*1 and, accord- trailer and hired owned pro- apply as policy ingly, does clause. in the exclusion
vided court will judgment district
be affirmed. America,
UNITED STATES Appellant, Pinson, and J. PINSON H. M.
Mrs. Vesta Appellees.
No. 20965. Appeals Circuit. Fifth
May Atty., Goodson, L. Charles U. S. Slaton Clemmons, Atty., Atlanta, Ga., Asst. U. S. Ramsey Roger Clark, Atty. Gen., Asst. P.
Marquis, Clark, Attys., Dept. Edmund B. Justice, C., Washington, appel D. lant. Edmondson, Gainesville, Herbert R.
Ga., appellees. MARIS,* BELL, Before GEWIN Judges. Circuit Judge. MARIS, Circuit appeal This is an from an order en- tered District Court the North- District ern in a condemna- brought by tion suit the Government for property in connection with the establishment of the Buford Dam and Project Reservoir and for the compensa- ascertainment and award tion therefor. adjoining Two of land tracts border-
ing on the Chattahoochee River are in- appeal. tracts, volved in the One of containing acres, No. 1-933 45.20 other, J. owned H. Pinson and the No. containing acres, 1-945 80.80 Mrs. designation. Circuit, sitting by * Ofthe Third *2 excepted taking In the of each M. Pinson. case were from Vesta the and had tracts the declaration of of these two not been condemned. The court accord- Army taking by Secretary ingly directing entered an filed the order dis- the public deposit for estate taken use bursement of the funds on registry described the in its title, subject simple to ex- as “the fee the former of owners the isting public question, $2,000.00 roads and tracts in easements Pin- J. H. highways, public utilities, $3,500.00 railroads and son and to Mrs. M. Pin- Vesta 1 By pipe prior Government, being aggrieved certain deeds the son. lines.” Georgia Company became the this Power determination the district flowage grantee taking of easements or flood court that its had not included rights Georgia Company’s flowage I- the 20.66 acres of tract No. over Power easements, thereupon appeal 1-945. and 37.42 acres tract No. took the company That was named in the Gov- which is now before us. complaint possible ernment’s as a claim- question presented by The sole compensation ant it filed a claim for appeal this para is whether the clause proceedings. Subsequently in the the graph taking— 3 of the declaration of compensation payable for No. 1-933 tract “subject existing public jury $15,- determined to be highways, public utilities, roads and rail compensation 616.00 and the tract pipe excepted roads and from the lines”— by stipula- No. 1-945 was determined taking flowage the easements or flood $27,000.00. tion to be Of these awards Georgia Power $2,000.00 all but in the case of tract No. as the district held. more court Stated $3,500.00 1-933 of tract case precisely question the the whether No. 1-945 were disbursed to the owner * * * phrase “existing easements for claimants, being the latter sums held public flowage utilities” the includes ease registry the of the court to abide the Georgia Company. ments Power Georgia determination of the claim of the question law, one federal but Company. Power any since we have not been referred to claimants, Thereafter owner H. J. it, federal case which has decided we Pinson, Pinson and Mrs. M. Vesta moved applicable must turn for its solution to $5,500.00 the court to sum disburse the general principles Admittedly law.2 being registry thus held in the to them public is a instead of to the Power Com- utility flowage company and its ease pany, asserting (1) that the Power Com- existing ments were at the time of tak pany’s excepted easements were from the ing. Upon reasoning this district taking condemned, (2) and had not been 'court concluded that ease Company’s that the Power easements ments were included in the clause which compensable were com- excepted existing easements for pany had not shown that it had obtained taking. utilities from the We do not a federal license to erect dama on the think, however, that the solution of the River, (3) Chattahoochee question easily. can be at so arrived Company’s easements, if com- even pensable, actually construing were valueless. In the clause opposed by question motion was both the declaration of here intention the United Government. Upon declaration, gathered consideration author of the of the motion to be language district court held that from the entire declara surrounding ments of tion and the circumstances Paragraph simple title, subject 1. 3 of the declaration of highways, public states: for utilities, railroads lines.” “3. The estate taken for such 1-933; uses with to Tracts Nos.. Bumpus 10 Cir. 1-945; 1-958; and 0-1520 is fee ‘the Looking it, court, authority must considered.3 first at district the con- trary. language of the itself must For the clause we “public excepted utilities” is a held in that case from remember to be *3 meanings. taking phrase of It is true under a varied clause declaration taking commonly “existing corporations excepting public of it refers to util- engaged ity physical of (cid:127)or individuals in the business easements” all facilities generally namely, .supplying public public service, with com- devoted to the un- derground public telephone ducts, cables, or modities services which are of man- n consequence pub- appurtenances. and and need which the holes and right lic has But demand. provisions When we turn to the other phrase is also in a more re- often used taking ample of the declaration of find we physical fa- .stricted sense to denote the reading support phrase for this of cilities have been dedi- themselves which “public utilities.” In addition tracts cated owners to the of their service Nos. 1-933 and 1-945 various other public.4 We think in this dec- taking. tracts were involved in the taking phrase laration of was used Among I-958-E-3, these was tract No. physical this sense of facilities devoted subject paragraph 4 of the dec- public service rather than to de- pertinent part laration of which in corporations scribe or individuals en- reads as follows: gaged public in business as utilities. pub- “4. The estate for preposition phrase use of the “for” in the n “existing * * * lic uses with to Tract No. public easements for perpetual right, pow- I-958-E-3 is a utilities” indicates a reference to ease- er, privilege and easement occa- ments needed the construction and sionally overflow, flood and sub- maintenance of facilities rather than merge same, and to maintain belonging public utility mosquito control, may required be companies or held them. The rule operation in connection with the ejusdem generis points to result. maintenance the Buford Dam public In the context “easements * * * Project ; and Reservoir utilities, highways, public rail- roads and subject, however, to public roads and lines” utilities high- ments for physical facili- referred must be those ways, public utilities, railroads and lines, ties, lines, power such as water pipe lines.”
sewers, etc., which are similar in nature specifically to those enumerated. The perfectly It is obvious that the exist- flooding granted right of land a under ing easements for utilities which clearly category. to do so is paragraph the final 4 clause regard Telephone We do not New York being declaration of saves from Cir.1943, States, Co. v. United 2 136 taken cannot have been intended to in- flowage 87, rights. upon by F.2d clude flood was relied City Bumpus Portland, 14, 1963, 1924, 3. 112 Or. 10 Cir. 105, 589; Parking 264, 106, 325 228 F.2d 266. P. 35 A.L.R. City lots, Williamson, of Shawnee v. 4. Pulitzer Pub. Co. v. Federal Communica 1959, Okl., 355, 356-357; 338 P.2d Sew Commission, 1937, tions D.C.Cir. 68 U.S. ers, City, 1953, Chastain v. Oklahoma 208 App.D.C. 124, 251; City 249, 604, 635, 637; Okl. 258 P.2d Switch Co., El Oakland v. Dorado Terminal tracks, Stockdale v. Rio Grande Western 1940, Cal.App.2d 320, 1000, 41 106 P.2d Ry. Co., 201, 1904, 849, 28 Utah 77 P. 851; Telephone lines, Arkansas State Thus the courts follow have held the Highway Commission v. Southwestern ing Airports, to he utilities: Telephone Co., 1944, 1099, Bell 206 Ark. Keck, 1946, App. 549, Jones v. 79 Ohio 1002, 1005; 178 S.W.2d and Toll roads 644, 646; Bridges, City 74 N.E.2d Bridge bridges, Miami Co. v. Miami Pennsylvania Wilkes-Barre v. Public Util Ry. Co., 1943, ity 152 Fla. Commission, 1949, Pa.Super. 210, Beach So. 452, 457; Capen links, 63 A.2d Golf 2d projected we proceeding its dam with precise interests For are for the These are matters do not decide. itself the Government tract which taking would, upon remand. to determine district court paragraph. It by that the Govern- patently hold that absurd to judgment district court will taking by ment, domain eminent remanded cause be reversed land, at intended over easement proceedings with not inconsistent further prior preserve a time to the same opinion. this the same over another held easement Judge Certainly GEWIN, (dissenting): Dam Buford Circuit land. Project been not have could Reservoir logical persuasive opinion of *4 any operated on such and constructed says majority on all that can be said the rights flowage conflicting foundation of authority condemning in of the behalf as that. America; case, but of this United States enough, say my opinion and in it does not existing excepting the clause Since language into used cannot convert the taking is set which from easements the Accordingly, meaning I re- the desired. of paragraph declaration 3 of the out in spectfully dissent. taking in- respect tracts to the two with reaching majority exactly In conclusion the appeal the its is in volved “the intention excepting to language clause undertakes determine the same of the of the as author applicable United States to paragraph 4 which is of authority un- for such declaration.” As I-958-E-3, must have been tract No. both States, dertaking, Bumpus meaning, v. United so the intended to have * * * (10th is F.2d “existing Cir.1963) 325 easements far as ” * ** Bumpus concerned, cited. so construe We do not are utilities was the involved in that decision in- intended to been and could not have meaning “gravel” rights. of which was flowage the word or flood easements clude meaning general and held to of be a word in this conclu- fortified We are further opin- of not “a term art.” In the instant the the that entire sion fact ion, the used of art.” acquisition words are “terms directed toward the controlling Bumpus from The rule is property in connection needed for use follows: Buford the establishment of the with Project, project Dam and Reservoir language reser- “Since flooding necessarily involved which by representa- vation was written adjacent Chattahoochee of lands States, it was in- tives the United upon to be the dam was River States, upon cumbent very Surely require clear built. it would since it chose to take less than the language cir- hold under these to that estate, entire to describe estate flowage in- easements were cumstances to be with such exactness taken taking. excepted from the tended to be certainty that the landowner would included The fact that the Government him.” know what was reserved to claim- as a York The Circuit case of New Second complaint persuasive in itself ant is Telephone Company (2d that such was not the intention. directly Cir.1943) in F.2d language flowage point. used was There We conclude that ease existing utility “subject rights to and flood ments language used Here the Nos. and ments.” in tracts I-933 *** “subject in to I-945 the Government were taken rights dis- proceeding. I no utilities.” can see this Whether these quoted. compensable they phrases Con- and, so, tinction in the two if whether are taken, relatively trary position the Gov- now are because of their to valueless Telephone insignificant Case York of the ernment in the New extent or because in language activity excluded such contended that including rights acquiring necessary public utilities in all other fact, appropri physical equipment. of that it does seem rights engraft I-933 concluded, accepting to me on Tracts No. conten- ate respect language Government, and I-945 the used with tion rights to Tract No. I-958-E-3. obvious seems “It accordingly are different and physical equipment of the Tele- language All used must be different. from phone Company were excluded majority that is with [Emphasis add- the condemnation.” Para described ed.] graph apply equal 4 would with force pub- such the easements reason physical equipment such as transmission from declara- lic are excluded utilities lines. The Buford Dam and Reservoir everyone ex- is known tions Project could not have been constructed proceedings, perienced in condemnation operated (physical if either one forthrightly stated and such reason equipment easements) of such follows: brief as the Government’s conflicting rights remained existence. Unit- Power and “Both proceeding per- The result this is to only had contended ed States legal mit the United States obtain ad- *5 and for the transmission easements meaning language vice as to the of the facilities, the relocation distribution it has chosen use. It is to to obvious me nego- being were, usual, as of which parties that the real in interest are the exclud- tiated, to be intended were Georgia Pinsons, the Power [Emphasis added.] ed.” Company. and the New York Trust Nei- Georgia Company ther the Power nor the Damages compensation for the just or Company appealed. York New Trust has Power Com- of the easements negotiated. being “were, usual, pany Finally, agreement I am in substantial *»» * * such That is the reason reasoning with the of the Trial Court intend- were excluded—and ments were opinion, in its memorandum I which take not It is reasonable be excluded. toed liberty quoting: pub- for that certain easements to assert “This civil action was instituted negotiated being while lic utilities were by plaintiff purpose for the of ac- utility were of the other easements quiring certain interests in land for Further, being negotiated. it seems not proj- the Buford Dam and Reservoir im- an on that the Court me paragraph 5(a) ect. It is stated in deter- possible undertakes to task when it original complaint that: mine “the intention “ ‘The right estate taken said domain of eminent The States.” I-933, although uses with to Tracts right, Nos. powerful is a drastic and I-945, and O-1520 is admittedly neces- a and well established I- subject simple title, the fee to exist sary power not be should one. Such ing loosely and the titles exercised highways, public utilities, railroads “terms with exact should be described and lines.’ will know so the landowner art” held is taken what left what “J. H. Pinson filed an in answer Bumpus. in ownership which he asserted in fee simple of the land in the embraced language majority resorts designated tract as Tract 1-933 and Paragraph applicable Tract No. an an- Pinson filed Mrs. Vesta M. I-958-E-3, involved a tract not she asserted owner- swer in which litigation. here are tracts involved simple em- ship land in fee designated simply I-945. I-933 and designated as in tract braced No. “E” tract addition of letter 1-945. easements, obviously I-958 relates “The I-945 I-933 and in Tracts whereas Company, as simple Regardless York Trust the New is involved. fee title ing necessary compensa- Trustee, claims filed construction, to effectuate the for certain tion anticipated of its dam.’ Geor- which the flood and/or gia alleged it owned properly “This motion is now be- had and were in tracts. Trials fore Court for determination un- judgments entered were verdicts der Local Rule and Mrs. H. Pinson of J. favor appears questions, that the “It two fixing just com- M. Pinson Vesta presented for determination pensation interests taken for the motion are: 1-945, as to each Tracts 1-933 and flowage- “1. Whether not the tract, providing that final decrees easements claimed deposit- of the funds amounts stated were within ex- registry ed should retained ception contained in the condemna- ‘pending Court the deter- complaint. tion mination of the claim the “2. If such easements Company.’ exception, covered such whether February Mrs. “On valid, such easements are and if val- former M. Pinson as the owner Vesta id, they any compen- whether have 1-945 J. H. Pinson as Tract sable value. 1-933, the former of Tract owner ruling “Since the here on first they joint motion in filed question controlling, the second Court ‘disburse the move question is not reached is not deposit balance the funds now on here determined. them, instead of *6 proceeding “In the Georgia condemnation Claimants, the Power Com- by filed United States in this pany Company, Trust and New York case and in the Declaration of Tak- Trustee,’ grounds on that: ing subsequent filing filed to the original complaint “1. The ex- complaint, acquired interest ‘existing cepted proceeding, in the condemnation in- high- public roads and sofar as the tracts here involved are- ways, public utilities, rail- concerned, is described as follows: pipe lines’ and “The taken for estate that therefore these interests with uses to Tracts Nos. were not condemned. 1-933, 1-945, 1-958 and 0-1520 is Georgia claimant, “2. Because simple title, subject the fee to ex- Company, Power has not isting public roads, easements for shown it a obtained federal public highways, public utilities,, authorizing license it to con- railroads lines.’ struct a dam on the Chatta- ‘subject hoochee River and “The therefore words to’ as used in foregoing ‘said exception are not com- mean that pensable.’ easements of the Power were not con “3. Because if said easements Telephone demned. New York Co. compensable, were the ease- States, 88; 87, ments of the Atlanta Trust Co. v. Land Federal Company are valueless ‘be- Bank, 142, 195 148 Ga. S.E.2d [23 insignificant cause of 430]; Com. v. Co State Revenue amount of acres covered Co., Ga.App. lumbus Bank &c 50 the easements which it holds 463], 486 [178 S.E. proportion in in- the area volved’ and in- is “The activity corporation principal such claimant ‘in a whose busi- fifty years acquir- the last production, in ness is the transmission
765
electricity
16,572
Land,
and distribution of
v.
Acres of
D.C.S.D.
regularly
Tex.1942,
supplied
F.Supp.
45
23.’
‘public utility’
and it is
within the
approved
“The above was
in Unit-
meaning
foregoing exception.
Brondum,
ed States v.
[5 Cir.] 272
flowage easements,
valid,
if
Its
642,
F.2d
645-646.
‘existing’
at
time of the
“It is the contention of
Geor-
here.
gia
the words
Taking Act,
“The Declaration of
‘public utility’
used
easements as
in
1421, pro-
258(a),
46
U.S.C.
Stat.
exception
discussed,
here
re-
:
vides
public utility
ferred to those
“
Taking
‘Said
Declaration
subject
ments which have been the
or
shall contain
have annexed
negotiations the Government
*
**
thereto
“
e., right-of-way
A‘(3)
statement of the estate
i.
interest
in the lands taken
transmission
and distribution
lines,
use.’
and did not and
in-
were not
tended to include
easements.
“In
case of
United States v.
Causby,
page
at
U.S.
nothing
proceed-
“There
[66 S.Ct.
L.Ed. 1206]
ings here to indicate that such was
said:
the intention of the United States.
‘“ * * *
descrip-
But it is not the intention
an accurate
that con-
here,
trols
property
it is
tion of the
the interest
essential
actually
lands which was
since that
vests
interest
proceedings.
United States.’
may
“The interest taken
not be en
“Title vests in the United States
larged
nor diminished
the Court.
upon
filing
Declaration
v.
Cemetery
States
Sunset
Taking
only Congress may
divest
Co., supra; United States v. 6.74
title. United
Sunset
Land,
Acres of
[5 Cir.] 148 F.2d
Cemetery Co.,
163;
[7 Cir.] 132 F.2d
618, 619-620; United States v.
Burkhart v. United
[9 Cir.]
*7
Brondum, supra.
Judge
1206]; Fonalledas F.Supp. ,[123 483] Ct.Cl. of the Geor- the easements “Since gia con- were not demned, compensation no proceeding, can be awarded
n consequently Mrs. motion Pinson, Tract M. the owner Vesta Pinson, 1-945, H. No. and J. 1-933, No. of Tract
(cid:127)owner deposit now on -balance funds disbursed them in the Court be of the claimants the instead York and the New grant- Trustee,
'Trust ed and orders to disburse the balance n deposit funds now on
(cid:127)claimants, M. Pinson and Mrs. Vesta n J.H. Pinson, may prepared and presented. day May,
“This the 3rd “Boyd Sloan Judge”
“United States District
I judgment would affirm the
District Court. America,
UNITED STATES of Petitioner, IGOE,
The Honorable Michael L. Judge States District States District of the United *8 Northern Illinois, Respondent. District of America,
UNITED STATES Plaintiff-Appellant, COLAMATTEO, P.
Orlando Defendant- Appellee. Original,
Nos. 14412 Appeals States Court Seventh Circuit.
7,May