UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 95-30916

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

194.08 ACRES OF LAND, M ORE OR LESS, SITUATED

IN ST MARTIN PARISH, STATE OF LOUISIANA,

Defendant,

DANIEL A WILTZ; and JUANITA ELLIS WILTZ,

Defendants-Appellants.

Appeal from the United States District Court

For the Western District of Louisiana

March 9, 1998

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART,

Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Daniel and Juanita Wiltz (the “Wiltzes”) appeal the district

court’s grant of summary judgment in favor of the United States.

The district court invalidated the conveyance of a deer hunting

servitude from a previous owner to the Wiltzes b ecause the

government had already condemned the property that the servitude

burdened and held that the government had the authority to condemn

the servitude. We affirm.-2- I

This appeal arises out of the United States’ attempts to

acquire land for the Atchafalaya Basin Floodway System in Louisiana

(the “Project”). Congressional authorization for the Project dates

back to 1928, but in 1985 and 1986, Congress greatly expanded the

Project’s scope by authorizing the acquisition of 23,000 acres for

public access and for sporting and recreational activ ities,

including hunting, with the proviso that the land be acquired from

“willing sellers.” Accordingly, the U.S. Army Corps of Engineers

began to contact property owners in areas where it desired to

acquire land for the Project to determine if they would be willing

to sell their land.

In August 1989, the Wiltzes received a letter from the Corps

of Engineers inquiring whether they would be willing to sell part

of their property in St. Martin Parish, Louisiana, for use in the

Project. This property consisted of tract 167, a 94.08-acre tract,

and tract 206, a 100-acre tract. Both tracts were burdened by a

deer hunting servitude that Texaco had reserved and recorded when

it sold the tracts to a previous owner (the “deer hunting

servitude”).

The letter from the Corps of Engineers explained that the

United States desired to purchase 23,000 acres in fee simple,

excluding minerals, from “willing sellers.” The letter also stated

that if the Wiltzes were willing to sell their tracts of land but

were unable to agree with the government on the price to be paid,

they could ag ree to have a court determine a fair price in a-3-

condemnation action. If the Wiltzes were unwilling to sell their

property, the letter stated t hat the government would proceed to

condemn easements for flowage, developmental control, and

environmental protection.

The Wiltzes consented to sell their property, but they were

unable to agree on a price with the United St ates. Accordingly,

the Wiltzes signed two “Agreement[s] to Sell and Set Compensation

in Court” for tracts 167 and 206 (the “Agreements”). Each

Agreement recited that the Wiltzes owned the tracts a nd were

“willing sellers” of fee simple title, excluding minerals and

existing easements for public roads and highways, public utilities,

railroads, pipelines, and the Texaco deer hunting servitude.

Pursuant to these Agreements, the U nited States instituted

condemnation proceedings on June 14, 1991, in order to have a court

determine a fair price for both tracts. The government deposited

estimated just compensation with the court and filed a Declaration

of Taking that contained a broad description of the estate taken.

The government joined numerous defendants, including the Wiltzes,

Texaceaux Hunting Club, Inc., Continental Resources Co., Southern

Natural Gas C o., and all unknown owners, heirs, legatees and

assigns. Due to a faulty title search on the property, however,

the government failed to join Texaco as a defendant, even though

Texaco had clearly recorded the deer hunting servitude. As a

result, when the government served the named defendants by mail in

August 1991, it failed to serve Texaco, although it did publish a

lis pendens notice in a local newspaper.1 Texaco subseq uently filed an answer stated that it had

conveyed the deer hunting servitude to the Wiltzes in March 1994.

In the event that the conveyance should be held ineffective, Texaco

alternatively asserted that it would be entitled to $50 per acre as compensation for the taking of the servitude.

-4- The Wiltzes thereafter decided that they did not want to sell

their property and attempted to withdraw their acceptance of the

Agreements. Protracted litigation ensued, and ultimately, the

Wiltz es and the United States reached a settlement for the

government’s acquisition of the tracts on March 2, 1994, under

which the Wiltzes received all of the estimated just compensation

previously deposited with the court and 94.4 percent of the accrued

interest. This settlement, which the district court duly accepted,

expressly decreed that no value had been included for the deer

hunting servitude.

Still angry that they had not been allowed to withdraw their

acceptance of the Agreements, the Wiltzes continued their challenge

to the government’s taking of their land in a roundabout method:

On March 30, 1994, they purchased the deer hunting servitude from

Texaco, and on Ap ril 28, 1994, they filed another answer to the

government’s condemnation action. 1 The Wiltzes alleged that

because the government had failed to join Texaco in the

condemnation action, the deer hunting servitude had n ot been

extinguished by the Declaration o f Taking. The Wiltzes also

claimed that neither they nor Texaco had consented to sell the deer

hunting servitude and, accord ingly, argued that the government

lacked the authority to condemn the servitude. The district court

granted the government’s mo tion to belatedly join Texaco as a-5-

defendant and the Wiltzes’ motion to substitute themselves as

defendants in place of Texaco. The government admitted that the

deer hunting servitude existed prior to its institution of the

condemnation action and that Texaco possessed it at the time of

condemnation. The government also admitted that Texaco was a

necessary party to the complete adjudication of the taking and

served Texaco with a notice of condemnation in May 1994.

The Wiltzes and the government submitted cross-motions for

summary judgment, with the Wiltzes arguing that the United States

lacked the authority to condemn the deer hunting servitude and the

United States arguing that the servitude had been condemned in 1991

and that Texaco’s transfer of the servitude to the Wiltzes was,

accordingly, ineffective. The district court referred the summary

judgment motions to a special master, who filed a report

recommending that the government’s motion be granted. The special

master found that the servitude was within the scope of the estate

that the gove rnment condemned in 1991, and that the “willing

seller” requirement did not extend to servitude holders. As such,

the special master found that Texaco’s conveyance of the servitude

to the Wiltzes was ineffective b ecause the servitude had been

extinguished and reduced to a claim for just compensation when the

United States filed the Declaration of Taking. The district court

adopted the speci al master’s report and granted the government’s

motion. The Wiltzes’ timely appeal followed.

II

We rev iew the district court’s grant of summary judgment in2 In Louisiana, the term “fee simple estate” is not used,

but is “analogous to full owner ship, where the elements of

ownership (uses, fructus and absus) are held in common by one

person.” Reaux v. Iberia Parish Police Jury

, 454 So.2d 227, 230 n.2

(La. Ct. App. 1984). The Texaco deer hunting servitude is a

“limited personal servitude,” which is a right that confers a

limited use or enjoyment of property that belongs to another, s ee

L A

. C IV

. C ODE art. 639 (West 1980), and is ro ughly analogous to an

easement in other states. See B LACK ’ S L AW D ICTIONARY (5th ed. 1979)

(defining an easement as “a right of use over the property of

another”). In Louisiana, “fishing or hunting rights and the taking

of certain fruits or products from an estate may likewise be

stipulated in the form of a right of use servitude.” L A

. C IV

. C ODE

art. 640 cmt. (b).

-6- favor of the government de novo

. See Armstrong v. City of Dallas

,

997 F.2d 62, 65 (5th Cir. 1993). Both parties agree that summary

judgment is an appropriate method to resolve this case and that

there are no genuine issues of material fact. They differ only in

whose favor summary judgment should be granted.

A

We first examine whether the scope of the estate that the

government condemned, as set forth in the 1991 Decla ration of

Taking, included the deer hunting servitude. 2 The default rule in

eminent domain is tha t a taking in fee simple establishes a new

title and ext inguishes all existing possessory and ownership

interests not specifically excepted. See A.W. Duckett & Co. v.

United States

, 266 U.S. 149, 151, 45 S. C t. 38, 38, 69 L.Ed. 216

(1924). Thus, where the government takes fee simple title, it

takes all interests, even those it does not specify; where the

government takes less than fee simple title, it must expressly

indicate what lesser interests are ex cluded. See Buckhart v.

United States

, 227 F.2d 659, 661 (9th Cir. 1955) (holding that a3 Both Agreements state that the Wiltzes are “owners” of

tracts 167 and 206 and that they are

‘willing se llers’ of fee title, excluding minerals, as

more fully described in the Attached Exhibit ‘B,’ said

land also being subject to existing easements for public

roads and highways, public utilities, railroads and

pipelines, and subject to the [Te xaco Deer Hunting

Servitude].

By contrast, the Declaration of Taking described the estate taken

as:

fee simple title to the land, subject ho wever, to

existing easements for public roads and highways, public

utilities, railroads and pipelines; excepting and

exclud ing from the taking all coal, oil, gas, and all

other minerals in and under said land and all appurtenant

rights used in connection with the exploration,

development, production and removal of said oil, gas and

all other minerals, including any existing structures and

-7- Declaration of Taking “wipes out all interests” in proper ty that

are not specifically excluded). When a Declaration of Taking is

ambiguous, we construe the scope of the estate taken in a

Declaration of Taking in light of the purposes for which the estate

is sought to be taken, the language of the entire declaration, and

the surrounding circumstances. S ee United States v. Pinson, 33 1

F.2d 759, 760-61 (5th Cir. 1964).

We first note that the Declaration of Taking stated that the

United States was taking fee simple title, less certain excepted

i nterests. Comparison of the narrower language used to describe

the estate taken in the Agreements and the broader language used in

the Declaration of Taking as well as the prominent mention of the

Texaco deer hunting servitude in the Agreements suggests that the

government intended the Declaration of Taking to be all-inclusive,

save for the specifically excepted interests. 3 Pursuant to F E D

. R.improvements . . ..

-8-

C IV

. P. 71A, the government joined all other interest holders (with

the exception of Texaco) when it filed the Declaration of Taking,

while it neither consulted with nor obtained the consent of these

other interest holders with regard to the Agreements, suggesting

again that the government intended the Declaration of Taking to

include all interests not specifically excepted. Moreover, the

government was seeking to acquire land for public access and

sporting and recreational use, including hunting. It is difficult

to imagine that the government would acquire land for hunting use,

inter alia

, while at the same time preserving Texaco’s hunting

rights. C f. Pinson

, 331 F.2d at 762 (“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 easem ent held by another over the same land.”). Finally,

when the United States and the Wiltzes settled, the Wiltzes

received all of the estimated just compensation but only 94.4

percent of the accrued interest; 5.6 percent of the accrued

in terest was reserved to compensate Texaco for the deer hunting

servitude. If the Declaration of Taking did not include the deer

hunting servitude, there would have been no need to reserve this

5.6 percent for Texaco. Accordingly, we find that the estate taken

in the Declaration of Taking included the deer hunting servitude.

B

Having determined that the Declaration of Taking encompassed

the Texaco deer hunting servitude, the critical issue in this case4 The Assignment of Claims Act provides that

(a) In this section, “assignment” means ))

(1) a transfer or assignment of any part of a

claim against the United States Government or

of an interest in the claim; or

(2) the authorization to receive payment for

any part of the claim.

(b) An assignment may be made only after a claim is

allowed, the amount of the claimis decided, and a

warrant for payment of the claim has been issued.

31 U.S.C. § 3727.

-9- becomes the validity of the Declaration of Taking. If the

Declaration of Taking is vali d, then title to tracts 167 and 206

passed to the government in July 1991, when it filed the

Declaration of Taking. See 40 U.S.C. 258a (1997 Supp.) (“Upon the

filing said declaration of taking and of the deposit in the court

. . . title to the said lands in fee simple absolute, or such less

estate or interest therein as is spe cified in said declaration,

shall vest in the United States of America . . . .”). Texaco’s

subsequent conveyance of the deer hunting servitude in March 1994

would therefore be ineffective, either because the Declaration of

Taking extinguished Texaco’s servitude and replaced it with a claim

for c ompensation in July 1991 (and Texaco could not sell what it

did not own) or because Texaco’s conveyance of the servitude

violated the Assignment of Claims Act, 31 U.S.C. § 3727 (1983). 4

See United States v. Dow

, 357 U.S. 17, 20-21, 78 S. Ct. 1039, 1044,

2 L.Ed.2d 1109 (1958) (invalidating a property interest transfer

where the government instituted a condemnation action prior to sale-10-

of the interest but filed the Declaration of Taking after its sale

because the condemnation action extinguished the pr ior owner’s

interest and replaced it with a claim fo r just compensation);

United States v. Mock , 476 F.2d 272, 273 (4th Cir. 1973) (holding

a property interest transfer to be invalid either because the

former owner no longer owned the property or because the transfer

violated the Assignment of Claims Act where the interest was

transferred after a Declaration of Taking was filed).

Before deciding w hether the Declaration of Taking is valid,

however, we first address a related point. The government urges us

to hold that Texaco’s conveyance of the deer hunting servitude

violates the Assignment of Claims Act without looking at the merits

of this appeal. We reject this suggestion because the government

failed to notify or join Texaco as a defendant when it instituted

condemnation proc eedings and filed the Declaration of Taking in

1991. See F ED

. R. C IV

. P. 71A (c)(2) (“[A]ll persons having or

claiming an interest in that property whose names can be

ascertained by a reasonably dili gent search of the records,

c onsidering the character and value of the property involved and

the interests to be acquired” must be joined). We look to state

law to determine what interests are sufficiently important to

require joinder under Rule 71A, see Georgia Power Co. v. Sanders

,

617 F.2d 1112, 1116 (5th Cir. 1980) (en banc), and under Louisiana

law, a servitude is an important property interest. See L A

. C IV

. C ODE

A NN

. art 639 & art. 640 cmt. (b) (West 1980). Therefore, Rule 71A

mandated that the government join Texaco, and its failure to do so-11-

means that Texaco and its assigns can challenge the validity of the

taking. See United States v. Catlin

, 324 U.S. 229, 241, 65 S. Ct.

631, 637, 89 L.Ed. 911 (1945); United States v. Herring , 750 F.2d

669, 673-74 (8th Cir. 1984) (holding that lack of notice to a party

that should have been notified that its property interest was being

condemned does not invalidate the taking, but preserves the party’s

ability to subsequently challenge th e statutory validity of the

taking and file a claim for compensation); United States v. 125.2

Acres of Land

, 732 F.2d 2 39, 243-44 (1st Cir. 1984) (same). The

government also argues that publication of a lis pendens notice in

a local newspaper provided Texaco with sufficient notice of the

taking; we reject this argument because publication notice is

constitutionally inadequate where the own er could be informed by

more effective means. S ee Mullane v. Central Hanover Bank & Trust

Co

., 339 U.S. 306, 314-16, 70 S. Ct. 652, 657-58, 94 L.Ed. 865

(1950). Accordingly, we consider the validity of the Declaration

of Taking.

The Wiltzes challenge the validity of the Declaration of

Taking by contending that the United States lacked the authority to

c ondemn property for public access purposes under the W ater

Resources Development Act of 1986, Pub. L. No. 99-662, § 601, 100

Stat. 4082, 4137, 4142 (1986). The Wiltzes recognize that the sole

defense to a condemnation action is a lack of authority. See United

States v. 162.20 Acres of Land

, 639 F.2d 299, 303 (5th Cir. 1981).

Citing the principle that a condemnee may challenge “the validity

of the taking for departure from the statutory limits,” Catlin

, 324-12-

U.S. at 240, 65 S Ct. at 637, they contend that the Act authorized

the acquisition of land in fee simple from “willing sellers” only,

a nd that the United States was required to obtain the consent of

Texaco, which it admittedly failed to get. They further argue that

the gover nment lacked the power to condemn the servitude because

the authorization to condemn easements for flowage, development

control, and environmental protection if property owners were

unwilling to sell their property for use in the Project implicitly

limited the Corp of Engin eers to condemning only these easements

and not other property interests.

1

We first address the Wiltzes’ argument that the “willing

seller” requirement extends to se rvitude owners and that the

government was required to obtain the consent of Texaco. The

special master and district court held that this case is governed

by United States v. Certain Parcels of Land in Fairfax County

, 345

U.S. 344, 73 S. Ct. 693, 97 L.Ed. 1061 (1953). In that case, the

Belle Haven Realty Corporation, holder of the fee to a sewer system

the government sought to utilize, agreed to accept nomi nal

compensation from the government for its sewer properties in

exchange for the government’s agreement to take the system and to

protect Belle Haven householders from future charges for its use.

The government then filed a condemnation petition and a Declaration

of Taking and took possession of the system. Belle Haven

householders, who later alleged that they had been granted

easements in the syste m, were neither consulted nor joined as5 The Lanham Act of October 14, 1940 provided relief for

defense areas with an existing or impending housing shortage by

authorizing the condemnat ion of land for construction sites. 54

Stat. 1125. The 1943 amendment to the Act authorized the

acquisition of existing public works where the government obtained

the consent of the owners.

-13- defendants. They subsequently attacked the taking of the system as

unauthorized under the Lanham Act of October 14, 1940, 5 ch. 862, 54

Stat. 1125, 42 U.S.C. § 1521, repealed by Act of July 3, 1952, ch.

570, § 1(a)(12), 66 Stat. 3362, because under the 1943 amendment to

that Act, the government could acquire existing public works only

from “willing sellers,” and the government had not obtained their

consent. The Court held that the corporation had consented to the

taking of the system and the householders were not “owners” whose

consent was required prior to the taking. I d. at 348-49, 73 S. Ct.

at 695-96.

The Supreme Court noted that while the Lanham Act contained a

provision permitting t he government to acquire “improved or

unimproved lands or interests in lands” by condemnation, the 1943

amendment to the Act at issue in Fairfax County authorized the

acquisition of existing public works only “with the consent of the

owners thereof.” I d. at 348, 73 S. Ct. at 69 5. The Court

explained that the consent r equirement in the amendment did not

obviate the condemnation provision in the Act because consent can,

inter alia

, “represent an election to have value determined by a

court rather than by the parties.” I d. , 73 S. Ct. at 695.

Crucially, in response to the lot owners’ argument that the Act

required the consent of all of the holders of interests in a piece-14-

of property, the Court limited the “willing seller” requirement:

In deciding who are “owners” here, we look to the scheme

of the Act itself. We think it unlikely that in providing

for the condemnation of publi c works, Congress at the

same ti me intended to make preliminary negotiations so

cumbersome as to virtually nullify the power granted. Yet

the interpretation pressed by respondents would have that

effect. It would compel the government, before taking

public works, to deal with the holder of every servitude

to which the property might be subject.

Id . at 349, 73 S. Ct. at 696.

Neither the authorization provision s of the Water Resources

Development Act nor the facts of this case differ sufficiently from

those in Fairfax County to provide reason to stray from the Supreme

Court’s binding precedent. Factually, as contemplated by the

instruction that the government acquire land from “willing

sellers,” the Wiltzes consented to the sale of their land and

agreed to have compensation set in a court proceeding. Texaco, the

holder of the dee r hunting servitude, was neither consulted nor

joined as a defendant. The Wiltzes, having obtained the servitude

from Texaco, now attack the taking of the servitude as unauthorized

under the Water Resources Dev elopment Act because the government

did not obtain Texaco’s consent prior to the taking.

The grant of authority in the 1943 amendments to the Lanham

Act is not meaningfully distinguishable from the grant of authority

in the Water Resources Development Act which, as explained by the

Chief of Engineers’s report and the Real Estate Design Memorandum

discussed below, pe rmits the acquisition of land from “willing

sellers” and contemplates condemnation proceedings between the

government and “willing sellers” to resolve “problems.” The rule-15-

of Fairfax County also serves the pragmatic purpose of facilitating

land acquisition by the government; requ iring the government to

obtain the consent of every servitude holder, as the dissent

suggests, would greatly impede the ability of the g overnment to

acquire land because the owner of any servitude could hold out and

extract windfall profits for his or her consent, no matter how much

the owners of other interests in the property desired to sell their

interests. See Fairfax County , 345 U.S. at 349, 73 S. Ct. at 696.

The legislative history of the Water Resources Development Act

and various Corps of Engineer memorandum, while not clear, also

suggest that Congress intended to balance the “willing seller”

requirement with practi cal concerns. The Water Resources

Development Act authorized the Atch afalaya Basin Project to be

carried out s ubstantially in accordance with a February 28, 1983

report issued by the Chief of the Corps of Engineers. See Pub. L.

No. 99-662, 100 Stat. 4082, 4137 (1986). The 1983 report described

the land subject to potential acquisition as “approximately 50,000

acres of lands identified by the State [of Louisiana] as being

available from ‘willing sellers.’” Department of the Army, Office

of the Chief of Engineers, Atchafalay a Basin Floodway System, LA

¶ 3(a)(4) (Feb. 28, 1983). Various subsequent appropriation acts

authorized the disbursement of public monies to purchase property

in fee simple for the Project, in accordance with this report. See

Continuing Appropriations, Fiscal Year 1988, Pub. L. No. 100-202,

101 Stat. 1329, 1329-110 (1987); Supplemental Appropriations,

Fiscal Year 1985, Pub. L. No. 99- 88, 99 Stat. 293, 313 (1985).6 The Memorandum stated:

In order to identify “willing sellers” we propose to have

the property appraised for fee title purchase as well as

for acquisition of appropriate easements. We will inform

the landowners as to the value of fee title for public

access and begin preliminary negotiations.

. . . If there

are problems we will ask landowners to sign a statement

t hat they are willing to proceed with condemnation in

order to resolve the problem.

. . . For this project, negot iations are required

even if landowners are not willing sellers since

developmental control and environ mental protection

easements are required over the land if it is not

purchased in fee.

United States Army Corps of Engineers, Flood Control, Mississippi

River and Tributaries, Atchafalaya Basin Floodway System, LA: Real

Estate Design Memorandum No. 1, at 3 (2d Rev.) (August 1988)

(emphasis added).

7 The Wiltzes cite several responses by the Corps of

Engineers and an assistant attorney general to inqu iries by

Louisiana Senators Breaux and Johnston for the proposition that the

Corps could acquire “fee title only from willing sellers.” Even

assuming the responses could bind the Corps, however, we find these

letters to be ambiguous because they discuss only fee title

acquisition a nd not whether the “willing seller” requirement

extends to servitude holders or whether the United States can

-16- Other statutes, however, directed the Corps of Engineers to

“expedite” the acquisition of fee simple title to property for the

Project. See Energy and Water Developmen t Appropriations Act,

Fiscal Year 1991, Pub. L. No. 101-514, 104 Stat. 2074, 2078 (1990).

The Real Estate Design Memorandum issued by the Corps of Engineers

in 1988 outlining the acquisition of land for the Project also

carefully limited the willing seller requirement to “landowners.” 6

Accordingly, we hold that in enacting the Water Resources

Development Act, Congress did not intend to require the Corps of

Engineers to obtain the consent of servitude holders when it used

the term “willing seller.” 7condem n servitudes when the landowner consents to the sale.

Therefore, we do not accord any weight to these responses.

-17- The Wiltzes argue that it would be inequitable not to require

the consent of servitude hold ers because, in some circumstances,

the holder of a servitude may have rights greater than those of the

fee owner. The Wiltzes also argue that the “willing seller”

requirement should extend to servitude holders because under state

law, the Wiltzes did not have the power to affect Texaco’s rights

as a servitude holder )) i.e., the Wiltzes could not sell what they

did not own. See L A

. C IV

. C ODE ar t. 620. This latter argument is

echoed by Chief Judge Politz’s dissent, which contends that “[t]he

critical error in the majority’s analysis results from a failure to

accord to the servitude at issue that which the Civil Code

mandates.” With regard to the Wiltzes’ first contention, and Chief

Judge Politz’s dissent, the present case presents no such

circumstances , but it is possible that no servitude might be

sufficiently important because in Fairfax County

, the Supreme Court

held that the consent of the lot owners was not required even

though they were owners pro tanto of the sewer system and their

interests in the sewer system comprised “the only real value that

it had.” 345 U.S. at 350, 73 S. Ct. at 696 (Vinson, C.J.,

dissenting). With regard to the Wiltzes’ second argument and to

Chief Judge Politz’s dissent, in Fairfax County

, the Supreme Court

speci fically held that the willing seller requirement, and the

corresponding issue of whose consent is required, are a matter of

federal, not state, law. F airfax County

, 345 U.S. at 349, 73 S.-18-

Ct. at 696 (“ In deciding who are ‘owners’ here, we look to the

scheme of the Act itself.”). Therefore, the United States was not

required to obtain Texaco’s consent before condemning the deer

hunting servitude.

2

Having decided that the “willing seller” requirement does not

extend to servitude owners, we address the Wiltzes’ argument that

the author ization to condemn easements for flowage, development

control, and environmental pro t ection if property owners were

u nwilling to sell their property implicitly limited the Corps to

using its condemnation powers only to acquire these easements and

not to condemn other property interests. The Declaration of Taking

Act cannot supply any authority to condemn property because it is

only a procedural v ehicle by which the government may take

possession of land that is being condemned. See United States v.

Dow

, 357 U.S. 17, 23, 78 S. Ct. 1039, 1045, 2 L.Ed.2d 1109 (1958).

We find that there is no basis for the claim that the Corps of

Engineers lac ked the authority to condemn the deer hunting

servitude. The federal condemnation statute gives the government

the power to condemn any property that Congress has authorized it

to acquire. See 40 U.S.C. § 257 (1986) (“In every case in which

.

. . a ny other officer of the Government has been, or hereafter

shall be, authorized to procure real estate for

. . . public uses,

he may acquire the same for the United State by condemnation, under

judicial process, whenever in his opinion it is necessary or

advantageous to the Go vernment to do so . . . .”). Under the-19-

auspices of the Water Resources Development Act, Congress directed

the Corps of Engineers to “acquire necessary interests in real

estate for all features of the project, flood control, development

control, environmental protection, and public access.” Pub. L. No.

100-202, 101 Stat. 1329-110 (1987). This same act also directed

the Corps to “expedite the acquisition, in fee simple, of lands,

excluding minerals, for public access in the Atchafalay a Basin

Floodway System.” Id ; see also Pub. L. 101-514, 104 Stat. 2074,

2078 (1990). As both the special master and the district court

noted, this language clearly authorizes the acquisition of land,

and, implicitly under section 257, the condemnation of lesser

property interests for the Project. S ee South Dakota v. United

States Dept. of the Interior

, 69 F. 3d 878, 882 (8th Cir. 1995)

(holding that a statute that authorized the department to acquire

land in trust for In d ians impliedly authorized condemnation);

United States v. 125.2 Acres of Land , 732 F.2d 239, 244 (1st Cir.

1984) (rejecting the argumen t that the United States lacked the

authority to co ndemn land where the relevant statute gave the

government “br oad power to acquire, establish, maintain and

operate” air navigation facilities); United States v. 3.38 Acres of

Land , 484 F.2d 1140, 1142 (4th Cir. 1973) (holding that a general

appropriations act may provide a sufficient basis for condemnation

where Congress intended the act to authorize the acquisition).

Against the broad panoply of these cases widely interpreting

the government’s condemnation power, the Wiltzes bring no authority

to our attention to support their contention that authorization to-20-

condemn an easement if the property owner does not consent to sell

bars the government from condemning lesser property interests.

Moreover, concluding that the government could not condemn lesser

property interests would undercut our holding that the “willing

seller” r equirement does not extend to servitude holders because

the government would then have no way to acquire lesser interests

save for obtaining the consent of their holders. Accordingly, we

affirm the district court’s holding that the government was

authorized to condemn the deer hunting servitude.

C

Our holdings that the Declaration of Taking included the deer

hunting servitude, that t he United States was not required to

obtain the consent of Texaco prior to condemning the servitude, and

that the government was authorized to condemn the servitude render

Texaco’s conveyance of the servitude to the Wiltz es ineffective.

As a result, Texaco can submit a claim for compensatio n for the

taking of the deer hunting servitude because the government failed

to notify or join it in the condemnation action. See Dow

, 357 U.S.

at 20-21, 78 S. Ct. at 1044. (“The owner at the time the Government

takes possession ‘rather than the owner at an earlier or later

date, is the one who has the claim and is to receive payment.’”

(quoting 23 Tracts of Land v. United States

, 177 F.2d 967, 970 (6th

Cir. 1949)). The Wiltzes may argue that it would be inequitable to

hold the conveyance ineffective because Texaco will receive double

payment for the servitude, once from the Wiltzes and once from the

government if it files a claim for compensation for the servitude.8 Chief Judge Politz’s dissent contends that because the

governmen t did not join Texaco and give it the required Rule 71A

notice, the government’s taking of the deer hunting servitu de is

invalid and the government must therefore com pensate the Wiltzes

for its value. Contrary to this argument and as our opinion

discusses above, courts generally hold that the failure to give

notice does not invalidate a taking, but preserves the right of the

holder to challenge the taking. See United States v. Herring , 750

F.2d 669, 673-74 (8th Cir. 1984); United States v. 125.2 Acres of

Land

, 732 F.2d 239, 243-44 (1st Cir. 1984). The government

therefore validly took the deer h unting servitude in 1991 and

Texaco could not transfer it to the Wiltzes in 1994. As such, the

right to compensation belongs to Texaco, not to the Wiltzes.

-21- The Supreme Court rejected this precise argument in Dow , however,

noting that there are contractual means by which later purchasers

such as the Wiltzes can pro tect themselves in the event that a

conveyance turns out to be ineffective. 8 See Dow

, 357 U.S. at 27,

78 S. Ct. at 1047.

Accordingly, the district court’s grant of summary judgment in

favor of the United States is AFFIRMED.

ENDRECORD9 

### United States v. Certain Parcels of Land in Fairfax County 

### , 345 U.S. 344 (1953).

10 

### Georgia Power Co. v. Sanders , 617 F.2d 1112 (5th Cir. 1980).

11 

### Wilson v. Aetna Ins. Co. , 161 So. 650 (La.App. 1935).

12 

### Id. POLITZ, Chief Judge, dissenting:



### The majority opinion fails to apply the Louisiana Civil Code provisions

controlling immovable property and I must respectfully dissent.

In my opinion the unique characteristics of Louisiana’s civil law involving

immovables, the comm on-law equivalent of real property, are dispositive of the

issue before us today and these provisions mandate reversa l. Although eminent

domain powers are derived from federal law, 9 

### a proper view of federalism requires

that the law of th e state where the immovable property is located become the

controlling federal rule when a court must determine property interests and the

proper disposition thereof. 10



### Under the Louisiana Civil Code, fee simple title and easements do not exist

as such. The common-law term “fee simple” corresponds to what in civil law is

known as “perfect ownership.” 11 

### “Perfect ownership” gives the unlimited right to

use, enjoy, and dispos e of one’s property, and these rights, termed the “usus,”

“fructus,” and “abusus,” must be united in the same person to constitute “perfect

ownership.” 12 

### When, as is presented in this case, the property is subject to a limited

personal right-of-use servitude, the element of “usus” is restricted and ownership

is burdened with a real right in favor of another, leaving the property owner with13 

### La. Civ. Code art. 478.

1 4 

### Buras Ice Factory, Inc. v. Department of Highways of La.

, 103 So.2d 74, 80

(La. 1957).

15 

### 3 A.N. Yiannopoulos, Personal Servitudes §§ 1, 237 (3d ed. 1989).

16 

### Arkansas Louisiana Gas Co. v. Cutrer , 30 So.2d 864 (La.App. 1947);

Louisiana Power & Light Co. v. Bennett , 107 So.2d 468 (La.App. 1958); La.

Civ. Code art. 748; see also La. Civ. Code art. 645.

17 

### 345 U.S. 344.

-23- 

### only “naked ownership.” 13 

### As naked owners the Wiltzes could not, as the majority

holds, sell to the government a property interest they did not own, i.e., the

common-law equivalent of fee simple title. That is not legally possible under the

controlling civil law provisions.

The critical error in the majority’s analysis results from a failure to accord

to the servitude at is sue that which the Civil Code mandates. Under Louisiana’s

civil law system, “servitudes are restraints o n the free disposal and use of

property.” 14 

### A limited personal right-of-use servitude involves an element of the

right of ownership

-- the “usus” element. 15 

### Louisiana courts have underscored that

a servitude under Louisiana law is not legally identical to an eas e ment under the

common law because the servitude owner occupies a significantly superior

position. Under the civil law, the owner of the servient estate can do nothing to

diminish the use of the servitude or make it more inconveni ent. 16 

### Accordingly,

Fairfax County

, 17 

### upon which the majority he avily relies, is distinguishable, not18 

### The Lanham Act of October 1940 controlled in F airfax County

. The

condemnation authority granted by Congress in that Act, as amended in 1941

authorizin g condemnation of public works, including sewers, is significantly

legally different from the power granted in the instant case.

1 9 

### Under the Water Resources Development Act of 1986, Pub.L . No. 99-662,

§ 601, 100 Stat. 4082, 4137, 4142 (1986), the government’s power herein was

limited to securing full ownership from willing sellers. Its powers of expropriation

were limit ed to acquiring easements over private land for flood control and

e nvironmental protection. It was not given authority to expropriate property for

recreational development and public access. Nonetheless, that effectively has been

done herein.

-24- 

### dispositive 18 

### and, most importantly, cannot be applied in a civil law setting with its

unique property ownership structure. In light of the unyielding legal provision that

a limited personal right-of -use servitude includes an element of the right of

ownership under civil law, when land that is burdened with a servitude is taken by

eminent domain, if the government is to obtain the common-law equivalent of fee

simple title the government must take both ownership and servitude, making the

person entitled to the servitude a necessary party to the proceedings. The

government in this instance not only failed to obtain the servitude holder’s consent,

but it failed to make the servitude holder a party to the underlying proceedings by

giving the requisite Rule 71A notice.

The gove rnment did not obtain the common-law equivalent of fee simple

title. It could not do so from the Wiltzes alone; it did not do so by adding Texaco,

assuming it had the power to do so

. 19 

### The Texaco deer-hunting servitude, a real

interest in the property, has not legally be en acquired by the government. It

belongs to the Wiltzes. They should be compensated for its fair value if they are

deprived of its ownership as the majority has affirmed. I must dissent. I would-25-



### vacate the summary judgment entered by the district court and remand for entry of

summary judgment in favor of the Wiltzes.