687 F.Supp. 1479 (D.Nev. 1988), CV-S-86-548, Adams v. United States

Docket Nº:CV-S-86-548-PMP.
Citation:687 F.Supp. 1479
Party Name:Lester G. ADAMS, and Jean D. Adams, as husband and wife, and Trustees of the Lester G. Adams and Jean D. Adams 1984 Living Trust, Plaintiffs/Counterdefendants, v. UNITED STATES of America; Secretary of Agriculture of the United States of America, acting through the United States Department of Agriculture and the Forest Service of the United States;
Case Date:May 19, 1988
Court:United States District Courts, 9th Circuit, District of Nevada
 
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687 F.Supp. 1479 (D.Nev. 1988)

Lester G. ADAMS, and Jean D. Adams, as husband and wife, and Trustees of the Lester G. Adams and Jean D. Adams 1984 Living Trust, Plaintiffs/Counterdefendants,

v.

UNITED STATES of America; Secretary of Agriculture of the United States of America, acting through the United States Department of Agriculture and the Forest Service of the United States; the Secretary of Interior of the United States, acting through its Director of the Bureau of Land Management, a Division of the United States Department of Interior; Individual Defendants, John Does 1 through 10, Defendants/Counterplaintiffs.

No. CV-S-86-548-PMP.

United States District Court, D. Nevada.

May 19, 1988

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James A. Ririe, H. Leon Simon, Las Vegas, Nev., for plaintiffs/counterdefendants.

William A. Maddox, U.S. Atty., David Moynihan, Asst. U.S. Atty., Las Vegas, Nev., for defendants/counterplaintiffs.

FINDINGS OF FACT, MEMORANDUM OPINION AND ORDER

PRO, District Judge.

This is a quiet title action to clarify the description and boundaries of real property owned by Plaintiffs and located in Clark Canyon, Clark County, Nevada (the "Property"), and to declare that the Plaintiffs have easements for access roads to, and use of water for the benefit of, the Property.

Plaintiffs' Complaint (# 1) was filed June 6, 1986. The Court's Order granting Plaintiffs' Motion for Leave to Amend Complaint (# 53), was filed on May 9, 1988. The Second Amended Complaint, attached to Plaintiffs' Motion (# 53), is the subject of this Memorandum Opinion and Order, inasmuch as Counts I through IV are substantively identical to those contained in Plaintiffs' Amended Complaint (# 4), filed October 2, 1986, and the subject of the myriad of motions, cross motions, and responses filed on behalf of both parties.

Defendant's Counterclaim (# 6), filed January 12, 1987, alleges conduct on National Forest land without a special use permit, with a request for injunctive relief and money damages. The pleadings before the Court are voluminous as well as factually and legally intricate. The specific nature of Plaintiffs' Second Amended Complaint, Defendant's Counterclaim, and the relief requested are discussed herein.

The Court has jurisdiction of Plaintiffs' Second Amended Complaint, Counts I-IV, pursuant to 28 U.S.C. § 2409a and 28 U.S.C. § 1346(f). The Court reserves comment on the jurisdictional basis of Counts V and VI contained in Plaintiffs' Second Amended Complaint, pending responsive pleadings from Defendant. The Court has jurisdiction of Defendant's Counterclaim pursuant to 28 U.S.C. § 1345.

FINDINGS OF FACT

Pursuant to Local Rule 190-3, the parties to this action filed a Pretrial Order (# 71) on November 23, 1987. The Pretrial Order contains 21 facts admitted by the parties, which therefore require no proof. In addition, the Court has examined the entire record, including pleadings, exhibits, affidavits, and depositions, and has heard oral argument from counsel for the parties at the omnibus hearing held on May 6, 1988. Each of the following findings of fact indicates whether it was admitted by the parties pursuant to the Pretrial Order, or alternatively, the source within the record from which the Court has made the particular finding of fact.

1. Lester G. Adams and Jean D. Adams acquired the following described real property (the "Property") on or about October 16, 1964:

PARCEL I: The South Half (S-1/2) of the Southwest Quarter (SW-1/4) of Section 5, Township 19 South, Range 56 East, M.D.M.

PARCEL II: The North Half (N-1/2) of the Northwest Quarter (NW-1/4) and the Northwest Quarter (NW-1/4) of the Northeast Quarter (NE-1/4) of Section 7, Township 19 South, Range 56 East, M.D.M.

PARCEL III: The North Half (N-1/2) of the Northeast Quarter (NE-1/4) of Section 12, Township 19 South, Range 55 East, M.D.M., AND

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PARCEL IV: The South Half (S-1/2) of the Southeast Quarter (SE-1/4) and the Northwest Quarter (NW-1/4) of the Southeast Quarter (SE-1/4) of Section 1, Township 19 South, Range 55 East, M.D.M.

(# 71, ¶ 3.1)

2. The Grant Bargain and Sale Deed by which title was conveyed to Lester G. Adams and Jean D. Adams was recorded October 23, 1964, at Book No. 580, Instrument No. 467110, describing the real property conveyed as follows:

PARCEL I: The South Half (S-1/2) of the Southwest Quarter (SW-1/4) of Section 5, Township 19 South, Range 56 East, M.D.M.

PARCEL II: The North Half (N-1/2) of the Northwest Quarter (NW-1/4) and the Northwest Quarter (NW-1/4) of the Northeast Quarter (NE-1/4) of Section 7, Township 19 South, Range 56 East, M.D.M.

PARCEL III: The North Half (N-1/2) of the Northeast Quarter (NE-1/4) of Section 12, Township 19 South, Range 55 East, M.D.M., AND

PARCEL IV: The South Half (S-1/2) of the Southeast Quarter (SE-1/4) and the Northwest Quarter (NW-1/4) of the Southeast Quarter (SE-1/4) of Section 1, Township 19 South, Range 55 East. M.D.M.

GRANTORS herein hereby convey all water rights appurtenant to the above described Real Property to GRANTEES herein.

SUBJECT TO:

1. Taxes for the fiscal year 1964-65 and subsequent thereto.

2. Restrictions, conditions, reservations rights of way, and easements now of record.

(# 71, ¶ 3.2)

3. Prior to purchase of the Property, Plaintiffs obtained a preliminary title report from Pioneer Title Insurance Company of Nevada. (# 68, Exhibit B attached thereto)

4. After purchasing the Property, Plaintiffs commissioned L.A. Harris, a registered engineer and land surveyor, to survey the Property. The survey was completed and recorded on June 16, 1965. A copy of the map of the survey was presented to Plaintiffs. (# 48, Exhibit A attached thereto)

5. Lester G. Adams and Jean D. Adams transferred the Property to Lester G. Adams and Jean D. Adams, Trustees for the Lester G. Adams and Jean D. Adams 1984 Living Trust by a Deed dated October 23, 1984, which was recorded December 4, 1984. (# 71, ¶ 3.3)

6. Township 19 South, Range 56 East, M.D.M., Nevada, was originally surveyed in 1881. (# 71, ¶ 3.4)

7. Township 19 South, Range 56 East, M.D.M., Nevada, was resurveyed by the United States, which resurvey was officially accepted on January 25, 1939. (# 71, ¶ 3.5)

8. That portion of the Property located in Township 19 South, Range 56 East, M.D.M., Nevada, was described in the 1939 resurvey as Tract 41 and Tract 42. (# 71, ¶ 3.6)

9. Pursuant to Department of Interior regulations, and prior to the commencement of the 1939 resurvey, the Forest Service gave each owner of private land within the area to be resurveyed an opportunity to protest the proposed resurvey. The then owner of the Property, Jean Cazaurang, was so notified in 1928. In a letter received by the Forest Service on April 14, 1928, she responded that she had no objections. (# 91, Exhibits A, B, and C attached thereto.)

10. The 1939 resurvey was conducted under the authority of the Manual of Instructions for the Survey of the Public Lands of the United States, 1930 Ed. (# 82, Affidavit of Lacel E. Bland, Exhibit D attached thereto, at 2, ¶ 4, pg. 3, ¶ ¶ 10-16.)

11. The 1939 resurvey did not change the original description, acreage, or size of Tract 41 or Tract 42. (Id., at 9-10, ¶ ¶ 19-20.)

12. The 1939 resurvey utilized the corners of the 1881 survey to identify the

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patented land. While the 1939 resurvey of Tract 42 does not correlate to the 1881 survey as shown on the original survey plat, the corner evidence demonstrates that the 1881 plat does not reflect the true conditions of the original survey. Pursuant to the standards and procedures mandated by the Manual, original corners or corners restored by the dependent method are controlling over the written record. Consequently, the 1939 resurvey did not change the legal description of the patented land as it occupies the same location on the earth's surface as it did when the 1881 survey was completed. (Id., at 12, 13, ¶ ¶ 23-24.)

13. In a letter dated May 13, 1936 addressed to the United States Department of the Interior, General Land Office, Carl S. Swanholm, field surveyor during the 1939 resurvey proposed, inter alia, that Tract 42 be realigned in an alternative configuration. (Id., Exhibit A attached thereto.) While most of Swanholm's recommendations were accepted, the General Land Office rejected his suggestion to ignore the identified original corners and properly restored corners on the ground. (Id., Exhibit E attached thereto.)

14. Prior to completing the purchase of the Property in 1964, Plaintiff Lester Adams inspected the Property, and relied on the description of the Property as portrayed on a map based on the 1939 resurvey. (# 69, Deposition of Lester G. Adams, Exhibit D attached thereto, at 8, ln. 5-24.)

15. The United States held title to the Property prior to 1892. The Property was then transferred to the State of Nevada pursuant to an act to grant the State of Nevada lands in lieu of the sixteenth and thirty-sixth sections in said State, Chapter 245, 46th Cong., 2d Sess. (June 16, 1880), as state selection lands. (# 71, ¶ 3.7)

16. Thereafter, the Property was sold to private owners and states patents were issued as follows:

July 15, 1892 George Butler SW 1/4 of SW 1/4, Sec. 5, T. 19 S., R. 56 E.
W 1/4 of SE 1/4, Sec. 1, T. 19 S., R. 55 E.
NE 1/4 of NE 1/4, Sec. 12, T. 19 S. R. 55 E.
Sept. 13, 1892 Benjamin Darmert NW 1/4 of NE 1/4, Sec. 7, T. 19 S., R. 56 E.
Oct. 9, 1895 Benjamin Darmert SE 1/4 of SW 1/4, Sec. 5, T. 19 S., R. 56 E.
June 24, 1896 Benjamin Darmert SE 1/4 of SE 1/4, Sec. 1, T. 19 S., R. 55 E.
NE 1/4 of NW 1/4, Sec. 7,
...

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