
    378 F. 2d 696
    A. J. MYERS v. THE UNITED STATES WALTER JAMES WEAVER, ET AL. v. THE UNITED STATES
    No. 366-63
    No. 367-63
    [Decided June 9, 1967]
    
      
      Bailey E. Bell, attorney of record, for plaintiffs.
    
      David D. Hoehstein, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before CoweN, Ohief Judge, Laeamoee, Dueeee, Davis, ColliNS, Skelton and Nichols, Judges.
    
   PeR Curiam:

This case was referred to Trial Commissioner C. Murray Bernhardt with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in a report and opinion filed on October 10, 1966. Exceptions to the commissioner’s findings and recommended conclusion of law were filed by the plaintiff and the case was submitted to the court on the brief of the plaintiff and oral argument of counsel, defendant having submitted pursuant to Buie 62 (b) without exceptions and brief. Since the court is in agreement with the opinion and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiffs are, therefore, not entitled to recover and their petitions are dismissed.

Commissioner Bernhardt’s opinion, as modified by the court, is as follows:

These consolidated companion cases were originally filed in the United States District Court for the District of Alaska against the United States under the Federal Tort Claims Act (28 U.S.C. § 1346 (b)). The District Court dismissed the complaints (Myers v. United States, 210 F. Supp. 695 (D.Alaska 1962)). On appeal they were remanded to the district court with the suggestion that they be transferred to the Court of Claims under 28 U.S.C. § 1406(c), for the reason that as reputed “inverse condemnations” they properly lay under the Fifth Amendment to the Constitution and the Tucker Act (-28 TJ.S.C. § 1491), rather than the Federal Tort Claims Act. Myers v. United States, 323 F. 2d 580 (9th Cir. 1963). On December 9, 1963, the district court entered an order transferring the cases to this court, where the plaintiffs filed their respective petitions on January 23,1964, under 28 U.S.C. § 1491.

The petitions present in common a question of the defendant’s right to widen and partially reroute a public road pursuant to provisions in land patents issued to plaintiffs reserving to the Government rights-of-way for roads, etc., constructed or to be constructed. The plaintiffs contend that the reserved easement for right-of-way was fully exercised by a road across their properties preexisting their respective patents, and that a widening and relocation of that road in 1959 constituted an inverse condemnation for which they are entitled to payment of just compensation. They point to Notices of Allowance of their applications for homestead grants, preceding the patents, which in each case described the property to be conveyed as “Subject to 50' easement on either side of the center line for local road”, and say the Government could not exceed that margin without condemnation proceedings. The defendant rests on the literal terms of the applicable statute and the reserved rights-of-way in the patents, as these and similar reserved rights-of-way have been judicially construed in analogous situations.

The Wasilla-Big Lake Eoad was constructed in 1949 on then Government-owned land in Alaska. It curved through the northern halves of two contiguous parcels of land later patented separately to plaintiffs Myers and Weaver, respectively, in 1954 and 1956, containing 160 and 155 acres, in that order. Each of these homestead grants included the segment of road running through it (P.L. Order 757, 16 Fed. Eeg. 10549), but each reserved to the United States as grantor a “right-of-way for roads, roadways, highways, tramways, trails, bridges, and appurtenant structures constructed or to be constructed by or under tbe authority of the United States or by any State created out of the Territory of Alaska, in accordance with the act of July 24, 1947 (61 Stat. 418, 48 U.S.C. sec. 321d).”

Order No. 2665, entitled “Rights-of-Way for Highways in Alaska”, which was promulgated ‘by the Secretary of the Interior on October 16,1951 (16 Fed. Reg. 10752) pursuant to the Act of June 30, 1932, as amended (48 U.S.C. § 321a (1946)), classified the Wasilla-Big Lake Road as a local road and reserved a right-of-way easement in the lands 50 feet on either side of the center line of the road as then constructed, which had an actual surfaced width of 18 to 20 feet at that time. Amendment No. 2 to Order No. 2665, dated September 15, 1956 (21 Fed. Reg. 7192), reclassified the road in question from a local road to a through road, which had the effect of authorizing expansion of the right-of-way easement to 300 feet for roadbuilding purposes.

In 1959, after due notice was given to plaintiffs and other affected property owners, the Government widened, paved, and partially relocated the road. The new road, including adjacent fills and cut slopes (collectively the so-called road “prism”), extended from 68 feet south to 132 feet north of the center line of the old road, for a total width of 200 feet as contrasted to the 100-foot right-of-way easement which the old dirt-and-gravel road had traversed. The expansion to a width of 200 feet involved an increase of 18 feet to the south side and 82 feet to the north side of the previous 100-foot right-of-way. The new road exactly followed the course of the old road across Myers’ property, but halfway across Weaver’s property it spurred off the route of the old road for 2,165 feet, rejoining it subsequently on a neighboring property. The abandoned part of the old road remained, but was not maintained.

Amended complaints by these plaintiffs claim compensation of $52,483.20 (Myers) and $63,979.20 (Weaver) arising from the construction of the new road. Myers’ petition comprises separate claims for obstruction of access to his garden, taking of gravel, frustration of plans to install a gasoline filling station and of plans to subdivide and sell residential lots, impairment of his restaurant business due to interference with his means of ingress, egress, and parking, despoliation of trees, obstruction of property by contractor’s equipment, loss of two business signs, and a loss in resale value of his property. Weaver’s petition presents claims for expropriation of gravel, impairment of access to his home and garden due to grade alterations affecting his driveway and a trail road through his property, taking of land occupied by the widened and diverted road, frustration of a proposed garden business, littering of his premises with overburden, boulders, and test holes, and general damage to his property. The plaintiffs do not suffer from modesty in the amounts they claim. Certain of these claims the plaintiffs made no effort to prove; others they proved inadequately ; for none are they entitled to recover because of the state of the applicable law. The accompanying findings present those facts afforded by the record. An effort will be made to condense them here.

First, as to Myers. Alongside the old road he had a quonset hut residence, an unpretentious coffeeshop seating 14 at the counter plus a few more in two booths, a garage, greenhouse, outdoor toilet, and a shed. Across the road he had a three-acre quondam garden. The coffeeshop attracted a few customers from passing traffic en route to or from nearby Big Lake in the summer months. Oars, many hauling boat trailers, would pull in to Myers’ parking area from the old road at any place within a distance of 400 running feet. The old road was flush with his parking area, which could hold as many as six cars with boat trailers. It was not demonstrated that the coffeeshop ever made a profit, and undoubtedly it did little or no business in the winter months since for two complete winters Myers closed up when he vacationed in the “lower 48”. Myers’ facilities were within the 200-foot right-of-way for the new road. In order not to disturb Myers, and to save the Government the cost of paying him for the removal of his improvements, the right-of-way plans for the new road were altered to bypass or jog around Myers’ place, by means of narrowing the right-of-way by 67 feet for a 220-foot stretch along the highway. Even so this concession shrank Myers’ parking area somewhat, to the point where it would accommodate only two cars with boat trailers, instead of six as before. Moreover, the new road when it was completed was from three to five feet higher than the parking area, so purportedly in the slippery winter months with ice and snow on the ground cars had difficulty in climbing up onto the new highway from the parking area. It is somewhat difficult to appreciate that cars equipped for winter weather in Alaska would be unable to overcome this type of obstacle, assuming there were cars patronizing the coffeeshop in the dead of an Alaskan winter.

Myers subdivided and sketched a plat for eight lots on the northern fringe of his property bordering the old road. The widened new road necessarily decreased the maximum depth of his proposed subdivision lots to an extent where he abandoned the idea, after purportedly finding a purchaser for one lot who backed out of the transaction before leaving a deposit or signing a sales contract, allegedly for the reason that the altered lot was too shallow. The plat was never recorded. It is concluded that Myers’ plan to sell lots was genuine but tentative, and that whatever depth was removed from the lots as laid out resulted entirely from the widening of the road to 200 feet.

It is also claimed that the curtailment of the available parking area put an end to Myers’ plans to install a gasoline filling station, although these plans had ripened only to the point of Myers making preliminary informal inquiries at the Texaco office (re a franchise) and the Small Business Administration (re a loan). The plan, if such it was, was so tentative and unproven that it amounted to only frustrated future hopes rather than the deprivation of property rights in esse required to support a claim of taking.

The same might be said for the three-acre garden across the road, which Myers had cleared a few years earlier, had unsuccessfully sown to oats in 1958, and intended in 1959 to plant to onions and radishes for commercial sales, when the widening of the road temporarily closed his entrance into the garden. The obstruction consisted of a temporary earth berm pushed up by defendant in the course of excavating the new road. A bulldozer could have cut an entrance through into the garden in short order, and in fact the offer to do so was made but Myers never advanced his garden plans to the point of obtaining tilling equipment, so the defendant delayed until July before cutting the entrance through. Actually, Myers had never worked his garden on a commercial scale before 1959, nor has he since. It is unlikely that he had serious intentions of doing so in the summer of 1959, particularly in view of his admission that he is no farmer, had no equipment, and failed to request the contractor to perform the offered and relatively easy service of bulldozing an entrance way into his garden whenever he wanted it done. There is no evidence of any arrangements having been made in 1959 to plant the garden in commercial quantities and, of course, there were no crops that year for whose elimination the Government would be required under the applicable statute to reimburse Myers. His claim for lost 1959 crops was on a “but for” basis.

Finally, Myers contends that in 'building the new road the defendant removed an estimated 18,836.4 cubic yards of gravel from his property for which he is entitled to payment. All of this gravel was removed from an area within the Government’s 300-foot right-of-way, and almost all of it was removed from the 200-foot right-of-way which was exercised in building the new road. For reasons which will become apparent in the forthcoming discussion of the law applicable to the case, no such activities by the Government in the lawful exercise of its reserved right-of-way can result in a recovery. The same is true as to the interferences with Myers’ parking area and entrance into his coffeeshop, described earlier, all of which occurred within the planned right-of-way area, altered for the reasons mentioned.

The Weaver claim is slightly different. His house and garage were fairly level with the old road, but the new road was 11 feet lower. Thus, the 200-foot driveway from the old road up to Weaver’s garage terminated in an 11-foot cliff at the new roadside and became inaccessible without regrading. The defendant regraded the driveway so it debouched level with the new road, and widened the entrance, but the regrading increased the gradient from 1 percent to 6.5 percent. This was satisfactory during most of the year, but after a fresh snowfall it became impossible to negotiate with a car unless Weaver first shoveled off the snow. This was not too frequent, two or three times in one winter, he said, but there is his other testimony to the contrary. If his access was blocked for protracted periods during the bad weather this might occasion a valid claim, but we must accept his admission in the record that it happened that way only two or three times in one winter, even though his other testimony sharply increased the frequency rate.

Weaver cleared a garden area adjacent to his house in the spring of 1959, intending to grow radishes and onions, and raise chickens, for sale. Customary access to his garden area was by an old trail road some distance west of his driveway but still on his property. The cutting of the new road intersecting the old trail road serving Weaver’s property and garden area left the entrance to the old trail road on a bank several feet higher than the new road, and thus inaccessible to motorized farm equipment. For some reason that is not explained in the record the Government did not regrade the terminus of the old trail road so that equipment could mount it from the new highway. However, it also appears that the garden area was accessible from the top of Weaver’s driveway leading to his garage, so it would have been possible for him to have gained access in that way if he seriously-wanted to. Weaver became ill in the spring of 1959, and it is this more than anything else which explains his failure to go ahead with plans to grow commercial crops in his garden.

The Weaver petition presents other claims. A large one is for gravel removed from his property for use by the Government in building the new road. A good part of the gravel came from regrading the driveway, but this was for Weaver’s benefit, and besides most of the gravel removed from that source must have come from somewhere within the 300-foot right-of-way easement which the Government had reserved the right to exercise. Another part of the gravel claim represents gravel removed from those parts of Weaver’s property through which the new road was cut after it branched off from the old road halfway through Weaver’s property. Since this gravel was ostensibly within the 200-foot right-of-way easement which the Government was exercising in cutting the new road through, this could not base a claim because of the legal problems to which we shall come later.

Weaver wanted to sell gravel to the Government contractor for the new road, and at his request the contractor dug 15 or 20 test holes, only to find the gravel unsuitable. The contractor refilled all but three or four of these test holes, which he left unfilled at Weaver’s request. Since the entire operation was done for Weaver’s benefit and at his request, this could hardly support a claim against the Government. On another occasion Weaver asked the contractor to bulldoze onto his property the topsoil from an adjacent excavation area for the new road. The contractor skimmed off the overburden as requested, but it was, of course, a conglomeration of trees, rocks, tundra, flora, and some inextricable topsoil. No doubt a bulldozer lacks finesse sufficient to segregate topsoil from overburden, even if this had been the agreement. Here again the Government cannot be held to account for the consequences of a private arrangement between the contractor and Weaver just because it did not turn out as expected and left portions of Weaver’s property littered with unusable debris, including sizable boulders. Weaver’s final claim is for the diminishment of the value of his property in general by reason of the circumstances as they have been described.

These facts present two principal legal issues:

(1) Whether section 21(d)(7) of the Alaska Omnibus Act, 73 Stat. 146 (1959), which repealed the Act of July 24, 1947, ch. 313, 61 Stat. 418, is to be given a retroactive construction thus nullifying the reservation of the rights-of-way contained in the 1947 Act and in the land patents granted to the plaintiffs.

(2) Whether the specific language contained in the “Notices of Allowance” preceding the patents, to the effect that the properties were subject to a 50-foot easement on each side of the center line of the local road, limits the defendant’s rights-of-way to that extent, notwithstanding the general terms of the statute incorporated in the land patents granted to the plaintiffs.

The plaintiffs contend that since the Act of July 24, 1947 was repealed by section 21(d) (7) of the Alaska Omnibus Act, both supra,, prior to the institution of their present suits, the defendant is restricted to the Notices of Allowance and the land patents themselves in determining the extent of the rights-of-way for roads and highways which it reserved across plaintiffs’ properties. Since the reservations for roads in the patents did not purport to fix the width or loca - tion of the roads, the plaintiffs would limit the defendant’s rights-of-way to the 100-foot limits specified in the Notices of Allowance.

In repealing the Act of July 24, 1941, supra, the Alaska Omnibus Act was operative only prospectively and did not disturb the application of the repealed Act to earlier transactions. This is consistent with the normal standard of statutory interpretation which prevails in the absence of a clear and explicit intention to the contrary. Greene v. United States, 376 U.S. 149, 160 (1964); Fairchild Engine & Airplane Corp. v. United States, 152 Ct. Cl. 352, 355, 285 F. 2d 131, 132 (1961); 2 Sutherland, Statutory Construction, § 2201 (3rd Ed. 1943). The language of section 21 of the Alaska Omnibus Act did not in any way indicate a congressional intent to revoke or cancel rights-of-way reserved in patents issued prior to July 1, 1959, the effective date of the repeal. The legislative history of the Act reveals no such intention. Cf. dissenting opinion in State, Dept. of Highways v. Crosby, 410 P. 2d 724 (1966). In construing the effect of a public grant, it is the established rule that the law in force at the time the grant is made governs. United States v. 3.08 Acres of Land, etc., 209 F. Supp. 652, 656 (N.D. Utah, 1962). See 1 Sutherland, supra, § 2044. Thus, it is clear that the Alaska Omnibus Act of 1959 did not affect the rights-of-way reservations contained in those patents issued pursuant to the Act of July 24,1947.

Turning to the second question as to whether the 100-foot easement specified in the Notices of Allowances issued to the plaintiffs imposed a permanent limit on the defendant’s exercise of the rights-of-way reservations in the patents, this presents two subordinate inquiries, namely: first, whether the construction of the old road in 1949 across the public domain constituted an exercise of the reservation created 'by the Act of July 24,1947, and contained in the plaintiffs’ patents, and second, if so, whether the reservations nevertheless licensed the defendant to enlarge or reroute the earlier road.

Plaintiffs rely principally on Hillstrand v. State of Alaska, 181 F. Supp. 219 (D. Alaska 1960), review denied, 352 P. 2d 633 (1960), in contending that the construction of the old road in 1949 was an exercise of the reservation and was pre-clusive of any further exercises. In Hillstrand it was held that, although the Act of July 24,1947 was without limitation as to the initial exercise of the reservation by either the Federal or State Government, once the rights-of-way had been selected and defined, later improvements necessitating the utilization of land upon which the road was not already located, must be accomplished pursuant to condemnation proceedings. Later, after a trial, the Alaska Superior Court departed from this position and accepted the contrary ruling of Judge Plummer in Myers v. United States, 210 F. Supp. 695 (D. Alaska 1962). See Hillstrand v. State of Alaska, Superior Court for the State of Alaska, Third Judicial District, No. A-16,205, Memorandum of Decision, dated Sept. 6, 1963. As noted above, the decision in the Myers case was nullified when on remand from an appeal the district court transferred the matter to this court for jurisdictional reasons, but the district court record in the Myers case comprises 90 percent of the record before this court, where a trial was held on the separated issue of liability.

The plaintiffs’ patents included the land over which the old road was constructed in 1949. At the time of its construction the United States owned the land and needed no reservation for its right-of-way. But when the land encompassing the road was conveyed to the plaintiffs, the United States then was required to, and indeed did, reserve rights-of-way expressly which constituted an exercise of the reservation. This was so because a public road was in existence traversing the land conveyed. Moreover, the Notices of Allowance to the plaintiffs expressly made the properties subject to the local road which was described as an “easement”. By definition “An easement is a right of one in the land of another. It is not the land itself.” Kennecott Copper Corp. v. United States, 171 Ct. Cl. 580, 613, 347 F. 2d 275, 294 (1965). However, the words “easement” and “right-of-way” have been used interchangeably by the courts in treating statutes reserving rights-of-way in favor of the United States. See Northern Pac. Ry. Co. v. United States, 277 F. 2d 615, 618 (10th Cir. 1960).

It then becomes pertinent to inquire whether the United States can exercise its reservation more than once. House Report No. 673 of the 80th Congress, June 24, 1947 (U.S. Code, Cong. Serv., 1947, p. 1353), which reported the 1947 Act under review, consistently referred to the term “rights-of-way” across public lands in the Territory of Alaska in the plural, as did the reprinted letter 'from the Department of the Interior endorsing the legislation, as if in recognition of the fact that extensive roadbuilding activity was anticipated across public land as well as across homestead grants and other privately owned lands. The letter from the Department of the Interior analogized the legislation to the Act of August 30, 1890 (26 Stat. 391, 43 U.S.C. §945), reserving rights-of-way for ditches and canals constructed by the United States, and to the Act of March 12,1914 (38 Stat. 305, 48 U.S.C. §305 (1946)), reserving rights-of-way for railroads in patented lands in Alaska. Both of these last two statutory reservations are expressly set out in the land patents issued to our plaintiffs. One of them expressed the right-of-way as covering “ditches or canals constructed by the authority of the United States.”, and the other as covering “a right of way for the construction of railroads, telegraph and telephone lines.” This is to be contrasted with the language of the 1947 Act under consideration which reserves a right-of-way for “roads * * * constructed or to be constructed by or under the authority of the United States. * * (Emphasis supplied.) Note that the italicized terminology in the last-mentioned statute specifically refers to present or future roads and in the plural form, whereas the Act of August 30, 1890, sufra, as to rights-of-way for ditches and canals omits specific reference to those to be constructed in the future. Despite this, the Supreme Court in Ide v. United States, 263 U.S. 497 (1924), interpreted the narrower statute in the following words at 501-02:

* * * But we think the contention [i.e., that the reservation in the patent there in issue directed to canals and ditches “constructed or to be constructed” was void to the extent that it exceeded the statutory language relating to canals and ditches “constructed”] ascribes to the direction a narrower scope than Congress intended it should have. The officers of the land department, as the patents show, regard it as comprehending all canals and ditches constructed under the direct authority of the United States, whether the construction precedes or follows the issue of the patent. * * * Of course the direction must be interpreted in the light of the circumstances which prompted it, and when this is done the conclusion is unavoidable that the direction is intended to include canals and ditches constructed after patent issues quite as much as those constructed before. All courts in which the question has arisen have taken this view. [Citations.]

It is no longer open to doubt that the United States has reserved rights-of-way in the cases before us which may come into existence subsequent to the issuance of the deed or patent. The legislative history of the 1947 Act, cited earlier, evidences congressional concern with the instances where it might be necessary to expend Federal funds and cause litigation delays in obtaining rights-of-way for public roads in Alaska which would cross lands once owned by the United States. This concern extended to the obvious situation where a person who acquired land under the homestead laws would later be in a position to demand just compensation from the Government, except for the intentional wording of the statute preventing such claims. The unpredictability of road requirements in the then frontier Territory of Alaska, both as to location, size and number, makes it logical to conclude that Congress foresaw the exact situation demonstrated by the present cases in framing the 1947 Act. This construction of the 1947 Act not only comports with the undoubted intent of Congress, but also complies with the general rule of law that “grants from the sovereign should receive a construction favorable to the claim of the government rather than that of the grantee.” MacDonald v. United States, 119 F. 2d 821, 825 (9th Cir. 1941), mod. sub nom, Great Northern Ry. Co. v. United States, 315 U.S. 262, 272 (1942).

At the least, the Government can exercise its reservation once after the land goes into private ownership. “Since the land over which, the road was constructed was public domain in 1949 the United States needed no reservation for its right-of-way.” Myers v. United States, supra, 210 F. Supp. at 700. The later widening of the road was the first exercise of the reservation after the plaintiffs acquired the land. We need not decide, therefore, what are the limits, if any, on the repeated exercise of the Government’s reservation.

It follows that the Notices of Allowance do not in any way confine or limit the property interest of the Government in the right-of-way reservations in the plaintiffs’ patents. The petitions must be dismissed.

FINDINGS oe Fact

1. (a) These actions were originally filed in the United States District Court for the District of Alaska in the latter part of 1959 against the United States and McLaughlin, Inc., a Government contractor, to recover damages totaling $133,249.70 for trespass and waste allegedly committed on the plaintiffs’ properties during the course of the construction and widening o'f the Wasilla-Big Lake Junction Eoad. The district court was alleged to have jurisdiction against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b), and against McLaughlin, Inc., under 28 U.S.C. § 1332(a)(1).

(b) The cases were consolidated for trial and a lengthy trial was had on the merits after which the district court rendered an opinion, findings of fact and conclusions of law, dismissing the plaintiffs’ second amended complaints. Myers v. United States, 210 F. Supp. 695 (D. Alaska 1962). On appeal the United States Court of Appeals for the Ninth Circuit affirmed the judgment of dismissal as to McLaughlin, Inc., but remanded the cases to the district court insofar as they sought recovery against the United States, with the suggestion that they be transferred to the Court of Claims under 28 U.S.C. § 1406(c). The court held that the plaintiffs’ alleged causes of action for damages for trespass and waste were not properly brought under the Federal Tort Claims Act, but should have been brought under the Fifth Amendment to the Constitution and the Tucker Act, 28 U.S.C. § 1491, since the acts of the United States of which the plaintiffs complained were in the nature of “inverse condemnation”. Myers v. United States, 323 F. 2d 580 (1963).

(c) On December 9, 1963, the district court entered an order transferring these cases to this court and on January 23,1964, the plaintiffs filed their petitions.

2. (a) In a pretrial stipulation filed August 4, 1965, the parties agreed that the transcript of testimony and all of the exhibits received in evidence at the original trial of these cases in the United States District Court for the District of Alaska might be admitted into evidence at the hearings before the trial commissioner and were to be considered as part of the evidence and record in these cases.

(b) At the hearings before the trial commissioner at Anchorage, Alaska, in August 1965, the transcript of testimony and all of the exhibits at the previous trial were admitted in evidence, and the issue of liability was separated from the issue of damages.

3. (a) The Wasilla-Big Lake Hoad was originally constructed by the Alaska Boad Commission in 1949 across lands which were then part of the public domain, including the lands now owned by the plaintiffs.

(b) The road was a local or secondary road which varied in width from 18 to 20 feet and its surface consisted primarily of dirt and gravel.

4. In 1952 and 1953 the plaintiffs, A. J. Myers and Walter James Weaver, made homestead entries and initiated their rights to the lands hereinafter described, which was subsequent to the construction in 1949 of the Wasilla-Big Lake Boad by the Alaska Boad Commission.

5. On February 4, 1952, the local office of the Bureau of Land Management, Department of the Interior, issued a notice allowing the homestead entry of the plaintiff, A. J. Myers, covering the following described property:

NE14 sec. 12, T. 17 N., B. 2 W., Seward Meridian, containing 160 acres.

The notice of allowance of entry expressly provided that the S%NE:¡4 of the property was subject to a railroad right-of-way and that the property described was subject to a 50-foot easement on each side of the center line of the local road.

6. On May 28,1954, tibe local office of the Bureau of Land Management, Department of the Interior, issued a notice allowing the homestead entry of the plaintiff, Walter James Weaver, covering the following described property:

Ni/aNEiANE'i^NWiA, NW^NEi^NW^, NW%, SE14NW34, Wy2NWi/4, sec. 12, T. 17 N, R. 2 W., Seward Meridian, containing 155 acres.

The notice of allowance of entry expressly provided that the property was subject to a 50-foot easement on each side of the center line of the local road.

7. Pursuant to the authority set forth in the Act of June 30, 1932, ch. 320,47 Stat. 446, as amended July 26,1947, 61 Stat. 501, the Secretary of the Interior issued Order No. 2665, 16 Fed. Reg. 10752, dated October 16,1951, entitled Rights-of-Way for Highways in Alaska, which provided, among other things, that the right-of-way or easement for local roads should extend 50 feet on each side of the center line. By Amendment No. 2 to Order No. 2665, dated September 15, 1956, 21 Fed. Reg. 7192, the Palmer-Wasilla-Willow Road was designated as a through road and the Palmer-Finger Lake-Wasilla Road was deleted from the list of so-called feeder roads. The effect of this amendment was to reclassify the Wasilla-Big Lake Road from a local road to a through road with a width of 300 feet.

8. The text of Interior’s Order No. 2665 of October 16,1951, and Amendment No. 2 to that order dated September 15,1956, is as follows:

(a) [Order 2665] RIGHTS-OF-WAY FOR HIGHWAYS IN ALASKA
SectioN 1. Pwrjjose. (a) The purpose of this order is to (1) fix the width of all public highways in Alaska established or maintained under the jurisdiction of the Secretary of the Interior and (2) prescribe a uniform procedure for the establishment of rights-of-way or easements over or across the public lands for such highways. Authority for these actions is contained in section 2 of the act of June 30, 1932 (47 Stat. 446, 48 U.S.C. 321a).
Sec. 2. Width of public highways, (a) The width of the public highways in Alaska shall be as follows:
(1) For through roads: The Alaska Highway shall extend 300 feet on each side of the center line thereof. The Richardson. Highway, Seward-Anchorage Highway, Anchorage-Lake Spenard Highway and Fairbanks-College Highway shall extend 150 feet on each side of the center line thereof.
(2) For feeder roads: Abbert Road (Kodiak Island), Edgerton Cutoff, Elliott Highway, Seward Peninsula Tram road, Steese Highway, Sterling Highway, Taylor Highway, Northway Junction to Airport Road, Palmer to Matanuska to Wasilla Junction Road, Palmer to Finger Lake to Wasilla Road, Glenn Highway Junction to Fishhook Junction to Wasilla to Knik Road, Slana to Nabesna Road, Kenai Junction to Kenai Road, University to Ester Road, Central to Circle Hot Springs to Portage Creek Road, Manley Hot Springs to Erueka Road, North Park Boundary to Kantishna Road, Paxson to McKinley Park Road, Sterling Landing to Ophir Road, Iditarod to Flat Road, Dillingham to Wood River Road, Ruby to Long to Poorman Road, Nome to Council Road and Nome to Bessie Road shall each extend 100 feet on each side of the center line thereof.
(3) For local roads: All public roads not classified as through roads or feeder roads shall extend 50 feet on each side of the center line thereof.
Sec. 3. Establishment of rights-of-way or easements. (a) A reservation for highway purposes covering the lands embraced in the through roads mentioned in section 2 of this order was made by Public Land Order No. 601 of August 10, 1940, as amended by Public Land Order No. 757 of October 16,1951. That order operated as a complete segregation of the land from all forms of appropriation under the public-land laws, including the mining and the mineral leasing laws.
(b) A right-of-way or easement for highway purposes covering the lands embraced in the feeder roads and the local roads equal in extent to the width of such roads as established in section 2 of this order, is hereby established for such roads over and across the public lands.
(c) The reservation mentioned in paragraph (a) and the rights-of-way or easements mentioned in paragraph (b) will attach as to all new construction involving public roads in Alaska when the survey stakes have been set on the ground and notices have been posted at appropriate points along the route of the new construction specifying the type and width of the roads.
Sec. 4. Road maps to be fled in proper Land Office. Maps of all public roads in Alaska heretofore or hereafter constructed showing the location of the roads, together with appropriate plans and specifications, will be filed by the Alaska Eoad Commission in the proper Land Office at the earliest possible date for the information of the public.
Osoae L CHAPMAN, Secretary of the Interior.
(b) [Order 2665, Amendment No. 2] ALASKA. EIGHTS OF WAY FOE HIGHWAYS.
1. Section 2(a) (1) is amended by adding to the list of public highways designated as through roads, the Fairbanks-International Airport Eoad, the Anchorage-Fourth Avenue-Post Eoad, the Anchorage International Airport Eoad, the Copper Eiver Highway, the Fairbanks-Nenana Highway, the Denali Highway, the Sterling Highway, the Kenai Spur from Mile 0 to Mile 14, the Palmer-Wasilla-Willow Eoad, and the Steese Highway from Mile 0 to Fox Junction; by re-designating the Anchorage-Lake Spenard Highway as the Anchorage-Spenard Highway, and by deleting the Fairbanks-College Highway.
2. Section 2(a) (2) is amended by deleting from the list of feeder roads the Sterling Highway, the University to Ester Eoad, the Kenai Junction to Kenai Eoad, the Palmer to Finger Lake to Wasilla Eoad, the Paxson to McKinley Park Eoad, and the Steese Highway, from Mile 0 to Fox Junction, and by adding the Kenai Spur from Mile 14 to Mile 31, the Nome-Kougarok Eoad, and the Nome-Teller Eoad.
Feed A. SeatoN, Secretary of the Interior.

9. The defendant granted a patent to the plaintiff, A. J. Myers, on March 31, 1954, covering the property described in Finding 5. The patent contained several conditions and reservations, among which was the following:

* * * (3) the reservation of a right-of-way for roads, roadways, highways, tramways, trails, bridges, and appurtenant structures constructed or to be constructed by or under authority of the United States or by any State created out of the Territory of Alaska, in accordance with the act of July 24, 1947 (61 Stat. 418, 48 U.S.C. sec. 321d).

10. The defendant also granted a patent to the plaintiff, Walter James Weaver, on July 16, 1956, covering the property described in Finding 6. The patent contained a reservation identical to that contained in the patent to A. J. Myers, set forth in the preceding finding.

11. (a) The Myers property is located about three and three-fourths miles west of Wasilla on the Wasilla-Big Lake Junction Road and lies north and south of the road which passes through the northern end of the property in a generally east-west direction.

(b) At the time of the issuance by the defendant of a patent to the plaintiff Myers on March 31,1954, the property was improved with a quonset hut, 16' x 37', which was used as a residence, a small cafe or restaurant, 16' x 21', known as The Little Coffee House, a small greenhouse, garage, outdoor toilet and shed. The remainder of the property was heavily timbered with birch, spruce and alder and a considerable portion of the land was swampland. Myers cleared about three acres of the land south of the road for use as a garden (see Finding 23, infra).

12. (a) The Weaver property is located approximately four miles west of Wasilla on the Wasilla-Big Lake Junction Road and considerable portions of it adjoin the Myers property. The road passed through the northern end of Weaver’s property as it left Myers’.

(b) At the time Weaver received a patent from the defendant on July 16, 1956, the improvements consisted of a one-story 20' x 27' frame house, a well, and a double garage, 20' x 20'. Approximately four acres of the Weaver property adjacent his house were cleared. The remainder contained a dense growth of birch trees and, as in the case of the Myers property, much of the area was swampy.

13. By letter dated October 23,1958, the Regional Engineer of the Bureau of Public Roads, Department of Commerce at Juneau, Alaska, informed the plaintiffs, Myers and Weaver, and about 20 other individuals whose properties were located by the Wasilla-Big Lake Road, that the Bureau of Public Roads had completed design drawings for the reconstruction of the road for a distance of 9.6 miles. The letter stated in part as follows:

* * * The construction of this highway to modern roadway standard widths requires sufficient right-of-way to contain the roadway fills and cut slopes. This right-of-way must be obtained from the adjacent property owners and your property is one of the tracts affected by this construction. * * * In this regard our government, at the time the land you now own was patented and separated from the public domain, reserved a right-of-way for roads, roadways and highways in and through your land by inserting the following language in the subject patent: “Subject to the reservation of a right-of-way for roads, roadways, highways, tramways, trails, bridges, and appurtenant structures constructed or to be constructed by or under authority of the United States or by any State created out of the Territory of Alaska, in accordance with the Act of July 24, 1947.”
For your convenience we have prepared in detail and are enclosing a plan and profile sheet of the design drawings showing the exact location of the highway to be constructed, the width of the right-of-way in and through your property, which we are utilizing pursuant to the reservation in the patent. Although the Bureau is not authorized to reimburse you for the land, we shall reimburse you for the value of crops and for adjustment of improvements located on the right-of-way area. * * *.

14. In the latter part of October 1958 the defendant entered into a contract with McLaughlin, Inc., who was the successful bidder for the grading, drainage and bituminous treatment (paving) of 9.6 miles of the Wasilla-Big Lake Junction Hoad beginning at Wasilla and ending at Big Lake Junction. The work was to be completed within 210 days after the date of receipt of notice to proceed.

15. The plan and profile of the new road and the specifications contained in the contract showed that the “prism” of the new road (i.e., the surface, adjacent fills, and cut slopes) would be 200 feet wide even though the defendant had reserved a 300-foot right-of-way over the plaintiffs’ lands by Amendment No. 2 to Order 2665 dated September 15, 1956 (Finding 8, supra). The new road was to extend from 68 feet south to 132 feet north of the center line of the old road, for a total width of 200 feet as contrasted to the 100-foot right-of-way easement which the old road traversed. The expansion to a width of 200 feet involved an increase of 18 feet to the south side and 82 feet to the north side of the previous 100-foot right-of-way. The new road exactly followed the course of the old road across Myers’ property, but halfway across Weaver’s property it deserted the route of tbe old road for 2,165 feet, rejoining it subsequently on a neighboring property.

16. As originally designed the new road would have gone through the quonset hut which Myers used as a residence, and behind his coffeeshop or restaurant, thus requiring the removal of these and other supporting facilities. In order to save the cost of paying Myers for the improvements, as required by the Act of July 24,1947,48 U.S.C. § 821d (Supp. 1,1948), and to avoid disturbing Myers and his place of business, the 200-foot right-of-way for the new road was decreased to 133 feet for a distance of 220 feet opposite Myers’ facilities. The increase of the right-of-way easement to 200 feet and its partial rerouting deprived the plaintiffs of the use of additional portions of their respective properties beyond the previous 100-foot right-of-way, approximately 5.7 acres more in the case of Myers and 8.7 acres more in the case of Weaver.

17. The defendant’s contract with McLaughlin, Inc., required the contractor to furnish all labor, equipment, and materials and perform all work for constructing the new road according to unit prices listed in the schedule, except that all bituminous materials were to be furnished the contractor.

18. Construction of the road commenced in January 1959 and was completed by October 1 of that year. The new Wasilla-Big Lake Junction Eoad was constructed according to the plans and specifications set forth in the contract and all of the construction work was accomplished within the 200-foot right-of-way reserved by the defendant in the patents to the plaintiffs, except at two points where the cuts slightly exceeded the 200-foot mark.

19. In building the new road the defendant removed an estimated 18,836.4 cubic yards of gravel from Myers’ property and 13,337 cubic yards from Weaver’s property. All of the gravel removed was from within the dimensions of the reserved 300-foot right-of-way. An insubstantial portion of it may have been removed from areas a few feet outside of the 200-foot right-of-way the defendant actually exercised for constructing the new road, this small surplus involving in the aggregate an estimated one acre of land. Of the gravel removed from Myers’ property, 2,412 cubic yards were used by defendant in tbe construction of segments of the new road beyond Myers’ property.

20. In the course of construction the contractor, at the request of the plaintiffs, bulldozed and widened their respective driveways. As it passed through Weaver’s property the grade of the new road was about 11 feet lower than the grade of the old road, thus leaving the end of Weaver’s driveway entrance to his garage on a vertical bank about that high above the new road. In order to restore the use of Weaver’s driveway, the defendant regraded the driveway from the road to the garage, increasing the gradient from 1 percent to about 6.5 percent. This steeper grade did not interfere with Weaver’s use of the driveway except on a few occasions each winter when, after a fresh snowfall, he would have to shovel the driveway clear of snow in order to use it. There is some dispute as to the frequency of this inconvenience, but by Weaver’s own admission it occurred about two or three times in one winter. In regrading Weaver’s driveway, the defendant widened its entrance.

21. Weaver had other complaints attributed to the construction of the new road, viz:

(a) In the spring of 1959 Weaver had had four acres of land adjacent to his residence cleared for the purpose of planting onions and radishes, and raising chickens, for commercial purposes. Access to his garden area was via an old trail road emerging onto the old road some distance west of his driveway. In branching off from the route of the old road, the new road intersected and undercut Weaver’s old trad road, leaving its entrance several feet higher than the new road and, therefore, unscalable by farming equipment unless it was regraded. Apparently the defendant declined to regrade the entrance to the old trail road so that it could be used by Weaver. However, the garden clearing was apparently also accessible from the top of Weaver’s driveway had he seriously intended to plant crops commercially. No crops were planted in 1959 or thereafter (except for a small 20-foot square plot) primarily because Weaver became ill that spring and was unable to undertake it. This, rather than the alleged inaccessibility of the garden area, was the primary reason for Weaver not going ahead with his plans. Weaver and his wife both worked in distant Anchorage, and in 1961 they deserted tbe property and moved into Anchorage because they were discouraged and concluded that the hardships of remaining there and commuting to Anchorage in the winter months did not justify the effort.

(b) At Weaver’s request, who wanted to sell gravel to the road contractor, the latter dug 15 or 20 test holes on Weaver’s property back from the road. The holes were bulldozed and were about 8' x 4' x 3' or 4' deep. The gravel was of unsuitable quality and the contractor refilled all but three or four holes which he left open at Weaver’s request.

(c) Weaver requested the contractor to push onto his property the topsoil from adjacent areas being excavated for the new road. The contractor bulldozed a quantity of overburden onto Weaver’s property. The overburden comprised, besides topsoil, a conglomeration of inextricable trees, rocks, tundra, and flora. This was left on Weaver’s property, including an assortment of outsize boulders.

22. Myers had voiced several complaints attributed to the construction of the new road, including the effect on his garden referred to in Finding 11(b), supra, damage to his restaurant business, frustration of his plans to establish a gasoline service station and to subdivide and sell lots, and the use by the defendant of gravel taken from his land.

23. Myers cleared just under three acres of his land on the south side of the old road roughly opposite his residence. He planted it to oats in 1958, but it did not do well. At no time did he raise any crops commercially in his garden plot. He testified that he intended to raise onions and radishes commercially in 1959 but could not do so because the defendant destroyed the entrance to the garden from the road by an impenetrable earth berm in the course of excavation. Myers made no proven arrangements to effectuate his plan arranging to obtain either seeds or equipment. The bulldozing of an entrance through the berm to his garden site was a relatively simple and rapid task which the defendant offered to do whenever Myers’ farming equipment was due and Myers made the request to cut an entrance through the berm. Myers made no such request. Eventually the defendant did cut such an entrance through in July 1959. Since then Myers has kept the field tilled, but otherwise has not planted it. He admitted that be is no farmer and is not really interested in raising crops.

24. The old road was approximately flush with the parking area in front of Myers’ home, restaurant, and other improvements. Cars coming along the old road could pull into Myers’ parking area at any point for about 400 feet, and the parking area would accommodate six cars with boat trailers attached. The new road was not only about three to five feet higher in elevation than Myers’ parking area, but also the parking area itself was substantially reduced in area due to the encroachment of the expanded new road, despite the fact that the width of the new road was decreased 67 feet for a distance of 220 feet past Myers’ improvements for the reasons described in Finding 16, supra. Myers testified that the 3' to 5' disparity in elevations between the new road and his parking area made it difficult for cars to climb out of his parking area onto the road in the winter months when the ground was icy or slippery, and that furthermore the overall reduction in the distance on the highway bordering his improvements in which cars could enter his place (from 400 feet down to 220 feet) discouraged a lot of patronage for his restaurant, while it shrunk the available parking space from six cars with attached boat trailers to two cars with such trailers. Myers’ restaurant is an unpretentious one which accommodates a maximum of 14 customers at the counter, plus two booths. He did not establish that it was profitable, or establish satisfactorily that the parking space for his customary patronage was inadequate. During two winters prior to 1959 he closed up his restaurant throughout the winter while he went on vacation in the “lower 48” (an Alaskan term for the 48 states of the United States exclusive of Alaska and Hawaii). Nor is it realistically concluded that cars equipped for Alaskan weather would have any substantial difficulty in negotiating a three-to-five-foot grade in winter weather to enter the highway from Myers’ parking area. Moreover, the bulk of passing traffic was during the brief summer months when boat-trailing cars were headed to or from nearby Big Lake. Myers decided in 1965 not to renew his restaurant license.

25. Myers claimed that the construction of the new road so decreased his available parking area that he was forced to abandon plans to install a gasoline filling station. His plans to do so had admittedly advanced only to the point of (a) visiting the Texaco office in a nearby town to obtain information about the possibility of obtaining a franchise, and (b) visiting the Anchorage office of the Small Business Administration to inquire about obtaining a loan. He made no formal application either to Texaco or to Small Business Administration, and his plans were not only unproven beyond his own testimony, but also admittedly tentative.

26. Myers subdivided and sketched a plat for eight lots on the northern fringe of his property bordering the old road. The widened new road necessarily decreased the maximum depth of his proposed subdivision lots to an extent where he abandoned the idea, after purportedly finding a purchaser for one lot who backed out of the transaction before leaving a deposit or signing a sales contract, allegedly for the reason that the altered lot was too shallow. The plat was never recorded. It is concluded that Myers’ plan to sell lots was genuine but tentative, and that whatever depth was removed from the lots as laid out resulted entirely from the widening of the road to 200 feet.

27. The surface, soil and trees in the areas occupied by the new road and its slopes on plaintiffs’ properties were necessarily destroyed for use by plaintiffs.

CONCLUSION OF Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover and the petitions are dismissed. 
      
      The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
     
      
      A term in vogue in Alaska when referring to the 48 States of the United States exclusive of Alaska and Hawaii.
     
      
       The land patents in suit also expressly reserved rights-of-way for ditches or canals under the Act of August 30, 1890 (28 Stat. 391, 43 U.S.C. § 945), and for railroads, telegraph andi telephone lines under the Act of March 12, 1914 (38 Stat. 305, 48 U.S.C. §305 (1952)), in addition to certain mineral rights under section 5 of the Act of August 1, 1940 (60 Stat. 760, 42 U.S.C. § 1805 (1952)).
     