February 22, 1993
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-1181
ALBERT J. CADORETTE, ET AL.,
Plaintiffs, Appellees,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, U.S. District Judge]
Before
Breyer, Chief Judge, Campbell, Senior Circuit Judge, and Torruella, Circuit Judge.
Jacques B. Gelin, Attorney, Department of Justice, with whom Barry M. Hartman, Acting Assistant Attorney General, A. John Pappalardo, United States Attorney, George B. Henderson, II, Assistant United States Attorney, and David C. Shilton, Attorney, Department of Justice, were on brief for United States. John D. Hallisey for appellee Jean Stevenson Clark. Arthur C. Croce for appellees Roger Treat Jackson, Jr., Margery Jackson Chambers, Barbara Jackson Allgeier, and Betsey Jackson Patterson.
[NOTE FROM SYSTEMS: APPENDIX I is not available on the EDOS publication of this opinion.]
BREYER, Chief Judge. In 1972 the United States
bought eight acres of land in Truro, Massachusetts, to add
to the Cape Cod National Seashore. Unfortunately, the
seller, Elizabeth Freeman, owned only a small percentage
share of the eight acres that she purported to convey.
Elizabeth's long-lived great-grandfather, Edmund Freeman,
(whom we shall call "Edmund the Elder") had owned 100% of
the eight acres when he died in 1870, but, after his death,
the property descended, through inheritance, to many
different children, grandchildren, and great-grandchildren,
each of whom obtained title to various small percentage
interests.
In 1984, plaintiff Jean Stevenson Clark brought
this action against the Government to "quiet title" to what
she said was her percentage share in the property -- a share
she claimed to have obtained from the grandchild of one of
Elizabeth's aunts. 28 U.S.C. 2409a(a) ("The United States
may be named as a party defendant in a civil action under
this section to adjudicate a disputed title to real property
in which the United States claims an interest"). Five years
later four grandchildren of a different aunt intervened in
the lawsuit in order to assert similar claims of ownership.
Eventually, the district court entered a judgment that tried
to sort out precisely who owned what, and set the
compensation that plaintiff and intervenors must receive
should the Government decide to keep their interests in the
property. 28 U.S.C. 2409a(b) ("if the final determination
[of the plaintiff's 'quiet title' action] shall be adverse
to the United States, the United States nevertheless may
retain such possession or control of the real property or of
any part thereof as it may elect, upon payment [of just
compensation] to the person . . . entitled thereto"). The
Government now appeals this judgment, arguing primarily that
the district court did not properly interpret or apply the
Massachusetts law of descent and distribution.
After the United States took this appeal, it filed
a complaint in condemnation, pursuant to 40 U.S.C. 257,
against the same property. United States v. 8.0 Acres of
Land, No. 92-12663S (D. Mass. filed Nov. 5, 1992). When
that condemnation is completed, the Government will take
whatever interests in the eight acres it does not already
own. Because the basic question in a "quiet title" action
is "who owns the land," and because condemnation
definitively answers this question for the future (i.e.,
"the United States does"), we have had to consider whether
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(or the extent to which) the condemnation action has
"mooted" this "quiet title" proceeding.
We find that the district court correctly
allocated certain of the interests in dispute (those
inherited through ancestors named "Charles" and "Richard
Sr."), but that it improperly distributed certain other
interests (those derived from ancestors named "Betsey I" and
"Edmund II"). We also decide that the condemnation action
"moots" any further judicial efforts to allocate the "Betsey
I" and "Edmund II" shares in this "quiet title" proceeding.
Instead, the district court shall decide afresh who is
entitled to compensation for the "Betsey I" and "Edmund II"
shares in the context of the condemnation action now pending
before it.
I.
Background
With the help of a diagram (see Appendix I) and
the facts as revealed by the record on appeal, we shall
retrace the parties' contested claims and the district
court's determination of them. We begin with Elizabeth's
great-grandfather, Edmund "the Elder" Freeman, who was born
in 1780, and who died intestate in 1870. At Edmund the
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Elder's death each of his three surviving children, and his
grandchildren by a fourth child, received an undivided 25%
interest in the eight acres. We shall refer to these four
siblings as (1) "Charles," (2) "Betsey I," (3) "Edmund II,"
and (4) "Richard Sr." The youngest of these siblings,
Richard Sr. (Elizabeth's grandfather), died in 1886. He
left his 25% interest to his five surviving children,
Richard Jr. (Elizabeth's father) and her four aunts. Each
of these five thereby obtained an undivided 5% interest in
the property. When Richard Jr. died in 1940, he left his 5%
interest to his daughters Elizabeth and Catherine, 2.5% to
each. Catherine (wife of the famous Admiral Nimetz)
subsequently conveyed to Elizabeth her vested 2.5% interest
(and, the court found, any inchoate interests as well).
Thus, Elizabeth, at the time she purported to convey the
eight acres to the United States in 1972, undoubtedly owned
at least a 5% share. But did she own any more, and if so,
how much?
The "quiet title" action sought to answer this
question. To do so, the court had to decide: (1) What
happened to the remaining 20% of Richard Sr.'s 25% share?
(2) What happened to the other 75% interest in the land
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originally inherited by Richard Sr.'s three siblings --
Charles, Betsey I, and Edmund II -- 25% to each?
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A.
Richard Sr.'s 25% Share
The district court had considerable genealogical
information about the line of Richard Sr. As we have said,
Richard Sr. was survived by five children, namely, Richard
Jr. (Elizabeth's father), and Elizabeth's four aunts, whom
we shall call, "Betsey II," "Ellen," "Clara," and "Ada." As
we have also said, Elizabeth obtained her father's 5%. The
district court found that the remaining 20% (initially
belonging to the aunts) descended and devised through
various routes, some parts eventually coming to Elizabeth,
other parts ending up in the hands of plaintiff Jean
Stevenson Clark (who took her interest from Clara's
grandchild, Phoebe), and still other parts ending up in the
hands of the intervenors, who are Ada's grandchildren.
No one contests this division (which is reflected
in Appendix II) in this appeal. It is therefore final, and
we need not discuss these interests further.
B.
Charles' 25% Share
We turn next to the 25% interest ascribed to
Charles. Charles died in 1868, two years before the death
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of his father, Edmund the Elder, in 1870. Upon Edmund the
Elder's death, Charles' children inherited the 25% that
would have gone to Charles, had he outlived his father. See
Mass. Gen. L. ch. 190, 3(1) (When an intestate dies seized
of land, such land descends "[i]n equal shares to his
children and to the issue of any deceased child by right of
representation"). Charles' daughter Nancy inherited this
entire interest, as she was Charles' last surviving child,
and her siblings apparently died without issue. Nancy died
in 1931, without any surviving children. At that time
Richard Jr., who was Nancy's first cousin (and Elizabeth's
father), became the administrator of Nancy's estate. He
told the probate court that Nancy's next of kin were three
surviving first cousins, namely himself and two of his
sisters, Betsey II and Ada. He added that Nancy had several
living cousins in the next generation (i.e., in Elizabeth's
generation), namely, several of Edmund II's grandchildren.
The probate court subsequently distributed Nancy's estate
(including the 25% interest inherited through her father
Charles) equally to Nancy's living cousins in her own
generation, namely Richard Jr., Betsey II, and Ada. It thus
awarded each of them an additional 8.33% interest in the
property.
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The district court in this case accepted the 1931
judgment of the Massachusetts probate court as
determinative, and factored this information into the chain
of conveyances and devolutions. (See Appendix II). The
United States, through Elizabeth, received her father's
8.33% interest plus some of both Betsey II's and Ada's
shares. The intervenors received the rest of Ada's 8.33%
interest, as well as some of Betsey II's share. Jean
Stevenson Clark received the tiny remainder of Betsey II's
share. The United States, though not arguing the matter at
any length, seems to contest this division.
C.
The 25% Share of Betsey I and the 25% Share of Edmund II
The district court had very little information
about what happened to the lines of Edmund the Elder's other
two children, Betsey I and Edmund II, each of whom inherited
a 25% interest in the eight acres. It knew that Edmund II
was born in 18ll and that he had seven children. The court
also knew that Betsey I died in 1895, that she had ten
children, and that she was survived at her death by two of
her children and eleven grandchildren. Finally, it had the
1931 probate court record of Nancy's estate, which suggests
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that some of Edmund II's grandchildren (who were members of
Elizabeth's generation) were still alive in 1931.
The upshot is that the district court had evidence
of the existence of twelve or more grandchildren of Betsey I
and Edmund II, as of 1895 (eleven of Betsey I's
grandchildren) and 1931 (an undetermined number of Edmund
II's grandchildren). These individuals, like Elizabeth,
were great-grandchildren of Edmund the Elder. Their
descendants (if they exist) might be entitled to a 50% share
of the property. But, one of the intervenors told the
court, no one now knows anything about them.
Knowing no more than this, the district court
faced three main possibilities. First, Betsey I and Edmund
II might have descendants still alive. If so, then these
surviving descendants would own (subject to any further
transactions) their ancestors' 50% interest in the eight
acres.
Second, both lines may have died out, but only
after Elizabeth died in 1977. In that case, any descendants
of Edmund the Elder's two other heirs (namely, Charles and
Richard Sr.) still alive as of 1977 might have inherited
their interests (in the absence of such complicating
features as, say, wills). See Mass. Gen. L. ch. 190, 3(6)
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(when an intestate dies seized of land and "leaves no issue,
and no father, mother, brother or sister, and no issue of
any deceased brother or sister, then [his estate descends]
to his next of kin in equal degree"). According to the
district court's uncontested findings, the only descendants
of Charles or Richard Sr. to survive Elizabeth were her
sister Catherine and her aunt Ada's grandchildren, Richard
Sr.'s great-grandchildren, namely, the intervenors. (Since
Catherine had conveyed her inchoate interests in the
property to Elizabeth back in 1941, she was not eligible to
inherit, even though she outlived Elizabeth by two years.)
On this hypothesis, therefore, Betsey I and Edmund II's 50%
share would have devolved to the intervenors.
Third, Betsey I and Edmund II's lines may have
died out before Elizabeth's death in 1977. In that case, to
determine who obtained their interests (even if we assume no
wills) is yet more complex, for it would depend upon just
when they died and which members of their generation
(descended from Edmund the Elder) were alive at that time.
Mass. Gen. L. ch. 190, 3(6) ("if there are two or more
collateral kindred in equal degree claiming [entitlement to
intestate next of kin's land] through different ancestors,
those claiming through the nearest ancestor shall be
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preferred to those claiming through an ancestor more
remote").
The district court, choosing the second
possibility, concluded that the two lines died out after
Elizabeth's death in 1977. It then awarded the entire 50%
to the intervenors, dividing it equally among the four of
them. The Government's appeal focuses primarily upon this
determination, which, the Government contends, incorrectly
applies Massachusetts' law
of descent and distribution.
II.
The Legal Merits
As we have said, the United States contests the
way in which the district court allocated ownership of the
"Charles" line's 25% share, the "Betsey I" line's 25% share,
and the "Edmund II" line's 25% share. We do not understand
the basis for its claim of error in respect to the first of
these matters, a claim that it treats cursorily in its
brief. In 1931 a Massachusetts probate court decided that
this share belonged to Richard Sr.'s then-living children,
namely Richard Jr. (Elizabeth's father), Betsey II, and Ada.
It gave each of them one-third of the share. Ordinarily a
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federal court will (indeed, must) accept such final state
court awards as legally binding. See 28 U.S.C. 1738
("judicial proceedings . . . of any court of any State . . .
shall have the same full faith and credit in every court
within the United States . . . as they have by law or usage
in the courts of such State"). Cf. U.S. Const. art. IV, 1
("Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every
other State."). We are aware of no special reason here for
departing from this general rule. Consequently, we affirm
the district court's distribution of this 25% share.
We do not believe, however, that the district
court's awards of the other two 25% shares were legally
correct. To reach its conclusions the court had to find
(1) that all the descendants of Betsey I and Edmund II had
died out by 1984, but (2) that some such descendants were
alive as of Elizabeth's death in 1977. The court had before
it a record that reveals no significant effort by anyone to
search for, or to contact, by publication or otherwise, any
descendants of the Betsey I or Edmund II lines. (The court,
in fact, rejected the plaintiff's motion for the appointment
of a guardian ad litem to do precisely that.) Rather the
record contained only:
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(1) the facts previously mentioned (namely, that Edmund II had grandchildren alive in 1931 and that Betsey I had eleven grandchildren alive in 1895);
(2) testimony by one of the intervenors, an "amateur genealogist," that she had no knowledge of any issue of either Betsey I or Edmund II;
(3) testimony by a genealogist for the Government who had primarily investigated Richard Sr.'s line that he had not found evidence of any living descendants of Betsey I or Edmund II.
The district court reasoned from this evidence to its
conclusions in three steps, with the help of two
Massachusetts cases, Butrick v. Tilton, 155 Mass. 461, 29
N.E. 1088 (1892), and Loring v. Steineman, 42 Mass. 204
(1840).
First, Butrick involved plaintiffs who claimed
that they, rather than a tenant, had title to real property
that the tenant occupied. According to the district court,
Butrick held that, once the "demandants" prove "their
succession to the title," the burden then shifts to the
tenant to prove the "existence of other heirs whose title
would defeat or reduce the claims of the demandants." The
district court reasoned, by analogy, that once the
intervenors proved "their succession" to the Betsey I and
Edmund II interests, the burden then shifted to the United
States to show the "existence of other heirs," namely
descendants of those two lines.
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Second, the district court stated that Loring held
(1) that the presumption of continued life persists for no
more than seven years after a person is last heard from, at
which point a "presumption of death" arises, and (2) that
those claiming that a person presumed dead left either
spouse or children have the burden of proving it. The
district court apparently reasoned that since no one had
heard of any descendant of Betsey I since at least 1895, nor
of any descendant of Edmund II since at least 1931, that
these descendants (alive in 1895 and 1931) were "presumed to
have died out." The court also concluded that United States
had not proved the existence of any issue.
Third, the district court noted that there "is no
indication in the file that any attempt to locate the heirs
of Betsey [I] or Edmund [II] was made until this action was
filed [in 1984]." For this reason, the court concluded that
the two lines would be presumed to have died out as of the
1984 filing date, seven years after Elizabeth's death in
1977.
We do not believe that these cases warrant the
result now before us. For one thing, Butrick involved
plaintiffs who established their "succession" to title with
at least a little more evidence than was present in this
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case. The demandants there obtained title from their
ancestor, who had allegedly obtained title from relatives
(not the children) of a man named Jacob Ayer, who had died
in 1789. Jacob Ayer, in turn, inherited his interest from
his father. To establish their claim to at least some
ownership interest in the property, the plaintiffs had to
show that the relatives of Jacob Ayer had had title, which,
in turn, required them to show that Jacob Ayer had left no
issue. Butrick, 155 Mass. at 465. To establish the full
extent of Jacob Ayer's interest in the property, and hence
their own, the plaintiffs had to show that Jacob's brother
Joseph had died before Jacob died, and without issue. Id.
at 466.
To show the first of these matters, the plaintiffs
provided, as a witness, Mrs. Butrick, Jacob Ayer's step
great-granddaughter, whom the court held (given her
relationship and interests) competent to testify "as to
general repute . . . as to matters of pedigree." Id. Mrs.
Butrick testified that Jacob's second marriage (to her
great-grandmother) produced no issue and that she had never
heard of any issue from Jacob's first marriage. Id. at 465-
66. To show the second of these matters, the plaintiffs
submitted (1) the will of Jacob Ayer's father, which
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mentioned six children, including Jacob, but not his brother
Joseph, and (2) "evidence of the unsuccessful inquiry where
it was probable that information could be found if Joseph
had been living up to 1810," including an examination of
headstones and official records in the town where he was
born. Id. at 466-67.
The evidence as to the first of these matters
(Jacob's lack of issue) seems at least a little stronger
than the comparable evidence here. One can more reasonably
be expected to know (as in Butrick) whether one's (step)
great-grandfather had children than to know (as here)
whether one has third cousins who are still living, i.e.,
whether one's great-grandfather had brothers or sisters who
had children who had children who had children who are now
alive. The evidence of the second of these matters (i.e.,
the extinction of a collateral line with a rival claim) is
much stronger in Butrick than here, for it included a
serious search, the failure of which had obvious probative
value. The record in this case, by contrast, contains no
evidence of any significant effort to locate, or to provide
notice to, the descendants of Betsey I or Edmund II. Of
course, the Massachusetts courts decided Butrick nearly a
century ago. But in light of the technological improvements
-17- 17
which have made it easier to track down other individuals,
we believe Massachusetts courts would insist, if anything,
on greater efforts to locate missing owners, rather than
needlessly tolerate lesser efforts.
We are also uncertain about whether, or just how,
Loring applies here, say, to Edmund II's grandchildren.
Loring involved a man who departed from where he lived, went
off to sea, and who was never heard of again by his family
and those in his native town. Loring, 42 Mass. at 206.
Edmund II's grandchildren do not seem quite like the missing
sailor, however, for there is no reason to believe that
those with whom they lived never "heard of" them after 1931.
See Knapp v. Graham, 320 Mass. 50, 54 (1946) (rival heir
will not be presumed dead where no proof of actual death or
unexplained absence from domicil or established residence
for more than seven years). The only reason we have not
heard of them again, as far as the record reveals, is that
no one has attempted to look for them.
Regardless, we do not see how Loring (whether or
not taken together with Butrick) could justify the district
court's conclusion that the two lines died out after 1977.
If we accept, for the sake of argument, that Loring's "seven
year" presumption applies, then we would have to presume
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that Betsey I's grandchildren were no longer living seven
years after 1895, when, according to the record, their
existence was last documented. Similarly, we would have to
presume that Edmund II's grandchildren were no longer alive
seven years after 1931. Were that so (and assuming no
issue), the intervenors would not inherit the lost heirs'
entire interests, because others (including Richard Jr., the
father of Elizabeth, the Government's grantor) were alive in
1902 and/or 1938, and thus entitled to a share. The record
is totally silent as to whether Betsey I or Edmund II's
grandchildren produced issue. And, we do not understand
what rule of law would permit the court to presume both that
these grandchildren (and any issue they produced) still
existed in 1977 and that they died (without issue) shortly
after 1977.
For these reasons, we conclude that Massachusetts
law, as it applies to the facts before us, does not support
the district court's award of 50% of the locus (consisting
of Betsey I's 25% interest and Edmund II's 25% interest) to
the intervenors. We therefore must vacate the judgment
below insofar as it makes that award. We need not further
decide precisely how Massachusetts law ought to apply to the
-19- 19
existing record because, for reasons set out in Part III
below, the relevant facts may change.
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III.
Further Proceedings
As noted above, the United States has filed, while
this appeal was pending before this court, a complaint in
condemnation against the eight acres at issue here. After
oral argument on appeal, the United States asked us to
vacate the judgment below so that the district court, in the
condemnation action, can determine compensable ownership
interests on a clean slate. We see no basis for vacating
the judgment below, however, insofar as that decision makes
a final award of interests. The judgment below is obviously
"final" with respect to Richard Sr.'s 25% share, for no one
has appealed from that award. See Restatement (Second) of
Judgments, 13 cmt. e ("A judgment may be final in a res
judicata sense as to a part of an action [or a claim]
although the litigation continues as to the rest"). It is
also "final" with respect to Charles' 25% share, for,
although the United States has appealed that award, we have
found no legal reason to disturb it. See id. at 13 cmt. f
("a judgment otherwise final remains so despite the taking
of an appeal . . . . finality [not being] affected by the
fact that the taking of the appeal [may] prevent[] its
execution or enforcement"). And, we do not believe the
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United States should be able automatically to avoid a
district court's "quiet title" judgment with which it
disagrees simply by appealing it and filing a condemnation
petition in the interim. Here, it seems both fair and
potentially expeditious for the district court's "quiet
title" allocation of Charles's share to govern the
condemnation action's compensation decisions (as they will
in the case of Richard Sr.'s share). See id. at 27
(setting forth the basic principle of collateral estoppel).
Since we vacate the judgment below in respect to
the rest of the "quiet title" action, which concerns the
distribution of the Betsey I and Edmund II shares, there is
no final judgment in effect regarding those shares. And
because we find that condemnation will eliminate the
requisite controversy as to who owns the Betsey I and Edmund
II shares, we order the district court to dismiss the
complaint in respect to the vacated portions as "moot." The
district court should determine afresh whom to compensate
for those shares in the context of the separate condemnation
action. Because we have found authority from a sister
circuit that casts doubt upon our finding of partial
mootness, and because the plaintiff and intervenors oppose
vacatur, we shall explain our reasoning in some detail.
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At the outset, one must understand a few of the
technical differences between a "quiet title" action and a
"condemnation" proceeding. A condemnation action is brought
by the Government and proceeds in rem against the property
itself. See United States v. Carmack, 329 U.S. 230, 235 n.2
(1946). As an exercise of eminent domain, condemnation
"extinguishes all previous rights," Duckett & Co. v. United
States, 266 U.S. 149, 151 (1924), and gives the United
States title to the entire condemned property "good against
the world." Norman Lumber Co. v. United States, 223 F.2d
868, 870 (4th Cir.), cert. denied, 350 U.S. 902 (1955).
Condemnation secures better title, in fact, than may be
obtained through voluntary conveyance. See Carmack, 329
U.S. at 239. The title to the property vests in the United
States when the award of "just compensation" has been
ascertained and paid. See Albert Hanson Lumber Co. v.
United States, 261 U.S. 581, 587 (1923); United States v.
341.45 Acres of Land, 751 F.2d 924, 926 n.2 (8th Cir. 1984)
(where Government files a complaint in condemnation, title
passes when compensation award paid into district court).
Upon receipt of the award, the district court will
distribute it among those who owned the property at the time
of condemnation. See Fed. R. Civ. P. 71A(j).
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In an action under the Quiet Title Act, by
contrast, a private plaintiff names the United States "as a
party defendant . . . to adjudicate a disputed title to real
property in which the United States claims an interest . . .
." 28 U.S.C. 2409a(a). If the plaintiff prevails, he can
recover the land wrongly held by the United States. The
Quiet Title Act also permits the Government to retain
property it does not own, but only after a court has reached
a "final determination" in the title dispute "adverse to the
United States." Id. at 2409a(b). At that point, the
United States can elect to keep the prevailing plaintiff's
interest in the land by paying him "just compensation" for
it. Id. Yet even if the United States acquires the
plaintiff's interest, it will nonetheless be potentially
liable to third parties not joined in the action, who may
have better title than either the plaintiff or the
Government. See, e.g., Younce v. United States, 661 F. Supp
482, 487-88 (W.D.N.C. 1987) (judgment for Government in
2409a lawsuit means that United States holds title superior
to plaintiffs, but not necessarily good title as against the
world), aff'd, 856 F.2d 188 (4th Cir. 1988); Oneida Indian
Nation v. New York, 732 F.2d 261, 265 (2nd. Cir. 1984)
("Ordinarily a judgment in a[] . . . quiet title action will
-24- 24
not affect the interests of others than the parties or those
in privity with them."). This is because a "quiet title"
action is, generally speaking, an in personam proceeding,
see Nevada v. United States, 463 U.S. 110, 143-44 (1983),
the purpose of which is to determine which named party has
superior claim to a certain piece of property. See 74 C.J.S.
Quieting Title 1, at 11 (1951). But see id. 7, at 18 &
Supp. 1992 (scattered authority for proposition that "quiet
title" action can operate in rem or quasi in rem).
Keeping these descriptions of the two actions in
mind, one can understand our conclusion that the
condemnation proceeding has "mooted" what remains of the
"quiet title" controversy (i.e., that portion of the "quiet
title" controversy for which no final judgment is in
effect). The Quiet Title Act authorizes only actions that
require courts "to adjudicate a disputed title to real
property in which the United States claims an interest . .
. ." 28 U.S.C. 2409a(a) (emphasis added). The words of
the statute, taken literally, permit adjudications only when
the title or ownership of real property is in doubt. Cf.
Ginsberg v. United States, 707 F.2d 91, 93 (4th Cir. 1983)
(landlord cannot maintain 2409a "quiet title" action
against United States in dispute over Government's alleged
-25- 25
breach of contractual obligations as tenant under lease,
since dispute does not cast doubt on the title or ownership
of the property). The initial inquiry in any such action
must therefore be, "Who holds superior title to the property
-- the plaintiff or the United States?" Only if the courts
finally resolve the title dispute in a manner "adverse to
the United States" (i.e., the plaintiff holds superior
title) will they reach a second question, "Does the United
States wish to keep the plaintiff's property interest,
regardless, by paying just compensation for it?" Once the
property has been condemned, however, the "quiet title"
court cannot make a "final determination" as to title that
is "adverse to the United States." The condemnation gives
the United States indefeasible title. Hence, the "quiet
title" action's first question -- "Who has superior title?"
-- is preclusively determined in the United States' favor.
The upshot is that the filing of the condemnation
action has eliminated the prerequisite for a "quiet title"
action -- a "disputed title" -- and thereby "mooted" its
threshold inquiry, "Who owns title?" For this reason, the
unresolved portion of this "quiet title" action cannot
continue.
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Strong practical considerations support our
technical reading. A condemnation action seems to provide a
more effective way than a "quiet title" action to deliver
just compensation to those private persons entitled to
receive it. "Quiet title" procedures do not automatically
provide for the notification of persons not party to the
action (e.g., the "lost" descendants of Betsey I and Edmund
II) who may have title superior to both plaintiffs and the
Government. Thus, the true owners may not receive
compensation, and a court, wrongly believing that they do
not exist, may order the Government to pay the plaintiffs
full compensation, thereby exposing the Government to double
liability should the true owners eventually surface and sue.
The procedures for condemnation, by contrast,
expressly require the Government to take steps to search for
"lost" heirs. See Fed. R. Civ. P. 71A(c)(2) ("prior to any
hearing involving the compensation to be paid for a piece of
[condemned] property, the [condemnor] shall add as
defendants all persons having . . . an interest in the
property whose names can be ascertained by a reasonably
diligent search of the records, . . . and also those whose
names have otherwise been learned."). As a result, these
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procedures tend to compensate those entitled to compensation
and to protect the Government from double liability. They
also make it less likely that the Government will obtain a
windfall, for example, by physically occupying land it does
not own, and whose unknown owners never bring a "quiet
title" action to obtain payment; the Government must pay the
entire value of the condemned property into court, whether
or not it has ascertained who owns it. See United States v.
3276.21 Acres of Land, 194 F. Supp. 297, 300 (S.D. Cal.
1961) ("Any contest between persons claiming an interest in
the award is heard . . . only after the award for all the
interests in the land has been made"). And, the court
apparently retains a degree of freedom to divide this
compensation (and to condition its distribution) in a manner
that seems fair, in light of the possibility that "lost"
heirs may eventually appear. See, e.g., United States v.
550.6 Acres of Land, etc, 68 F. Supp. 151, 154 (D. Ga.)
("where neither claimant shows right or title to [the
condemnation award], the money should remain subject to the
control of the court for disbursement to the proper
claimant, when and if he should appear"), aff'd sub nom.
Shropshire v Hicks, 157 F.2d 767 (5th Cir. 1946). Indeed,
courts have held that, where a "true owner" appears after
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the condemnation award has been distributed, this "true
owner" may obtain a proper share from those persons who
wrongly received such award. See In re Block bounded by
Chauncey St., etc., 209 N.Y. 127, 102 N.E. 638, 640 (1913)
(uncompensated true owner of condemned land can bring an
action for money had and received against person to whom
condemnation award erroneously paid); Palo v. Rogers, 116
Conn. 601, 165 A. 803, 805 (1933) (where city erroneously
paid landowner rather than mortgagees for land taken,
mortgagees had good cause of action to recover such amount
from landowner).
These practical considerations seem particularly
important in this case, since the more thorough
investigation that the condemnation action promises will
likely permit an easier resolution of the issues of
Massachusetts law.
We have found, however, authority from the Fourth
Circuit, Fulcher v. United States, 632 F.2d 278 (4th Cir.
1980) (en banc), followed by the Eighth Circuit, United
States v. Herring, 750 F.2d 669, 672 (8th Cir. 1984), that
casts doubt upon our "mootness" conclusion. In Fulcher, a
plaintiff brought a 2409a action in 1977 to "quiet title"
to property which the Government had condemned eighteen
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years earlier, in 1959, without properly notifying him. A
majority of the Fourth Circuit, sitting en banc, held that
the 1959 condemnation vested indefeasible title in the
Government. Fulcher, 632 F.2d at 284 (plurality); id. at
294 (Hall, concurring in part and dissenting in party); id.
at 295 (Murnaghan, dissenting). Yet a majority also held
that the plaintiff could nonetheless maintain a 2409a
"quiet title" action in order to obtain just compensation
for the Government's appropriation of his property. Id. at
285 (plurality); id. at 286 (Phillips, concurring). The
Circuit reached this result even though the plaintiff could
have sought compensation in the Court of Claims (now known
as the United States Claims Court) by bringing a takings
claim under the Tucker Act. 28 U.S.C. 1491 ("The United
States Claims Courts shall have jurisdiction to render
judgment upon any claim against the United States founded .
. . upon the Constitution"). See Fulcher, 632 F.2d at 295
(Murnaghan dissenting) (arguing that Court of Claims was the
appropriate forum for plaintiff's claim). Fulcher's
holding, applied to the present case, suggests that the
Government's condemnation of the eight acres at issue here
does not "moot" the intervenors' remaining "quiet title"
claims, or prevent the parties from adjudicating
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compensation in the context of the "quiet title" action.
One might well ask, if Fulcher's plaintiff could bring a
post-condemnation "quiet title" action seeking only
compensation, how can we say that the condemnation action
"moots" further (compensation-seeking) proceedings in the
"quiet title" action before us?
We could answer that question by pointing to
differences between this case and Fulcher. The Fulcher
plurality, for example, focused primarily on whether a
plaintiff could sue for compensation in a highly convenient,
local "quiet title" forum, or would, instead, have to sue
for compensation (under the Tucker Act) in the less
convenient Court of Claims. Fulcher, 632 F.2d at 282, 285-
86 (plurality). Here, by contrast, the plaintiffs can
obtain compensation in the local district court even without
the Quiet Title Act, and other practical considerations
argue strongly in favor of ending the "quiet title" action
and proceeding henceforth in condemnation.
The Fulcher plurality also developed a theory that
the plaintiff (not properly notified in the earlier
condemnation action) had a kind of "equitable lien"
enforceable in a later "quiet title" action. Id. at 284-85
(plurality). That theory is not applicable here, as the
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named plaintiffs have all been notified about the
condemnation complaint.
Rather than distinguish Fulcher on grounds that
may further complicate this complex area of law, however, we
believe it more straightforward to say that we disagree with
its reasoning. At bottom, the Fulcher plurality interpreted
the "quiet title" statute as allowing the post-condemnation
suit because (1) of policy grounds favoring adjudicating
property-related disputes in nearby courts, and (2) its
inability to find strong reasons against such an
interpretation. Indeed, it wrote that it "perceive[d]
neither congressional intent nor principled reason for
distinguishing" between "takings" effected without formal
condemnation proceedings (which, if made without proper
compensation, can give rise to "quiet title" actions by the
uncompensated owners for payment) and "takings" arising out
of formal condemnation proceedings (which, if made without
proper compensation, can give rise to Court of Claims
proceedings for payment). Id. at 284 (plurality).
We do see a crucial distinction, however, between
bringing a "quiet title" action where title is still in
dispute and bringing a "quiet title" action after the
Government has indisputably obtained title through
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condemnation. This distinction, as we have said, lies in
the theory of the "quiet title" suit as an action to
adjudicate disputed title, and in the language of the
federal "quiet title" statute itself. That statute
provides that the Government may retain real property (by
paying just compensation) only "if the final determination
[of the underlying 'quiet title' action] shall be adverse to
the United States . . . ." 28 U.S.C. 2409a(b) (emphasis
added). Where the United States has indisputably obtained
title, it is difficult to see how this condition could be
fulfilled. So even though, as the Fulcher plurality stated,
the legislative history of the Quiet Title Act "is
inconclusive about claims of omitted owners arising out of
formal condemnation proceedings," Fulcher, 632 F.2d at 284
(plurality), the language of the statute, and its underlying
logic, are not.
A second consideration that threatens our
conclusion of "mootness" lies in the fact that the
Government has not yet paid an amount deemed to be "just
compensation" into court. As the case law makes clear,
title shifts upon payment of this amount, not before. See
Albert Hanson Lumber Co., 261 U.S. at 587; 341.45 Acres of
Land, 751 F.2d at 926 n.2. The Government has told us,
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however, that it intends to proceed with the condemnation
action. We surmise that it has held up actual payment
pending our decision in this appeal. We shall therefore
eliminate this "chicken and egg" problem by conditioning our
judgment, insofar as it orders the remanded "quiet title"
action to be dismissed, upon the Government's payment of the
condemnation award into the district court.
IV.
The Judgment
1. The 25% share of Richard Sr. As we previously
pointed out, no one has appealed the district court's
judgment allocating the 25% undivided interest that
originally belonged to Elizabeth's grandfather, Richard Sr.
We therefore affirm the judgment below in respect to that
share, and direct the district court to order the Government
to compensate the parties according to its original
determination.
2. The 25% Share of Charles. We also affirm the
district court's distribution of the 25% share originally
inherited through Charles. This distribution, as we have
said, simply implemented the Massachusetts probate court's
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1931 decision allocating this share, a decision whose
validity has not been challenged.
3. The 25% Shares of Betsey I and Edmund II,
Respectively. For the reasons stated above, we vacate the
district court's distribution of the 50% interest initially
belonging to Betsey I and Edmund II, and order the district
court to dismiss what remains of the original "quiet title"
action as "moot" when the Government pays the award into
court in the condemnation proceeding. The parties must
relitigate their claims to entitlement to compensation for
these shares in the condemnation proceeding, in light of any
new evidence revealed therein.
So Ordered.
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APPENDIX I is not available on the EDOS publication of
opinion 92-1181.
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APPENDIX II
The district court awarded the Richard Sr. and Charles shares, comprising one
one-half of the title to the property, as follows:
The United States 27.24%
Jean Stevenson Clark 3.17%
The Intervenors:
Barbara Jackson 12.39%
The three children of
Roger Jackson
(Roger Jr., Margery, &
Betsey III) 7.23%
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