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Milliner v. Government of Virgin Islands

decided: March 2, 1979.

LESLIE MILLINER
v.
GOVERNMENT OF THE VIRGIN ISLANDS, APPELLANT.



ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS & ST. JOHN (Civ. No. 192-1977, D.V.I.)

Before Seitz, Chief Judge, Weis and Garth, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

Plaintiff, Leslie Milliner, brought this action against the Government of the Virgin Islands, claiming that the Government paved an existing dirt road on his property without his consent, and that the road was being used as a public thoroughfare despite his repeated attempts to close it. Milliner characterized the Government's action as a taking of private property for public use without just compensation, in violation of section 3 of the Revised Organic Act of the Virgin Islands. He sought relief either in the nature of an injunction requiring the Government to close the road and restore the property to its former condition or an award of just compensation for the property taken, including damages for the diminution in value of his remaining property adjacent to the road.

The case was tried before the District Court of the Virgin Islands and judgment was entered for the plaintiff in the sum of $42,676.50, together with interest, attorney's fees and costs. The Government appeals from that judgment.

I.

Leslie Milliner is the fee owner of Parcel No. 56, Smith Bay, St. Thomas. His uncontradicted testimony at trial revealed that sometime in the fall of 1972 he became aware that the Government had paved a private dirt road he had cut along the edge of his undeveloped property. That road now connects two public thoroughfares. Eventually, the Public Works Department admitted to Milliner that they had paved the road by mistake and advised him to fence it off at its intersections with the public highways. Milliner informed the Department that he had planned to build a home on the property and wanted to be certain that there were no restrictions on the proximity of his home to the road. The Department advised him that there were no restrictions because the road belonged to him and that he could build as close to it as he wished. Milliner's construction plans were later submitted to the Department and were approved, and the house was built.

Subsequently, Milliner attempted to close off the paved road at its intersections with the public thoroughfares. His neighbors protested, however, destroying his barriers and threatening him with physical violence, evidently acting on the assumption that a road paved by the Government was a public highway. Beginning in August, 1975, and for fourteen months thereafter, Milliner attempted to have the Government close the road and, if need be, restore it to its former condition. When these attempts failed he filed this lawsuit.

At the non-jury trial Milliner testified that he had observed incidents of drag racing on the road and that this caused him to fear for the safety of his children. He also complained that garbage had been dumped on his property by people using the road. After both sides had rested, the district judge entered his oral findings and conclusions into the record. He found that the Government had taken Milliner's property without just compensation, that, given the circumstances, Milliner had not acted unreasonably in bringing this action some four years after the paving of the road, that Milliner should be compensated for the fair market value of the land taken, that the Government's action in paving the road raised certain hazards to Milliner's enjoyment of his adjacent property from which he was entitled to be protected and that he should be awarded the cost of constructing a fence between the road and his remaining property. The court rejected Milliner's claim for additional consequential damages to the remaining portion of his land. Judgment was entered for Milliner in the amount of $42,676.50; $10,862.50 for the land taken and $31,814.00 for the cost of fencing.

II.

The Government does not contend on appeal that the paving of Milliner's private road did not constitute a taking. Nor does it contend that it was erroneous for the district court to conclude that, although the taking took place in 1972, before Milliner's house was built, he was entitled to be compensated for damages to his remaining land that did not arise until after the house was completed. We note that the district court's conclusion in this regard was understandable given the Government's assurances to Milliner when he built his house that the road could be maintained by him for his private use.

A.

We find no merit in the Government's contention that this case must be remanded because of the district court's failure to make separate findings of fact and conclusions of law in accord with Rule 52(a) of the Federal Rules of Civil Procedure. The oral findings and conclusions entered by the district court at the conclusion of the trial are sufficient to indicate the basis of the trial judge's decision and ...


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