*1 Minn., Paul, Essling, William St. W. Hanson, BYDLON, Minn., Andrew Jo- Paul, John D. Marlone, Thomas St. seph Perko, Skala, Jr., and Martin Minn., Domich, Ely, Willard S. briefs, Zupancich William plaintiffs. v. Washington, McKevitt, Thomas L. UNITED STATES. Morton, Perry C., W. D. with whom was Atty. Gen., for Asst. defendant. Ahola, AHOLA, TAITO Leithold Toimi Seaplane Service, Inc., Lynn, Arne PER CURIAM. Pete, Elwyn Jacob West plaintiffs This is an action v. taking result as a of their UNITED STATES. proclamation Order of Executive of the 421-55, Nos. 480-55. 10092, dated December No. United States Court of Claims. prohibited travel banned and July 15,1959. 4,000 feet over the air below Superior National areas northern Minnesota. court, This ease was referred U.S.C.A., 45(a),
pursuant to Rule Murray Bern- Trial Commissioner C. findings hardt, with directions to make for conclu- of fact and recommendations has done in sions of law which he report September filed having court, The considered the evi- argument dence, the briefs and coun- findings sel, adopts opinion of the slight modifi- Trial Commissioner with cations. Skala, plaintiffs, just compensation to recover
are entitled respective amounts $30,000, with interest thereon at four January 1, 1952, per percent annum part just payment as to date of com- judgment pensation, will be entered petition as to the to that effect. plaintiff in case No. 421-55 other dismissed, will be petition case No. also be dismissed. 480-55 will ordered. It is so dissenting WHITAKER, Judge, concurring part, part in which Judge ALBERT Y. BRYAN District designation) joins: (sitting per opinion curiam the ma- opinion adopts jority the Trial with certain modifications. Commissioner right opinion determines That compensation who owned upon the area whether within resorts way necessity through they had a *2 892 right access, Superior other National such of or of space the the air over properties. use and easement connected with the in to reach order enjoyment plain- property, other of his that The concluded Commissioner legitimate such than Zupancich have the exercice of
tiffs
and Skala did
public regulation,
deprived of
necessity,
way
he is
but
a
”
Judgment
property.’
was
his
not.
did
Pete and Hanson
$25,-
Zupancich for
in
rendered
favor
question
elaborately
This
is
discussed
$30,000.
000,
for
of Skala
favor
(Story
in the New York Elevated cases
were
petitions
Hanson
of Pete and
The
Co.,
N.Y.
York
90
v. New
Elevated R.
dismissed.
approval
122), which
referred with
is
to
Supreme
United
the
Court of the
judgments
I think the amount
the
City
York,
206
v.
of New
States
Sauer
and Skala
rendered
favor of
536, 545,
686, 51 L.Ed.
U.S.
27 S.Ct.
correct,
to dis-
it
error
are
but that was
right
In
the
case this
Sauer
petition
Hanson.
the
to Pete and
miss
as
public
property
access
one’s
over
I do not
I think this
error because
highways
fully recognized,
is
rights depend
on whether
think their
there
an
distinction is
drawn between
they
way
necessity. I
think
not
had a
impairment
right of access
in the
right
all of
resort owners had
brought
by improvements in the
about
air,
properties by
because
to their
access
highway
travel,
public
purpose
for
right
highway.
public
is a
This
the air
imposition
use
an additional
right,
property
is a
of access
air
highway
upon the
not for the
which was
away from
cannot
taken
them
be
travel,
purpose
public
but for some
just compensa-
payment of
without the
purpose.
sovereign
other
The
is
li-
pur-
tion, when
taken for the sole
it is
impairments
for
able
which arise
preserving
pose of
a wilder-
area as
improvements
travel, but
its
to facilitate
area,
admittedly
ness
as it
was.
damage
it
is
which results
liable
right
property
The
of access
one’s
imposition
from the
of an additional use.
highways
public
over established
naviga-
principle applies
same
right appurtenant
prop-
property
to the
property
ble waters. An owner
whose
erty abutting
highway.
on the
navigable
riparian to a
general
stream
rights
public
right
navigable
to the
rights
access
stream
highways and the
of owners of
(Yates Milwaukee,
497, 504,
v.
10 Wall.
abutting
property
thereon are extensive-
984;
505, 19 L.Ed.
United States v.
ly
opinion by
discussed
an
Mr. Justice
Rouge
Co.,
Imp.
River
269 U.S.
Harlan, speaking
court,
for a unanimous
419,
144,
339),
46
but this
Pennsylvania
S.Ct.
L.Ed.
Co.,
in Donovan
279, beginning
v.
U.S.
subject
right of access is
to the domi-
page 300,
91,
on
26 S.Ct.
nant servitude of the
beginning
96,
United States to
page
on
302-303,
page 98, of
26 S.Ct. at
Park,
Commodore
v.
United States
opinion:
Court’s
Inc.,
S.Ct.
U.S.
dredged
general
1017, the Government
L.Ed.
doctrine is correct-
“The
navigable
deposited
bay
Municipal
ly
Dillon
tidewater
stated in
dredged
in the mouth of
example,
materials
Corporations:
‘For
bay
navigable
right
abutting
called Mason
arm
of access to
owner’s
street,
property
subject only
owners
The residential
Creek.
deprived
regulation,
were thus
legitimate public
Mason Creek
is as
navigable
and,
right
property
waters
accord-
his
his
much
ingly,
boundary
of their
decreas-
lines.
value
soil within
** *
basing
recovery,
deprived
refused
he is
The Court
ed.
When
ground
plaintiff’s
navigable waters,
As in
its refusal on the
the case of
rights
riparian
subservient
nation has
a dominant servitude
power
purpose
commerce.
It
Government’s
to control
air
commerce.
air
U.S., gets
page
air,
391 of 324
Court states at
this servitude over the
*3
navigable
page
waters,
at
805 of 65
does over
from the
S.Ct.:
“ * * *
giving
provision in the Constitution
against the demands
As
regulate
power
interstate
for-
commerce,
of
of lands ad-
owner
eign
Airways,
commerce. Braniff
Inc.
jacent
navigable waters,
whose
590,
Board,
v. Nebraska State
347 U.S.
uninvaded,
no
fast lands are left
has
757,
74 S.Ct.
98
owner-
L.Ed. 967. The
rights
private riparian
of access
* *
ship
space
of the air
is in the states or
Riparian
the waters
*.
surface,
in the owner of the
United
rights
navigable waters,
of
Causby,
256,
States v.
1062,
328
66
U.S.
S.Ct.
against
government’s
cannot,
1206;
90 L.Ed.
Matson v. United
power
commerce,
to control
States, Ct.Cl.,
283,
F.Supp.
opinion
171
Reed, (ret.)
bought
sold.”
Mr. Justice
sub-
but it is
However,
right
superior
or
servi
ject to this servitude in the United States
possesses
tude which
re
the Government
purpose
regulating
for the
of
commerce.
duty
pay compensation
lieves it of its
right
of the United States in the
only
reg
power
when it acts under its
space
air
above the
surface
the Unit-
improve
ulate and
commerce. Yates v.
carefully
ed
States
stated
Braniff
Milwaukee, supra, and United
v.
States
Airways,
Board,
Inc. v. Nebraska State
Rouge Imp. Co., supra.
River
If it acts
supra,
quote,
from which I
347
U.S.
purpose,
for some other
such as the rec
pages 595-597,
page
§07 result, adopted banning here to the same reach because of the Order Executive leaving .flights. question of enjoys still compensability. unresolved With access air he very
unrivaled location whose remoteness appeal adds to its to vacationers. Since further, the claims proceeding Before flights cessation he has had operators, Leithold airline of the two bring guests supplies his over plain- West, These be considered. should lakes, portages, dangerous miles of within the tiffs had no rapids via a series of ve- boats land consequen- is well-settled area. It Zupancich hicles. resisted the airban resulting gov- damages lawful tial strenuously. Defying fly- initially by basis form the action cannot ernmental ing July supplies in until taking. compensable Mitchell v. of a 1953, stopped upon he exhaustion affirming 341, States, 267 U.S. United procedures. of court United States v. Corpo- 443, Mullen Benevolent 58 Ct.Cl. Zupancich, supra. Thereafter he 89, States, 94- 290 U.S. ration v. United owner, Perko, another resort one used 192; 95, 38, Bothwell 78 L.Ed. S.Ct. log- properties for access to their an old 231, States, 41 S.Ct. v. 254 U.S. United ging which, permit by road under 238; 74, Commercial 65 L.Ed. Omnia United States issued to the Northwest States, 502, Company v. United U.S. Paper Company 1950, was extended 510-511, 43 67 L.Ed. af- S.Ct. fewa miles into the roadless area. Over 392; firming Southern Coun- 56 Ct.Cl. this road and Perko ve- drove States, Co. of v. United ties Gas Cal. equipment hicles and construction in or- F.Supp. 141 Ct.Cl. More- der to reach waters accessible to their over, Leithold, toas fails evidence violating properties, gate even a locked 18c). (finding establish a loss boundary which had been erected at the resort-owning plaintiffs As it is instigation of the roadless area at necessary they first to ascertain whether May of the United States. enjoyed time air as a District Court in Perko v. Northwest right, they matter of for if no such Paper Company, Inc., D.C., F.Supp. right they compensation cannot claim for 560, temporary injunction denied *7 suspension plain- its or withdrawal. The sought by plaintiffs to restrain defend- they tiffs contend in brief that had a preventing ants this means of ac- right navigable airspace to use the as Disregarding cess. this setback the long members of the so it does plaintiffs road, continued to use the until sovereign not conflict with the uses of July in 1955 the District Court in Unit- the Federal in Government the same air- Perko, D.C., F.Supp. ed States 564, v. space, and that the since creation injunction temporary pro- issued a airspace over reservation the roadless hibiting such use. these Since events by areas the Order Executive established Zupancich pro- has been to forced follow otherwise, of absence use rather than finding cedures described 17a to reach right plaintiffs’ the to use it for access his resort. This ex- alternate route is purposes remains intact. It seems unnec- cessively dangerous inconvenient, ex- essary engage per- to in an extended and pensive. apparently The Forest Service haps profitless discussion of owner- the particular no control over has this route along ship in, sovereignty of use over the skirts the which Canadian border airspace as between the Federal Govern- navigable Presumably waters. the ment, governments, state and citizens. of method access which would receive right plain- of at least some of the the the sanction of Forest Service would may light tiffs be considered the of using involve wilderness trails and wa- ways the of traditional doctrine of ne- by canoes, packhorses, walking. ters cessity. a method of Such access would un- be resort-owning plaintiffs, destroy Of four Zupan- reasonable would problem property purposes. the access of is the cich’s resort aggravated planned exclusively most and difficult since and resort with air into him to of ac- a wilderness resort entitles means other mind. No whatever means of communication that permitted Forest Service under cess technology require- by remotely are afforded modern to suited rules and reasonably consistent with the Govern- ments is available. objectives preserving un- ment’s right analo Zupaneieh have a Does defiled area. nature the roadless gous having to similar incidents to and determining necessity particular of a prop necessity way to his those given way, consideration must be to neighboring erty by land own air above property uses to natu- which the defendant, Minne the State ed rally put. be Feoffees of Grammar sota, ? The Act and other owners Ipswich Proprietors School of Jef- v. 1897, estab 4, provided for the of June frey’s Pasture, Neck 174 Mass. of the na administration lishment and gives N.E. 462. The reason to record Chapter 2, tional forests. Section believe the Forest found Service 36) 478; (16 30 Stat. the Act U.S.C.A. § flights brief from the few resorts the national inside settlers assured to seaplanes in the roadless area small ingress egress and means of forests far be less detractive from the de- wagon same, loads “and such across general fendant’s aesthetic aims than may improvements be con other practice of the airline conduct- necessary may be thereon as structed ing fishing parties airborne which land- utilize their and to their homes reach property briefly pon- ed on the lakes to fish regula rules and under such plane portable toons or from col- may prescribed the Secre tions lapsible rafts. plain Agriculture.” tary All of the rights enjoy Zupancich’s to at least of access been as to tiffs What has said statutory right degree. applies Even without of access air with almost this assurance, equal Skala, rule that universal force it is the whose grantee along hemmed lies route the same as the right-of- grantor’s property former’s ten miles but is less distance. latter, necessity party way prior on the was not to all of across Skala involving prop litigation Perko, public policy Zupaneieh that whenever rule conveys grantor litigation conveyed erty also outcome fore- necessary by implication him closed as much as it un- whatever did the litigants. large use, expendi- 17A Am.Jur. and successful its beneficial authority ex n. A he cases conflict degree tures was forced to make in order to necessity provide transportation system re ists as to quired as the way necessity. imply flights, A sole alternative banned *8 general necessity rule, finding 16b, plus is the in reasonable are mentioned authority although supports respectable right questionable nature of his con- necessity. requirement remaining using of absolute this sole means tinue agreed being access, the alternative access is that It it as condemn unreason- something merely more than in must be The fact that his resort en- able. joyed has way necessity mounting receipts through for a to ex convenient Bauchmann, v. 132 Conn. years Rischall ist. is since the airban more of a trib- 559; 898, 637, 165 A.L.R. 46 Back A.2d his a ute to sales talents than reason 286, Mayer, 204 Wis. 234 N. v. hausen his access route to consider feasible. 1245; 904, right airplanes continued, A.L.R. Littlefield v. 74 W. his use Had 299, 285, Hubbard, 128 only large 124 Me. A. 38 he have been saved not would a Contra, undoubtedly 1306. United States expense v. A.L.R. but would also D.C., Rindge, larger F. 611. patronage. 208 enjoying a cannot Pete claim that 484 of Restatement on Section by suggests to his resort is a air matter Property the entire- access Servitudes degree necessity theory to the same Zu- ly the normal as that de- of reasonable establishing property Zupancich’s paneich and Skala. his velopment forest
899
rely
seaplane
right
property
service was
resort he
on
considered
more
did
a
recently by
As
principal
of access.
as his
means
this court in Boush Creek
finding
Corporation
States,
a
in
at most
Land
68
stated
15c
v. United
by
guests
56,
air
fourth of his
any
arrived
Ct.Cl.
v. United
Fonalledas
States,
principal
1019,
of ac-
F.Supp.
means
107
season. His
123
Ct.Cl.
now,
then,
Minnesota,
is a six-
means
That is also
cess
sole
the law of
by
Ely,
perforce
six
applies
a
mile road from
followed
in these actions. United
trip
Fall Lake
and one-half mile
across
ex
States
rel. and for Use
Tennessee
Valley Authority
Powelson,
Four Mile
four miles across the
and
Portage.
v.
319 U.S.
1047,
1390;
the end
resort
lies at
Pete’s
63 S.Ct.
87 L.Ed.
Portage
Portage.
Chicago,
Co.,
Four Mile
Adams v.
B. & N. R.
39
286,
493;
629,
is owned
the Government which
Minn.
39 N.W.
1 L.R.A.
promised
for ve-
Burnquist
it will remain available
State
Miller Home De
v.
long
velopment,
it is
1,
900,
hicular traffic so
needed.
243 Minn.
65 N.W.2d
905,
1377;
Long
Were its use to be terminated
50 A.L.R.2d
State v.
deprive
plain- year Holding
so
Co.,
451,
Government
224 Minn.
transportation
longer
tiff
this link
his
N.W.2d
It
is no
rule
chain,
might
the result
be different. Un-
physical
there
must be a
invasion
being
doubtedly
taking.
convenience
added
to constitute a
Unit
fly
supplies
able
Causby,
256,
ed States v.
328 U.S.
66 S.
patronage
receipts
1062,
increase his
to an
1206;
Ct.
90 L.Ed.
United States
existing
extent,
Lynah,
unknown
but the
means
445,
349,
v.
188 U.S.
S.Ct.
give
is not so inconvenient as to
rights
L.Ed. 539.
If such
are divested
way
necessity
him
air in the con-
impaired by
sovereign, just
com
though
decisions,
dep-
text
even
pensation
paid.
Rapids
must be
Pike
rivation of it
has caused
loss in mar-
Minneapolis,
Power Co. v.
Paul
St.
& S.
ket
To
value of his resort.
reach Han-
Co., Cir.,
S. M. R.
(cid:127) game, propagation of fish and the “for Quetico-Superior under Exec- Committee affording travel, recre for canoe purpose Order for the of co- utive opportunities seek to those who ational existing ordinating the activities of Ca- enjoy Ac conditions.” wilderness .and organizations nadian and United States Secretary inten cordingly, the stated the maintaining the interested wilderness Department as a to retain of his tion region. character of the The Committee possible the as wilderness “as much has been extended executive orders. opportuni which has recreational land Acting July 25, 1939, 8. a. On the policy contem This announced ties.” designated Chief of the Forest Service plated be built that no roads would portion an area in north central the de no recreational that areas such Superior the Forest the as Roadless public permitted however, velopments would Primitive Area be administered as the recognizing, lands, subject primitive provisions area the power control no Government defining accompanying plan of an private lands development of use precise detailing boundaries and man- contemplat policy also This Forest. agement policy. All of in- the resorts one thousand less than “Not ed that volved these suits are within located containing of the best square miles Superior (name Roadless Area used kept waterways be’ as will lakes and plan to describe the same area areas,” without recreation wilderness specific designated by Acting Chief of the designation boundaries of the Superior Forest Service as the Roadless effect of the areas. wilderness such Area) acquired Primitive from so- establish a was to 1926 declaration the United States e., the For policy, i. called predecessors pri- or their owners in title roads build no est Service Hereafter, or to 1939. when the term having rec lands government-owned singular area” “roadless is used in the would advocate value reational Superior refer to the will Roadless acquisition of public program following excerpts Area. from required holdings the area private approved plan are relevant to the issues for n “wilderness recreation.” in these suits: July Shipstead-Nolan Act of plan intent “It is the 1020; 16 § U.S.C.A. 46 Stat. supply essential to the facts a re- entry pub all seq., withdrew et present Superior of the dedication portion of the described changing lic lands without Area Roadless including region, boundary orig- approved Minnesota policy basic Superior Na outside lands some purpose Area.’ The ‘Wilderness inal logging pub Forest, prohibited tional of the forest this classification distances of certain within lic lands National taken alteration of shorelines, forbade the L-5, Manual, page 61 is as follows: lakes. The levels water “ natural prevent unnecessary ‘To Congressional purpose primary unique impairment of elimination or preserve legislation unmodified conserve, values, natural so region. beauty of the scenic natural controlling economic consid- far use lands affect opportunity It did permit, will erations The State Minnesota the area. to observe the within condi- by pro- pioneer existed in the this Act supplemented tions (1936 Supp.), (1933), Minnesota c. Sec. Mason’s Stats. Laws Minnesota Minn.Stat.Ann., (2), 110.13. Sec. *12 transportation development, cannot that phases of the Nation’s stopped present To a engage out- at the time. in the forms and to large extent, provides airplane characteristic recreation door aiding preserve initial the Forest period, Service with thus transportation ideals, traditions, attack means of and char- national acteristics, fires; and, planes promoting since not own- a truer are Government, understanding phases ed neces-. it is of historical sary pri- planes progress.’ to secure these of national ****** vate individuals. with the Contract use of come tracted this will be a Roadless ministrative success lands. The free and unrestricted development, ed must be but the lands trative “10(b) Private land ............ lows: “8. Government owned ...... ownership State owners State of Minnesota ...... Water “ [******] “All ^ “The [******] private * Total Ownership. under Government policies * * organization. Means less Area. .................. of these gross acreage íf major objective cooperation of Area is dotted with major job ................927,158 great accepted type to follow these and the interests and policies. The outer rim of the Í7 hereinafter well as Government July 1, 1937, water pioneers Access to # of the adminis- investment and as is divided area has at- private applying ownership, íf establish- have be- the ad- 108,740 policies 600,131 143,510 resorts Acres as fol- 74,777 Road- # prior to the extension of wood mile and a half less Area boundaries to ment ed in the Roadless territory, aries. passable and the four miles is now located on use within the Roadless tion connects Fall Lake with Bass- Since venient for Government service. initiative has conspicuous portage justify planes tioned at the various additional planes income tioning into the fore Government public thoroughfare, * “Where resorts “b. Truck ****** accessible free use of this it is this Lake, constructed * * justifies accepted policy * these interior, it is an type transport private parties assistance, passable by automobiles. The most *. * * by automobile, Portages: of this * planes developed portages of new have been usage and this means of insufficient size accepted approximately *. The Govern- operators * Area, of this description points and the thoroughfare. Area bound- automobiles, was in include this points portage, allow the Road- * or where is there- form of develop- descrip- without private in sta- place these con- sta- * so water equipped to land and take off from “11. *-*«**$(cid:127) [******] “The picture Transportation. surfaces has development greatly primitive area; airplanes changed est moved. cept purely temporary and maintained to the removal of Such “No roads will be constructed ex- products temporary are roads will be built actually forest at the time for- roads incident to be products. figure, ties into the today hydroplanes working and it adjacent territory interior appears at a to be reasonable take a means par- out ment within “2. “ [******] * * Improvements. * area is generally develop-
published, hibited who volved knew vide nesota, adopted, and prior derness less in its less of common sion Commissioners excludes all tration pancy located ture will be over [*] “3. tional Forest b. The dedicated derness the area. “5. on Government owned Superior forth bility guarding of recreational natural specifically: derstanding resorts, is for ditions ing istence.” [*] “No [*] “(a) “Policies “(c) “(b) areas preferred between policy [*] to 1939 and was a or should On the destruction ownership of the Developments which we Secretary’s primitive [*] policy will be Nation’s of the special use recreational these typical of the Development Preservation April and scenic values within Increase [*] [*] on area where such or existence of the Forest to the lakes National knowledge future * * zoning throughout area. those types of summer privately owned semipermanent governing the adminis- suits. as to roads Wilderness adhered to have issued within Secretary [*] [*] original Superior Na- region by have progress *. St. state. Policy. of recreational sta- wilderness construction, occupa- nomic These early American ex- ordinance which who wanted Forest. permits for occu- known of of the federal wil- under Louis historical purposes. This subsequently [*] (cid:127)» no by road for several of the source primitive con- lands jurisdiction. policies properties was a matter advantages. the Board of by prevent- Area as set in this County, Permit. occupancy [*] [*] truer the safe- periods Agricul- the wil- shelters n and those the road- the road- homes, unique within phases lands, remain dissen- are, [*] [*] un- years re- Min- duly pro- pro- in- nized tion or use of industry aries time 26 form tions inwas areas), tle Indian ness, (c) prohibited. mits management oped thereby placing homes in remote ing quarry, construction purpose been residential substation) “essential ment-owned land tions in the Forest cluded minerals furnishing of school service. less area courage dam, flowage area, moval of landing cutting Secretary acteristics, (finding (except (a) 10. On plaintiffs solely water, ingress percent, or plan, (/) imposed certain restrictions as to prohibited in nonfederal respect except for removal of timber and except for minor and restricted so as recreation served, in the roadless areas airplanes on national forest Forest Service importance which had strips gravel areas after 8, supra), individuals percent of the in Minnesota used of the ordinance was and for conduct of approved by (e) limited dock logging temporary logging February 13, purposes, Sioux, (6) prohibited hunting, Skala and for the three roadless exercising of dams. The to road (namely, Agriculture preserve a (d) prohibited Forest, egress” pertained pit, about logging ownership. to be connection areas large of total in the roadless closely burden on the and Caribou restrictions. been was ownership, of which transmission logging in to citizens hydro dam, private *13 building construction their roads or unless it fishing changes and of including of the part reaffirmed the lawful Zupancich. wilderness char- originally in certain sec- restricted land- occupancy per- land areas July third Superior, Lit- making square Acting of the Forest purpose construction, with a except required plan or summer county as a major other sec- in bound- roads airplane the land general, ranking At govern- plan of to dis- line or county or the recog- rights areas, miles, devel- mine, home Chief areas those road- same their busi- land eco- in-
9Q5 generally The fol- part influence of the State. ineffective northeastern lowing plan of man- the situation. excerpts from the ****** agement issues in relevant to the are these suits: Landing Strips “C. Roads and pri- e., development *14 [i. “This may Except held es- “1. as be area] in the roadless vate resorts exercising lawful sential rights place over considerable has taken ingress egress, no of and beginning time, period with the of required for other those roads than lumbering along border wane of timber, and of mineral removal however, Recently, there waters. permitted. shall be other resources * * * rate of de- been accelerated has mainly velopment, in- due ****** availability of air- use creased and landing strips “3. No aircraft ingress egress. craft for permitted. shall be of result the invasion sev- has been Area “D. Use Aircraft of high eral wilderness value lakes Motorboats previously free of de- which were landing airplanes on “The of na- reducing seriously velopment, thus tional land or and the forest water truly primitive por- remote and use of motor forest boats national tions of that roadless area. closely be waters will restricted. n is* # 4c1 # prohibited except Both will be “Many complicating of factors employment where the of such areas ownership, result from the mixed es- already facilities presence pecially the of considerable * * become well established. *. privately areas of owned land. * * * * * * holdings represent appropria- These * * * However, pur- “A. federal long standing, tions of and in con- tracts, types chase of certain of such many them, particu- nection with improvements as where account for larly properties, lake shore certain major value, portion the clearly is not types improvements, use and existing by any authorized
transportation developed have legislation law. is Such needed. years perfectly law- quite legiti- ful manner and from “B. Use Aircraft expansions mate motives. Recent generally recognized “It development, particularly to lakes hydro- increase the use of undisturbed, heretofore force atten- planes constitutes a critical threat significance private tion to the of qualities to the that make the areas Incomplete public land situation. outstanding. Were such use confin- ownership effectively cannot curb ed to travel to resorts and summer development regardless additional homes, necessarily it would not be objective how desirable that is. However, too serious. there is a complicating constantly growing plane “Another factor is traffic growing hydroplanes. use portions It and from all of the arrea remaining is a critical threat adequate to the that afford water surfaces qualities landing taking wilderness Thus, of the area and off. to such increasing, native poten- resources fish there is an game. tially unlimited, It is a stimulant de- disturbance of the velopment qualities remqteness, quietness, heretofore undisturbed areas. Control of the use of navi- and solitude that furnish much gable waters is not in abut- vested the charm of the areas. The result- ting ownerships, ing pressures population hence federal land fish have very already controls can have but a indirect been mentioned. Much dwelling. permanent-type purpose visits but short the business involves day less, “unique areas, of the Act often but a conserve qualities by-passes resorts in the natural features of the re- and thus eventually maining expected country.” wilderness canoe areas. It can regulated large by-pass logging, even the Act also measure limited al- adjacent levels, Al- areas. teration natural water lake communities given study, exchange though government- already some authorized the navigable
authority owned lands for for control over lands. The Act jurisdiction (P.L. 607, of June under the waters not Stat. yet clear, Cong., Sess.), 84th 2d the Forest Service increased au- yet plan has appropriations been $2,500,- no concrete thorization *15 for expanded need purchase 000 evolved. There definite area to specific this attention be further and coextensive all with three roadless By problem.” areas the Forest. the time of trial Little Indian Sioux areas condemnation owned available. up to federal chased area, able Very areas. The supra, chase dowment, Incorporated, chase this streams appropriated June Forest and almost doubted the March under Weeks U.S.C.A. § in this area had §§ 12. 11. Prior to turned over to less than 577-577h, all federal land protection for land period little funds were available including improved lands. land, In authorized 1, or for the area. reimbursement lands so 1911, the Izaak Walton 516 et availability of funds to including some purchased Department of 500 acres under the Weeks any privately of watersheds purchases in the roadless majority in the The Act some been 36 Stat. Law Stat. private production of timber. no funds were avail- and Caribou roadless seq. Land Thye-Blatnik purchase United States paid for with funds Thye-Blatnik resorts, Superior land in all of the was appropriation improved However, could 568, exempted 962 et funds became in order that lands in the acquired for owned tract of League acquisitions Agriculture 16 eventually navigable privately Superior National acquired U.S.C.A. Law seq., with a during Act when from Act, pur- pur- pur- En- of of tion over to hereafter as the “airban order” or tinent mulgated, ments. the United States had properties Order “airban,” are as follows: privately owned resort and residential mained sorts person and which Indian scribed Louis, have Caribou tude reservation:4 reserved within over the 13. On December Superior Superior “2. [*] “1. “Those areas in the Superior Secretary counties of No. provisions of this heretofore been in the State of After Sioux as follows: the so-called roadless areas of shall [*****] creating Roadless following-described 10092, 14 F.R. 4,000 Roadless with substantial roadless are more National Forest. airspace exterior set Roadless National January 1, 1951,5 navigate roadless area about 18 feet above Minnesota, Cook, Lake, apart Agriculture Area, respectively, 17, 1949, Executive area, Area, the Little land particularly airspace below the alti- purchased boundaries designated by as an Area, and the Order, an aircraft and there re- sea airspace areas hereby improve- was as the referred reserva- water level 14 re- de- St. no pro- per- January 1, present as to the roadless areas elevations 5. Effective Surface 2,230 1,000 range plaintiffs. feet above sea from the airban elevations above Thus level. ground range 1,770 from level would 3,000 feet. per trip for the 15- ex- round $10 airspace reservation within flight exchange, and, provi- flew in minute conformity cept equipment supplies for with- permitted Hanson of this order and sions charge. regula- guests' authority arrived in their out Some under the or Secretary planes. own prescribed by the tions Agriculture.” the air- c. date of Since the effective pur- foregoing issued Order bring guests' Hanson ban has had Air Commerce Section 4 of the suant to lodge Ely over land and in to his 570; 49 U.S.C.A. Stat. Act They motor vehicle six water. travel primary purpose elimi- was to Its § Ely Lake, then miles to Fall areas of from the roadless nate resorts six Fall boat and one-half miles across preserve help in order to the Forest Portage, them Lake the Four Mile enjoyment of character wilderness Portage by across the motor vehicle employing primitive means visitors Lake, lower end of Basswood then It had transportation and subsistence. Quetico Lodge from there boat to relevancy promotion, encour- no away upper miles end of Basswood agement, regulation the use of air- good trip Lake. weather the takes *16 in commerce. craft way, to requires two three hours each loading unloading passengers freight change of John Hanson each Claim D. time a is made from (Quetico Lodge) transportation to land water and vice versa, and costs per Hanson about $15 John D. Han- 14. a. trip round for fuel and maintenance bought up- islands in son six charges guest his vehicles. Hanson each part per Lake in Su- Basswood trip $10 and makes about 100 bordering perior roadless area Canada. trips season, many each solely of them acquired predecessor A in title had supplies. haul charge guests to to property in from the United 1932. States always does not cover the immediate cost. comprise 44.13 The six islands acres transportation Conduct the alternate land, approximately two miles of consumes time spend which Hanson could Hanson informed the shoreline. profitably catering more to the needs build Service his intention to a resort guests. The alternate method of bring on one the islands and to in his transportation necessitated the airban supplies by air. From 1945 approximately Hanson invest caused he built on to 1951 one of islands a $8,000 purchase in the of land and water Quetico Lodge, home and resort known as building site, and the vehicles a dock consisting group prin- 14of structures living quarters parking space lodge, cipally cabins, a main three elec- Winton, for none of which he had need house, house, plant, fish tric ing dock, seawall, motor float- prior to the airban. He also rented addi- storage facility, fuel parking spaces dock sites tional from cabin, shop, employees’ small three cess- private owner at each end of the Four pools, a sawmill. The resort was Portage. Mile Because the elimina- furnished, well-equipped and and en- of air family tion access he moved his joyed modern all conveniences such as during periods Queti- the off-season from running water, plumbing, cold hot and Winton; Lodge quarters co built at operations telephone, etc. It commenced summer of in the late d. Hanson built his resort and all of exclusively facilities its almost with his January 1, 1952, Prior b. the ef- investment, hands. His own total includ- order, date of fective the 1949 airban ing an estimated allowance for his own guests were flown into the resort labor, approximately $45,000 Ely by provided has been air service contract Elwyn by co-plaintiff West, charged who follows: furnish- wood Lake at the of the Four Structures terminus ings Portage. $28,000 Mile .................. On land he erected this Boats, operated canoes, mo- some outboard structures from which he 6,000 so-called “cabin on Basswood tors .................. boats” 1,500 sometime' Subsequently, Lake. Tools .................. one- Launches, 1940’s, acquired undivided and ac- he an vehicles quarter to lack interest and one-half due three commodations fronting 8,000 .......... acres of land 500 to 600 feet on of air access Bay adjoining Original 1,500 Hoist the land cost of land...... previously occupied he under a lease. 45,000 remaining three-quarters undivided privately property interest 20-guest lodge ca- e. Hanson’s others when owned until about May open pacity from about and is acquired title to United States year. September Gross 15 of each one-quarter buy- interest undivided operation ceipts from increas- the resort ing it from owner. Pete $7,852.87 $3,864.51 in 1948 to substantially ed pays real taxes on his billed and estate Receipts declined one-quarter interest. None of undivided large during years 1951-1953 due the other co-owners of the have part Air Force recall to the Hanson’s improve- part made a claim starting January 1951. months placed on Pete has ments which During period his wife of his absence any part property, or to of the income lodge opera- keep endeavored improve- Pete’s from Although use of the derived took dur- tion. The airban order effect the record ments. Pete is own- ing period. the 1954 season With one-quarter er interest building had to a new Hanson commence *17 property from in- which he conducts his clientele, for the effective after date dividually unincorporated owned and airban, former airborne few of his Boats, business known as Pete’s Cabin guests There is to be- returned. reason son, Pete’s from 1948 1953 receipts his been have lieve Pete, reported income James W. expenses and post-ban in the increased over the actual own, from the business as his years for the on not been ban they plain- reported on the and were flights. starting income tax return until tiff's of the fair f. Estimates market value when, 1954 and thereafter at the instance improvements fixed of the land and Quetico Lodge, at Bureau, Internal Revenue the busi- assuming by air, access expenses reported and ness income were $20,750 $35,000 from to varied both plaintiff on returns of Pete. The according to defendant’s foregoing upon facts are based not best witnesses, $31,590 $196,- from two evidence, offered, up- which was not according in 1949 and 628.03 testimony objected on which was not to. plaintiff’s two Defendant’s witnesses. found no decline in market witnesses one-quarter acquiring After b. his airban, because while Han- value interest undivided land described witnesses found resultant two val- son’s 1940’s, erected above Pete thereon $8,298, respectively. ues expense buildings, at his own six frame prop- fair market value Hanson’s including cabin, storage building, com- erty, by air, with and without storage building, warehouse and bination finding reported in house, oil boat icehouse. shed and He large retaining dock, wall, (Pete’s Fishing built a Pete Jacob Claim Cabins) swampy areas of the filled shoreline. By he had built the site five In 1935 the 15. a. Jacob five-guest dwelling boats, e., cabin i. on a business started leased land Pete Bay barge, lying of Hoist shore on Bass- on a water-borne furnish- erected way verify equipped As of 1949 housekeeping, these costs. simple ed for equip- In his income tax return reflects for propulsion. for motors with inboard original $13,404.41, ment alone an cost boats the cabin one of 1954 he installed $7,143.47, depreciated shore, replaced while same location on in a fixed figures $3,- ten-guest $13,510.01 for 1951 double are water with it on the cabin 900.52. His cabin boat. decker cabin guests. capacity for 45 total boats have a upon e. Based federal income tax boats cabin fish from the Guests turns, gross plaintiff’s receipts from the ac- Lake and Basswood cruise around operation of Boats have Pete’s Cabin miles as 28 as far cessible waters year through 1956, risen each from 1948 base, waters. in Canadian sometimes year report- and each a net loss has been leading installed tracks has also Pete ed, despite Pete’s irreconcilable testi- prop- to the shore from the water mony profits have been made. hauling erty purpose the cabin guests 1956 the number of reached the repairs. He owns up on land boats previous peak same as the in 1950. hauling purpose of launch for a guests guests Whether years 1952, number of end Lake to the near Fall across seq., et would have been speed- Portage, and a the Four Mile greater actually experienced than if air guests prop- carry from his boat permitted access were is a matter of con- they erty cabin boats wherever jecture. equipment Pete’s investment in may Basswood Lake. be located on $13,510.01 increased from in 1951 to $34,957.04in 1956. Commencing in 1943 and continu c. many ing January 1, 1952, as as 25 widely f. Estimates varied as to the guests by seaplane percent flew in of his market value Pete’s Lake either at and landed Basswood expert and without access air. His directly to the immediate ihe docks $21,- witness testified to market values of guests of the cabin boats. The location (including $5,000 value) for land flying transpor paid service percent with air access and 25 less or tation, expense which was thus no $16,000 without, about 1949, as of December transported All other Pete. promulgation date of the air- Ely via Fall Lake and the Four Mile experts ban. Defendant’s two found val- *18 Portage by bus, launch and at Pete’s $14,450 $11,000, respectively, ues of and expense but included in his rates. Since 1957, finding as of both 1951 and no loss January 1, 1952, guests all have come in in value because of the airban. None of by this means. Prior to the airban Pete figure the estimates included a for cabin supplies by Many received some .also air. personal property boats and such as guests profes of his were business and equipment. The fair market value of who, pressed men for sional time and property reported finding 20, Pete’s is only day spend or .able to .ation, two of recre infra. flying adapt found the service well (Lac Claim of Martin Skala LaCroix ed to time limitations and more Lodge) (cid:127) than convenient alternate means of transportation. Most the airborne plaintiff 1944 Martin Ska- 16. a. .guests longer patronize no Pete’s facili bought 8acres land for on $300 la ties since the effective date the air in the northwest corner of Lae LaCroix Iban. 1,500 area. It has about frontage d. It cannot be and determined with of lakeshore includes a feet .accuracy By built, what 1949 he Pete’s investment has sand beach. knowledge opposi- He been. estimated a total and without the cost invest- $45,797, including Service, ment of a resort for tion improvements place Lodge, consisting LaCroix the land as Lac and known including large .$21,787 boats, buildings, lodge, in cabin there is no 17 icehouse, lodge, cabins, LaCroix of 31 dormitories, ware- Lac to a total four cellar, pump- house, light and two and hours plants, miles one-half three root two depot, house, docks, from the Lake as contrasted septic Crane tanks. and flight guests, Ely a 25-minute capacity sort has lodge, trip superior construction, and a five-hour surface via and has all modern Passengers designed Loon route. and Lake exclusive- It was conveniences. ly freight and, and reloaded June must be unloaded until as an air resort during Ely by guests Lake several times both the Loon in from co- all were flown Portage flying Dawson routes in transfer- under an and service West’s ring arrangement guests whereby paid from land to water and vice versa. Portage trip ter- flew The Dawson is Canadian round and West West $11.50 ritory freight supplies and uses it suffer- free Skala at and Skala charge. operation In or- ance Canadian authorities. May September der use it road each he had to build truck about ground year, depending across the four miles of which on the weather. repeatedly dams flood and cause beaver flights into b. the cessation Since maintenance costs. Skala continual Ska- airban, occasioned expended approximately $39,000 la has guests brought in to the all have been system operating transportation charge lodge trip by plaintiff at a round Portage route, across the includ- Dawson Lake the Loon route either $11.50 ing building road, the cost of the truck Portage route. Both or the Dawson hiring employees during the season originate just routes Crane Lake out- boats, depots, man the vehicles and extremity side the road- western maintaining purchasing equipment building area, less in a Skala which including facilities, the Crane Lake bought improved pur- sole Lake, depot, two boats on Crane docks pose $8,500. keeps at a cost of He Portage, trucks, at Dawson four two during employee there full-time sea- tractors, grader, trailers, loader, two flights son. From cessation gasoline storage facilities Dawson Portage June 1953 until the Dawson Portage, and three boats on Lac LaCroix. during the route became available expended $2,200 He for a tele- also radio season, transported Skala over lodge phone service between his route, Lake the Loon boat went expenses depot. Lake These Crane depot, from the Lake Crane followed exclusively equipment items at- Vermilion Canadian border down River Portage to the Dawson trans- tributable portation Lake, and into Loon into Lac La- thence system Skala would lodge crossing location, Croix to the over had them had not been for have cessa- portages en route which necessi- two land flights into his resort tion of due to the charges payment of in toll $3 tated salvage Their *19 airban. market value distances, portages. Due to low for the charges guests is not shown. Skala his early spring in the and fall water levels making round-trip transportation fee of $11.50' non-navigable, River Vermilion if not know this does reimburses his and conditions, generally hazardous and transports, Skala also un- costs. imprac- route became and is Lake Loon fee, co-plaintiff Zupancich’s disclosed long so not used and Daw- ticable guests from Crane Lake to the end of Portage route is available. The son Portage. the Dawson Portage originates route also at Dawson flights depot, proceeds by into Cessation the resort Lake c. Crane Skala’s positive but across Crane Lake to had unmeasux-ablead- miles has boat seven plaintiff’s Portage, stopping effect on en volume of route verse at Dawson although customs, guests, for other then four x-easons the miles Canadian greater Portage to in 1956 was than in the Dawson Lac volume truck across flight year operations. LaCroix, 20 miles boat full About thence across last records, believable. Not verifiable from
9H $195,776.10 and percent former values for the same of of the percent 10 $114,716, by air, respectively, patronize the guests with access continue airborne flights (a 1951, $97,888.05 as of 1949 resort, of the and and the end since so that substantially percent decline) respec- $50,000, and plaintiff has accumulated a oper- tively, year The fair he without access air. In no new clientele. property re- greater one- market value of the estimated Skala than an ated at finding logical ported 20, capacity. to assume It is third infra. period post-flight he would in the (Curtain Zupancich Claim William flights guests con- if had more have had Fishing Camp) Falls lodge Flight made service tinued. plaintiff Zu- 17. a. In 1939 William guests elderly many who accessible to pancich paid $1,500 for a 56-acre tract sys- transportation present now find of land situated in the roadless area and longer exhausting pa- so no and tem too fronting 9,900 feet on Crooked Lake and the resort. tronize Falls, highly Curtain scenic location. flights Up until the cessation d. separates property Curtain Falls approximately had invested Skala knowledge from Canada. With excluding property, some his op- the Forest Service and without its acquired equipment previously position, Zupan- from late to 1950 acquir- equipment all of the and facilities cich built a resort on the known existing in connection trans- ed portation Fishing Camp as the Curtain Falls con- system. sisting lodge, cabins, of a twelve two years Income tax e. returns dormitories, house, icehouses, bath two commingle receipts shed, pump house, house, motor tool lodge expenses and a tackle light plant. Seventy-five percent of the Ely by Skala, store owned but it building materials were flown in. Much year from inferable them that each provided charge of the labor was without except 1953 the resort has returned a by his friends and relations in so-called profit. receipts Gross in each of the “building bees,” apparently a rural cus- years post-flight have exceeded those in tom. Lumber was sawed at the site years, being preceding attributable locally logs. available greater promotional efforts, improved buildings good design were of con- conditions, increasing economic rec- struction, improvements modern activity large. Throughout, reational guests. capacity facilities, for 52 and a expenses fairly have maintained a stable necessary equipped with resort was guests receipts. ratio to Volume of required paraphernalia other boats fairly mained constant until when designed purposes. It was ex- for its clusively pronounced there was a increase. Ska- guest contemplation trans- la’s records and income tax returns con- by airplane. portation All of its many ambigui- tain inconsistencies and Ely until June flown in satisfactorily explained ties not record, legal upon proceedings based when foregoing reported facts flights earlier ban termi- defendant’s subject in reliance on them are to some flight activity. Thereafter further nated doubt. brought until June using provided by guests estimates land and water in over Valuation f. *20 logging widely. Road, temporary expert De- varied Lake a witnesses the Gun belonging respective Paper to the Northwest two witnesses found road fendant’s by $99,725 $115,000 which, permit by Company and issued values the market improvements (ex- in and fixed was extended a the land Forest' Service for personal cluding equipment, property, the roadless miles into area. At all few instigation depot), the United Lake with or States Crane with- and the the by air, gate into as of both 1951 barred access the and road- out access locked area, Zupancich Perko, two witnesses found but and an- Plaintiff’s less 1957. gate then owner, on drive 93 miles to Lake and the Crane other violated proceed the more the resort in into miles to numerous occasions and drove heavy Passengers the freight and manner described. and with vehicles roadless area get be unloaded each equipment order must change loaded and in construction made, giving proper- land time vehicles to waters brought type Zupancich suit versa. The resort Perko water vice ties. and Ely by May 1955, and, their mo- lies about 25 minutes from air. denied in were seeking injunction him temporary The Forest the Service has denied tion for a govern- Paper portage Com- use of across two trails the Northwest restrain deny- in area pany from ment-owned land the roadless the and Forest Service logging ing road. which would somewhat ease the trans- them access to Inc., Company, portation Paper problem. Perko v. Northwest D.C., this, F.Supp. Despite use 560. depreciated of his In 1952 cost b. by the un- of the route was continued land, improvements, equipment and, July in successful salvage $48,000. time value that injunc- granted temporary the court any likely pur- is unknown. It is preventing tion to the United States except be chaser the Government could by Zupancich further use of route for found the resort since cessation Perko, indicating pack- flights. In 1946 the Izaak Walton walking horses, canoes, and League pur- of America contracted to only means of access available to their Zupan- chase entire resorts, though even the use of vehicles negotiations $65,000, cich for but portages resort owners elsewhere collapsed for reasons not clear roadless area was found flight After record. ban the discriminatory. court United pay him Service offered to for Perko, D.C., F.Supp. States v. improvements, the land and fixed period Zupan- For a two-week in 1954 open. he offer still declined. The nearby by plane guests cich landed Zupancich operates his resort from c. them across and ferried waters Canadian May year, early to mid-October of each resort, the Canadian to his the Lake permitting. Prior to 1953 he weather prohibited this means ac- authorities would accommodate duck hunters guests all of June cess. Since receipts operation from the fall. Gross departed the Daw- via have arrived grew through steadily of the resort Portage by co-plaintiff route used son year 1952, year full of air last ac- finding supra. and described Skala they cess, $57,383.64, reached then when guests Zupancich’s transports Skala dropped approximately one-half suc- Portage lying be- Bottle Lake far as ceeding years through Similarly, Lodge and the Cur- Lac LaCroix tween profits on earned the resort Fishing Camp, and from that tain Falls through 1952, shown a loss or transports Zupancich them point boat succeeding year profit in each a minute doing property. portage to his number 1956. The two cross and sometimes has to so he radically 1952, reaching dropped after portages, one of them Canadian three figure in 1955 of than low less one-third negotiate soil, three hazard- and has the number 1952. Without doubt Solely pur- rapids boat. ous chiefly been lack of access air has acquired
pose and maintains sponsible patronage diminished amphibious jeep. and one boats three plaintiff’s resort. Crane Lake to his resort route by expert 41 miles involves three Estimates value thus covers d. wit- portages, widely. four land sometimes two nesses varied Plaintiff’s two wit- soil, improvements across Canadian and three valued the fixed of them nesses Traveling access, Ely $73,201.20 alone, rapids. from his home in with air to be *21 property Zupancich $36,900, respectively, as of their to his must and se-
Q13 De- lected dates of December 1949 and capacity. Leithold his individual $36,- cember corporation and found a decline to He seaplanes transferred several $7,380, respectively, 600.60 on the equipment and and v/ith a book They receiving $36,000, same dates without air access. value of in return $90,000 $10,000 corporation estimated land values at about in stock of the new $46,200, access, assumption by and $45,000 and about with air the latter of debts against $9,240 Defendant’s seaplanes. without. the transferred The plaintiff corporation two values of operated flying witnesses found market its improvements the land in 1951 and fixed service in the same manner as had Leit- $51,835 $75,000, hold, and 1957 to be spectively, entered into successive licenses for occupancy them to the cluding seaplane and found be affected (in- of the base promise neither in time nor difference to remove all struc- upon loss of air access. The fair market value agree- tures termination of the improve- ment), of the land and fixed five-plane and in 1948 built a finding given 20, infra,. ments hangar, ramp aluminum and docks on property. plaintiff The conducted a Seaplane Service, Claim of Leithold Inc. flying school under a Veterans Admin- 18. a. In 1936 Leit- William Fred program during istration the winters of hold, subsequently president 1948 and and in 1949 secured a Seaplane Service, Inc., Leithold contract- permit from the State Minnesota to ed with the Forest to furnish Service fly passengers freight into the road- flying seaplane Ely, Min- services By less area and elsewhere. 1949 and nesota, pro- to assist the fire control succeeding years approximately half gram Superior National Forest. plaintiff corporation business of renewed for contract was several flying personnel, guests, was equip- years. Concurrently operated he from ment into resorts in the roadless area. Ely capacity in his individual a commer- The flying fishing other half consisted of flying service, cial and from 1936 until parties into various lakes in the roadless many flights 1947 he made commercial area where the would fish for carrying freight passengers and into the usually periods short either from the resorts, private homes, area seaplane pontoons collapsible or from logging operators, and on Forest Service planes. boats carried Permission Operating seaplanes, missions. he flights to make into the roadless area off would land and take from the lake indispensable plaintiff’s business. area, surfaces in the roadless for in those April In 1949 Leithold b. left years up transpor- 1951 air plaintiff corporation accept employ- widely tation was utilized as the most pilot By as a ment elsewhere. then convenient mode of travel into the road- flying rumors that into the roadless area early less area. As as 1937 Leithold was stopped plaintiff’s affected policy familiar with the Forest Service to maintain this adversely. corporation business con- part of the forest in its 1951, just tinued in business until late natural state and as a roadless area. prior to the effective date the Decem- procured 1946 he license from the corporation 1949 airban ber order. The owner the use of some land and three engages existence, still still the use buildings Shagawa frame Lake at seaplane base neither uses nor Ely, seaplane base, for use as a with the it, aircraft, maintains has sold its dis- provision that he would have to remove personnel, persed fully its and has sus- buildings the frame other struc- operations pended since late 1951. tures on the land at the termination of occupancy. he, others, plaintiff corporation In 1947 c. contends plaintiff corporation formed the order under the airban terminated its busi- Minnesota, carry depreciation the laws of on the ness caused a in same business as theretofore of its assets from carried on value down to *22 guests fly However, out to their' in by area $41,725. $23,275, a loss guests. seaplane, paid sea- for a fee that not establish does evidence charge exchange, In in liquidated were West flew without plaintiff planes which supplies and to the resort owners value. various fair market less than their for sold replace- addition, In least materials. at that is it established Nor yearly equipment, 1950 West had contracts with parts, miscellaneous ment provide plane were Forest Service to services boats, equipment which office inventory in fire control closing suffered connection with the forest plaintiff’s in program. All his in- but a fraction of of the airban in because a loss value come, however, from his effort was derived plaintiff made or that order transportation few boats to and from re- except for a dispose themof to in sorts the roadless unclear. area. record as which occupied buildings on frame three fly b. West continued into the plain- not the property were roadless area after December its on a claim constitute cannot tiff and the effective date of the December 1949 plaintiff best would behalf. September airban order. In 1952 the between only difference to the entitled injunction District Court issued an hangar, intact value the market ramp, against flights a continuation of these ab- 1951 in the in late and docks permitting him, however, fly until the salvage and its order the airban sence of the 1952 end season and to make win- assuming time, there same at the value flights landing ter into the roadless area anything, but the right to recover were a proof on the lake ice. West continued his demand a either establish fails to flights during pendency appeal of his Finally, salvage included value. aor injunction from the subsequent pe- an item plaintiff’s claim tition for a preme writ certiorari to the Su- intangible equivalent. good or its for will Court, both of which were denied. good will that the is not established It July In contempt he was fined corporation, suffered planes of court and three of his six were five $7,458.50 its almost loss net years impounded. In the winter of 1953 he profit operation showed a planes secured the release of his and en- years, was worth only of those two deavored find another North American summary, Leithold anything. In comparable resort area one suit Inc., Service, (1) establish- Seaplane has where he could conduct the same kind itself of 1949 order airban that the ed seaplane service. None could be found. its char- impossible to conduct it made seaplane Shagawa c. West’s on base (2) successfully, has business tered strongly hangar, Lake consisted a rented an- the business indicated hangar shop other and tool built on leas- highly unprofitable to be continue would ed land in the ap- winter of 1946-47 permitted flights into if even proximately $3,500, and docks. He has (3) area, not establish- use, been unable hangar rent or sell the latter physical of the cor- assets ed stopped flying. since he Since depreciated below poration were on was built leased land and the record of late 1951. value market fair nothing ownership shows as to (West Seaplane Elwyn West hangar, Claim it would seem that at best West Service) salvage own value of the hangar, toas which there is no July evidence. until From 1943 19. a. hangar West, value, thus no Elwyn had market conducted plaintiff, only private depend- but value individually known as the West business owned entirely upon seaplane the existence of his Seaplane from his ent Service West engage Ely, permission Shagawa Minneso- Lake at lease and busi- base December 1949 West had exclusive contracts ness. He ta. háving aircraft, all one six the roadless hand been resort owners
About *23 attaching through by year seaplanes operations, floats' his converted ninth of during altering patronage at con- their tail structures time when and resort expense. planes increasing, in the All were roadless siderable area was it operating and subse- concluded that condition at that West’s business was anot largest profitable quent material times. All but of business and the value good seaplanes, negligible of of their short his will his because was nonexist- large load-carrying range relatively ent. and adapted capacity, peculiarly to the were flights f. into With the roadless area supplies ferrying passengers of and a being banned, Seaplane the West Service compact region, such roadless lake liquidating became worth value found in the area Su- assets, of its and same assets would perior National Forest and nowhere else greater De- have commanded value in flight Thus, the in the United States. flight cember ban not been market of ban reduced the value these promulgated. depreciation by eliminating large planes share of De- value of West’s business assets in By potential market. the time of $4,500, cember amounted confined all but two of the trial West had sold aircraft, supplies equip- to his flimsy planes. six From the evidence ment.7 reasonably available it is concluded that Properties December 1949 the fair market of Valuation of Resort by planes value of the six then owned Preceding findings through $24,000, West was and that the value was provided set forth the essential .elements $20,000 by depreciated to of reason the by determining the record for the fair flights ban on announced at that time. by market value of resorts owned It is not shown that values in 1953 were plaintiffs Hanson, Pete, Skala, Zu- any different. pancich, with and without burden by imposed the airban of order Decem- d. In December 1949 West had on ber assessed as of December supply parts equipment hand a of 1951, when the airban order became ef- repair the maintenance of his It fective. is assumed and so found that being peculiarly parts, These aircraft. by deprivation of access air diminished adapted aircraft, of needs West’s vary- the value of each the resorts in greater
had a value to the owner those ing degrees, largely by controlled reasonably aircraft than to others. It is comparative inadequacies other means estimated that the fair market value of example, For access. the resorts own- supplies question as of December by ed Skala are $1,500, 1949 was and that the ban on ingress so remote that surface means flights depreciated their value as of the egress unreasonably are $1,000. same time to expensive, cumbersome and while the readily e. West’s books account were no Pete is more resort accessible longer planned in existence the time of means trial. surface with that transportation primarily From his income tax returns 1948 means gross appears 1953 it mind. Hanson lies some- higher ceipts were degrees 1948 than in sub- where in between these of in- years, sequent although convenience, operates and that he showed losses more profits efficiently in 1948 and 1953 and modest air access and was intervening years, computed exclusively planned all with- basis depreciation expert out benefit deductions air. The witnesses relied profit reproduction have reduced the variations cost de- showings. gross receipts estimating Since preciated values, method constantly diminishing authenticity from his sixth but the the unit cost cri- In contrast West $20,650, contended for before and after values $33,850. claimed loss capitalization of income because not satis- employed them was teria *24 incomplete In explained data. and unreliable factorily established analysis problem is suggested final the valuation helpful. instances some' nebulous, speculative by fan- controlled exorbitant values were too land would factor what market data and unascertainable ciful to be credible. profit from airborne applicable of and here be the volume is not method of valuation patronage of resorts because, contains some whose record while the solely by prevented the elimination in the roadless was sales evidence area, they comparison Avail- capable medium of access. of the air as a ability are to income and dis- properties occurred data in suit and bursements, costs, during flight reproduction period and other ban the main area, meticu- probably no matter how of air access was sales when lack provide complete, depressant. would not price of resort lous and Purchases problem. properties by formula to meet this reasonable Nevertheless, the United States considera- properly based on these reflective roadless area are not whole, as a tions the evidence reason and same of market value willing- fair market found that the concluded and reason that the further improvements accept fixed of the land and the offered value sellers ness prices undoubtedly area each of the in the roadless influenced January suit, properties the airban. caused conditions access imposed by competing the burden However, and without elimination order, assuming per- acquisition the airban manency would Government sorts present access,8 means of transfer of to benefit tend following forth table: established as set patronage. cannot be Values though taking, example, amount to a total even all means of If capable anticipa- paying guests in suit were total shutout was not to the resorts January terminated, tion the effect of the airban