author: NICHOLS, Judge. DURFEE, Senior Judge,

text:
    The UNITED STATES of America v. The KIOWA, COMANCHE AND APACHE TRIBES OF INDIANS, The Wichita Indian Tribe of Oklahoma and Affiliated Bands et al., Intervenors.
    Appeal No. 12-71.
    United States Court of Claims.
    June 20, 1973.
    As Amended on Denial of Rehearing Sept. 28, 1973.
    Durfee, Senior Judge, concurred in part and dissented in part and filed opinion in which Davis and Kunzig, JJ., joined.

      Bernard M. Sisson, Washington, D. C., with whom was Asst. Atty. Gen. Kent Frizzell, for appellant.
    J. Roy Thompson, Jr., Washington, D. C., attorney of record for The Kiowa, Comanche and Apache Tribes of Indians, appellees.
    Omer Luellen, Hinton, Okl., attorney of record for The Wichita Indian Tribe of Oklahoma, etc., intervenor. Paul M. Niebell, Washington, D. C., of counsel.
    Before COWEN, Chief Judge, DUR-FEE, Senior Judge, and DAVIS, SKEL-TON, NICHOLS, KUNZIG, and BENNETT, Judges.
   ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

NICHOLS, Judge.

This case is before the court on appeal from the Indian Claims Commission (Commission) decision in its Docket No. 257. The Appellees’, Kiowa, Comanche and Apache Tribes filed a claim with the Commission in 1951 in which they claimed aboriginal title to areas of Texas, Oklahoma, New Mexico, Colorado and Kansas, and recognized title to the lands set out as Tracts 511 and 510 on Plate CLXIV, Texas and Portions of Adjoining States, Part II of the 18th Annual Report of the Bureau of American Ethnology, 1896-1897 (Royce Areas 510 and 511). This appeal involves only the claim of title to Areas 510 and 511 as allegedly recognized in the Treaty with the Comanche and Kiowa Tribes, concluded on October 18, 1865.

The Appellee-Tribes filed a motion for summary judgment on the issue of recognized title on February 13, 1970. Before the Commission ruled, The Wichita Indian Tribe of Oklahoma and Affiliated Bands filed a motion for leave to intervene, originally claiming aboriginal title to the land in question and subsequently claiming recognized title under the Treaty of 1865. The Commission granted the motion for leave to intervene. Both Appellees — Kiowa, Comanche and Apache Tribes — and Appellant, United States, seek reversal of this Commission decision. It • granted the motion for summary judgment and the United States appeals. We reverse on both issues.

We will first deal with the issue of the claimed recognized title of the Kiowa, Comanche and Apache Tribes and then will turn to the issues raised on the question of intervention by The Wichita Indian Tribe of Oklahoma and Affiliated Bands (intervenors).

The Appellees’ claim of recognized title rests on the language of the Treaty of October 18, 1865, 14 Stat. 717, 718. Article II thereof reads:

Article II. The United States hereby agree that the district of country embraced within the following limits, or such portion of the same as may hereafter from time to time be designated by the President of the United States for that purpose, viz: commencing at the northeast corner of New Mexico, thence south to the southeast corner of the same; thence northeastwardly to a point on main Red river opposite the mouth of the North Fork of said river; thence down said river to the 98th degree of west longitude; thence due north o'n said meridian to the Cimarone river; thence up said river to a point where the same crosses the southern boundary of the State of Kansas; thence along said southern boundary of Kansas to the southwest corner of said State; thence west to the place of beginning, shall be and is hereby set apart for the absolute and undisturbed use and occupation of the tribes who are parties to this treaty, and of such other friendly tribes as have heretofore resided within said limits, or as they may from time to time agree to admit among them, and that no white person except officers, agents, and employes of the government shall go upon or settle within the country embraced within said limits, unless formally admitted and incorporated into some one of the tribes lawfully residing there, according to its laws and usages. The Indians parties hereto on their part expressly agree to remove to and accept as their permanent home the country embraced within said limits, whenever directed so to do by the President of the United States, in accordance with the provisions of this treaty, and that they will not go from said country for hunting or other purposes without the consent in writing of their agent or other authorized person, specifying the purpose for which such leave is granted, and such written consent in all cases shall be borne with them upon their excursions, as evidence that they are rightfully away from their reservation, and shall be respected by all officers, em-ployés, and citizens of the United States, as their sufficient safeguard and protection against injury or damage in person or property, by any and all persons, whomsoever. It is further agreed by the Indians parties hereto that when absent from their reservation, they will refrain from the commission of any depredations or injuries to the person or property of all persons sustaining friendly relations with the government of the United States; that they will not while so absent encamp, by day or night, within ten miles of any of the main tra-velled routes or roads through the country to which they go, or of the military posts, towns or villages therein, without the consent of the commanders of such military posts, or of the civil authorities of such towns or villages, and that henceforth they will and do hereby relinquish all claims or rights in and to any portion of the United States or territories, except such as is embraced within the limits aforesaid, and more especially their claims and rights in and to the country north of the Cimarone river and west of the eastern boundary of New Mexico.

The land described in the above article constituted Royce Areas 510 and 511. The origin of the controversy in this ease is the phrase “the district of country embraced within the following limits, or such portion of the same as may hereafter from time to time be designated by the President of the United States for that purpose * * * ”. The question of whether the 1865 Treaty recognized title in the Appellees gains particular import because in 1867 by another Treaty, 15 Stat. 581, the United States established a reservation for the Appel-lees which was comprised of only Royce Area 510, some 3,000,000 acres. Thus if title to both Royce Areas 510 and 511 was recognized in the 1865 Treaty the Appellees would have a claim to be compensated for the loss of Royce Area 511.

The Commission, in an opinion signed by four commissioners, held that the Treaty recognized title to both Areas, but there was a dissent by Chairman Kuykendall.

Appellant tells us that the Senate never intended to and did not ratify the recognition of title to Royce Areas 510 and 511 in the 1865 Treaty. We are told that a large portion of the Area in question was within the boundaries of the State of Texas, and that other Tribes had claimed portions of the Area. Texas retained its public lands upon entering the Union. Therefore, the Appellant points out that the United States cound not grant title to a good portion of the -land in question and it would be contrary to the presumption of good faith on the part of public officials to assume that such a grant was intended. The Appellant invites the court to inspect the language of the Treaty and asserts that in order for there to be a recognition of title there must be language of permanent use and occupation. Appellant would have the court interpret the language of the Treaty to be a temporary recognition of the right to occupancy subject to divestment at the order of the President. Events surrounding the signing of the 1865 and 1867 Treaties are seen by the Appellant as support for its interpretation of the Treaties, especially the alleged fact that the Indian signatories did not make specific protestations prior to the 1867 Treaty that the land vested in them in 1865 was being divested. Finally, the defendant views the- Treaty of 1867 as the Presidential action called for in the 1865 Treaty.

Appellees point out that in the Treaty of 1865 the Indian Tribes ceded their claims to some 100,000,000 acres of land. In return the United States set aside the 39,680,000 acres described in Article II of that Treaty. The Appellees contend that the allegation by Appellant that the United States did not have title to the Area in question is of no import in the issue of the Indians’ right to be compensated for land the United States purported to grant. The Appellees view the language of the 1865 Treaty as recognizing permanent title in the Areas of Royce Area 510 and 511 and point out that the language of recognition in the 1865 Treaty is substantially similar to the language of the 1867 Treaty, which in prior litigation has been deemed to have recognized title to Royce Areas 510 in these tribes. See, United States v. Kiowa, Comanche and Apache Tribes of Indians, 163 F.Supp. 603, 143 Ct.Cl. 534, aff’d on rehearing, 143 Ct.Cl. 545, 166 F.Supp. 939 (1958), cert. denied, 359 U. S. 934, 79 S.Ct. 650, 3 L.Ed.2d 636 (1959).

Appellees also say that Appellant misreads the events surrounding the 1865 and 1867 Treaties, and views them as supporting their position. Appellees point out that failure to protest a Treaty has been held not to deprive Tribes of the rights lost by that Treaty, and note that even a passing reference to the statements made by the Chiefs present at the Treaty negotiations would reveal their displeasure at the treatment they were receiving at the hands of the United States. The Appellees note that neither the events leading up to the 1867 Treaty nor the language of that Treaty indicate that it was to be an implementation of the Treaty of 1865. Conversely the Appellees argue that the language of the 1867 Treaty indicates a recognition of the permanent title vested by the 1865 Treaty. On this point the Appel-lees say that the 1865 Treaty called for Presidential action while the 1867 Treaty was entered into as the result of the activities of a Congressionally appointed commission. Finally, the Appel-lees contend that the acceptance of Appellant’s interpretation of the 1865 Treaty would result in the Tribes having ceded to the United States 100,000,000 acres of land in exchange for nothing in 1865 and finally in exchange for some 3,000,000 acres of land in 1867. Such a holding we are told would be contrary to fair and honorable dealings and fly in the face of the fiduciary duty assumed by the United States towards the Indians.

In reaching our decision, we have found it unnecessary to consider all of these issues.

The intentions of the parties to an Indian Treaty need not be demonstrated by formal language. Miami Tribe of Oklahoma v. United States, 175 F.Supp. 926, 146 Ct.Cl. 421 (1959). Therefore a court must take special care in interpreting such a Treaty so as to be able to understand what was intended. When a court endeavors to interpret a Treaty between the United States and an Indian Tribe it is bound by the unambiguous words of that Treaty and cannot rewrite them. United States v. Choctaw Nation, 179 U.S. 494, 21 S.Ct. 149, 45 L.Ed. 291 (1900); Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 65 S.Ct. 690, 89 L.Ed. 985 (1945). Where the words of the Treaty leave room for more than one interpretation the court is to interpret the Treaty in a manner not prejudicial to the Indians. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832). In interpreting the words of the Treaty, the proceedings leading up to the Treaty and the events which follow it should be examined if necessary in order to elucidate the intention of the recognizing party, the United States. Miami Tribe of Oklahoma, supra; Crow Tribe of Indians v. United States, 284 F.2d 361, 151 Ct.Cl. 281, cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1960). Thus in order to reach a conclusion as to whether the 1865 Treaty recognized title to Royce Areas 510 and 511 one must first attempt to ascertain the intention of the parties from the language of the Treaty. As stated by Judge Madden in The Miami Tribe of Oklahoma, 175 F. Supp. at 940, 146 Ct.Cl. at 445:

* * * By “recognition”, the courts have meant that Congress intended to acknowledge, or if one prefers, to grant, to Indian tribes rights in land which were in addition to the Indians’ traditional use and occupancy rights exercised only with the permission of the sovereign. Those additional rights may be sufficient to spell out fee simple title in the Indians if that is what Congress wished, or they may result in something less than fee simple title. The extent of those new and additional rights and the accompanying obligations of the sovereign and the tribe will usually be determined by the Congressional enactment, the treaty, or the agreement, conferring them. * * *

The language of the 1865 Treaty indicates that the Areas granted were subject to redefinition and diminution at the will of the President. The Tribes were granted Royce Areas 510 and 511 “or such portion of the same as may hereafter from time to time be designated by the President of the United States for that purpose.” It is true that the Treaty spoke of the land granted as the Indians permanent home; however, that does not detract from the fact that the extent of that grant was left to later determination. Therefore, without a demonstration of a contrary intention on the part of the United States the language of the 1865 Treaty would defeat the Ap-pellees claim.

The Appellees point to a number of cases which hold that the language need not state formally that the United States intends to recognize title in order for recognition to be accomplished. In Miami Tribe of Oklahoma, for example, Judge Madden viewed the Tribe’s right to occupy the .land in question permanently or until they were disposed to sell it as tantamount to recognized title. In that case if the Indians chose to sell the land they could sell only to the United States, which Appellant urged diminished the nature of the title held. Judge Madden disposed of the Government’s argument by noting 175 F.Supp. at pp. 936, 938, 146 Ct.Cl. at pp. 439, 441, that:

Where Congress has by treaty or statute conferred upon the Indians or acknowledged in the Indians the right to permanently occupy and use land, then the Indians have a right or title to that land which has been variously referred to in court decisions as “treaty title”, “reservation title”, “recognized title”, and “acknowledged title” * * *
•X* # * -X- -X- -X-
* * * an agreement to permit the Indians to occupy land permanently or until they were disposed to sell it to the United States seemed to the Commission, as it does to us, to be a clear indication of an intention on' the part of the United States to recognize in the Indian treaty parties more than aboriginal use and occupancy title to the land in question..

In the Miami Tribe of Oklahoma case the nature of the grant was the question before the court while, in the case at bar, the Treaty demands that the court also deal with the question of the extent of the grant. Thus the analogy to Miami Tribe of Oklahoma is of little aid to the Appellees because we cannot hold that the 1865 Treaty recognized permanent title in the Appellee Tribes without first answering the question: recognized title to what? We are faced with the language of the Treaty which allegedly, “recognized” title to Royce Areas 510 and 511 “or such portion of the same as may hereafter from time to time be designated by the President of the United States for that purpose * # * ft

The court is aware that formal statements of recognition are not necessary in order that a Treaty be deemed to have recognized title in a particular Tribe. However, as stated in Tee-Hit-Ton v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955), “there must be the definite intention by congressional action or authority to accord legal rights, not merely permissive occupation.”

The court is also aware of those cases under which either the events surrounding the Treaty or action subsequent to the Treaty were deemed to have demonstrated the intention on the part of the United States to recognize title, notwithstanding the language of the Treaty.

The case closest to the one at bar in which Treaty language was seen as overturned by subsequent action is Klamath & Moadoc Tribes v. United States, 85 Ct.Cl. 451 (1937), aff’d., 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938). In that case the Tribe had entered into a Treaty in 1864 which permitted them to occupy certain territory “until otherwise directed by the President * * * ”. Shortly thereafter a portion of the territory granted to the Tribe was mistakenly granted to the State of Oregon which in turn sold the land. The Attorney General of the United States sued to recover the land for the Tribe but was unsuccessful. Whereupon the United States arranged for the exchange of the original tract for a smaller one from the reservation and the payment to the Tribe of $108,750 for the second tract. The purchaser of the second tract sold the lumber th'ereon for $3,700,000. The Tribe brought suit under a special act for increased compensation for the land taken including the value of the lumber. The United States defended in part by contending that in the 1864 Treaty the President had retained the power to divest the Tribe of portions of the reservation. The court noted that over the 44 year period in which the events above described transpired the Government had acted in a manner only consistent with its recognition of title to the land in the Tribe. Contrary to the President acting to repossess the land, his inaction and Congressional action to pay for the land taken from the Tribe clearly indicated a recognition of title in the Tribe.

The real point about this Klamath case is that the limitation language there involved: “until otherwise directed by the President” did not expressly relate to the territorial extent of the grant, as the corresponding language does here. This court did not speculate, nor did it need to, as to what direction “otherwise” the President might have given. Apparently, by other Treaty provisions, he might have moved other Tribes on the same reservation, or perhaps, he might have put the Klamaths on some other reservation. In either event, suppose they thought of the grant as conveying specific property, there was nothing to suggest in the limitation language that they might be deprived of that property, or part thereof, without compensation. It was expressly spelled out that the location of other Tribes on the reservation would not forfeit any rights guaranteed to the Treaty parties; It was reasonable for this court to conclude, after non-exercise of the Presidential power over 40 years, that it had lapsed, and was no longer a factor in determining the extent of the Klamaths’ property interest. The Government, too, had repeatedly since recognized the Kla-maths as owners.

Here, on the other hand, the very language of the grant put the grantees on specific notice that the territorial extent of the grant was uncertain and yet to be determined. Instead of embracing a wide range of possibilities, the Presidential action was to focus on one thing only, the territorial extent. It does not seem that any reasonable grantee could have supposed he was getting a permanent grant of the entire tract. It is not suggested the Kiowas were so ignorant they actually misunderstood what they were getting, or could have done so. A long lapse of time might have allowed title to firm up to all the two Royee Areas, but no such lapse was allowed to occur. There was nothing to suggest that the President, if he acted, would deprive the Kiowas of anything, rather, he would for the first time define what it was they had, which until then they did not know. The Commission relied mistakenly on this Klamath case.

Appellees can point to no action on the part of the President or Congress consistent with the recognition of title. The subsequent Treaty of 1867 unequivocally recognized title to only Royce Area 510. Appellees point to language in Article XI of the 1867 Treaty where reference is made to “the old reservation as defined [in the Treaty of 1865].” Such language simply supports the allegation that some Area was reserved to the Tribes in 1865 but does not dispose of the question of what Area was reserved in view of the phrase permitting the President to set the bounds of the reservation at a later date. Appellees also point to Article XVI of the 1867 Treaty where the Tribes retained the right to hunt on the “lands formerly called theirs”. However, in view of the fact that a similar provision was found in the 1865 Treaty it appears likely that this reference is to lands which the Tribes claimed by aboriginal title and not those allegedly recognized in the 1865 Treaty. The Appellees invite the court’s attention to the fact that the recognition of Area 510 in the 1867 Treaty which has been upheld by this court, Kiowa, Comanche & Apache Tribes, supra, was accomplished by substantially similar language as that used in the 1865 Treaty. We think it significant that absent from the language of the 1867 Treaty was the phrase which reserved the power in the President to set the bounds of the Area granted at a later date, the very phrase here to be construed.

The negotiations leading to the Treaty of 1865 indicate that while it was intended that an Area be set aside for the Appellees, no agreement was reached as to the boundaries of that Area. In fact the Area described in the proceedings prior to the Treaty differs from that which was designated in either the 1865 Treaty or the 1867 Treaty. After the negotiation and before the ratification of the Treaty of 1865 the Commissioner of Indian Affairs, D. N. Cooley, writing to the Secretary of Interior stated in part:

-X- * -X- -X- * *

•x- * * As to the treaty with the Kiowas and Comanches. It will be observed, in regard to this treaty, that it does not undertake to limit the Indians to any small reservation, but includes a very large district of country, comprising about 62,000 square miles, which they are to be allowed to have ‘absolute and undisturbed use and occupation,’ ie: the tribes treated with and ‘such as they may agree to admit among them.’ This vast region, thus set apart, may be limited at the discretion of the President. (Emphasis supplied.)

•X- -x- * * * *

It thus appears from this contemporaneous interpretation that the United States did not intend to and did not recognize permanent title to the land in question in the 1865 Treaty.

In attempting to interpret the 1865 Treaty this court is faced with a Treaty which by its words does not recognize permanent possession of the lands in question. The words reveal an intent to grant something less than recognized title in the entire Area described. This apparent intent was not contradicted by the proceedings prior to the Treaty nor by interpretations of the Treaty following its signing but prior to its ratification. No action was taken by the United States inconsistent with the apparent intent of the Treaty.

Appellees contend that if this court should hold that the Treaty of 1865 did not recognize title in the Tribes we would be affirming a breach of fair and honorable dealings. This contention is based on the Appellees having had aboriginal title to 100,000,000 acres of land and losing all but 3,000,000 of that land by 1867 without any consideration being given for such loss. If, in fact, Appel-lees can prove in subsequent proceedings that they had aboriginal title to so much land, this very opinion will support their claim based on unconscionable consideration. However, at this juncture we are not being asked to rule on the question of aboriginal title.

Finally, we are told that the phrase in question called for Presidential action and that the 1867 Treaty was not that action. It was negotiated by commissioners, pursuant to Congressional directive. Appellees seem to glean some significance from the fact that the Treaty of 1867 constituted action of the President with the advice and consent of the Senate, in a manner directed by Congress, instead of individual Presidential action without further Congressional participation. We do not find the distinction persuasive. Nothing in the 1865 Treaty directed the form of action the President was to take.

The parties have devoted a great deal of interesting research to whether the 1867 Treaty constituted action by the Congress or by the President. The contending views may be found ably stated in the prevailing and dissenting opinions below. Actually, we think this is irrelevant. If, as we hold, the 1865 Treaty was not intended to grant recognized title to the entire tract, but to leave its territorial extent for later determination, the summary judgment was erroneously granted and the claim based on the 1865 Treaty must fail, whether or not the 1867 Treaty was intended as an exercise of the President’s 1865 Treaty power. Our holding is that no reeognition of title to any specifically bounded tract occurred in 1865, and the first such was in 1867.

It does not follow that the Indians had nothing under the 1865 Treaty. They had a moral and equitable claim that the President’s power to delimit boundaries be exercised in a manner fair and just to them, in light of their needs and in light of what they had given up; also in light of the lawful claims of Texas and of other Tribes. Thus in Citizen Band of Potawatomi Indians v. United States, 391 F.2d 614, 622, 179 Ct.Cl. 473, 488 (1967), cert. denied, 389 U.S. 1046, 88 S.Ct. 771, 19 L.Ed.2d 839; 390 U.S. 957, 88 S.Ct. 1046, 19 L.Ed.2d 1152 (1968), we said, referring to a right reserved in the President to select 144,000 acres out of a tract granted those Indians:

A fair interpretation of the treaty is that the President would select the 144,000 acres in his capacity as “Great White Father” of the Indians as well as head of the United States Government. A callous disregard of the interests of either would be an abuse of discretion. * * *

A grant of Blackacre or such portion of Blackacre as the grantor might decide upon in his discretion would hardly be considered to convey a marketable title. It is only the peculiar mystique of Indian law that allows a question here. If the grantor of Blackacre stood to the grantee in the relationship of parent, guardian, or trustee, the grantee would have something, but he still could hardly describe himself as the owner of all Blackacre.

Since the summary judgment on recognized title was erroneously granted, it must be reversed on defendant’s appeal.

We now turn to the question of intervention by the Wichita Indian Tribe of Oklahoma and Affiliated Bands. As noted above the motion to intervene was filed with the Commission nearly twenty years after the Appellee Tribes filed their claim for relief. The original motion claimed aboriginal title to the area in question but was expanded to include a claim for compensation under the 1865 Treaty. The preceding portion of our opinion makes the attempted intervention in the claim for recognized title moot. Only the question of the right to intervene in the claim for aboriginal title remains of significance.

In its brief on the question of intervention the intervenors go to great length to demonstrate that in the case of amended pleadings the amendment relates back to the original pleading if no new cause of action is presented and adequate notice was provided to the parties. We will not attempt to explore this line of reasoning because it is clear to us, that this is not a case of amended pleadings. The Appellees are not amending their pleadings to include the intervenors but have vigorously opposed their intervention.

On the question of intervention the parties rely on the cases of Blackfeet & Gros Ventre Tribes v. United States, 162 Ct.Cl. 136 (1963), and Snoqualmie Tribe of Indians v. United States, 372 F.2d 951, 178 Ct.Cl. 570 (1967). (See, United States v. Northern Paiute Nation, 183 Ct.Cl. 321, 393 F.2d 786 (1968), Lipan Apache Tribe v. United States, 22 Indian Claims Commission 1 (1969) ). These cases do not show that a late intervenor may intervene in a claim where his interests are in direct conflict with those of the original claimant. In both the Blackfeet and the Snoqualmie cases we- took pains to show that no intervenor was claiming adversely to the timely claimant. In both cases the litigation involved Treaties to which the intervenors were joint parties. Nor do we see these intervenors as the real parties in interest in the Kiowa, etc., claim. One cannot contend that he is the real party in interest when his claim has been forfeited by his failure to timely file with the Commission.

The result we would reach if we adopted the intervenors reasoning would be to allow a party, too late to file his own claim, to obtain a hearing by appending his claim to that of another party, timely filed, whose claim he seeks to defeat. It is not a question of one or the other party getting an award admittedly due someone. The proofs adduced on behalf of the Wiehitas could easily demonstrate that no one had exclusive control of the tract to which the Kiowas and their group claim aboriginal title, or of parts thereof. The Wichita Indian Tribe of Oklahoma and Affiliated Bands could have timely filed their claim with the Indian Claims Commission. They did not. It would work an injustice to allow them to join in a timely filed suit by the Appellees when the result of that intervention may be the defeat of the Appellees claim, and of any claim.

Intervenor has moved to have the court strike that portion of the Government’s appeal which challenges its right of intervention. Intervenor argues that the Commission order permitting intervention was an interlocutory order which was not appealed within three months as called for by the Act, and that therefore the Appellant’s right to appeal from said order has lapsed.

The section of the Act, 25 U.S.C. § 70s(b) (1970 Ed.), which is in question reads as follows:

In similar manner and with like effect either party may appeal to the Court of Claims from any interlocutory determination by the Commission establishing the liability of the United States notwithstanding such determination is not for any reason whatever final as to the amount of recovery; and any such interlocutory appeal shall be taken on or before January 1, 1961, or three months from such interlocutory determination, whichever is later: Provided, That the failure of either party to appeal from any such interlocutory determination shall not constitute a waiver of its right to challenge such interlocutory determination in any appeal from any final determination subsequently made in the case. On said appeal the Court shall determine whether the findings of fact of the Commission are supported by substantial evidence, in which event they shall be conclusive, and also whether the conclusions of law, including any conclusions respecting “fair and honorable dealings”, where applicable, stated by the Commission as a basis for its final determination, are valid and supported by the Commission’s findings of fact. In making the foregoing determinations, the Court shall review the whole record or such portions thereof as may be cited by any party, and due account shall be taken of the rule of prejudicial error. (Emphasis supplied.)

Appellant argues in part that the interlocutory order here in question did not establish the liability of the United States and is therefore not covered by the three months time limit. We need not consider this assertion for it is clear from the above language that Appellant’s failure to appeal the order of the Commission was not a waiver of its right to appeal thát ■ order in its appeal of the Commission’s final determination on Docket 257. The emphasized portions of the above cited section of the Act permit this court to review the question of intervention in this case.

Accordingly, the decisions of the Indian Claims Commission are reversed, both as to its summary judgment as to recognized title, and as to its order allowing the Wichita Tribe of Oklahoma, et al., to intervene. The cause is remanded to the Commission for further proceedings consistent with this opinion.

Reversed and remanded.

DURFEE, Senior Judge,

(concurring in part and dissenting in part):

I concur with the majority in reversing the decision of the Indian Claims Commission which allowed the Wichita Tribe of Oklahoma Affiliated Bands to intervene in this case. However, I respectfully dissent from that part of the majority decision which reverses the order of the Indian Claims Commission for summary judgment for recognized title by appellees Kiowa, Comanche and Apache Tribes to Royce Areas 510 and 511 under the Treaty of 1865.

The majority holds (1) that “the 1865 Treaty was not intended to grant recognized title to the entire tract” described therein, “but to leave its territorial extent for later determination * * * and the claim based on the 1865 Treaty must fail, whether or not the 1867 Treaty was intended as an exercise of the President’s 1865 Treaty power”; (2) “that no recognition of title to any specifically bounded tract occurred in 1865, and the first such was in 1867”; and (3) whether the 1867 Treaty constituted action by the Congress or by the President “is actually irrelevant.”

These conclusions by the majority are squarely in conflict with the relevant findings and decision of the Indian Claims Commission, with which I concur. In my opinion the grant of title in the 1865 Treaty to the Kiowa, Comanche and Apache Tribes meets the standards of recognized or reservation title, as the Commission determined in citing Miami Tribe of Oklahoma v. United States, 175 F.Supp. 926, 146 Ct.Cl. 421, 439 (1959) where this court summarized these standards as follows:

* * * ■* -* *

Where Congress has by treaty or statute conferred upon the Indians or acknowledged in the Indians the right to permanently occupy and use land, then the Indians have a right or title to that land which has been variously referred to in court decisions as “treaty title”, “reservation title”, “recognized title”, and “acknowledged title.” As noted by the Commission, there exists no one particular form for such Congressional recognition or acknowledgment of a tribe’s right to occupy permanently land and that right may be established in a variety of ways. Tee-Hit-Ton v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314; Hynes v. Grimes Packing Co., 337 U. S. 86, 69 S.Ct. 968, 93 L.Ed. 1231; Minnesota v. Hitchcock, 185 U.S. 373, 22 S.Ct. 650, 46 L.Ed. 954.

This court further, in Miami Tribe, held that the grant of the right to permanently occupy and use the land ceded by the Treaty until the Miami Tribe should be disposed to sell that land to the United States was “recognized title” and that whether it was held under recognized title or so-called Indian title or under fee simple title, the land should be valued the same way.

For the purpose of clarity, let us first consider what the United States actually granted the Tribes under the 1865 Treaty before we consider the effect of the Treaty alternative for a limitation of the actual grant by Presidential designation.

The majority finds that “the very language of the grant put the grantees on specific notice that the territorial extent of the grant was uncertain, and yet to be determined.” In my opinion, the language of the grant itself was certain and specifically described, by a careful metes and bounds description, a tract of over 39 million acres for an Indian reservation. In the language of the Treaty this tract was the “country embraced within said limits,” which the Indians agreed “to remove to and accept as their permanent home,” and which was “set apart for the absolute and undisturbed use and occupation of the tribes who are parties to this treaty.” Articles III, IV and V of the Treaty refer to this tract as the Indians’ “reservation.” Upon these solemn assurances by their Government in the Treaty, the Indians agree to “relinquish all claims or rights on and to any portion of the United States or territories, except such as is embraced within the limits aforesaid” including their claim of aboriginal title to over 60 million acres.

Let us now consider the effect of the clause following the territorial grant:

Article II. The United States hereby agree that the district of country embraced within the following limits, or such portion of the same as may hereafter from time to time be designated by the President of the United States for that purpose, viz: * * *.

(Emphasis supplied.)

The Indian Claims Commission interpreted that clause as an alternative, granting the President discretionary power to establish such a smaller reservation by Executive Order if at some indefinite future time the circumstances might, in his discretion, require such action.

I agree with this interpretation by the Commission. The use of the word “or” at the very beginning of the clause clearly means that it was an alternative to an otherwise unconditional territorial grant, an alternative which the President “may” exercise, in his discretion. The Commission has found that “[t]his was never done”, 26 Ind.Cl.Comm. at 112, and I agree.

The majority has attempted to distinguish the case of Klamath & Moadoc Tribes v. United States, 85 Ct.Cl. 451 (1937), aff'd, 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219 (1938), and has stated the facts therein, which need not be repeated except as noted herein. The majority states that in Klamath, “the Tribe had entered into a Treaty in 1864 which permitted them to occupy certain territory ‘until otherwise directed by the President * * *’ ”.

This Treaty did not merely permit the Klamath Tribe to occupy the territory.

Article I of the Klamath Treaty provided :

That the following described tract, within the country ceded by this treaty, shall, until otherwise directed by the President of the United States, be set apart as a residence for said Indians [and] held and regarded as an Indian reservation * * *. 85 Ct.Cl. at 454.

The present majority opinion states that “the real point about this Klamath case is that the limitation language there involved: ‘until otherwise directed by the President’ did not expressly relate to the territorial extent of the grant, as the corresponding language does here.” I cannot agree; all that I can conclude from reading the language of Article I of the Klamath Treaty as quoted is that the limitation did expressly and unmistakably relate to the territorial extent of the grant.

In the Klamath case, the United States contended that the Indian title to 87,000 acres included in the 1864 Treaty was not permanent or exclusive, but merely a right to occupy the lands, and subject to termination by certain articles of the Treaty of 1864. The court there said: “It is asserted that inasmuch as the treaty provisions set aside the delimited reservation to plaintiff Indians, they to occupy the same ‘until otherwise directed by the President of the United States’, the act of Congress taking the 87,000 acres was an exercise of this power. We cannot assent to the proposition. The President did not exercise any such power if he possessed it. On the contrary, Congress recognized the Indians’ right to the lands and sought to pay for them.” * * * 85 Ct.Cl. at 463, 464. (Emphasis added.)

The factual difference between the present case and the Klamath case is apparent, but in both cases the Treaty required delimitation of a reservation by the President. In effect, the Klamath case says that action by the Congress is not action by the President as required by the Treaty, and to this extent the case is in point here.

The majority opinion notes that the parties have conflicting views as to whether the 1867 Treaty constituted action by the Congress or by the President. However, the majority of the court concludes that: “Actually, we think this is irrelevant”, since no recognition of title to any specifically bounded tract occurred in 1865 and the first such was in 1867. I cannot agree.

The majority reasons that: “It is not suggested that the Kiowas were so ignorant they actually misunderstood what they were getting, or could have done so.” This majority conclusion would require us to believe that the Indians could have understood that the 1865 Treaty grant was a mere permissive use of their reservation until the President acted. They must have also understood that the grant in the 1865 Treaty of a “reservation” of 39 million acres “for their permanent home * * * set apart for the absolute and undisturbed use and occupation of the tribe” was an empty facade of meaningless words, with no substance behind it. I cannot agree that these illiterate “blanket” Indians could have understood this when they agreed to the 1865 Treaty. In my opinion, they understood these words as translated to them, to mean what they mean in plain and unmistakable English.

In my opinion, they had good reason to understand and believe that in 1865 they got recognized title to a 39 million-acre reservation, unless and until the President delimited its area. The majority points out that: “It is only the peculiar mystique of Indian law that allows a question here.” Actually it is not Indian law that allows a question here. It was the white man’s law for Indians, which by 1946 had become so unjust and inequitable to the Indians as to require the creation of the Indian Claims Commission. This Commission was given power to determine whether Indian treaties were to be revised on several grounds, including mutual or unilateral mistake, unconscionable consideration, violation of fair and honorable dealings, etc.

Acting under this authority, the Commission has made its decision in favor of the Kiowa, Comanche and Apache Tribes. We are now to reverse this decision basically and in essence because of what the majority thinks the Indians understood or could have understood what they were getting in the 1865 Treaty. There is no peculiar mystique of Indian law that allows a question here, nothing esoteric or mystical about what Indian tribes must understand that they are getting in a treaty with the United States. The Supreme Court of the United States has spelled this out clearly in Peoria Tribe v. United States, 390 U.S. 468, 472, 88 S.Ct. 1137, 1139, 20 L.Ed.2d 39 (1968). The Supreme Court, in reversing this court’s judgment stated:

As the dissenters in the Court of Claims rightly pointed out,

“Indian treaties ‘are not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers, but are to be construed in the sense in which naturally the Indians would understand them.’ United States v. Shoshone Tribe, 304 U.S. 111, 116, 58 S.Ct. 794, 82 L.Ed. 1213 (1938). ‘[T]hey are to be construed, so far as possible, in the sense in which the Indians understood them, and “in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.” Tulee v. Washington, 315 U.S. 681, 684-685, 62 S.Ct. 862, 86 L.Ed. 1115 * * *’ ” 369 F.2d at 1006-1007, 177 Ct.Cl. at 771.

Our court has recently ruled on an interpretation of Indian treaties: Hebah v. United States, 428 F.2d 1334, 1338, 192 Ct.Cl. 785, 791 (1970), “* * * Indian treaties should be read, where possible, generously in favor of the Indians. Peoria Tribe v. United States, 390 U.S. 468, 472-473, 88 S.Ct. 1137, 20 L.Ed.2d 39 (1968); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970)”; and Gila River Pima-Maricopa Indian Community v. United States, 467 F.2d 1351, 199 Ct.Cl. 586 (1972), “Indian agreements are to be read as the Indians understood and would naturally understand them.” The closest the majority has come to any recognition of these broad and generous principles of Indian treaty interpretation in favor of the Indians is that “the court is to interpret the Treaty in a manner not prejudicial to the Indians.”

It is in this .spirit of strict interpretation that the majority concludes that since no recognition of title to any specifically bounded tract occurred in 1865, and the first was in 1867, the contentions between the parties as to whether the 1867 Treaty constituted action by the Congress or by the President “is irrelevant,” (perhaps just as irrelevant as the majority apparently considered the language of the 1865 Treaty referring to the “absolute and undisturbed use and occupation” of a “permanent home” for the appellees).

The majority quotes from Citizen Band of Potawatomie Indians v. United States, 391 F.2d 614, 179 Ct.Cl. 473 (1967), on another point but the quotation is also relevant here as to whether the President or the Congress must act.

A fair interpretation of the treaty is that the President would select the 144,000 acres in his capacity as “Great White Father” of the Indians as well as head of the United States government. A callous disregard of the interests of either would be an abuse of discretion. (Emphasis supplied.) 391 F.2d at 622, 179 Ct.Cl. at 488.

This relationship of the President as “The Great White Father” to his Indian children has been understood by them ever since their first meetings with officials of the United States, when Lewis and Clark summoned them in 1805 to tribal conferences along the expedition’s historic route of exploration to the Pacific Ocean. The Indians were told then, and have been told ever since that it is their Great White Father (the President) who will punish them if they are bad, and reward them if they are good. I know of no legal authority, and none has been cited by the majority for its unique proposition that it is irrelevant whether the 1867 Treaty constituted action by the President or by the Congress. In my opinion it is clear that the Indians did not understand this.

The Treaty of 1867 was accomplished by a bill (Act of July 20, 1867, 15 Stat. 17) to establish peace with a large number of Indian tribes, including the appel-lees, as directed by the Congress. No reference was made to the 1865 Treaty in the 1867 proceedings or in the Act. In dissenting from the majority decision of the Indian Claims Commission, Chairman Kuykendal has nevertheless made this point:

The two year period between the signing of the 1865 Treaty and the signing of the 1867 Treaty, although a brief period, is included within a longer period (the tenure of President Andrew Johnson) when the animosity of Congress toward the President was the greatest this country has ever experienced. As we have seen, during the last seven months of this period the President was bereft of power to enter independently into any treaties with Indian tribes or to incur any expense in negotiating a treaty. * * * 26 Ind.Cl.Comm. at 128.

Indeed, when the bill under which the 1867 Treaty was finally accomplished was under consideration by the Senate, it was only because two Senators called attention to the constitutional and legal powers of the President in making Indian treaties that he was even included in the Act as finally adopted (as Chairman Kuykendal points out in his review of its legislative history). In such an atmosphere of unparalleled hostility between the President and the Congress, I cannot agree that it was “irrelevant” as to which one acted under the Act of 1867. At least it was not irrelevant to the Indians, who had been unequivocally assured in the 1865 Treaty that the President would act, and it was upon this specific assurance that they ceded their claim of aboriginal title to 60 million acres of land. It seems late in the day now to tell them for the first time that this was a mere irrelevant consideration after reducing their claim of aboriginal title to 100 million acres to 39 million acres in 1865, and then in 1867 to three million acres.

Both the United States and the Commission dissent contended that the Treaty of 1867 was an “implementation” of the Treaty of 1865 and constituted action by the President in compliance with the 1865 Treaty in designating the reservation as Royce Area 510. The Commission, after a well-reasoned review of the record, concluded that the President never acted under the 1865 Treaty clause to designate a smaller reservation, and that the 1867 Treaty was not intended to constitute implementation of that clause. Since the majority opinion has in legal effect, disregarded this aspect of the case, because it is “irrelevant” whether the President or the Congress acted, no further discussion is now called for by me in regard to the effect of the 1867 Treaty, except to say that I agree with the above conclusion of the Indian Claims Commission on this point.

Finally, I accept the conclusion of the Indian Claims Commission that the Treaty of 1865 was “a treaty of recognition, the effect of which was to recognize the title of plaintiff tribes and other friendly tribes to Royce Areas 510 and 511.” Accordingly, I would affirm the grant of the motion of appellee Kiowa, Comanche and Apache Tribes of Indians for summary judgment, leaving the remaining issues for further determination, except the claim of intervenor, the Wichita Tribe and Affiliated Bands and Groups of Indians which I agree with the majority opinion, should be denied.

DAVIS and KUNZIG, JJ., join in the foregoing opinion concurring in part and dissenting in part.

      . Keservation for Indians who are parties hereto.

      . Boundaries. No whites, except, &e. to settle thereon, unless, &c.

      . Indians to remove thereto, and not leave, unless, &c.;

      . to refrain from depreciations ;

      . not to encamp within ten miles of, &c.

      . Claims to other lands relinquished.

      . Act of August 13, 1946 (60 Stat. 1049 et seq.)


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Lloyd K. JOHNSON and Marion Johnson v. The UNITED STATES.
    No. 439-69.
    United States Court of Claims.
    June 20, 1973.

      David P. Sullivan, Duluth, Minn., attorney of record, for plaintiffs. Robert W. Boyd, Duluth, Minn., of counsel.
    William M. Cohen, Washington, D. C., with whom was Asst. Atty. Gen., Wallace H. Johnson, for defendant. John J. Cain, Washington, D. C., of counsel.
    Before CO WEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KUN-ZIG and BENNETT, Judges.
   OPINION

PER CURIAM:

This case comes before the court on defendant’s motion, filed May 8, 1973, in accordance with Rule 141(b), requesting that the court adopt the recommended decision filed March 13, 1973, by Trial Commissioner Franklin M. Stone pursuant to Rule 134(h) as the basis for its judgment in this case. Upon consideration thereof, and without oral argument, since the court agrees with the decision, as hereinafter set forth, it hereby grants defendant’s motion of May 8, 1973, and affirms and adopts the decision as the basis for its judgment in this case. Therefore, plaintiffs are not entitled to recover and their petition is dismissed.

OPINION OF COMMISSIONER

STONE, Commissioner:

Plaintiffs, who are husband and wife, brought this action pursuant to the Fifth Amendment and the Tucker Act, 28 U.S. C. §§ 1346(a)(2) and 1491, seeking just compensation in the amount of $175,000 for the alleged “taking” by defendant of their asserted right of access to a certain tract of land owned by them situated in Cook County, Minnesota. In the interest of brevity, this land (which is more particularly described in finding 3(a), infra) hereinafter will be identified and referred to simply as “Lot 5.”

The east and north boundary lines of Lot 5 abut the Pigeon River, which is the meandering International Boundary Line between the United States and Canada in this area; and the portions of said Lot of primary concern are in the immediate vicinity of the Pigeon River International Border Crossing between these two countries. Lot 5 is bisected by Minnesota State Highway No. 61, also designated and known as U.S. Highway No. 61 (hereinafter referred to as “U.S. 61”), which is constructed on a highway right-of-way easement held by the State of Minnesota (State), that extends through and across said Lot from the south in a northeasterly direction.

The alleged taking commenced in June 1966 when defendant, as a part of new United States Customs Inspection Facilities constructed, operated and maintained by the Government, installed chain link fences within the State’s right-of-way, which extend from the United States’ side of the bridge at the above-mentioned border crossing along both sides of said U.S. 61 to terminal points located some distance short of the west boundary line of Lot 5.

Although plaintiffs’ petition alleges a taking of only Lot 5, it is essential to a clear understanding of the discussion that follows to know and keep in mind the fact that plaintiffs own another tract of land (more particularly described in finding 3(c), infra), hereinafter identified and referred to in short form as Lot 2, which is located contiguous to the west boundary line of Lot 5; and that the State’s aforementioned highway right-of-way and U.S. 61 built thereon also extend clear across Lot 2. It will be apparent from the foregoing that portions of Lots 2 and 5 are located on both the north and south sides of U. S. 61 and front on the right-of-way.

Plaintiffs contend that the alleged taking by defendant of their asserted right of access to Lot 5 substantially impairs the commercial development, and reduces the value, of not only said Lot and Lot 2 but also a total all together of approximately 12,000 acres of land owned by them situated in the United States and Canada in various areas within a 15-mile radius of the Pigeon River International Border Crossing. Of this total acreage, plaintiffs assert that approximately 1,200 to as much as 1,500 acres thereof are directly involved. However, the testimony and documentary evidence in the record considered as a whole indicate that in addition to Lots 2 and 5, the other lands owned by plaintiffs, which they seriously feel are affected to a substantial degree, include a tract of land identified as Lot 4, which lies south of, and is contiguous to, Lot 5; Lot 3 which lies in a northwesterly direction from, and is contiguous to, Lot 2; and an unspecified number of acres of other lands located north of Lots 2 and 3 in the vicinity of the Pigeon River.

In my opinion, there has been no compensable taking of any of plaintiffs’ land or private property rights by defendant and they are not entitled to recover.

Plaintiffs admittedly made arrangements for the purchase of Lots 2, 3, and 5 sometime in 1938 but did not obtain delivery of the deeds thereto until May 1942. At that time there were no roads through or to the lands now in controversy, and the nearest road was “old U. S. 61” which crossed the Pigeon River into Canada at a point approximately 7 miles upstream from the present location of the new U.S. 61. Since 1934, however, the Commissioner of the Minnesota State Highway Department and authorized State officials had proposed that the then existing U.S. 61 should be rerouted as now located. The highway relocation proposal was the subject of considerable controversy engendered by conservation groups, and studies in regard to the project were made by various representatives of the United States Government and the State of Minnesota, over an extended period of time before it was officially approved and authorized. As a result, it was not possible for contracts for construction of the new highway to be let and the roadwork started until 1958. Prior to that time, the State had acquired a necessary highway right-of-way easement from plaintiffs by condemnation.

During 1958 an official of the General Services Administration (GSA) contacted plaintiff Lloyd Johnson to negotiate for the purchase of portions of plaintiffs’ lands, including shoreline land areas within Lot 5 and other sites therein, for use in connection with the planned new Customs Inspection Facilities and the construction of several houses to be occupied by Government employees assigned to duty at said facilities. Mr. Johnson indicated his lack of interest in any such sales of plaintiffs’ lands in stating that he intended to hold for commercial development, the property desired by the United States Government. However, at the same time Mr. Johnson offered to give the Government access and other rights to the frontage of Lot 5 located on both sides of U.S. 61 within the first 300 feet closest to the Pigeon River, i. e., the east border of said property, provided the Government agreed that proposed new U.S. Customs Facilities would be built within this 300 feet. This offer was not accepted by the Government, and all other negotiations for portions of plaintiffs’ property were dropped.

In April 1959 the State of Minnesota filed a petition in the State District Court initiating a condemnation action against plaintiffs to obtain title in fee simple absolute and certain additional rights of access to other portions of the State’s aforementioned right-of-way land involved herein, owned in fee simple by plaintiffs, for trunk highway purposes. In October 1960 the State dismissed and discontinued these condemnation proceedings for reasons not disclosed in the record, with the result that there was no taking of any of plaintiffs’ remaining property rights by the State in said action.

Construction of new U.S: 61 was finally completed in November 1968 and it was opened to the general public at that time. In the meantime, a temporary Customs and Immigration station was set up on a site located off on one side of this highway at a point approximately one-half mile from the new border bridge crossing over the Pigeon River, for use until a permanent facility could be established.

In March 1965 the United States commenced condemnation proceedings for three small parcels of land lying entirely within the bounds of the State of Minnesota’s highway right-of-way easement, for use in connection with the establishment of permanent Customs Inspection and Immigration Facilities. Plaintiff Lloyd Johnson filed an answer in said proceedings alleging, inter alia, that the plans for construction of the facilities also involved denial of his right of access, and praying that the United States be required to include in said proceedings the condemnation of such additional property rights which the Government allegedly contemplated taking. Johnson’s claim was dismissed as being prematurely raised in the opinion of the court in the case of Certain Lands in óbunty of Cook, State of Minnesota, supra. , Thus, neither the State’s dismissed 1959 condemnation action nor the United States’ 1965 condemnation action determined the extent of plaintiffs’ right of access to U.S. 61 or their right to compensation, if any, for the alleged taking of said rights. The three small parcels of land were duly condemned by the United States, these being the only portions of land involved herein in which the United States holds title.

The United States, acting through the GSA, applied to and received from the State of Minnesota, a permit dated June 10, 1966, approved and issued by the State’s Commissioner, Department of Highways, to construct, operate, and maintain United States Customs Inspection Facilities on the State’s right-of-way near the Pigeon River Border Crossing. Included in this permit, inter alia, was the right to place and maintain fences and related facilities within the State’s right-of-way on both sides of U.S. 61, as appurtenances to said customs facilities. Incident to the construction of said facilities in accordance with State approved plans and specifications, as changed in some instances at the direction of the State, chain link fences were duly installed by defendant along and entirely within the authorized areas of the State’s right-of-way on both sides of the highway where the facilities are presently located. These fences extend from the United States’ side of the aforementioned border crossing bridge in a westerly direction, a distance of 1,133 feet on the north side of the highway and 1,108 feet on the south side thereof.

As best it can be determined from an incomplete and unsatisfactory record with respect to the distances of certain boundary lines of the lots and portions thereof involved herein, as well as between particular points within these areas of land, the fence on the north side of the highway terminates at a point a short distance west of the main customs inspection station buildings and parking area approximately 175 feet east of the nearest point in the west boundary line of Lot 5; and the fence on the south side of the highway terminates at a point just west of said station approximately 275 feet east of the nearest point in the west boundary line of Lot 5.

It is important to note that the State’s right-of-way encompasses all of the land in Lot 5 situated on both sides of U.S. 61 within the first 300 feet closest to the border crossing bridge (said land is actually a narrow peninsula shaped in the likeness of an arrowhead with the bridge extending east from the easternmost point of the land). Therefore, in light of the aforestated lengths of the fences, it is apparent that they border on only roughly 800 feet of the some 2,000 feet of the portions of Lots 2 and 5, which front on the north and south sides of the highway. Thus, in excess of approximately 1,200 feet of the parts of said lots divided by the highway and fronting on each side thereof are unobstructed by defendant’s fences.

The State of Minnesota Highway Department is initially responsible for designating and granting of access to adjoining land owners along trunk highways such as U.S. 61. Under the terms of the aforementioned permit, the United States has neither the right nor the authority to provide any gates, driveways, or other entrances in the fences for ingress and egress to and from the area encompassed by said fences, without first obtaining permission from the State of Minnesota Highway Department. Plaintiffs, whose property was still undeveloped woodland at the time of the trial, have never applied to said Department or the United States for access between U.S. 61 and their property, either at any point where the fences are located or beyond the ends of the fences. Notwithstanding this fact, in building the highway, which starts out from the border crossing bridge as an undivided double lane road but becomes divided in the immediate vicinity of the customs checkpoint station so that road lanes pass on the north and south sides thereof, the State provided stub-end entrances into plaintiffs’ property, as well as a turnaround through the median strip between the north and south lanes of the highway. These approaches are located at points in Lot 2 a distance of approximately 1,530 feet west of the bridge or roughly some 400 feet from the west terminal points of the fences. There is nothing in the record to suggest that the State would not provide or permit the construction of additional approaches at points closer to said terminal points if plaintiffs requested that the State take or approve such action.

Mr. Leo H. Tscheda, a District Right-of-Way Engineer of the Minnesota State Highway Department, presented credible and unrebutted testimony on behalf of defendant to the effect that the State has an established policy of not permitting access to a State highway at a point within 800 to 900 feet from a bridge under normal circumstances, but the distance may be shorter or greater depending on the facts of the particular situation. This witness further stated that the aforementioned State permit issued to defendant allowed it to construct the approximately 1,100 foot fences, despite the fact they would deny a greater amount of access than the normal standard of 800 to 900 feet, because of the necessity of restricting and forcing persons entering the United States from Canada to pass through the Customs Inspection station.

Plaintiff Lloyd Johnson testified that plaintiffs long have planned to develop their property adjacent to U.S. 61 with commercial, tourist-oriented facilities. He stated that plaintiffs “would expect to have” a motel, restaurant, gas service station, and related facilities located in an area on the south side of the highway at the east end of that part of Lot 5 which fronts on the Pigeon River; that a tavern, ice cream stand, Indian Village-Museum, gift and other type shops, parking areas for trailers and campers, excursion boats, and other miscellaneous facilities are to be located within the portions of Lots 2 and 5 lying on the north side of the highway; and that consideration had been given to providing other tourist attractions and facilities at various locations in areas which include historical sites and scenic views, particularly in the vicinity of the Pigeon River and certain falls situated within or in close proximity to the lands owned by plaintiffs. According to Mr. Johnson, such facilities would put plaintiffs’ property to its “highest and best use” as they would attract passing tourist traffic.

Although the fences constructed by defendant obstruct only about 40 percent of the potential access to the divided portions of Lots 2 and 5, which front on the north and south sides of U.S. 61, plaintiffs contend that to attain the maximum tourist and other business potential of the planned development complex, it is essential that there be unlimited access through which the so-called “impulse stopper” traveler, i.e., one who will make an “impulse stop” after he first sees the development, can enter plaintiffs’ property from the highway. Plaintiffs further contend that the most important areas of access for attracting the “impulse stopper” are those portions of Lot 5 which are closest to the border crossing bridge, because these are the areas in which the motorist traveling on the highway can most fully view and appreciate the scenic topographical features of the site area, i.e., the river and its frontage. With respect to this contention, it is important to mention that Mr. Johnson testified that a person traveling east on the highway would not be able to see said site area until he reached a point east of the main customs inspection station building, which is located a distance of approximately 800 feet west of the bridge.

Plaintiffs’ asserted loss of the impulse stopper business theory is not substantiated or corroborated by any other oral testimony or documentary evidence. Nonetheless, plaintiffs assert that because of the purported loss of the prospective “impulse stopper,” the consequences is a substantial diminution of the highest and best use of their property. As a result, they contend that the physical obstruction of a portion of their potential access constitutes a taking of private property by defendant for public purposes, for which they are entitled to just compensation in accordance with the Fifth Amendment to the Constitution.

Defendant, in addition to denying that there has been a compensable taking, asserts that even if there was a taking, the United States is not liable because it acted only as a permittee of the State of Minnesota. Since the question of whether the United States or the State of Minnesota is liable for the taking becomes relevant only if there has in fact been a “taking,” consideration of the permittee issue will be deferred and it shall be assumed, arguendo, that the actions found herein are the direct responsibility of defendant.

That a portion of plaintiffs’ access is physically obstructed by defendant’s fences is not denied. However, in Finks v. United States, 395 F.2d 999, 1004, 184 Ct.Cl. 480, 489, cert. denied, 393 U.S. 960, 89 S.Ct. 398, 21 L.Ed.2d 374 (1968), this court noted that

* * * not every deprivation of use, possession, or control is a “taking”. It is the character and extent of an invasion of property rights which are determinative. [Cites omitted.] It is equally clear that not all takings of property are compensable.

In Franco-Italian Packing Co. v. United States, 128 F.Supp. 408, 413-414,130 Ct. Cl. 736, 745-746 (1955), this court commented on noncompensable “takings” as follows:

* * * [E]xercise of * * * [United States’] regulatory and police powers, * * * [does] not fall within the fifth amendment limitation, although taking of private property often resulted. [Cites omitted.] The distinction between an exercise of the eminent domain power that is compensable under the fifth amendment and an exercise of the police power is that in a compensable exercise of the eminent domain power, a property interest is taken from the owner and applied to the public use because the use of such property is beneficial to the public * * * [whereas] in the exercise of the police power, the owner’s property interest is restricted or infringed upon because his continued use of the property is or would otherwise be injurious to the public welfare. * * [Emphasis added.]

In applying the foregoing principles to the facts of the instant case, it is apparent that defendant has a genuine, valid interest in controlling and regulating the flow of traffic that enters and leaves the United States. That the .fences are a necessary and justifiable part of this regulation cannot be seriously denied. The possibility of persons —particularly upon entrance — circumventing the inspection facility, if access roads were permitted between the bridge and said facility, suggests possibilities of abuse too obvious to bear further comment.

Defendant has only imposed those 'restrictions on potential access which are necessary and reasonable under the circumstances. Plaintiffs’ contention that the fences are longer than necessary is unsupported by the evidence. The fact that defendant’s older Customs Inspection and Immigration facilities and fences provided there were closer to the border than the facilities involved herein is not persuasive. The demands of increased traffic and the need for greater efficiency makes it readily apparent that the length of the fences involved herein is not unreasonable or unduly oppressive in view of the intended purpose therefor. Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S. Ct. 987, 8 L.Ed.2d 130 (1962); Lawton v. Steele, 152 U.S. 133, 14 S.Ct. 499, 38 L.Ed. 385 (1894).

Here, the plaintiffs’ potential access has not been “taken” and applied to the public use, but rather is “restricted” or infringed upon because their use of that access would be injurious to the public welfare. Thus, we are confronted with an exercise of the police power, and not an uncompensated exercise of eminent domain.

Notwithstanding the necessity of restrictions promulgated pursuant to the exercise of the police power, it was recognized in United States v. Central Eureka Mining Co., 357 U.S. 155, 168, 78 S.Ct. 1097, 1104, 2 L.Ed.2d 1228 (1958) that:

* * * action in the form of regulation can so diminish the value of property as to constitute a taking. [Cites omitted.] However, the mere fact that the regulation deprives the property owner of the most profitable use of his property is not necessarily enough to establish the owner’s right to compensation. [Emphasis added.]

The general test of whether a restriction is so excessive as to result in a substantial diminution of property value must be applied in conjunction with those cases which have specifically dealt with the right of access. Specifically, it must be determined whether the plaintiffs in fact had a “right of access” in the obstructed area, which could be the subject of a taking, i.e., excessive regulation.

Although the issue of what constitutes a “taking” is a “Federal question” which is governed entirely by Federal law, the meaning of “property,” as used in the Fifth Amendment, will normally obtain its content by reference to State law. United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). Consequently, in considering whether plaintiffs’ potential access amounted to a compensable property right, the subsequent analysis will refer to Minnesota State law as well as Federal authorities.

Plaintiffs contend that the “right of access” has been recognized throughout the United States as a property right which cannot be taken or materially interfered with without just compensation. Creasey v. Stevens, 160 F.Supp. 404 (W.D.Pa.1958), rev’d on other grounds, sub nom. Martin v. Creasey, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959); Hendrickson v. State, 267 Minn. 436, 127 N.W.2d 165 (1964). On the other hand, defendant contends that the property owner is not entitled to more than one outlet from his property and cannot complain if he is not given the shortest way out. United States v. Alderson, 53 F.Supp. 528 (S.D.W.Va. 1944); State of Washington v. United States, 214 F.2d 33 (9th Cir.), cert. denied, 348 U.S. 862, 75 S.Ct. 86, 99 L.Ed. 679 (1954); Winn v. United States, 272 F.2d 282 (9th Cir. 1959); and Ralph v. Hazen, 68 App.D.C. 55, 93 F.2d 68 (1937).

While seemingly the foregoing dicta represent somewhat conflicting positions, a study of the case law reveals to the contrary that the statements are readily reconcilable. An abutting landowner on a public highway has a special right of easement in the public road for access purposes, but the owner is not entitled to access to his land at any and all points in the boundary between it and the highway. United States v. Certain Land in the City of Newark, 314 F. Supp. 836 (D.N.J. 1970), aff’d 439 F.2d 670 (3d Cir. 1971). That is, the abutter’s easement entitles him to some means of access from the adjoining highway, “but such owner cannot insist on the right of ingress and egress at any place he sees fit as he holds his right subject to the superior right of the state [to impose reasonable regulations and restrictions].” King v. Stark County, 66 N.D. 467, 266 N.W. 654 (1936), cited with approval by the Minnesota Supreme Court in Petition of Burnquist, 220 Minn. 48, 19 N.W.2d 394 (1945). Accordingly, in instances where an abutting landowner is totally deprived of his access to an existing road, i.e., a “way of necessity,” the courts have generally found a compensable taking. See, e.g., Creasey v. Stevens, supra; Bickel v. Indiana Toll Road Comm., 145 F.Supp. 257 (N.D.Ind.1956); and Bydlon v. United States, 175 F.Supp. 891, 146 Ct.Cl. 764 (1959). Since plaintiffs have not been totally deprived of access to their property, it is clear that they do not come within the purview of these cases.

In those situations where, as here, reasonable regulations and restrictions have been imposed upon the abutting owners, which obstruct portions of their access yet do not totally deprive such owners of access, the question becomes one of whether there remains a reasonably convenient and suitable alternative means of access under all of the existing facts and circumstances. Certain Land in the City of Newark, 439 F.2d 670 (3d Cir. 1971), aff’g 314 F.Supp. 836, supra; Hendrickson v. State, supra. Therefore, the “right of access” is not an unlimited right to access at any and all points in the boundary between an abutter’s land and the highway, but instead is a right to a reasonably convenient and suitable means of access.

One of the crucial factors to be considered in determining the reasonableness of the access is whether the partial deprivation has resulted in a substantial diminution of value of the property, which, as noted previously, is also a determinative of whether a regulation is so excessive as to constitute a “taking.” Thus, if it is determined that plaintiffs’ land has not suffered a substantial diminution in value and plaintiffs, as a result, enjoy reasonably convenient and suitable access, then it must be concluded that (1) they did not have a “property right” in that which has been denied, and (2) there could not have been a “taking” since (a) plaintiffs have not been denied anything to which they were entitled, and (b) the regulation has not been proven to be excessive.

Plaintiffs rely heavily on Hendrick-son, supra, in which a landowner had a motel on an existing highway which was subsequently converted to a limited access highway. Although a service road was provided that furnished the motel circuitous access in lieu of the direct access which he had previously enjoyed, the court noted:

* * * The accessibility to the property from the highway and its proximity to the city of Rochester attracted the patronage of the traveling public and gave the property a special status which may entitle the owners to damages notwithstanding the circuitous access afforded by a service road. * * * [Emphasis added.] [127 N.W.2d at 171.]

Plaintiffs contend that their property also has a special status which is impaired by the deprivation of complete access. However, in my view, Hendrick-son is readily distinguishable and, if anything, supportive of a contra conclusion. Plaintiffs in the present case, unlike the motel owner in Hendrickson, did not previously enjoy “accessibility to the property” or the “patronage of the traveling public,” which might create a “special status.” To the contrary, it has been shown that prior to the completion of the present route of U. S. 61, plaintiffs’ property was totally inaccessible; and it may be reasonably assumed that the same was of considerably lower commercial value than it now holds. Nor do the plaintiffs at bar have any type of commercial venture, which has enjoyed the “patronage of the traveling public.” As the court in Hendrick-son also stated, “a property owner has no vested interest in the continued flow of the main stream of through traffic, and the state.may divert it to a new location without being liable for consequential economic losses which owners abutting on the old highway sustain.” 127 N.W.2d at 170. It seems clear that if property owners with established businesses cannot recover for consequential losses resulting from diversion of traffic, except for unique situations as that presented in Hendrickson, plaintiffs herein are no more entitled to such damages when they have not even as yet put their property to commercial use.

While plaintiffs have referred to cases in which property owners lost all or a portion of their previous access to an existing highway, the situation presented in the instant ease is found to be more analogous to those cases in which a new limited access highway or expressway has been constructed through property where no previous road existed, and the abutting property owners are denied access pursuant to the state’s regulatory, police power. Such cases have concluded that damages may not be awarded to landowners even where this may constitute a lack of consequential benefit. See State Highway Dept. v. Ford, 112 Ga. App. 270, 144 S.E.2d 924 (1965) and cases cited therein. Although cases such as Ford are concerned in part with the validity of state statutes pertaining to limited access highways, the underlying principle is the same regardless, i.e., the landowner cannot complain of a taking of that which he never had and the Sovereign refuses to give because the general public interest is best served by such denial.

The situation herein is analogous to the new limited access highway cases in that it was apparent to all involved here that the rerouting of U.S. 61 would require new United States Customs Inspection facilities at the present Pigeon River Border Crossing bridge upon completion of said highway. That is, plaintiffs had no reason to expect that they would ever have entrance to their property in this area after the proposed new facility was provided. The fact that Mr. Johnson foresaw the probability of not having such access is evidenced, as previously mentioned, by his admitted attempt in 1958 to persuade the GSA authorities to place the facility within the first 300 feet closest to the Pigeon River Bridge, with the understanding that buildings would not be located further west of this point. Even though plaintiffs undoubtedly recognized that they would not have access in this area, they now present this court with a speculative scheme as to what the enhanced value of the property would be if not for the presence of the necessary United States’ facilities and its requisite, appurtenant fences. In effect, plaintiffs are willing to accept the appreciation in property value which the addition of this road brought, but are unwilling to accept the necessary limitations which are inherent in its existence. Under these facts, plaintiffs’ contention that they have suffered a substantial diminution in value of their property cannot be sustained for, as noted by the Supreme Court in United States v. Sponenbarger, 308 U.S. 256, 266-267, 60 S. Ct. 225, 229, 84 L.Ed. 230 (1939):

* * * if governmental activities inflict slight damage upon land in one respect and actually confer great benefits when measured in the whole, to compensate the landowner further would be to grant him a special bounty. * * *

The circumstances show sufficient nexus between the addition of U.S. 61 and the erection of defendant’s fences, such that plaintiffs cannot base a taking claim on the theory that they may garner the benefits conferred by the former without deduction for whatever detriment that may arise out of the presence of the latter. John B. Hardwicke Co. v. United States, 467 F.2d 488, 199 Ct.Cl. 388 (1972). The rule that the Sovereign must pay only for what it takes, not for the opportunities which the owner may lose, is applicable here. United States ex rel. Tenn. Valley Auth. v. Powelson, 319 U.S. 266, 283, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943); A. G. Davis Ice Co. v. United States, 362 F.2d 934 (1st Cir. 1966).

Under all of the facts and circumstances in this case, it is concluded that plaintiffs’ property has not sustained a substantial diminution in value and that they have reasonably convenient and suitable access, even in the light of the property’s highest and best use. Thus, it must be concluded as a matter of law that defendant is not liable for a com-pensable taking within the meaning of the Fifth Amendment. In view of the aforestated conclusion, it is unnecessary to consider whether the defendant acted solely as a permittee of the State of Minnesota.

CONCLUSION OF LAW

Upon the findings of fact and the foregoing opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover, and the petition is dismissed.

       Whereas the court adopts the Commissioner’s separate findings of fact, which are set forth in his report filed March 13, 1973, they are not printed herein since such facts as are necessary to the decision are contained in his opinion.

      . The trial of this case was limited to the issues of law and fact relating to the right of plaintiffs to recover, with the determination of the amount of recovery, if any, reserved for further proceedings; however, limited testimony concerning the highest and best use of the land involved herein and the reasonableness and suitability of plaintiffs’ access between said land and an adjoining U.S. highway, was received in evidence because such testimony was relevant to the questions of whether or not the alleged taking of plaintiffs’ property caused a substantial diminution of the value thereof and the reasons therefor, which were matters of proof inextricably related to plaintiffs’ theory of recovery and the liability issue raised for decision. Defendant introduced no evidence with respect to the issue of damages, taking the position that the introduction of evidence relative to said issue was premature and should be deferred pending the court’s resolution of the liability issue. (See finding 2 and n. 1, infra.)

      . Lots 3 and 4 are more particularly described in findings 4 and 5, respectively, infra. Lots 2, 3, and 5 are located and depicted as shown in solid green color on Plfs’ Ex. 2. Lot 4, which consists of 40 acres, is shown in light green colored hatch marks on said Exhibit. The record does not clearly disclose the number of acres of land included in Lots 2, 3, or 5; but the evidence does show that Lots 2, 4, and 5 comprise a total of approximately 120 aeres; and it would appear that none of the numbered lots mentioned above contain in excess of approximately 40 acres, or a total of 160 acres. Reference to Plfs’ Exhibits 2, 3, and 4 will be helpful in visualizing and orienting the locations of the several lots and land areas mentioned herein.

      . While plaintiffs technically retain a fee simple interest in the land, subject to the State’s highway easement, it was concluded by the United States District Court for the District of Minnesota, in United States v. Certain Lands in County of Cook, State of Minnesota, 248 F.Supp. 681 (D.Minn.1965), a case involving portions of this right-of-way, that plaintiffs’ remaining interest was substantially equivalent to a possibility of reverter and that they were entitled to only nominal damages for its taking.

      . This permit (Def’s Ex. 1 — see finding 15(a), infra) specifically superseded and voided all similar permits previously issued to defendant, specifically and especially a permit dated June 30, 1965.

      . It-is important to recall Mr. Tseheda’s unrebutted testimony, supra, that the policy of the Minnesota State Highway Department is always to deny access within the first 800 to 900 feet of a bridge, and even a longer distance where special circumstances merit such action.

      . See also United States v. Pewee Coal Co., 341 U.S. 114, 71 S.Ct. 670, 95 L.Ed. 809 (1951); Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922).

      . In this connection, see n. 5, supra.


author: BALDWIN, Judge.

text:
    Edwin H. FLYNN, Appellant, v. Stephen EARDLEY et al., Appellees.
    Patent Appeal No. 8865.
    United States Court' of Customs and Patent Appeals.-
    June 28, 1973.
    Rehearing Denied Aug. 16, 1973.
    Herman I. Hersh, Chicago, 111., John T. Reynolds, Indianapolis, Ind., and James H. Littlepage, Washington, D. C., attorneys of record, for appellant.
    Fred T. Williams, John J. Cavanaugh, Chicago, 111., J. William Pike, Washington, D. C., and Francis D. Thomas, Jr., Arlington, Va., attorneys of record, for appellees.
    Before MARKEY, Chief Judge, RICH, BALDWIN, and LANE, Judges, and WATSON, Judge, United States Customs Court, sitting by designation.
   BALDWIN, Judge.

This appeal is from the decision of the Board of Patent Interferences awarding priority in Interference No. 96,095, to appellees Eardley et al. (Eard-ley).

Appellant is involved on the basis of his application Serial No. 398,028, filed September 21, 1964, which was a continuation-in-part of Serial No. 220,855 (’855) filed August 31, 1962, which in turn was a continuation-in-part of Serial No. 115,612, filed June 8, 1961. Appellant copied the claims corresponding to the count from appellees’ U. S. Patent No. 3,280,118, issued October 18, 1966, on an application Serial No. 408,757, filed November 4, 1964. Appellees have been awarded priority under 35 U.S.C. § 119 based on the filing date of British application Serial No. 43,441, filed November 4, 1963, and that award is not contested by appellant.

The counts are directed to the strong acid salts of cephaloridine. Count 1 reads as follows:

Appellant’s application ’855 matured into U. S. Patent No. 3,218,318, which is the same Flynn patent treated in the case of In re Arkley, 455 F.2d 586, 59 CCPA 804 (1972). In that case, the issue before us was whether the disclosure in the Flynn patent was sufficient to anticipate a claim to the compound cephal-oridine. In the present case, the issue is whether cephaloridine was described in application ’855 within the meaning of 35 U.S.C. § 112. If it was, then appellant can prevail on the basis of that application’s filing date, for there is no question that the disclosure sufficiently describes the strong acid salts if cephal-oridine per se is sufficiently described.

The disclosure of the Flynn patent is analyzed in depth in the opinions in the Arkley case. We see no need to repeat that analysis here. The only pertinent difference in disclosure between application ’855 and the Flynn patent is that the application additionally contained original claim 3, which was directed to a “cephalosporin compound of the class consisting of the heterocyclic-substituted acyl derivatives of the nuclei of the ceph-alosporin Ca compounds.” Original claim 4 was directed to the corresponding class of cephalosporin Cc compounds and original claim 5 was directed to the corresponding class of desacetylceph-alosporin compounds.

The board found no clear support for the compound cephaloridine in the disclosure of the Flynn patent. During the course of its opinion it discussed essentially the same portions of that disclosure which were discussed in the opinions in Arkley.

Opinion

The board found, and we fully agree, that those skilled in the art could easily have made the claimed compounds, should they have desired to do so, from the ’855 disclosure. Nor does there appear to be any question that the skilled in the art would have known how to use the claimed compounds in light of that disclosure. Thus the question before us is purely whether the claimed compound is described in the ’855 application, as required by the first paragraph of section 112.

We agree with appellant that it is not essential to name the claimed compounds, and further that preference for the specific- claimed compounds is not necessarily a requirement. However, the description requirement is not satisfied unless the specification contains adequate direction which reasonably leads the skilled in the art to the compounds which it is later desired to claim, and that is what is missing here. Of course a discussion of preferences for various aspects of the invention may be one way in which to supply such direction. Appellant points out the various parts of the disclosure which' would tend to head one in the general direction of the claimed compounds, which are adequately discussed in the Arkley opinions. We note that not only are there a large number of choices of substituents presented to the skilled in the art, thus making it more difficult to arrive at the claimed compounds, but also, there are other aspects of the disclosure which tend to counteract the suggestions argued by appellant. For example, while there is a qualified preference for compounds of the Ca type, the main thrust of the disclosure is that the improvement in properties over the known cephalosporin is due to appellant’s substitution at the 7 carbon of the nucleus. The effect of this is to minimize the role played by the substituent on the 3 carbon of the nucleus, which characterizes the Ca compounds. We additionally note that not a single Ca compound is described in a-working example or even specifically named anywhere in the disclosure.

We conclude that the ’855 specification does not “convey clearly to those skilled in the art, * * * in any way, the information that appellants invented * * * ” the claimed compounds. It therefore fails to describe the claimed invention in the manner required by the first paragraph of section 112. In re Ruschig, 379 F.2d 990, 996, 54 CCPA 1551, 1559 (1967).

Appellant raises another point, apparently dealing with the patentability of the counts to appellees. We agree with appellees that the point-was improperly raised for the first time before us and therefore decline to consider it further.

Finding the reasoning of the board to be sound, we affirm its decision.

Affirmed.

      . Before us, appellants occasionally erroneously refer to tlie principal opinion in Arkley as the “majority” opinion. There was no majority opinion in Arkley. There was only a decision by the majority that the board’s decision had to be reversed.


author: RICH, Judge. ALMOND, Senior Judge

text:
    Application of P. FERRERO and C. S. p. A.
    Patent Appeal No. 8963.
    United States Court of Customs and Patent Appeals.
    June 21, 1973.
    Rehearing Denied Aug. 16, 1973.

      Almond, Senior Judge, filed a dissenting opinion, and Baldwin and Lane, JJ., concurred in the result.
    G. Franklin Rothwell, Washington, D. C. (Sughrue, Rothwell, Mion, Zinn & Macpeak, Washington, D. C.), for appellant.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents. R. V. Lupo, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, and LANE, Judges, and ALMOND, Senior Judge.
   RICH, Judge.

This appeal is from the decision of the Trademark Trial and Appeal Board, abstracted at 168 USPQ 448 (1970), affirming the examiner’s refusal to allow appellant’s application serial No. 332,592, filed July 15, 1969, to register the word mark “TIC TAC” for “Candy,” because of likelihood of confusion with the prior registered word mark “TIC TAC TOE,” registration No. 809,357, issued May 31, 1966, for “ice cream and sherbet.” The application is based on an Italian registration. The statutory basis for the examiner’s refusal to register and the board’s affirmation was likelihood of confusion, mistake, or deception under section 2(d) of the Trademark Act of 1946 (15 U.S.C. § 1052(d)). We reverse.

Appellant contended below, and in essence here, that differences in sound, appearance, and meaning of the marks, combined with the differences in the goods to which the marks are applied, would preclude any likelihood of confusion, etc.

In affirming the rejection, the board said:

When the marks are compared, it is obvious that they are similar in sound and appearance since applicant’s mark comprises the first two thirds of the mark of the cited registration. In addition, both marks are completely arbitrary in nature as applied to the food products involved and, additionally, “TIC TAC” may well call to mind the well known game “tick tack toe”, of which the mark of the registration is the phonetic equivalent.

Upon review of the record, we are constrained to disagree with the board’s reasoning. It appears to have regarded only the marks, without their significance, and the broad goods descriptions, without the relation of the marks to the goods.

The real significance of Borden’s mark TIC TAC TOE appears from the specimens filed to obtain the registration. As is well known, the Tic Tac Toe game is played on 9 squares. Borden’s ice cream, presumed to be sold under the specimen label, has a particular relation to the meaning of the word mark, as may be observed- in the following illustration:

Not only are the letters of the mark arranged TIC TAC TOE fashion with vertical and horizontal lines between them as in the game but the product is so formed of different colors of ice cream as to produce checkerboard squares when sliced. The mark is thus tied to the product and in this sense the mark is far from “arbitrary,” as the board said it was. TIC TAC TOE is a trademark which also designates product type; it is not only an indication of origin. TIC TAC TOE ice cream is a particular kind of ice cream configuration and it seems most unlikely that the owner of that mark would apply it to other goods or that purchasers would expect the mark, or any variant thereof to be applied to different goods, such as candy.

Neither is appellant’s mark TIC TAC “completely arbitrary,” as the board said; it is a dictionary term meaning a repetitive sound as of ticking, tapping, or the like as well as a device used to produce such a sound, and that is the sound of appellant’s hard mint candies, which are about 10 x 15 mm. in size with rounded-ends, rattling in their plastic boxes.

We feel that the board has made too much of the indisputable fact that TIC TAC is two-thirds of TIC TAC TOE and that TIC TAC would “bring to mind” TIC TAC TOE. Neither fact determines the issue of likelihood of confusion. See our opinion in In re General Electric Co., 304 F.2d 688, 49 CCPA 1186 (1962) in which we held VULKENE registrable over VULCAN. The fact that one mark may bring another mark to mind does not in itself establish likelihood of confusion as to source. Compare Lever Brothers Co. v. Producers Chemical Service, 283 F.2d 879, 48 CCPA 744 (1960). The very fact of calling to mind may indicate that the mind is distinguishing, rather than being confused by, two marks. In Level Brothers we unanimously found SHUX registrable over LUX for like goods (off-the-shelf soap products) while fully conscious of the fact that purchasers seeing or hearing SHUX would almost certainly think of LUX— and at the same instant realize the distinction. Seeing a yellow traffic light immediately “calls to mind” the green that has gone and the red that is to come, or vice versa; that does not mean that confusion is being caused. As we are conditioned, it means exactly the opposite.

The different marks before us applied to the different goods here, notwithstanding the fact that such goods might both emanate from a single source, are not, in our judgment likely to cause confusion as to source, or to cause mistake, or to deceive.

The decision of the board is reversed.

Reversed.

BALDWIN and LANE, JJ., concur in result.

ALMOND, Senior Judge

(dissenting).

With all due respect, I cannot agree with the decision of the majority.

The opinion supporting that decision has stressed that in actual use the TIC TAC TOE trademark is applied to multi-flavored ice cream in which the different flavors are formed in blocks and packaged to create a pattern similar to that of a tick tack toe game. Presumably this ties the trademark so closely to the manner in which the ice cream is packaged that TIC TAC TOE ceases to be an arbitrary mark for the product.

I cannot agree with this approach. The question of likelihood of confusion must be considered in light of the registered mark and there is nothing in that registration which precludes the owner from using any packaging scheme it desires. Furthermore, I believe the majority engages in unwarranted speculation when it suggests that it is unlikely that the owner of TIC TAC TOE would apply its mark to other products. For all the record reveals, the mark might very well be used with other goods.

The majority has also placed too much emphasis on the relationship between appellant’s mark TIC TAC and the sound of the candy in the package. In the first place, I seriously doubt that the sound the candy makes is so well imitated by the mark that this association would be made by a purchaser. Secondly, there is nothing which would preclude appellant from packaging its candy in a manner which would not “rattle.”

From the standpoint of the market place and the class of purchasers, I find it difficult to draw a viable distinction between candy and ice cream. Both are confections which appeal to similar tastes and are offered and displayed by vendors with a common appeal to the purchasing public. In view of these similarities and the resemblance between TIC TAC and TIC TAC TOE, as pointed out by the board, it is my view that a likelihood of confusion as to source is a likely result if the marks are used concurrently. I would affirm the board’s decision.