Bartleson v. United States

96 F.3d 1270, 96 Cal. Daily Op. Serv. 7154, 45 Fed. R. Serv. 785, 96 Daily Journal DAR 11742, 1996 U.S. App. LEXIS 24951, 1996 WL 539706
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 25, 1996
DocketNos. 95-15528, 95-15561
StatusPublished
Cited by34 cases

This text of 96 F.3d 1270 (Bartleson v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bartleson v. United States, 96 F.3d 1270, 96 Cal. Daily Op. Serv. 7154, 45 Fed. R. Serv. 785, 96 Daily Journal DAR 11742, 1996 U.S. App. LEXIS 24951, 1996 WL 539706 (9th Cir. 1996).

Opinion

WIGGINS, Circuit Judge:

Stuart A. Bartleson and Marie and Kenneth Palm (collectively “the Palms”), owners [1272]*1272of large ranches adjacent to Camp Roberts Military Reservation in southern Monterey County, California, filed a claim under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2674, against the United States seeking damages for, inter alia, nuisance, arising out of a number of artillery shells from Camp Roberts landing on their property. Relying on a theory of permanent nuisance, the district court awarded $60,000 to Bartleson for diminution in the value of his property, and $150,000 to the Palms for the same. Bartleson appeals, arguing that the district court clearly erred in determining that the diminution in the value of his property was only $60,000. The government cross appeals, arguing that the Palms and Bartleson should have recovered only under a theory of continuing nuisance, and that recovery under a permanent nuisance theory is barred by the two-year FTCA statute of limitations. We have jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

FACTS

With the exception of the amount and type of damages suffered by each landowner, the facts of this case are largely undisputed.

Camp Roberts, a 42,500-acre military installation, has been used by the United States Army and the California National Guard for military training exercises, including artillery fire, since 1941. Between 1971 and 1993, live fire exercises were conducted at Camp Roberts on an average of 200 times per year. During the 1970s, about 20,000 to 30,000 artillery rounds were fired per year. That rate continued throughout the early 1980s, until the number of artillery rounds fired at Camp Roberts increased to 60,000 per year in 1985-86. After 1986, the number of shells fired declined to approximately 40,-000 per year’. After an infantry division was moved from Camp Roberts to Fort Lewis, Washington in 1993, the artillery firing days dropped to approximately sixty per year.

Residents of the area around Camp Roberts are generally aware of the artillery firing at Camp Roberts because of the noise and vibrations caused by the activity. While there is a buffer zone between the Camp Roberts artillery range and private property, stray shells have occasionally landed on private property due to human error or a defective powder charge. The first recorded incident or incidents occurred in the late 1970s. The measures taken after such incidents in the late 1980s included raising the minimum firing angle, closing some firing points that were closest to Camp Roberts’ boundaries, and the restriction of certain types of artillery to certain firing points. The military cannot absolutely guarantee that future firing mishaps will never occur again at Camp Roberts.

In 1981, the Palms spent $275,000 to acquire a 490-aere ranch, bounded on the east by Camp Roberts, on which they lived and farmed. A neighbor testified that in the late 1970s, several flares fired from Camp Roberts landed on what later became the Palms’ property and one flare burned about twenty acres. In 1981 or 1982, artillery fire caused a fire that burned a portion of the Palms’ land, for which the Palms were compensated; the fire may have started on Camp Roberts. In July or August of 1985, two shells hit the Palms’ property. The Palms alleged numerous incidents of shelling between 1988 and 1990: nine shells landing on the property on June 14, 1988; two shells exploding on the property on April 29,1989, including one that was less than 200 yards from their residence; one round landing on the property in November 1989; one round landing in April 1990; and several projectiles landing on their properly on or about May 21, 1990. The Palms also alleged helicopter overflights and landings on their property on two dates in May and August 1990, overflights of high performance military aircraft during the summer and autumn of 1991, and the discovery of a practice bomb on the property in 1991. On September 7,1989, the Palms filed an administrative claim under the FTCA with the Army, which they deemed denied by operation of law after six months. The Palms filed their complaint for, inter alia, nuisance against the government on March 13, 1990. The property was sold at a foreclosure sale [1273]*1273on April 20,1994, to another individual.1

Bartleson owns, but does not live on, a 1,182-acre ranch that he purchased for $1,300,000 in June 1989. The ranch consists of 310 acres of irrigated alfalfa and 872 acres of grazing land. It has been improved with a trailer home, bams, fences, and corrals. Bartleson knew that Camp Roberts was adjacent to his property before he purchased it, but said he had no reason to believe that it might be subject to shelling. According to government witnesses, a shell had landed on the property in 1980 or 1982. In 1987, other incidents of shelling occurred, about which the resident managers complained to their United States Congressman. Additional shelling of the property was experienced or discovered on March 16, May 12, June 7, and September 22, 1988. Bartleson made an offer for the property on May 23, 1988, and took possession on June 29, 1988. Bartleson testified in his deposition that he learned from the resident managers of past shellings of the ranch on about June 1,1988, before he closed on his purchase of the property. Bar-tleson testified at trial, however, that he had erred in his deposition when he indicated that he was informed of the shelling before closing on the property. He did not ask the sellers about the shelling before the sale closed.

In addition to the September 22,1988 incident, during which eight illumination artillery canisters landed in an alfalfa field on the ranch, another camster landed in an alfalfa field on February 25,1989, and was retrieved by the Army. On June 14, 1989, a 203-millimeter shell landed on Camp Roberts property and skipped 3500 meters onto Bar-tleson’s ranch, landing in a freshly plowed field. An Army demolition team blew up the unexploded shell at the site, leaving a crater in the field. On June 27, 1989, a 105-millim-eter round hit Bartleson’s property. On October 4,1990, Bartleson submitted an Administrative claim to the Army under the FTCA, which he deemed denied as a matter of law after six months. He filed his complaint for, inter alia, nuisance against the United States on April 24,1991.

The two cases were consolidated in January 1992. On April 13, 1994, the district court ruled on the government’s motion to dismiss Plaintiffs’ claims for nuisance or, alternatively, for partial summary judgment. Relying on the plaintiffs’ power to elect whether a nuisance is treated as continuing or permanent, the fact that the shelling activities could not be enjoined, and the fact that the government could not guarantee that future incidents would not occur, the court determined that the plaintiffs could proceed under a permanent nuisance theory. In addition, the district court concluded that even though there was evidence of shelling on the two properties more than two years prior to the plaintiffs’ filing of their FTCA administrative claims with the Army, their “claims for permanent nuisance did not accrue until sometime in 1989 or 1990.

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96 F.3d 1270, 96 Cal. Daily Op. Serv. 7154, 45 Fed. R. Serv. 785, 96 Daily Journal DAR 11742, 1996 U.S. App. LEXIS 24951, 1996 WL 539706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bartleson-v-united-states-ca9-1996.