3 F.3d 1254 (9th Cir. 1993), 91-16762, Adams v. United States

Docket Nº:91-16762, 91-16840.
Citation:3 F.3d 1254
Party Name:Lester ADAMS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Lester ADAMS, Plaintiff-counter-defendant-Appellee, Jean D. Adams, individually and as Trustees of the 1984 Living Trust, Plaintiff-counter-defendant-Appellee, v. UNITED STATES of America, Defendant-Appellant.
Case Date:August 31, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1254

3 F.3d 1254 (9th Cir. 1993)

Lester ADAMS, Plaintiff-Appellant,

v.

UNITED STATES of America, Defendant-Appellee.

Lester ADAMS, Plaintiff-counter-defendant-Appellee,

Jean D. Adams, individually and as Trustees of the 1984

Living Trust, Plaintiff-counter-defendant-Appellee,

v.

UNITED STATES of America, Defendant-Appellant.

Nos. 91-16762, 91-16840.

United States Court of Appeals, Ninth Circuit

August 31, 1993

Argued and Submitted June 14, 1993.

Page 1255

Daniel Markoff, Markoff & York, Las Vegas, NV, for plaintiffs-counter-defendants-appellants-cross-appellees.

Peter A. Appel, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for defendants-counter-plaintiffs-appellees-cross-appellants.

Appeal from the United States District Court for the District of Nevada.

Before: FAIRCHILD, [*] BEEZER, and WIGGINS, Circuit Judges.

BEEZER, Circuit Judge:

Lester and Jean Adams own two noncontiguous tracts of land in Nevada surrounded by the Toiyabe National Forest. The Adamses brought this action against the United States Forest Service for quiet title to certain land they claimed was erroneously surveyed, an easement for ingress and egress to their land pursuant to the former provisions of Revised Statute 2477, 43 U.S.C. Sec. 932 (1970), and an easement to transport water between the two parcels of land. The United States counterclaimed, asserting that the Adamses had trespassed on National Forest land. The United States sought an injunction and damages for the trespass.

The district court held that the statute of limitations barred the Adamses' quiet title claim. Adams v. United States, 687 F.Supp. 1479, 1488 (D.Nev.1988). It also determined that the Adamses had no right to maintain an easement over the Forest Service road to their land, enjoined the Adamses from using and maintaining the easement without prior approval, and held that the Adamses owed the United States $11,000 for damage to the National Forest. The court also held that the Adamses had an easement to transport water between the two parcels. The Adamses moved for relief from judgment under Fed.R.Civ.P. 60(b); District Judge George denied the motion. Both the Adamses and the United States appeal from the judgment. We affirm in part, reverse in part, vacate the damages award, and remand for further consideration.

I

The claims of the landowners and responses of the government raise almost exclusively questions of fact. The district court considered the history of land use, water use, and land surveys in and around the private land for the last 100 years. Two district judges ruled on separate claims in this action; both made detailed, written findings of fact.

The land in question lies in southern Nevada. The land consists of two tracts, one made up of three parcels, the other a separate parcel. Both tracts are completely surrounded by the Toiyabe National Forest.

The land lies near Clark Canyon. The Clark Canyon Road (Forest Service Road 20071) leads through the National Forest from the west to the Adamses' larger tract. The road continues on National Forest land between the two parcels to the western edge of the Adamses' separate, smaller tract.

The other road in question is referred to as the North Canyon Road, although it seems to be little more than a trail. This road veers off Clark Canyon Road approximately 1.5 miles west of the Adamses' larger tract's western boundary. The Adamses have built a switchback on Forest Service land leading from North Canyon Road to their property. This is called the North Canyon Switchback.

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The Adamses constructed a "fuel break" road (presumably for fire prevention) on Forest Service land along the southern boundary of the larger tract.

There are at least two water sources on the Adamses' land. The Culinary or Mill Spring percolates on the larger tract of land. The spring with a greater water flow, the Clark Canyon Spring, lies on the smaller tract of land. The United States' appeal focuses on the Clark Canyon Spring.

The United States acquired this land in 1848 after the Mexican-American War. The United States owned the land until 1892 when it transferred it to Nevada. During the next seven years, Nevada transferred the property to various private owners. The United States retained ownership in the land surrounding the property. On November 5, 1906, President Theodore Roosevelt reserved the surrounding land for what is now called the Toiyabe National Forest.

The Adamses purchased the property in 1964. At the time, Clark Canyon Road was impassable; the Adamses accessed their land on the North Canyon Road. The Adamses have built a house and seven out-buildings on the land; they have also developed a 45 acre irrigated horse pasture.

Township 19 South was originally surveyed in 1881 by Deputy Surveyor Theodore Binge. The much maligned Binge was apparently no perfectionist. Binge did not accurately reflect the survey he ran on the plat map; the original survey "must be considered as of a fradulent [sic] and fictitious character." Letter from Carl S. Swanholm, United States Cadastral Engineer, United States Dep't of Interior, General Land Office, Public Survey Office, to G.D.D. Kirkpatrick, District Cadastral Engineer (May 13, 1936). The resurvey of the land was accepted by the General Land Office in 1939. In 1990, the government performed a resurvey of only a portion of the Adamses' larger tract. The resurvey placed the Adamses' western boundary several hundred feet west of the presumed location, increasing the size of their tract by at least 25 acres.

The district court found that a sawmill existed on the Adamses' land between 1876 and 1881. On the plat map of the 1881 survey, Binge indicated a road leading to this sawmill. The road fell out of use and was not regularly maintained; however, the road is probably the present Clark Canyon Road.

The district court found appropriation of water from the Clark Canyon Spring for the sawmill. The United States disputes whether the sawmill ever appropriated any water. Water is not mentioned in the chain of title between the original patentees and John Spann, the Adamses' immediate predecessor in interest. In the deed between Spann and the Adamses, Spann purported to "convey all water rights appurtenant to" the two parcels.

The Adamses purchased the property based on a map that was based on the 1939 survey boundaries. Since 1964, the Adamses have widened and graded Clark Canyon Road and built the North Canyon Switchback. The Adamses' fuel break road ventures onto Forest Service land.

In 1965, the Adamses built a pipeline from Clark Canyon Spring (on the smaller tract) to the larger tract. The Adamses applied for vested water rights in 1968; they represented that the water had been used for irrigation each and every year since appropriation and that the water was used continuously for sawmill purposes but that the present owner discontinued the mill. The state did not accept the application. The Adamses later applied for a certificate of appropriation for the Clark Canyon Spring from the Nevada State Engineer. This certificate was granted with December 7, 1976 as the date of priority. In 1980, the Adamses installed a second pipeline; the two water lines do not follow the same course.

It is undisputed that the Adamses have never obtained authorization for the activities on Forest Service land. It appears from the record that the Adamses and the Forest Service have had misunderstandings over the road and Forest Service land since 1969. In 1986, the Adamses filed the underlying complaint in this case.

Both parties moved for summary judgment on all claims. District Judge Pro held that the Adamses' quiet title action for land based on the 1881 survey was barred by the statute

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of limitations. The court denied summary judgment for either side on the easement and waterline issues.

After a bench trial, District Judge George found that whatever historic road existed in the Clark Canyon area no longer existed. This meant the Adamses were not entitled to a Revised Statute 2477 easement. The court ordered the Adamses to obtain the appropriate permits and comply with governmental conditions before using the Forest Service road. The court also found that most of the work done on Forest Service land were acts of trespass. The court enjoined the Adamses from "further use or occupancy of National Forest lands without first obtaining prior approval" and set a further trial date to determine damages.

The court found that the Adamses had a vested water right under Nevada law and therefore had an easement to transport water across the Forest Service land. In the damages portion of the action, the district court made additional findings of fact and awarded the Forest Service $11,000 in damages. The Adamses and the Forest Service appeal the district court's decisions adverse to each.

II

We review issues of fact for clear error; we review issues of law de novo. United States v. City of Spokane, 918 F.2d 84, 86 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2888, 115 L.Ed.2d 1053 (1991). We review the district court's denial of relief under Fed.R.Civ.P. 60(b) for abuse of discretion. Northern Alaska Envtl. Center v. Lujan, 961 F.2d 886, 889 (9th Cir.1992).

  1. Access

    The Adamses have three separate arguments in support of their easement claim. They claim they are entitled to a right-of-way (1) under Revised Statute 2477, (2) under the Alaska National Interest Lands Conservation Act, 16 U.S.C. Secs. 3101 et seq., and (3) under the common law doctrine of easement by necessity. Their claims under the Alaska National Interest Lands Conservation Act and...

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