United States v. 7.92 Acres of Land, More or Less

769 F.2d 4
CourtCourt of Appeals for the First Circuit
DecidedJuly 31, 1985
DocketNo. 84-1860
StatusPublished
Cited by11 cases

This text of 769 F.2d 4 (United States v. 7.92 Acres of Land, More or Less) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. 7.92 Acres of Land, More or Less, 769 F.2d 4 (1st Cir. 1985).

Opinion

RE, Chief Judge:

Appellant, Grace E. Bessay, appeals from two related judgments of the United States District Court for the District of [6]*6Massachusetts which condemned two tracts of land, approximately 7.92 acres, within the Cape Cod National Seashore in Provincetown, Massachusetts, on the Atlantic Ocean side of the cape. Although this appeal pertains to only one action, since there were two tracts of land condemned pursuant to Rule 71A of the Federal Rules of Civil Procedure, two separate judgments of condemnation were issued by the district court.

Initially, the district court, in granting the United States’ motion for partial summary judgment, rejected Bessay’s contention that her land was exempt from condemnation as “improved property” under the Cape Cod National Seashore Act, 16 U.S.C. § 459b (1982) (the Act). Subsequently, in a memorandum opinion dated July 2, 1984, the district court adopted a report submitted by a fact-finding land commission (Commission) which established that two thousand dollars ($2,000) was the fair market value of Bessay’s land.

Two questions are presented on this appeal: (1) whether Bessay’s two tracts of land are exempt from condemnation by the Secretary of the Interior under the “improved property” exemption of the Act, 16 U.S.C. § 459b-3; and, if not, (2) whether the amount of two thousand dollars was “just compensation” for the taking of Bessay’s property, as required by the Fifth Amendment.

Since we hold that the district court correctly held that Bessay’s land was not “improved property” under the Act, and that the amount paid to Bessay for her land was “just compensation,” we affirm.

Facts

Grace Bessay is the owner of several parcels of land located within the Cape Cod National Seashore. The two tracts of land in dispute are located on the shore of the Atlantic Ocean in the northern part of Provincetown, Massachusetts. They are contiguous and consist of four lots, according to a subdivision plan entitled “Pilgrim Park Tract,” recorded on January 31, 1899, in the Barnstable County Registry of Deeds. The subdivision plan indicates that the larger parcel, tract 4-0001, consists of three lots, two adjoining each other, and the third separated from the other two by a “paper road” referred to as Ocean Avenue. The smaller parcel, tract 4-0003, consists of a single lot which adjoins the separated lot of tract 4-0001. Bessay acquired both tracts in March 1963. The two tracts, together with four other tracts she owned in the neighboring town of Truro, were condemned on August 27, 1975.

During a hearing held by the Commission, Bessay testified that when she acquired the two tracts of land in 1963 there existed the remains of a structure which had been built in the 1930’s. Bessay testified that, to the best of her knowledge, the structure was still standing on September 1, 1959, the effective date of the “improved property” section of the Act. Bessay also stated that, after 1959, but prior to 1963, the structure was partially burned. Sometime after 1963, the remaining portion of the structure was also burned, leaving nothing but a well pipe protruding from the ground, and a charred mattress spring. Bessay neither rebuilt the structure, nor had the land surveyed.

At the Commission hearing, the United States presented two expert witnesses, Richard Lay, a registered land surveyor, and Paul O’Leary, a licensed real estate appraiser. The professional qualifications of both experts were conceded by Bessay. Lay’s testimony on the location of Bessay’s land was based upon the superimposition of the boundary lines of the 1899 subdivision plan on to a 1972 quadrangle United States coast and geodetic survey map. By this survey technique, and upon an on-site inspection, Lay testified that there was no evidence of a dwelling on the property, and concluded that the land was physically unbuildable.

O’Leary’s testimony dealt with the appraisal of the land. Upon viewing the land, and considering the applicable zoning ordinances, O’Leary testified that, since the land is mainly a series of sand dunes sloping toward the ocean, it cannot be used to [7]*7build any type of structure. Therefore, O’Leary testified that the land was worth two thousand dollars. In its report, the Commission accepted the testimony of both Mr. Lay and Mr. O’Leary, and, on July 2, 1984, the district court adopted the Commission’s report.

Bessay contends that, since there is evidence that a “dwelling” existed on her land prior to 1959, she has “rebuilding rights,” and, therefore, is entitled to an exemption from condemnation under section 459b-3 of the Act. In the alternative, Bessay contends that, even if she is denied an exemption from condemnation, the amount of compensation paid for her land, two thousand dollars, was insufficient and unjust. Specifically, Bessay argues that, since the value established by the Commission was based upon an imprecise land survey, the Commission’s finding of fair market value was erroneous, and should not have been adopted by the district court.

The United States, on the other hand, contends that, notwithstanding the scant and insufficient evidence which indicates that some sort of structure may have existed in the past, at the present time there is no dwelling on the land. Furthermore, the land has never been served by utilities, and does not fall within the statutory definition of “improved property” under the Act. The United States also contends that, since Bessay’s land was surveyed according to proper and accepted methods, and was determined to be situated on a coastal bank, the Commission was correct in finding that one could not build upon it. The United States, therefore, maintains that the district court committed no error in adopting the Commission’s finding that the fair market value was two thousand dollars.

Improved Property Exemption

The power of eminent domain is an unquestioned attribute of sovereignty. It is subject only to the constitutional limitation that “private property [shall not] be taken for public use, without just compensation.” U.S. Const, amend. V. Hence, anyone who purchases or leases property does so “at the risk of being evicted by the government or its delegate to acquire his interest upon payment of just compensation.” United States v. 16.92 Acres of Land, 670 F.2d 1369, 1371 (7th Cir.), cert. denied sub nom., 459 U.S. 824, 103 S.Ct. 54, 74 L.Ed.2d 60 (1982) (citing Green Street Ass’n v. Daley, 373 F.2d 1, 6 (7th Cir.), cert. denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995 (1967)).

In 1961, the “Cape Cod National Seashore” was established to limit the development which was threatening to “destroy much of the cape’s natural appeal.” S.Rep. No. 428, 87th Cong., 1st Sess., reprinted in 1961 U.S.Code Cong. & Ad.News 2212, 2218. The increasing popularity of the cape seemed to jeopardize the historic integrity of the area, as well as its scenic and scientific values. Hence, Congress enacted the Cape Cod National Seashore Act to ensure the preservation of the region, by the exercise of the power of eminent domain.

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United States v. 7.92 Acres Of Land
769 F.2d 4 (First Circuit, 1985)

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Bluebook (online)
769 F.2d 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-792-acres-of-land-more-or-less-ca1-1985.