United States v. 237,500 ACRES OF LAND, ETC.

• Decision Date: 24 November 1964
• Docket Number: Civ. No. 311 ND,3472 JWC.
• Parties: UNITED STATES of America, Plaintiff, v. 237,500 ACRES OF LAND, MORE OR LESS, IN the COUNTIES OF INYO AND KERN, STATE OF CALIFORNIA, Frank R. Wicks et al., Defendants. UNITED STATES of America, Plaintiff, v. 529,533 ACRES OF LAND, MORE OR LESS, IN the COUNTIES OF INYO, KERN AND SAN BERNARDINO et al., Defendants.
• Court: U.S. District Court — Southern District of California

236 F. Supp. 44

UNITED STATES of America, Plaintiff, v. 237,500 ACRES OF LAND, MORE OR LESS, IN the COUNTIES OF INYO AND KERN, STATE OF CALIFORNIA, Frank R. Wicks et al., Defendants.

UNITED STATES of America, Plaintiff, v. 529,533 ACRES OF LAND, MORE OR LESS, IN the COUNTIES OF INYO, KERN AND SAN BERNARDINO et al., Defendants.

Civ. Nos. 311 ND, 3472 JWC.

United States District Court S. D. California, Central Division.

November 24, 1964.

Hansen & Dolle, Los Angeles, Cal., for American Pumice Co.

Manuel Real, U. S. Atty., and Richard J. Dauber, Asst. U. S. Atty., Los Angeles, Cal., for the United States.

HALL, District Judge.

Several pumice placer mining claims in each of the above cases were consolidated for trial and were tried together, without a jury.

The claims involved in Case No. 3472-JWC are all located in T.23-S, R.40-E, MDB&M, and are known as the "Brown Group." The claims of that group, concerning which evidence was offered and admitted as to the value and title, are "Tired Boy," a 160 acre claim; "White Gold;" a group involving two claims of 20 acres each, overlapping one another; "White Eagle No. 2," 20 acres; "Gray Boy," 20 acres; and "White Eagle Reserve," a 160 acre claim.

The claims involved in Case No. 311-ND are all located in T.21-S, R.38-E, MDB&M, and are known as the "Donna-Gill" claims. Those claims upon which evidence was offered and admitted as to value and ownership are "Donna No. 3 and No. 4" and "Ray Gill No. 31."

OWNERSHIP

Brown Group

The United States stipulated with defendant American Pumice Company that on the date the Declaration of Taking was filed in Case No. 3472-JWC, the "Brown Group," except "White Eagle Reserve," were owned by the American Pumice Company.

The only one putting on any case for title or valuation or appearing as a party in interest at the trial as a claimant, owner, or defendant, was the American Pumice Company. During the trial, counsel for the Government objected to the introduction of testimony offered by the American Pumice Company concerning the value and ownership on the ground that the American Pumice Company was not shown to be the owner on the date the Complaint was filed, in that a quit-claim deed to the American Pumice Company from the Pepperdine Foundation and Flotation Systems, Inc. was made after the Complaint was filed Ex. Z, which the Government then, for the first time, asserted was in violation of 31 U.S.C. § 203.

The quit-claim deed was dated June 21, 1944, which was after the Complaint was filed in No. 3472-JWC on February 23, 1944. The Declaration of Taking was filed October 19, 1945 — (see Stipulation filed March 28, 1963). That is the date the Government took possession. "The filing of a petition in condemnation without taking possession is not a taking. The condemnor may discontinue or abandon his efforts." 23 Tracts of Land v. U. S. (6 Cir. 1949) 177 F.2d 967 at 970. This case was cited with approval in U. S. v. Dow (1958) 357 U.S. 17, at page 22, 78 S.Ct. 1039, 1044, 2 L.Ed.2d 1109 where the Supreme Court said: "The owner at the time the Government takes possession `rather than the owner at an earlier or later date, is the one who has the claim and is to receive payment.'"

Moreover, the quit-claim deed by its terms was not an assignment but was a relinquishment to the American Pumice Company of whatever title, "if any," was in the Pepperdine Foundation and Flotation Systems, Inc. No claim then existed against the Government under 31 U.S.C. § 203, nor did one come into existence until the Government took possession under its Declaration of Taking on October 19, 1945.

The Government is bound just as much by its stipulation as private counsel would be. The statute not only authorizes, but makes it the duty of the United States Attorney to "prosecute or defend, for the government, all civil actions, suits or proceedings in which the United States is concerned." 28 U.S. C. § 507(a) (2). This is a civil action or suit. When an action is once filed, to which the United States is a party, and has appeared, the United States Attorney has full power to bind the United States. An admission by counsel for the United States, made by way of stipulation of fact and made as a part of the record, and relied upon by the opposing party, is a most solemn and binding act. King v. Edward Hines Lbr. Co. (D.C.Or.1946) 68 F.Supp. 1019. Especially is this so where, as here the Government ousted the defendants from the property 20 years before the case was brought to trial, and no motion was made to be relieved of the stipulation, and no notice given of an intention to renege until after the trial was started.

The objection of the Government to the introduction of any evidence either as to value or ownership was overruled on the basis that the Government was bound by the Stipulation. But as a precaution, counsel for the American Pumice Company offered, and the Court permitted, evidence to the effect that the American Pumice Company was the owner, and in possession, of the claims in No. 3472-JWC on the date of filing the Complaint and on the date of filing the Declaration of Taking.

It developed early in the trial of five weeks that many of the original records, relating to both the "Brown Group" in Case No. 3472-JWC and the "Donna-Gill" claims in Case No. 311-ND, concerning the ownership and operation of both groups of claims, were in the office of George Acret, an attorney who died some years ago and whose wife thereafter destroyed all of the records (originals and copies) which Splane (one of the principal actors in the American Pumice Company in 1944 and before, and in other Companies which he operated) had left in the office of Acret. Even so, the evidence is sufficient to preponderate in favor of the ownership and possession of the Brown claims in Case No. 3472-JWC in the American Pumice Company on the date of filing the Complaint and on the date of filing the Declaration of Taking.

On the basis not only of the Stipulation, but also from the evidence, I conclude that the American Pumice Company was the owner of the mining claims involved in Case No. 3472-JWC, except "White Eagle Reserve," on February 23, 1944, the date of the filing of the Complaint, and on the date of the filing of the Declaration of Taking, to-wit, October 19, 1945.

No stipulation existed as to the ownership of "White Eagle Reserve." The American Pumice Company attempted to prove ownership by virtue of recording an Amended Notice of Location in 1962, long after this action was commenced. An amendment contemplates a change in, or correction of, something which did or does exist. I have examined my notes and have read the entire transcript again, and I cannot find any evidence that there was ever any original Notice of Location of the so-called "White Eagle Reserve." The witness Zimmer testified that he located the land and discovered a pumice deposit, and did some assessment work, but I find no testimony to the effect that there was ever a Notice of Location either posted on the property or recorded in the County Recorder's office until the Amended Notice of Location was recorded as above-mentioned. And the evidence is unconvincing that there was such possession of, and work on, that claim to bring it within the provisions of 30 U.S.C. § 38.

While an Amended Notice of Location can be made, and the Statutes are to be liberally construed in respect to posting, recording, and amending Notices, nevertheless there cannot be an Amended Notice of Location if there has been no original Notice of Location.

I hold that the claim to the White Eagle Reserve by the American Pumice Company is invalid.

OWNERSHIP

Donna-Gill Claims

Without tracing the evidence, it is sufficient to say that the evidence preponderates in favor of the ownership of the American Pumice Company of a lease and option on Donna No. 3 and No. 4, and Ray Gill No. 31, on the date the Complaint in Case No. 311-ND was filed on March 20, 1945, and on the date an Order for immediate possession was obtained, to-wit, March 30, 1945, and on the date the American Pumice Company vacated the premises on May 29, 1945.

An unusual and special problem of law arises in connection with this group of claims involved in Case No. 311-ND.

When the Complaint was originally filed, it included the Donna-Gill group. Thereafter, on the recommendation of the then appraiser for the United States (who was a valuation witness for the defendants at the trial), the lines of the Military Reservation were contracted so as to exclude Donna No. 3 and No. 4 and a portion of Ray Gill No. 31 from the boundary of the actual taking. A substantial portion of Ray Gill No. 31 remained within the boundaries. It is to be kept in mind that the American Pumice Company, pursuant to a notice of an Order for immediate possession, vacated the premises, dismantled its machinery, and closed the operation of the mines, on May 29, 1945. The revision of the boundaries and the Second Amended Complaint, in accordance with the revision, was made on August 22, 1945, but there was no evidence that this Amended Complaint was ever served upon the defendant American Pumice Company or any of its agents or attorneys as required by F.R.Civ.P. 5(a). I find that it was not. Nor is there any evidence that the American Pumice Company was ever apprised of any order permitting such amendment, or of the amendment itself. I find that it was not. To make matters further complicated, no Order of dismissal or Petition for dismissal of the Complaint in Condemnation, concerning Donna No. 3 and No. 4, or the portion of the Ray Gill claim No. 31 excluded on August 22, 1945, was made until more than 11 years after the American Pumice Company had been excluded, that is to say, the Order of dismissal of Donna No. 3 and No. 4 and the portion of Ray Gill No. 31, which was excluded, was not made until September 24, 1956. I find that this Order of dismissal was obtained without notice or...