Hansen v. Stichting Mayflower Recreational Fonds, Civ. No. 93-C-1059W.

Decision Date03 July 1995
Docket NumberCiv. No. 93-C-1059W.
PartiesSpenst M. HANSEN, a Washington resident, Plaintiff, v. STICHTING MAYFLOWER RECREATIONAL FONDS and Stichting Mayflower Mountain Fonds, each a Netherlands Association, Defendants.
CourtU.S. District Court — District of Utah


Thomas W. Bachtell, John F. Waldo, Jr., Pruitt, Gushee & Bachtell, Salt Lake City, UT, for plaintiff.

Bruce A. Maak, Mark A. Wagner, Kimball, Parr, Waddoups, Brown & Gee, Salt Lake City, UT, for defendants.


WINDER, Chief Judge.

This matter is before the court on two motions for summary judgment: (1) plaintiff Spenst M. Hansen's ("Plaintiff" or "Hansen") motion seeking a declaration quieting title in the surface rights to a contested tract of land, and (2) defendants Stichting Mayflower Recreational Fonds' and Stichting Mayflower Mountain Fonds' ("Stichting" or "Defendants") motion seeking title to the surface rights in the same tract. A hearing on these motions was held May 23, 1995. John F. Waldo represented Plaintiff. Bruce A. Maak and Mark A. Wagner represented Defendants. Before the hearing, the court considered carefully the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the law and facts relating to the two motions. Now being fully advised, the court enters the following memorandum decision and order.


The action on which the instant cross-motions are based is one to quiet title in an 8.884 acre tract of land located in Wasatch County, Utah. This tract, a portion of the Homestake No. 3 mining claim, will be referred to as the "Homestake Portion." For the most part, the facts underlying the motions are undisputed. The same cannot be said, however, for the inferences to be drawn therefrom.

A. Pre-1973 History of Homestake Portion

In June of 1906, the United States of America issued to Homestake Mining Company ("Homestake Mining") letters patent for a mining claim known as Homestake No. 3, which was designated as Lot No. 5028. Approximately six months later, Harwood Mining Company ("Harwood") was issued letters patent for Horn Silver No. 1 and Horn Silver No. 2 mining claims. Although the exterior metes and bounds of the Horn Silver claims embrace most of the Homestake Portion, the patent for the Horn Silver claims excludes all of the land within the Homestake No. 3 claim.

In November of 1928, Homestake Mining issued a quitclaim deed to East Utah Mining Company ("East Utah"), Harwood's successor in interest. That deed stated that when Homestake Mining originally applied for a patent to Homestake No. 3, Harwood had objected, asserting superior rights under the overlapping Horn Silver claims. To settle that dispute, Homestake Mining agreed to convey to Harwood a portion of Homestake No. 3. Accordingly, Homestake Mining's deed quitclaimed the following portion of Homestake No. 3 to East Utah:

Beginning at the Northeast corner No. 4 of the Homestake No. 3 lode, Survey No. 5028, and running thence South 81*00' West 602.8 feet to northwest corner No. 3 of said Homestake # 3 lode; thence South 14*30' East 289.8 feet to point of intersection of west side line of said Homestake No. 3 lode with the east end line of Belcher No. 5 lode, Lot 195; thence south 22*30' East 9.3 feet to southeast corner No. 4 of said Belcher No. 5 lode; thence North 81*East 40 feet to northeast corner No. 3 of Belcher No. 4 lode, Lot No. 194; thence south 16*04'East 182.9 feet to a point of intersection on the south side line of the Horn Silver Mining Claim no. 1 lode, survey No. 5070 and north side line of the Horn Silver Mining Claim no. 2 lode, Survey No. 5070 with the east end line of said Belcher No. 4 lode; thence south 66*15' East 705.4 feet to a point of intersection of the south side line of the said Horn Silver Mining Claim No. 2 lode, with the east side line of said Homestake No. 3 lode; thence North 14*30' West along east side line of said Homestake No. 3 lode, 864.7 feet to northeast corner No. 4 of said Homestake No. 3 lode, the place of beginning, containing 8.884 acres.

This distinctively-described portion of Homestake No. 3 is the subject Homestake Portion.

In 1929, Homestake Mining conveyed to Edgar A. Bering ("Bering") certain mining claims, including "Home Stake No. 3 Lode U.S. Survey No. 5028, expressly excluding therefrom the following described property...." The "excluded" property was the Homestake Portion. Bering, in turn, conveyed various properties to Park City Utah Mines Company ("Park City Company"), including: Homestake No. 3 Mining Claim U.S. Lot No. 5028 expressly excluding therefrom that portion of the said Homestake No. 3 Mining Claim dated (sic.) to the East Utah Mining Company under date of November 9, 1928, and recorded in Book 10 of Mining Deeds, page 152 of Wasatch County, Utah.

Thus, by 1929, the land contained in the original Homestake No. 3 patent had been divided into two separate and distinct parcels: (1) the Homestake Portion, owned by East Utah, and (2) the rest of Homestake No. 3, owned by Park City Company. At this point, then, East Utah owned surface and mineral estates in Horn Silver Nos. 1 and 2, as well as in the Homestake Portion. Although both Horn Silver No. 1 and Horn Silver No. 2 were patented, the Homestake Portion was technically patented as part of Homestake No. 3.

B. Lon — East Utah Transactions

On August 1, 1973, East Utah entered into both an Agreement ("1973 Agreement") and a Uniform Real Estate Contract (collectively "Lon Agreement") with Lon Investment Company ("Lon"). In the Uniform Real Estate Contract, East Utah agreed to sell and Lon agreed to purchase certain property. See Uniform Real Estate Contract (Aug. 1, 1973). Schedule "A" of the Uniform Real Estate Contract stated that East Utah intended to convey surface rights only in several patented and unpatented mining claims:

patented mining claims Mountaineer, Mountaineer No. 1, Mountaineer No. 2, Mountaineer No. 3, Neptune, Leone, Horn Silver, Horn Silver No. 1, Horn Silver No. 2, Lost Boulder No. 1, Lost Boulder No. 2, Lost Boulder No. 3, Lost Boulder No. 4, Lost Boulder No. 5, Lincoln, Norris, Silver Coin, Silver Coin No. 1, Sussie C, Evans, Evans No. 1, Minnie, Deseret Entry, and any other rights of Seller in any patented mining claims adjoining or contiguous to the foregoing claims.
And the surface rights in the Norma, Dos, Uno and Tres unpatented mining claims.

See id. at Schedule "A" (emphasis added). It is undisputed that the Homestake Portion shares at least one common border with one of the patented mining claims named in this description. Stichting therefore contends that the language "and any other rights of Seller in any patented mining claims adjoining or contiguous to the foregoing claims" ("mother hubbard clause"), describes the Homestake Portion.

In addition, the Uniform Real Estate Contract stated that:

the Seller on receiving the payments herein reserved to be paid at the time and in the manner above mentioned agrees to execute and deliver to the Buyer or assigns, a good and sufficient warranty deed conveying the title to the above described premises....

See id. at ¶ 19 (emphasis added). The Uniform Real Estate Contract also gave Lon the right:

prior to the payment of the entire balance hereunder, upon payment of the sum of ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) per acre or multiples thereof, to have conveyed to it such part of the property as Buyer shall select for use by it in development. Selections by Buyer shall be in a contiguous tract on the outside boundaries of the property so as to leave the remainder of the property in a contiguous tract....

Id. at ¶ 23.

In the concurrently executed 1973 Agreement, East Utah and Lon first acknowledged entering into a Uniform Real Estate Contract. See Agreement (Aug. 1, 1973) hereinafter "1973 Agreement". The 1973 Agreement then stated its purpose:

The purpose of this Agreement is to confirm the understanding between East Utah and Lon whereby East Utah will be entitled to a participating interest over and above the consideration provided for in Exhibit "A"1 in the total project as hereinafter defined on the terms and conditions herein stated.2

See id. at p. 1 (emphasis added). "Total project" was defined as:

the sum total of fee lands owned by Lon located between Keetley on the East and the center line of Sections 29 and 32, Township 2 South, Range 4 East, Salt Lake Base and Meridian, on the West, and the lands described in Exhibit "A"....

Id. at p. 2.

The 1973 Agreement further stated that:

It is agreed that Lon is seeking to acquire rights with respect to other property adjoining the Lon property on the North including property from Park City, Utah Mines Company and San Diego Mining Company. It is agreed that should Lon be successful in acquiring any such rights, Lon will have and possess the surface rights with respect thereto. Lon will extend to East Utah the first right to acquire the mineral rights, if any, that may be acquired with respect thereto. Provided, however, it is understood that there is no assurance of sic. either the surface or the mineral rights might be acquired with respect to said property.

Id. at p. 3.

In April of 1977, Lon and East Utah modified the payment terms outlined in the Lon Agreement because Lon had "been unable to make the payments required under the prior terms." See Addendum to Agreement at p. 1 (Apr. 12, 1977).

C. Post-1973 Assignments of Lon Agreement

On August 17, 1977, Lon assigned and quitclaimed its right, title, and interest in the Lon Agreement to Ross Lare Realty ("Ross Lare"). See Assignment and Quitclaim of Installment Land Contract Interest (Aug. 17, 1977) hereinafter "Lon-Ross Lare Agreement". The relevant document states that:

This Assignment and Quitclaim is made subject to all liens,

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