United States v. Mrs. Vesta M. Pinson and J.H. Pinson , 331 F.2d 759 ( 1964 )

MARIS, Circuit Judge.

This is an appeal from an order entered by the District Court for the Northern District of Georgia in a condemnation suit brought by the Government for the taking of property in connection with the establishment of the Buford Dam and Reservoir Project in Georgia and for the ascertainment and award of compensation therefor.

Two adjoining tracts of land bordering on the Chattahoochee River are involved in the appeal. One of these tracts, No. 1-933 containing 45.20 acres, was owned by J. H. Pinson and the other, No. 1-945 containing 80.80 acres, by Mrs. Vesta M. Pinson. In the case of each of these two tracts the declaration of taking filed by the Secretary of the Army described the estate taken for public use as “the fee simple title, subject to existing easements for public roads and highways, public utilities, railroads and pipe lines.” ¹ By certain prior deeds the Georgia Power Company became the grantee of flowage easements or flood rights over 20.66 acres of tract No. I-933 and 37.42 acres of tract No. 1-945. That company was named in the Government’s complaint as a possible claimant and it filed a claim for compensation in the proceedings. Subsequently the compensation payable for tract No. 1-933 was determined by a jury to be $15,-616.00 and the compensation for tract No. 1-945 was determined by stipulation to be $27,000.00. Of these awards all but $2,000.00 in the case of tract No. 1-933 and $3,500.00 in the case of tract No. 1-945 were disbursed to the owner claimants, the latter sums being held in the registry of the court to abide the determination of the claim of the Georgia Power Company.

Thereafter the owner claimants, J. H. Pinson and Mrs. Vesta M. Pinson, moved the court to disburse the sum of $5,500.00 thus being held in the registry to them instead of to the Georgia Power Company, asserting (1) that the Power Company’s easements were excepted from the taking and had not been condemned, (2) that the Power Company’s easements were not compensable because the company had not shown that it had obtained a federal license to erect a dam on the Chattahoochee River, and (3) that the Power Company’s easements, even if com-pensable, were actually valueless. The motion was opposed by both the Georgia Power Company and the Government. Upon consideration of the motion the district court held that the flowage easements of the Georgia Power Company were excepted from the taking and had not been condemned. The court accordingly entered an order directing the disbursement of the funds on deposit in its registry to the former owners of the tracts in question, $2,000.00 to J. H. Pin-son and $3,500.00 to Mrs. Vesta M. Pin-son. The Government, being aggrieved by this determination by the district court that its taking had not included the Georgia Power Company’s flowage easements, thereupon took the appeal which is now before us.

The sole question presented by this appeal is whether the clause in paragraph 3 of the declaration of taking— “subject to existing easements for public roads and highways, public utilities, railroads and pipe lines” — excepted from the taking the flowage easements or flood rights of the Georgia Power Company, as the district court held. Stated more precisely the question is whether the phrase “existing easements for * * * public utilities” includes the flowage easements of the Georgia Power Company. The question is one of federal law, but since we have not been referred to any federal case which has decided it, we must turn for its solution to applicable principles of general law.² Admittedly the Georgia Power Company is a public utility company and its flowage easements were existing at the time of taking. Upon this reasoning the district 'court concluded that the flowage easements were included in the clause which excepted existing easements for public utilities from the taking. We do not think, however, that the solution of the question can be arrived at so easily.

In construing the clause of the declaration of taking here in question the intention of the United States as author of the declaration, to be gathered from the language of the entire declaration and the circumstances surrounding it, must be considered.³ Looking first at the language of the clause itself we must remember that “public utilities” is a phrase of varied meanings. It is true that it commonly refers to corporations •or individuals engaged in the business of .supplying the public generally with commodities or services which are of public ■consequence and need and which the public has the right to demand. But the phrase is also often used in a more re.stricted sense to denote the physical facilities themselves which have been dedicated by their owners to the service of the public.⁴ We think that in this declaration of taking the phrase was used in this sense of physical facilities devoted to the public service rather than to describe corporations or individuals engaged in business as public utilities. The use of the preposition “for” in the phrase ■“existing easements for * * * public utilities” indicates a reference to easements needed for the construction and maintenance of facilities rather than easements belonging to public utility companies or held by them. The rule of ejusdem generis points to the same result. In the context of “easements for public roads and highways, public utilities, railroads and pipe lines” the public utilities referred to must be those physical facilities, such as power lines, water lines, sewers, etc., which are similar in nature to those specifically enumerated. The flooding of land under a granted right to do so is clearly not in this category. We do not regard New York Telephone Co. v. United States, 2 Cir.1943, 136 F.2d 87, which was relied upon by the district court, as authority to the contrary. For the easements which were held in that case to be excepted from the taking under a clause in the declaration of taking excepting “existing public utility easements” were all physical facilities devoted to the public service, namely, underground telephone ducts, cables, manholes and appurtenances.

When we turn to the other provisions of the declaration of taking we find ample support for this reading of the phrase “public utilities.” In addition to tracts Nos. 1-933 and 1-945 various other tracts were involved in the taking. Among these was tract No. I-958-E-3, the subject of paragraph 4 of the declaration of taking which in pertinent part reads as follows:

“4. The estate taken for said public uses with respect to Tract No. I-958-E-3 is a perpetual right, power, privilege and easement to occasionally overflow, flood and submerge the same, and to maintain mosquito control, as may be required in connection with the operation and maintenance of the Buford Dam and Reservoir Project * * * ; subject, however, to existing easements for public roads and highways, public utilities, railroads and pipe lines.”

It is perfectly obvious that the existing easements for public utilities which the final clause of paragraph 4 of the declaration of taking saves from being taken cannot have been intended to include flowage easements or flood rights. For these are the precise interests in the tract which the Government itself was taking by that paragraph. It would, be patently absurd to hold that the Government, in taking by eminent domain a flowage easement over land, intended at the same time to preserve a prior flowage easement held by another over the same land. Certainly the Buford Dam and Reservoir Project could not have been constructed and operated on any such foundation of conflicting flowage rights as that.

Since the clause excepting existing easements from the taking which is set out in paragraph 3 of the declaration of taking with respect to the two tracts involved in this appeal is in exactly the same language as the excepting clause of paragraph 4 which is applicable to tract No. I-958-E-3, both must have been intended to have the same meaning, so far as “existing easements for * * * public utilities * * * ” are concerned, and could not have been intended to include flowage easements or flood rights. We are further fortified in this conclusion by the fact that the entire taking was directed toward the acquisition of property needed for use in connection with the establishment of the Buford Dam and Reservoir Project, a project which necessarily involved the flooding of lands adjacent to the Chattahoochee River upon which the dam was to be built. Surely it would require very clear language to hold that under these circumstances flowage easements were intended to be excepted from the taking. The fact that the Government included the Georgia Power Company as a claimant in the complaint is itself persuasive that such was not the intention.

We conclude that the flowage easements and flood rights of the Georgia Power Company in tracts Nos. I-933 and I-945 were taken by the Government in this proceeding. Whether these rights are compensable and, if so, whether they are valueless because of their relatively insignificant extent or because of the inactivity of the Georgia Power Company in acquiring other necessary rights and proceeding with its projected dam we do not decide. These are matters for the district court to determine upon remand.

The judgment of the district court will be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

1 . Paragraph 3 of the declaration of taking states:

“3. The estate taken for such public uses with respect to Tracts Nos.. 1-933; 1-945; 1-958; and 0-1520 is ‘the fee simple title, subject to existing easements for public roads and highways, public utilities, railroads and pipe lines.”

2 . Bumpus v. United States, 10 Cir. 1963, 325 F.2d 264, 266.

3 . Bumpus v. United States, 10 Cir. 1963, 325 F.2d 264, 266.

4 . Pulitzer Pub. Co. v. Federal Communications Commission, D.C.Cir. 1937, 68 U.S. App.D.C. 124, 94 F.2d 249, 251; City of Oakland v. El Dorado Terminal Co., 1940, 41 Cal.App.2d 320, 106 P.2d 1000, 1002.

Thus the courts have held the following to he public utilities: Airports, Jones v. Keck, 1946, 79 Ohio App. 549, 74 N.E.2d 644, 646; Bridges, City of Wilkes-Barre v. Pennsylvania Public Utility Commission, 1949, 164 Pa.Super. 210, 220, 63 A.2d 452, 457; Golf links, Capen v. City of Portland, 1924, 112 Or. 14, 228 P. 105, 106, 35 A.L.R. 589; Parking lots, City of Shawnee v. Williamson, 1959, Okl., 338 P.2d 355, 356-357; Sewers, Chastain v. Oklahoma City, 1953, 208 Okl. 604, 258 P.2d 635, 637; Switch tracks, Stockdale v. Rio Grande Western Ry. Co., 1904, 28 Utah 201, 77 P. 849, 851; Telephone lines, Arkansas State Highway Commission v. Southwestern Bell Telephone Co., 1944, 206 Ark. 1099, 178 S.W.2d 1002, 1005; and Toll roads and bridges, Miami Bridge Co. v. Miami Beach Ry. Co., 1943, 152 Fla. 458, 12 So. 2d 438, 445.