Petition for Writ of Certiorari — Werner v. United States

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Supreme Court, U.S.

FILS®D

951035 DEC 2 6 1999

OFFICE OF THE CLERK

In The

Supreme Court of the United States

—>

October Term, 1995

THOMAS F. WERNER, RUTH E. WERNER, DAVID

LITWACK, YVETTE A. LITWACK, WILLIAM WARGO,

LYNN WARGO,

Petitioners,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

D. MICHAEL CHESSER

Counsel of Record

CHESSER, WINGARD, BARR,

WHITNEY, FLOWERS & FLEET, P.A.

Attorneys for Petitioner

1201 Eglin Parkway

Shalimar, Florida 32579

(904) 651-6084

7973

ly (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21

ervices, inc.

QUESTION PRESENTED FOR REVIEW

Whether federal courts should ignore state real property law

in favor of federal common law tc determine real property claims

pursuant to Title 28, Section 2909(a), the Federal Quiet Title Act.

TABLE OF CONTENTS

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Reasons for Granting the Writ ..............eceeeees

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TABLE OF CITATIONS

Cases Cited:

Burdess v. United States Army Corps of Engineers, 553 F.

Supp. GEG (ITER) oc ncccccanuceuaeusepeueneebae

Deseret Ranches of Florida, Inc. v. Bowman, 349 So. 2d

135 (ia. U977) oo 0cvcaccnuneccesbaneeceeneeees

Montana Wilderness Association v. United States, 496 F.

Supp. 880 (D.M. 1980), aff’d in part, 555 F.2d 951 (9th

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Page

2,8

Contents

Page

Schultz v. Department of the Army, United States of

America, 10 F.3d 649 (1993) ........ 06 cece ec ecnes 1,6,8,9

Vincent Murphy Chevrolet Company, Inc. v. United States,

766 F.2d 449 (10th Cir. 1985) 2.2.2... ccc cece ee eeee 2

Statutes Cited:

Florida Statute 704.01(1) .......cccccccccccccecess 2

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Rule Cited:

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APPENDIX

Appendix A — Opinion of the United States Court of

-_soseeiand ufos erential

Contents

Appendix B — Opinion of the United States Court of

Appeals for the Eleventh Circuit Dated December 28,

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Appendix C — Order of the United States District Court,

Northern District of Florida, Pensacola Division Dated

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Appendix D — Judgment and Order of the United States

District Court, Northern District of Florida, Pensacola

Division Filed August 12,1992 ............se0000.

Appendix E— Relevant Statutes ..................4-.

Page

l4a

OPINIONS BELOW

This Petition seeks review of an unreported opinion of the

District Court for the Northern District of Florida, dated

December 16, 1994 (Appendix, p. 16a). The opinion held that

“Federal Common Law” of real property, not Florida state law

is to be used in determining whether Petitioner is entitled to an

easement of necessity across federal lands under the Federal

Quiet Title Act. The Court of Appeals order affirming the

District Court is dated September 26, 1995, and is likewise

unreported (Appendix p. 1a).

STATEMENT OF JURISDICTION

This Petition seeks review of the judgment of the District

Court for the Northern District of Florida, dated December 16,

1994, adverse to the Petitioner. That judgment was affirmed

by the Eleventh Circuit Court of Appeals on September 26,

1995. Petitioner seeks to evoke this Court’s jurisdiction

pursuant to 28 U.S.C. § 1254(1), and pursuant to Supreme

Court Rule 10(a). Petitioner asserts here that the opinion of

the District Court, as affirmed by the opinion of the Eleventh

Circuit, conflicts on the important federal question which this

case presents with the decision of the Ninth Circuit Court of

Appeals in Schultz v. Department of the Army, United States of

America, 10 F.3d 649 (1993).

STATUTORY PROVISIONS INVOLVED

This case involves 28 U.S.C. § 2409(a), the Federal Quiet

Title Act.

STATEMENT OF THE CASE

Petitioners sought in the District Court the declaration of

an easement of necessity across Air Force property to gain

access to Petitioners’ property. The circumstances that create

need of the easement are that Petitioners own a waterfront

peninsula of land which is isolated from access to a public

road by a recreation park operated in Okaloosa County,

Florida, by the Air Force. The only land access to Petitioners

property is across the Air Force's recreation camp.

Petitioners filed this suit to gain documented access

pursuant to the United States Quiet Title Act, 28 U.S.C.

§ 2409(a), [hereafter the “Federal Quiet Title Act”).

Petitioners sought their easement pursuant to Florida Statute

704.01(2). (The facts of the case are further set forth,

acceptably to Petitioners, in the trial court's opinion dated

December 16, 1994.)

The trial court concluded, for purposes of its opinion, that

the Federal Quiet Title Act could be used to impress an

easement on behalf of a private claimant against the Federal

Government. See, ¢.g., Montana Wilderness Association v.

United States, 496 F. Supp. 880 (D.M. 1980), aff'd in part, 555

F.2d 951 (9th Cir. 1981); Burdess v. United States, 553 F.

Supp. 646 (E.D. Arkansas 1982); Vincent Murphy Chevrolet

Company, Inc. v. United States, 766 F.2d 449 (10th Cir. 1985).

The trial court, however, ruled that for purposes of the

Federal Quiet Title Act, the elements of an easement of

necessity are not to be determined by the law of the State of

Florida, but must be limited to those circumstances in which

the common law of real property would award such an

easement.

An easement of necessity in Florida is awarded in two

circumstances, primarily. The first is described in Florida

Statute 704.01(1), and is a codification of common law. It

requires a showing of necessity, and severance of the

dominant and serviant parcels at a time when the parcels were

under common ownership. The second circumstance,

described in Florida Statute 704.01(2), is an easement of

necessity created by statute. It requires no unity of title. The

full text of the statute is as follows:

(1) IMPLIED GRANT OF WAY OF

NECESSITY.

The common-law rule of an implied grant

of a way of necessity is hereby recognized,

specifically adopted, and clarified. Such an

implied grant exists where a person has

heretofore granted or hereafter grants lands

to which there is no accessible right-of-way

except over his land, or has heretofore

retained or hereafter retains land which is

inaccessible except over the land which he

conveys. In such instances a right-of-way

is presumed to have been granted or

reserved. Such an implied grant or

easement in lands or estates exists where

there is no other reasonable and practicable

way of egress, or ingress and same is

reasonable necessary for the beneficial use

or enjoyment of the part granted or

reserved. An implied grant arises only

where a unity of title exists from a common

source other than the original grant from

the state of United States; provided,

however, that where there is a common

source of title subsequent to the original

grant from the state or United States, the

right of the dominant or servient tenement

has been or should be transferred for

nonpayment of taxes either by foreclosure,

reversion, or otherwise.

(2) STATUTORY WAY OF NECESSITY

EXCLUSIVE OF COMMON-LAW RIGHT.

Based on public policy, convenience and

necessity, a statutory way of necessity

exclusive of any common-law right exists

when any land or portion thereof outside

any municipality which is being used or

desired to be used for a dwelling or

dwellings or for agricultural or for timber

raising or cutting or stockraising purposes

shall be shut off or hemmed-in by lands,

fencing or other improvements of other

persons so that no practicable route of

egress or ingress shall be available

therefrom to the nearest practicable route of

egress or ingress shall be available

therefrom to the nearest practicable public

or private road. The owner or tenant

thereof, or anyone in their behalf, lawfully

may use and maintain an easement for

persons, vehicles, stock franchised cable

television service, and any utility service,

including but not limited to, water,

wastewater, reclaimed water, natural gas,

electricity, and telephone service, over,

under, through and upon the lands which lie

between the said shut-off or hemmed-in

lands and such public or private road by

means of the nearest practical route,

considering the use to which said lands are

being put; and the use thereof, as aforesaid,

shall not constitute a trespass; nor shall the

party thus using the same be liable in

damages for the use thereof; provided that

such easement shall be used only in an

orderly and proper manner.

Florida Statute 704.01(2), the “Statutory easement of

necessity”, acknowledges special circumstances which exist

in Florida because of the rapid growth of the state, and because

of a legislative public policy to discourage isolated pockets of

property which cannot be developed. See Deseret Ranches of

Florida, Inc. v. Bowman, 349 So. 2d 155 (Fla. 1977).

Petitioners rely in this action upon Florida’s Statutory

Way of Necessity (§ 704.01(2)), since there was never unity of

title, and Petitioners qualify in all other ways for grant of such

easement. The trial court determined that the Federal Quiet

Title Act is a waiver of sovereign immunity, and that as such it

must be strictly construed. In addition, the trial court reasoned

that Congress must have intended consistency across the

states, and therefore a federal common law should be applied.

Common law requires unity of title. Here the Petitioners had

no unity of title, and the trial court determined Petitioners to

be unentitled to award of a statutory easement of necessity

across federal land where there was never unity of title.

REASCNS FOR GRANTING THE WRIT

In its limitation of the Federal Quiet Title Act to a federal

common law of easements, the courts below departed from the

prior opinion of several other District Courts and at least the

Ninth Circuit Court of Appeals. In addition, the lower courts’

treatment creates a contradiction with the legislative history

of the Federal Quiet Title Act.

In Schultz v. United States Department of the Army, 10

F.3d 649 (9th Cir. 1993) the Ninth Circuit was confronted with

a Claimant, Schultz, who owned property to the Northeast of

Fort Wainwright and east of Fairbanks, Alaska. To get to

Fairbanks, Schultz was required to cross Fort Wainwright. The

base was situated on land owned by the Federal Government.

The Court made factual findings that travel in and around Fort

Wainwright was difficult, and that in Alaska, more than most

other locations, the season dictates the nature and means of

passage. The trial of the action involved introduction of

evidence of various historical routes across the land now

occupied by the U.S. Army. The court found that in 1981 the

Army instituted a pass system for vehicles entering or crossing

the base and that when Schultz did not present a pass, the Army

refused him entry. The court found that no other land route

was available, and without access through Fort Wainwright

Schultz was landlocked. The court stated that “hemmed in by

Fort Wainwright to the East and the Chena River to the South,

the property cannot be developed or subdivided.” The Army

had taken the property in a series of transactions beginning in

1937. All of the acquisitions were made “subject to valid

existing rights.” Petitioner filed its suit under the Federal

Quiet Title Act, claiming to be entitled to declaration of an

easement on two separate theories. The first had to do with a

public road right-of-way which existed pursuant to 43 U.S.C.

§ 932 before the statute was repealed in 1976, which rights of

way were known as RS 2477 right-of-way. The second

alternative upon which Schultz claimed his easement of

necessity was under Alaska law as a “public easement” by

prescription”.

As to the first issue, the court found that whether an RS

2477 right-of-way existed prior to the time the Army took title

beginning in 1937, was a question entirely of state law.

Schultz at page 655. The Circuit Court did not deal clearly with

the first issue, except to say that whether or not a public road

exists is a matter of Alaska law. The court did deal with the

second, whether or not an easement existed pursuant to Alaska

law. The court said specifically that:

Under Alaska law “public easements may

be acquired by prescription.” Dillingham,

705 P. 2d at 416 (citing 2 J. Grimes,

Thompson on Real Property § 342, at 209

(1980)). “To establish a prescriptive

easement a party must prove that (1) the use

of the easement was continuous and

uninterrupted; (2) the user acted as if he or

she were the owner and not merely one

acting with the permission of the owner;

and (3) the use was reasonably visible to the

record owner.” McGill v. Wahl, 839 P.2d

393, 397 (Alaska 1992) (citing Swift v.

Kniffen, 706 P.2d 296, 302 (Alaska 1985)).

“[A] claimant must show essentially the

same elements as for adverse possession.”

Swift, 706 P.2d at 302. He must overcome

the presumption that “[w]hen [he] enters

into possession or use of another’s

property, there is a presumption that he

does so with the owner’s permission and in

subordination to his title.” Hamerly, 395

P.2d at 129; see also McGill, 839 P.2d at

397. “Use alone for the statutory period” is

insufficient. Hamerly, 395 P.2d at 129.

“The use must be open notorious, adverse,

hostile, and continuous.” Dillingham, 705

P.2d at 416. The purpose of these

requirements is “to put the record owner on

notice of the existence of an adverse

claimant.” Swift, 706 P.2d at 302. In some

cases, a private permissive easement may

become prescriptive if it “was for many

years the only means of passage [through]

the dominant estate.” McGill, 839 P.2d at

398. The fact that the easement is shared

does not defeat the claim because “[iJt

would not be expected that an easement

holder would object to traffic on or use of

that part of a roadway which did not

interfere with its [sic] [the easement

holder’s] use.”

Id.

The Ninth Circuit Court of Appeals affirmed the District

Court’s award of an easement across federal land by reference

to Alaska substantive law.

The United States District Court for the Eastern District

of Arkansas used a similar rationale in the case of Burdess v.

United States Army Corps of Engineers, 553 F. Supp. 646

(1982). In that case the claimant, Burdess, was separated from

portions of his property by land owned by the Corps of

Engineers. The court wrestled with the applicability of the

Federal Quiet Title Act, and decided that “the case law and

legislative history clearly support the proposition that a claim

for a right-of-way, easement, implied easement of necessity or

other estate less then a fee simple may properly be the subject

of Quiet Title Action against the United States. City of Denver

v. Bergland, 517 F. Supp. 155 (D. Col. 1981)” The court

concluded that it did have jurisdiction to consider the claim

under the Federal Quiet Title Act. The court concluded that the

Plaintiff was entitled to an easement. In reaching that

conclusion the court, at pages 649 and 650 expressly relied

upon the theory of common law easements of necessity. The

court said that:

The state of Arkansas adopts this common

law approach. See Brandon Berg v. Brooks,

264 Ark. 939, 576 S.W. 2d 196 (1979). In

the Brandon Berg case the Arkansas

Supreme Court also addressed the issue of

the degree of necessity required before a

way of necessity could be implied. The

court held that absolute necessity was not

required, but that “a way of necessity must

be more than one of mere convenience.” /d.

940, 576 S.W. 2d at 196. As opposed to an

easement by necessity, which theoretically

allows for a route of access where one

previously did not exist, an easement by

implication rests on the theory that a route

of access was in existence at the time of the

severance of a single parcel of land. The

precise elements to be proved by the

Plaintiff were set out in United States v.

Thompson, 372 F. Supp. 774, 784-785

(E.D. Ark. 1967), aff’d, 408 F. 2d 1075

(1969) (adopting the Arkansas rule as set

out in Greasy Slough Outing Club v. Amick,

224 Ark.330, 274 S.W. 2d 63 (1954)).

The District Court in Arkansas used Arkansas law, which

was not required to be, and presumably was not, the same as

the law in other states to define the extent and existence of an

easement of way. Similarly, the Circuit Court in Schultz v.

United States Department of the Army, supra, did exactly the

same thing in Alaska.

The legislative history of the Federal Quiet Title Act

provides some help in determining the intent of Congress:

The main objection in the past to waiving

sovereign immunity in this area has been

that it would make possible decrees ousting

the Untied States from possession and thus

interfering with operations of the

Government which have been authorized

by the Congress. Our draft bill would

eliminate cause for such apprehension. The

provision subsection (b) of proposed

section 2409a would apply where the

Untied States is in possession and the court

finds that it is occupying the property

without title. If the United States wished to

retain possession it would be required to so

elect and to pay compensation as

determined by the court to the true owner.

If the United States were in possession

under a lease, and the title of the

Government’s lessor were adjudicated to be

invalid, the United States could elect to

continue its lease with the true owner. If the

United States were adjudged to be

occupying without title, it is only fair to

require it to choose between acquiring the

right to possession and ceasing to occupy.

The procedure so provided preserves the

Tucker Act method for acquisition of

property by the Government, as it

preserves the concomitant right of the

former owner to receive just

compensation. A difference from the

remedy provided by 28 U.S.C. 1346(a)(2),

however, is that the district courts would

have jurisdiction without regard to any

jurisdictional amount. Where the subject

matter of the litigation is real property, it

appears equitable that suit be authorized in

a court near the situs of the property.

One approach to a statute waiving

immunity in this area would have been to

adopt state law in its entirety, thereby

placing the United States on the same

footing as any private litigant. However,

the wide differences in State statutory and

decisional law on this subject make this an

impractical alternative. Along with the

merger of law and equity, many States have

enacted legislation to abolish some of the

traditional prerequisites for the institution

of suits to quiet title. The requirement of

possession has occasionally been dropped

(see Cal. CCP sec. 738; Neb. R.R.S. 1943

§ 25-21, 112: and Code Va § 55-153), and

the statutory procedure in some States

appears virtually to supersede the common

law (see Vernon’s Ann. Cuv. St. Art. 7364,

et seq. and 47 Tex Jur. 2d Quieting Title §

1). Several States allow the plaintiff to

obtain a judicial determination of rights

acquired by adverse possession in this type

of suit, and there is an immense variation

with respect to the period of limitation on

bringing suits. It is our belief that

uniformity at least as to the plaintiff's

qualifications for instituting suit is

desirable, and the draft bill sets forth such

qualifications. Possession in the plaintiff is

not required. The State law of real property

would of course apply to decide all

questions not covered by Federal law.

H.R. Rep. No. 92-1559, 92d Cong., 2d Sess., reprinted in 1972

U.S.C.C.A.N. 4555. (Emphasis added).

It is clear from the commentary that uniformity as the

Plaintiff’s qualification for instituting suit was desired by the

Congress, and therefore was specifically provided in the draft

bill. The matter of uniformity was considered, and presumably

to the extent considered necessary, is expressly contained in

the act itself. Congress was specifically told that “the federal

law of real property would of course apply to decide all

questions not covered by federal law.” There is no federal

substantive law provided in the act. The kinds of actions

authorized by the Federal Quiet Title Act include challenge to

fee simply title, boundary line disputes, easement disputes,

and other real property challenges. If the rule adopted by the

Circuit Court in the Northern District of Florida in this case is

to apply, District and Circuit Courts across the United States

will be required to create federal common law principles of

real estate.

The approach taken by the Northern District in Florida

would permit the United States, when it acts as plaintiff, to

apply law of the forum. When it acts as defendant, federal

common law would apply, not forum law. There is no rationale

by which the United States is in need of consistency only when

it occupies the role of defendant. If consistency of real

property principles were truly desired by Congress, those

principles should be set forth by statutory law, or otherwise

should be adopted by reference. There is no evidence by which

a court should presume Congress to have intended consistency

where legislative history indicates that to the extent

consistency was considered necessary, provision for that was

expressly made.

CONCLUSION

The Ninth Circuit Court of Appeals has made specific

reliance upon Alaska law in granting an easement to a

landlocked claimant in Alaska. The Circuit Court in the

Eleventh Circuit has affirmed the decision of the District

Court in Florida which specifically declined to apply Florida

law to a landlocked claimant in Florida. This conflict is on a

point of law which is critically important to those who claim

rights under the Federal Quiet Title Act, across the entire

United States. This Court should exercise its certioriari

jurisdiction to resolve this conflict between Circuits.

Respectfully submitted,

D. MICHAEL CHESSER

Counsel of Record

CHESSER, WINGARD, BARR,

WHITNEY, FLOWERS & FLEET, P.A.

Attorneys for Petitioner

1201 Eglin Parkway

Shalimar, Florida 32579

(904) 651-6084

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APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT FILED SEPTEMBER 26, 1995

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 95-2202

Non-Argument Calendar

D.C. Docket No. 91-30072-RV

THOMAS F. WERNER, RUTH E. WERNER, DAVID

LITWACK, YVETTE A. LYTWACK, WILLIAM WARGO,

LYNN WARGO,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Florida

(September 26, 1995)

Before BIRCH and BLACK, Circuit Judges, and JOHNSON,

Senior Circuit Judge.

PER CURIAM:

In March 1991, Thomas Werner, Ruth Werner, David

Appendix A

Litwack, Yvette Litwack, William Wargo and Lynn Wargo

(collectively, “Appellants”) brought suit against the United

States (“Appellee”) pursuant to the Quiet Title Act, 28 U.S.C.A.

§2409(a) (West 1994), seeking an easement by necessity over

federally owned land. In August 1992, the district court granted

Appellee’s original motion for summary judgment. In December

1993, this Court reversed the district court’s grant of summary

judgment and remanded the case. Werner v. United States, 9 F.3d

1514 (11th Cir. 1993).

In May 1994, Appellee filed a renewed motion for summary

judgment on grounds that had been raised in its original motion,

but which the district court had not reached. In December 1994,

the district court granted summary judgment for Appellec.

Appellants contend the district court erred in granting Appellee’s

renewed summary judgment motion, asserting (1) that an

easement of necessity can be claimed against the United States

under the Quiet Title Act, (2) that a state retains jurisdiction over

federal lands within its territory, and applies state law where it

does not conflict with federal law, and (3) that military property is

not exempt from the operation of the Quiet Title Act. After a

careful review of the record, we conclude that Appellants’

contentions have no merit.

AFFIRMED.

APPENDIX B — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

DATED DECEMBER 238, 1993

United States Court of Appeals,

Eleventh Circuit.

Dec. 28, 1993

No. 92-3040.

Thomas F. WERNER, Ruth E. Werner, David Litwack, Yvette

A. Litwack, William Wargo, Lynn Wargo,

Plaintiffs-Appellants,

UNITED STATES of America,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Florida.

Before ANDERSON and DUBINA, Circuit Judges, and

GODBOLD, Senior Circuit Judge.

GODBOLD, Senior Circuit Judge:

Appellants, plaintiffs below, are owners of a small parce! of

land located on Choctawhatchee Bay in northern Florida. The

property is bounded on three sides by water and on the fourth side

Appendix B

by land that is part of Eglin Air Force Base, a facility of the United

States. It is physically impossible to enter plaintiffs’ property by

land without crossing over the adjoining Eglin land.

On March 15, 1991 plaintiffs sued the United States pursuant

to 28 U.S.C. § 2409a(a),' the Quiet Title Act, seeking a

declaration that they had acquired an easement of necessity

pursuant to Florida statute § 704.01(2).? The subject matter of the

1. §2409a(a):

The United States may be named as a party defendant

in a civil action under this section to adjudicate a

disputed title to real property in which the United

States claims an interest, other than a security interest

or water rights (with exceptions not relevant).

2. §704.01(2):

Statutory way of necessity exclusive of common-law

right. Based on public policy, convenience, and

necessity, a statutory way of necessity exclusive of any

common-law right exists when any land or portion

thereof outside any municipality which is being used or

desired to be used for a dwelling or dwellings or for

agricultural or for timber raising or cutting or

stockraising purposes shall be shut off or hemmed in by

lands, fencing, or other improvements of other persons

so that no practicable route of egress or ingress shall be

available therefrom to the nearest practicable public or

private road. The owner or tenant thereof, or anyone in

their behalf, lawfully may use and maintain an

easement for persons, vehicles, stock, franchised cable

television service, and any utility service, including,

but not limited to, water, wastewater, reclaimed water,

natural gas, electricity, and telephone service, over,

under, through, and upon the lands which lie between

(Cont'd)

Appendix B

claimed easement is an existing road, reaching from the nearest

public road, across the Eglin land, and to the boundary of

plaintiffs’ property. The district court granted the government’s

motion for summary judgment on the ground that plaintiffs were

barred by the 12-year statute of limitations of 28 U.S.C.

§ 2409a(g), formerly § 2409a(f).* We hold that the district court

erred in granting summary judgment.

The background.

The United States government has owned the land that is

now Eglin Air Force Base since 1821, when Florida and parts of

Alabama and Mississippi were acquired from Spain by a treaty of

cession. The Eglin land relevant to this case was a part of national

forest land transferred from the Agriculture Department to the

(Cont'd)

the said shut-off or hemmed-in lands and such public or

private road by means of the nearest practical route,

considering the use to which said lands are being put;

and the use thereof, as aforesaid, shall not constitute a

trespass; nor shall the party thus using the same be

liable in damages for the use thereof; provided that

such easement shall be used only in an orderly and

proper manner. As amended by Laws 1991, c. 91-177.

The 1991 Amendments are not relevant io the issues before us.

3. §2409a(g):

Any civil action under this section, except for an action

brought by a State, shall be barred unless it is

commenced within twelve years of the date upon which

it accrued. Such action shall be deemed to have accrued

on the date the plaintiff or his predecessor in interest

knew or should have known of the claim of the United

States.

Appendix B

War Department in 1940 and in that year became part of Eglin Air

Force Base.

Plaintiffs trace their title from a deed from one private owner

to another dated in 1922. Only private owners appear in their

chain of title.

The portion of Eglin across which the plaintiffs seek an

easement is known as White Point. White Point Road, the public

roadway nearest plaintiffs’ property, runs in a general north-

south direction within Eglin and ends at Choctawhatchee Bay.

White Point Road is approximately one and one-half miles from

the western border of plaintiffs’ property.

The portion of Eglin lying between White Point Road and

plaintiffs’ western border is now a recreation area. Prior to its

designation as a recreation area in 1956 the site was the location

of Eglin housing and contained an access road linking the

housing complex to White Point Road. Shortly after the Air Force

removed the housing it extended this road approximately three-

tenths of a mile to the western border of plaintiffs’ property, for

the purpose, the government states, of better serving the

recreation area and a nearby Navy observation site.

Plaintiffs’ tract was purchased by the Werner plaintiffs in

1987. They subdivided the property into three lots, retained one,

and sold the other two to the other plaintiffs. As required by

§ 704.01(2), plaintiffs’ property is outside a municipality, and it is

not disputed that they desire to use it for dwelling purposes. In

September 1987 two of the plaintiffs filed on the county public

records a subdivision plot that indicates an existing 20-foot Air

Force easement extending from their subdivision westerly across

the Eglin land to White Point Road. This alleged easement tracks

the location of the access road that serves the recreation area and

Appendix B

reaches plaintiffs’ property. In 1980 the government built an

electrically-operated gate where the access road reaches

plaintiffs property. For a time plaintiffs were provided with cards

that unlocked the gate. Later the procedure was changed so that

the gate is open from 7:00 a.m. to 10:00 p.m. and then it is locked,

leaving plaintiffs unable to reach their property by the access road

during the remaining night hours.

Discussion.

Plaintiffs do not claim a common law easement or an implied

easement created by Florida statute § 704.01(1). They claim a

statutory easement of necessity, created by § 704.01(2). They

brought suit pursuant to 28 U.S.C. § 2409a(a), which authorizes

suit against the United States in a civil action to adjudicate a

disputed title to real property in which the United States claims an

interest.4 An action under § 2409a(a) must be brought within 12

years of the time the action accrued. 28 U.S.C. § 2409a(g).

The government contended, and the district court accepted,

that the statute of limitations issue turned upon whether plaintiffs

and their predecessors in interest either knew or should have

known for more than 12 years before filing suit that the

government claimed some interest in or ownership of the Eglin

property. From the facts we have set out it was obvious that

plaintiffs and their predecessors in title knew or should have

known of government ownership or interest for more than 12

years, so summary judgment was granted. But the position of the

government, adopted by the district court, misperceives the issue.

Plaintiffs do not dispute the government’s ownership, nor do they

4. In this appeal the government does not contend that suit may not be

brought under § 2409a(a) to adjudicate a claim of the existence of a statutory

easement of necessity created by Florida statute § 704.01(2).

Appendix B

deny that they knew the government was owner of the land

between their property and White Point Road. Rather they look to

the nature or extent of the government’s interest and describe it

not as unqualified ownership but as ownership limited or

qualified by permissive use of the roadway by others. The

limitations issue then turns upon whether, prior to the erection of

the gate, plaintiffs or others had been permitted to utilize the road

for access to plaintiffs’ property and, if plaintiffs or others had

been so permitted, when did plaintiffs know, or should have

known, that the government had changed its position and,

adversely to the interests of plaintiffs, denied or limited the use of

the roadway for access to plaintiffs’ property.* Pretermitting

questions of who actually used the roadway as access to

plaintiffs’ property, and the extent of use, it is clear that ingress or

egress from plaintiffs’ property to White Point Road was

available from around 1956 when the road was extended to

plaintiffs’ property until 1980 when access was limited by the

erection of the gate.

Principles applicable to this case are illuminated by several

cases. In Park County, Montana v. U.S., 626 F.2d 718 (9th Cir.

1980), plaintiffs, counties of the State of Montana, filed suit in

1976 against the United States under § 2409a(a) to quiet title to an

easement across lands of a national forest. The district court

dismissed pursuant to the statute of limitations, then § 2409a(f).

5. Plaintiffs do not attempt to establish a common law casement based upon

prior permissive usage or upon long-time adverse usage. They assert a statutory

easement which, by the terms of the Florida statute, is based upon necessity of

access. It is undisputed that necessity of access exists. The history of prior usage,

and the date that the government acted adversely to plaintiffs to terminate prior

usage, are relevant not as the predicate for existence of an easement but to determine

for statute of limitations purposes the scope of the government's interest and the

time at which the plaintiffs knew or should have known of the government's claim

that it could bar or limit the access previously permitted.

Appendix B

The forest area in which the claimed right of way existed had been

the property of the United States since 1902. The major portion of

the right of way claimed by the counties lay on a route that

followed Forest Service trails that had been maintained since the

early part of the twentieth century. Part of the alleged right of way

lay in a portion of the national forest that in 1932 was designated

as a Primitive Area. In 1962 the Forest Service placed a rock

barrier and sign where the existent trail entered the Primitive

Area, prohibiting entry by motor vehicles, a use not previously

forbidden. The court of appeals agreed with the district court that

plaintiffs knew or should have known of the claim of the United

States to the purported right of way more than 12 years before the

suit was brought. But the court did not measure the beginning of

the limitations period from 1902, when the government became

owner of the property, or from the time that the Forest Service

began maintaining trails in the early part of the twentieth century,

or from 1932 when the relevant part of the property was

established as a Primitive Area, but rather from 1962, when the

rock barrier and the sign were placed, prohibiting the use by

motor vehicles.

In Narramore v. U.S., 852 F.2d 485 (9th Cir. 1988), Congress

had authorized the construction of a dam and reservoir

substantially in accordance with recommendations submitted to

Congress by the chief of the Corps of Engineers. Those

recommendations included a schedule for the extent and duration

of release of flood waters from the reservoir, known as Plan A.

The Corps of Engineers, which operated the dam, never followed

Plan A. Landowners sued in 1980 under § 2904a(a) to compel

compliance with Plan A. The district court held the quiet title

claim barred by the 12-year statute of § 2409a(g). The Corps of

Engineers had failed to release water in accordance with Plan A

as early as January 1966. Some landowners had sued in June 1966

to compel compliance with Plan A, but the suit had been

10a

Appendix B

dismissed on sovereign immunity grounds. In the second case the

Corps tendered evidence that it had released waters more rapidly

after the 1966 suit was filed. Its public position, however, until

1977 was that Plan A was still in effect.

The limitations issue turned on whether plaintiffs either

knew or should have known before November 1968 (12 years

before the 1980 filing) that the government, as owner and

operator of the dam and reservoir, claimed that it was not bound to

comply with Plan A. The court of appeals held that there was a

factual issue of whether the landowners had actual notice arising

out of the 1966 failure to comply, because the flooding was of

short duration and was followed by what could be perceived as

government rectification of a mistake. Jd. at 492. And it held there

was no constructive notice of a policy of noncompliance, —

because the public policy of the Corps until 1978 was that Plan A

was in effect. Jd. Therefore, the court erred in granting summary

judgment on the limitations issue. Thus, in Narramore as here,

the plaintiff showed rights or benefits previously enjoyed, in that

case pursuant to a formalized plan, in this case pursuant to

permissive usage, which the government asserted that it could

remove or limit. In Narramore the date that triggered the

beginning of the 12-year limitations period was not the date on

which the landowners acquired knowledge that the government

was owner and operator of the dam and reservoir but the date on

which knowledge was acquired that the government was seeking

to impose limitations or restrictions on the Plan A benefits that

the landowners enjoyed from the government with respect to the

property.

In Kinscherff v. U.S., 586 F.2d 159 (10th Cir. 1978), the

United States had built on its land a road to a dam site. Plaintiffs

sued pursuant to § 2409a(a), alleging that they wished to develop

their adjoining land to which the road was the sole access and that

lla

Appendix B

the United States would not permit them to use the road to bring in

equipment, machinery, or material. The district court dismissed

for failure to state a cause of action. The Tenth Circuit reversed on

the ground that whether an easement of necessity existed was a

mixed question of law and fact. With respect to the statute of

limitations the court held:

[T]he limitation issue is a mixed question of

fact and law as to whether the patentee or a

successor in interest knew or should have

known of the Government’s claim of no

easement or of a limited easement. Again we

express no opinion as to such limitation

period, and the facts pertinent to the

commencement of the limitation period must

be developed. (Emphasis added.)

Id. at 161. In Kinscherff, as in the present case, the triggering

event for statute of limitations purposes was not the time at which

the claimants knew that the government was owner but the time at

which they knew or should have known thai the government

claimed that it could deny use by the plaintiffs of the access road

to their property because there was no easement (or only a limited

easement) permitting such use.

Elk Mountain Safari, Inc. v. U.S., 645 F.Supp. 151

(D.Wyoming 1986), follows the same principles. A landowner

granted a right of way to the government in 1957. A subsequent

owner sued the government, asserting that the easement was

limited to government use to administer public lands pursuant to

federal statutes, while the government claimed that the easement

encompassed public use. The government raised the 12-year

statute of limitations issue of § 2409a(f). The court held:

12a

Appendix B

[T]he United States’ claim to a public

roadway was first openly contended in 1983

or 1984 and [that] plaintiffs’ quiet-title action

was filed within the requisite twelve-year

statute of limitations period. 28 U.S.C.

§ 2409a; see also Vincent Murphy Chevrolet

Co. v. U.S., 766 F.2d 449 (10th Cir. 1985). A

claim under § 2409a “accrues when the

plaintiff has a reasonable awareness that the

government claims some interest adverse to

the plaintiff’s.” Jd. at 452. The adverse

interest claimed by the United States is its

position that the roadway should be open to

the general public; this was not expressed

until 1983 or 1984 and the limitations period

did not begin to run until that time. (Emphasis

added.)

Id. at 15 155-56. An internal manual of the Bureau of Land

Management of the Department of Interior, which had acquired

the easement, stated the opinion that the roadway provided public

access, but this was not sufficient to provide the plaintiff with

reasonable awareness of the government’s claim.

These cases may be compared with Vincent Murphy

Chevrolet Co., Inc. v. U.S., 766 F.2d 449 (10th Cir. 1985). The

landowner acquired land by purchase from the United States. The

deed contained sweeping restrictions, prohibitions and reserved

rights in the government, presumably imposed because of nearby

military activity. More than 12 years later the owner sued under

§ 2409a(a) to remove the limitations in the deed but was time-

barred by the 12-year statue. The owner had notice of the

restrictions from the deed itself. The district court and the court of

appeals rejected the owner’s theory that the purposes of the

13a

Appendix B

restrictions had disappeared because military activity had ceased

and the character of surrounding land had changed and that the

statute of limitations only began to run when the government,

within the 12 years, insisted that the restrictions were still valid.

There was not, as in the case before us, any holding out or

permission by the government that its claim was anything less

than its rights set out in the deed, followed by a cessation of such

holding out or permission that would adversely affect one

previously enjoying the benefits thereof.

In their brief to this court plaintiffs have discussed Elk

Mountain, Kinscherff, and Narramore and have predicated their

appeal on the principles taught by those cases. The government

has not responded to those cases (or to Park County, Montana,

which it cites for another proposition) but rather, in inappropriate

language, has described plaintiffs’ argument as “border[ing] on a

sanctionable abuse of the court for its speciousness,” as

“irrelevant,” and “more disingenuous than simply mistaken.”

The primary position of the government is that the notice that

triggers the statute of limitations need be only that the

government claims some interest — any interest — in the

property. We reject this theory. For statute of limitations

purposes, the first inquiry must define the government’s claim

and then one must look to the time that the government, acting

adversely to the interests of others, seeks to expand that claim.

The district court erred in deciding the limitations issue by

summary judgment.

The motion by the government to strike plaintiffs’ reply brief

and award sanctions is DENIED. The summary judgment is

REVERSED and the case REMANDED for further proceedings.

l4a

APPENDIX C—ORDER OF THE UNITEDSTATES

DISTRICT COURT, NORTHERN DISTRICT OF

FLORIDA, PENSACOLA DIVISION

DATED DECEMBER 16, 1994

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CASE NO. 91-30072-RV

THOMAS F. WERNER, RUTH E. WERNER, DAVID

LITWACK, YVETTE A. LITWACK, WILLIAM WARGO, and

LYNN WARGO,

Plaintiffs,

Vv.

UNITED STATES OF AMERICA,

Defendant.

ORDER

Pending is the motion of the plaintiffs for summary

judgment. (doc. 32). Also pending is the cross-motion of

defendant United States of America to dismiss the complaint, or

in the alternative, for summary judgment. (doc. 27).

I. BACKGROUND

Except as noted, the following facts are undisputed in the

record. The plaintiffs are owners of a parcel of land located on

Choctawhatchee Bay in Okaloosa County, Florida. The property

15a

Appendix C

is bounded on three sides by water, and on the fourth side by the

Eglin Air Force base. It is impossible to access the plaintiffs’

property by land without crossing the adjoining Eglin property.

On March 15, 1991, the plaintiffs sued the United States

pursuant to the Quiet Title Act [28 U.S.C. §2409a(a)], seeking a

declaration that they had acquired an easement of necessity

pursuant to Section 704.01(2), Florida Statutes.' The portion of

Eglin across which the plaintiffs seek an easement is known as

White Point. White Point Road, the public roadway nearest the

plaintiffs’ property, runs in a general north-south direction within

Eglin and ends at Choctawhatchee Bay. White Point Road is

approximately one and one-half miles from the western border of

the plaintiffs’ property.

The portion of Eglin lying between White Point Road and

1. The statute states in pertinent part:

(2) Statutory way of necessity exclusive of

common-law right. — Based on public policy,

convenience, and necessity, a statutory way of

necessity exclusive of any common-law right exists

when any land or portion thereof outside any

municipality which is being used or desired to be used

for a dwelling or dwellings or for agricultural or for

timber raising or cutting or stockraising purposes shall

be shut off or hemmed in by lands, fencing, or other

improvements of other persons so that no practicable

route of egress or ingress shall be available therefrom

to the nearest practicable public or private road. The

owner or tenant thereof, or anyone in their behalf,

lawfully may use and maintain an easement for

persons, vehicles, stock, franchised cable television

service, and any utility service... .

16a

Appendix C

plaintiffs’ western border is now a recreation area. Prior to its

designation as a recreation area in 1956, the site was the location

of Eglin housing and contained an access road linking the

housing complex to White Point Road. Shortly after the Air Force

removed the housing, it extended this road approximately

three-tenths of a mile to the western border of the plaintiffs’

property, so as to better serve the recreation area and a nearby

Navy observation site.

In 1980, the Air Force placed an electric gate on the road

which required a access card to unlock the gate. Because

plaintiffs Thomas F. Werner, David Litwack, and William Wargo

were civilian employees of Eglin, and were allowed to use the

recreation area, each was issued an access card. Later, the

procedure was changed, and the gate was unlocked from 7:00

a.m. until 10:00 p.m. The gate is now locked at 10:00 p.m. and the

plaintiffs currently have no ingress or egress to their property

during the night hours.*I previously granted summary judgment

to the defendant on the basis of the applicable statute of

limitations, but the Eleventh Circuit reversed. The plaintiffs have

now moved for summary judgment, and the defendant has also

filed a cross motion to dismiss the complaint, or in the alternative,

for summary judgment, on the scope of the Quiet Title Act.

Il. ANALYSIS

| A. Summary Judgment Standard.

The standard for considering summary judgment motions is

2. The factual background of this case is set forth in detail in my order of

August 12, 1992, (doc. 13), as well as in the Eleventh Circuit's opinion in this case.

Werner v. United States, 9 F.3d 1514(11th Cir. 1993).

17a

Appendix C

set out in my prior order of August 12, 1992, and is incorporated

herein.

B. Easements by Necessity.

The cross motions for summary judgment raise two issues:

(1) whether the Quiet Title Act authorizes easement by necessity

suits against the United States; and (2) if so, whether the plaintiffs

are entitled to an easement by necessity.

(1) Quiet Title Act. It is axiomatic that as sovereign, the

government cannot be sued except as it consents to be sued.

United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349,

1351, 63 L.Ed.2d 607, 613 (1980). Congress partially abrogated

the United States’ sovereign immunity in the Quiet Title Act

when it authorized private parties to bring certain types of suits

involving the title to real property against the United States. It is

not clear whether easements by necessity were included within

the scope of the Quiet Title Act .’

The plaintiffs and the defendant each cite the Supreme Court

of the United States’ opinion in Leo Sheep Co. v. United States,

440 U.S. 668, 99 S.Ct. 1403, 59 L.Ed.2d 677 (1979) as authority.

There, the Union Pacific Act of 1862 established a route for a

transcontinental railroad, and divided the land surrounding the

route into “checkerboard” sections. The Act, as later amended,

granted the Union Pacific Railroad all odd numbered sections

3. Part of the ambiguity arises from the word “quiet title.” At the common

law, an action to quiet title, or bill guia timet, could not be used to resolve title to an

easement by necessity. The courts and commentators have disagreed on whether

quiet title should be given its technical, common-law meaning, or instead, should be

read generically to mean resolving title disputes.

18a

Appendix C

within 20 miles of its tracks; the United States retained the even

number sections. The Lec Sheep Company and the Palm

Livestock Company were Union Pacific’s successors in fee to

certain odd numbered sections in Carbon County, Wyoming.

These sections were east and south of the Seminoe Reservoir, an

area composed in part of the even numbered sections, and used by

the public for hunting and fishing. Because of the checkerboard

configuration, it was impossible to enter the Seminoe Reservoir

from that direction without crossing private land.

The United States constructed an access road to the Seminoe

Reservoir across the livestock companies’ land, asserting that the

government had an easement by necessity. “Where a private

landowner conveys to another individual a portion of lands in a

certain area and retains the rest, it is presumed at common law

that the grantor has reserved an easement to pass over the granted

property if such passage is necessary to reach the retained

property. These right-of-ways are referred to as ‘easements by

necessity.” ” 440 U.S. at 679, 99 S.Ct. at 1409, 59 L.Ed.2d at 686.

The two private landowners filed suit pursuant to the Quiet Title

Act seeking to quiet title against the United States. Leo Sheep

involved the United States attempting to obtain an easement by

necessity against a private party. The Supreme Court held, inter

alia, that the easement by necessity doctrine was not available to

the sovereign because of its ability to acquire the land by eminent

domain. The court did not consider the reverse situation, i.c.,

whether the Quiet Title Act authorized an easement by necessity

action against the United States. Nor did it discuss the scope of

the Act at all, and the case really provides no guidance for this

action.

In support of their contention that an easement by necessity

may be asserted against the United States, the plaintiffs cite

POMP GRE RONG Le Fras co

ERR al ep

POPPE ARE RIK MERLE IE DN.

eae I NE eae OL OS NL i NO ORR UMMA g tees

~ 4

19a

Appendix C

Montana Wilderness Asstn. v. United States, 496 F.Supp. 880

(D.Mont. 1980), aff’d on other grounds, 655 F.2d 951 (9th Cir.

1981), cert. denied, 455 U.S. 989, 102 S.Ct. 1612, 71 L.Ed.2d 848

(1982). There, Burlington Northern Railroad owned land which

was intermingled with the Gallatin National Forest in the same

checkerboard pattern that was involved in Leo Sheep.‘ After the

railroad was granted a permit to construct a logging road across

the government owned forest land, an environmental activist

group filed suit to block construction of the road, and the permit

was temporarily withdrawn.

Burlington Northern asserted, inter alia, that it had an

casement by necessity to construct the road. The Secretary of

Agriculture requested a formal opinion from the Attorney

General. In a lengthy opinion, Attorney General Civiletti

concluded that “the co:amon law doctrine of easement by

necessity does not appiy to land owned by the federal

government.” 43 Op. Att’y Gen. No. 26 (June 23, 1980). While

conceding that the opinions of the Attorney General are entitled

to “great weight,” the district court concluded that an easement

by necessity could exist against the United States. 496 F.Supp. at

884-85. The court then announced two requirements to assert an

easement by necessity against the United States. First, the party

claiming an easement must satisfy the three common law

prerequisites. Jd. at 885. However, satisfaction of the common

law requirements “is not enough.” Jd. The claimant must

demonstrate that Congress “intended, or at least expected, that

grantees of its land would enjoy a right of access by way of

necessity.” Jd. Finding that the prerequisites were met, and that

4. An 1864 Act of Congress had granted the land to Burlington Northern's

predecessor, N_.thern Pacific Railroad Company. The Act was essentially

identical to the one involved in Leo Sheep.

20a

Appendix C

Congress intended that the grantees enjoy a right of access when

they passed the Northern Pacific land grants, the court held that

Burlington Northern held an easement by necessity. The

appellate court did not address this issue.

There is no reported appellate case law on this subject. At

least one other district court has agreed with Montana

Wilderness. See Burdess v. United States, 553 F.Supp. 646, 648

(E.D. Ark. 1982). Plainly, there is a sound rationale for

concluding that the common law doctrine of easement by

necessity does not apply to land owned by the United States. But

for purposes of ruling on these motions, I will assume, without

deciding, that in the appropriate circumstances an easement by

necessity may be asseited against the United States pursuant to

the Quiet Title Act.

(2) The Governing Law. The plaintiffs, conceding that

they do not met the federal common law requirements for an

easement of necessity, have brought their claim pursuant to

Section 704.01(2), Florida Statutes (1991). The most significant

difference between federal law and Florida law is that Florida

does not require unity of title. The government contends that,

assuming an easement by necessity may be asserted against the

United States, it is federal law, and not state law, that governs.

Waivers of sovereign immunity are to be strictly construed.

See e.g., Block v. North Dakota, 461 U.S. 273, 287, 103 S.Ct.

1811, 1820, 75 L.Ed.2d 840, 853 (1983). The United States may

only be sued to the extent, and in the manner, Congress evinced

an intention to allow the government to be sued. There is strong

evidence in the legislative history of the Quiet Title Act that

Congress intended federal law to govern, at least with respect to

the standing of the plaintiff:

2la

Appendix C

One approach to waiving sovereign

immunity in this area would have been to

adopt state law in its entirety, thereby placing

the United States on the same footing as any

private litigant. However, the wide

differences in State statutory and decisional

law on this subject make this an impractical

alternative. . . . Itis our belief that uniformity

at least as to the plaintiff’s qualifications for

instituting suit is desirable.

H. R. Rep. No. 92-1559, 92d Cong., 2d Sess., reprinted in 1972

U.S.C.C.A.N. 4555.

The plaintiffs maintain that a state retains jurisdiction over

federal lands within its territory. That is true in a general sense. In

the absence of a contravening federal statute or policy, suits by

the United States to protect its proprietary interests in land are

governed by the law of the state in which the property is situated.

United States v. Sullivan, 1 F.3d 1191, 1195 (11th Cir. 1993).

However, this case involves not a suit by the government, but a

suit against the government. The rights of a party suing the United

States are determined by Congress when it consented to be sued.

As noted above, it appears that the intention of Congress in

enacting the Quiet Title Act was for federal law to govern so as to

achieve uniformity in ascertaining plaintiffs able to bring suit

under the Act.

Every case I have discovered in which a private litigant was

allowed to assert an easement of necessity against the United

States has applied federal common law. The plaintiffs have not

cited, nor have I found, any reported case which even considered

the possibility that a private individual could assert an easement

22a

Appendix C

of necessity against the United States pursuant to a state statute.

Accordingly, I find that the federal common law of easements by

necessity governs this dispute.

There are three prerequisites to the creation of acommon law

easement by necessity. First, the titles to the two tracts in question

must have been held by one person. Second, the unity of title must

have been severed by aconveyance of one of the tracts. Third, the

easement must be necessary in order for the owner of the

dominant tenement to use his land. This necessity must exist both

at the time of the severance of title and at the time of exercise of

the easement. See e.g., Montana Wilderness, supra, 496 F.Supp.

at 885. It is undisputed in the record that there was never unity of

title in this case. The plaintiffs concede they do not meet the

federal requirements, and have based their claim solely on the

Florida statute. Accordingly, I find that the plaintiffs are not

entitled to an easement of necessity under the governing law .°

(3) The Intent of Congress. I also consider briefly the

intent of Congress in passing the Quiet Title Act. As discussed

above, waivers of sovereign immunity are strictly construed, and

should be interpreted only to allow the United States to be sued in

the manner Congress intended. Unlike the property in Montana

Wilderness, for example, which was a national forest and in the

public domain, the property in which the plaintiffs seek to obtain

5. Evenif! were to adopt the reasoning of Montana Wilderness in toto, and if

I applied the Florida statute, the plaintiffs still would not be entitled to an easement

of necessity. Montana Wilderness required that claimants demonstrate that they

meet the legal requirements for an easement, and that Congress expected that the

grantees would have aright of access. There is absolutely no evidence that Congress

expected the fee owners of the plaintiffs’ property to have aright of access across the

sjoining mili :

23a

Appendix C

an easement is part of a military reservation, closed to the general

public, and to which access is strictly regulated.

Congress has vested the authority to grant right-of-ways

over military reservations to the Secretary of the military

department which controls the land. 10 U.S.C. §2668. I have

discovered no statute or case extending that authority to any other

person. The federal government has “unfettered control” in

managing a military reservation. Cafeteria & Restaurant

Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743,

1749, 6 L.Ed.2d 1230 1237 (1961). The plaintiffs have cited no

authority for their contention that when it passed the Quiet Title

Act, it intended to allow states to enact laws granting absolute

access to federal military bases for any reason (or no reason) as it

saw fit, and to have those statutes enforced by a quiet title action

against the United States. To the extent the Florida statute

violates federal law and grants civilians unfettered access across

military reservations, it appears likely to be nullified by the

Supremacy Clause of the United States Constitution.

III. CONCLUSION

For the foregoing reasons, the plaintiffs’ motion for

summary judgment is DENIED, and the defendant’s motion for

summary judgment is GRANTED. The Clerk shall enter

judgment for the defendant, together with taxable costs.

DONE AND ORDERED this 16 day of December, 1994.

8/ Roger Vinson

ROGER VINSON

United States District Judge

24a

APPENDIX D — JUDGMENT AND ORDER OF THE

UNITED STATES DISTRICT COURT, NORTHERN

DISTRICT OF FLORIDA, PENSACOLA DIVISION

FILED AUGUST 12, 1992

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

CASE NO. 91-30072-RV

THOMAS F. WERNER, RUTH E. WERNER, DAVID

LITWACK, YVETTE A. LITWACK, WILLIAM WARGE,

LYNN WARGO,

Plaintiffs,

vs.

UNITED STATES OF AMERICA,

Defendants.

JUDGMENT

Pursuant to and at the direction of the Courts judgment is

entered for the defendant, UNITED STATES OF AMERICA,

together with taxable costs.

MARVIN S. WAITS, CLERK

By: s/ Joanne Ahr

Deputy Clerk

25a

Appendix D

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

Case No. 91-30072-RV

THOMAS F. WERNER, RUTH E. WERNER, DAVID

LITWACK, YVETTE A. LITWACK, WILLIAM WARGO,

LYNN WARGO,

Plaintiffs,

UNITED STATES OF AMERICA,

Defendant.

ORDER

Pending is defendant United States of America’s motion for

summary judgment (doc. 6). For the reasons stated below, that

motion is GRANTED.

I. FACTS

A. The Property

The plaintiffs own a three-lot subdivision known as “White

Point Manor.” Altogether, the three lots comprise about 1.3 acres

surrounded on three sides by water and on the fourth side by Eglin

Air Force Base (“Eglin AFB”). Plaintiffs have brought this action

pursuant to Title 28, United States Code, Section 2409a,

26a

Appendix D

commonly known as the Quiet Title Act, in an attempt to acquire a

statutory easement of necessity across a portion of Eglin Air

Force Base. Except where noted, the following facts are not in

dispute.

Plaintiffs’ property is a small triangular parcel of land

located on the Choctawhatchee Bay in Okaloosa County, Florida.

The property is bordered on the north by a body of water called

“Lake Pippin,” on the south by Choctawhatchee Bay, on the east

by the Lake Pippin entrance canal, and on the west by Eglin AFB.

It is physically impossible to enter plaintiffs’ property by land

without crossing over Eglin AFB. Therefore, it has no access by

land for ingress and egress, nor for electricity and other utilities.

Plaintiffs’ property is, of course, accessible by water.

The portion of Eglin AFB across which the plaintiffs seek an

easement is known as White Point. White Point Road, the public

roadway nearest plaintiffs’ property, runs in a generally north-

south direction within Eglin AFB, and ends at White Point on the

Choctawhatchee Bay. It is about one and one-half miles from the

western border of plaintiffs’ property to White Point Road. The

portion of Eglin AFB lying between White Point Road and

plaintiffs’ western border comprises the Maxwell Gunter

Recreation Area.

Prior to its designation as a recreation area in 1956, the site

was the location of Eglin AFB housing, and contained an access

road linking the housing complex to White Point Road. Shortly

after the Air Force removed the housing, it extended this road

approximately three tenths of a mile in order to better serve the

recreation area and a nearby Navy observation site. The access

road (Range Road 445) now terminates at the western border of

plaintiffs’ property.

27a

Appendix D

Since approximately 1980, travel over the access road from

White Point Road to the recreation area has been controlled by an

electronic gate. Originally, defendant issued visitors a gate card

that activated the gate. However, under current practice, the gate

remains open from 7:00 a.m. until 10:00 p.m. During this time,

access to the recreation area, and, hence, to plaintiffs’ property, is

open to those individuals authorized to use the recreation area. As

civilian employees of Eglin AFB, plaintiffs’ are so authorized.

Plaintiffs suggest that land access to their property originally

was available across a land bridge of privately owned land to the

east of their lots which the Air Force dredged in order to create the

Lake Pippin entrance canal. However, plaintiffs have submitted

absolutely no evidence that would support this assertion. The

evidence, in fact, overwhelmingly indicates the contrary.

It is true that between 1959 and 1978, the United States

regularly dredged the entrance channel into Lake Pippin. In

addition, in 1969 and 1970, it erected a metal seawall in the pass,

and, at the same time, constructed a dock and a concrete boat

ramp on the Lake Pippin side of the recreation area. However, the

undisputed evidence in the record shows that an inlet always has

existed between Choctawhatchee Bay and Lake Pippin. '

The record contains several aerial photographs of the subject

property dating from as early as April 14, 1955. Each photograph

clearly and unmistakably shows an inlet from Chocotawhatchee

Bay to Lake Pippin. In addition, a survey map completed in 1851,

1. Prior to the commencement of regular dredging and the installation of the

seawall, the channel depth would vary depending on the season and the tide, but the

pass has never been accessible to vehicular traffic. It hes always been below the

mean high water level, which is the test.

28a

Appendix D

which shows Lake Pippin as “Trout Bayou”, clearly indicates the

existence of an entrance pass between the Choctawhatchee Bay

and Trout Bayou.’ Finally, defendant has submitted the affidavits

of two long time local residents, both of whom were also civilian

employees at Eglin AFB. The recollection of both affiants dates

back to the 1930s. Both state that, having lived and worked in the

area for many years, they are familiar with Lake Pippin and the

surrounding area, and that during their lifetimes, Lake Pippin has

been a tidal basin and there always has been an inlet from the Bay

to Lake Pippin.’

B. The Chain of Title

Plaintiffs trace title to their parcel from a warranty deed

dated May 22, 1992, transferring their parcel, along with a large

tract of property, from McCaskill Investment Company to

Valparaiso Realty Company.‘ Only private owners appear in

plaintiffs’ chain of title. In addition, there is no record of an

2. Therecord alsocontains acopy of another survey completed in 1937. This

map does not show a channel linking Lake Pippin and the Bay. However, standing

ales, Rlocingiagtieneteriienneteinnatenetinn gemiane manner manne neeS

to the existence of the inlet. =e

3. Even if plaintiffs’ assertion is true, and there was at one time a land bridge

linking their property to that of their eastern neighbors, it is undisputed that the Lake

Pippin entrance canal has not been accessible to vehicular traffic since at least the

commencement of regular dredging in 1959. This is well before the statute of

limitations cut-off date of March 15, 1979.

4. The property is located in Okaloosa County. However, until Okaloosa

County was formed n 1916, it was a part of Walton County. Since the Walton

County Courthouse burned in the 1880s, most of the real estate deed records

predating the fire are unavailable.

29a

Appendix D

access easement across government property and appurtenant to

plaintiffs’ property. Nor have plaintiffs submitted any evidence

that would suggest that such an easement ever existed. However,

there is an utility easement (10’ wide) from the State of Fiorida to

the plaintiffs for a private water line across the submerged bottom

of Lake Pippin.

Before purchasing the property in 1987, the Werners

approached the defendant and asked if it would be willing to

provide access across White Point to plaintiffs’ property. In both

April and June of 1987, the defendant informed the Werners that

it would not grant access. Nevertheless, with knowledge that the

parcel had no land access, the Werners purchased the property

from Europco Management Company of America on July 28,

1987. The Werners then subdivided the property into three lots.

They transferred one lot to plaintiffs David and Yvette A.

Litwack, and one lot to plaintiffs William and Lynn Wargo. In

September 1987, the Werners and the Litwacks filed a

subdivision plat to “White Point Manor,” which indicates that

there was an existing easement (20’ wide) from the plaintiffs’

subdivision across Eglin AFB to White Point Road. In actuality, it

merely reflects the presence of the access road serving the

Maxwell Gunter Recreation Area.

The United States government has owned the property in

question since 1821, when it acquired it, along with what is now

Florida, Southern Alabama, and portions of Southern Mississippi

by treaty from Spain.’ In more recent times, the subject property

5. The Treaty of Cession of the Floridas by Spain to the United States, ratified

February 19, 1821, contains the following:

Article II. His Catholic Majesty cedes to the United

(Cont'd)

30a

Appendix D

was part of the Choctawhatchee National Forest, under the care

and control of the Forest Service, Department of Agriculture. In

1940, pursuant to an act of Congress, the Department of

Agriculture transferred the property in question to the War

Department. Act of June 27, 1940, ch. 437, Pub. L. No. 40-668,

54 Stat. 628. Designated in the Act as “Tract B. Eglin Air Force

Base,” the entire tract consisted of 133,848.07 acres of land. It has

been a part of Eglin AFB since 1940.

C. The Parties’ Present Positions

In June 1988, in response to a request for reconsideration, the

defendant offered the Werners a five year “easement in gross.”

The Werners declined this offer, and on February 2, 1990, the

Werners and the Litwacks filed their first complaint in this court,

seeking to quiet title to an easement of necessity across White

Point. After filing the complaint, the plaintiffs and defendant

entered into settlement negotiations. On April 6, 1990, the court

granted the plaintiffs’ motion for voluntary dismissal, without

prejudice. In December 1990, the defendant offered a 25 year

(Cont'd)

States, in full property and sovereignty, all the

territories which belong to him, situated to the

eastward of the Mississippi known by the name of East

and West Florida. The adjacent islands dependent on

said provinces, all public lots and squares, vacant land

public edifices, fortifications, barracks, and other

buildings, which are not private property, archives and

documents, which relate directly to the property and

sovereignty of said provinces, are included in this

article. The said archives and documents shall be left in

possession of the commissaries or officers of the

United States, duly authorized to receive them.

3la

Appendix D

casement appurtenant to the plaintiffs’ property limited to a

single family residence. Upon rejecting this offer, the plaintiffs

filed the presently pending complaint.

Plaintiffs argue that Florida’s statutory easement of

necessity, Section 704.01(2), Florida Statutes (1991), provides

them with a substantive right to a way of necessity across

defendant’s property, and that, in turn, the Quiet Title Act [28

U.S.C. § 2409a] waives sovereign immunity to their claims to

quiet title to this easement.* In response, defendant raises a

number of issues, including the argument that plaintiffs’ claims

6. Section 704.01(2) as amended, effective May 29, 1991, provides:

“Statutory way of necessity exclusive of common-law right. — Based on public

policy, convenience, and necessity, a statutory way of necessity exclusive of any

common-law right exists when any land or portion thereof outside any municipality

which is being used or desired to be used for a dwelling or dwellings or for

agricultural or for timber raising or cutting or stockraising purposes shall be shut off

or hemmed in by lands, fencing , or other improvements of other persons so that no

practicable route of egress or ingress shall be available therefrom to the nearest

practicable public or private road. The owner or tenant thereof, or anyone in their

behalf, lawfully may use and maintain an easement-for persons, vehicles. . . and

any utility service . . . over, under, through, and upon the lands which lie between

the said shut-off or hemmed-in lands and such public or private road by means of the

nearest practical route, considering the use to which the lands are being put. . . .”

Section 704.04 gives an affected party the right to file suit in Circuit Court to

determine whether the statutory way of necessity exists and the amount of

compensation to which the owner of the land is entitled, if an easement is found to

exist.

Under Florida law, the fact that plaintiffs’ property is accessible by water does

not affect their right to a statutory way of necessity across defendant's property

under Section 704.01(2). Lykes Bros., Inc. v. Clements, 501 So.2d 1302, 1304 (Fla.

2d DCA 1986); Redman v. Kidwell, 180 So.2d 682, 683-84 (Fla. 24d DCA 1965).

32a

Appendix D

are barred by the 12-year statute of limitations set out in Section

2409a(g). Because it is clear that plaintiffs’ (or their predecessors

in interest) claims accrued more than twelve years ago, I need not

reach defendant’s other arguments.

II. ANALYSIS

A. Summary Judgment Standard

A motion for summary judgment should be granted when

“the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that

there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c) See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.

2548, 2552, 91 L. Ed. 2d 265, 273 (1986); Everett v. Napper, 833

F.2d 1507, 1510 (11th Cir. 1987). An issue of fact is “material” if

it might affect the outcome of the case under the governing law.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.

2505, 2510, 91 L. Ed. 2d 202, 211 (1986). It is “genuine” if the

record taken as a whole could lead a rational trier of fact to find

for the non-moving party. Jd. See also Matsushita Electric Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348,

1356, 89 L. Ed. 2d 538, 552 (1986).

“The moving party is entitled to judgment as a matter of law

if the nonmoving party cannot sufficiently show an essential

element of the case to which the nonmoving party has the burden

of proof.” Cornelius v. Town of Highland Lake, 880 F.2d 348, 351

(lath Cir. 1989), cert. denied, 494 U.S. 1066, 110S. Ct. 1784, 108

L. Ed. 2d 785 (1990). However, summary judgment is improper

“{i}f a reasonable fact finder could draw more than one inference

from the facts, and that inference creates a genuine issue of

material fact.” Jd.

33a

Appendix D

On summary judgment motion, the record and all inferences

that can be drawn from it, must be viewed in the light most

favorable to the non-moving party. United States v. Diebold Inc.,

369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176, 177 (1962).

Furthermore, the court must consider the entire record in the case,

not just those pieces of evidence which have been singled out for

attention by the parties. See Clinkscales v. Chevron USA Inc., 831

F.2d 1565, 1570 (11th Cir. 1987).

B. Statute of Limitations

Defendant argues that plaintiffs’ claims are barred by the

Quiet Title Act’s twelve year statute of limitations. I agree.

“It is elementary that ‘[t}he United States, as sovereign, is

immune from suit save as it consents to be sued... .’ ” United

States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 1351, 63 L.

Ed. 2d 607, 613 (1980) (citation omitted). The Quiet Title Act

provides a specific waiver of immunity to actions to quiet title to

real property. In relevant part, the Act provides:

(a) The United States may be named as a

party defendant in a civil action under this

section to adjudicate a disputed title to real

property in which the United States claims an

interest, other than a security interest or water

rights. ...

28 U.S.C. § 2409a(a).

However, this waiver of immunity is specifically limited by a

twelve year statute of limitation which provides:

34a

Appendix D

(g) Any civil action under this section,

except for an action brought by a State, shall

be barred unless it is commenced within

twelve years of the date upon which it

accrued. Such action shail be deemed to have

accrued on the date the plaintiff or his

predecessor in interest knew or should have

known of the claim of the United States.

28 U.S.C. § 2409a(g) (emphasis added).

Courts must strictly construe such limitations on waivers of

sovereign immunity. Block v. North Dakota, 461 U.S. 273, 287,

103 S. Ct. 1811, 1820, 75 L. Ed. 2d 840, 853 (1983); Hart v.

United States, 585 F.2d 1280, 1284 (Sth Cir. 1978). Therefore, to

the extent that Florida law gives the plaintiffs a statutory remedy

under Section 704.01(2), Florida Statutes, that remedy can be

invoked against the sovereign (i.e., the United States) only to the

extent allowed by federal law as expressed in Section 2409a.

Plaintiffs filed the instant complaint on March 15, 1991.

Therefore, their claims are barred if they accrued prior to March

15, 1979.’ Assuming for the sake of this analysis that the Quiet

Title Act does waive sovereign immunity to claims for quieting

title to easements of necessity, it is clear that plaintiffc and their

predecessors in interest either knew or should have known of the

7. Even if! were to figure the limitations period from February 2, 1990, the

date plaintiffs filed their first complaint, the conclusion still would be inescapable

that plaintiffs claim is barred by the tweive year statute of limitations. As discussed

below, itis clear that plaintiffs had constructive notice of the defendant’ s interest in

White Point prior to February 2, 1978.

35a

Appendix D

defendant’s ownership of the subject property and the lack of land

access to plaintiffs’ property prior to that date.*

For purposes of determining when the plaintiffs’ claim

accrued, the statutory term “knew or should have known” imparts

a test of reasonableness. Shultz v. Department of the Army, 886

f.2d 1157, 1160 (D.C. Cir. 1989); Vincent Murphy Chevrolet Co.,

Inc. v. United States, 766 F.2d 449, 452 (both Cir. 1985); Knapp,

supra, 636 F.2d at 283; Amoco Production Co. v. United States,

619 F.2d 1383, 1388 (10th Cir. 1980). Knowledge of the full

contours of the government’s interest or ownership is not

required. Knapp v. United States, 636 F.2d 279, 283 (10th Cir.

1980). All that is necessary is a reasonable awareness that the

government claims some interest or ownership in the subject

property. Id.

Unquestionably, the government’s ownership of Eglin AFB

was fully known to all interested parties. It has been a part of

Eglin AFB since 1940, and was government owned ever since the

land was part of the United States. Even without actual

knowledge of the defendant's interest prior to March 15, 1979,

8. Defendant argues strenuously that a statutory easement of necessity

cannot be the subject of a quiet title action against it. There is merit in that position,

for the statutory easement of necessity is a form of state condemnation which,

absent specific federal authorization, is of questionable validity against the United

States. While I need not resolve this issue to reach a decision in this case, I note that

the legislative history of the Quiet Title Act, as well as the case law interpreting it,

support the conclusion that Section 2409a waives sovereign immunity to claims to

quiet title to easements in general. H. R. rep No. 921559, 92d cong. 2d Sess.,

reprinted in 1972 U.S. Code Cong. & Admin. News 4552. See also Kinscherff v.

United States, 586 F.2d 159, 161 (10th Cir. 1978). Montana Wilderness Ass'n v.

United States, 496 F. Supp. 880, 884-86 (D. Mont. 1980), aff'd in part, remandedon

other grounds, 665 F.2d 951 (9th Cir. 1981).

36a

Appendix D

constructive notice of the government’s interest will suffice to

trigger the “accrual of aclaim” for purposes of Section 2409a(g).

D.C. Transit System. Inc. v. United States, 717 F.2d 1438, 1441

(D.C. Cir. 1983); Amoco, supra, 619 F.2d at 1388. In particular,

federal courts properly may look to state law as an aid in

determining when a party should have known a relevant fact.

Amoco Production Co., supra, 619 F.2d at 1387-88. Thus, a party

“should have known” of a claim of the United States at the time

local recording statutes clearly impute constructive knowledge of

the claim. Jd.; D.C. Transit System, supra, 717 F.2d at 1441. The

same basis of knowledge applies to the plaintiffs’ property.

Under Florida’s recording statute [§ 695.01, Fla. Stat.,]:

the recordation of an _ instrument is

constructive notice to creditors and

subsequent purchasers not only of its own

existence and contents, but also of such other

facts concerned with the instrument as would

have been ascertained from the record if it had

been examined and [of such facts as] inquiries

suggested by it, duly prosecuted, would have

disclosed, and if, in investigation of a title a

purchaser, with common prudence, must have

been apprised of another right, notice of that

right is presumed as a matter of implied

actual notice.

Zaucha v. Town of Medley, 66 So.2d 238, 240 (Fla. 1953)

(emphasis added).

In this case, the fact that plaintiffs’ property is accessible by

land only across Eglin AFB from the west is apparent on the face

37a

Appendix D

of their deeds and the referenced Sections. Equally apparent is the

absence of any type of access easement in their chains of title.

Clearly these facts not only put plaintiffs and their predecessors

in interest on notice that there was no access to their property

across Eglin AFB, but also suggested the need for further inquiry.

Had plaintiffs or their predecessors heeded this suggestion, a

simple investigation would have revealed that the government

has owned all the adjoining land on the west since 1821. Under

Florida law, plaintiffs and their predecessors ir interest are

charged with the knowledge of this interest.°

However, constructive notice under the applicable state

recording statute is but one condition that will satisfy the

requirements of Section 2409a(g). Because the statute sets out a

test of reasonableness, its reach is broader than that of local

recording statutes. D.C. Transit System, supra, 717 F.2d at 1441.

Therefore, “where should have reasonably discovered an

adverse property interest asserted by the United States, he will be

charged with constructive notice of the government claim even

though a local statute does not impute such knowledge to him.”

Id.

In this case, the defendant has continuously and openly

occupied Eglin AFB since at least 1940. Since that time,

defendant has constructed a military housing complex and the

access road now at issue. By 1956, the defendant had removed the

housing complex and converted White Point into a recreation

area. Subsequently, the defendant extended its access road, and

9. At the federal level, both the Treaty of Cession and the Act of June 27,

1940, transferring the Eglin tract to the War Department were matters of public

record and, hencs, provided constructive notice of defendant’ s interest long before

March 15, 1979. Great Northern Ry. v. Steinke, 261 U.S. 119, 132 (1923). See also

Yakus v. United States, 321 U.S. 414,435 (1944).

38a

Appendix D

built an observation site, a bath house, a boat ramp, and a dock on

the property. From 1959 to 1978, it regularly dredged the Lake

Pippin entrance canal, and in 1969 and 1970, defendant built a

seawall adjacent to the entrance canal. There can be no question

that this evidence of continuous occupation and varied use would

have put any reasonable person on notice of defendant's interest

in the White Point area of Eglin AFB prior to March 15, 1979.”

It follows that the plaintiffs (and their predecessors in title)

have also known for at least that long that the only land access to

their parcel is across the defendant’s land. Thus, regardless of

whether the standard of “knew or should have known” applies to

plaintiffs’ own knowledge of the need for a way of necessity or to

the plaintiffs’ knowledge of the government’s ownership of the

property across which it would have to go, plaintiffs’ action is

barred by the Quiet Title Act’s twelve year statute of limitations.

Accordingly, defendant’s motion is GRANTED, and judgment

shall be entered for the defendant, together with taxable costs.

DONE AND ORDERED this 12th day of August, 1992.

s/ Roger Vinson

ROGER VINSON

United States District Judge

10. itis true that defendants did not place a gate across the access road until

1980. However, this fact, by itself, is not dispositive of the issue of constructive

notice. Rather, it is but one event that the court may consider in making its

4 " . ti =

39a

APPENDIX E — RELEVANT STATUTES

28 U.S.C. §2409a.

28 U.S.C. § 2409a. Real property quiet title actions

{a) The United States may be named as a party defendant in

a civil action under this section to adjudicate a disputed title to

real property in which the United States claims an interest, other

than a security interest or water rights. This section does not

apply to trust or restricted Indian lands, nor does it apply to or

affect actions which may be or could have been brought under

sections 1346, 1347, 1491, or 2410 of this title, sections 7424,

7425, or 7426 of the Internal Revenue Code of 1986, as amended

(26 U.S.C. 7424, 7425, and 7426), or section 208 of the Act of

July 10, 1952 (43 U.S.C. 666).

(b) The United States shall not be disturbed in possession or

control of any real property involved in any action under this

section pending a final judgment or decree, the conclusion of any

appeal therefrom, and sixty days; and if the final determination

shall. be adverse to the United States, the United States

nevertheless may retain such possession or control of the real

property or of any part thereof as it may elect upon payment to the

person determined to be entitled thereto of an amount which upon

such election the district court in the same action shall determine

to be just compensation for such possession or control.

brought under this section.

(d) The complaint shall set forth with particularity the

nature of the right, title, or interest which the plaintiff claims in

the real property, the circumstances under which it was acquired,

and the right, title, or interest claimed by the United States.

40a

Appendix E

(e) If the United States disclaims all interest in the real

property or interest therein adverse to the plaintiff at any time

prior to the actual commencement of the trial, which disclaimer is

confirmed by order of the court, the jurisdiction of the district

court shall cease unless it has jurisdiction of the civil action or

suit on ground other than and independent of the authority

conferred by section 1346(f) of this title.

(f) Acivil action against the United States under this section

shall be tried by the court without a jury.

(g) Any civil action under this section, except for an action

brought by a State, shall be barred unless it is commenced within

twelve years of the date upon which it accrued. Such action shall

be deemed to have accrued on the date the plaintiff or his

predecessor in interest knew or should have known of the claim of

the United States.

(h) Nocivil action may be maintained under this section by

a State with respect to defense facilities (including land) of the

United States so long as the lands at issue are being used or

required by the United States for national defense purposes as

determined by the head of the Federal agency with jurisdiction

over the lands involved, if it is determined that the State action

was brought more than twelve years after the State knew or

should have known of the claims of the United States. Upon

cessation of such use or requirement, the State may dispute title to

such lands pursuant to the provisions of this section. The decision

of the head of the Federal agency is not subject to judicial review.

(i) Any civil action brought by a State under this section

with respect to lands, other than tide or submerged lands, on

which the United States or its lessee or right-of-way or easement

4la

Appendix E

grantee has made substantial improvements or substantial

investments or on which the United States has conducted

substantial activities pursuant to a management plan such as

range improvement, timber harvest, tree planting, mineral

activities, farming, wildlife habitat improvement, or other similar

activities, shall be barred unless the action is commenced within

twelve years after the date the State received notice of the Federal

Claims to the lands.

(j) If a final determination in an action brought by a State

under this section involving submerged or tide lands on which the

United States or its lessee or right-of-way or easement grantee

has made substantial improvements or substantial investments is

adverse to the United States and it is determined that the State’s

action was brought more than twelve years after the State

received notice of the Federal claim to the lands, the State shall

take title to the lands subject to any existing lease, easement, or

right-of-way. Any compensation due with respect to such lease,

casement, or right-of-way shall be determined under existing

law.

(k) Notice for the purposes of the accrual of an action

brought by a State under this section shall be —

(1) by public communications with respect to the

claimed lands which are sufficiently specific as to be

reasonably calculated to put the claimant on notice of the

Federal claim to the lands, or

(2) by the use, occupancy, or improvement of the

claimed lands which, in the circumstances, is open and

notorious.

42a

Appendix E

(1) For purposes of this section, the term “tide or submerged

lands” means “lands beneath navigable waters” as defined in

section 2 of the Submerged Lands Act (43 U.S.C. 1301).

(m) Not less than one hundred and eighty days before

bringing any action under this section, a State shall notify the

head of the Federal agency with jurisdiction over the lands in

question of the State’s intention to file suit, the basis therefor, and

a description of the lands included in the suit.

(nm) Nothing in this section shall be construed to permit suits

against the United States based upon adverse possession.

43a

Appendix E

28 U.S.C. § 1346

(f) The district courts shall have exclusive original

jurisdiction of civil actions under section 2409a to quiet title to an

estate or interest in real property in which an interest is claimed

by the United States.

Appendix E

Florida Statue 704.01

704.01 Common-law and statutory easements defined and

determined. —

(1) IMPLIED GRANT OF WAY OF NECESSITY. — The

common-law rule of in implied grant of a way of necessity is

hereby recognized, specifically adopted, and clarified. Such an

implied grant exists where a person has heretofore granted or

hereafter grants lands to which there is no accessible right-of-

way except over his land, or has heretofore retained or hereafter

retains land which is inaccessible except over the land which he

conveys. In such instances a right-of-way is presumed to have

been granted or reserved. Such an implied grant or easement in

lands or estates exists where there is no other reasonable and

practicable way of egress, or ingress and same is reasonably

necessary for the beneficial use or enjoyment of the part granted

or reserved. An implied grant arises only where a unity of title

exists from a common source other than the original grant from

the state or United States; provided, however, that where there is a

common source of title subsequent to the original grant from the

state or United States, the right of the dominant tenement shall

not be terminated if title of either the dominant or servient

tenement has been or should be transferred for nonpayment of

taxes either by foreclosure, reversion, or otherwise.

(2) STATUTORY WAY OF NECESSITY EXCLUSIVE OF

COMMON-LAW RIGHT. — Based on public policy,

convenience, and necessity, a statutory way of necessity

exclusive of any common-law right exists when any land or

portion thereof outside any municipality which is being used or

desired to be used for a dwelling or dwellings or for agricultural

or for timber raising or cutting or stockraising purposes shall be

45a

Appendix E

shut off or hemmed in by lands, fencing, or other improvements

of other persons so that no practicable route of egress or ingress

shall be available therefrom to the nearest practicable public or

private road. The owner or tenant thereof, or anyone in their

behalf, lawfully may use and maintain an easement for persons,

vehicles, stock, franchised cable television service, and any

utility service, including , but not limited to, water, wastewater,

reclaimed water, natural gas, electricity, and telephone service,

over, under, through, and upon the lands which lie between the

said shut-off or hemmed-in lands and such public or private road

by means of the nearest practical route, considering the use to

which said lands are being put; and the use thereof, as aforesaid,

shall not constitute a trespass; nor shall the party thus using the

same be liable in damages for the use thereof; provided that such

easement shall be used only in an orderly and proper manner.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.