author: PER CURIAM: MacKINNON, Circuit Judge

text:
    AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES et al., Appellants, v. Vernon D. ACREE, Commissioner of Customs, et al., Appellees.
    No. 72-1032.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 16, 1973.
    Decided Feb. 21, 1973.

      Neal Fine, Washington, D. C., with whom James Neustadt and Raymond J. Malloy, Washington, D. C., were on the brief, for appellants.
    Robert E. L. Eaton, Jr., Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and Nathan Dodell, Asst. U. S. Attys., were on the brief, for appellees.
    Before TUTTLE , Senior Circuit Judge, and WRIGHT and MaeKINNON, Circuit Judges.

       Of the Fifth Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   PER CURIAM:

This case involves a constitutional challenge to 5 U.S.C. § 7501 (1970) which prescribes the procedure by which members of the competitive civil service may be removed from their positions or suspended without pay. The statute provides in pertinent part:

(a) An individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service.
(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and to—
(1) notice of the action sought and of any charges preferred against him;
(2) a copy of the charges;
(3) a reasonable time for filing a written answer to the charges, with affidavits; and
(4) a written decision on the answer at the earliest practicable date.
Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission.

The gist of appellants’ complaint is that the statute facially conflicts with the due process clause of the Fifth Amendment by permitting Government agencies to refuse employees subject to discipline a hearing where they may confront and cross-examine witnesses against them and present witnesses on their own behalf. Appellants also challenge, for the same reason, the validity of Civil Service Commission regulations relating to suspension of employees for less than 30 days. 5 C.F.R. § 752.-301-304 (1972). Finally, appellants challenge the validity of Bureau of Customs disciplinary procedures in this case on the same ground.

Two Customs inspectors stationed in New York, appellants Patrick J. Brennan and Joseph N. Coyne, were questioned in April 1966 by Customs agents regarding their alleged acceptance of gratuities from crewmen aboard the S.S. UNITED STATES. In June 1967 Brennan was notified that a proposal was pending to suspend him without pay for five working days and Coyne was notified of a proposed suspension for eight days. Each was given an opportunity to respond in writing to the written charges against him and each was given an opportunity to make an oral reply through counsel to the charges. In March 1968 the Regional Commissioner of Customs handed down his decision: three days’ suspension for each man. An appeal to the Commissioner of Customs was taken and the suspensions were affirmed. Neither Brennan nor Coyne availed himself of the opportunity to appeal the Customs Bureau decision to the three-tier appellate process of the Civil Service Commission. See 5 C.F.R. § 752.304 (1972). After serving their suspensions, both men returned to active duty.

In January 1970 the disciplined inspectors were notified of the creation of a new position which would give them, if they were eligible for the position, enhanced civil service status and higher salary. Each applied, but was informed he was ineligible because of the presence of disciplinary action on his record during the preceding two years. Joined by the American Federation of Government Employees, which represents civilian employees of the federal government obviously affected by the disciplinary procedures at issue, they filed suit in the District Court here, seeking a declaration that the statute and regulations described above are unconstitutional, an injunction against their future enforcement, and, with respect to Brennan and Coyne, expungement of the earlier suspensions from their records and an order requiring that their applications for promotion be immediately processed.

Initially, the District Court denied appellants’ motion for a three-judge court on the ground that the constitutional question presented was insubstantial. This court then denied a writ .of mandamus to overturn the District Court’s ruling. Although it indicated that appellants’ constitutional claim was neither necessarily frivolous nor foreclosed by previous decisions, this court held that appellants were seeking essentially equitable rather than injunctive relief and that a three-judge court was not warranted. Back in the District Court, the Government’s motion to dismiss was granted on the ground that appellants had failed to exhaust their administrative remedies by failing to appeal the adverse decision of the Bureau of Customs to the Civil Service Commission as the regulations permitted. See 5 C.F.R. § 752.304. We reverse.

Ordinarily, the exhaustion doctrine requires parties not merely to initiate administrative proceedings which may grant them relief and thus forestall the need for judicial intervention, but also to pursue such proceedings to their conclusion. See Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 767, 67 S.Ct. 1493, 91 L.Ed. 1796 (1947). But there are cases where the customary rationales for the exhaustion of administrative remedies doctrine — avoidance of unnecessary judicial intervention and the need for full, unhampered exercise of agency expertise on a well developed factual record of its own making, see, e. g., McKart v. United States, 395 U.S. 185, 193-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) — do not apply and the doctrine’s application thus becomes pointless. In some cases the doctrine is no more than “an exercise in futility,” see Lodge 1858, American Federation of Government Employees v. Paine, 141 U.S.App.D.C. 152, 166, 436 F.2d 882, 896 (1970), particularly where it is clear beyond doubt that the relevant administrative agency will not grant the relief in question. See Montana National Bank of Billings v. Yellowstone County, 276 U.S. 499, 505, 48 S.Ct 331, 72 L.Ed. 673 (1928). In such cases, nothing is lost by circumventing an open, but assuredly ineffectual, avenue of administrative appeal and moving to the courts. We believe this is such a case.

Here there was no chance that appellate review by the Civil Service Commission would have reversed the Bureau of Customs order on the merits, thus obviating the need for a court to grant Coyne and Brennan the expungement remedy they now seek. The applicable provision of the Civil Service Commission’s regulations makes it clear that the scope of review is exceedingly limited: in cases involving suspensions of less than 30 days where there is no allegation of certain kinds of illicit discrimination not relevant here, the Commission will only review “the procedures used in a suspension under this sub-part.” 5 C.F.R. § 752.304(b).

Of course, even this circumscribed review might have given the Customs inspectors the relief they sought were it plausible to assume that the Commission would have disapproved the failure of the Bureau of Customs to grant Coyne and Brennan rights of cross-examination and confrontation and remanded the case for new proceedings. But we believe this outcome was exceedingly unlikely, since the procedures specified in the Civil Service Commission regulations applicable to the Bureau of Customs and followed in this case require only written notice detailing the reasons and facts supporting a proposed adverse action, an opportunity to reply in writing and to file affidavits, and notice of the agency’s decision in writing, supported by reasons. 5 C.F.R. § 752.302.

In our judgment, it would be blinking reality to expect the Commission, in an adjudicatory proceeding, to hold an agency subject to its regulations to a higher standard of procedural protection than its own rules require. Nor do we think it likely that the Commission would act in advance of a court in overturning rules promulgated by itself and consistent with the applicable governing statute. Our conclusion that appeal to the Civil Service Commission would have been futile is based on more than extremely strong inference. We may take judicial notice of the fact that while this appeal was pending the director of the Civil Service Commission’s Bureau of Policies and Standards, in a letter to the president of the American Federation of Government Employees, stated that the Commission would not require an agency to provide a hearing where, as here, the regulations do not require one. See Exhibit C, Joint Appendix at 113.

Since we believe the District Court erred in dismissing this action for failure to exhaust administrative remedies, we remand the case for a hearing on the merits of appellants’ constitutional claim.

So ordered.

MacKINNON, Circuit Judge

(dissenting) :

I dissent because the foregoing opinion misapplies the law. Appellants admittedly failed to exhaust their administrative remedies and they have no valid ground for this refusal. They contend that if they had appealed the Commission would not have reviewed their suspensions on the merits. This conclusion is completely speculative. Every case stands on its own footing and the results of an appeal cannot be determined in advance. Hadnott v. Laird, 149 U.S.App.D.C. 358, 361, 463 F.2d 304, 307 (1972). Also, the constitutional requirement for a hearing could have been raised and argued on such appeals. As the Supreme Court held in Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 772, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947):

[T]he very fact that constitutional issues are put forward constitutes a strong reason for not allowing this suit either to anticipate or to take the place of the Tax Court’s [administrative agency’s] final performance of its function.

The Commission could have decided entirely in appellants’ favor.

Cafeteria Workers v. McElroy, 367 U.S. 886, 894-895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) also makes it clear that the suspension for three days after being given notice, an opportunity to respond in writing and to be represented by counsel is not necessarily a denial of “due process.” The suspensions were not summary in nature.

What appears here is that appellants were satisfied with the action taken in 1968 but they became dissatisfied in 1970 when the disciplinary action was given as one reason for not considering them for promotions. They say they did not envision that their discipline would have such result. I find it incredible to believe that any Government employee (particularly in the Customs Service where honesty is a prime requisite) would not recognize that discipline for acceptance of illegal gratuities from members of the crew of a large passenger liner would be held against them. If it were not subject to such use, the Customs Service would rapidly deteriorate.

I also dissent because appellants are guilty of laches and will require the Government to litigate their culpability on stale evidence. By allowing this case to proceed in the District Court the opinion of the majority has deprived the administrative agency of its lawful jurisdiction to decide the issue. The District Court has no jurisdiction in these cases in their present posture; that lies exclusively with the Customs Service.

      . This court said:
      “ * * * [Petitioners are not now entitled to a three-judge district court because their present complaint does not ‘formally [allege] a basis for equitable relief’ against the operation of the federal statute. Idlewild Bon Voyage Liquor Corp. v. Epstein [370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962)]. In the district court, petitioners seek declaratory and injunctive relief against the statute in question, but their complaint fails to allege that either they or any members of a class they purport to represent are now threatened by proceedings under the statute. Petitioners also request the district court to remedy the effects of past disciplinary actions under the statute against the two petitioner-employees by requiring the responsible officials to expunge notations of the actions from their employment records, and to process immediately their applications for promotion, previously denied because of the disciplinary actions. However, this ancillary equitable relief would not constitute an ‘injunction restraining the enforcement, operation or execution of [an] Act of Congress’ within the meaning of 28 U.S.C. § 2282 (1964). See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 153-155 [, 83 S.Ct. 554, 9 L.Ed.2d 644] (1963). Until and unless petitioners make allegations that would justify injunctive relief against the operation of a federal statute, they may not invoke the three-judge procedure, and their remaining claim for a declaratory judgment is properly considered by a single district judge. Cf. Mitchell v. Donovan, 398 U.S. 427 [, 90 S.Ct. 1763, 26 L.Ed. 2d 378] (1970).”
      American Federation of Government Employees et al. v. Gesell, D.C.Cir., No. 24,815 (April 22, 1971) (unreported).

      . Compare Hadnott v. Laird, 149 U.S.App.D.C. 358, 361, 362, 463 F.2d 304, 307-308 (1972), where a panel of this court invoked the doctrine in a case where the claimants had not even initiated administrative proceedings and where there was reason to believe the agency might have acted affirmatively on their claim.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, and Mike Trbovich, et al. v. UNITED MINE WORKERS OF AMERICA, et al., Appellants.
    No. 72-2064.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 20, 1972.
    Decided Feb. 22, 1973.

      Willárd P. Owens, Washington, D. C., with whom Edward L. Carey and Charles L. Widman, Washington, D. C., were on the motion for summary reversal for defendants-appellants.
    Michael Stein, Atty., Dept, of Justice, with whom Walter H. Fleischer, Atty., Dept, of Justice, was on the response to intervenors’ motion for summary affirmance.
    Joseph A. Yablonski, Washington, D. C., with whom Clarice R. Feldman, Washington, D. C., were on the motion for expedited appeal and summary affirmance for intervenor-appellee.

    Isaac N. Groner, and Charles R. Both, Washington, D. C., entered appearances on behalf of intervenor-appellee.

    Before BAZELON, Chief Judge, and LEVENTHAL and ROBB, Circuit Judges.

       Joseph A. Yablonski, and Clarice R. Feldman withdrew, their appearances as counsel for Intervenor-Appellees, subsequent to the argument and Isaac N. G,roner and Charles R. Both were substituted therefor.

   PER CURIAM:

This appeal involves a suit brought by the Secretary of Labor under Title III of the Labor Management Reporting and Disclosure Act of 1959 (LMRDA), seeking to terminate trusteeships imposed by the United Mine Workers of America (UMWA) upon seven of its subordinate bodies known as “Districts.” The District Court found serious violations of Title III of the LMRDA committed by the UMWA by maintaining trusteeships over these Districts for more than eighteen months. Hodgson v. United Mine Workers, 344 F.Supp. 990 (D.D.C.1972). It concluded that the continuation of these trusteeships was not necessary for a purpose permitted by the Act and subsequently ordered secret ballot elections, conducted under the supervision of the Secretary of Labor, and other wide-ranging relief to restore union democracy to those entities. The UMWA appeals from the decision. Upon consideration of cross mo-, tions for summary disposition, and having heard oral argument, we affirm.

The main contention of the UMWA on appeal is that contrary to the holding of the District Court, these Districts are not subordinate “labor organizations” engaged in an industry affecting commerce within the meaning of the LMRDA, and accordingly are not subject to the trusteeship strictures of the Act. In pertinent part the LMRDA defines a “labor organization” as including

any organization of any kind, any agency, or employee representation committee, group, association, or plan so engaged in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours, or other terms or conditions of employment ....

We hold that these Districts fall within this functional definition. Contrary to appellant’s characterization of them as mere administrative arms of the UMWA, these Districts live a vigorous and substantial life of their own. As the Court below noted, the Districts organize nonunion mines, handle some grievances, and deal directly with employers. Indeed, the UMWA’s own constitution confirms the real authority of the Districts and their officers. In thus holding that the District Court properly concluded that these Districts are subordinate “labor organizations” within the meaning of section 402(i), we align ourselves with other courts that have ruled concerning the Districts’ status under this and related statutory schemes, and give full force to the Congressional intent “to provide comprehensive coverage of labor organizations engaged in any degree in the representation of employees or administration of collective bargaining agreements.”

We also conclude that the relief ordered by the District Court, though admittedly comprehensive, was “appropriate” and within the Court’s broad equitable powers to fashion a suitable remedy for the inevitable atrophy of democratic principles and procedures during the decades that these Districts were in trusteeship. See Schonfeld v. Raftery, 271 F.Supp. 128, 148 (S.D.N.Y.), aff’d, 381 F.2d 446 (2d Cir. 1967). See also Hecht Company v. Bowles, 321 U.S. 321, 329-330, 64 S.Ct. 587, 88 L.Ed. 754 (1944).

This case is remanded to the District Court to enable it to proceed, under its assertion of continuing jurisdiction, with the matters referred to in its recent Report to this Court, and with any other issues that may arise as the terms of its Order are implemented. Cf. System Federation v. Wright, 364 U.S. 642, 646-650, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961).

It is so ordered.

      . Pub.L. No. 86-257, §§ 301 et seq., 73 Stat. 530-532, 29 U.S.C. §§ 461 et seq. (1970) (hereinafter cited to the U.S. Code provisions and as “the Act.”).

      . The UMWA Districts involved are District 4 (Western Pennsylvania); District 6 (Ohio and West Virginia panhandle) ; District 7 (now 25) (Eastern Pennsylvania anthracite region); District 17 (Southwestern West Virginia); District 23 (Western Kentucky); District 30 (Eastern Kentucky); District 31 (Northern West Virginia),

      . 29 U.S.O. § 464(c) (1970) provides in part that after “the expiration of eighteen months the trusteeship shall be presumed invalid . . . and its discontinuance shall be decreed unless the labor organization shall show by. clear and convincing proof that the continuation of the trusteeship is necessary for a purpose allowable under section 462 of this title.” In the instant case, the District Court found that these trusteeships had been in existence for decades.

      . The limited purposes for which a trusteeship may be established and maintained are detailed in 29 U.S.C. § 462 (1970) of the LMEDA.

      . The Memorandum Opinion declaring these trusteeships to be unlawful was filed by the District Court on May 24, 1972. Hodgson v. United Mine Workers, 344 F.Supp. 990 (D.D.C.1972). This Court subsequently permitted intervention in the Secretary’s suit by a group of individual UMWA members for purposes of framing a suitable remedy, Hodgson and Trbovich v. United Mine Workers, 153 U.S.App.D.C. 407, 473 F.2d 118 (opinion filed Nov. 13, 1972), and the final Order declaring relief was issued by the District Court on September 29, 1972.

      . The District Court’s decree of September 29, 1972,. permanently enjoined the UMWA from maintaining trusteeships in the offending Districts and ordered them promptly to hold nominations and conduct secret ballot elections, under the supervision of the Secretary of Labor, to fill the District offices which formerly had been appointed positions during the trusteeships. The District Court did permit incumbent District officers to remain in office, under the Secretary’s supervision, pending these elections. In these rulings, the Court borrowed freely from the election provisions of Title IV of the LMEDA, 29 U.S.C. §§ 481 et seq. (1970). The Court’s Order further required the convening of District meetings to adopt new District constitutions, and specified the voting rights and procedures to be utilized therein. Moreover, the District Court prohibited the UMWA from altering the geographical boundaries of these Districts, or otherwise restructuring them in such a way as to deprive the UMWA members therein of their membership rights, without their prior approval. Finally, the District Court retained jurisdiction to provide whatever additional relief was necessary to effectuate its decree.

      . See note 3 supra and accompanying text. 29 U.S.C. § 402(h) (1970) of the LMEDA defines a “trusteeship” as “any receivership, trusteeship, or other method of supervision or control whereby a labor organization suspends the autonomy otherwise available to a subordinate body under its constitution or bylaws.”
      The UMWA also contends that even if these Districts are legitimately classed as subordinate “labor organizations,” they have never suffered a loss of “autonomy otherwise available” and thus are not in trusteeship. We believe there is ample evidence in the record to support the District Court’s rejection of this claim.

      . 29 U.S.C. § 402 (i) (1970). This section, in the portion not quoted in the text, also adds to the Act’s coverage “any conference, general committee, joint or system board, or joint council so engaged which is subordinate to a national or international labor organization
      The UMWA argues that because this list and a similar one found in 29 U.S.C. § 402(j) (1970) of the LMEDA do not include “Districts” by name, the inference should be drawn that a District subordinate to an international union is not covered. It is clear, however, that this portion of § 402(i) was added to the general coverage provisions quoted in the text to increase the scope of the statute’s reach and not restrict it. See
        105 Cong.Rec. 6516 (1959) (remarks of Senators Goldwater and Kennedy). See also H.R.Rep.No.741, 86th Cong., 1st Sess. at 28, U.S.Code Cong. & Admin. News 1959, p. 2424.

      . See Monborne v. United Mine Workers, 342 F.Supp. 718, 722 (W.D.Pa.1972). Cf. NLRB v. United Mine Workers, 202 F.2d 177 (3d Cir. 1953) (proceeding under the NLRA); Antal v. District 5, United Mine Workers, 334 F.Supp. 903 (W.D.Pa.), aff’d, 451 F.2d 1187 (3d Cir. 1971). Compare International Union, U.M.W.A. v. Dist. 50, U.M.W.A., 140 U.S.App.D.C. 349, 356 n. 5, 435 F.2d 421, 428 n. 5 (1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1372, 28 L.Ed.2d 645 (1971), with Ragland v. United Mine Workers, 188 F.Supp. 131 (N.D.Ala.1960).

      . H.R.Rep.No. 741, 86th Cong., 1st Sess. at 28, U.S.Code Cong. & Admin.News 1959, p. 2451.

      . See note 6 supra.

      . 29 U.S.C. § 464(a), (1970) of the LMRDA authorized the plaintiff in Title III suits to seek “such relief (including injunctions) as may be appropriate.”

      . Our decision today facilitates our ready disposition of a series of motions filed in this Court after this case was submitted to us at the conclusion of oral argument. The untimely motion to intervene on appeal is dismissed as moot, though we note in passing that the arguments that presumably would have been presented by the proposed intervenors were -generally already before the Court in the presentation of the appellant. Further, though we presently see no reason under the circumstances of this case to deny the motion by counsel for the intervenors below to appear instead for the UMWA on this appeal, the positions of the UMWA and the intervenors on this appeal now being identical, that motion is also dismissed as moot, since today’s decision terminates the need for appellate counsel in this litigation. Similar motions for leave to appear, now pending before the District Court, will be acted upon by that Court in the light of the circumstances there appearing. Finally, we refer the UMWA’s motion for extension of time to file trusteeship reports to the District Court for its consideration pursuant to our remand.


author: BAZELON, Chief Judge:

text:
    UNITED STATES of America v. Jerome JOHNSON, Appellant. UNITED STATES of America v. Samuel A. SMITH, Jr., Appellant.
    Nos. 23886, 24331, 72-1271, 23887, 72-1326.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 18, 1973.
    Decided Feb. 26, 1973.
    Frank J. Costello, Washington, D. C. (appointed by this Court for appellant in No. 72-1326), argued for appellants.
    Stephen S. Millstein, Washington, D. C. (Appointed by the Court for appellant in Nos. 23,886, 24,331, and 72-1271).
    Julius A. Johnson, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
    Before BAZELON, Chief Judge, and TAMM and WILKEY, Circuit Judges.
   BAZELON, Chief Judge:

Smith and Johnson were tried jointly before a jury and convicted of four counts of robbery while armed and five counts of assault with a dangerous weapon. Johnson was also convicted of one count of carrying a pistol without a license.

On their appeal, the Government conceded that the trial court erred by failing to order sua sponte an identification hearing as required by our opinions in Clemons v. United States, 408 F.2d 1230, 133 U.S.App.D.C. 27 (1969), and Solomon v. United States, 408 F.2d 1306, 133 U.S.App.D.C. 103. It contended, however, that the error was harmless in the circumstances of this case. We disagreed and remanded the case for a hearing on the pre-trial identifications, reserving the other issues raised in the appeal.

A hearing was held on July 23, 1971, and the trial judge entered an order and opinion on March 14, 1972, holding that all pre-trial identifications had been proper and all identification evidence had been properly admitted. Both defendants have appealed from these rulings and have renewed their original appeals. New briefs have been submitted and the case has been reargued. Having carefully considered the judge’s rulings on remand, and acknowledging his broad responsibility for resolving conflicts in testimony, we hold that the identifications were properly admitted under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

On the renewed appeal, we affirm the armed robbery convictions and the conviction for assault with a dangerous weapon on Albert Traylor, designated as count 13 in the indictment. But we reverse the convictions for assault with a dangerous weapon on each of the four individuals found to have been robbed, and we vacate all sentences imposed and remand for resentencing.

The indictment contained fourteen counts. The first twelve consisted of four sets of three offenses: robbery while armed, robbery, and assault with a dangerous weapon. Each set designated a different victim. The jury returned a verdict of guilty on each of the four counts of robbery while armed. It returned no verdicts on the simple robbery counts. And it returned a verdict of guilty on each of these four counts of assault with a dangerous weapon. Additionally, it returned a verdict of guilty on count 13, which alleged an assault with a dangerous weapon on a fifth individual, Albert Traylor, who was present at the scene of the offense but was not robbed. The fourteenth count is no longer before us. See note 1 supra.

In view of some variance in the wording of the relevant statutes, there has been some doubt in this circuit as to whether assault with a dangerous weapon, 22 D.C.Code § 502 (1967), is a lesser included offense of robbery, 22 D.C.Code § 2901 (Supp. V, 1972), while armed, 22 D.C.Code § 3202 (Supp. V, 1972). See Sutton v. United States, 434 F.2d 462, 472, 140 U.S.App.D.C. 188 (1970). We now hold that it is, and that this ruling is required by our previous decisions construing 22 D.C.Code § 3202 (Supp. V, 1972). See Wimbush v. United States, 154 U.S.App.D.C. -, 475 F.2d 347 (1973); United States v. Benn & Hunt, 155 U.S.App.D.C. —, 476 F.2d 1127 (1972). It follows that it was error to receive verdicts from the jury on counts 3, 6, 9 and 12.

We also think that all of the remaining sentences must be vacated and the ease remanded for resentencing. The trial judge entered a formal judgment sentencing appellant Johnson as follows:

[A] Ten (10) to thirty (30) years on counts 1, 4, 7 & 10.
[B] Three (3) years to nine (9) years on counts 3, 5, 6, 9 & 12, said sentences to run consecutively.
[C] Three (3) years to nine (9) years on count 14, to run concurrently with sentences in counts 1, 4, 7, 10, 3, 5, 6, 9 & 12.

He entered a formal judgment sentencing appellant Smith to:

[A] Nine (9) years to twenty-seven (27) years on counts 1, 4 & 10.
[B] Two (2) years to six (6) years on counts 3, 6, 9, 12, 13 said sentences to run consecutively.

The consequences of this arrangement are extremely problematic. The initial difficulty we encounter is determining the total length of appellants’ sentences. We are not told whether the sentences on the armed robbery counts, designated [A] here, are to be served concurrently with each other. We are told that the second group of sentences, designated [B] here, are to run “consecutively,” but we cannot determine whether this means consecutively to each other, consecutively to the sentences designated [A], or both. A similar problem exists with the sentence designated [C] here, but that conviction has been reversed and we need not address it.

Our second difficulty arises because the counts on which the trial judge imposed sentences do not fully correspond to the counts on which the jury returned verdicts of guilty. Appellant Johnson was sentenced on count 5, a simple robbery count on which the jury did not rule. He was not sentenced on count 13, which charged the assault with a dangerous weapon on Albert Traylor, despite the jury’s guilty verdict on that count. Appellant Smith was not sentenced on count 7, which charged the armed robbery of James Lewis, despite the jury’s guilty verdict on that count.

Our final difficulty is that appellant Johnson’s oral sentencing, on December 23, 1969, does not correspond to the written judgment entered the same day. At the oral sentencing the trial judge imposed sentences on the same ten counts that the jury rendered guilty verdicts on. Even if we accept this as his true intent, however, we are still unable to determine which sentences run consecutively to, or concurrently with, which others. Nor can we explain the imposition of sentences on the four assault counts in view of the fact that the trial judge had instructed the jury to disregard them if it found appellants guilty on the corresponding armed robbery counts. See note 2 supra.

There is some indication that all of the above, which compel a remand for resentencing, may be attributed to the performance of defense counsel. We put aside the fact that defense counsels’ failure to request a suppression hearing required a remand for an examination of the pre-trial identifications, as well as the fact that counsel failed to object when the jury returned verdicts in violation of the trial judge’s instructions. We address ourselves only to counsel’s performance at sentencing.

The sum total of defense counsel’s presentation at appellant Johnson’s sentencing hearing reads as follows:

My name is [deleted], appointed counsel in this case. I would like to call to the attention of the Court that the Defendant had asked that a new attorney be appointed and I wrote a letter to the Court and to advise the Defendant as to what steps he would take, but I am told now that he intended only tp have a new attorney on appeal.

Counsel then sat silent while the defendant declined the opportunity to exercise his right of allocution. He remained silent while the trial judge imposed “consecutive” sentences on counts that the same trial judge — in counsel’s presence —had instructed the jury to pass over. Finally, he said nothing when the trial judge prompted the prosecutor to state that a prior conviction existed in order to support a more severe sentence on count 14, carrying a pistol without a license.

This court has ruled that “[t]he right to effective assistance of counsel at the sentencing stage of the proceeding is guaranteed by the Constitution.” Gadsden v. United States, 223 F.2d 627, 630, 96 U.S.App.D.C. 162. Although counsel’s performance at sentencing is subject to standards of measurement, we do not reach the question of effective assistance because we must vacate and remand for correction of the plain errors in the sentencing noted above.

The convictions of assault with a dangerous weapon in counts 3, 6, 9 and 12 are reversed. The convictions on all other counts are affirmed, but all sentences are vacated and the case is remanded for resentencing.

So ordered.

      . The Government also conceded in its brief that there was no evidence in the record to sustain the conclusion that appellant Johnson had no license for the pistol. That conviction, on the count designated 14 in the indictment, was therefore reversed.

      . Indeed, the trial judge appears to have understood the law to require this result when he charged the jury.
      [I]f you find the defendants guilty of armed robbery, any one or all of counts one, four, seven and ten, then you need not consider the counts alleging the robbery, and assault -with a dangerous -weapon on the same complainant.
      (emphasis added.) Yet for reasons that do not appear on the record, the Deputy Clerk called for verdicts on the assault counts and the jury foreman provided them. And neither defense counsel, the trial judge, nor the prosecutor objected.

      . Bracketing added.

      . With respect to our remand for -resentencing, it may be appropriate to point out the following statute, enacted after Johnson and Smith were sentenced:
      A sentence imposed on a person for conviction of an offense shall, unless the court imposing such sentence expressly provides otherwise, run consecutively to any other sentence imposed on such person for conviction of an offense, whether or not the offense (1) arises out of another transaction, or (2) arises out of the same transaction and requires proof of a fact which the other does not.
      23 D.O.Oode § 112 (Supp. V, 1972) (emphasis added).

      . On appeal both the Government and the newly appointed defense attorneys have assumed that the trial judge imposed two sets of concurrent sentences, one being the armed robbery sentences and the other the assault sentences, and intended the two sets to be imposed consecutively. While possible, we cannot say that this interpretation is more likely than a number of others.

      . Regarding these matters, sec Marshall v. United States, 436 F.2d 155, 159 n. 11, 141 U.S.App.D.C. 1 (1970); United States v. Thompson, 154 U.S.App.D.C. -, 475 F.2d 931 (1973).

      . He could have .pointed out that the indictment did not charge a prior conviction. He should at the very least have demanded that the prosecutor produce evidence of a conviction, if indeed there was one that met the statutory requirements. See 22 D.C.Code § 3204 (1967).

      . See Standards Relating to the Defense Function, Approved Draft, 1971, American Bar Association Project on Standards for Criminal Justice (1971) § 8.1; Report of the National Advisory Commission on Criminal Justice Standards and Goals, to the National Conference on Criminal Justice, January 23-26, 1973, Corrections § 5.18.


text:
    Horace CASE, Appellant, v. Arthur E. MORRISETTE.
    No. 22810.
    United States Court of Appeals, District of Columbia Circuit.
    Argued March 12, 1970.
    Decided Feb. 27, 1973.

      Richard J. Hopkins, Washington, D. C., for appellant.
    Joel C. Wise, Washington, D. C., with whom Roger Peed, Washington, D. C., was on the brief, for appellee.
    Before TAMM, ROBINSON and MacKINNON, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

The sole question presented for our decision is whether an owner of property in a subdivision acquired a right to park vehicles on a lot which an inscription on a revised copy of the subdivision plat, annexed to a declaration of covenants and referred to in the grantee’s deed, indicated had been set aside for that purpose. The District Court, on facts not materially in dispute, answered that question in the negative, and entered judgment against the plaintiff-owner. This appeal challenges the legal conclusions the court drew from the facts and the validity of the judgment which the court was thus led to pronounce.

We would be less than candid if we did not mention at the outset that we have encountered a number of difficulties which we should not have been required to solve. We have found omissions from the record of information which would have greatly simplified our review. We have, in some instances, been confronted with questions which neither side has addressed, and in others with positions assumed without factual support and contentions advanced without citation of authority or even supporting reasoning. This has compelled us to expend a great deal of time and effort which otherwise could have been avoided.

Our own investigation into this case has involved a thorough analysis of the record and painstaking examination of relevant bodies of legal doctrine in order to deal adequately with the manifold problems uncovered. On the basis of our study, we conclude that the trial judge clearly erred in the disposition which he made. Accordingly, we reverse the judgment appealed from and remand for further proceedings.

I

Dexter Heights, in Southeast Washington, was developing during World War II as a subdivision of 89 lots with apparently a nearly equal number of residential units. Throughout the remainder of the war, the subdivider, Dexter Realty Company, rented these units to persons engaged in the defense effort; thereafter the units, with the lots on which they were built, were sold individually to returning veterans. In 1949, Horace Case, the appellant, came into the ownership of Lot 44-0 in Square 5869, improved by the dwelling numbered 1349 Talbert Terrace, Southeast, in which he continues to reside The parcel sprouting this litigation — Lot 43 in Square 5869 — also abuts Talbert Terrace and is wholly unimproved. A revision of a portion of the original subdivision plat of Dexter Heights, on which revised plat the layout of the 89 lots and other features are depicted, is attached to and recorded with a declaration of covenants imposing use restrictions uniformly on the subdivided properties. In the written declaration, all lots are identified by reference to their lot and square numbers as shown on the revised plat appended.

The written declaration makes no mention of a servitude on Lot 43 — the allegedly encumbered lot — for vehicular parking. In regard to Lot 43, the declaration refers to the revised plat and states that it is subject to a building line restriction shown thereon, and to a recorded agreement between the subdivider and the District of Columbia concerning water and sewer connections and party walls. The annexed copy of the revised subdivision plat, however, bears, within the boundaries it marks for Lot 43, an inscription reading “To be Graded & Cinder Covered for Car Parking (50 cars) Provide Driveway Entrance from Talbert Terrace.” Lot 43 has never been graded, cinder-covered or furnished a driveway entrance from Talbert Terrace. It has never been used for parking, and without grading and a driveway entrance it could not be so used.

In 1963, the corporate successor to Dexter Realty Company conveyed Lot 43 to Arthur L. Morrisette, the appellee. The deed to Morrisette characterizes Lot 43 as “comprising the area for car parking ... as shown on the” copy of the revised subdivision plat recorded with the declaration of covenants. Morrisette proposes to develop Lot 43 for parking, not by residents of Dexter Heights, but by tenants of an apartment complex he plans to construct on adjacent land.

It was to prevent Morrisette from doing so that Case brought suit in the District Court. He claimed that the inscription on the revised subdivision plat in regard to Lot 43 gave rise to a right appurtenant to the other properties comprising Dexter Heights to use Lot 43 for parking to the extent of 50 cars. On this theory Case sought a judgment declaratory of that right, an injunction restraining Morrisette from interfering with it, and a mandatory injunction compelling Morrisette to grade and cinder-cover Lot 43 and provide it with an entrance driveway from Talbert Terrace. Morrisette, advancing several defenses, asserted primarily that the inscription did not confer any such interest in Lot 43 upon other property owners in Dexter Heights. The District Court, after a trial without a jury, rendered judgment in favor of Morrisette, and this appeal followed.

II

Upon completion of the evidentiary and argumentative presentations, the trial judge orally announced his decision and his reasons therefor, and shortly thereafter filed written findings of fact and conclusions of law. The written findings indicate nothing as to the basis for the judge’s decision, and only one of the accompanying conclusions is in any wise helpful on that score. That conclusion was that Case had “failed to show that the [declaration grants to him or other lot owners in the subdivision . . . any right, title, or interest in . . . Lot 43. . . . ”

Some additional and much needed enlightenment is derived from the judge’s statement at the end of the trial. The question, said the judge, was whether the inscription on the revised subdivision plat within the boundaries marked for Lot 43 created an easement for parking. That question the judge answered , in the negative for reasons which, as nearly as we can glean, were the following. Firstly, the written declaration of covenants imposed a number of restrictions on the lots comprising Dexter Heights, but did not mention an area set aside for parking. Secondly, Lot 43 has never been used or useable for parking, and the property owners had not asserted any right to have it made suitable for that purpose. Thirdly, “[a]n easement cannot be created by ambiguous language.” The last clause of the inscription pertaining to Lot 43 — “Provide Proper Driveway from Talbert Terrace” — “is ungrammatical and not understood.” And “the legend on the plat is purely descriptive and was not intended to create an easement or other property rights.” Fourthly, no equitable servitude on Lot 43 arose because it was never used for parking.

In examining the District Court’s decision that property owners in Dexter Heights have no claim on Lot 43, we remain advertent to the consideration that “ [¶] indings of fact shall not be set aside unless clearly erroneous,” and in that regard we do not distinguish between written and transcribed oral findings. But although the findings “come here well armed with the buckler and shield” conferred by the “clearly erroneous” standard, they do not have the force and effect of a jury verdict. To be sure, the findings are presumptively correct and the burden of persuading us that they are “clearly erroneous” rests upon Case. Equally certain it is that we are not to weigh the evidence de novo, or disturb the findings simply because we might have reached a contrary result on the same evidence. And not only must we give “due regard ... to the opportunity of the trial court to judge of the credibility of the witnesses,” but we must also measure the findings by the “clearly erroneous” test even when they are based on inferences drawn from documents or undisputed facts.

On the other hand, a finding is “clearly erroneous” if it is without substantial evidentiary support or if it was induced by an erroneous application of the law. Beyond that “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” In reviewing the trial judge’s decision in this case, then, we must look to all of the evidence of record to determine whether the findings can pass muster. And in making that determination, we also bear in mind that conclusions of law do not find shelter in the “clearly erroneous” requirement.

Ill

The core question, as the District Court stated, is whether the inscription made within the area of Lot 43 as marked on the copy of the revised subdivision plat annexed to the declaration of covenants imposed on that lot a servitude in favor of the other lots in Dexter Heights. In approaching a solution to this question, we remember that Case seeks relief by way of a declaration of the right he conceives and an injunction enforcing that right. We need not, then, ponder whether the inscription survives the strictures of the common law as to covenants running with the land for purposes of actions for damages occasioned by breach. The relevant inquiry here is whether the inscription meets the far less onerous prerequisites to equitable enforcement of property servitudes.

Those prerequisites are two in number. The first is a servitude en-grafted upon one parcel of land with a view to benefiting one or more other parcels. The second is notice of the servitude, to the' party against whom enforcement is sought, at the time he took the burdened parcel. Put another way, an owner of a benefited parcel may enforce such a servitude against the owner of the burdened parcel who acquired it with .notice of the servitude. The right of enforcement does not depend upon privity of contract or estate between the parties, or upon whether by the rules of the common law either benefit or burden of the restriction runs with the land. It rests, rather, upon the obvious injustice of permitting one who purchased the burdened parcel.with notice of the restriction to frustrate its object.

As we begin our investigation to determine whether Case met these two preconditions, we encounter one of the record deficiencies to which we have previously alluded. The revised plat of Dexter Heights delineating the scheme of the 89 lots which were successively improved, rented and ultimately sold was, as we have said, attached to and constituted a part of the declaration of use restrictions and that declaration was recorded in the office of the Recorder of Deeds. A copy of the revised plat was admitted into evidence, and witnesses and counsel invariably spoke thereto at trial and in like fashion the arguments presented in this court are addressed to it.

By statute, however, the exclusive legal office for the recording of subdivision plats is the office of the Surveyor of the District of Columbia, and any recording of such plats in the office of the Recorder of Deeds is made “not lawful.” The parties have offered no explanation as to why the copy of the revised plat of Dexter Heights accompanying the declaration of covenants was indulged recordation in the latter office, and the record is barren of any indication that the revised plat was also recorded in the office of the Surveyer.

The documents of title introduced into evidence, however, also refer to another plat of Dexter Heights — a plat indeed recorded in the office of the Surveyor. But no copy of this other plat was proffered at trial, and the trial record thus leaves some of its essential features in the dark. To further complicate the problem, the record gives positive indication that this plat and the revised plat are not identical. From just the little we can gather, it seems rather clear that the plat recorded in the office of the Surveyor shows a subdivision of Dexter Heights into only nine large lots. On the other hand, the copy of the revised plat recorded with the declaration in the office of the Recorder of Deeds — which is before us — unquestionably made a further Carving of those lots into a total of 89 new lots. Thus the former emerges as the plat of the original subdivision of Dexter Heights and the latter as a revision — a further subdivision superimposed upon a copy of the original. To add to our woes, there is a complete absence of anything to suggest that the inscription written on the revised plat in regard to Lot 43 is also written on the original plat recorded with the Surveyor. In this state of the record, we must assume that the inscription appears only on the revised plat annexed to the declaration filed in the Recorder of Deed’s office, which is referred to in the deed to Morrisette.

So it is that we become confronted with a problem as to whether the notice prerequisite to enforcement of equitable servitudes obtained in this case. The initial question, arising from the statutes governing recordation of subdivision plats in the District, is whether under the circumstances portrayed subsequent purchasers are charged with constructive notice of plats filed with the Recorder of Deeds, and thus are not permitted to rely upon the representations implicit in plats recorded with the Surveyor. The parties have not addressed this question at all, but we have given it our most careful consideration. Despite the complexities germinated by the sad condition of the record, we are satisfied that ample notice was imparted here.

To be sure, as is statutorily demanded, subdivision plats must be duly recorded in the office of the Surveyor. In our view, however, once that requirement has been met, the statutes do not prohibit an owner from incorporating a revised copy of the same plat into another recordable instrument in order to impress, through a suitable endorsement on the plat, a servitude upon a single lot in the original subdivision. In such circumstances, the revised plat is being used only as a method of imposing a servitude, and not to establish the areas and boundaries of the lots in the subdivision, which is the principal purpose of the filing of a plat in the office of the Surveyor. While, as we shall see, it is true that equitable servitudes can be created by inscriptions on subdivision plats filed with the Surveyor, they may also be created by deeds, with or without plats' attached. In fact, it is more customary to establish easements and other land servitudes by deed rather than by the official subdivision plat.

In this case, the deed conveying title to Morrisette specifically described the parcel under scrutiny as Lot 43 on the plat recorded in the office of the Surveyor. It then referred to that parcel as “comprising the area for car parking as shown on the plat” appended to and recorded with the declaration" of covenants Thus the revised plat was merely being used to indicate that Lot 43 was subject to the parking servitude inscribed thereon. In that posture, resort to the revised plat filed with the Recorder of Deeds was not improper, and Morrisette was placed on notice of the inscription affecting the property he purchased.

Beyond the foregoing, Morrisette testified at trial that he had knowledge of the revised plat and of the inscription thereon when he bought Lot 43. Thus, beyond peradventure, Morrisette had actual as well as constructive notice of the inscription, and either was plainly enough. In these circumstances, it is immaterial that the copy of the revised plat bearing the inscription was recorded in the office of the Recorder of Deeds rather than in the office' of the Surveyor.

IV

Since appellee had full notice of the inscription on the copy of the revised subdivision plat pertaining to Lot 43, the issue is reduced to what the sub-divider of Dexter Heights might have had in mind in placing it there. The creation of equitable servitudes is basically a matter of intention — not secret, unexpressed thoughts on the matter, we hasten to add, but intention derived from the written language when viewed in the light of the surrounding circumstances. It must appear that the subdivider’s object wás to create a servitude for parking on Lot 43 which would inure to the benefit of the other lots in Dexter Heights. If such an intention emerges clearly on the record before us, it follows that the District Court erred in ruling in Morrisette’s favor.

There can be no question as to the legal sufficiency of an inscription on a plat to impose an equitable servitude on land when the intention to do so is manifest. Servitudes enforceable in equity, no less than other types of property interests, may be created without express grant; even easements, of the nature of which the servitude claimed in this ease partakes, may spring up purely by implication. Rights of either character may arise from a plat inscription which, either alone or in conjunction with other objective circumstances, clearly connotes a purpose to lay a burden on land for the benefit of other land.

We are thus led to a consideration of the trial judge’s finding that “the legend on the plat is purely descriptive and was not intended to create an easement or other property . rights.” Unless clearly erroneous, that finding warranted the adjudication in favor of Morrisette which Case has subjected to this appeal. But it does not necessarily follow merely from the fact that the inscription “is purely descriptive” that it “was not intended to create . property rights” if, when viewed in proper context, it is clearly indicative of an intention to bind Lot 43 as an area for parking by the residents of Dexter Heights. Case argues convincingly that such an intention is plain, while Morrisette responds vigorously that it is nonexistent. Our task thus becomes defined as an appropriate inquiry as to whether, “although there [may be] evidence to support” the finding, “on the entire evidence [we are] left with the definite and firm conviction that a mistake has been committed.”

Our starting point is the inscription itself. Its wording is simple and direct, and unlike the trial judge we have no difficulty whatsoever in understanding the message it conveys. Lot 43, it says, was “To be Graded & Cinder Covered for Car Parking (50 Cars),” and someone — obviously the sub-divider — was to “Provide Proper Driveway Entrance From Talbert Terrace.” While we agree that a plat notation of dubious import does not suffice to levy a restriction on land use, we can read this inscription only as an unequivocal declaration that those things would be done in order to enable vehicular parking on Lot 43. And we cannot imagine that parking on Lot 43 for 50 cars was to be arranged for the benefit of any group other than the occupants of Dexter Heights.

So unambiguous is the revised plat inscription in reference to parking on Lot 43 that resort to extrinsic evidence seems hardly necessary. But the fact of the matter is that our reading of the inscription becomes even more persuasive when we examine the surrounding circumstances. Dexter Heights came into being as a community of residential units, initially to be rented to defense workers and later to be sold to veterans returning from the war. As the revised subdivision plat shows, very few of the 89 lots into which Dexter Heights was carved exceed 15 feet in width, and very few abut on any sort of rear alley. There was also a restriction establishing a building setback line only ten feet inwardly from the front lot lines. That combination of circumstances practically removed any possibility of parking vehicles on the individual lots. And from the density of housing construction, resulting largely from the narrowness of the lots, it has been apparent from the beginning that on-street parking was very apt to be woefully inadequate.

Very importantly, the record discloses without contradiction that a condition to the federal financing which the Dexter Heights project utilized was the provision of an area for tenant parking during the era it was to serve the housing needs of defense workers. The only inference tolerable in this milieu is that the inscription on the revised plat regarding Lot 43 was designed to satisfy that requirement. We think, too, that the inference is inevitable that the inscription was designed to benefit not only the World War II tenants but also the post-war owners of the properties comprising Dexter Heights. That is demonstrated by a series of documents recorded long prior to the end of the war, as we now explain.

The revised subdivision plat is far different from a plan depicting merely the sites of housing units to be erected, which is all a project exclusively for rental would have required. It is a layout of 89 separate lots, accompanied by specification of all the data essential to exact location of the boundaries of each. Indeed, the only feature of the revised plat tending in the least to indicate the location of any dwelling unit to be constructed is the building setback line drawn thereon. The revised plat thus served plainly the cause of future sales of the individual properties comprising Dexter Heights.

Moreover, the pre-construction agreement to supply separate water and sewer services for each lot and to bring party walls into conformity with building code requirements clearly looked forward to the day when the lots in Dexter Heights would be individually sold as improved properties. In like fashion, the pre-development declaration of covenants imposing a cluster of mutual restrictions on all lots in the subdivision just as clearly envisioned the day when renting would yield to selling. But despite the emphatic showing that from the inception of Dexter Heights the lots were slated for eventual sale to veterans, the record contains not so much as an inkling that the benefits of the parking that Lot 43 was undeniably to furnish to tenants immediately were not also to extend to the lot owners who were to follow them.

We are mindful that, as the trial judge pointed out, the declaration of covenants did not mention a parking servitude on Lot 43. That is not surprising since the declaration on its face was directed toward restrictions that would bind and benefit all lots reciprocally, in contrast to a parking servitude which would burden only one lot without any return from any of the rest. But whatever the explanation, this circumstance carries too little weight to impinge upon the several positive identifications that Lot 43’s burden was to be every other lot’s benefit. The omission can be accounted for by any one of a number of innocuous reasons, and no basis for assuming anything different is apparent. We cannot attribute to it an importance that would threaten the strong showing made by other indubitable features of the case. Furthermore, the declaration recites that “[a] 11 the . lots [are] more fully designated and shown on plat attached hereto and made a part hereof and to which reference is hereby made. . . . ” It is settled that such an incorporation by reference summons a reading of the declaration and the revised plat appended as a single instrument.

Nor are we able to accept the trial judge’s conclusion that because Lot 43 has never been used or fit for parking, no equitable servitude binding it to that purpose arose.; We do not consider any more significant the fact, noted by the judge, that Dexter Heights’ property owners have never before pressed a claim that Lot 43 should be made useable for parking of their vehicles. Events transpiring after activities assertedly creating a property interest have no bearing on the question whether the asserted interest arose. Put another way, a parking, servitude on Lot 43 either arose or failed to .arise when the inscription referring to that lot was incorporated into- the revised subdivision plat. ' Moreover, mere 'acquiescence in the violation of ;a restriction does not amount to an abandonment as long as it retains some valúe, nor', does nonuser work an abandonment of a', nónprescriptive easement When unaccompanied by clear evidence bf- an intention to abandon And since Morrisette testified at trial that he plans to make -Lot 43 suitable for parking by others than Dexter Heights residents, it is apparent that the lot possesses no physical characteristics rendering ' its development for that use unfeasible. In sum, the circumstances which the trial judge -found persuasive neither prevented the servitude from coming into being nor, without more, wrought its termination.

This is not to say that these circumstances when coupled with others of similar character could not have caused a loss of the right to enforce the servitude after it arose. It is to say that the trial judge made no finding which would support that conclusion. The judge ruled that no enforceable servitude on Lot 43 emanated from the revised plqt inscription in reference to that lot. Consequently, he had no occasion to focus on the question whether subsequent events destroyed the right to bring a violation to task by injunction. Since, “on the entire evidence,” we are “left with the definite and firm conviction that a mistake has been committed,” we deem it “just under the circumstances” to leave the door open to litigation of Morrisette’s defenses. The District Court will be free to determine on remand whether enforcement of the servitude on Lot 43 would now be inequitable. It goes without saying that we intimate no view whatsoever in that regard.

The judgment appealed from is reversed, and the case is remanded to the District Court for further proceedings not inconsistent with this opinion. Reversed and remanded.

      . We make specific reference in this opinion to some of these difficulties.

      . Case bought, not directly from Dexter Realty Company or its corporate successor, but from an intermediate purchaser. The property was conveyed to Case and his wife as tenants by the entireties, and Case has litigated alone in the District Court and here. The record gives no explanation for the absence of the wife as a party. Since the point has nowhere been raised, we do not pause to explore its implications.

      . For the sake of clarity, we point out now several important facts which we later discuss in more detail. The original plat of the subdivision of Dexter Heights is duly recorded in the office of the Surveyor of the District of Columbia, and the revised plat referred to in text is recorded with the declaration of covenants in the office of the Recorder of Deeds of the District of Columbia. See text infra at notes 49-51. The inscription on which Case relies appears on the revised plat, see text infra at note 7, but on the record before us we must assume that it does not appear on the original plat filed with the Surveyor. See text infra following note 53. Statutes in the District of Columbia in terms require recordation of subdivision plats in the Surveyor’s office and forbid their recordation in the Recorder of Deed’s office, see text infra at notes 50-51, thus jeopardizing the recordation of the revised plat as constructive notice of the inscription it contained to subsequent purchasers. A crucial question, then, is whether the recording treatment given the inscription affects its enforceability. See Part III, infra. Another question is whether in any event the inscription imposed the servitude for parking which Case contends for in this case. See Part IV, infra.

      . The restrictions apparently remain in full force. The declaration specifies that they would endure until January 1, 1968, and would then be automatically extended for successive periods of ten years unless by vote of a majority of the then property owners it should be agreed to change them in whole or in part. The record does not inform us as to whether there has been any vote to change.

      . The declaration states that “[a]ll the . . . lots [are] more fully designated and shown on plat attached hereto and made a part hereof and to which reference is hereby made. ...”

      . As we have stated, the residential units were built with a view to immediate rental to defense workers and ultimately to sale to veterans. The units were constructed as row houses in groups of six, originally with six-inch nonbearing partitions and in some instances with a common sewer and a common water supply. By the agreement referred to in text, Dexter Realty Company covenanted with the District of Columbia to bring all party walls into compliance with building regulations and to provide separate sewer and water connections prior to any conveyance of the units as separate properties.

      . As we shall see, this inscription is the focal point of the litigation.

      . The deed also refers to the original subdivision plat, which we later discuss. See text infra at notes 50-59.

      . See Fields v. District of Columbia, 143 U.S.App.D.C. 325, 443 F.2d 740 (1970).

      . Though brought as a class action, Case abandoned that approach in the District Court and requested that the action be treated instead as an individual suit.

      . See text supra at note 7.

      . Additional defenses are laches and the statute of limitations. The District Court did not rule on them one way or the other. See, however, text infra at notes 97-98.

      . See Fed.R.Civ.P. 52(a).

      . These findings refer only to the parties’ lot ownerships, the Dexter Heights subdivision, the declaration of covenants, the contentions of the parties and the issue as the judge conceived it.

      . The judge’s other conclusions relate only to jurisdiction and to the resolution of the case in Morrisette’s favor.

      . In relevant part, the judge stated:
      The last clause of this legend is ungrammatical and not understood. The question is whether this legend is sufficient to create a parking easement. The declaration itself after describing the property in detail contains a number of covenants running with the land requiring the land to be used only for residential purposes providing for certain setbacks, excluding trailors and so forth. Nowhere in among the covenants is there any mention of a parking area. An easement cannot be created by ambiguous language. The Court is of the opinion that the legend on the plat is purely descriptive and was not intended to create an easement or other property rights. Apparently the parties so understood the matter and assumed that there was no parking easement because the lot is not suitable for parking.
      In 1942 it was a precipice. It has never been graded or put in shape for use as a parking lot and has never been used as such and is not now being used as such. The property owners who now claim to have an easement never asserted any rights to have the lot graded and put in shape for parking and never attempted to park any cars thereon. It is quite apparent that there was no intention on the part, of either side to create the legend on the plat as a grant of an easement. It cannot be an equitable servitude because it has never been used as such. Apparently the property owners became very much dissatisfied within the past year or so and the fact that the present owners of the tract are planning to build some additional apartments in the immediate area and are objecting to this enterprise. Whether the enterprise is a desirable one or not is something that does not concern the Court. But it does explain why after a quarter of a century some of the property owners all of a sudden began to claim that they had a parking easement in a lot which was and still is a precipice.

      . See note 16, supra.

      . See note 16, supra.

      . See note 16, supra.

      . See note 16, supra.

      . See text supra at note 7.

      . See note 16, supra.

      . See note 16, supra.

      . See note 16, supra.

      . Fed.R.Civ.P. 52(a).

      . The judge’s statement at the end of the trial is transcribed as a part of the record of the trial proceedings. See Amplex of Maryland, Inc. v. Outboard Marine Corp., 380 F.2d 112, 113 (4th Cir. 1967), cert. denied, 389 U.S. 1036, 88 S.Ct. 768, 19 L.Ed.2d 823 (1968); Southern Pac. Land Co. v. United States, 367 F.2d 161, 162 n. 1 (9th Cir. 1966), cert. denied, 386 U.S. 1030, 87 S.Ct. 1478, 18 L.Ed.2d 592 (1967). We perceive no inconsistency between the statement and the written findings. See United States v. Cornish, 348 F.2d 175, 181 n. 8 (9th Cir. 1965). See also FTC v. B. F. Goodrich Co., 100 U.S.App.D.C. 58, 63, 242 F.2d 31, 36 (1957).

      . Horton v. United States Steel Corp., 286 F.2d 710, 713 (5th Cir. 1961).

      . Proposals to adopt the limited review of jury verdicts as the standard for trial judges’ factual findings were rejected. See 9 C. Wright & A. Miller, Federal Practice § 2571 (1971) ; Note, Rule 52 (a) : Appellate Review of Findings of Fact Based on Documentary or Undisputed Evidence, 49 Va.L.Rev. 506, 511-516 (1963).

      . Coleman v. United States, 85 U.S.App.D.C. 145, 148, 176 F.2d 469, 472 (1949); Fleming v. Palmer, 123 F.2d 749, 751 (1st Cir. 1941), cert. denied, 316 U.S. 662, 62 S.Ct. 942, 86 L.Ed. 1739 (1942); Crowe v. Cherokee Wonderland, Inc., 379 F.2d 51, 53 (4th Cir. 1967); United States v. Stewart, 201 F.2d 135, 137 (5th Cir. 1953).

      . Bellevue Gardens, Inc. v. Hill, 111 U.S.App.D.C. 343, 345, 297 F.2d 185, 187 (1961); Obolensky v. Saldana Schmier, 409 F.2d 52, 54 (1st Cir. 1969); Watson v. Joshua Hendy Corp., 245 F.2d 463, 464 (2d Cir. 1957); R. M. Palmer Co. v. Luden’s, Inc., 236 F.2d 496, 498 (3d Cir. 1956).

      . Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); United States v. E. I. du Pont de Nemours & Co., 351 U.S. 377, 381, 76 S.Ct. 994, 100 L.Ed. 1264 (1956); Socash v. Addison Crane Co., 120 U.S.App.D.C. 308, 309, 346 F.2d 420, 421 (1965); Lichter v. Goss, 232 F.2d 715, 719 (7th Cir. 1956).

      . Zenith Radio Corp. v. Hazeltine Research, Inc., supra note 31, 395 U.S. at 123, 89 S.Ct. 1562, 23 L.Ed.2d 129; United States v. National Ass’n cf. Real Estate Bds., 339 U.S. 485, 495-496, 70 S.Ct. 711, 94 L.Ed. 1007 (1950); B’s Co. v. B. P. Barber & Associates, Inc., 391 F.2d 130, 132-133 (4th Cir. 1968); Neal v. Saga Shipping Co., 407 F.2d 481, 487-488 (5th Cir.), cert. denied, 395 U.S. 986, 89 S.Ct. 2143, 23 L.Ed.2d 775 (1969).

      . Fed.R.Civ.P. 52(a); Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 274-275, 69 S.Ct. 535, 93 L.Ed. 672 (1949); Jackson v. United States, 122 U.S.App.D.C. 324, 326-327, 353 F.2d 862, 864-865 (1965).

      . Advisory Committee Note to Fed.R.Civ. P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 394, 68 S.Ct. 525, 92 L.Ed. 746 (1948). See, to the same effect, United States v. Singer Mfg. Co., 374 U.S. 174, 194 n. 9, 83 S.Ct. 1773, 10 L.Ed.2d 823 (1963); Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Graver Tank & Mfg. Co. v. Linde Air Prods. Co., supra note 33, 339 U.S. at 609-610, 70 S.Ct. 854; Bishop v. United States, 96 U.S.App.D.C. 117, 121-122, 223 F.2d 582, 586-587 (1955), judgment vacated and case remanded on other grounds, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).

      . Baltimore & O. R. R. v. Postom, 85 U.S.App.D.C. 207, 208, 177 F.2d 53, 54 (1949); James Julian, Inc. v. President &. Comm’rs of Town of Elton, 341 F.2d 205, 209-210 (4th Cir. 1965); Miller v. Commissioner, 203 F.2d 350, 353 (6th Cir. 1953). We do not, however, accept the converse of that proposition. In our view, “substantial evidence” and “clearly erroneous” are not synonomous; although supported by substantial evidence a finding may be set aside if it is found to be clearly erroneous. W.R.B. Corp. v. Geer, 313 F.2d 750, 753 (5th Cir. 1963); Jackson v. Hartford Accident & Indem. Co., 422 F.2d 1272, 1275-1278 (8th Cir. 1970); 5A J. Moore, Federal Practice ¶ 52.03[1], at 2621-2624 (2d ed. 1971); 9 C. Wright & A. Miller, Federal Practice § 2585, at 735; Note, 41 Tex.Law.Rev. 935, 939 (1963).

      . United States v. finger Mfg. Co., supra note 34, 374 U.S. 194 n. 9, 83 S.Ct. 1173; MacMullen v. South Carolina Elec. & Gas Co., 312 F.2d 662, 670 & n. 7 (4th Cir.), cert. denied, 373 U.S. 912, 83 S.Ct. 1302, 10 L.Ed.2d 413 (1963); Toro Mfg. Corp. v. Jacobsen Mfg. Co., 357 F.2d 901, 902-903 (7th Cir. 1966).

      . United States v. United States Gypsum Co., supra note 34, 333 U.S. at 395, 68 S.Ct. at 542. Accord, Zenith Radio Corp. v. Hazeltine Research, Inc., supra note 31, 395 U.S. at 123, 89 S.Ct. 1562, 23 L.Ed.2d 129; Guzman v. Ruiz Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962); Commissioner v. Duberstein, supra note 34, 363 U.S. at 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218; McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954); United States v. Oregon State Medical Soc., 343 U.S. 326, 339, 72 S.Ct. 690, 96 L.Ed. 978 (1952).

      . United States v. United States Gypsum Corp., supra note 34, 333 U.S. at 395-399, 68 S.Ct. 525; Feder v. Martin Marietta Corp., 406 F.2d 260, 264 (2d Cir. 1969); Tanzer v. Huffines, 408 F.2d 42, 45 n. 8 (3d Cir. 1969); Lentz v. Metropolitan Life Ins. Co., 428 F.2d 36, 39 (5th Cir. 1970).

      . United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526, 81 S.Ct. 294, 5 L.Ed.2d 268 (1961); District of Columbia v. Seven-Up of Washington, Inc., 93 U.S.App.D.C. 272, 275, 214 F.2d 197, 200, cert. denied, 347 U.S. 989, 74 S.Ct. 851, 98 L.Ed. 1123 (1954); Caron Corp. v. Ollendorf, 160 F.2d 444, 445 (2d Cir.), cert. denied, 332 U.S. 765, 68 S.Ct. 72, 92 L.Ed. 350 (1947); Automotive Devices Co. v. Automotive Devices Co. of Pennsylvania, 292 F.2d 663, 664 & n. 3 (3d Cir. 1961); Hicks v. United States, 368 F.2d 626, 630-632 (4th Cir. 1966).

      . See nóte 16, supra.

      . See text infra at notes 46 — 47.

      . See text infra at notes 43-48.

      . See cases cited infra note 45.

      . See cases cited infra note 45.

      . Republic Steel Corp. v. Payne, 272 Ala. 483, 132 S.2d 581, 584 (1961); Murphey v. Gray, 84 Ariz. 299, 327 P.2d 751, 755 (1958); Easton v. Careybrook Co., 210 Md. 286, 123 A.2d 342, 344 (1956); Sun Oil Co. v. Trent Auto Wash, Inc., 379 Mich. 182, 150 N.W.2d 818, 821 (1967); Reed, v. Williamson, 164 Neb. 99, 82 N.W.2d 18, 27 (1957); Simplex Precast Indus., Inc. v. Biehl, 395 Pa. 105, 149 A.2d 121, 124-125 (1959); Hercules Powder Co. v. Continental Can Co., 196 Va. 935, 86 S.E.2d 128, 134 (1955).

      . Osius v. Barton, 109 Fla. 556, 147 So. 862, 865 (1933); Clem v. Valentine, 155 Md. 19, 141, A. 710, 713 (1928); Reed v. Williamson, supra note 45, 164 Neb. 99, 82 N.W.2d at 27; Cheatham v. Taylor, 148 Va. 26, 138 S.E. 545, 547-548 (1927).

      . Coomes v. Aero Theatre & Shopping Center, 207 Md. 432, 114 A.2d 631, 634 (1955); Pratte v. Balatsos, 99 N.H. 430, 113 A.2d 492, 494-495 (1955); Brenizer v. Stephens, 220 N.C. 395, 17 S.E.2d 471, 472-473 (1941); 3 R. Powell, Real Property ¶ 411, at 449-465 (rev. ed. 1970); 5 id. ¶ 670, at 141-144, ¶ 671, at 148-149 (rev. ed. 1971); 3 H. Tiffany, Real Property § 861, at 487-490 (3d ed. 1939).

      . E. g., Marra v. Aetna Const. Co., 15 Cal.2d 375, 101 P.2d 490, 492 (1940); Cole v. Seamonds, 87 W.Va. 19, 104 S.E. 747, 748-749 (1920).

      . See text supra at note 4.

      . “The office of the surveyor of the District shall be the legal office of record of the plats and subdivisions of all private property in the District of Columbia and of all property belonging to the District of Columbia. And the copies of all records of the division of squares and lots made between the public and the original proprietors and all plats, papers, books, maps, and records now in the office of the surveyor shall remain therein.” D.C. Code § 1-605 (1967).

      . “It shall not be lawful for any person or persons to record any map or plat of the subdivision of land in the District of Columbia in the office of the recorder of deeds for said District, whether such map or plat be attached to a deed or other document or is offered separately for record.” D.C.Code § 45-506 (1967).

      . The declaration of covenants and the deeds conveying title to Case and Morrisette, respectively, all indicate differences between the plats. See note 53, infra. And while a witness testified that the copy of the revised plat introduced in evidence was a “copy of the original site plan on Dexter Heights,” it would appear that he was referring to the revised plat recorded with the declaration, and not to the one recorded in the office of the Surveyor.

      . The declaration of covenants identifies .nine lots — the totality of Dexter Heights —by reference to the plat recorded in the Surveyor’s office, and states that each of eight of these lots comprises a group of smaller lots — 88 in the aggregate — as shown on the revised plat recorded in the Recorder of Deed’s office, Lot 43 being the only original lot not further subdivided. The deed to Case specifically identifies the property conveyed by its lot number on the revised plat, and describes it as part of a particular numbered lot as shown on the plat recorded in the Surveyor’s office. The deed to Morrisette identifies its subject as Lot 43 on the latter plat, and refers to it as “comprising the area for car parking as shown on the plat” attached to and recorded with the declaration of covenants in the Recorder of Deed’s office.

      . See text infra at notes 64-67.

      . See text supra at note 8. Compare Smith v. deFreitas, 329 F.2d 629, 633 (3d Cir. 1964); Morton v. Clearview Homes, Inc., 324 P.2d 543, 545-546 (Okla.1958); McDonald v. Welborn, 220 S.C. 10, 66 S.E.2d 327, 330-331 (1951); Hall v. Church of the Open Bible, 4 Wis. 2d 246, 89 N.W.2d 798, 800 (1958); Dillon v. Davis, 201 Va. 514, 112 S.E.2d 137, 138-140 (1960).

      . Compare Kilby v. Sawtell, 203 Ga. 256, 46 S.E.2d 117, 120, 121 (1948); Crutcher v. Moffett, 205 Ky. 444, 266 S.W. 6, 7 (1924); Recco v. Chesapeake & O. Ry., 127 W.Va. 321, 32 S.E.2d 449, 453-454 (1944).

      . Compare University Hills, Inc. v. Patton, 427 F.2d 1094, 1100 (6th Cir. 1970); Library Neighborhood Ass’n v. Goosen, 229 Mich. 89, 201 N.W. 219, 221 (1924); Johnson v. Pattison, Iowa, 185 N.W.2d 790, 797 (1971).

      . See eases cited supra notes 53-56. And the fact that the servitude requires affirmative conduct does not bar suit to enforce observance by Morrisette during his tenure as owner of Lot 43. Murphy v. Kerr, 5 F.2d 908, 910-911, 41 A.L.R. 1359 (8th Cir. 1925); Thew v. Thew, 35 Cal.App.2d 691, 96 P.2d 826, 831 (1939); Everett Factories & Terminal Corp. v. Oldetyme Distillers Corp., 300 Mass. 499, 15 N.E.2d 829, 832-833, 118 A.L.R. 965 (1938). See also Annot., 68 A.L.R.2d 1022 (1959).

      . Compare Perkins v. Jacobs, 124 Me. 347, 129 A. 4, 5 (1925); Library Neighborhood Ass’n v. Goosen, supra note 57, 229 Mich. 89, 201 N.W. at 221. See also Murray v. Klinzing, 64 Conn. 78, 29 A. 244, 245 (1894); Sanborn v. Mueller, 38 Minn. 27, 35 N.W. 666, 667 (1887); Newbold v. Peabody Heights Co., 70 Md. 493, 17A. 372, 373-374 (1889).

      . Gnau v. Kinlein, 217 Md. 43, 141 A.2d 492, 495-496 (1958); Appeal of J. C. Grille, Inc., 181 Pa.Super. 456, 124 A.2d 659, 664 (1956); Ridley v. Haiman, 164 Tenn. 239, 47 S.W.2d 750, 753 (1932); Goodman v. Bingle, 48 S.W.2d 432, 433 (Tex.Civ.App.1932); Cheatham v. Taylor, supra note 46, 148 Va. 26, 138 S.E. at 549-550.

      . See, e. g., Archer v. Salinas City, 93 Cal. 43, 28 P. 839, 840-841 (1892); Byam v. Kansas City Pub. Serv. Co., 328 Mo. 813, 41 S.W.2d 945, 949-951 (1931). See also cases cited infra note 62.

      . Smith v. Second Church of Christ, 87 Ariz. 400, 351 P.2d 1104, 1109-1112, 84 A.L.R.2d 766 (1960); Leonard v. Osburn, 169 Cal. 157, 146 P. 530, 531 (1914); Gnau v. Kinlein, supra note 60, 217 Md. 43, 141 A.2d at 496-497; Furness v. Sinquett, 60 N.J.Super. 410, 159 A.2d 455, 458 (1960); Byam v. Kansas City Pub. Serv. Co., supra note 61, 328 Mo. 813, 41 S.W.2d at 947-952; Cheatham v. Taylor, supra note 46, 148 Va. 26, 138 S.E. at 549-550.

      . Osius v. Barton, supra note 46, 164 Neb. 99, 147 So. at 862; Clem v. Valentine, supra note 46, 155 Md. 19, 141 A. at 712; Stewart v. Alpert, 262 Mass. 34, 159 N.E. 503, 504 (1928); Toothaker v. Pleasant, 315 Mo. 1239, 288 S.W. 38, 42-44 (1926); Hall v. Risley, 188 Ore. 69, 213 P.2d 818, 831-832 (en banc 1950); Ladner v. Siegel, 294 Pa. 360, 144 A. 271, 273 (1928).

      . Use restrictions on land have frequently been imposed by agreement apart from a conveyance. See, e. g., Clements v. Taylor, 184 S.W.2d 485, 487-488 (Tex.Civ.App.1944). Compare Schefer v. Ball, 53 Misc. 448, 104 N.Y.S. 1028, 1029-1032, aff’d, 120 App.Div. 880, 105 N.Y.S. 1142 (1907), 192 N.Y. 589, 85 N.E. 1115 (1908). They may also arise by implication. See, e. g., Wing v. Forest Lawn Cemetery Ass’n, 15 Cal.2d 472, 101 P.2d 1099, 1104-1105, 130 A.L.R. 120 (1940); Edwards v. Surratt, 228 S.C. 512, 90 S.E.2d 906, 910-911 (1956); Minner v. City of Lynchburg, 204 Va. 180, 129 S.E.2d 673, 678-680 (1963). They have often arisen from inscriptions and notations on subdivision plats. See note 67, infra, and accompanying text.

      . See Rivera v. Lawton, 35 F.2d 823, 824 (1st Cir. 1929); Cuneo v. Chicago Title & Trust Co., 337 Ill. 589, 169 N.E. 760, 763 (1929); State ex rel. Britton v. Mulloy, 332 Mo. 1107, 61 S.W.2d 741, 743 (1933); Craven County v. First Citizens Bank & Trust Co., 237 N.C. 502, 75 S.E.2d 620, 622-627 (1953).

      . See generally 3 R. Powell, Real Property ¶¶ 410, 411 (rev. ed. 1970).

      . It has been held in numerous cases that a grantee to whom realty is conveyed by reference to a plat acquires a right in the nature of an easement in the areas delineated thereon as spaces for streets, parks and other common uses. See 3 R. Powell, Real Property ¶ 409 (rev. ed. 1970) ; Annot. 7 A.L.R.2d 607 (1949). It may well be that if all relevant circumstances had been brought forth at trial, this appeal could have easily been disposed of by application of this well established rule. That possibility is foreclosed because title documents in the chain from Dexter Realty Company, the subdivider, to Case are omitted from the record before us. While the record contains the deed to Case and his wife, we cannot determine whether the rule in question is applicable without examining the other documents in the chain.

      . See note 16, supra.

      . See text supra at notes 25-34.

      . See note 65, supra, and accompanying text.

      . See text supra at notes 43-48.

      . Case’s argument is an undifferentiated admixture of legal doctrine drawn from the areas of dedication, estoppel and equitable servitudes. This has hardly promoted clarity of presentation. See 3 R. Powell, Real Property ¶ 409, at 426-427 (rev. ed. 1970). And even assuming an intention to publicly dedicate Lot 43 for parking, there is no basis for resort to the law of dedication because the record nowhere indicates that the District of Columbia has ever accepted Lot 43 as a parking facility. E. g., Watson v. Carver, 27 App.D.C. 555, 559 (1906). Indeed, if a public dedication of Lot 43 for parking had actually occurred, the question under consideration on this appeal would not likely have arisen, for the creation of a right in the general public to park on Lot 43 would have established a fortiori the right of owners in Dexter Heights to use Lot 43 for that purpose. Nor is there any foundation for invoking the doctrine of estoppel since the record shows plainly that Case in no way relied upon or was misled by the revised-plat inscription at the time his parcel was purchased. E. g., Washington Loan & Trust Co. v. Convention of Protestant Episcopal Church, 54 App.D.C. 14, 19, 293 F. 833, 838, 34 A.L.R. 913 (1923).

      . Morrisette’s argument largely adopts the trial judge’s approach without beneficial embellishment.

      . See text supra at note 37.

      . See text supra at note 7.

      . See note 16, supra.

      . See text supra at note 7.

      . See, e. g., Holliday v. Sphar, 262 Ky. 45, 89 S.W.2d 327, 329 (1935); Moore v. Kimball, 291 Mich. 455, 289 N.W. 213, 215 (1939); Single v. Whitmore, 307 N.Y. 575, 122 N.E.2d 918, 922 (1954); Cooke v. Kinkead, 179 Okla. 147, 64 P. 2d 682, 684-686 (1936); Satterthwait v. Gibbs, 288 Pa. 428, 135 A. 862, 863-864 (1927).

      . Subdivision plat inscriptions far less informative than the one under scrutiny have been held to confer legally protected rights of user upon property owners within the subdivision. See, e. g., Tweedy v. Brennan, 131 F.2d 488, 490 (7th Cir. 1942) (“[b]each”); Carroll v. Hinchley, 316 Mass. 724, 56 N.E.2d 608, 610 (“[p]ark”); Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S. 2d 13, 133 N.E.2d 505, 506 (1956) (“[b]oardwalk”). See also Klein v. Dove, 205 Md. 285, 107 A.2d 82, 83-86 (1954) (lake area); Cassell v. Reeves, 265 S.W.2d 801, 802-803 (Ky.1954) (unmarked lot); Vallone v. City of Cranston, 97 R.I. 248, 197 A.2d 310, 312 (1964) (unmarked strip).

      . See, e. g., Reetz v. Ellis, 279 Ala. 453, 186 So.2d 915, 918 (1966); Kent v. Smith, 410 S.W.2d 833, 838 (Tex.Civ.App.1967).

      . See text supra at note 2.

      . Thus it was impossible to construct a driveway past the residential unit on such a narrow lot.

      . Only nine of the 89 lots in the subdivision have access to a rear alley.

      . This restriction is set both by markings on the revised subdivision plat and by provisions of the declaration of covenants.

      . We take judicial notice of the amount of space which the parking of a vehicle requires.

      . Case’s testimony at trial portrays vividly the trouble he has had in finding on-street parking near his residence.

      . Indeed, the fact inferable was confirmed by the uncontroverted testimony of a former officer of Dexter Realty Company, the subdivider. This witness, referring to the inscription, stated that “I know that the language was to set that lot aside as off-street parking for the defense rental clients, tenants.”

      . See note 6, supra.

      . See text supra at notes 3-4.

      . See 'note 16, supra.

      . See note 5, supra.

      . George v. Manhattan Land & Fruit Co., 51 F.2d 28, 31 (5th Cir. 1931); Johnston v. Thomas, 275 F.Supp. 32, 35 (S.D.Ohio 1967); Nixon v. City of Anniston, 219 Ala. 219, 121 So. 514, 516 (1929); Kraemer v. Kraemer, 167 Cal.App.2d 291, 334 P.2d 675, 681-682 (1959); Harris v. Griffith, Miss., 210 So. 2d 629, 633 (1968); Lowe v. Ragland, 156 Tex. 504, 297 S.W.2d 668, 672, 673 (1957).

      . See note 16, supra.

      . See note 16, supra.

      . See, however, text infral&t notes 96-97.'

      . Beeler Dev. Co. v. Dickens, 254 Iowa 1029, 120 N.W.2d 414, 418 (1963); Deitrick v. Leadbetter, 175, Va. 170, 8 S.E.2d 276, 278-279, 127 A.L.R. 849 (1940). Nor does mere lapse of time establish laches. E. g., Dollar v. Land, 87 U.S.App.D.C. 214, 226, 184 F.2d 245, 257, cert. denied, 340 U.S. 884, 71 S.Ct. 198, 95 L.Ed. 641 (1950); United States ex rel. Givens v. Work, 56 App.D.C. 330, 332, 13 F.2d 302, 304, cert. denied, 273 U.S. 711, 47 S.Ct. 101, 71 L.Ed. 853 (1926).

      . Brunthaver v. Talty, 31 App.D.C. 134, 137 (1908); Smith v. deFreitas, supra note 55, 329 F.2d at 634; Finn v. Williams, 376 Ill. 95, 33 N.E.2d 226, 228, 133 A.L.R. 1390 (1941); Klein v. Dove, supra note 79, 205 Md. 285, 107 A.2d at 85-87; Delconte v. Salloum, 336 Mass. 184, 143 N.E.2d 210, 213, 214 (1957); Miller v. Teer, 220 N.C. 605, 18 S.E.2d 173, 177-178 (1942).

      . See text supra at note 37.

      . See 28 U.S.O. § 2106 (1970).