Filed: Apr. 25, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1740 AGAPE MOTORCOACH RETREAT, LLC; STEPHEN J. GREGSON, Trustee; DEBRA E. GREGSON, Trustee, Plaintiffs - Appellants, v. GLENDA BRINTLE, Trustees of the Thomas Y. Brintle 2006 Revocable Trust; THOMAS ALLEN BRINTLE, Trustees of the Thomas Y. Brintle 2006 Revocable Trust; KAREN B. CARTER, Trustees of the Thomas Y. Brintle 2006 Revocable Trust; DAVID VELA, Regional Director for the National Park Service; UNITED STATES OF AMERIC
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1740 AGAPE MOTORCOACH RETREAT, LLC; STEPHEN J. GREGSON, Trustee; DEBRA E. GREGSON, Trustee, Plaintiffs - Appellants, v. GLENDA BRINTLE, Trustees of the Thomas Y. Brintle 2006 Revocable Trust; THOMAS ALLEN BRINTLE, Trustees of the Thomas Y. Brintle 2006 Revocable Trust; KAREN B. CARTER, Trustees of the Thomas Y. Brintle 2006 Revocable Trust; DAVID VELA, Regional Director for the National Park Service; UNITED STATES OF AMERICA..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1740
AGAPE MOTORCOACH RETREAT, LLC; STEPHEN J. GREGSON, Trustee;
DEBRA E. GREGSON, Trustee,
Plaintiffs - Appellants,
v.
GLENDA BRINTLE, Trustees of the Thomas Y. Brintle 2006
Revocable Trust; THOMAS ALLEN BRINTLE, Trustees of the
Thomas Y. Brintle 2006 Revocable Trust; KAREN B. CARTER,
Trustees of the Thomas Y. Brintle 2006 Revocable Trust;
DAVID VELA, Regional Director for the National Park Service;
UNITED STATES OF AMERICA; TIMOTHY BRITT BOLEN,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:10-cv-00369-JCT)
Argued: March 20, 2013 Decided: April 25, 2013
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Niemeyer and Judge Motz joined.
ARGUED: Wells Huntington Byrnes, Sr., CLEMENT & WHEATLEY,
Danville, Virginia, for Appellants. Thomas Linn Eckert, OFFICE
OF THE UNITED STATES ATTORNEY, Roanoke, Virginia; Alan Kent
Caudell, Galax, Virginia, for Appellees. ON BRIEF: Timothy J.
Heaphy, United States Attorney, Roanoke, Virginia, for Appellees
United States of America and David Vela.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the district court’s summary
judgment holding that the plaintiff, Agape Motorcoach Retreat,
LLC (Agape), does not have an easement across certain real
property owned by the defendants. In its complaint, Agape
argues primarily that it has an easement across property
acquired in 1938 by the Commonwealth of Virginia under its power
of eminent domain, which the Commonwealth conveyed to the United
States government for construction of the Blue Ridge Parkway.
Upon our review of Agape’s arguments, we conclude that the
district court did not err in awarding summary judgment in favor
of the defendants, because the Commonwealth acquired by
condemnation the entirety of the property at issue without
reservation of the alleged easement.
I.
A.
Agape owns a tract of about 20 acres (the Agape parcel) in
Carroll County, Virginia. On the eastern and southeastern
borders of the Agape parcel is a tract of land (the Brintle
parcel) owned by representatives of Thomas Y. Brintle’s estate
(collectively, Brintle). 1 Joining the southern boundary of the
1
The Brintle defendants include Glenda R. Brintle, Thomas
(Continued)
3
Agape parcel is a tract of land (the Bolen parcel) owned by
Timothy Britt Bolen (Bolen). On the southern and southeastern
borders of the Brintle parcel and the Bolen parcel lies the Blue
Ridge Parkway (the Parkway) 2 and adjacent land owned by the
federal government. Persons seeking direct access between the
Agape parcel and the Parkway must cross land owned by either
Bolen or Brintle, in addition to land owned by the federal
government.
The Agape parcel, the Bolen parcel, the Brintle parcel, and
the land at issue owned by the federal government, were
originally part of a larger tract of land owned by Marcus and
Myrtle Bolen (the Bolens). 3 In October 1937, the State Highway
Commissioner of Virginia (the Highway Commissioner) notified the
Bolens that the Commonwealth sought to acquire two parcels of
their property, totaling about 25 acres, for purposes of the
federal government’s construction of a segment of the Parkway.
Allen Brintle, and Karen B. Carter, each of whom are trustees of
the Thomas Y. Brintle 2006 Revocable Trust.
2
The Blue Ridge Parkway is a federal highway that connects
the Great Smoky Mountains National Park with the Shenandoah
National Park. See H.R. Con. Res. 294, 111th Cong. (2d Sess.
2010) (commemorating the 75th anniversary of the Blue Ridge
Parkway).
3
The remaining portions of this larger tract of land were
divided by deed in 1950 to the predecessors-in-title of Bolen,
Brintle, and Agape, respectively.
4
The Commonwealth sought to acquire the land in fee simple, and
the Highway Commissioner’s notice stated that the land would be
acquired
[t]ogether with all right and interest of the said M.
M. Bolen, Myrtle F. Bolen or others, their heirs or
assigns, to build, construct, maintain or use any
private drive or road on or over the above described
tracts or parcels (Parcel No. 1 and Parcel No. 2), or
other Parkway lands, without the consent and approval
of the State Highway Commissioner of Virginia or his
assigns.
The Highway Commissioner was unable to reach an agreement
with the Bolens concerning compensation for the two parcels, and
thereafter filed a petition (the condemnation petition) in the
Carroll County Circuit Court (the circuit court) to condemn that
property. The Highway Commissioner stated in the condemnation
petition that:
[T]he property and rights intended to be taken by
these proceedings is the fee simple title to the
strips or parcels of the defendants hereinabove
described, to-gether with all their right to access
roads, ways or drives over the above de-scribed tracts
or parcels of land, without the consent and approval
of the State Highway Commissioner or its assigns.
(Emphasis added).
The circuit court appointed five commissioners to determine
the value of the property described in the condemnation
petition. As related in their report, the commissioners “went
upon and viewed the lands described in the petition.” (Emphasis
added). The commissioners concluded that $1,260 would be “just
5
compensation for the fee simple title to the said lands
described in the petition filed in said case,” and that $140
would be an appropriate award “for the damage done to the
adjacent property of the owner” of that land. (Emphasis added).
Accordingly, the Commonwealth deposited $1,400 with the clerk of
the circuit court, representing the total valuation of the land
and the damage to the residue, as determined by the
commissioners.
The Bolens filed exceptions to the commissioners’ report,
in which they contended that the commissioners’ valuation of the
land was “unfair, unjust, inadequate, and unreasonable.”
However, the Bolens did not claim entitlement to an easement
across the property described in the condemnation petition.
After reviewing the Bolens’ exceptions, the circuit court
appointed a second set of commissioners to determine the value
of the property subject to the condemnation petition. This
second set of commissioners also viewed “the lands described in
the petition,” and concluded that $1,750 would be “just
compensation for the fee simple title to the said lands
described in the petition,” and further determined that $575
would be an appropriate award for the damage to the residue.
(Emphasis added). The Bolens did not file exceptions to this
second commissioners’ report.
6
Thereafter, the Commonwealth deposited $925 with the clerk
of the circuit court, the amount representing the increased
compensation due to the Bolens as determined in the second
commissioners’ report. On May 26, 1938, the clerk of the
circuit court deposited into the Bolens’ bank account the total
amount of $2,325 paid by the Commonwealth.
Upon reviewing the second commissioners’ report, the
circuit court entered an order (the circuit court’s order),
stating that the court would “approve, ratify and affirm” that
report “in all respects.” The order “confirm[ed]” to the
Commonwealth the “fee simple title” to property described in the
condemnation petition, “free of all liens and encumberances
[sic].”
The circuit court’s order also contained a verbatim
description of the two parcels acquired by the Commonwealth from
the Bolens, which included the following language:
Together with all right and interest of the said M. M.
Bolen, and Myrtle F. Bolen or others, their heirs or
assigns, to build, construct, maintain or use any
private drive or road on or over the above described
tracts or parcels (Parcel No. 1 and Parcel No. 2), or
other Parkway lands, without the approval and consent
of the State Highway Commissioner of Virginia or his
assigns.
In the margin of the court’s order was a handwritten,
undated, anonymous notation. This notation, which was connected
7
by a handwritten “arrow” drawn from the above typewritten
property description, contained the following language:
except one (1) access road way ten (10) feet wide with
two (2) foot shoulders on the side at or near Station
358[.]
Agape’s present claim of entitlement to an easement across land
owned by the federal government is based on the above
handwritten notation. 4
The property described in the condemnation petition later
was conveyed by general warranty deed from the Commonwealth to
the federal government. 5 That deed also conveyed additional
parcels of land owned or acquired by the Commonwealth. In the
deed, the Commonwealth reserved several easements to and across
the Parkway, but the easement claimed by Agape in this
proceeding was not among them. Several predecessors in the
Agape, Brintle, and Bolen chains of title enjoyed access across
the conveyed lands, but that access was obtained from the
federal government through special use permits. The most recent
such special use permit lapsed in June 1996.
4
The circuit court’s order was entered into the Chancery
Order Book and the Deed Book, including the unsigned, undated,
handwritten notation appearing in the margin of the court’s
order. The court’s order, the Order Book, and the Deed Book are
the only three documents describing Agape’s alleged easement
providing access to the Parkway.
5
The deed was drafted in May 1938, and was affixed with a
notary’s seal on June 16, 1938.
8
B.
Agape filed its complaint under the Quiet Title Act, 28
U.S.C. 2409a 6 against Brintle, Bolen, and the United States
(collectively, the defendants), seeking a declaration that Agape
has easements across the respective lands owned by the
defendants. Upon completion of discovery, the parties filed
cross-motions for summary judgment.
The district court granted the defendants’ motions for
summary judgment, and denied Agape’s motion. The court focused
its analysis on the federal government’s property, observing
that under Virginia law, easements over the Brintle and Bolen
parcels would be extinguished absent an easement across the
government’s land allowing access to the Parkway from the Agape
parcel.
Applying provisions of the Code of Virginia of 1930, the
district court held that the Commonwealth acquired defeasible
title to the subject property upon paying the amount of
compensation recommended in the second commissioners’ report,
and that the circuit court lacked authority under Virginia law
to modify the description of the property set forth in the
6
The Quiet Title Act is “the exclusive means by which
adverse claimants [may] challenge the United States’ title to
real property.” Block v. North Dakota ex rel. Bd. of Univ. &
School Lands, 461 U.S. 273, 286 (1983).
9
condemnation petition. The district court therefore concluded
that because the property described in the condemnation petition
did not include the easement claimed by Agape, the Commonwealth
obtained title to the property free of an easement reserved to
the Bolens. The district court held that, accordingly, the
federal government acquired fee simple title to the property
described in the condemnation petition, without the claimed
easement, when the Commonwealth conveyed the land to the federal
government by general warranty deed.
After rejecting Agape’s claim of an easement across the
federal property, the district court did not address the issue
whether Agape otherwise would have had easements across the
Bolen parcel and the Brintle parcel. The district court entered
an order awarding judgment in the defendants’ favor, and Agape
timely filed a notice of appeal.
II.
We review de novo the district court’s award of summary
judgment in favor of the defendants, viewing the facts, and all
reasonable inferences that may be drawn from those facts, in the
light most favorable to the plaintiff. See Bonds v. Leavitt,
629 F.3d 369, 380 (4th Cir. 2011); S.C. Green Party v. S.C.
State Election Comm’n,
612 F.3d 752, 755 (4th Cir. 2010).
Summary judgment is appropriate only when “there is no genuine
10
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Merritt v. Old
Dominion Freight Line, Inc.,
601 F.3d 289, 295 (4th Cir. 2010).
A.
In the present case, Agape contends that the district court
erred in concluding that Agape did not obtain an easement by
express reservation. Restating its arguments presented to the
district court, Agape primarily relies on the handwritten
notation in the margin of the circuit court’s order to establish
that the order expressly reserved the claimed easement to the
Bolens and their successors in title. Agape also asserts that
the district court’s decision constituted an impermissible
collateral attack on the circuit court’s 1938 order. Finally,
Agape maintains that it has easements across the Brintle parcel
and the Bolen parcel that are independent from property owned by
the federal government. We disagree with Agape’s arguments.
A party claiming an easement bears the burden of
establishing entitlement to the easement claimed. Mulford v.
Walnut Hill Farm Grp., LLC, 712 S.E.2d 468, 476 (Va. 2011). An
easement may exist as a result of an “express grant or
reservation, by implication, or by other means.” Id. (quoting
Brown v. Haley,
355 S.E.2d 563, 568 (Va. 1987)).
11
We first consider Agape’s primary argument that it has an
express easement over land owned by the federal government. 7
Agape’s argument rests on the premise that the circuit court
could alter the property description contained in the
condemnation petition.
In view of this contention, we begin our analysis by
emphasizing the fundamental principle that a sovereign has
absolute power to acquire private property required for a public
purpose, provided that just compensation is paid. See Georgia
v. City of Chattanooga, 264 U.S. 472, 480 (1924); see also
Secombe v. Milwaukee & St. Paul R.R. Co.,
90 U.S. 108, 118
(1874) (“there is no limitation” upon the power of the sovereign
to take private property for public use if just compensation is
paid to the former owner). Accordingly, as the Supreme Court of
Virginia has stated, “[w]henever the public use of property
requires it, the private rights of property must yield to this
7
We observe that the district court appropriately focused
its analysis on Agape’s claim of an easement across the federal
government’s land. Under Virginia law, a person claiming an
easement of ingress or egress over several parcels of land must
demonstrate a right of access allowing that person to reach his
or her ultimate destination. See Atkisson v. Wexford Assocs.,
493 S.E.2d 524, 528 (Va. 1997) (when any lot owner shows that an
express easement did not transverse his property, the claimed
easement fails because it would stop short of its ultimate
destination), abrogated on other grounds by Michael E. Siska
Revocable Trust v. Milestone Dev., LLC,
715 S.E.2d 21 (Va.
2011).
12
paramount right of sovereign power to take it for the public
use.” Fallsburg Power & Mfg. Co. v. Alexander, 43 S.E. 194, 196
(Va. 1903).
With this “paramount right” in mind, we turn to examine the
provisions of the Code of Virginia of 1930 that are at issue in
this case. Under former Virginia Code Section 1969j, the State
Highway Commissioner was assigned the power of eminent domain.
See Stewart v. Fugate, 187 S.E.2d 156, 159 (Va. 1972) (citing
Va. Code § 33.1-89, the analogous statute currently in effect,
and noting that this section assigns the power of eminent domain
for purposes of highway construction to the Virginia State
Highway Commissioner). Former Section 1969j required that the
Highway Commissioner file a condemnation petition in the circuit
court setting forth “with reasonable particularity a description
and designation of the interests, right and property intended to
be taken.” Former Va. Code § 1969j; see also Dillon v. Davis,
112 S.E.2d 137, 140 (Va. 1960) (discussing provision of the Code
of Virginia of 1950 requiring that the condemnation petition
must describe the property to be taken with sufficient
certainty). Former Section 1969j further authorized the
appointment of commissioners to determine the value of the land
to be taken, and, in particular, stated that:
[u]pon the return of the report of the commissioners
or viewers appointed in such proceedings the sum
ascertained thereby as compensation and damages, if
13
any, to the property owners, may be paid to the person
or persons entitled thereto, or for them into court or
to the clerk thereof, upon which title to the property
and rights condemned shall vest in the Commonwealth of
Virginia in fee simple, or to such extent as may be
prayed for in [the] petition.
Id. (emphasis added); see also Prichard v. State Highway Comm’r,
188 S.E. 166, 220-21 (Va. 1936) (quoting Former Section 1969j).
Under this statutory framework, the Commonwealth’s
acquisition of title was subject to a limited right of appeal by
the property owner or the Commonwealth “on the question only of
damages or compensation.” Former Va. Code § 1969j; see also
State Highway Comm’r v. Kreger, 105 S.E. 217, 224 (Va. 1920)
(noting limited nature of the right of appeal). Thus, by
operation of former Section 1969j, the Commonwealth acquired
defeasible title to the property at issue at the time that the
Commonwealth remitted payment to the circuit court in the amount
first determined by the commissioners.
The Commonwealth, however, did not acquire indefeasible
title to the property until the circuit court entered an order
confirming the second commissioners’ report. Under former
Section 4369, “[u]pon such payment [of the sum determined to be
just compensation by the commissioners], either to the person
entitled thereto, or into court, and confirmation of the report,
the title to the part of the land and to the other property
taken for which such compensation is allowed, shall be
14
absolutely vested [in the Commonwealth].” (Emphasis added). We
thus agree with the district court’s conclusion that under
former Section 1969j, title to the property vested in the
Commonwealth as soon as compensation was paid to the clerk of
the circuit court, but that the title only became “absolutely
vested” or indefeasible upon the circuit court’s confirmation of
the commissioners’ report. 8
We find no merit in Agape’s contention that the circuit
court was free to modify the extent of the property taken before
indefeasible title vested in the Commonwealth. This contention
finds no support in Virginia’s condemnation statutes, and wholly
contravenes the statutory scheme for condemnation proceedings
established by the Virginia General Assembly.
Under the condemnation statutes in effect in 1938, it was
the Commonwealth’s right to take the property described in the
condemnation petition, and the circuit court’s role was limited
merely to confirming the taking and to approving or denying the
amount of compensation set by the commissioners. 9 See Former Va.
8
The government argues that the Commonwealth acquired
indefeasible fee simple title when it deposited with the circuit
court the sum established by the commissioners. We find no
merit in this argument, because it would render a nullity the
language in former Section 4369 concerning “confirmation of the
report.”
9
Condemnation proceedings in the Commonwealth are conducted
in a similar, although not identical, manner today as such
(Continued)
15
Code §§ 1969j, 4369. This narrow role of a circuit court in
condemnation proceedings long has been emphasized by the Supreme
Court of Virginia in its decisions discussing the near-
conclusiveness of the commissioners’ recommendations. See Brown
v. May, 117 S.E.2d 101, 106-07 (Va. 1960) (holding that the
report of the condemnation commissioners “is not to be disturbed
by the trial court” unless the report is based on erroneous
principles or includes a compensation award that is grossly
inadequate or excessive such as to evidence bias, prejudice, or
corruption); Richmond Traction Co. v. Murphy,
34 S.E. 982, 984
(Va. 1900) (holding that if the commissioners’ report does not
appear to be illegal or irregular on its face, the report “must
be affirmed and carried into effect” by the circuit court).
proceedings were conducted in the 1930s. Under the current
statutory framework, as consistent with the applicable law in
1938, “[t]he report of the body determining just compensation
may be confirmed or set aside forthwith by the court.” Va. Code
§ 25.1-233 (2011). The court’s powers to set aside the report
are generally confined to instances of “fraud, collusion,
corruption or improper conduct” in connection with the report.
See id. (“If the court be satisfied that no such fraud,
collusion, corruption or improper conduct entered into the
report of the body determining just compensation . . . the
report shall be confirmed.”); see also id. (court not required
to confirm report if “other cause exists that would justify
setting aside or modifying a jury verdict in civil actions”);
State Highway Comm’r v. Carter,
222 S.E.2d 776, 777-78 (Va.
1976) (trial court should set aside commissioners’ award if it
“bear[s] no reasonable relation” to the evidence or shows
prejudice or corruption on the part of the commissioners).
16
Pursuant to former Section 4364, in a condemnation
proceeding, “[t]here shall be filed with such [condemnation]
petition a plat of the survey, with a profile showing the cuts
and fills, trestles and bridges, and a description of the land
or other property which, or an interest or estate in which, is
sought to be condemned.” Further, former Section 4368
delineated the commissioners’ duty to value the land, stating
that “[t]he commissioners, after viewing the property and land
which, or an interest or estate in which, is sought to be
condemned . . . shall ascertain what will be a just compensation
for the said property and land, or for such interest or estate
therein as is proposed to be taken.” (Emphasis added); see also
Va. Elec. & Power Co. v. Patterson, 132 S.E.2d 436, 439 (Va.
1963) (citing Section 25-17 of the Code of Virginia of 1950 for
the proposition that the commissioners determine just
compensation for property “proposed to be taken”).
In view of this statutory framework, the value set by the
commissioners in their report was dependent on the description
of the property set forth in the condemnation petition. Thus,
any purported reduction by the circuit court of the estate taken
necessarily would have affected the commissioners’ valuation of
the property. Under such circumstances, the court’s purported
modification of the estate taken, and “confirmation” of the
commissioners’ valuation of the property described in the
17
condemnation petition, would have effected an unauthorized de
novo valuation by the circuit court, a result not contemplated
by the statutory scheme. Accordingly, upon our consideration of
Virginia law in effect in 1938, we hold that the title that
vested in the Commonwealth was determined by the description of
the property in the condemnation petition, which did not include
the alleged easement claimed by Agape.
Our conclusion is not altered by Agape’s argument that the
district court’s decision constituted an impermissible
collateral attack on the circuit court’s 1938 order. A
collateral attack on a judgment is “an attempt to impeach the
judgment by matters [outside] the record . . . to avoid, defeat,
or evade it or deny its force and effect, in some incidental
proceeding not provided by law for the purpose of attacking it.”
Guinness, PLC v. Ward, 955 F.2d 875, 895 (4th Cir. 1992)
(citation omitted); see also Matthews v. Matthews,
675 S.E.2d
157, 159 (Va. 2009) (“A collateral attack is an attempt to
impeach a judgment in a proceeding not instituted for the
purpose of annulling or reviewing that judgment.”) (citation
omitted).
The district court’s decision did not constitute a
collateral attack on the circuit court’s judgment because, on
the face of the order and as provided by the Virginia Code, the
circuit court’s order confirmed condemnation of the property
18
described in the Commonwealth’s petition and the property’s
value as set by the second set of commissioners. Thus, the
district court’s decision, and our agreement with that decision,
does not “avoid, defeat, or evade” the circuit court’s order,
Guinness, 955 F.2d at 895, but rather constitutes an examination
of the scope of that order.
B.
Having concluded that Agape does not have an easement
across the land owned by the federal government, we next
consider whether the district court erred in dismissing Agape’s
claim with respect to the easements claimed over lands owned by
Brintle and Bolen. As an initial matter, we agree with the
district court’s conclusion that because Agape cannot establish
an express easement extending from its property to the Parkway,
any otherwise existing easements over intervening properties on
that claimed route are extinguished. Atkisson v. Wexford
Assocs., 493 S.E.2d 524, 528 (Va. 1997), abrogated on other
grounds by Michael E. Siska Revocable Trust v. Milestone Dev.,
LLC,
715 S.E.2d 21 (Va. 2011).
For the first time on appeal, however, Agape claims a
separate easement route across Brintle’s and Bolen’s properties
that is not dependent upon an easement across the federal land.
We do not consider this new claim, because Agape’s amended
complaint alleged an easement across the Brintle and Bolen
19
properties that “required adjudication” of Agape’s right to
cross property owned by the federal government. 10 Moreover, the
alternate route now claimed by Agape was not presented to the
district court for its consideration. Therefore, because Agape
did not allege in the district court an alternate route across
the Brintle and Bolen parcels that does not cross federal
property, we will not consider Agape’s purported alternate route
for the first time on appeal. See Helton v. AT&T Inc., 709 F.3d
343, 360 (4th Cir. 2013) (issues raised for first time on appeal
generally will not be considered).
III.
In sum, we hold that the district court did not err in
concluding that the Commonwealth acquired all the property
described in the condemnation petition, without reservation of
the alleged easement, because the description of the property in
the petition and in the commissioners’ report did not reference
such an easement. We further hold that the district court’s
decision, and our construction of the circuit court’s 1938
10
We further observe that Agape does not address in its
reply brief Brintle and Bolen’s assertion that the alternate
route now claimed on appeal was not raised in the district
court.
20
order, does not constitute a collateral attack on that order.
Accordingly, we affirm the district court’s judgment.
AFFIRMED
21
