# Petition for Writ of Certiorari — Werner v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1119

## Text

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.

ii

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
Cie, BGA) i. s enc csscsecnsceeh eee eeeeeees

Page

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13

2,8

ii

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
ED <ccccenbteeneestoseceveces Y ® ee
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i <n cee n66héseeeseccdsnesesses 1,2
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tid dic nce big dersecceccceoccess 6
Rule Cited:
Supreme Court Rule 10(a) ...........22c eee ee eeeee l

APPENDIX

Appendix A — Opinion of the United States Court of

-_soseeiand ufos erential

iv

Contents

Appendix B — Opinion of the United States Court of
Appeals for the Eleventh Circuit Dated December 28,
SUD 0000 nsd bse cnnesesheudksseeneenusdanones

Appendix C — Order of the United States District Court,
Northern District of Florida, Pensacola Division Dated
ES Oe SE on cctce bawdcnsesbsvesss es

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

3a

l4a

l

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

|
a

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

3

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

4

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,

5

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.

6

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

7

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

8

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

9

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.

10

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),

1]

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

12

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

13

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

2a

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.

3a
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,
v.
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

4a

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)

Sa
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.

6a
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

7a
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).

8a
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.

9a
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

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POPPE ARE RIK MERLE IE DN.

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a
~ 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

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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,
v.
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,

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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.

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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.

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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.

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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)

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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.

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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).

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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.

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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:

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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.

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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).

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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

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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).

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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.

(c) No preliminary injunction shall issue in any action
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.

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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
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.

da

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

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1468%3A1. Public record. Not legal advice.