd Cir. 1968) ............................... 17
1776 K Street Associates v. District of Columbia,
C.A. 2015-70 (Order and Judgment, April 6,
| Nagas EF or RUA (oe hele ReaD pln Re SRE Ee Ome 13
Stoner v. New York Life Insurance Co., 311 U.S.
RR LCE A ER LMA A <r ae Ree : 21
Tarkington v. U.S. Lines Co., 222 F.2d 358 (2nd
Oe a os caleesdmseninineecs 9
Tozer Vv. Charles A. Milling Co., 189 F.2d 242 (3rd
a ea eh Siceatemnabenianen 17
Tsakonites v. Trans Pacific Carriers Corporation,
322 F.Supp. 722 (S.D.N.Y. 1970) cert. denied,
eo i ccpusnaunsowyooees 10
United States v. Groen, 72 F.Supp. 713 (D.D.C.
ee ee rsokh ageism vmiieebeaeninnes 4
United States v. Yazell, 382 U.S. 341 (1966) .......... 21
Van Ness Vv. City of Washington, 29 U.S. (4 Pet.)
a cea psevaen 4,21
Washington Medical Center, Inc. v. United States,
211 Ct. Cl. 145, 545 F.2d 116 (1976) ................... 5, 15, 19
iv
CITATIONS—Contirued
STATUTES: Page
D.C. Code (1973), as amended:
eee GTI cisiciciscin sccnsisiatiannciioaiaaaiesaiaginlnaaataneinds 15,19
1 Stat. 189, Chapter 28 (as amended 1 Stat. 214,
Chapter 17); D.C. Code page XXXIII (1973),
(as amended D.C. Code page XXXIV [1973]).. 3
RULES:
Court of Claims Rule 1652(b) ............................---... 8
Federal Rules of Civil Procedure 60(b) ............... 8,10, 11
I ccaciccittinenias 10
TREATISES:
16A Am.Jur.2d, Constitutional Law § 585 (1979).. 16
16A C.J.S. Constitutional Law § 599 (1959) ........ 16
MISCELLANEOUS:
B. Cardozo, The Nature of the Judicial Process,
Re. | Sa a et es 11
Opinion of Hugh T. Taggart, Assistant United
States Attorney for the District of Columbia
CRetd BR, TED nccseesccnctincictaennne 20
IN THE
Supreme Court of the United States
OCTOBER TERM, 1979
No.
1776 K STREET ASSOCIATES, et al.,
Petitioners,
V.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF CLAIMS
PRELIMINARY STATEMENT
Petitioners 1776 K Street Associates, Metropolitan Club
of the City of Washington, D. F. Antonelli, Jr., and
Washington Medical Center, Inc., pray that a writ of
certiorari issue to review the judgment and opinion of
the United States Court of Claims entered on July 18,
1979.
OPINION BELOW
The opinion of the Court of Claims, reported at 602
F.2d 354, is attached hereto as Appendix A (App. la).
The Order of the Court of Claims denying petitioners’
motion for reconsideration is attached hereto as Appendix
B (App. 8a).
2
JURISDICTION
The judgment of the Court of Claims was entered on
July 18, 1979. A timely Motion for Reconsideration, Re-
hearing or, in the Alternative, Suggestion for Rehearing
En Bane, was denied on September 28, 1979. By Order
dated December 14, 1979, the Chief Justice extended the
time within which to file this petition to and including
February 25, 1980. The jurisdiction of this Court is in-
voked under 28 U.S.C. § 1255 (1)
QUESTIONS PRESENTED
The questions presented are:
1. Whether the Court of Claims was incorrect in hold-
ing that an independent action for relief from a judgment
due to a change in law is not available under circum-
stances where the Court’s judgment was based on an in-
terpretation of building regulations issued by President
George Washington relating to the original City of Wash-
ington, which interpretation was rejected by both local
federal and state courts.
2. Whether the Court of Claims should have deferred
to the substantive decisions of the local and federal courts
within the District of Columbia on the question of owner-
ship of original alleys within the Federal City of Wash-
ington based on the construction of building regulations
issued by President George Washington.
3. Whether the Court of Claims was in error in grant-
ing respondent’s motion to dismiss on the basis of “equity”
determinations when no factual basis for such determina-
tions was contained in either the complaint or the record
and no evidentiary proceedings were permitted.
4, Whether refusal of Court of Claims to set aside
their erroneous decision requiring property owners to
3
pay for land they already owned upon termination of
public alley use constituted a taking of petitioners’ prop-
erty in violation of the Fifth Amendment to the Consti-
tution.
STATUTES INVOLVED
The statutes involved are the Act of Congress adopted
July 16, 1790 (1 Stat. 139, Chapter 28), District of
Columbia Code, (1973), page XXXIII, as amended by
Act of Congress approved March 3, 1791 (1 Stat. 214,
Chapter 17), District of Columbia Code, (1978), page
XXXIV, from which the United States derived the auth-
ority to negotiate for the acceptance of the land for the
original City of Washington.
STATEMENT OF THE CASE
In 1788, the State of Maryland authorized the cession
of land to the Congress of the United States for the
Nation’s Capital which today is referred to as the
“original city” within the District of Columbia. In
1790, Congress accepted the cession and authorized the
President to appoint three commissioners to determine
the boundaries of the City and to purchase or accept the
ceded land from its various owners, primarily nineteen
individuals commonly referred to as the “original pro-
prietors.”’
In 1791, the original proprietors executed identical
deeds of trust to trustees designated by the President,
conveying to them, in trust, all of the land within the
bounds of the original city. The trusts operated to divide
the land into three categories: (1) streets, as directed by
the President, to be titled in the United States at no
charge; (2) public appropriations (for example, Farragut
Square), as directed by the President, also to be titled in
the United States, which were purchased by the commis-
sioners for 25 pounds per acre; and (3) the entire residue
4
of the land (the “residue”), which was to be equally
divided, one-half to be assigned by the commissioners
back to the original proprietors and the other one-half
retained by the commissioners for sale to individal pur-
chasers.! The Deeds of Trust also authorized President
Washington to issue regulations affecting the manner of
construction in the Federal City.
Petitioners are the owners of various lots abutting por-
tions of original alleys laid out from the residue portion
of the land assigned under the deeds of trust. Each of the
petitioners filed applications with the appropriate District
of Columbia officials to close portions of the abutting
original alleys in order that they might construct im-
provements on their property. Although the closings were
deemed appropriate, on the assumption that the alley
land was titled in the United States, the District of Colum-
bia required that each petitioner pay to the Treasury
of the United States the assessed fair market value of
the portion of the closed alley abutting each petitioner’s
property.
Subsequently, contrary to the previous advice of the
Office of the District of Columbia Surveyor and Corpora-
tion Counsel, petitioners found evidence in the National
Archives which indicated that the alley land had not been
owned by the United States but rather, in accordance
with common law, was titled in the abutting property
owners.
To recover the money paid by them to the United States
Treasury for the closing of the alley portions, petitioners,
1 More complete discussions of this aspect of the early history of
Washington may be found in Morris v. United States, 174 U.S. 196,
245-259 (1898); Van Ness v. City of Washington, 29 U.S. (4 Pet.)
232 (1830); Pratt v. Law, 13 U.S. (9 Cranch) 456 (1815); Fitz-
hugh v. United States, 59 App. D.C. 285, 40 F.2d 797, 798-799
(D.C. Cir. 1930); and United States v. Groen, 72 F.Supp. 713
(D.D.C. 1947) ; Brooks v. Brooks, XXVIII Wash. L. Rptr. 335 (May
8, 1900).
- one er ee ee
5
in previous proceedings, brought suit against respondent
United States in the United States Court of Claims. Peti-
tioners’ cases were consolidated for purposes of briefing
and arguing Motions for Summary Judgment filed by all
parties, and were disposed of by an opinion of the Court
of Claims in Washington Medical Center, Inc. v. United
States, 211 Ct. Cl. 145, 545 F.2d 116, decided October 20,
1976. (Attached hereto as Appendix E, App. 61a.)
In that ruling, the Court of Claims denied the petition-
ers’ motion for summary judgment based on its construc-
tion of President Washington’s regulations, granted the
respondent’s motion for summary judgment and dis-
missed the petitions. Although respondent never asserted
that title to the alleys was in the United States, and in
fact relied solely upon the defense of estoppel and the argu-
ment that fair market charges could be made regardless
of the title question, the Court of Claims ruled that the
charges were proper since it found that title to the alley-
ways had been in the United States. By Order entered
January 7, 1977, the Court of Claims denied petitioners’
Motion for Reconsideration, Rehearing, or in the Alterna-
tive, Suggestion for Rehearing En Banc, and by Order
entered May 20, 1977, 211 Ct. Cl. 379, it denied peti-
tioners’ Motion for Relief from Judgment and Remand
to Trial Judge for Trial on Issue of Title to Alleyways.
On June 6, 1977 petitioners filed a timely Petition for
Writ of Certiorari (No. 76-1719) seeking review of the
Court of Claims holding that the United States has title
to the original alleys in question and its determination
that the common law does not apply to interpretation of
the deeds of trust or the establishment of the alleys. The
petition was denied by order of the Court entered on
October 17, 1977, 484 U.S. 902 (1977). On April 10,
6
1978, petitioners filed a Petition for Rehearing* on
the basis that the Court of Claims decision was in
direct conflict with the intervening decision of the Superior
Court of the District of Columbia (Judge John Garrett
Penn) in Chesapeake & Potomac Telephone Co. v. District
of Columbia, et al., Civil Action No. 2671-75 (consoli-
dated), entered on March 28, 1978, (attached hereto as
Appendix C, App. 10a) holding that fee title to the
original alleys in the Federal City of Washington does
not lie in the United States. This petition was denied by
order of the court entered on May 1, 1978, 435 U.S. 1018
(1978).
Subsequent to this Court’s denial of the Petition for
Rehearing, the United States District Court for the Dis-
trict of Columbia (Judge Thomas A. Flannery) in the
ease of Oliver T. Carr, Jr. v. District of Columbia, C.A.
No. 77-445, having the full benefit of the Court of Claims’
October 20, 1976 decision and the Superior Court’s March
28, 1978 decision concerning the identical legal, factual
and historical issues, also held that title to the original
alleyways in the District of Columbia resided in the own-
ers of the abutting lots, not in the United States. (At-
tached hereto as Appendix D, App. 52a.) Both the Su-
perior Court and the District Court rejected the Court of
Claims’ interpretation of President Washington’s build-
ing regulations. App. 42a-49a, 54a. The appeal of the
Carr decision* has been stayed pending the outcome of
20On November 8, 1977, Petitioners filed a motion for an exten-
sion of time in which to file a Petition for Rehearing on the basis
that the decision in the Superior Court for the District of Columbia
in Chesapeake & Potomac Telephone Co. v. District of Columbia,
et al., Civil Action No. 2671-75 (consolidated), involving identical
issues, appeared to be imminent. By order of November 10, 1977,
this Court granted the motion for an extension of time in which to
file a Petition for Rehearing until February 11, 1978. By orders of
February 10, 1978 and March 13, 1978, the time for filing was
further extended to April 10, 1978. ;
8 Pending in the United States Court of Appeals for the District
of Columbia Circuit as Carr v. District of Columbia, No. 79-1571.
SRE LRT a aC MENT ee, Che at te ee
T
the C&P Telephone Co. appeal* in the District of Colum-
bia Court of Appeals.
On the basis of the divergent judgments between the
Court of Claims and those of the Superior Court of the
District of Columbia and the U.S. District Court for the
District of Columbia, petitioners filed an independent
action for relief from the Court of Claims’ judgment on
December 5, 1978. On July 18, 1979, the Court of Claims
granted the respondent’s Motion to Dismiss. Petitioners’
timely Motion for Reconsideration, Rehearing or, in the
Alternative, Suggestion for Rehearing En Banc, was
denied on September 28, 1979. In granting respondent’s
motion to dismiss, the Court of Claims held that an in-
dependent action for relief from a judgment due to a
change in law is not available unless the facts of the
case indicate common participants in an accident, the
removal of some but not all claims to the Federal courts
by diversity, and conflicts between the Federal courts and
state dispositions where the Federal courts should have
conformed to state law by Erie R.R. v. Tompkins, 304
U.S. 64 (1938).
Petitioners seek review of the Court of Claims ruling
where the Court’s prior decision was based on an
interpretation of regulations issued by President George
Washington relating to the original City of Washington,
which interpretation was rejected by both local federal
and state courts. The other questions presented for re-
view are stated above.
* Pending in the District of Columbia Court of Appeals as United
States v. C&P Telephone Co., Nos. 13570, 14206, 79-499. Oral
argument was held on October 23, 1979.
8
REASONS FOR GRANTING THE WRIT
I.
The Court of Claims’ Holding That Petitioners Are Not
Entitled To Relief From Judgment Due To A Change In
Law Was Error. Further, The Decision Is Based Upon
A Point Expressly Left Undecided By This Court In
Polites v. United States® Which Is In Need Of Clari-
fication.
The independent action * below sought relief from the
final came of the Court of Claims entered on October
20, 1976 which held that title to original alleyways was
in the United States. At the time the Court of Claims
rendered its initial decision, the only local, substantive
case law specifically addressing the title to original alleys
was the District Court decision in Carr V. District of
Columbia, 371 F.Supp. 293 (D.D.C. 1974), aff'd without
opinion, 521 F.2d 324 (D.C. Cir. 1975), modified, 177
U.S. App. D.C. 482, 543 F.2d 917 (1976) wherein all
parties had assumed that title was in the United States.’
Subsequent to the Court of Claims’ decision, the District
Court entertained an independent action under Federal
Civil Rule 60(b) by the plaintiff in the Carr case and
concluded that ownership of the alleys was not in the
United States. App. 52a. In a separate, but related action,
the Superior Court of the District of Columbia, in C&P
5 364 U.S. 426 (1960).
6 action was predicated on Court of Claims Rule 152(b),
eg virtually identical to Federal Rule of Civil Procedure
60(b). Carney v. United States, 199 Ct. Cl. 160, 462 F.2d 1142
(1972). Accordingly, federal court decisions involving Rule 60(b)
are considered precedents in applying Rule 152(b). Algonac Manu-
facturing Co. v. United States, 198 Ct. Cl. 258, 458 F.2d 1373
(1972); Love v. United States, 122 Ct. Cl. 144, 104 F.Supp. 102
(1952).
7 Other prior judicial decisions have discussed but not decided
the issue with the clear implication that title to original alleys is
not necessarily in the United States. See pp. 20-21, infra.
~ 9--
a el tN Se ee ee
9
Telephone v. District of Columbia, 106 Wash. Law Re-
porter 1065 (June 13, 1978) also had concluded that,
contrary to what had previously been thought, title to
original alleys was not in the United States. App. 10a.
Based on this clear and authoritative change in the
local governing law, petitioners sought relief from the
Court of Claims’ prior decision.
In denying petitioners’ independent action, the Court of
Claims held that relief from judgment due to a change in
law is limited to cases involving “common participants
in an accident, the removal of some but not all claims to
the federal courts by diversity, and conflicts between the
Federal Courts and state dispositions though the federal
courts should have conferred to state law by Erie RR v.
Tompkins, 304 U.S. 64 (1938).” App. 6a-7a. The holding
clearly conflicts with the Court of Claims’ decision in
Amsden V. United States * and with the decisions of other
federal courts.
(a) In Amsden, the Court: of Claims granted Rule
152(b) relief stating, “we are not willing to permit a
strict application of the doctrine of res judicata to prevent
us from reaching a conclusion which is consonant with
our sense of justice.” For the Court of Claims to now
hold that relief from judgment due to a change in law is
limited to cases involving common accidents or Erie con-
siderations is totally contrary to its Amsden decision.
(b) In Tarkington v. United States Lines Co., 222 F.2d
358 (2d Cir. 1955), a Rule 60(b) motion was granted
on the ground that a case decided subsequent to the
instant case laid down a legal rule contrary to that applied
-in the cases on which the trial judge in the instant case
had relied. In so holding the Second Circuit did not limit
relief to cases involving common accidents or Erie con-
siderations but based its decision on the need to do justice
under the circumstances of the particular case before it.
8146 Ct. Cl. 809, 175 F.Supp. 147 (1959).
10
(ce) In Tsakonites v. Trans Pacific Carriers Corpora-
tion, 322 F.Supp. 722 (S.D.N.Y. 1970), the Court granted
Rule 60(b) relief in light of a change in law, stating
that it was “in the interest of justice in the exceptional
circumstances of this vase to grant Tsakonites his day in
court...” 322 F. Supp. at 725. Again, in reaching its
decision, the Court did not limit relief to cases involving
common accidents or Erie considerations, but based its
decision on the need to do justice under the circumstances
of the particular case before it.
(d) As case law indicates, a Rule 60(b) (6) action for
relief from a judgment can be predicated on a change in
the law. This Court has itself recognized on at least three
occasions, that a change in law can necessitate relief from
a judgment, “where justice so requires,” Klapprott Vv.
United States, 335 U.S. 601 (1949) ; Ackerman V. United
States, 340 U.S. 193 (1950); Polites v. United States,
364 U.S. 426 (1960). The precise question whether 60 (b)
authorizes relief for a change of law, however, was ex-
pressly left open in the Polites case when this Court found
that it:
“need not go so far here as to decide that when an
appeal has been abandoned or not taken because of a
clearly applicable adverse rule of law, relief under
Rule 60(b) is inflexibly to be withheld when there
has later been a clear and authoritative change in
governing law. The fact of the matter is that that
situation is not presented in this case.” Polites at
433.
In the present case, that situation is squarely faced and
it is urged that the Court finally decide whether a change
in law such as that presented here can serve as the basis
for an independent action for relief from judgment.
(e) The Pierce v. Cook case, 518 F.2d 720 (10th Cir.
1975), cited by the Court of Claims as authority for its
novel position that Rule 60(b) relief due to a change in
. em
11
law is limited to common accident situations or Erie con-
siderations, in fact supports the granting of Rule 60(b)
relief under the circumstances of this case. The under-
lying policy of Erie of promoting uniform administration
of the laws moved the court to grant relief in Pierce, and
those same considerations are present here.
II.
The Court Of Claims’ Refusal To Defer To The Deci-
sions Of The Local State And Federal Courts Violates
The Principles Laid Down By This Court in Erie.
In Erie this Court held that, “Except in matters gov-
erned by the Federal Constitution or by Acts of Congress,
the law to oe applied in any case is the law of the state.”
In refusing to apply the decisions of the local state and
federal courts on the issue of title, the Court of Claims
violated this principle.
The decision in Erie was based on a cardinal precept of
American law: the principle of fairness. As stated by
Judge Cardozo:
“Tt will not do to decide the same question one way
between one set of litigants and the opposite way
between another. . . . One of the fundamental social
interests is that law shall be uniform and impartial.
There must be nothing in its action that savors of
prejudice or favor... .” B. Cardozo, The Nature of
the Judicial Process, 38, 112 (1921).
In accordance with this principle, one of the twin aims of
Erie was the avoidance of inequitable administration of
the laws. Hanna v. P/wmer, 320 U.S. 460 (1965). This is
the precise mischief which the “ourt of Claims’ decision
has worked.
Further, where, as here, the local courts have authori-
tatively settled a substantive issue in direct conflict with
the Court of Claims’ prior decision, it is clear that relief
12
from the earlier judgment should be granted and can be
the basis for an independent action. This is especially
true where the local courts have taken notice of the Court
of Claims’ decision and expressly stated that it is erro-
neous. App. 49a, 59a. Accordingly, in the interest of
furthering the Erie policy of federal-state conformity, the
Court of Claims’ decision not to defer to the decisions of
the local state and federal courts should be reversed.
III.
The Court Of Claims’ Decision To Grant The Respond-
ent’s Motion To Dismiss On The Basis Of “Equity” De-
terminations Was Clearly Erroneous When No Factual
Basis For Such Determinations Was Contained In Either
The Complaint Or Record And No Evidentiary Proceed-
ings Were Permitted.
The essential elements of equitable estoppel as related
to the party estoppel were established by the court in
Parker v. Sager, 85 U.S. App. D.C. 4, 174 F.2d 657, 661
(D.C. Cir. 1949). Applying those principles to the pres-
ent case, it is clear that the requirements of estoppel are
not satisfied. The Court of Claims’ opinion is totally
devoid of any facts concerning misrepresentation or con-
cealment or knowledge of the real facts. The Court’s
statement that petitioners were “on notice that at least
there was a colorable claim the United States did not own
the alleys, from decisions ® they themselves cite and rely
on here” does not support estoppel. As this Court stated
in Crary v. Dye, 208 U.S. 515, 521 (1908) :
“And in respect to the title of real property, the party
claiming to have been influenced by the conduct or
declaration must not only have been destitute cf
knowledge of the true state of the title, but also of
® Fitzhugh v. United States, 59 App. D.C. 285, 40 F.2d 797
(1980); Brooks v. Brooks, XXVIII Wash. L. Rptr. 335 (Sup. Ct.
D.C. 1900).
13
any convenient and available means of acquiring
knowledge. Where the condition of title is known to
both parties, or both have the same means of ascer-
taining the truth, there can be no estoppel.” (Em-
phasis added. )
See, also, Oklahoma v. Texas, 268 U.S. 252, 257 (1925) ;
Brant v. Virginia Coal & I Co., 93 U.S. 326, 337 (1876).
Further, in view of the fact that an alley could only be
closed upon a finding that it was unnecessary and useless,
it is difficult to see what detriment the District could
possibly have suffered by reason of such closings.” In this
regard, the Court of Claims’ earlier finding that the City
Council relied on the closing of the streets and alleys to
its detriment is totally erroneous. 211 Ct. Cl. 145, 152-53.
Finally, the identical estoppel argument was specifically
rejected by Judge Flannery in 1776 K Street Associates
v. District of Columbia, Civil Action No. 2015-70, when
he stated:
“4. 1776 K Street Associates is not estopped from
maintaining this action. The doctrine of estoppel is
inapplicable where the plaintiff challenges an agree-
ment with the government on the grounds that the
government acted beyond its statutory authority. See
Peoples Bank v. Eccles, 161 F.2d 636, 644 (D.C. Cir.
1947), rev’d on other grounds, 333 U.S. 426 (1948).
Furthermore, the elements of equitable estoppel are
not present because 1776 K Street Associates did not
misrepresent or conceal any material fact. See
Parker v. Sager, 174 F.2d 657, 661 (D.C. Cir. 1949).
A mutual mistake of law does not give rise to estop-
pel. Cf, Crosley Corp. v. United States, 229 F.2d 376,
381 (D.C. Cir. 1956).”
The Court of Claims’ obvious confusion as to when the
doctrine of estoppel applies is further evidenced by its
10 See Puget Sound Alumni of Kappa Sigma v. City of Seattle,
422 P.2d 799 (Wash. 1967).
14
decision to reverse itself. In its prior decision the Court
of Claims held that the holding on estoppel in the above
1776 K Street Associates case was clearly inapposite,
“because the decision there was based on the lack of
authority of the District of Columbia Council to
charge for the closing of a non-original alley owned
by the District of Columbia, whereas, in the instant
case we are dealing with an original street and origt-
nal alleys which the defendant contends are owned in
fee simple by the United States and which Congress
has authorized to be closed and charges collected
therefor by the District of Columbia Council as its
agent. There is no lack of authority to make the
charges in this case... . On the other hand, if the
United States did not have title . . . the plaintiffs
would be entitled to refunds of the money paid. . . .”
App. 67a-68a.
In its July 18, 1979 opinion, the Court of Claims reversed
itself. It assumed, as it must for purposes of the motion
to dismiss, that title to the alley land was not in the
United States and thus the District of Columbia Council
would have lacked authority to make charges for the
closings of the alleys. The court then went on to apply
the doctrine of estoppel totally contradicting its earlier
decision that, under these facts, the doctrine is not
applicable.
Further support for the position that petitioners are
not estopped is found in the history of Carr v. District of
Columbia, Civil Action No. 77-445 (Carr II). Clearly, if
estoppel applied, it would have barred the independent
action allowed by both the United States Court of Ap-
peals and the District Court.’ It is indeed ironic that
11JIn its opinion and order of December 22, 1977, the District
Court stated: “Here the newly discovered records are not in what
would be considered a “normal” location and the facts indicate that
plaintiffs did diligently search the District of Columbia records
that were available. The representations of the District’s Surveyor
and Corporation Counsel’s Office are also critical.” See also
App. 58a-54a.
15
plaintiffs in Carr were given independent action relief,
but that petitioners herein, who actually found the under-
lying evidence of title and upon whom Carr depended (see
543 F.2d at 921, fn. 13), were not even permitted to pre-
sent evidence to the Court of Claims either on the merits
or on the issue of estoppel. Since no appellate review is
available from the Court of Claims’ decision, only this
Court upon certiorari proceedings can correct this gross
miscarriage of justice.
IV.
The Court Of Claims’ Erroneous Determination Of The
Title Issue Amounts To A Taking Of Petitioners’ Prop-
erty In Violation Of The Fifth Amendment To The
Constitution.
The refusal of the Court of Claims to set aside its
prior erroneous determination amounts to a deprivation
of petitioners’ property in violation of the Fifth Amend-
ment to the Constitution. No more cogent statement of
this fact could be offered than that of the United States
District Court for the District of Columbia in Oliver T.
Carr, Jr. wherein the Court held:
In essence, the District argues that pursuant to
[$ 7-302, D.C. Code (1973)] the Mayor and the
Council of the District of Columbia are vested with
the authority to sell land that is privately owned and
not the property of the District of Columbia or the
United States. It is difficult to imagine how such a
result could be justified on a proper interpretation
of the statute. Section 7-302 is merely a perpetuation
of the erroneous presumption that title to the original
alleys is in the United States. Washington Medical
Center v. United States, 545 F.2d 116, 134-35 (Ct.
Cl. 1979) is an example of the same error. App. D.
Under the rules governing a motion to dismiss, the Court
of Claims was required to accept the conclusions of the
16
D.C. Superior Court and United States District Court
that petitioners owned the land previously devoted to alley
use. With this major premise, it is hornbook law that the
Fifth Amendment of the Constitution would not permit
the United States to extract payment from the owners.
See generally 16A C.JS., Constitutional Law, § 599
(1959) ; 16A Am.Jur.2d Constitutional Law § 585 (1979).
Petitioners are the successors in title to the original
proprietors and original purchasers of lots and alleyways
which were conveyed pursuant to the original deeds of
trust.2. The United States acquired no title to alleys and
no interest beyond police power regulations, and conse-
quently the owners cannot be forced to buy their own land
or to pay td remove the alley use once the use has been
terminated by the City. In this connection the court in
Puget Sound Alumni of Kappa Sigma v. City of Seattle,
422 P.2d at 802, stated:
The legislative powers of a city must be exercised
for the public benefit, but that does not authorize a
municipality to sell or bargain legislation as a means
of obtaining revenue. It would be a novel proposi-
tion to hold that a city, as a condition precedent to
the exercise of its lawful power and authority to
vacate a street or alley no longer needed for public
use, could demand and receive from private parties
a sum of money for its action. Such a holding would
be dangerous in principle, contrary to good morals,
and against public policy.” (Quoting from Lockwood
& Strickland Co. v. City of Chicago, 117 N.E. 81
(Ill. 1979) ).
12 See text of deeds in Morris v. United States, 174 U.S. 196, 202-
206 (1898).
17
V.
The Court Of Claims Decision To Deny The Independ-
ent Action Constituted An Abuse Of Discretion Subject
To Review By This Court.
A motion under rule 60(b) or an “independent action”
gives the court a “grand reservoir of equitable power to
do justice in a particular case.” Radock v. Norwegian
American Line Agency, Inc., 318 F.2d 588 (2nd Cir.
1963). Recent cases applying Rule 60(b) have uniformly
held that it must be given a liberal construction and that
any doubt should be resolved in favor of the petition to
set aside the judgment. Tozer v. Charles A. Milling Co.,
183 F.2d 242 (8rd Cir. 1951). Although relief from judg-
ments, orders, or other proceedings rests in the sound dis-
cretion of the court, “The discretion is not an arbitrary
one to be capriciously exercised, but a sound legal discre-
tion guided by accepted legal principles.” Chicago & N.W.
Ry. Co. v. Davenport et al., 95 F.Supp. 469 (D.C. Iowa
1951). Further,
“that discretion should ordinarily incline towards
granting, rather than denying, relief. This is espe-
cially true if no intervening rights have attached in
reliance upon the judgment and no actual injustice
will occur. In Re Cremida’s Estate, 14 FRD 15
(Alaska 1953). (Emphasis added.)
While it is true that many of the decisions interpreting
Rule 60(b) have been concerned with cases involving de-
fault judgments, the power vested in the courts under
Rule 60(b) is sufficient to enable them to vacate judg-
ments whenever such action is appropriate to accomplish
justice.’* In essence, any case presenting the question of
substantial rights should be resolved in favor of the peti-
tion to set aside the judgment where a litigant has not
13 See, e.g., Pierce, Tsakonites, Tarkington, Amsden, Hyjack v.
Nolan, 366 A.2d 715 (New Jersey Super. Ct. 1976).
18
been afforded the opportunity to have a fair hearing.
This is especially true in the present case Where upon
cross motions for summary judgment, in which petitioners
asserted that title to the original alleys was not in the
United States and respondent did not assert the contrary,
the Court of Claims, sua sponte, decided that title is in
the United States on the basis of a legal theory not pre-
sented by the parties, without considering petitioners’
undisputed documentary evidence and without affording
petitioners an opportunity to meet such new legal theory
or to cure technical deficiencies of proof which the court
found in part of petitioners’ evidence.
VI.
The Decision Below Conflicts With Decisions Of This
Court, The United States Circuit Court Of Appeal For
The District Of Columbia, The Highest Local Court Of
The District Of Columbia And With Other Legal Au-
thorities And Contemporaneous Interpretations.
The heart of petitioners’ independent action below was
that although the Court of Claims undertook to decide
the “crucial and controlling question” of title to original
alleys in the District of Columbia, the local and federal
courts within the District of Columbia have ruled con-
trary to the decision of the Court of Claims on both the
historical facts and the applicable law. Further, the prior
decision of the Court of Claims is in direct conflict with
holdings underlying a prior decision of this Court,
with numerous decisions of local and federal courts of
appeal of the District of Columbia and with other legal
authorities as well as contemporaneous interpretations of
the deeds of trust and the status of the title to the soil of
the alleys.
(a) The Superior Court of the District of Columbia,
the local court of general jurisdiction, faced with the
identical legal, factual and historical issues in Chesapeake
PR RE te RT EE
19
and Potomac Telephone Company, pronounced the sub-
stantive law of the District of Columbia and held that
title to the original alleyways in the District of Columbia
was not in the United States, but was in the owners of
the abutting lots. (App. 3la-40a, 50a.)
In the case of Oliver T. Carr, Jr., the United States
District Court for the District of Columbia, having the
full benefit of this Court’s October 20, 1978 decision con-
cerning the identical legal, factual and historical issues,
granted an independent action to set aside its prior de-
cision and held that title to the original alleyways in the
District of Columbia resided in the owners of the abutting
lots, not in the United States. Specifically the court
stated :
“Section 7-302 is merely a perpetuation of the erro-
neous presumption that title to the original alleys is
in the United States. Washington Medical Center V.
United States, 545 F.2d 116, 134-85 (Ct. Cl. 1976)
is an example of the same error. As Judge Penn
concluded: ‘although some past court opinions have
suggested that title to the alley was in the United
States, those opinions were rendered at a time when
the original documents were not before the court or
the court did not have an opportunity to consider
those documents.’ ” (App. 59a.)
Further, the Superior Court and the District Court
both rejected the Court of Claims’ interpretation of the
regulations issued by President George Washington relat-
ing to the original City of Washington. App. 42a-49a,
54a.
In view of the fact that the local and federal courts
within the District of Columbia have now decided the sub-
stantive question of fee simple title to original alleys, it is
petitioners’ contention that the Court of Claims should
have deferred to those substantive decisions and should at
the minimum have granted a trial to be held on the avail-
able evidence relating to the right of the District of
20
Columbia to impose a charge of fair market value to
petitioners to close abutting alleyways which are no longer
useful or necessary.
(b) The Court of Claims disregarded this Court’s de-
cision in Pratt v. Law, 13 U.S. (9 Cranch) 453, 490
(1815). In Pratt, this Court recognized that if original
alleys were not “comprised under the denomination of
streets,” they were appurtenances to the abutting lots.
The Court of Claims acknowledged that the alleys were
not streets but refused to accept the necessary alternative.
Pratt held that, in a sale between successors in title to
original purchasers and a subsequent purchaser of lots,
compensation could not be charged the subsequent pur-
chaser for the soil of the alley since the alley easement
had not merged with the fee. The critical point is that,
unless the soil of the alley was owned by the abutting
owner, the principle of merger could not have been an
issue since there would be nothing to merge. Pratt, thus,
implicitly held that the alleys were part of the residue
of the land, title to which vested in the original pro-
prietors or the various purchasers at public auction, and
not in the United States.”
(ec) The Court of Claims also flatly refused to apply the
decision of the Supreme Court of the District of Columbia
in Brooks v. Brooks, XXVIII Wash. L. Rptr. 335 (May 8,
1900)** and the decision of the United States Court of
14 Tt is clear from the historical record that the alleys were never
purchased by the United States as part of the second category of
land and the United States has never claimed to have purchased
the alleys. On the contrary, in Pratt, at 476, this court found that
“It was the universal practice for the Commissioners in selling lots
to charge each lot with its proportion of the alley laid out for the
benefit of the lots in the squares... .”
18 Attached to the Brooks decision is the Legal Opinion of Hugh
T. Taggart, Esq., Assistant United States Attorney for the District
of Columbia, dated April 30, 1888, concluding that title to the soil
of original alley is in the abutting property owner. Mr. Taggart
argued the Morris case in this Court.
ee ee ee eee
21
Appeals for the District of Columbia Circuit in Fitzhugh
v. United States, 59 App. D.C. 285, 40 F.2d 797 (1930).
This refusal to apply local law violates the principles laid
down by the Court in Erie R. Co. v. Tompkins, 304 U.S.
64 (1938). United States v. Yazell, 382 U.S. 341, 352
(1966). It calls for the exercise of this Court’s super-
visory power over the federal courts. Stoner v. New
York Life Insurance Co., 311 U.S. 464 (1940).
VII.
The Issue Of Title To Original Alleys In The District Of
Columbia Is Of Major Importance Not Only To The
Present Litigants But To Future Litigants.
The question of title to the original alleys of the City
of Washington is of sufficient importance to merit review
by the Court. As the development of the District pro-
ceeds, the issue of ownership of the original alleys will
continue to arise. The court has previously decided mat-
ters involving the Federal City, such as the title questions
with regard to public streets, public appropriations,
riparian rights and lands beyond the bulkhead lines. See
Van Ness v. City of Washington, 29 U.S. (4 Peters)
323 (1930); Morris v. United States, 174 U.S. 196
(1898) ; Potomac Steamboat Co. v. Upper Potomac Steam-
boat Co., 109 U.S. 672 (1884). The issue of title to the
original alleys is the only remaining title issue yet to be
clearly determined by the Court under the original Deeds
of Trust establishing the City of Washington. A decision
by this Court is necessary to resolve existing conflicts
between decisions on this issue and to govern future alley
closings, necessary to orderly land development in the
down town areas of the District of Columbia. As stated
by the Court of Claims in its former decision:
“We have concluded that the crucial and controlling
question is the title issue, and that it should be de-
cided not only for the purpose of disposing of the
present cases, but also as a precedent for the solution
22
of other like claims we understand are pending, and
others that will no doubt arise in the future. A de-
cision of the title issue is vital, because if the U.S.
owned the street and alleys in fee simple at the time
of the closings, Congress had the power to authorize
the District of Columbia Council to charge for their
sale (closings, and vesting of title in Plaintiffs), be-
cause they were government property. On the other
hand, if the U.S. did not have title in fee simple to
the street and alleys at the time they were closed,
Congress would not have the power to authorize the Appendices
council to charge for their closing, as the government
cannot sell property it does not own. In the latter
case the charges would be unauthorized and the
Plaintiffs would be entitled to refunds of the money
paid if the Plaintiffs themselves had title to the
property.” App. 68a.
CONCLUSION
For the reasons stated, the petition for writ of certi-
orari should be granted, or in the alternative the Court
should summarily reverse and remand the case to the
Court of Claims for full consideration of petitioners’ evi-
dence and trial on the issue of title to the soil of the alleys.
Respectfully submitted,
By
WHAYNE S. QUIN
1666 K Street, N.W.
Suite 600
Washington, D.C. 20006
Attorney for Petitioners
Of Counsel:
MAUREEN DWYER STEWART
WILKES & ARTIS,
CHARTERED
1666 K Street, N.W.
Suite 600
Washington, D.C. 20006
la
APPENDIX A
IN THE UNITED STATES COURT OF CLAIMS
No. 531-78
(Decided July 18, 1979)
1776 K STREET ASSOCIATES, THE METROPOLITAN CLUB OF
THE CITY OF WASHINGTON, D. F. ANTONELLI, JR.,
WASHINGTON MEDICAL CENTER, INC., et al.
Vv.
THE UNITED STATES
Whayne S. Quin, attorney of record for plaintiffs.
Michael B. McGovern, and Wilkes & Artis, of counsel.
Thomas L. McKevitt, with whom was Assistant Attor-
ney General James W. Moorman, for defendant. William
E.. Hill, of counsel.
Before FRIEDMAN, Chief Judge, NICHOLS and BENNETT,
Judges.
ON DEFENDANT’S MOTION TO DISMISS
PER CURIAM: This case is that somewhat rare crea-
ture in our jurisprudence, the “independent action” un-
der permission of Rule 152 (b) —
2a
* * * 'TJo relieve a party from a judgment, order,
or proceeding, or to set aside a judgment for fraud
upon the court. * * *
Such an action, when it can be brought, lifts the bar of
res judicata. Since ours is a court of limited jurisdic-
tion, often inhibited in doing what would seem useful by
the strict construction of the consent to be sued, we have
had to consider carefully what this rule implies or ex-
presses. See Carney v. United States, 199 Ct. Cl. 160,
462 F.2d 1142 (1972); Andrade v. United States, 202
Ct. Cl. 988, 485 F.2d 660 (1973), cert. denied, 419 US.
831 (1974).
This newly filed and numbered suit prays for relief
from a judgment of this court in Washington Medical
Center v. United States, 211 Ct. Cl. 145, 545 F.2d 116
(1976), cert. denied, 484 U.S. 902 (1977). The present
parties were all plaintiffs in the former cases, which
were consolidated. The object in those cases was to re-
cover moneys paid to the District of Columbia, as agent
for the United States, as fees to obtain closing of alleys
adjacent to plaintiffs’ properties. The holding was that
the moneys were properly collected, because the alleys
were “original” alleys which belonged in fee to the United
States. Plaintiffs do not accept this conclusion. In the
former cases they twice moved for rehearing, without
success, and now in this “independent action” they state
their objections for the third time. Defendant moves to
dismiss. We conclude that plaintiffs do not state a cause
that could prevail as an “independent action” under any
facts alleged in their petition, and, therefore, the petition
must be dismissed.
Plaintiffs move for oral argument, but we decide the
case without any, per Rule 146(b), as we think the rea-
sons asserted for lifting the bar of res judicata insuffi-
cient, without regard to the correctness of the former
decision.
3a
Plaintiffs have two non-frivolous reasons for coming
here again. One is that a series of new discoveries in
the National Archives shows, they say, that the original
conveyances by the original proprietors to trustees did
not convey any title in the alleys to the United States.
Some of this new evidence was disclosed with the two
former motions for rehearing, some has been found more
recently. The other reason is a change in the “legal
climate.”’ Recent successful litigation by one of these
plaintiffs, involving other alleys, in another court, and by
third parties, also in another court, have been made pos-
sible apparently, by placing the required payments for
alley closing in escrow, making the suits not against the
United States and not subject to the exclusive jurisdic-
tion of this court. Chesapeake & Potomac Tel. Co. v. Dis-
trict of Columbia, D.C. Superior Court, Penn, J., March
28, 1978, reported Washington Law Reporter, June 13,
1978; Carr v. District of Columbia, U.S. District Court,
District of Columbia, January 12, 1979, mem. op., Flan-
nery, J. Judge Penn was informed of this court’s de-
cision but attached little weight to it because he thought
it was based on less than the entire body of evidence.
Judge Flannery took the same view. He treated the
Penn decision as collateral estoppel, but not this court’s.
The correctness of our former decision has been reex-
amined already, and the Supreme Court has denied cer-
tiorari. That decision on its record, must be regarded
as unchallengeable. To review the new evidence, unless
the grounds for doing so are adequate, would perpetrate
the very evil the doctrine of res judicata guards against.
For purposes of the motion to dismiss, we must assume,
arguendo, therefore, that the new evidence possibly could
convince this court that title to the involved alleys was
not in the United States, and determine whether, if this
were so, the grounds for reopening would be otherwise
adequate. As stated in Andrade, supra, the petition in an
4a
“independent action” of the kind involved really addresses
the equity side of the court. Despite the well publicized
exclusion of equitable relief from the remedies available
here, a claim for money is not barred merely because it
rests on equitable grounds. Pauley Petroleum, Inc. V.
United States, 219 Ct. Cl. , 591 F.2d 1308 (1979).
The trouble with the petition here is that it is wanting in
equity.
In the previous decision, we reserved the question of
estoppel, preferring to decide on the legal issue of who
owned the alleys. We consider here whether assuming
arguendo the United States did not own them, is reten-
tion of fees for closing them unjust enrichment? We
conclude it is not. The plaintiffs, as is conceded, paid the
fees voluntarily without objection or protest. Their own
explanation for doing so is that if they had not, the
district government, with all its powers, could have de-
layed projects plaintiffs wanted to proceed with. Plain-
tiffs were on notice that at least there was a colorable
claim the United States did not own the alleys, from
decisions they themselves cite and rely on here. Fitzhugh
v. United States, 59 App. D.C. 285, 40 F.2d 797 (1930) ;
Brooks v. Brooks, XXVIII Wash. L. Rptr. 335 (Sup. Ct.
D.C. 1900). On the other hand, they had no reason to
charge that the claim of United States title was in bad
faith. The conclusion seems irresistible that plaintiffs
paid to secure whatever title the United States had or
to remove a cloud on the title, and to obtain ability to
close the alleys without litigation. In this regard, they
obtained their money’s worth. Plaintiffs say they paid
under a mistake. If so, it was a mistake of judgment
and not the kind of mistake for which equity will grant
relief.
Plaintiffs knew or should have known that moneys
paid to the United States without protest are not re-
coverable on the mere basis that such moneys were not
5a
legally due. United States v. Edmonston, 181 U.S. 500
(1901) ; Rough Diamond Co, v. United States, 173 Ct. Cl.
15, 26, 351 F.2d 636, 642 (1965), cert. denied, 383 U.S.
957 (1966). Rough Diamond distinguishes a case where
money was exacted in violation of a law written for
protection of the payor. Applied Devices Corp. v. United
States, 219 Ct. Cl. ——, 591 F.2d 635 (1979), illustrates
the principal applied in that exception. It is not ap-
plicable here. The recovery of money paid the United
States by alleged mistake requires a “clear and convinc-
ing” showing of the nature of the mistake. Pauley Pe-
troleum, Inc. v. United States, 219 Ct. Cl. at ——, 591
F.2d at 1320-21. In that case, as here, the mistake was
one of judgment. The question of recovery of money
paid by mistake there receives an exhaustive examination
which need not be repeated here.
In Amsden v. United States, 146 Ct. Cl. 809, 175 F
Supp. 147 (1959), plaintiff had been a party to a pay
case which was settled by stipulation. He acquiesced in
a pay computation reduced by a mistaken application
of the Economy Act. Later, learning of the error from
other litigation, he moved to reopen, but the court refused.
Defendant, opposing reopening, said plaintiff should file
another petition. He did so, and the suit was manifestly
an “independent action.” He was allowed to prevail. The
grounds were: that the scope of the Economy Act was
not really adverted to as the subject of the former litiga-
tion, and that the defendant had invited plaintiff to bring
another suit when the original one could have been re-
opened. This was a decision by Judge Madden, that
master of the equitable approach, and it may be noted
that Chief Judge Jones dissented on res judicata grounds
The equities relied on by Judge Madden are not present
here: the issue litigated in the former decision is really
the same as proposed here, and defendant to say the
least never invited plaintiffs to bring an “independent
6a
action.” There was an unjust enrichment of defendant
in Amsden not demonstrable here. There is no clear
showing of the nature of the mistake, as there was in
Amsden.
As regards the newly discovered evidence, plaintiffs
appear to have joined with defendant in the previous
ease in submitting it on summary judgment. They do
not appear to have protested that research in the Archives
was incomplete. The panel would not have rushed to
decide the case if warned as to what apparently was the
fact, that the search for evidence was still unfinished.
It would have allowed more time for research. A party
who submits a case on incomplete or inaccurate testimony
cannot, in this court, reopen with new evidence unless
he convinces the court that the defects in the previous
testimony were present without his fault or negligence.
Kaiser Aluminum & Chemical Corp. V. United States,
187 Ct. Cl. 443, 409 F.2d 288 (1969) (concurring opin-
ion). As the concurring opinion referred to had the ad-
herence of four of the seven judges who heard the case,
it is clear it must be regarded as an alternate ground.
The same counsel represented the plaintiffs in the original
Washington Medical Center case here, then in the Su-
perior Court, and then in filing of the present “inde-
pendent action.” He does not attempt to explain why he
did not educate our panel as to the insufficiency of the
evidence he now alleges.
Finally, we turn to the effect in equity of the existence
of decisions subsequent to the one to be reopened, in con-
flict, and allegedly based on better facts or law. Plain-
tiffs cite a number of cases, Of which Pierce V. Cook Co.,
518 F.2d 720 (10th Cir. 1975) is typical. They involve
common participants in an accident, the removal of some
but not all claims to the Federal courts by diversity, and
conflicts between the Federal courts and state disposi-
tions though the Federal courts should have conformed
7a
to state law by Erie R.R. v. Tompkins, 304 U.S. 64
(1938). In such circumstances, a Federal court may
look with aversion on instances when its decisions may
end up in conflict with state ones and seek to effect cor-
rection by F.R. Civ. P. 60(b), the counterpart of our
Rule 152. Defendant says that in the absence of such
considerations, there is nothing in subsequent conflicting
decisions, per se, to oblige a court to reopen its own
previous decisions, once res judicata, even if the later
decisions convince the court its earlier decisions were
wrong. Pierce was heard en bane and four judges dis-
sented. The majority analysis affords persuasive evi-
dence that defendant’s statement is correct. Short of the
compelling circumstances before that court, the result
would have been different.
Plaintiffs do not allege that our former decision is
having an adverse collateral estoppel or res judicata effect
on other cases. The decisions they do cite would refute
such a claim if made. Independent of getting the fees
back, plaintiffs say they would like to expunge the hold-
ing we made respecting the United States having title
to the alleys but they fail to explain why the latter is
important to them. They have the alleys. The defendant
has the fees, but under circumstances where we fail to see
unjust enrichment.
; The petition therefore does not present allegations, that
if true, would warrant a breach of the res judicata bar.
The claim is res judicata. A reexamination of its origi-
nal grounds, or a reopening of the record to receive new
evidence is not now permissible under that doctrine.
United States v. Sioux Nation, 207 Ct. Cl. 234, 518 F.2d
1298, cert. denied, 428 U.S. 1016 (1975). The defend-
ant’s motion to dismiss is therefore sustained, and the
petition is dismissed.
8a
APPENDIX B
EXHIBIT B
IN THE UNITED STATES COURT OF CLAIMS
No. 531-78
Sep. 28, 1979
1776 K STREET ASSOCIATES, THE METROPOLITAN CLUB OF
THE CITY OF WASHINGTON, D. F. ANTONELLI, JR.,
WASHINGTON MEDICAL CENTER, INC., et al.
Wa
THE UNITED STATES
DENIAL OF PETITION FOR RECONSIDERATION,
REHEARING OR IN THE ALTERNATIVE,
FOR REHEARING EN BANC
Whayne S. Quinn, attorney of record for plaintiffs.
James A. Stenger and Wilkes & Artis, of counsel.
Thomas L. McKevitt, with whom was Assistant Attor-
ney General James W. Moorman, for defendant. William
E. Hill, of counsel.
Before FRIEDMAN, Chief Judge, NICHOLS and
BENNETT, Judges.
ORDER
Plaintiffs’ motion for reconsideration or rehearing is
hereby denied. To explain why they paid for something
they already owned, plaintiffs deny they knew their own
title was good. This is different from the ordinary pur-
9a
chaser’s claim of ignorance of a defect in a seller’s title.
That portion of the opinion which states that plaintiffs
had notice of a possible claim the United States did not
own the alleys, referring to existing case law, slip op.
at 3-4, is not to be read as construing the local record-
ing statutes of the District of Columbia nor as announc-
ing a blanket rule of law for the District regarding con-
structive notice to bona fide purchasers of land. Rather
this statement was to demonstrate that plaintiffs failed
to show that the equities supported the extraordinary and
rarely granted form of relief which they sought—the
lifting of the bar of res judicata. A reading of Fitzhugh
v. United States, 40 F.2d 797 (D.C. Cir. 1930), and
Brooks v. Brooks, XXVIII WasH. L. RptTR. 385 (Sup.
Ct. D.C. 1900) demonstrates that to say the least there
was a possible dispute. Plaintiffs either knowingly dis-
regarded these cases or failed properly to research the
title in deciding to pay the fees exacted. ‘Notice’ as
used by this court is not intended to be the type of
notice which recording statutes speak of but that notice
which a prudent person paying money to the government
would not disregard.
Plaintiffs failed to show that the equities were in
their favor, and, therefore, the extraordinary relief sought
by plaintiffs—a lifting of the bar of res judicata—was
denied.
A majority of the judges in active service * not having
voted for a rehearing en banc, plaintiffs’ motion for
that purpose is also denied.
BY THE COURT
/s/ Daniel M. Friedman
DANIEL “1. FRIEDMAN
Chief Judge
* Judges Kunzig and Smith not participating.
10a
APPENDIX C
SUPERIOR COURT OF THE
DISTRICT OF COLUMBIA
C.A. No. 2671-75
CHESAPEAKE AND POTOMAC TELEPHONE COMPANY,
Plaintiff
V.
DISTRICT OF COLUMBIA, et al.,
Defendants
C.A. No. 86-74
THE SUPREME COUNCIL,
Plaintiff
om
DISTRICT OF COLUMBIA, et al.,
Defendants
C.A. No. 3107-75
6th & E St., INc., SYLVAN C. HERMAN and
SAUL H. BERNSTEIN,
Plaintiffs
Vv.
DISTRICT OF COLUMBIA, et al.,
Defendants
C.A. No. 2672-75
ULysses AUGER and LULU AUGER,
Plaintiffs
Vv.
DISTRICT OF COLUMBIA, et al.,
Defendants
lla
C.A. No. 783-75
BICENTENNIAL ASSOCIATES,
* Plaintiffs
DISTRICT OF COLUMBIA, et al.,
Defendants
C.A. No. 2670-75
WASHINGTON MEDICAL CENTER, INC.,
¥. Plaintiff
DISTRICT OF COLUMBIA, et al.,
Defendants
OPINION AND ORDER
These cases came before the Court on the joint motions
for summary judgment filed by the plaintiffs and the
cross motions for summary judgment filed by the de-
fendants.
The plaintiffs are all owners of land in the District of
Columbia who filed applications with the District of
Columbia requesting the District to close portions of
public alleys abutting on their land in the City. The ap-
plications were granted by the District and the alleys
were closed either pursuant to the Street Readjustment
Act of the District of Columbia (D.C. Code 1973, §§ 7-
401 et seg.) or D. C. Code 1973, §§ 7-306 and 17-307.
There were no written objections filed to the applications
however, as a condition precedent to each closing, the
District of Columbia Council ordered each of the plain-
tiffs to pay into escrow funds representing the fair mar-
ket value of the alleys closed. Those funds have all been
paid into escrow.
NOTE: Minor typographical errors have been corrected by
Petitioners.
12a
The plaintiffs challenge the authority of the District
to make such a charge on the grounds that (1) the United
States did not have title to the underlying fees reverting
to the property owners upon closing of the alleys, (2) the
District of Columbia lacks statutory authority to make
such charges under Section 7-401 et seq. or Sections 7-306
and 7-307, (3) the land areas closed had only a nominal
value and (4) the charges in violation of the District of
Columbia Administrative Procedure Act and due process
of law.
The defendants oppose the plaintiffs’ motion and have
filed cross motions of their own. They argue that the
alleys, being original alleys, are owned by the United
States. The defendants have also argued that the plain-
tiffs have failed to join an indispensable party in these
proceedings, namely, the United States of America.
The Court heard final arguments in this case in Febru-
ary 1978 and on March 9, 1978, issued a Memorandum
Order holding that it would grant summary judgment
to the plaintiffs, and would thereafter file a formal writ-
ten opinion. ;
The underlying facts surrounding these cases are as
follows:
1. (a) Plaintiff Chesapeake and Potomac Telephone
Company, at the time and for purposes herein alleged,
was the owner of rights, title and interest in Lots 22,
825, 884 and 835 surrounding and abutting portions of a
public alley in Square 288 in the District of Columbia.
(b) Plaintiff The Supreme Council, at the time and for
the purpose herein alleged, was the owner of rights, title
and interest in Lots 800, 808, 28, 29, 40, 41, 42, 105, and
106 surrounding and abutting portions of a public alley
in Square 192 in the District of Columbia.
13a
(c) Plaintiffs Sylvan C. Herman and Saul H. Bern-
stein at the time and for the purposes herein alleged,
were the owners of rights, title and interest in Lots 18,
831, 833, 847, 848, 834, 21, 835 and 836 surrounding and
abutting portions of a public alley in Square 457 in the
District of Columbia.
(d) Plaintiffs Ulysses G. Auger and Lulu H. Auger,
at the time and for the purposes herein alleged, were the
owners of rights, title and interest in Lots 870, 871, 872,
873, 133, 184 and 135 in Square 70 surrounding and
abutting a portion of a public alley in Square 70 in the
District of Columbia and Lot 870 surrounding and abut-
ting a portion of a public alley in Square 51 in the Dis-
trict of Columbia.
(e) Plaintiff Bicentennial Associates, at the time and
for the purposes herein alleged, was the owner of rights,
title and interest in Lots 113 and 879 surrounding and
abutting a portion of a public alley in Square 100 in the
District of Columbia.
(f) Plaintiff Washington Medical Center, Inc., at the
time and for the purposes herein alleged, was the owner
of rights, title and interest in Lots 849, 848, 838, 837,
827, 825, 844, and 42 surrounding and abutting portions
of certain public alleys in Square 106 in the District of
Columbia.
2. The District of Columbia Council and its members
are the successors to the Board of Commissioners of the
District of Columbia. They are authorized to close alleys
in the District of Columbia pursuant to the provisions of
the Street Readjustment Act of the District of Columbia,
D.C. Code 1973, 7-401 et seg. and § 7-306 and 7-307.
8. The defendants District of Columbia and District
of Columbia Council, hereinafter referred to collectively
as “District of Columbia”, (by virtue of Reorganization
Plan No. 3, Section 402 (168), D.C. Code (1973)), at
14a
the time herein alleged, did maintain jurisdiction and
control of the portions of the public alleys in all of the
squares which were closed in the cases consolidated be-
fore this court. The public alleys which are the subject
of this action were original alleys of the City of Washing-
ton over which the District of Columbia maintained juris-
diction and control.
4. The alley areas involved in this litigation were por-
tions of alleyways of the original City of Washington which
have been generally referred to as “original alleys.” Such
original alleys were part of land conveyed to Trustees by
certain landowners (“original proprietors”) for the estab-
lishment of the seat of government for the United States
in accordance with terms of Deeds of Trust executed
around 1791 (hereinafter described only as Deeds of
Trust.) The authority for negotiating for the acquisi-
tion or acceptance of the land for the original City of
Washington was derived from Act of Congress adopted
July 16, 1790 (1 Stat. 180, Chapter 28; District of Colum-
bia Code, page XX XIII), as amended by Act of Congress
approved March 8, 1791, (1 Stat. 214, Chapter 17, Dis-
trict of Columbia Code, page XXXIV).
5. (a) Plaintiff Chesapeake and Potomac Telephone
Company, on December 9, 1971, filed with the Office of
the Surveyor, D.C., and application pursuant to Section 7-
408 proposing the closing of a part of the public alley abut-
ting Lots 22, 825, 834 and 835 in Square 288.
(b) Plaintiff Supreme Council, on February 25, 1969,
filed with the Office of the Surveyor, D.C., an applica-
tion pursuant to Section 7-408, proposing the closing of
a part of the public alley abutting Lots 800, 808, 40, 41,
42, 106 and 28 in Square 192.
(c) Plaintiffs Herman and Bernstein, on November 3,
1972, filed with the Office of the Surveyor, D.C., an appli-
cation pursuant to Section 7-408, proposing the closing of
15a
a part of the public alley abutting Lots 833, 847, 848,
834, 835, 836, and 38 in Square 457.
(d) Plaintiffs Ulysses and Lulu Auger, in September,
1972, filed with the Office of the Surveyor, D.C., an appli-
cation pursuant to Section 7-408, proposing the closing
of a part of a public alley in Square 70 abutting Lots
870, 871, 872, 873, 188, 184 and 1385 and also filed
an application in December, 1972, proposing the closing
of a part of a public alley in Square 51 abutting Lot 870.
(e) Plaintiff Bicentennial Associates, in January, 1971,
filed with the Office of the Surveyor, D.C., an application
pursuant to Section 7-408, proposing the closing of a
part of the public alley abutting Lots 113 and 879 in
Square 100.
(f) Plaintiff Washington Medical Center, Inc. filed in
the spring of 1971, an application with the Office of the
Surveyor, D.C., pursuant to Sections 7-306 and 7-307, pro-
posing the closing of part of the public alleys abutting
Lots 849, 848, 838, 837, 827, 825, 844, and 42 in Square
106.
6. All applications were duly processed through the Dis-
trict of Columbia departments including the Department
of Highways and Traffic, Department of Sanitary Engi-
neering and through the utility companies and agencies
concerned. Plaintiffs complied with all the statutory re-
quirements and met all conditions imposed by the re-
viewing agencies and received their favorable recom-
mendations. No objections were made to the closing by the
abutting or nearby property owners or by any department
or agency of the District of Columbia or the United
States Government or by anyone else.
7. (a) By Resolution of March 7, 1972, the District of
Columbia Council approved under Section 7-401 et seq.,
the closing of the alley area in Square 288, with the title
thereto in the plaintiff Chesapeake and Potomac Tele-
phone Company.
16a
(b) By Resolution of October 6, 1970, the District of
Columbia Council approved under Section 7-401 et seq.,
the closing of the alley area in Square 192 with title
thereto in the plaintiff The Supreme Council.
(c) By Resolution of December 18, 1973, the District
of Columbia Council approved under Section 7-401 et seq.,
the closing of the alley area in Square 457 with title
thereto in the plaintiffs Herman and Bernstein.
(d) By Resolution of January 23, 1973, the District
of Columbia Council approved under Section 7-401 et seq.,
the closing of the alley area in Square 70 with title there-
to in the plaintiffs Ulysses and Lulu Auger. By Resolution
of December 18, 1973, the District of Columbia Council
approved under Section 7-401 et seq., the closing of the
alley area in Square 51, with title thereto in the plain-
tiffs Ulysses and Lulu Auger. .
(e) By Resolution of October 19, 1971, the District
of Columbia Council approved under Section 7-401 et seq.,
the closing of the alley area in Square 100 with the title
thereto in the plaintiff Bicentennial Associates.
(f) By Resolution of February 5, 1974, the District of
Columbia Council approved under Section 7-306 and 7-307
the closing of the alley area in Square 106 with title
thereto in the plaintiff Washington Medical Center, Inc.
8. As an additional condition precedent to the closing,
the defendants District of Columbia and District of Colum-
bia Council, purporting to act under color of authority
contained in Sections 7-401 and 7-410, supra, and Sections
7-806 and 7-307, supra, required plaintiffs to pay the
following amounts purportedly representing fair market
value of the alley areas closed and the depreciated value
of improvements within the alley area to be closed as
indicated below. Except for the amount representing de-
preciated value of improvements paid by plaintiff The
17a
Supreme Council directly to the District of Columbia, all
moneys were placed in escrow.
Depreciated
Plaintiff Fair Market Value Value
(a) C & P Telephone Co. $ 47,850.00 $ 413.19
(b) The Supreme Council 11,133.56 5,820.00
(c) Herman and Bernstein 84,656.40 —
(d) Ulysses & Lulu Auger
a. Square 70 16,875.00 208.65
b. Square 51 7,098.00 =
(e) Bicentennial Associates 29,172.00 1,512.62
(f) Washington Medical Center 599,258.00 —
9. In each closing pursuant to written agreement be-
tween the plaintiffs and the District of Columbia the
funds representing charges for fair market value were
placed in escrow with various District of Columbia banks
and savings and loan institutions pending final judicial
determination of the authority or lack thereof of the
District of Columbia to make such charges against abut-
ting property owners. The charges representing depre-
ciated value of improvements were also placed in escrow
except those paid by plaintiff The Supreme Council
which were paid directly to the District of Columbia.
10. Pursuant to the terms of the Deeds of Trust the
alley areas were part of that category of land to be
divided equally with one-half the land to be assigned
back to the original proprietors by the Trustees and the
other half of the land to be assigned to the Commis-
sioners to be sold to purchasers for value upon such terms
and conditions as the President should deem proper.
11. Each of the alley areas involved in the instant
litigation was placed in trust as part of the land area
under the terms of the Deeds of Trust as described
in paragraph 10 and were either assigned by the Trustees
back to the original proprietors or were sold to pur-
chasers for value other than the United States of
America.
18a
12. The original division and disposition of the land
areas including the alley areas involved in this litiga-
tion is set forth as follows:
(a) The portion of the original alley closed in Square
288 (C & P Telephone Co.) abutted and was appurten-
ant to Lots 22, 825, 834 and 885. The original alley
abutted original Lots 18, 19, 21, 22. Under the initial
division of the square on January 30, 1797 these lots re-
mained in the ownership of David Barnes, the original
proprietor of the square.
(b) The portion of the original alley closed in Square
192 (The Supreme Council) abutted and was appur-
tenant to Lots 800, 808, 40, 41, 42, 106 and 28. The
original alley abutted original Lots 9, 13-15, 17-18, Square
192 which were assigned to the public “to be sold agreeably
to the deeds of trust concerning lands in the said City”
under the initial division of the square on November 6,
1798 from the lands of Sam Blodget and Robert Peter,
original proprietors. The criginal lots and the apportioned
alley area for each of said lots was in turn sold and con-
veyed by the Commissioners as indicated on the Disposal
of Public Lots documents. These lots were conveyed out
by the Commissioners on May 31, 1852, Liber JAS 41,
folio 229 (new), to Joshua Pearce “subject to terms and
conditions declared by the President . . . to have and to
hold the said ten lots of ground with their privileges and
appurtenances to him his heirs and assigns forever.”
(c) The portion of the original alley closed in Square
457 (Herman and Bernstein) abutted and was appurten-
ant to Lots 833, 847, 848, 834, 835, 886 and 38. The
original alley abutted original Lots 19, 20, 22, 23 and
24. Under the initial division of Square 457 on October
4, 1792, Lots 22 and 23 remanded with David Barnes,
the original proprietor of the square. Said properties
were in turn purchased by other purchasers for value.
Original Lots 19, 20 and 24 were assigned to the public
19a
“to be sold agreeably to the deeds of trust concerning
lands in the said City” from the land of David Barnes,
original proprietor, on October 4, 1792. The original lots
and the apportioned alley area for each of said lots was in
turn sold and conveyed by the Commissioners as indicated
in the Disposal of Public Lots documents.
More specifically, Lots 19 and 20 were advertised for
public sale at auction, August 30, 1802, and sold to
Alexander Kerr (Sen. Doc. No. 658, p. 37, places date
of sale on August 31, 1802). Superintendent Thomas Mon-
roe “doth grant, bargain, sell, alien, release and con-
form’ the lots unto Kerr, his heirs and assigns forever to
his and their proper use and behoof forever.”
Lot 24 was selected by Morris, Nicholson and Green-
leaf and sold by Superintendent Monroe to William Sim-
mons, June 29, 1803 (September 2, 1802 according to
Sen. Doc. No. 653, p. 37). Advertised for sale at pub-
lic auction August 30, 1802 and conveyed to Simmons with
same language as in deed for Lots 19 and 20, Square 457.
(d) The portion of the original alley closed in Square
70 (Auger) abutted and was appurtenant to Lots 870,
871, 872, 873, 133, 184 and 135. The original alley abut-
ted original Lots 6 and 7. Under the initial division of the
Square on October 1, 1796 Lot 6 remained in the owner-
ship of Morris and Nicholson as original proprietors.
Original Lot 7 was deeded Liber WB-120, folio 286 (new),
“William Noland, Commissioner of Public Buildings ‘doth
bargain and sell,’ August 1, 1845, to Thomas Corcoran
—all lots designated (including Lot 7)’. .. to have and
to hold said lots with their privileges and appurtenances
to him the said Thomas Corcoran his heirs and assigns
forever’.
The portion of the original! alley ciosed in Square 51
(Auger) abutted and was appurtenant to Lot 870. The
original alley abutted Lots 9, 10, 12 and 13. Under the
20a
initial division of the Square on July 27, 1796, these
Lots remained in the ownership of the original proprie-
tor, Robert Peter.
(e) The portion of the original alley closed in Square
100 (Bicentennial Associates) abutted and was appurten-
ant to Lots 118 and 879. The original alley abutted orig-
inal Lots 17, 18, 20, 21. Original Lots 17, 20, and 21 were
assigned to the public “to be sold agreeably to the Deeds
of Trust concerning the lands in the said City” from the
lands of the original proprietor, James M. Lingan, pur-
suant to a division made on October 5, 1792. Original
Lots 17, 20 and 21 and the apportioned alley area for
each of said lots was in turn sold and conveyed by the
Commissioners as indicated in the Disposal of Public Lots.
These lots and the apportioned alley area for each of
said lots were in turn sold to John Picherell in fee simple,
who purchased them from the Commissioner of Public
Buildings on January 11, 1830 “subject to the terms and
conditions declared by the Pres. of the U.S. for regulat-
ing the materials and manner of buildings and improve-
ments.” This deed was recorded in Liber WB-28, Folio
246 (new).
Original Lot 18, Square 100, under the initial division
of Square 100 on October 5, 1792, remained in the owner-
ship of the original proprietor, James M. Lingan.
(f) The portion of the original alley area closed in
Square 106 (Washington Medical Center, abutted and
was appurtenant to Lots 849, 848, 838, 837, 827, 825, 844
and 42. The original alley abutted original Lots 3-8, 13-
15, 17-22 and 28. On October 17, 1791, the square, whose
sole proprietor had been James M. Lingan, was initially
divided in the following way pertinent to this closing:
Lots Nos. 6, 7, 8, 18, 21 and 22 were to remain to
the said James M. Lingan.
2la
Lots Nos. 3, 4, 5, 14, 15, 17, 18, 19 and 20 were
assigned to the public “to be sold agreeably to the
Deeds of Trust concerning lands in the said City.”
More specifically, under the disposal of public lots Lot
3, Square 106, was purchased in fee simple (Liber G-7
(A), folio 10 (new) from the Commissioners of the City
of Washington by Absalom Joy, March 25, 1801 (Febru-
ary 25, 1801 according to Senate Doc. No. 653, p. 19)
“subject to terms and conditions declared by the Presi-
dent. . . .” Note: At the end of the certificate is the
following:
“Lot No. 3 in Square
106 contains 4168 sq. ft.
proportion of alley 488 sq. ft.
4656 sq. ft.”
Lots 4 and 5, Square 106, were purchased in fee simple
(Liber T-19, folio 252 (new) from Superintendent Thom-
as Monroe “subject to terms and conditions declared by
the President . . .” by William Morgan, Issac Briggs,
Gerald Brooke and Samuel Lukens as trustees and for the
use of the religious Society of Friends on March 24, 1808.
Lot 14, Square 106, sold to John Sioufsa on November
11, 1811 per Senate Doc. No. 653, p. 19 (believed to be
recorded in Liber A-B-27, folio 350 (old) (could not
locate liber).
Lot 18 purchased in fee simple (Liber A-Q-41, folio
153) June 22, 1815 (June 20, 1815 according to Sen. Doc.
No. 653, p. 19) by John Freeman “subject to terms and
conditions declared by the President ... .”
Lot 19, by virtue of “An Act of Congress granting cer-
tain city lots to the Corporation of the Columbian College
for the purposes therein mentioned” (Act of July 14,
1832, 22d Cong., 1st Sess.) assigned, in fee simple, to the
trustees of that college by Joseph Elgar, Commissioner of
Public Buildings, on February 1, 1833 (not recorded in
22a
Sen. Doc. No. 653) recorded by deed in Liber WB-50,
folio 20 (new).
Lot 20 purchased April 21, 1852 (April 28, 1852 in
Sen. Doc. No. 653, p. 19) from William Easby, Commis-
sioner of Public Buildings by William B. Todd “subject
to the terms and conditions declared by the President...”
Easby “doth bargain and sell” lot to Todd “to have and
to hold the said lot of ground with its privileges and
appurtenances to him [Todd] and his heirs and assigns
forever.” (Liber J.A.S.-39, folio 108 (new) ).
Lot 28 purchased from Superintendent Thomas Monroe
in fee simple (Liber AC-28, folio 252 (new) ) by Toppan
Webster on February 27, 1812 (December 4, 1811, ac-
cording to Sen. Doc. No. 653, p. 19) “subject to the
terms and conditions declared by the President . . . Ps
13. (a) On March 25, 1975 plaintiff C & P filed its
claim for refund in this Court.
(b) On January 5, 1974 plaintiff The Supreme Coun-
cil filed its claim for refund in this Court.
(c) On April 7, 1975 plaintiffs Herman and Bernstein
filed their claim for refund in this Court.
(d) On March 25, 1975 plaintiffs Ulysses and Lulu
Auger filed their claim for refund in this Court.
(e) On January 29, 1975 plaintiff Bicentennial Asso-
ciates filed its claim for refund in this Court.
(f) On March 25, 1975 plaintiff Washington Medical
Center, Inc. filed its claim for refund in this Court.
Il
It is important to note the historical background of the
alleys in the original City of Washington before addres-
sing the merits in these cases. Detailed descriptions
of the founding of the Nation’s Capital and the laying
out of the original squares, lots, streets and alleys are set
forth in a number of cases. The most significant being:
23a
Pratt v. Law, 18 U.S. (9 Cranch) 456 (1815) ; Van Ness
V. City of Washington, 29 U.S. (4 Pet.) 232 (1830) ;
Morris v. United States, 174 U.S. 196 (1898); Fitz-
hugh v. United States, 59 App. D.C. 285, 40 F.2d 797
(1930) ; United States v. Groen, 72 F. Supp. 713 (D. D.C.
1947); Brooks v. Brooks, XXVIII Wash. L. Rptr. 335
(D.C. Supp. 1900).
This Court will not set forth yet another statement
of that history, rather, it will set forth that history as
described in the excellent brief filed by these plaintiffs,
which is also quoted in part in Washington Medical Cen-
ter, Inc. v. United States, 545 F.2d 116, 122-123 (Ct.
Cl. 1976) in which that Court held that title in the orig-
inal alleys was in the United States. See 545 F.2d at
124.1 That history as set out in the plaintiffs’ brief is as
follows:
Under the Charter of June 20, 1632 from Charles I,
King of England, Cecilius Calvert, the first Lord Pro-
prietary of the Province of Maryland, was granted all
lands now embraced within the District of Columbia.
After the American Revolution, Maryland became a state
and succeeded to all rights of the Lord Proprietary, includ-
ing the absolute right to the soil for use by the people
of the new sovereignty.
The State of Maryland authorized cessation to the
United States of the territory which is now the District
of Columbia. (Act of December 23, 1788, Maryland Laws
1788, Chapter 46, D.C. Code p. XXX (1978)). By Act
of Congress, adopted July 16, 1790 (1 Stat. 180 Ch. 28;
D.C. Code p. XXXIII), as amended by Act of Congress
approved March 3, 1791 (1 Stat. 214, Ch. 17; D.C. Code
p. XXXIV), the cession was accepted and the Presi-
1 The plaintiffs in that case have filed a Petition for Certi i
ertiorar
with the United States Supreme Court and have recently cited the
favorable results in this case in support of their Petition for Re-
hearing of their Petition for Certiorari.
24a apes
dent of the United States was authorized to appoint three
commissioners whose duty was to “survey, and by proper
metes and bounds define and limit” such district or terri-
tory. The Act empowered the Commissioners “to purchase
or accept such quantity of land on the eastern side of
[the Potomac River] for the use of the United States,
and according to such plans as the President shall
approve.” Additionally, the Commissioners were required
to provide suitable buildings for the accommodation of
public offices prior to the first Monday in December, 1800,
at which time the seat of government would be trans-
ferred to the federal city.
On January 24, and March 30, 1791, the President by
proclamation located and defined the limits of the Dis-
trict of Columbia and appointed the Commissioners who,
with their successors, located and laid out the City of
Washington. (D.C. Code, p. XXXIV and XXXV (1973) ).
The general boundaries of the proposed City, now called
the “original” City, were the Eastern Branch, the Poto-
mac River, Rock Creek to a point near P Street, N.W.
then following what is now Florida Avenue to 15th and H
Streets, N.E., then south to C Street, N.E. then east to
20th Street and then south to the Eastern Branch. The
land within was devoted mostly to farm purposes owned
principally by 19 owners hereinafter sometimes referred
to as “original proprietors”.
While various maps and plans for the City were
being prepared under the direction of the President and
the Commissioners, negotiations were entered into be-
tween the Commissioners and the original proprietors
which resulted in agreements executed by the parties pro-
viding for the disposition of the land within the original
City pursuant to deeds of trust to be executed.
The Deeds of Trust (see form, Burch’s Digest 330-34
(1823) ) were executed around June 30, 1791 by the orig-
inal proprictors and provided for the disposition of the
25a
land within the limits of the City of Washington in
three different categories: (1) the fee title to streets was
vested in the United States. See Van Ness v. City of
Washington, supra; (2) the land appropriations or res-
ervations for the use of the United States were pur-
chased by the Commissioners with fee title vesting in the
United States at the rate of 25 pounds per acre; (3) the
entire residue of the land, after being laid out in squares,
parcels and lots was to be divided equally with one-half
the land conveyed to the original proprietors by the
trustees and the other one-half assigned to the Com-
missioners to be sold upon such terms and condition as
the President should deem proper with the proceeds from
said sales to be first applied towards the payments due
the original proprietors, with the remaining proceeds to
the President of the United States to be applied for
purposes under the Act of Congress (e.g., construction of
new governmental buildings) authorizing the acquisition
or acceptance.
On December 19, 1791 the State of Maryland ratified
the previous Act of Cession (Meryland Law 1791, Ch. 45;
D.C. Code p. XXX) noting that agreements had been
entered into between the Commissioners and the original
proprietors by the Deeds of Trust previously described
also included in the ratification a specific proviso stating
“That nothing herein contained shall be construed to vest
in the United States any right of property in the soil
as to affect the rights of individuals therein, otherwise
than the same shall or may be transferred by such indi-
viduals to the United States. .. .”
There is no mention in any of the agreements or in
the Deeds of Trust of title or ownership of the interior
alleys. However by regulation of the President dated
October 17, 1791, certain building regulations were prom-
ulgated and declared to be “the terms and conditions
under and upon which conveyances are to be made ac-
26a
cording to the Deeds of Trust of the lands within the
City.” A section of these regulations provided as follows:
The way into the square, being designed in a special
manner, for the common use and convenience of the
occupiers of the respective squares, the property in
the same is reserved to the public, so that there may
be an immediate interference on any abuse of the
use thereof by any individual to the nuisance or
obstruction of others. The proprietors of the lots
adjoining the entrance into the squares, in arching
over the entrance, and fixing gates in the manner the
commissioners shall approve, shall be entitled to di-
vide the space over the arching and build it up
with the range of that line of the square.
Acting pursuant to the Deeds of Trust, the Trustees,
after allocation for streets and public reservations under
the other two categories of land utilization, made the
division of the residue of the lands by assigning squares
and portions there of or lots to the original proprietors
and to the Commissioners for subsequent sale to the pub-
lic. Pursuant to Acts of the assembly of Maryland (De-
cember 19, 1791 and December 28, 1793, respectively) the
assignments made back to the former owners were
deemed completed and sales to the purchasers of the lots
by the Commissioners by certification were deemed to be
“sufficient and effectual to vest the legal estate in the
purchasers . . . without any deed or formal conveyances.”
Ill
The defendants first argue that this case should be
dismissed as the result of the failure of the plaintiff to
join an indispensable party, namely, the United States.
This argument is based on the fact that if the original
alleys were owned by the United States then any funds
collected from these plaintiffs will be paid into the Treas-
27a
ury of the United States. Conversely, should the Court
rule that the alleys are not the property of the United
States, then the moneys would be returned to the plain-
tiffs to the detriment of the United States.
It is important to note, that the moneys paid over
by the plaintiffs as set forth in Part I, par. 8, supra,
have not been paid into the United States Treasury.
Those funds are now being held in bank accounts, in
escrow, pursuant to an agreement by the parties. More-
over, these cases are suits for injunctive and declaratory
relief and challenge the authority of the District of Co-
lumbia and the District of Columbia City Council to
charge for the alleys as a condition for their being
closed by the District of Columbia.
The defendants made a similar argument in Carr V.
District of Columbia, 871 F. Supp. 293 (D. D.C. 1974)
which was affirmed without opinion, 172 U.S. App. D.C.
224, 521 F.2d 324 (1975). There the facts were essen-
tially the same as here and the court (Judge Flannery)
stated (371 F. Supp. at 296) :
In this action the United States is not an indis-
pensable party within the meaning of Fed. R. Civ. e
19(b). Plaintiffs here seek a declaratory judgment.
The sole issue raised is whether the District of Co-
lumbia has authority to charge plaintiffs the fair
market value for alley space closed pursuant to The
Street Readjustment Act of the District of Columbia,
supra. Congress has delegated to the District of
Columbia complete authority to close United States
alleys. See 9, infra. Therefore, a judgment ren-
dered in the United States’ absence would be entirely
adequate and would not prejudice United States’
interests. More importantly, since the funds at
stake in this action have not been deposited into
the United States Treasury, but instead have been
placed in an escrow account in The Riggs National
28a
Bank, judgment here for plaintiff: would neither
run against nor be satisfied from United States
funds. Rather, judgment would simply declare the
rights of the parties who represent all the necessary
interests in such escrow funds. In addition, no party
would be subject to the threat of double liability
which would be present had the District of Columbia
already received and paid the funds to the United
States.
The above reasoning has equal applicability in this case.
Furthermore, a few other factors should be mentioned.
Although the United States is not a formal party in this
case it has actively participated in and been fully rep-
resented at every hearing. An attorney for the United
States, and sometimes more than one, attended all pro
ceedings in this case. Even though the arguments and
briefs were written and filed in the names of these de-
fendants, counsel for the United States argued on given
points of law. This then is not the case where the
United States merely reviewed pleadings and observed
the proceedings in the courtroom; this is the case where
the United States was a very active participant, par-
ticipating in the writing of pleadings and briefs and at
oral argument. Indeed, on one occasion these defendants
asked for additional time to file a responsive pleading to
the plaintiffs’ motions for summary judgment for the
reason that “counsel for the defendant was advised by a
representative of the Department of Justice that a short
additional extension of time was needed in order for
them to prepare and make copies of the pleading re-
sponsive to plaintiffs’ motion”. (Emphasis this Court’s.)
There is no doubt that the argument presented to this
Court in these cases is the argument of the United States.
On one occasion, it was requested by the plaintiffs that
this Court visit the National Archives of the United
29a
States in order to view some of the original documents
which form the basis for this Court’s decision. This
Court agreed to do so and was accompanied by counsel
for plaintiffs, counsel for the defendants, and counsel for
the United States.
Counsel for the United States always sat at defend-
ants’ table during court hearings and did not hesitate
to address the Court on any point where he felt that
counsel for the defendants had not sufficiently articulated
the position of the United States.
Another factor which negates against the alleged in-
dispensability of the United States is the fact that even
though the statutes under which these alleys were closed
and the charges made had been in existence for many
years the defendants never made any charges until
1967. This fact is conceded by the defendants and the
United States. See also Carr v. District of Columbia, 371
F. Supp. at 296. It is also conceded by the defendants
and the United States that the United States did not in-
volve itself in any decision, past or present, to charge
or not to charge for the closing of the alleys, that it did
not involve itself in the decision to begin charging for
the alley closings in 1967, and that it does not involve
itself in the decisions as to the amount of the charge
for any alley closing or whether any charges should
be made at all. It is conceded that the United States
does not and has not participated in any manner in any
alley closing proceeding of this nature. There is no sug-
gestion that the United States has more recently changed
the nature of its participation in these alley closing pro-
ceedings. All these facts demonstrate that the United
States has no real interest in these proceedings; actually,
the position of the United States is not unlike that of an
incidental beneficiary.
All of the above facts weigh against any argument that
the United States is an indispensable party in these cases
30a
since it has always abided by the defendants’ decision
concerning whether charges should be made and the
amount of such charges. The defendants have always
made the final decision whether the United States was
to recover any funds whatsoever from the closing of a
particular alley and accordingly, this Court concludes
that the United States has no real interest in these pro-
ceedings, and is therefore not an indispensable party.
Turning to Super. Ct. Civ. R. 19 which governs the
joinder of persons needed for adjudication. This Court
notes that the United States is not prejudiced by the
failure to join in this proceeding since it has completely
delegated the authority to collect or not to collect to these
defendants. The relief granted here would not remove
moneys from the Treasury of the United States since
the funds are now in escrow. The issue raised here
concerns only the actions of the defendants and not of
the United States. Finally, these plaintiffs do not have
an adequate remedy if this case is dismissed since they
cannot file an action in the United States Court of Claims
in view of the fact that the moneys have not been paid
into the Treasury of the United States. Taking into con-
sideration all of the above four factors, see 3A Moores
Federal Practice, Civil 19.07-2 (1977), this Court con-
cludes that this case should not be dismissed for failure
to join the United States.
One final point deserves mention and that is, the
United States is fully aware of this litigation and has
actively participated in every phase of this litigation
and could have intervened as a party if it had desired
to do so. On the other hand, the plaintiffs may not have
been able to join the United States as a party defendant
in this case because of the doctrine of sovereign im-
munity.
After considering all of the above factors, this Court
concludes that the United States is not an indispensable
party and that these cases should not be dismissed.
sla
IV
Any discussion of the merits must begin with the docu-
ments found in the National Archives. This Court, to-
gether with counsel, visited the National Archives and
viewed many of the original documents which will be re-
ferred to in this Opinion. Plaintiffs thereafter pro-
vided copies of those documents for the benefit of the
Court, counsel and for the record. One volume of those
documents is attached to the affidavit of Antoinette J.
Lee and her deposition is also a part of the record. Those
documents will henceforth be referred to as the “Lee”
exhibits. Another set of documents is referred to in the
deposition of Elizabeth J. Miller, those documents have
also been copied and are a part of the record and will be
referred to as the “Miller” exhibits. Both Ms. Lee and
Ms. Miller are historians who have conducted consider-
able research in these cases by reviewing the originals of
documents now before the.Court. The “Lee” and “Miller”
exhibits have all been certified as true and authentic
copies of the originals by a representative of the Nationa!
Archives of the United States.
The record also contains the depositions of Harold T.
Pinkett and Dorothy Provine, the former being Chief of
the National Resources Branch of the National Archives
and Records Services, and the latter being an employee
of the National Archives and Records Services who works
primarily with various records relating to the District of
Columbia. The final deposition which is also a part of the
record is that of Ralph E. Ehrenberg who is Director of
the Cartographic Archives Division of the National Ar-
chives. His deposition was taken on October 18, 1977 and
completed on November 9, 1977.
The plaintiffs rely upon testimony set forth in the above
affidavits and depositions to support their argument that
the above documents are authentic records and the actual
32a
records releting to the subject alleys. Now, apparently
unlike their position in the case before the United States
Court of Claims, Washington Medical Center, Inc. V.
United States, 545 F.2d at 126, the United States has
conceded that the documents are authentic. Counsel so
advised this Court at oral argument that they do not
contest the authenticity of the documents.
This Court is satisfied in any event that the documents
are authentic documents and that their authenticity has
been established by the depositions and testimony already
mentioned. Time does not permit a detailed analysis of
the documents, however, a few words 0= just one set of
documents are in order. Some of the important papers
before this Court are taken from a document entitled
“Register of Squares”. Ms. Lee examined the testimony
of John Stewart who testified in the case of Morris V.
United States, supra, in the 19th Century. He referred
to a volume entitled the Register of Squares and to other
relevant documents and described them as authentic docu-
ments. (Lee Dep. 13) It was further determined that one
Nicholas King was appointed as a surveyor on September
21, 1796 to lay out certain streets of the city and to give
gradations. He mentioned his work several times in his
manuscript primarily from December 1797 to January
1798. It has been established that he was assisted in his
work by his brother Robert King. His papers contain a
letter from Robert King to James Rice of Baltimore
County (Maryland). In that letter Mr. King requested
Mr. Rice to prepare two blank volumes of a certain size,
entitled “Register of Squares” and also requested two or
three cakes of what he referred to as “Lake Extra” which
is a reddish ink. Robert King was associated with Nicho-
las King in the preparation of the Register of Squares
and it is noted those volumes are written in reddish ink.
(Lee Dep. 14-16.) Based upon these facts the witness
concluded that the Register of Squares examined by the
Court were the same as the Register of Squares prepared
33a
by the surveyor Nicholas King. This conclusion is also
supported by the testimony of Mr. Ehrenberg who has
co-authored some articles on Nicholas King and is famili-
ar with his style and handwriting (Ehrenberg Dep. 9-13).
These facts together with all of the other information
presented by the witnesses supports the finding that the
Register of Squares reviewed by the Court, copies of
which are in evidence in this case and relied upon by
this Court are authentic documents. The same can be
said for the other documents which are a part of the
record in this case—a fact now conceded by both de-
fendants and the United States.
V
. Without identifying each and every document which is
in evidence, some reference should be made to the more
important documents and their significance respecting
the merits of this case. It must be kept in mind that the
defendants contend that the original alleys were owned
by the United States and based on that contention they
now seek to charge for the alley closings. The plaintiffs,
on the other hand, argue that the United States never had
title in the alleys. The latter argument is borne out by
the documents filed in this case.
The original Deeds of Trust between the original pro-
prietors and the trustees were entered into beginning in
1791. One such Deed of Trust has been filed in this case,
however, it is dated 1793 (Lee Ex. C-1). The language
of the earlier and later. documents are conceded to be
similar. These documents are important because they set
forth the exact terms and conditions under which the
property was conveyed to the trustees. They establish
that the original proprietors conveyed to the trustees with
the understanding that one-half of the quantity conveyed
would be returned to the original proprietors but not
necessarily the same property. The remaining portion
EER Oe ae Soe aE
34a
was for the use of the United States and the public, the
latter to be sold by the Commissioners to members of the
public who wished to purchase land in the City of Wash-
ington. The Deeds of Trust also refer to the sale by the
United States as being “under such terms and conditions
as the President of the United States, for the time being,
shall direct”. More importantly, the Deeds of Trust pro-
vide that the “convenances to the purchasers shall be on
and subject to such terms and conditions as shall be
thought reasonable by the President, for the time being,
for regulating the terms and manner of the buildings and
improvements on the lots generally”. (Emphasis this
Court’s.) In the opinion of this Court, the last reference
is merely a direction that the President may establish
what would today be referred to as a building code. (See
Deed of Trust, Lee Ex. C-1.) That direction was carried
out by the President when he wrote the regulations dated
October 17, 1791. These regulations are also referred to
in Washington Medical Center, Ince. v. United States,
545 F.2d at 124, 125, and will be discussed at a later
point in this Opinion.
The Commissioners divided the squares equally by as-
signing one-half of the lots back to the original pro-
prietors and one-half of the lots for the use of the public.
(Lee Ex. D-1 thru D-25.)
The Register of Squares also sets forth the division be-
tween the original proprietors and the public. The volume
contains one page for each square and the top of each
page contains a drawing of the square showing its
breakdown into numbered lots and the subject alleys.
It is significant at this point that the bottom of the
page again sets forth the division of the lots—ap-
proximately one-half of the lots and one-half of the
square footage being assigned to the original pro-
prietors and the other half of the lots and square
ene tami Sse tent a Ene ee
35a
footage being set aside for sale to the public. (Lee Exs.
E-4 thru E-7.) The latter are the lots which were
thereafter sold to various purchasers and speculators.
It is again significant that each of the pages gives a de-
tailed breakdown not only of the square footage of the
lots but the square footage of the adjoining portion of the
alley. Such a breakdown showing a portion of the alley
in relation to the lots is inconsistent with the theory
that the alleys were owned by the United States. The
portion which was reserved for the public has the same
breakdown of square footage for lot and alley. The
Register of Squares goes on to list when the property
was sold and “to whom sold”.
The next documents of interest are referred to as
“Disposal of Public Lots” (Lee Ex. F-1 thru F-6). These
documents also contain a record of the sale of public lands
and have columns headed “Square”, “Lot”, “Square Feet
in Lots”, “Proportion of Alley”, “When Sold or Selected”,
“To Whom Sold’, “When Conveyed”, and “When Entry
of Transaction is Made”. The significance of this set of
documents is that they also contain a breakdown of the
square footage of the alleys. These documents are con-
sistent with and contain the same entries as those found
in the Register of Squares. The fact that it refers to the
sale of the lots and to the proportion of the alley certainly
suggests that the alleys were included in the sale, a fact
which if true in inconsistent with the argument that title
to the alleys was in the United States.
The following documents refer to various sales of
the lots to purchasers and speculators and shows the
amount paid for some of the lots. (Lee Ex. G thru R.)
Almost all of the documents dated prior to 1815 have
a breakdown of property sold into the area of lot and the
area of the proportion of the alley adjoining that lot.
The entries found in these documents are consistent with
those found in the Register of Squares and the Dis-
posal of Public Land record (Lee Ex. G-1 thru G-7).
36a
Some of the documents do not give a breakdown of the
area of the alley but the figure listed under the column
headed “Contents in Square Feet” include the total area
of lot and alley. One such example can be found in
Square 107, Lot 2. The Register of Squares sets out the
square footage of the lot as 2,685 and the alley as 1594,
the total of the two being 2,844% square feet. The lot was
sold to Morris and Nicholson (Lee Ex. 4.). The Disposal
of Public Land document gives the same breakdown (Lee
Ex. F-3) as does an account book (Lee Ex. G-3). The
same lot was involved in what is apparently yet another
transaction referred to in the same book showing the
square footage as 2,844 and the sales price of $66.00.
(nee Ex. G-8.) The 2,844 square foot figure is exactly
one-half square foot less than the total square footage
for the lot and alley. This record thus suggests that the
sale of the lot included not only the lot but a pro-
portion of the alley and again is inconsistent with the
claim that the alleys were the property of the United
States. ;
The page of the Division of Squares volume reveals
that each square was divided equally between original pro-
prietors and the public a further suggestion there was
no reservation of a fee in the alleys by the United States.
(Lee Ex. N-1 thru N-4.) It would seem that if the
United States had a fee in the alley that the square foot-
age of the alley would have been deducted from the
square footage of the total square but such was not the
case.
Without further elaboration on these points it is suf-
ficient to note that the treatment of the alleys in the
sales dating back to the original Deeds of Trust is con-
sistent with the argument that the alleys were sold to the
public and were not thereafter held in fee by the United
States.
ener: Renna cn mn nMeR nce a TT nn enn
87a
VI
Not only do the records just discussed reveal that the
record keepers were careful to list the area of the
proportion of the alleys as well as that of the lots, those
records contained at least a suggestion that the purchasers
a for “their” proportion of the alleys as well as for the
ots.
Direct evidence of payment for lot and alley can be
found in two documents in which there is a breakdown
of the square footage of the property and the price paid.
(Lee Ex. R-1.) The square involved in Square 76,
Lots 1-8, 8-12, 9-22 and 28-30. The total square footage
for the above lots was 59,129 and that of the proportion of
the alleys adjoining the lots, 5,900 for a total of 65,-
029 square feet. The record notes that the above land
was sold at $80 per “standard lot”, a standard lot being
5,265 square feet. The record further reveals that the
amount paid for the above land was $988. One can arrive
at the same figure by simply dividing the total land area
including the lot and proportion of alley which is 65,029
square feet by the standard lot of 5,265 square feet and
multiplying the resulting figure by $80.00. Simple arith-
metic reveals then that the purchaser paid for both lot
and alley. The same calculation can be performed for a
ingen: square and lots with the same result. (See Lee
x. R-2.
This point can be further illustrated by reference to
Journal Volume 3, page 328 (Miller Ex. Q) which con-
tains the entry that Absalom Joy purchased Lot 3 in
Square 106 for $0.08 per square foot and paid a total of
$372.48. The Journal Volume does not set forth the
square footage of the lot. However, this figure can be de-
termined by referring to the Register of Squares for the
same lot which lists the property as being sold but does
not indicate to whom it was sold. The lot area is listed as
38a
4,168 square feet and the proportion of the alley ad-
joining the lot is listed as 488 square feet for a total of
4,656 square feet for both lot and alley. (Miller Ex.
C-5.) That figure multiplied by the $0.08 per square foot
paid by Absalom Joy equals the $372.48 which was ac-
tually paid by Joy. Further proof that the very lot was
sold to Joy is found in the Disposal of Public Lots docu-
ment (Miller Ex. D-5) which lists the sale of the same
land to Joy on March 25, 1801.
Although the plaintiffs were unable to present docu-
ments which give a breakdown of the price per square
foot or for a standard lot paid for the other land involved
in these cases, since such information could not be lo
cated, the above still presents a further suggestion that
the Commissioners charged for both lots and a proportion
of the alleys when selling the public lots. It seems in-
conceivable that the Commissioners would have charged
for a proportion of the alleys if title to those alleys had
been retained or reserved by the United States.
Vil
As pointed out above, the Commissioners sold public
lots to the public and charged for both lots and alleys.
This is evidence that the Commissioners considered the
alleys as a part of the lots, as did the purchasers of
the property. This is made particularly clear in the
ease of Absalom Joy. Further evidence of the intent of
the Commissioners is found in their reply to a letter ad-
dressed to them by one John Nicholson dated September
6, 1796, while George Washington was still the President.
Mr. Nicholson had apparently questioned one or more of
the Commissioners concerning his right to close the alleys
in his square and thereafter wrote them in order to ob-
tain a written confirmation of their advice to him. His
letter and their reply are preserved in the National Ar-
chives. Mr. Nicholson wrote as follows (Lee Ex. V-1):
ELIE LE CE ES AI
ot ee rn
39a
“Gentlemen:
It will be a satisfaction to me to have you a line
expressive of the opinion you this date gave verbally
that the owner of whole square in the City of Wash-
ington may shut the alleys as laid out by you and
recorded—and otherwise lay out the same square at
their pleasure into lots.
I am the more desirous of this point as some of our
houses are already built on ground you laid out for
alleys—in square wholly our own—we having laid
out the same square differently.
Yours respectfully,
The Commissioners of
the City of Washington
Jno. Nicholson
Sep. 6th, 1796”
The reply from the Commissioners is set out in Entry
No. 494, pp. 188 and 189 of the Records of the Office of
Public Buildings and Grants dated September 7, 1796,
and states (Lee Ex. V-2):
7th Sept. 1796
494 Lin. Commissioner’s Office
The alleys within the Squares not having been
directed by the President, or conveyed by the original
proprietors for public use, but on the contrary, being 3
paid for by the purchasers of the Squares, we are of
the opinion, that where the whole Square belongs to
one person, or to several persons, who will all concur
in the measure, that those alleys may be shut up, or
otherwise, as appropriated as the proprietor or pro-
prietors judge most for their advantage—We are,
with respect,
G. Scott
W. Thornton
A. White
John Nicholson, Esq.
40a
The Commissioners noted that the purchasers paid for
the alleys and that when the square is owned by one
persons or by several persons who concur, the alleys may
be closed. Their conclusion is inconsistent with the theory
that title in the alleys was in the United States.
One further document touching upon the state of mind
of the Commissioners at or about this time is a set of
interrogatories addressed to the Clerk of the Commis-
sioners of the City of Washington in preparation of the
case of Pratt v. Law, supra, which was decided in 1815.
The relevant interrogatory which is No. 11 and the an-
swer thereto is as follows: (Lee Ex. U-1.)
11th Interrogatory—In the answer you have given
* * * to fifteen additional Interrogatory have you
not included in the statement of square feet given by
you; the proportion of square feet contained in pub-
lic alleys as calculated & applied to lots by the Com-
missioners.
Answer—Yea.
The answer by the Secretary to the Commissioners, City
of Washington is yet further evidence that the Commis-
sioners conveyed both lot and alley to purchasers.
vill
The defendants and the United States nave presented
no evidence which is contrary to those documents al-
ready discussed. While it is true that an earlier trial
court was of the opinion that there was a lack of evidence
to prove that the Register of Squares were contemporane-
ous and original books, a fact noted by the Supreme
Court in Morris v. United States, 174 U.S. at 277, that
defect has been overcome in this case. The testimony
of Mr. Ehrenberg of the National Archives is that
the documents were prepared by Nicholas King and his
yt, —
4la
brother Robert King. Nicholas King worked as a sur-
veyor for the City of Washington from 1796 to 1797 and
from 1803 to 1812. There is no statement as to his
duties during his first term but during his second term
his duties included surveying plots, certifying and re-
cording the subdivisions of squares and lots and fixing
the building lines. Since he held the same employment
between 1796 and 1797, we «sn assume that his duties
were the same. (Ehrenberg Dep. 115.)
Further proof that the documents are originals is that
they are referred to in the detailed “Inventory of Books
Plans Instruments belonging to the Public in the Sur-
veyors Office’ dated May 31, 1802 signed by Robert
King. (Miller Ex. W.) The other documents referred
to in this opinion are also described in that inventory.
When one compares all of the documents presented in
these cases and notes the relationship between those doc-
uments, as for example between the Register of Squares,
the Disposal of Public Lands, the Journal volumes and
the other materials, it must be concluded that the docu-
ments are entitled to great weight and are the original
documents. As noted in Part IV, supra it was Robert
King who ordered the preparation of those volumes titled
Register of Squares and the ink known as “Lake Extra”
which is a reddish ink. The volumes found in the Na-
tional Archives were entitled Register of Squares and
were written in a reddish ink. This Court is also satis-
fied that those volumes were written in the style and hand
of Nicholas King. The relationship between the various
documents has been briefly illustrated by the case of
Absalom Joy. (See Part VI, supra.) Although this Court
did not take the time to trace each and every document
in this opinion, it has reviewed those documents, traced
them and is fully satisfied that they are all interrelated.
This fact alone would establish the authenticity of those
documents as well as their reliability.
42a
Finally, as to the weight to be given to these records,
the defendants as noted above have presented no other
evidence on these points nor have they or the United
States really contested that the documents are the origi-
nal documents and, in fact, they have conceded that the
documents are authentic.
IX
The defendants and the United States argue that, not-
withstanding the above evidence, the determination as
to the ownership of the original alleys can be based en-
tirely on the Regulations signed by President Washington
on October 17, 1791. (Lee Exs. W-1 and W-2.) While it
is true that it is necessary to look to the documents
which purport to assign, convey, reserve or retain title,
the significance of the evidence just discussed is that
they reveal a pattern of disposal of the lands which was
accomplished contemporaneously with the time President
Washington issued his Regulations. That pattern was
to treat the alleys as being sold, and indeed, to charge for
them. It seems unlikely that such action would have been
taken, especially where some land owners raised specific
questions concerning the status of the alleys, see Part
VII, swpra, unless there was a clear understanding that
the alleys were not the property of the United States.
The Regulations issued by President Washington on
October 17, 1791, are as follows:
17 October 1791
The President pursuant to the Deeds in Trust pub-
lished the following Terms and Conditions of Im-
provements in the City of Washington.
Terms and Conditions, declared by the President
of the United States this seventeenth day of October
seventeen hundred and ninety-one, for regulating the
43a
materials and manner of Buildings and Improve-
ments on the Lots in the City of Washington.
lst That the outer and party walls of all houses
within the said City shall be built of Brick or Stone.
2nd_ That all buildings on the streets shall be paral-
lel thereto and may be advanced to the Line of the
Street, or withdrawn therefrom at the pleasure of
the Improver: But where any such building is about
to be erected, neither the foundation or party wall
shall be begun, without first applying to the person
or persons appointed by the Commissioners to super-
intend the buildings within the City, who will ascer-
tain the lines and the walls to correspond with these
regulations.
3rd The wall of no house to be higher than forty
feet to the roof in any part of the City, nor shall
any be lower than thirty five feet on any of the
Avenues.
4th That the person or persons appointed by the
Commissioners to superintend the buildings may en-
ter on the land of any person to set out the founda-
tions and regulate the walls to be built between party
and party as to the breadth and thickness thereof,
which foundation shall be laid equally upon the lands
of the persons between whom such party walls are
to be built and shall be of the breadth and thickness
determined by such person, proper. And the first
builder shall be reimbursed one moiety of the charge
of such party wall, or so much thereof as the next
builder shall any ways use or break into the said
wall. The charge or value thereof to be set by the
person or persons appointed by the Commissioners.
5th As temporary conveniences will be proper for
lodging workmen and securing materials for build-
44a
ing, it is to be understood that such may be erected
with the approbation of the Commissioners, but they
may be removed and discontinued by the special
order of the Commissioners.
6th The way into the squares being designed in a
special manner for the common use and convenience
of the occupiers of the respective squares, the prop-
erty in the same is reserved to the public, so that
there may be an immediate interference on any abuse
of the use thereof by any individual to the nuisance
or obstruction of others. The proprietors of the Lots
adjoining the entrance into the squares, on arching
over the Entrance and fixing gates in the manner
the Commissioners shall approve shall be entitled to
divide the space over the arching and build it up
with the range of that line of the square.
7th No vaults shall be permitted under the streets
the streets nor any encroachments on the foot way
above by stoops, porches, cellar doors, windows,
ditches or leaning walls, nor shall there be any pro-
jection over the streets, other than the eves of the
house without the consent of the Commissioners.
8th These regulations are the terms and conditions
under and upon which conveyances are to be made
according to the deeds in Trust of the Lands within
the City.
Geo Washington
Agreeably to the President’s order for the sale of
lots, the Commissioners published the following:
Terms of Sales of Lots in the City of Washington
this 17th day of October 1791.
All the lands purchased at this sale are to be sub-
ject to the terms and conditions declared by the
President pursuant to the Deed in Trust. The pur-
45a
chaser is immediately to pay one-fourth part of the
purchase.
The origin of the Regulations can be traced directly to
the Deeds of Trust. (See for example, Lee Ex. C-1.) That
document was briefly described in Part V, supra.
Under the Deeds of Trust, the original proprietors con-
veyed their lands to the trustees. The deeds provided
that the President could direct that the land be laid out
for the federal city into squares, parcels and lots as the
President might approve. The trustees would then convey
to the Commissioners who would convey one-half of the
quantity back to the original proprietors, after setting
aside one-half for the use of the public. It is recognized
in the document that the original proprietors might not
receive the same land back so there was a provision to
convey to them a like quantity of land or money in lieu
thereof. The land which was not specifically set aside
for use by the United States or not returned to the origi-
nal proprietors was known as the public lands and was
to be “sold at such time, or times, in such manner, and
on such terms and conditions as the President might di-
rect.” ?
The deed then provides that:
But the said conveyances to the purchasers shall be
on and subject to such terms, and conditions, as shall
be thought reasonable by the President, for the time
being, for regulating the materials and manner of
the buildings, and improvements on the lots generally,
in the said city, or in particular streets, or parts
thereof, for common convenience, safety, and order
* #
2 Actually, of the land deeded to the trustees, a portion was con-
veyed to the United States at the rate of 25 pounds per acre for the
use of the United States (President’s Square, Judiciary Square) and
the residue was divided equally, one-half to the original proprietors
and one-half for sale to the public.
46a
It is obvious that this section of the Deeds authorizes the
President to promulgate building regulations, keeping in
mind that the conveyances from the original proprietors
was for the establishment and erection of a new city.
The language of the Regulations is consistent with that
of the Deeds. First, it provided that the regulations were
being promulgated “pursuant to the Deeds in Trust” and
that the Regulations set the “Terms and Conditions of
Improvements in the City of Washington”. The language
in the next paragraph tracks the language of the Deeds
in providing that the “terms and conditions” are declared
“for regulating the materials and manner of buildings
and improvements on the lots in the City of Washington”.
Clearly the Regulations refer directly to that provision
of the Deeds authorizing the President to establish build-
ing codes or regulations.
The specific language of the regulations themselves are
also significant since the context is typical of building
codes. They provide that the outer and party walls shall
be constructed of brick or stone, that all buildings shall
be parallel to the streets but may be on the street or back
from the street provided however that before beginning
construction the builders must apply for a permit. The
regulations set the height limit of buildings and provides
for building inspectors. The above are all set out in the
first four regulations. The fifth regulation provides for
the temporary lodging of workmen and placement of ma-
terial on the lots on conditions that the material must be
removed by special order of the Commissioners. By this
it is assumed that the Commissioners and the President
sought to avoid any public nuisances.
The sixth regulation is the one on which these defend-
ants and the United States rely in their claim that the
United States held title to the alleys. All parties agree
that the term “way into the squares” refers to the alleys.
en
47a
The defendants argue that the phrase “the property in
the same is reserved to the public’ means that title is
reserved to the United States. That argument is con-
sistent with the holding in Washington Medical Center,
Ine. v. United States, supra. That holding by the Court
of Claims, although not binding on this court, is entitled
to great weight. However, that court did not have the
benefit of the documents and other evidence now before
this Court.
This Court interprets the Regulations as, not giving or
reserving to the United States a fee, but rather, only as
a building regulation providing for, at most, an easement
for the use and benefit of the lot owners. The interpreta-
tion is based upon several factors.
First, there is no indication in the Deeds of Trust that
there was to be a reservation of title to the alleys.
Second, it seems unlikely that such an imp tant reser-
vation of a fee would be buried within what is obviously
a simple building code. The regulation is one of eight reg-
ulations and is numbered six. It occupies no particular
place of prominence in the Regulations. It is preceded by
regulations which concern the establishment of a building
inspection procedure, the height of housing, the construc-
tion of party walls and foundations, and the lodging of
workers and the storage of building materials.
Third, the regulation does not refer to a fee interest or
title in the United States, yet it is based upon documents
(Deeds of Trust) which are carefully drawn and worded
and which spell out in detail the rights of the signatories.
Several times throughout the Deeds of Trust there is ref-
ence to the granting or the conveyance of fee simple
interests. Since the Regulations track the language of the
Deeds of Trust, it would seem that such an important
paragraph in the Regulations would have carefully spelled
out the rights of the property owners by adopting the
48a
language of the Deeds of Trust. The defendants argue
that it is significant that the Regulations refer to “prop-
erty” which they seek to interpret as synonymous with
title or ownership, however, after reviewing the Deeds
and the Regulations this Court concludes that the failure
of the Regulations to refer directly to a fee or ownership
or title was deliberate; simply said, there was no intent
to reserve ownership in the alleys.
Fourth, the defendants have made no showing that the
United States ever had a fee interest in the square or the
alleys upon which they could reserve title. The original
proprietors conveyed their interest to the trustees, in trust,
to have and to hold pending the directions by the Presi-
dent. The land was laid out in squares, lots and parcels.
The President then requested the trustees to convey the
streets and specific squares for the use of the United
States. (Lee Ex. E-1 and E-2.) There is no evidence
that the United States ever paid for the alleys. The
squares conveyed for the use of the United States are
briefly described in “A statement of the quantity of land
appropriated to the use of the United States in the City
of Washington”. (Lee Ex. E-3.) Neither of the above
documents refers to the alleys and there is no showing that
any other land was conveyed to the United States at that
time. The land which was conveyed to the United States
and which is referred to above included such property as
the Judiciary Square, the President’s Square, the Capital
Square, the Center Market, the National Church Square,
and so forth. The remainder of the land was still held
in trust by the trustees who conveyed it to the Commis-
sioners who then returned a one-half quantity to the orig-
inal proprietors, pursuant to the Deeds of Trust, and set
aside the remainder for sale to the public. It is these two
final categories which are of concern here and as can be
seen, there was never a conveyance of title in those lands
to the United States. The conveyance was to the trustees
and thereafter to the Commissioners before the land was
Dail cdi a a a
49a
sold at public auction. Since the United States never held
title to that land, the President could not have reserved
title in the alleys. This is consistent with this Court’s
interpretation of the Regulations, that the Regulations are
a building code which set out an easement for the common
benefit of the land owners adjoining the alleys.
Fifth, the Regulations were promulgated pursuant to
that section of the Deed of Trust authorizing the Presi-
dent to establish “terms and conditions for regulating the
materials and manner of buildings and improvements on
the lots in the City of Washington”. The President, in
his Regulations, uses the same language and states within
the Regulations that they are to establish the manner of
b*']ings and improvements in the new city. He then
goes on to do just that in his Regulations. That is the
specific language of the Deeds of Trust and that specific
language is carried over to the building regulations.
Based upon the above interpretations, this Court con-
cludes that title to the contested alleys was never in the
United States and that the United States is therefore not
entitled either directly or through the District of Colum-
bia to charge a fee based upon depreciated value or the
fair market value of the lands consisting of the alleys. In
view of the above, the plaintiffs are now entitled to receive
back those funds which have been paid into escrow.
X
Although some past court opinions have suggested that
title to the alley was in the United States, those opinions
were rendered at a time when the issue had not been
raised and all parties had assumed that title was in the
United States or at a time when the original documents
were not before the court or the court did not have an op-
portunity to consider those documents.
50a
Here, there are no genuine issues of material fact and
both sides have moved for summary judgment. It has
been conceded by the defendants and the United States
that the documents forming the basis of this Court’s opin-
ion are authentic and original documents, and this Court
is satisfied based upon its own observation of the docu-
ments and the testimony submitted in these proceedings
that the documents are indeed authentic and original and
were made contemporaneously with the transactions they
reflect. After considering the history of the Federal City,
the history of the squares, lots and creation of the alleys,
the Deeds of Trust and the Regulations together with the
actual practice of the Commissioners in selling lots to
members of the public, this Court concludes that title to
the alleys was not in the United States.
To summarize, this decision is based upon the fact that
the United States never had title, that the Deeds of Trust
did not provide for the United States having or retaining
title, that the Regulations signed by President Washing-
ton on October 17, 1791 were made pursuant to the Deeds
of Trust and were no more than building regulations
setting forth an easement for the benefit of lot owners,
that in preparing the Register of Squares and other docu-
ments pertaining to the squares and lots, the proportion
of the alleys was always treated as a part of the lot, that
in fact the Commissioners actually put up for sale and
sold to the public not only the lots but the respective
proportion of alleys and that the statements of the Com-
missioners, made contemporaneously with these events,
reveal that the Commissioners intended to sell, not only
the lots but the proportion of the alleys as well.
It should be noted briefly that the United States has
not always taken the position that title to the alleys was
in the United States, indeed, in a brief filed in prepara-
tion of the case of Fitzhugh V. United States, supra,
there is a suggestion by the Government that title to the
alleys was not in the United States.
- See ee
5la
In view of all of the above factors this Court enters
summary judgment for the plaintiffs.
ORDER
It is hereby
ORDERED that the defendants’ motion for summary
judgment and to dismiss is denied, and it is further
; ORDERED that the plaintiffs’ motion for summary
judgment is granted, and it is further
ORDERED that the plaintiffs shall submit a proposed
order consistent with this Opinion and Order, said pro-
posed order to be submitted within fifteen d
date of this order. n days of the
Dated: March 28, 1978
/s/ John Garrett Penn
JOHN GARRETT PENN
Judge
COPIES TO:
Whayne S. Quin, Esq.
Glenn D. Simpson, Esq.
Attorneys for Plaintiffs
George T. Masson, Jr., Esq.
Attorney for Defendants
52a
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 77-445
OLIVER T. CARR, JR., ET AL.,
Plaintiffs,
V.
DISTRICT OF COLUMBIA, ET AL.,
Defendants.
MEMORANDUM
This matter comes before the court on the plaintiffs’
motion for summary judgment and the opposition thereto.
The United States has filed a motion for leave to inter-
vene as a party defendant, and a summary judgment
motion. The dispute stems from litigation concerning
the closing of “original alleys” within the District of
Columbia and efforts by the defendants to force the plain-
tiffs to pay the fair market value of the alleys closed.
Procedural Background
In a previous action this court held that the District
of Columbia has the authority to charge plaintiffs, who
own the property abutting the closed alley involved in this
case,! the fair market value of the space which reverted
to plaintiffs’ possession, where the alley was owned by the
1 The alley in question ran parallel to M Street, N.W., in ee
140. It consisted of approximately 3,270 square feet and a os
Lots 875, 883, 24, 839, 882, and 84. It was closed on June 6, :
by resolution of the D.C. Council, contingent on the ented
$196,200.00 to the D.C. Treasury. When the present plaintiffs ow
puted the power of the D.C. Government to compel payment, the
money was deposited in escrow in the Riggs Bank.
53a
United States. Carr v. District of Columbia, 371 F. Supp. .
293 (D.D.C. 1974); aff'd without opinion, 521 F.2d 324
(D.C. Cir. 1975), modified, 543 F.2d 917 (D.C. Cir. 1976).
That decision, however, was predicated on a stipulation
that the alley in question was in fact owned by the United
States. On appeal from the decision of this court, the
plaintiff raised for the first time the factual questior
whether the United States actually held title to the origi- -
nal alleys. The Court of Appeals refused to consider this
question because of the lack of an underlying record.
Carr v. District of Columbia, 543 F.2d 917 924 (D.C. Cir.
1976). The Court of Appeals then noted that the one-year
time limitation for a motion for relief from judgment pur-
suant to Rule 60(b), Federal Rules of Civil Procedure,
had passed, barring that remedy. The court noted, how-
ever, that Rule 60(b) “does not limit the power of a court
to entertain an independent action to relieve a party from
a judgment, order, or proceeding... .” Id. at 926, quot-
ing F.R.C.P. 56. In modifying its previous affirmance,
the court explicitly left open the possibility of an inde-
pendent action by plaintiffs on the question of ownership
of the alleys. 548 F.2d at 929.
The plaintiffs promptly filed a complaint for declara-.
tory judgment on the issue of ownership. The defendants
responded with an answer and a motion for summary
judgment. On December 22, 1977, this court held that
this action is an independent action for relief from judg-
ment, and therefore it must meet the substantive require-
ments of Rule 60(b). After consideration of the argu-.
ments of the parties and the unique circumstances of this
case,? the court ruled that (1) there was an excusable
2It appeared to the court that the newly-discovered records were
not in a “normal” location because they were in the national
Archives, rather than in the District of Columbia’s land records.
Moreover, plaintiffs had diligently searched all available D.C.
records, and had relied upon the representations of the District’s’
Surveyor and the Corporation Counsel’s Office that the United States
did indeed own the alleys.
54a
mistake of fact in the original action, and (2) there was
newly-discovered evidence that was not available in the
first action and the unavailability was not due to a lack
of diligence on plaintiffs’ part. The court, therefore, de-
nied the defendants’ motion for summary judgment. At
the same time, however, the court stayed all proceedings
in this action pending a decision in a similar case by
Judge Penn in the Superior Court of the District of
Columbia.
On March 28, 1978, Judge Penn issued an opinion in
favor of the plaintiffs in six related cases dealing with
the precise issue involved in this case. In summarizing his
decision that the United States of America did not own
fee simple title to the “original alleys” within the District
of Columbia, Judge Penn stated:
To summarize, this decision is based upon the fact
that the United States never had title, that the deeds
of trust did not provide for the United States having
or regaining title, that the Regulations signed by
President Washington on September 17, 1791 were
made pursuant to the Deeds of Trust and were no
more than building regulations setting forth an ease-
ment for the benefit of lot owners, that in preparing
the Register of Squares and other documents pertain-
ing to the lots and squares, the proportion of the
alleys was always treated as a part of the lot, that
in fact the Commissioners actually put up for sale
and sold to the public not only the lots but the re-
spective proportion of alleys and that the statements
of the Commissioners, made contemporaneously with
these events, reveal that the Commissioners intended
to sell, not only the lots but the proportion of the
alleys as well.
Chesapeake and Potomac Telephone Co. v. District of
Columbia, CA No. 2671-75 (March 28, 1978), at 47-48.
55a
This court then reopened proceedings in this case and
directed the parties to prepare motions for summary
judgment on the collateral estoppel effects of the Superior
Court judgment. A hearing was to be held on June 16,
1978; however, the United States requested that the
matter be held in abeyance while the United States pre-
pared a motion to intervene * and a motion for summary
judgment. In due course these papers were filed, and the
matter is appropriately before the court for summary
judgment. The court will enter judgment for the
plaintiffs.
Discussion
A. Remaining 60(b) issues.
Some ambiguity appears to exist concerning the appro-
priateness of this action under Rule 60(b). In the Opin-
ion of December 22, 1977, denying the defendants’ motion
for summary judgment, the court stated that it “will hear
plaintiffs’ new evidence to determine whether 60(b) relief
is warranted because (1) there was excusable mistake
of fact in the original action and (2) there is newly-
discovered evidence that was not available in the first
action and the unavailability was not due to a lack of dili-
gence on plaintiffs’ part.” Although this finding seems
clear enough, the ianguage that the court “will hear” the
evidence has given rise to a dispute over the continuing
existence of a 60(b) issue.
The court holds that this action is appropriate. It is
clear from the record that relief is warranted because of
an excusable mistake of fact and newly-discovered evi-
dence. As the court noted in its earlier opinion, this case
involves unique circumstances. Plaintiffs diligently
searched the available District of Columbia records and
justifiably relied on the assertions of the defendants’ rep-
3 This motion was unopposed and will be granted.
56a
resentatives. It was only through extensive and prolonged
historical research that the relevant ancient documents
were located in the National Archives.
B. Effect of Judge Penn’s Decision.
The plaintiffs believe that the Superior Court decision
should be given collateral estoppel effect because the Dis-
trict of Columbia was the primary defendant in both
cases, the legal and factual issues are the same, and the
defendants have had ample opportunity to litigate all
aspects of the case. Judge Bryant of this court recently
set forth the elements of collateral estoppel:
(1) the facts sought to be foreclosed from reliti-
gation must be the same as those involved in the
prior action;
(2) those facts must have been fully litigated, af-
fording the party against whom they are now offered
a full and fair opportuntiy to contest the facts;
(3) the facts subject to the estoppel must have been
judicially determined and must have been material to
and in support of the holding.
(4) Finally, the party against whom the estoppel is
offered must be the same party or in privity with
the party against whom the original determination
was rendered.
Inmates, D.C. Jail v. Jackson, 415 F. Supp. 119, 120
(D.D.C. 1976). The first three requirements are unques-
tionably met. Regarding the final requirement, strict mu-
tuality of parties should not be required in order to have
Judge Penn’s decision bind the parties in this case. The
older view of collateral estoppel, requiring mutuality of all
parties in an action, has been giving way to an approach
that allows application of the doctrine if the party against
whom the estoppel is asserted has had a full and fair
|
|
|
57a
opportunity to litigate the facts. See Blonder-Tongue
Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. $18, 320-37 (1971) ; Inmates, D.C. Jail v. Jack-
son, 416 F. Supp. at 120; Ballard & Associates, Inc. V.
Mangum, 368 A.2d 548, 550 (D.C. App. 1977). The
District of Columbia vigorously defended its interests in
the previous case before Judge Penn, and did not submit
itself to an adverse judgment because of the insignificance
of the claim. See 1B J. Moore, Moore’s Federal Practice
7 0.412, at 1805-12 (1974 & Supp. 1978). Therefore, the
plaintiffs in this action may apply the collateral estoppel
doctrine against the defendants even though the plaintiffs
here were not parties to the litigation in Superior Court.
The plaintiffs may also benefit from the application of
the collateral estoppel doctrine against the United States,
for two reasons. First, and most importantly, the United
States participated extensively in the proceedings before
Judge Penn. It is sufficient to quote from Judge Penn’s
opinion:
Although the United States is not a formal party in
this case it has actively participated in and been
fully represented at every hearing. An attorney for
the United States, and sometimes more than one,
attended all proceedings in this case. Even though
the arguments and briefs were written and filed in
the names of the defendants, counsel for the United
States argued on given points of law. This then is
not the case where the United States merely reviewed
pleadings and observed the proceedings in the court-
room; this is the case where the United States was a
very active participant, participating in the writing
of pleadings and briefs and at oral argument. In-
deed, on one occasion these defendants asked for addi-
tional time to file a responsive pleading to the plain-
tiffs’ motions for summary judgment for the reason
that “counsel for the defendant was advised by a
58a
representative of the Department of Justice that a
short additional extension of time was needed in
order for them to prepare and make copies of the
pleading responsive to plaintiffs’ motion.” (Emphasis
in opinion) There is no doubt that the argument
presented to this Court in these cases is the argument
of the United States.
Chesapeake and Potomac Telephone Co. v. District of
Columbia, CA No. 2671-75, at 21-22 (March 28, 1978).
The second factor in favor of applying the collateral
estoppel doctrine against the United States is that the
government, in its motion for summary judgment, has
not raised a single fact that would indicate that, on the
merits, it is indeed the owner of the original alleys of
the District of Columbia. This is the case even though
the United States participated in the Superior Court liti-
gation, and even though this court gave the United States
substantial time to review the records in the Archives.
C. Other Claims in Defense.
The defendants nonetheless make a number of argu-
ments why the bar of collateral estoppel should not be
applied to them. First, the District argues that “in
judicial review of administrative proceedings the Court
cannot or will not consider legal contentions not made
before the Commissioners, or, as in this case, in the com-
plaint seeking judicial review” (emphasis added). The
question of ownership of the alleys, however, is a question
of fact, and it properly was considered and resolved by
Judge Penn. Second, the District contends that D.C. Code
§ 7-302 (1973) requires payment for the closing of “origi-
nal alleys” without any reference to title in the United
States, and that the Commissioner could have closed under
that statute.* Section 7-302 states, in pertinent part, that:
4 The alley involved in this case was closed pursuant to D.C. Code
§ 7-401 (1973).
ee
59a
If the alley to be closed is an original alley, [they]
may sell the land contained therein for cash at a
price not less than the assessed value of contiguous
lots. If the alley is not an original alley, the title
thereto shall revert to the owners of the land abut-
ting thereon....
In essence, the District argues that pursuant to this
provision the Mayor and the Council of the District of
Columbia are vested with the authority to sell land that is
privately owned and not the property of the District of
Columbia or the United States. It is difficult to imagine
how such a result could be justified on a proper inter-
pretation of the statute. Section 7-302 is merely a perpe-
tuation of the erroneous presumption that title to the
original alleys is in the United States. Washington Medi-
cal Center v. United States, 545 F.2d 116, 134-35 (Ct.Cl.
1976) is an example of the same error. As Judge Penn
concluded :
Although some past court opinions have suggested
that title to the alley was in the United States, those
opinions were rendered at a time when the original
documents were not before the court or the court did
not have an opportunity to consider those documents.
Chesapeake & Potomac Telephone Co., supra, at 46-47.
Finally, the United States, in an eleventh-hour attempt
to avoid the clear import of Judge Penn’s decision, raises
the claim that this case is in reality a quiet title action
pursuant to 28 U.S.C. § 2409a (1976), which must be
brought only in a U.S. District Court, see 28 U.S.C.
§ 1346(f), within twelve years of the date of the accrual
of a cause of action. See 28 U.S.C. § 2049a(f). These
provisions might be controlling if this were indeed a quiet
title action; however, the court cannot conclude that it is
an action to quiet title. This litigation began with a 1973
challenge to the authority of the District of Columbia to
60a
charge fair market value for the alley space closed. After
the Court of Appeals upheld this court’s determination
that the District did have such power, the factual question
arose as to ownership by the United States. This action
was filed, against the District of Columbia, in April of
1977, to resolve the factual question remaining from the
prior litigation. In September, 1978, the United States
filed a motion for intervention as a party defendant, and
having intervened, asserted that this action should have
been brought from the outset as an action to quiet title,
merely because a factual question of ownership is in-
volved. The court cannot agree.
The plaintiffs presently have title to the land. Their
title has been recorded, and a rather substantial building
constructed. They are not asserting that the United States
presently threatened their title to the land. The question
of whether the United States once owned the land is
merely incidental to the question of the District of Colum-
bia’s ability to collect the fair market value of the alley
closed.
Summary judgment will be entered for the plaintiff.
An appropriate Judgment follows.
/s/ Thomas A. Flannery
United States District Judge
6la
APPENDIX E
IN THE UNITED STATES COURT OF CLAIMS
(Decided October 20, 1976)
No. 359-72
WASHINGTON MEDICAL CENTER, INC., ET AL.,
V.
THE UNITED STATES
No. 333-73
1776 K STREET ASSOCIATES
Vv.
THE UNITED STATES
No. 156-75
METROPOLITAN CLUB OF THE CITY OF WASHINGTON
V.
THE UNITED STATES
No. 246-75
D. F. ANTONELLI, JR.
v.
THE UNITED STATES
No. 247-75
JACK KoGoK
V.
THE UNITED STATES
62a
Lawrence A. Miller, attorney of record for plaintiff in
No. 333-73.
Whayne S. Quin, attorney of record for plaintiffs in
cases numbered 359-72, 156-75, 246-75 and 247-75. Wilkes
& Artis and Gienn D. Simpson, of counsel.
Thomas L. McKevitt, with whom was Assistant At-
torney General Peter R. Taft.
Before COWEN, Chief Judge, DURFEE, Senior Judge,
and SKELTON, Judge.
ON DEFENDANT’S MOTION AND CROSS-MOTIONS
FOR SUMMARY JUDGMENT AND PLAINTIFFS’
JOINT MOTION FOR SUMMARY JUDGMENT
SKELTON, Judge, delivered the opinion of the court:
In these five consolidated cases four of the plaintiffs
sue the United States to recover money paid by them to
the United States for the closing of certain portions of
various original alleys in the city of Washington, D.C.,
and the remaining plaintiff sues the Government to re-
cover the amount paid by him to the United States for
the closing of a portion of an original street in said city,
namely, G Street, N.W.' The defendant contends that
the charges made for the closing of the portions of the
alleys and G Street were proper and in accordance with
laws enacted by the Congress, and that the plaintiffs
should be denied any recovery. The case is before us on
cross-motions for summary judgment.
After carefully considering the pleadings, evidence,
briefs, and the argument of counsel, we conclude that
1“Original alleys” and “original streets” are those alleys and
streets that were laid out and provided for in the original Federal
City of Washington in the District of Columbia.
63a
the plaintiffs are not entitled to recover and we hold
for the defendant.
The facts involved in these cases are generally as
follows. The plaintiff, Washington Medical Center, Inc.,
joined by William J. Cusack and Frances S. Cusack and
Mary C. Morgan, 1776 K Street Associates, the Metro-
politan Club of the City of Washington, and D. F. An-
tonelli, Jr., were the owners of various lots abutting cer-
tain portions of original alleys in the original squares
listed below.2. None of these plaintiffs owned all of the
lots in an entire square. The plaintiff Jack Kogok owned
certain lots abutting on a portion of G Street, N.W. All
of the plaintiffs desired to have the portions of the alleys
and street (in the case of Kogok) closed so that they
could erect buildings or other improvements thereon. Ac-
cordingly, they filed applications with the City Council
(formerly the City Commission) of Washington, D.C.,
the duly authorized agent of the United States, to close
the portions of the alleys and street on which their lots
abutted. The council acted favorably on the applica-
tions of the plaintiffs provided that the plaintiffs would
pay “a price not less than the assessed value of con-
tiguous lots.” The plaintiffs agreed to such payments and
the council determined and found that the proper pay-
ments to be made by the plaintiffs, respectively, for the
closing of the portions of the alleys in the squares and
street listed below were as follows:
Plaintiff Squares Fair market value
(a) Washington Medical Center 107 $247,701.60
(b) 1776 K Street Associates 126 74,769.05
(c) Metropolitan Club 166 63,725.40
(d) D. F. Antonelli, Jr. 252 30,766.00
(e) Jack Kogok G Street, N.W. 34,700.00
2 When the city of Washington, D.C. was laid out and platted,
the equivalent of modern day city “blocks” were called “squares.”
They are still referred to in that manner in the decided cases and
laws and will be referred to as such in this opinion.
64a
The plaintiffs represented to the council that they were
willing to pay the above amounts, respectively, if the
council would close said portions of the street and alleys,
and, in reliance on such representations, the council made
such closings. The plaintiffs voluntarily, and without
protest, paid the above amounts found by the council to
be due by them, respectively, and in fact were eager to
do so. Title to the closed portions of the street and alleys
was vested by the council in the respective plaintiffs upon
their closings and thereafter the plaintiffs erected build-
ings or other improvements thereon. At all times the
plaintiffs and the council conducted these transactions
on the theory that the United States had fee simple title
to these original alleys and to original G Street, N.W.
The money paid by the plaintiffs was deposited in the
United States Treasury to the credit of the United States.
Within three years after the street and alleys had
been closed, all of the plaintiffs filed suits in the Dis-
trict Court of the District of Columbia for a refund of
the payments they had made for such closings. The
suits were against the District of Columbia and the
United States. In those suits the plaintiffs relied on the
decision of the district court in the case of Carr v. Dis-
trict of Columbia, 312 F. Supp. 283 (D.D.C. 1970) which
held that the District of Columbia could not charge abut-
ting property owners for the closing of a non-original
alley under the Street Readjustment Act of 19382, D.C.
Code § 7-401, and that it could not charge them for the
depreciated value to nearby property caused by the clos-
ings. The D.C. Court of Appeals affirmed without an
opinion.
In the district court suits for refunds, the plaintiffs
included claims for portions of the closed alleys that were
not a part of the original alleys involved here, but were
common law dedicated portions of the closed alleys owned
by the District of Columbia for which the council charged
65a
them. They also asked for refunds for the amounts (not
involved here) for the alleged depreciated value of near-
by property caused by the closings. Included in those
suits were also the identical claims involved here for
refunds of the amounts paid to the United States for
the closing of the described portions of the original alleys
and original G Street, N.W. On January 8, 1974, the
district court entered orders in those cases (Civil Actions
Nos. 1906-72, 2514-72, 1905-72, 660-72, 1093-71 and 2015-
70) holding that the District of Columbia could not
charge abutting property owners the fair market value
of alleys owned and closed by the District of Columbia
unless an objection to the closing has been made, nor
charge for the depreciated value of nearby property
caused by the closing, “notwithstanding the fact that a
portion of the land in Square * * * was original U.S.
property.” The court entered judgment for the plaintiffs
on such claims, but dismissed the United States from
the suits because of lack of jurisdiction. In the course
of the appeal the plaintiffs raised for the first time the
proposition that the United States did not have title to
the original alleys and the original street that were closed
and by reason of that fact could not charge the plaintiffs
for the closings. On June 20, 1975, the D.C. Circuit
Court of Appeals affirmed in cause No. 73-2053 the
judgment of the district court without opinion and with-
out passing on the title question. Thereafter, the plain-
tiffs filed the present suit.
Plaintiffs in this action challenge the authority of the
District of Columbia to impose a fair market value charge
on the basis that (1
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