Dominic Eyherabide, Jean M. Eyherabide, Raymond Castanchoa and Marie Castanchoa v. The United States
345 F.2d 565
Ct. Cl.
1965
Check Treatment

*1 Railway Lighting Co., In & Connecticut

the Internal Revenue Service reversed practice consistent administrative

which had many years. extended over a Exchange

In Parts Com- pany, Inc., plaintiff, paying after ex- Whitaker, Judge, Senior dissented equipment cise taxes on rebuilt part. years, applied several for and obtained ruling articles were not Also, widely pub- taxable. there were rulings declaring

lished the arti- subject

cles were not excise reversing long-standing

tax. his ad- practice

ministrative in Connecticut Rail-

way Lighting revoking & Co. and

published ruling private Exchange Company, Inc.,

Parts the Commissioner change apply

announced that he would his position prospectively only, but that he would not refund taxes that had

previously paid. cases, been In both

court held that it was an abuse dis- apply

cretion for the Commissioner to his ruling retroactively, solely on the basis plaintiffs paid ques- had the taxes in

tion.

It follows from what we have said

above that are not entitled to petitions

recover and their are dismissed. EYHERABIDE, Eyhera-

Dominic Jean M. bide, Raymond Castanchoa and Marie

Castanchoa

The UNITED STATES.

No. 95-60.

United States Court of Claims.

May

Stephen Eyherabide, Cal., Bakersfield, plaintiffs. Mack, King Bianco, & Eyherabide, Bakersfield, Cal., of counsel. Masters, Washington, Kenneth H. D. C., Acting Atty. with whom was Asst. Gen., Williams, J. Edward for defendant. LARAMORE, Acting Before Chief Judge, DURFEE, COLLINS, DAVIS Judges, WHITAKER, Judge. Senior Judge. DAVIS, adjacent The owners of a small tract to, by, surrounded three sides Range Navy’s Mojave Gunnery “B” sue just compensation temporary for the a series of occur- from 1954 this case we have of their through which culminated in the near- no formal rences 1959.1 There were rights acquire deprivation owners’ proceedings total to seize or land, of almost defendant denies that in this years compensa- power six for which ask it intended to exercise the .emi- urge avigation-ease- flooding, domain, tion. As in the ment, nent *3 projectile-easement cases, and we the defendant’s interference nevertheless great property it was so think that the acts invasion with their combined taking. necessarily interference, properly attributa- amounted to a and if great defendant, ble were so recognizes that, al Federal law taking implied. a must be though may there be no officialintention Range Mojave Gunnery Navy’s acquire any property interest, certain to governmental “B” is an and desolate area enormous such an ac actions entail Mojave square in about 700 miles rights private property tual invasion of testing California, desert of used taking that a constitutional must be naval aerial ordnance of kinds. various implied. See, g., Hemp e. Goldblatt v. Plaintiffs’ small ranch of 80 acres forms 987, stead, 590, 594, 82 369 U.S. S.Ct. boundary an indentation in the southern Armstrong (1962); 8 130 v. L.Ed.2d of the it which surrounds 40, 48-49, States, 80 United 364 U.S. east, west, This on the and north. (1960); 1563, 4 L.Ed.2d 1554 Unit S.Ct. only improved ranch is the Mining Co., ed Eureka States v. Central During miles and after World around. 1097, 155, 168, 2 357 U.S. S.Ct. L.Ed. 78 mid-1947, II, War from mid-1943 to (1958); 2d 1228 v. Kansas United States by was leased the former owners tract City Co., 799, 809-810, Life Ins. 339 U.S. integral Navy an to the part and utilized as 885, (1950); 70 1277 S.Ct. 94 L.Ed. July range. Since Dickinson, 745, United States v. 331 U.S. 1, 1947, no has had Government claim 748, 1382, (1947); 67 S.Ct. 91 1789 L.Ed. property except on the as it 256, Causby, v. 328 U.S. States — involuntarily temporary acquired a inter- 1062, (1946); 66 S.Ct. 90 L.Ed. 1206 by est described. events be Corp., United States v. General Motors Eyherabides (one-half plaintiffs) 373, 378, 357, 323 U.S. 89 L.Ed. 1952, purchased May the ranch in to- (1945); Pennsylvania Co. Coal gether couple with another who sold their 158, Mahon, 393, 413, S.Ct. Eyherabides September share (1922); 67 L.Ed. Har Portsmouth (the plain- other the Castanchoas bor Land & Hotel Co. v. United tiffs) acquired interest their one-half 260 U.S. L.Ed. 287 later, in December Hirsh, Block v. bought 65 L.Ed. 865 When the ranch was it improvements: The interference with or had several two small but possession may complete houses, barn, so substantial and of a a tank house tank, garage, such a done with character that it cannot be shower room and a sheds, compensation corrals, tower, without the Federal under a and windmill regulatory pump, pipelines, and executive Government’s and trees. At that time powers. Where these factors exist these had not dam- been aged implied, by shells, rockets, explosives a it constitutional is or assumed that States has ac the United instrumentalities naval ord- quired property, a definite nance. The interest in new owners installed live- permanent temporary, purpose fee such as stock scales. Their was to use easement, servitude, property, title an a or a lease which had one of the few region, hold. sources of water in as a head- only period plain open 1. This is the for which -which is under the statute of taking. limitations, petition 2501, began claim tiffs § U.S.C. on 17, 1960, six-year filed on March and the March quarters sheep-herding droppings may well have been outside grazing covering very sufficiently activities wide ranch but end, general vicinity. caretakers, area in To that near that as a result thinking prop- guard’s prior caretakers were installed erty warn- against guard ings, and main- off vandals moved October tain the facilities. 1954. After the owners were unable although any caretakers, to obtain Shortly Eyherabides after attempts made numerous and even took acquired their then co-owners the land eight prospective occupants seven or out 1952, they of a became aware series warning signs there. The Government’s clearly of them interferences —most frightened all. them defendant others attributable directly tied cannot be From to time the own- time after August casings barn, four of the ers source. found shell pack casings, targets, rockets, found burros the ranch were shot 20-mm. tow death, by gas places prop- *4 to it but is not known whom. tanks at on the guard security Early large erty. They a naval em- also discovered shell ployed by barn, garage, the visited the holes in the the and the times, ranch, objects, least at three and warned main house. None of or these they trespassers, damage, the caretakers that were this the ranch existed before belonged 1952; the acquired probable land and to the was Government it is also part bombing range, objects all) formed of (if the bombs that most came of the and rockets were the used on onto after the land the caretakers left in danger zone, 1954; which in a was and the the fall of the in the holes struc- pain definitely caretakers should move on of arrest. tures were made thereafter.3 The defendant all the maintained around The owners likewise similar ob- found jects range- -includingspots on all the as far south as 10 15 miles of — leading posts boundary roads very and on ranch the ranch and of the southern buildings2— range. Shortly close to the ranch of the the trial before signs warning stating: “danger 1962), (April-May of this case air- naval area, Gunnery keep Range, planes landing just Aerial U. were south the of out, Property.” ap- (and S. Naval These were ranch range). therefore outside of the parently a relic of World the War days part II when the ranch a of was (except, The structures on the land signs range, the the left stand- but were perhaps, for the tanks some of and the ing positions persons ap- in such that corrals) destroyed 1957and were between proaching reasonably the ranch would dynamite apparently by (or other warnings consider the to continue to burning. explosives) and We do not plaintiffs’ property refer to as well as directly responsible know who is for this range proper. the would the That be damage. area, There vandals the normal inference. personnel possible but isit naval that airplane spring up In the of an blew the in connection eighth dropped fuel an two tanks about with some of their activities.4 ordnance house; of candor, a from in the mile the ranch With commendable defendant’s early plane dropped argu- us, fall 1954 another counsel informed oral at the very objects ment, two unidentified “silver” that in December 1962 offi- naval plaintiffs’ cers, thinking part close to south fenceline. These that the formed ranch signs actually placed photographic of the None was well from the Trial as —as plaintiffs’ findings. on the land. Commissioner’s testimony pre- point evidence, part 3. The is not this There is time, defendant, cise as to but we the con- think that this destruction did not chronology bombardment, clusions has we drawn as to aerial result but it may explosives a fair inference from the evidence as be that land were used for testimonial, documentary purpose project. a some naval whole— range, Causby, supra, the selected the tanks as a at target practice, the rocket tanks Harris v. United destroyed supra. why at time.5 This last that We reason see no combined period incident is outside the for which invasions cumulative of different highlights sig- plaintiffs sue, types, case, but it inas this should not have They, too, nificance of the events did occur same effect. show that timespan. within the critical appropriated defendant has in fact use of the itself. land for indisputable, shows, It this recital as addition, there were owners of the ranch were unable signs warning ringing ranch, the air use it but minimal functions flying landing through near early part craft area from the neighbor by, objects found in the must and the have dimin through during outside its hood of the ranch but bound ished value gunnery range). (and aries and destruction of the im that of By might themselves, provements (as not amount to inability well as these sheep-herding taking di it did not intrude as a ranch and head because marginal rectly upon property,7 quarters). This not a was showing harm, deprivation nearly but a total do add to whatever thought, higher the benefit If the tract. defendant officials regard responsible causing personnel for the acts continued to local naval loss, injury adjacent area) (and as the owners was so ranch great properly “greater range”, be that a can im useable *5 legal range plied. repeated physical just There were in treated itself. like types fact, of various on the vasions land itself That seems to because either guard’s informing Navy —the directions to the care never succeeded leave; droppings range takers personnel of fuel tanks lease of targets; entry days and tow of shells and World was over or because War II rockets; habitually and destruction of the care the men in the field buildings improvements. Isolated in less of is limits and boundaries. There vasions, floodings Navy sup such as one or two or evidence that the continued to taking sprayings, (see ply but, do not make a maps outdated whatever Hydro-Electric cause, North Counties Co. v. a failure to confine result was States, F.Supp. 322, 323, Navy’s United 151 138 the within the activities 380, denied, range. Ct.Cl. 382-383 appraising conduct, cert. we 882, 149, (1957); 78 L.Ed.2d 112 properly S.Ct. 2 can take of the acts done account States, B Amusement Co. v. United 180 plaintiffs’ outside of the borders land F.Supp. 386, 337, 389, Ct.Cl. use, along 148 341-342 but which its affected with (1960); States, Harris v. United F. signifi 205 actual invasions. Once there is a 765, 1953)), (C.A.10, 2d 767-768 but re cant intrusion onto the charac peated type magnitude invasions of the same have appropriation ter and often in an been held to result involun must on the be evaluated basis of all the tary servitude. circumstances, merely See Portsmouth Co. related not the acts States, supra, United 260 U.S. at 329- of invasion Cf. alone. Mock et al. v. Spon 43 S.Ct. United States v. States, Ct.Cl., United Nos. 349- enbarger, 256, 267, 60 14,1964, U.S. slip op., pp. decided 2- Feb. (1939); 84 L.Ed. 230 States v. justified, words, 3. We other previously damaged erty been warning signs, tanks had with such as those destroyed. here, cry “Keep used which Out” and effectively people coming deter from onto They it, sporadically, did for water private Presumably land. it would grazing sheep their on a few taking ground be a off all to fence access occasions. by public to a tract served roads. We 7. It may be, however, it would con- warning need not decide whether such private prop- signs, by themselves, enough. to surround stitute would be finding acts, negated de the actions a cumulative combination of because wholly effectively representatives ex- fendant’s from 1954 to using plaintiffs land North cluded their unauthorized. Cf. United States v. Trading Co., Transp. of American & and which ended in the destruction 330, 333, property. L.Ed. 935 U.S. guard cautioned the who is defend extent To what general scope within the caretakers acted responsible All the for this loss? ant duties, personnel of his as did the naval directly 1959 are from 1954 to incidents casings shells, dropped who lobbed except, personnel to naval attributable objects, over and near flew burning dynamiting perhaps, for the warning property; placement of the improvements in 1957 and there of the signs obviously within the local That been van after. dalism, due authority range. No stat part, van or but the whole regulation ute or forbade these activit dalism occurred because They as ies.8 cannot be characterized could not maintain caretakers they may merely unauthorized because place. near Defendant’s activities on and mistaken, imprudent, have been signs, ranch, and defend defendant’s wrongful. & Cf. Larson v. Domestic plaintiffs’ tract as ant’s treatment of the Foreign Corp., 337 Commerce cause were the direct 689-692, 693-695, 703, 1457, 93 inability occupants. of this We obtain L.Ed. 1628 Iron Forest of Dean circumstances, think in these States, F.Supp. Ore Co. v. United responsible must Government be held ; (1946) Ivey 106 Ct.Cl. 250 v. United consequences the foreseeable build States, supra, F.Supp. 8-9; at Silber ings improvements. and other That loss (D. F.Supp. man v. United “consequential damage”, was not as the Mass., 1947). term used in the law of eminent do

main, physical but a direct as invasion re measure signable to, product covery temporary taking (from because natural is for the of, through 1959). standard, the dominion exercised over tract dif This by Navy employees. fering applicable servicemen and If somewhat from that *6 pri the acquired, Government’s encroachments on full is allows where a interest property possible only compensation vate make it for another for use and the get occupancy property benefits of the that the for the but also just United improvements plac States is liable ifas it used loss of cost of and the ing Ivey the pre-taking for itself. v. United the in its condi States, 6, 1950). F.Supp. (E.D.Tenn., (if value). 88 8 tion it has diminished in Cf. depriva “The Corp., courts have held that United v. Motors the States General 357; supra, tion of 381-384, the owner former rather than the 323 U.S. at 65 S.Ct. right Laundry States, accretion of a or interest to the Kimball Co. United v. sovereign taking.” supra, 1434; 7, 14-16, constitutes the Unit 338 U.S. at 69 S.Ct. Westinghouse ed Corp., States v. General Motors 323 United Elec. & States 373, 378, Mfg. 359, 267-268, 357, Co., 261, 264-265, 65 S.Ct. 89 L.Ed. 339 U.S. (1945). 311 644, Cf. Boston (1950); Chamber of S.Ct. 94 L.Ed. 816 Com Unit Boston, 189, 195, 114, merce v. Co., 217 U.S. S. ed Pewee Coal States v. 341 U.S. 459, 670, (1951). Ct. 54 L.Ed. 95 L.Ed. 809 Kimball Laundry States, 1, Co. v. 338 U.S. parties presented The have 13-14, 14, 34, 69 93 L.Ed.2d 1765 different views of the measure of these (1949). components of the loss. On whole the Nor is this a case in which we Trial Commissioner has tended toward say implication position plaintiffs’ witnesses, of a is of can and jurisdiction District, gunnery range, had over The 11th Naval was authorized to acquire leasehold interests. findings. $2,070 no reason to overturn his total “rent” we see of find which we owing. improvements (and not now Defendant does contest be property) finally destroyed found to reimburse other amount in were 1957, of of their the loss the use tract after the Castanchoas became co- through ($2,070). owners, properly March can in share $1,000 clearing of and re- sum award. storing property in for re- condition Plaintiffs are entitled to recover building is also reasonable allowance twenty-two the sum of thousand hun six temporary under the criteria used for a twenty-five dred ($22,625). dollars taking. challenge There the sums is a They entitled an additional found for the reasonable value of de- computed per per annum, sum at 4 cent stroyed improvements prop- personal compensate delay payment, as erty figures (totaling $20,050), but these just compensation.9 Judgment of is en by supported plaintiffs’ are well evidence tered to that effect. contrary testimony and the of defendant’s expert persuasive; among is not other Judge WHITAKER, (dissent- Senior things, he did not base his on valuations ing part): the correct and character of dimensions The evidence in case con- this does not improvements of as 1957. Defendant vince me that it was who the defendant complains presented the owners no destroyed structures direct evidence as to diminution Finding says they ranch. de- market tract as a result of value stroyed “as direct acts of result improvements, but, the loss as we by the defendant and un- of vandalism out, takings pointed temporary have my judgment known individuals.” need not on that be calculated finding read, should “as di- basis where are lost rect damaged. result of the acts defendant or injury components can by of vandalism unknown individuals.” separately evaluated. Kimball See My authority majority for this is Laundry States, supra, Co. v. United opinion itself. 7-8, 1434; U.S. at 69 S.Ct. United States Corp., supra, v. General Motors It states: Chang at Wah (ex “The structures on the land Corp. v. United F.2d cept, perhaps, for the tanks and some 151 Ct.Cl. 53-54 corrals) destroyed be by apparently tween 1957 co-plain Castanchoas, Since the dynamite (or explosives) tiffs, acquired their interest tract burning. We do not know who on December 1956—about 33 months directly responsible damage. for this after March cannot re 1954— *7 area, There were vandals in the but any accruing part cover for of the claim possible it is also person that naval prior to that time. U.S.C. § up nel blew the Shannon, v. States connection with of some their ord 96 L.Ed. Unit nance activities.4” Dow, ed States (4) The footnote four therein referred L.Ed.2d to reads: assignable amount to their share prior 33 months “rent” to December evidence, part “There on of the $495; from 1956 is deducted defendant, will be the that this destruction (commonly sake, mid-point 9. This additional sum called peri ence from the interest) January 1, taking, February mil run e., from od of i. 1957. (the taking) of of Laundry end the date of to Cf. Kimball Co. v. United payment, $1,575 $21,050; supra, on on the 338 U.S. at ($2,070 $495) “rental allowance” less run, the additional sum will for conveni- nery did not Range, Property.” result aerial bombard- S.U. Naval ment, may explo- opinion very frankly says signs but it be that land that these pur- sives were placed used some naval must have been there the when pose project.” Government had a lease on the property but, and had not removed them Notwithstanding of the indefiniteness independent this, pro- of whenever the proof responsible for the as to was who spective signs, caretakers saw those the structures, of the destruction owners, course, they of told them that majority apparently holds the defendant only apply property did not to their but agent, responsible its therefor because it, to the land north of which was the guard, owners’ caretaker had told the range. area of the trespasser, he was that land that upon a residing part of which he was was a It people is no doubt true that gunnery range, particularly if did not he not anxious to live so close get off, arrested, gunnery range, he would be and that true, but it is also no doubt, they thereafter the owners could find no one were not anxious to live willing else who was to come and live this area in the midst of a desert so far there. any removed from civilization or habitation. reason, apparently, For this the find- get ing fact quoted says: that the owners could above further “The prop- another caretaker to reside on their vandalisfn was natural result and erty, for product which defendant was not I re- defendant’s acts.” cannot sponsible, certainly does see how not make it re- this conclusion can be drawn. sponsible apprised After the vandalism that owners had been guard’s they have been committed. caretaker, visit complained to the 11th Naval District short, simply I do not believe that by personnel were informed it that the on carried have the burden on gunnery range correctly “were not in- showing them of it that was the defend- range, formed as to the limits” of but responsible who ant for the destruc- had been instructed “to avoid tion of these structures. annoyance your further in- clients or However, that, while evidence I think operations terference with their on this imposition of a servitude property.” (Finding 10.) by weak, land the shell the defendant is By this time it garage was true former in the barn and the holes left, caretakers of the I had persuasive that the de- main house do respon- not think the defendant was probably it ex- fendant did to some inability sible for the owners’ to find tent as a itself. willing other caretakers who re- particularly happy I am not ing about hold- property. They side on the stated that imposing the defendant liable when prospective took several land, care- I servitude on the but what property, prospects takers out to the together mentioned, rea- with the other away by warning signs were scared by majority, upon sons relied inclines leading reading: roads go along majority me to with the on this keep out, Aerial Gun- AREA, feature of the case. “DANGER True, opinion previously pieces had stated it was not a destruc- large shell them, therefore, holes were discovered in tion of it was not a barn, garage, *8 house; compensable and the main them under but, while this was a to these Fifth Amendment.