UNITED STATES of America, Plaintiff-Appellee, v. Michael DUNN (aka Mike Dunn), Defendant-Appellant.
No. 24380.
United States Court of Appeals, Ninth Circuit.
March 23, 1973.
Rehearing Denied June 22, 1973.
443
Finally, it should be pointed out, Rule 32 calls for a presentence report, not a report for post-sentence review.
Nor are these reasons countered by what the sentencing judge expressed were factors underlying his determination to sentence immediately here—that the appellant had lied in court and that he might cooperate with the Government in connection with weapons sources. These factors may be taken into account upon sentencing at the proper time and there was nothing to prevent the court from speaking to the defendant of cooperation at the close of the case.
The Government argues nevertheless that there is no indication of harm to this appellant. Were it our province, we would agree that the sentence does not seem in the least undue under the circumstances set forth to this point in the record. The judge elicited from defense counsel mitigating factors. But we may query whether the same mitigating factors would carry the same weight coming from defense counsel at the conclusion of the case as they would in a report of the probation department. We query also whether a defendant with the emotional strain necessarily present at the immediate conclusion of a criminal trial is fully prepared to inform counsel of all relevant mitigating factors. And in any event, the two months’ delay entailed by the probation department‘s preparation of a report in the Eastern District of New York is hardly the kind of discretionary factor that, under United States v. Warren, supra, would warrant non-use of any presentence report. Cf. United States v. Brown, 470 F.2d 285, 288 (2d Cir. 1972); United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972).
We reverse the judgment below and remand for resentencing in the light of the presentence report which we understand is available now.
Reversed and remanded.
Before KOELSCH, CARTER and WRIGHT, Circuit Judges.
KOELSCH, Circuit Judge.
This matter involves a dispute between the government and a group of persons, defendants, below, who are asserting an easement for a road across public lands.1 It is here on defendant‘s appeal from partial summary judgment holding defendants trespassers and the government entitled to immediate possession of the government lands over which defendants were constructing portions of the road at the time this suit was commenced.
We conclude the judgment cannot stand. Summary judgment may not be entered unless, in the language of
Defendants asserted the doctrine of easement by implication and necessity as the basis for the road.2 They relied upon affidavits, etc. which tended to show that they succeeded, through mesne conveyances, to the ownership or control of a number of sections and partial sections of land which had been patented in the year 1906 to the Southern Pacific Railway Company, pursuant to Congressional grant to aid in the construction of railroads (Act of July 27, 1866, 14 Stat. 292; Act of Mar. 3, 1871, 16 Stat. 573); that the lands so patented were and are wholly surrounded by public lands and that no roads to defendants’ lands have ever existed nor do the patents make any provision for access; that the lands, although never exploited commercially, have utility for some purposes and that defendants desire to “develop” them and sell parcels for home-
Gregory R. Harris (argued), John Carlson, of Duryea, Carpenter & Barnes, Newport Beach, Cal., for defendant-appellant.
Dennis M. O‘Connell, Atty. (argued), Raymond N. Zagone, Atty., Shiro Kashiwa, Asst. Atty. Gen., Lands and Natural
The doctrine applies to roads:
“A way of necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is entirely surrounded by the land from which it is severed or by this land and the land of strangers. It is a universally established principle that where a tract of land is conveyed which is separated from the highway by other lands of the grantor or surrounded by his lands or by his and those of third persons, there arises, by implication, in favor of the grantee, a way of necessity across the premises of the grantor to the highway. . . .” (17 Am.Jur. Easements, § 58).
The court held this showing insufficient to meet the government‘s motion. It gave two reasons. The first that no necessity appeared. Said the court: “It is interesting in connection with the claim of the defendants to a way of necessity that they have not shown that any of the parcels as to which defendants claim an interest is entirely landlocked.” Even if the record bore out this statement, such fact would not necessarily have ended the matter.3 However, the record is to the contrary; it includes, in addition to defendants’ statements concerning lack of access to their lands, a plat which tends to show that most, if not all, of defendants’ lands are wholly surrounded by those of the government.
The district court, as the second basis for its ruling, declared in effect that, assuming an easement, the road exceeded in scope that contemplated by the government at the time patent issued.4 But that fact does not support, let alone require, the conclusion reflected in the summary judgment that defendants are wholly without a right nor does it justify the broad order directing them to quit the public land altogether.
The defendants, having raised a factual issue as to whether or not they hold an easement, are entitled to a hearing to determine not only that issue, but the incidental ones that relate to it.
The judgment is vacated and the cause is remanded to the district court for further proceedings consistent with this opinion.
The court, apparently as a third basis for its ruling, gratuitously held that defendants had no right by statute to an easement. Thus, in the course of its opinion the court declared “[t]he Congressional acts provide for the construction of public highways by duly constituted public authorities over public lands, but it does not provide for the construction of roads of the nature here involved on the public lands by private persons.” The court did not designate the statute referred to but no doubt had in mind
This statute constituted section 8 of the Act of July 26, 1866, 14 Stat. 251, R.S. § 2477; the historical conditions leading to its enactment and the circumstances of its operation are set out and carefully explained at considerable length in Central Pac. R. Co. v. Alameda Co., 284 U.S. 463, 52 S.Ct. 225, 76 L.Ed. 402 (1932) and will not be repeated here. Suffice to say that the statute was passed to protect persons who have already encroached upon the public domain without authorization but who have been allowed to remain there with the knowledge and acquiescence of the government and who should not in conscience be deemed trespassers. It was not intended to grant rights, but instead to give legitimacy to an existing status otherwise indefensible. That such is its purpose is clear. Justice Sutherland, speaking for the Court, in the Central Pacific case, pointed out that the statute “is controlled by the same general principles.” [284 U.S. at 472, 52 S.Ct. at 228] as those embraced in companion section 9 of the same Act, which relates to ditches and canals on the public domain. And to declare those “principles” he quoted the following from Broder v. Water Company, 101 U.S. 274, 25 L.Ed. 790 (1879):
“It is the established doctrine of this court that rights of . . . persons who had constructed canals and ditches . . . are rights which the government had, by its conduct, recognized and encouraged and was bound to protect before the passage of the Act of 1866.”
We are of the opinion “that the section of the Act which we have quoted was rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.” (284 U.S. at 469-470, 52 S.Ct. at 227).
None of the cases cited and relied upon by defendants is opposite; they treat of long established roads or highways and hence do not present the question, as here, whether the statute authorized one to commence construction of a way over public lands. Defendants’ own affidavits showing, as they do, that the road is as yet not even ready for use, render inapplicable the protective provisions of
I dissent:
I would hold that under the facts of this case the doctrine of easement by necessity is not binding on the United States and accordingly I would affirm the granting of summary judgment.
Sebastian A. ANZALDO, guardian for Gia Anzaldo, a minor, Plaintiff-Appellee, v. S. W. CROES, d/b/a Modern City Motel, Defendant-Appellant.
No. 72-1448.
United States Court of Appeals, Eighth Circuit.
Submitted Feb. 15, 1973. Decided May 1, 1973.