Lombard v. United States

• Court: Court of Appeals for the First Circuit
• Decided: October 26, 1999
• Docket: 99-1108
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1108



             EDWARD E. LOMBARD, ASA P. LOMBARD, III,

           EDITH LOMBARD CASSICK, RUTH LOMBARD GOURLEY,

          FLORENCE LOMBARD BROWN, BARBARA LOMBARD BANUK,

        SUSAN LOMBARD BLACK, ALTON HORTE, BARBARA BAINES,

               VIRGINIA H. HART, CARLETON G. SMITH,



                     Plaintiffs, Appellants,



          ROBERT D. LOMBARD, FRANKLAND W.L. MILES, JR.,

             JOHN GROTHER MILES, TAGALIE L. LOMBARD,



                           Appellants,



                                v.



                    UNITED STATES OF AMERICA,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



            [Hon. Patti B. Saris, U.S. District Judge]


Before



                      Boudin, Circuit Judge

                 Bownes, Senior Circuit Judge,

                   and Stahl, Circuit Judge.


John D. Hallisey for appellants Edward E. Lombard, et al.

     David S. Mackey, Assistant United States Attorney, with whom

Donald K. Stern, United States Attorney, was on brief for the

United States.


October 26, 1999


BOUDIN, Circuit Judge.  This appeal arises out of a title

dispute between a family and the United States over an 8.6 acre

parcel, known as the Lombard lot, containing within it a family

cemetery and located in the Bound Brook Island area of Wellfleet,

Cape Cod, Massachusetts.  The lot was once owned by Thomas Lombard,

who died in 1873, leaving it to his five children as tenants in

common.  Then, in 1924, two of the children conveyed their

interests to one George Higgins, possibly saying that they owned

the entire parcel.  In all events, George Higgins thereafter

claimed ownership of the entire parcel and not just of the 40

percent that the two children had actually owned.

  In 1935, Higgins petitioned the Massachusetts Land Court

to register and confirm his sole title to nearly 150 acres of land

in the Bound Brook Island area, including the 8.6 acre Lombard lot. 

One of Thomas Lombard's grandsons appeared in the suit, claiming an

interest, and at Higgins's request, the suit so far as it pertained

to the Lombard lot was severed from the rest. The court then

confirmed Higgins's title to the other land, but the severed case

involving the Lombard lot remained dormant until 1958, when it was

ordered dismissed without prejudice; through apparent error, the

dismissal order was not properly docketed and, in 1976, the land

court sua sponte docketed an order dismissing the severed case for

lack of prosecution.

  In the meantime, in the 1960s the United States

established the Cape Cod National Seashore by acquiring large

amounts of land in Wellfleet and neighboring communities.  In 1962,

Higgins agreed to sell the Lombard lot to the United States--all of

it, not just a 40 percent interest--and the deed was recorded in

the Barnstable County Registry of Deeds on December 31, 1962.

However, the government was aware of potential claims by Lombard

descendants--the title search report incident to the sale so

indicated--and by agreement with Higgins, it withheld the purchase

price for the Lombard lot (apparently $13,500) so that Higgins

could clear up the defect.

  This Higgins sought to do by a quiet title action,

brought in October 1963 in the Barnstable County Superior Court,

naming as defendants among others the heirs of Thomas Lombard. 

Service was made by publication, and a deputy sheriff certified

that despite a diligent search he had found none of the heirs

within his precinct.  A guardian ad litem, appointed to represent

the heirs, supported Higgins's assertion that he had acquired full

title by a combination of adverse possession and the deed from two

of Thomas Lombard's children.  In August 1964, the court confirmed

Higgins's title, subject to the Lombard family's ownership of the

cemetery and an easement to visit it.

  In April 1997, eight descendants of Thomas Lombard

brought the present lawsuit against the United States in the

federal district court in Massachusetts under the partition

statute, 28 U.S.C.  2409.  The plaintiffs, claiming through two of

the three children of Thomas Lombard who had not conveyed their

interests to Higgins, asserted that the Lombard descendants still

owned 60 percent of the Lombard lot as tenants in common with the

United States, and sought to partition their interest.  The

government, in addition to asserting title based on the 1964

decree, argued that the partition statute did not extend to suits

in which title was disputed.

  Discovery ensued as to what various Lombard descendants

knew at different times about title to the Lombard lot and related

matters.  The United States then moved for dismissal or summary

judgment, and the plaintiffs countered with a motion for summary

judgment to recognize their title and later a motion to amend the

complaint to assert a claim under the Quiet Title Act, 28 U.S.C. 

2409a; this is a later-enacted companion to the partition statute

that permits a quiet title action against the United States,

provided it is brought within twelve years of the date that "the

plaintiff or his predecessor in interest knew or should have known

of the claim of the United States."  Id.  2409a(g).

  In November 1998, the district court granted the

government's motion for summary judgment as to the partition

statute claim, denied the plaintiffs' motion for summary judgment

as to title, denied as futile the plaintiffs' motion for leave to

amend, and entered final judgment for the United States.  Lombard

v. United States, 28 F. Supp. 2d 44, 50 (D. Mass. 1998).  The court

ruled that the partition statute authorized division only of

undisputed interests in common and did not permit the court to

resolve title disputes.  As for the plaintiffs' motion to amend to

assert a quiet title claim under the Quiet Title Act, the court

held that the amendment would be futile because the claims of the

plaintiffs, and several additional heirs who had intervened, were

barred by the twelve-year statute of limitations governing section

2409a.  This appeal followed.

  Two circuits have held, consistent with the district

court's view, that  the partition statute does not allow claims by

a citizen whose title is disputed.  See Stubbs v. United States,

620 F.2d 775, 782 (10th Cir. 1980); Rambo v. United States, 145

F.2d 670, 671 (5th Cir. 1944), cert. denied, 324 U.S. 848 (1945). 

Rambo, the only decision that offers much analysis, 145 F.2d at

671, reasoned that, historically, partition actions did not resolve

title disputes; that waivers of sovereign immunity are strictly

construed; and that (as of 1944) the United States had not

consented to suits against it to resolve title disputes as to

property it purported to own.  145 F.2d at 671.  

  Of course, the last of these concerns was eliminated in

1972 when Congress adopted the Quiet Title Act, explicitly

authorizing quiet title actions against the United States and

thereby waiving sovereign immunity as to such claims.  See Act of

Oct. 25, 1972, Pub. L. No. 92-562,  3(a), 86 Stat. 1176 (codified

as amended at 28 U.S.C.  2409a).  Conversely, even if we were to

read the partition statute now to embrace cases of disputed title,

we could hardly ignore the explicit twelve-year statute of

limitations on quiet title disputes.  See 28 U.S.C.  2409a(g). 

The rationale for limiting the partition statute to undisputed

titles may have vanished in 1972, but any effort to read the two

statutes in light of each other works both ways:  if the partition

statute allows the court to resolve incidental title disputes (a

point we need not decide), it is so only if the suit is brought

within the twelve year limitations period.

  This brings us to the statute of limitations issue. 

Formally, the district court merely denied the plaintiffs' motion

to amend, which the government claims is a step reviewed solely for

"abuse of discretion."  This would be so if the district court had

said that the amendment came too late based on concerns about case

management.  See Credit Francais Int'l v. Bio-Vita, 78 F.3d 698,

704 n.9 (1st Cir. 1996).  But as we read the district court's

decision, it rests squarely on a finding that the amendment would

be futile because the plaintiffs' quiet title claim is barred by

the statute of limitations, a finding that it supports with a

detailed discussion of the facts.

  If the same Lombard plaintiffs now brought a new action

under the quiet title statute, the United States would assert that

the district court's finding was res judicata on the limitations

issue.  Thus, we treat the district court decision just as if the

district court had granted the motion to amend and then dismissed

the new claim on the ground that the statute of limitations had

run.  See Jones v. New York State Division of Military and Naval

Affairs, 166 F.3d 45, 49 (2d Cir. 1999); Fisher v. Roberts, 125

F.3d 974, 977 (6th Cir. 1997).  Ordinarily, a grant of summary

dismissal invites de novo review on appeal.  See Cadle Co. v.

Hayes, 116 F.3d 957, 960 (1st Cir. 1997).

  The district court ruled that the Lombard heirs had

enough information to alert them over twelve years ago to the

government's adverse claim to the Lombard lot and--this is a

somewhat different point--that many of the plaintiffs acknowledged

by their admissions and actions that they thought that they had no

interest in the property.  Specifically, the district court found

the following as to some, or all, of the plaintiffs:

      That "most of the plaintiffs have

  believed for decades  that David Lombard had

  stolen [the Lombard lot] . . . and sold it to

  Higgins" and "[i]n light of the widespread

  family knowledge of the sale [to Higgins] over

  such a long period of time, they could easily

  have learned the status of the property by

  making inquiry";



      That some of the plaintiffs recalled

  learning of the Cape Cod National Seashore in

  the 1960s, and that "most knew that the United

  States had acquired the Brook Bound (sic)

  Island property for that purpose [the Cape Cod

  National Seashore]"; and 



      That the plaintiffs did not pay

  property taxes on the land surrounding the

  cemetery, did not maintain that land, did not

  occupy it and did not assert ownership to the

  National Park Service or the Town of

  Wellfleet, but at most "occasionally visited

  the family cemetery, picked blueberries, and

  had picnics on the adjacent property."

Lombard, 28 F. Supp.2d at 49.

  The district court's finding that as early as the 1960s,

"most [of the plaintiffs] knew that the United States had acquired

the Brook Bound (sic) Island property for that purpose," could be

taken as a reference to the Lombard lot itself.  If so read and

adequately supported in the record, this would resolve this case in

favor of the United States:  it would mean that such plaintiffs had

actual knowledge of the government's claim to the Lombard lot as

far back as the 1960s.  Yet we cannot find any unambiguous record

evidence that any of the plaintiffs knew prior to this suit that

the government had acquired the Lombard lot or any interest in it.

  Ample evidence in the record shows that some plaintiffs

knew that the government was purchasing property on Cape Cod for

the purpose of creating the National Seashore.  There is even some

indication that individual plaintiffs had sold other property to

the government for this purpose, although it is unclear whether

this property was in the Bound Brook Island area.  In all

likelihood, the district court's quoted finding meant only that the

plaintiffs knew that the government was buying property for the

National Seashore in Wellfleet, including property in the Bound

Brook Island area.

  Of course, the statute of limitations does not require

actual knowledge of the government's claim.  If other facts known

twelve or more years before this action was brought would have

prompted a reasonable landowner to make further inquiries, which in

turn would have led to knowledge of the government's claim, then

the statute bars the owner because he "should have known" of the

government's claim.  And had the plaintiffs' suspicions been

aroused, the government's claim would have been easy to discover,

either by asking national seashore officials or looking at the

title records at the Barnstable registry.

  But what events fairly charged the plaintiffs with

reasonable suspicions requiring further inquiry?  Merely to say

that the government was buying land somewhere in Wellfleet or the

Bound Brook Island area for its national park is hardly enough, and

there is little to show the location of government land purchases

known to individual plaintiffs.  About the most one can say is that

this background knowledge of purchases in the area might have added

to suspicions of a government claim to the Lombard lot if there

were other, more specific indications suggesting that the

government was claiming ownership of the Lombard lot.  

  Elsewhere in the opinion the district court noted that

the government had erected a locked gate somewhere on the road to

the family cemetery, see Lombard, 28 F. Supp.2d at 49-50, and there

is also an indication in the record that at some point trees grew

up around the road making it difficult for cars to pass.  At least

some of the plaintiffs knew that the gate was under the

government's control; one of the plaintiffs had complained and the

government had provided a key to the gate, although it did not

remove the barrier.  We agree that, if the government puts a gate

at the entrance to your property, this is ordinarily sufficient

notice to warrant inquiry.  Cf. Park County, Montana, 626 F.2d at

721 n.6; Grosz, 556 F.2d at 975; Howell, 519 F. Supp. at 304-06.

  The plaintiffs argue that any knowledge that the

government was exercising some proprietorship over the Lombard lot

would have been consistent with a belief that the government owned

40 percent and would not suggest that the government was claiming

ownership of the 60 percent interest now claimed by the Lombard

heirs.  Perhaps so if the plaintiffs knew that a 40 percent

ownership interest had been claimed by Higgins and that the

government had been dealing with him to acquire his interest.  But

none of the plaintiffs claim to have known anything about the sale

by Higgins to the government of his Lombard lot interest.

  The more serious problem with the gate argument is that

nothing in the testimony or crude maps in the record indicates to

us precisely where the gate was placed in relation to the property

line of the Lombard lot.  For example, if the gate was just at the

property line of the Lombard lot, this might support an inference

that the government was claiming ownership of the lot.  But if the

gate were on a portion of the road leading to the Lombard lot but

not yet actually within the lot, it might have been put there

simply to limit access to other government property through which

the road ran before reaching the Lombard lot.  In that event, it

would not necessarily suggest that the government was claiming

ownership of the lot itself, and providing a key to the gate would

be consistent with recognizing an easement over the road to reach

the Lombard lot, cf. Schultz v. Department of Army, 886 F.2d 1157,

1159-61 & n.2 (9th Cir. 1989).

  It is worth adding that the district court's opinion did

not rely at all on the gate in giving its reasons why the claim was

barred.  The gate was mentioned only briefly in setting out the

facts.  See Lombard, 28 F. Supp.2d at 49-50.  The government refers

to it merely as part of a bouillabaisse description of all of the

possible facts that it thinks in any way support an inference of

knowledge or suspicion.  Only with more detailed and specific

findings by the district court could the gate help to show that the

plaintiffs "should have known" of a government claim to own the

Lombard lot.

  The district court pointed to two other sets of facts:

that a number of plaintiffs thought that the Lombard lot had been

stolen by Higgins long ago and that the heirs did not pay property

taxes, maintain the lot, live there, assert ownership, or visit it

except occasionally.  See Lombard, 28 F. Supp.2d at 49.  There is

not much information about taxation rates and enforcement but, this

aside, we agree with the district court that these facts support an

inference that for some years the plaintiffs might well have

thought that they had no claim at all to the Lombard lot.  Rising

property prices, it may be supposed, have now prompted a closer

look.

  If we were concerned with laches or other equitable

limitations, all this might be grist for the mill.  But the statute

of limitations in this case is triggered only if the plaintiffs

knew or should have known of the government's claim, compare United

States v. Beggerly, 118 S. Ct. 1862, 1868 (1998); that for other

reasons they may have doubted their own title is beside the point

unless this fact fits into a set of inferences suggesting that they

believed or should have believed that the government claimed title. 

This might well be the case if they had known of Higgins's sale to

the government, but the record is at best uncertain on this point.

  One might ask why it matters whether the plaintiffs knew

of the government's claim or merely lacked faith in their own.  The

answer is that an owner does not normally forfeit his ownership of

real property through ignorance of his title, unless adverse

possession is established (and that requires a showing of notorious

possession and often for more than twelve years).  See, e.g., Eno

& Hovey, 28 Massachusetts Practice  27.1, at 560-62 (3d ed. 1995). 

In waiving sovereign immunity to quiet title actions against it,

the government established a special limitations period favorable

to itself, but only where the property ownership knew or should

have known that the government claimed ownership (and then failed

to dispute it within the period).

  Thus far, we have treated the plaintiffs as a group and

made reference to the district court's findings of what "most" or

"many" of the plaintiffs knew.  Strictly speaking, the Quiet Title

Act, subject to certain qualifications, requires that each

plaintiff's claim be assessed individually, meaning that some may

lose their claims while others may not, depending on individual

knowledge.  See, e.g., Klugh v. United States, 818 F.2d 294, 299

(4th Cir. 1987).  The district court made some effort to

distinguish among groups of heirs based on their level of

knowledge.

  If the parties did not object to composite plaintiffs or

treatment of them collectively by group, this might be a reasonable

approach for litigation, adopted by implicit agreement.  Here,

claimed shares of individual plaintiffs are rather minute (they

appear in this case to range from 1/15 to 1/300); and an  heir-by-

heir analysis might well be costly and productive of only minute

victories.  We mention the issue only to avoid any implicit

endorsement of the composite or grouping approach as a general

construction of the statute.

  We turn now to plaintiffs' further claim that they were

entitled to judgment in their favor on the issue of title.  Their

argument is that the 1976 dismissal of  Higgins's original "severed

case," in which he sought to acquire from the state land court a

declaration of full ownership over the lot, was a dismissal "with

prejudice" under state law; that this dismissal therefore

determined that Higgins owned only 40 percent of the Lombard lot

and the heirs owned the remainder; and that the federal district

court was required under the Full Faith and Credit Statute, 28

U.S.C.  1738, to accept this determination as binding in the

present action against the United States.

  Because the original 1958 order of the land court made

clear that the dismissal of the severed action was intended to be

without prejudice, it would not normally result in claim

preclusion, see Restatement (Second) of Judgments  20 (1982), and

since no facts were actually resolved in the case at all, there

cannot be issue preclusion under ordinary doctrine.  See id.  27. 

Still, plaintiffs say that Mass. Gen. Laws ch. 185,  44 (1998)

requires a different conclusion because the 1976 cleanup order did

not say expressly that it was without prejudice.  The statute

reads:

    If the court finds that the plaintiff has not

  title proper for registration, a judgment

  shall be entered dismissing the complaint, and

  such judgment may be ordered to be without

  prejudice, in whole or in part, but unless so

  ordered it shall bind the parties, their

  privies and the land in respect of any issue

  of fact which has been tried and determined.



   Even if we assume that section 44 applies--which is

unclear--the most one could say is that section 44 might then

treat a judgment of dismissal, where silent, as "bind[ing] the

parties, their privies and the land in respect of any issue of fact

which has been tried and determined."  Id. (emphasis added).  But

no issue of fact was tried and determined in the severed case.  At

most a dismissal with prejudice might mean that Higgins could not

bring the same action again.

  The plaintiffs also rely on McCarthy v. Town of Oak

Bluffs, 643 N.E.2d 1015 (Mass. 1994).  There, as here, a

registration case in the land court was thereafter severed into

two--one for property claimed east of a specific mean low water

line and the other for land west of the line.  See 643 N.E.2d at

1018.  The former case was pursued and resulted in a decree of

registration in 1960; the latter was dismissed in 1977 for lack of

prosecution.  See id.  Thereafter, privies of the plaintiffs

brought a new suit asserting title to the western portion, the

subject of the dismissed suit, and the court held that the new suit

could not be brought.  See id. at 1019.

  But the court's reasons destroy the parallel with the

present case.  The land court held in the new suit that the earlier

one had made a factual determination of the western boundary of the

property; and it was this finding to which the court gave

preclusive effect.  See id. at 1018-19, 1021.  Further, it found

that the original plaintiffs had signed a stipulation stating that

they had no interest in land westward of the line, that licenses

they had taken confirmed that concession, and that state law made

it illegal for them to own land westward of the line.  See id. at

1018-19.  Thus McCarthy is not on point.

  To sum up, we conclude that the rejection of the proposed

amendment to the complaint cannot on this record be supported on

the ground given for the denial.  However, the plaintiffs' full

faith and credit argument is without merit and to prevail

ultimately, the plaintiffs would have to avoid the 1964 quiet title

judgment and defeat a likely claim by the government that Higgins

had obtained full title to the Lombard lot by adverse possession. 

And if title to fractional interests were established by

plaintiffs, problems of remedy would remain.

  Such issues could be costly and time consuming to

litigate on both sides.  And, while the government's hands are not

perfectly clean (given its actual knowledge of Higgins's doubtful

paper title to the whole), the plaintiffs are in some measure

seeking a windfall from property widely thought to have been lost

long ago by the family.  All this suggests that both sides might be

well advised to renew their earlier, unsuccessful efforts to settle

the case.

  The judgment of the district court is vacated and the

case is remanded for further proceedings consistent with this

opinion.  Our judgment reinstates the partition statute claim

merely as a contingent remedy available if and when the plaintiffs

can establish ownership under the Quiet Title Act by satisfying the

statute of limitations and all other prerequisites.  Nothing in our

decision precludes a further motion for summary judgment by the

government on statute of limitations grounds (assuming a more

developed record) or any other ground available to it.

  It is so ordered.