Fletcher Fly v. Yalobusha County, Mississippi ( 2010 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 23, 2010
No. 09-60463 Charles R. Fulbruge III
Summary Calendar Clerk
LAWRENCE LITTEN,
Plaintiff-Appellant,
versus
GRENADA COUNTY, MISSISSIPPI;
MICHAEL LOTT, In His Official and Personal Capacities,
Defendants-Appellees.
***************
No. 09-60502
Summary Calendar
FLETCHER FLY,
Plaintiff-Appellant,
versus
YALOBUSHA COUNTY, MISSISSIPPI,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Mississippi
No. 3:07-CV-91
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Lawrence Litten and Fletcher Fly appeal a summary judgment dismissing
their physical takings claims for lack of ripeness. The two cases in this consoli-
dated appeal have no mutual parties or shared factual circumstances, yet both
present the threshold issue of whether the ripeness requirement in Williamson
County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172 (1985),
applies to claims of physical takings. We recently held that it does. See Sever-
ance v. Patterson, 566 F.3d 490, 496-97 (5th Cir. 2009) (citing Urban Developers
LLC v. City of Jackson, Miss., 468 F.3d 281, 294-95 (5th Cir. 2006)). The district
court therefore properly dismissed both claims as unripe, and we AFFIRM.
I.
The district court held that Litten and Fly had not sought or been denied
just compensation, under available state procedures, for the alleged takings.
Citing Williamson, the court held plaintiffs’ claims to be unripe. Litten and Fly
argue that Williamson’s ripeness rule applies only to regulatory takings and is
inapplicable to their case. They recognize that our holding in Severance directly
contradicts their assertion, but they argue that it was wrongly decided. That ar-
gument is foreclosed, because “one panel of this court cannot overrule the deci-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
2
Nos. 09-60463, 09-60502
sion of another panel.” Lowrey v. Tex. A&M Univ. Sys., 117 F.3d 242, 247 (5th
Cir. 1997).
Fly further asserts that the alleged takings violate the Public Use Clause.
As an initial matter, a taking has not been established in either case. Even if we
were to assume a taking, there has been no violation of the Public Use Clause.
The land at issue is either a public road or the adjoining curtilage or right of
way. “A taking of property for a highway is a taking for public use [that] has
been universally recognized, from time immemorial.” Rindge Co. v. Los Angeles
County, 262 U.S. 700, 706 (1923). The public road and curtilage contain a water
line and utility lines. Utility companies use the road to service and repair the
transmission lines. The water and utility lines serve Fly’s neighbors. A taking
of property for public utility and water lines, like public highways, unquestion-
ably satisfies the public use requirement of the Takings Clause.
There remain disputed issues of fact, but none is material. Fly argues that
a part of the public road adjoining his property washed out several years ago,
that the county neglected to repair it, and that the property was therefore aban-
doned and reverted to him. But until there is a denial of just compensation,
there is no takings claim. Williamson, 473 U.S. at 195. Because plaintiffs’
claims are unripe, we cannot address their substance.
Accordingly, the summary judgments, dismissing plaintiffs’ claims for lack
of ripeness, are AFFIRMED. We also AFFIRM the summary judgment as to
Fly’s private takings claim. All pending motions are DENIED.1
1
Appellants’ motion to strike the name of Honorable Thomas U. Reynolds from the re-
sponse brief of Yalobusha County as an interested person is DENIED. Appellants’ motions for
sanctions against attorney John J. Crow, Jr., and for award of attorney fees are DENIED. Ap-
pellee Yalobusha County’s motion for attorney fees and the motion for disciplinary action
against R. Stewart Guernsey are also DENIED.
3