states "nor shall grain crops be planted that will not be harvested when mature," a provision which would be meaningless if agricultural uses were prohibited outright.
The court, having determined that the United States made a mistake in the original Declaration of Taking, will allow the United States to amend the Declaration of Taking. Such an allowance is consistent with the Supreme Court's statement that the filing of a Declaration of Taking does not irrevocably vest title in the government, see Catlin v. United States, 324 U.S. 229, 240-41, 89 L. Ed. 911, 65 S. Ct. 631 (1945), and with the aforementioned cases which hold that the government should not be bound by mistakes in a Declaration of Taking. However, because the original restriction could have caused the value of the burdened land to be lower than the value of the same land if it had been burdened with the restriction now sought by the United States, the owners of the land may show at the trial on the issue of damages any harm caused by the more restrictive easement during its existence.
B) Clarification of the Concentration Restriction
In support of its assertion that this court should accept its version as to the meaning of the phrase "25 persons per acre," the United States cites a number of cases which indicate that in construing a Declaration of Taking, the intention of the United States, as author of the Declaration, should be gathered from the language of the entire Declaration and its surrounding circumstances. See United States v. Pinson, 331 F.2d 759, 760-61 (5th Cir. 1964); see also United States v. 21.54 Acres, More or Less, Situate in Marshall County, State of West Virginia, 491 F.2d 301 (4th Cir. 1973); Bumpus v. United States, 325 F.2d 264 (10th Cir. 1963). While the court does not disagree with the above proposition, such a rule of construction is inapplicable to the instant matter where the phrase in the Declaration is not ambiguous. A plain reading from the plain words of the phrase "the PREMISES shall not be used for facilities or other activities that may result in a concentration of people in excess of twenty-five (25) persons per acre of land at any one time" compels the obvious conclusion that a violation of the restriction will occur if more than twenty-five persons are located on any one acre at any one time. The phrase does not mean because it does not say, as the United States suggests, that the total number of persons on the 71.25-acre parcel is restricted to an average density of 25 persons per acre. The request of the United States to have this court apply a meaning to words which is clearly contrary to the plain meaning of those words will be rejected.
An appropriate Order will be entered.
AND NOW, TO WIT, this 20th day of December, 1983, IT IS ORDERED that:
1. plaintiff, United States, be allowed to amend the Declaration of Taking by inserting the words "agricultural or" before the words "light industrial;" and
2. the "Statement of Clarification of Estate Taken" heretofore filed by the plaintiff is stricken.
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