United States v. 9,947.71 ACRES OF LAND, ETC.

• Citation: 220 F. Supp. 328
• Decision Date: 19 July 1963
• Docket Number: Civ. No. 29.
• Parties: UNITED STATES of America, Plaintiff, v. 9,947.71 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF CLARK, STATE OF NEVADA, L. R. Harris, et al., Defendants.
• Court: U.S. District Court — District of Nevada

220 F. Supp. 328

UNITED STATES of America, Plaintiff, v. 9,947.71 ACRES OF LAND, MORE OR LESS, IN the COUNTY OF CLARK, STATE OF NEVADA, L. R. Harris, et al., Defendants.

Civ. No. 29.

United States District Court D. Nevada.

July 19, 1963.

John W. Bonner, U. S. Atty., Thomas R. C. Wilson, II, Asst. U. S. Atty., Richard J. Dauber, Sp. Asst. to the U. S. Atty., Reno, Nev., for plaintiff.

Graves & Compton, Las Vegas, Nev., Lonergan & Jordan, San Bernardino, Cal., for Stauffer Chemical Co.

Prince A. Hawkins, Hawkins, Rhoades & Hawkins, Reno, Nev., Edward E. Kallgren, Brobeck, Phleger & Harrison, San Francisco, Cal., for Fibreboard Paper Products Co.

PEIRSON M. HALL, District Judge.

The question to be resolved is whether or not defendants, Fibreboard Paper Products Corporation (Fibreboard), and Stauffer Chemical Co. (Stauffer) had a compensable property interest in a certain road at the time the United States filed its suit in condemnation and secured an order for possession, which was October 12 and 13, 1952, hereafter referred to as the date of "taking". The land taken in condemnation is and has been known as "Lake Mead Base", a military installation.

This memorandum is based on a stipulation of facts, and a supplemental stipulation of facts, as they were clarified by statements of counsel on argument. A map showing the road, the mining claims which it served, and the area taken by the United States in this case was attached to the stipulation, and from it was extracted certain information hereinafter set forth.

Many years prior to the taking, predecessors in interest of both Stauffer and Fibreboard located and maintained valid mining claims for gypsum and other nonmetallic substances, under the mining laws of the United States. Some were lode and some were placer. Some of the claims were patented before the "taking", and some since, and there is no question raised in these proceedings as to the validity of the mining claims involved. The Stauffer group claims were known as the Anniversary claims and the Fibreboard claims, as the Lovell claims. All claims were completely surrounded by the Public Domain, and no surface access, either ingress or egress, could be had, except over and across public lands of the United States. The Anniversary claims are 10 to 15 miles farther from a public highway and railroad than the Lovell claims and were located and worked upon prior, in point of time, to the Lovell claims. In 1921 Stauffer's predecessors built a road about 20 to 25 miles in length across public lands from the Union Pacific Railroad at a point near the S. W. corner of Sec. 15, T. 19, S. R. 62 E., M. D. B. M. southeasterly, through what are now the Lovell claims, to the Anniversary claims in sections 10, 11, 14, 15, and 23, T., 20 S * * * R. 65 E., M. D. B. & M., which is about 6 miles south and 20 miles east from the railroad. This road was constructed through a mountain pass and was meanderingly laid out so as to require a minimum length of haul over the lowest possible grade in the rough mountainous country. The road crossed what is now U.S. Highway 91-93, about 3 miles from the railroad, thus giving access to both the railroad and said Highway. Beginning at said Highway, the road passed through the land taken in this case for Lake Mead Base for a distance of about 7 miles, which is the only portion of the road we are concerned with here.

The Anniversary group (Stauffer) used the entire road in connection with active mining operations on the claims from 1921 to 1928, and thereafter, until the date of "taking" in 1952, used it in connection with annual assessment work, a watchman, intermittent visits by engineers, and the transportation of men, materials, supplies, equipment, machinery and ore incident to such operations.

The Lovell group (Fibreboard) used the portion of the road between its claims and the railroad in connection with active mining operation on the claims from 1939 to 1949, and thereafter, until the date of "taking" in 1952, used it for inspection and maintenance of the mine and annual assessment work, and the transportation of men, materials, supplies, equipment, machinery, and ore incident to such operations.

Such use by both groups involved the use of the portion of the road passing through the area which was taken in the within action.

Stauffer's predecessor in 1924 filed a certificate under the Nevada Statutes (Act of Mar. 8, 1865; NCL Sec. 5448; Sec. 406.020 NRS) for a toll road covering a portion of the road, and in 1939 sold its rights thereunder to Fibreboard's predecessor, who thereupon (1939), filed an eminent domain action to condemn, and secured a judgment of condemnation in the Nevada State Court covering not only all of the road involved in the instant proceedings, but an additional stretch of road beyond the land taken herein sufficient to reach the Lovell claims, but not any portion of the road beyond the Lovell claims which led to the Anniversary claims. The defendants were the County of Clark and several owners of mining claims, all of whom disclaimed. The United States was not a party. It could have appeared. (1911 C.P.A. Sec. 671; NCL, Sec. 9160; NRS Sec. 37.080). Mining was declared to be a public use by the Nevada Statutes of 1887 (NCL, Sec. 4154, NRS 516.010), and, miners were authorized to condemn roads for all mining purposes by Nevada Civil Practice Act of 1911, Sec. 664 (NCL, Sec. 9153; NRS 37.010), as were those who complied with the Nevada Statutes for toll roads (NCL, Sec. 5450; NRS 406.040).

The area taken by the United States in these proceedings is about 12 square miles, and, as above noted, within the perimeter thereof is included approximately the first seven miles of the road which lies easterly from U.S. Highway 91-93. None of the mining claims are included in the instant "taking", nor is any of the road easterly of the "taking" to the mines. Since the date of "taking" the use of the portion of the road within the present "taking" has been denied to both Stauffer and Fibreboard by the United States as well as the public generally. This being the only vehicular surface access to defendants' mining claims such denial has effectively prevented both Stauffer and Fibreboard from having access to their claims, unless they built new roads over other public lands.

The position of counsel for the government briefly stated is that neither defendant had any right in and to the road which constituted "private property" for which either of them is entitled to "just compensation" under the Fifth Amendment to the Constitution of the United States, for two reasons: (1) the fee title to the land over which the road traversed has always been in the United States and the United States has done nothing, by statutory grant or otherwise to vest a property interest in the road in either defendant, and (2) that any interest which might be adverse to the United States was an interest which constituted the road a public highway, and that all public highways are specifically excluded from the "taking".

The defendants do not claim they had any right to the fee title of the land, but do assert that the Acts of Congress relating to mining coupled with the acts of the actual construction of the road and its use in the operation of their mining claims, buttressed by their compliance with the Nevada Statutes relating to toll roads and eminent domain proceedings for the road, gave them such right to the use of the road as to amount to a private property right for which they are entitled to just compensation.

Counsel for the parties state that there is a paucity of case authority on the precise question involved.

It is not difficult to perceive that such lack of case authority arises from the sheer logic of the proposition that, when the government granted mining rights on the vast mountainous, and often impassable, areas of the West which were in public domain, accessible only by passing over the public domain, it granted, as a necessary corollary to mining rights, the right not only to pass over the public domain but also a property right to the continued use of such roadway or trail, once it was established and used for that purpose. To realize the force of the proposition just stated, one need but to raise their eyes, when traveling through the West to see the innumerable roads and trails that lead off, and on, through the public domain, into the wilderness where some prospector has found a stake (or broke his heart) or a homesteader has found the valley of his dreams and laboriously and sometimes at very great expense built a road to conform to the terrain, and which in many instances is the only possible surface access to the property by vehicles required to haul heavy equipment, supplies and machinery.

If the builders of such roads to property surrounded by the public domain had only a right thereto revocable at the will of the government, and had no property right to maintain and use them after the roads were once built, then the rights granted for development and settlement of the public domain, whether for mining, homesteading, townsite, mill sites, lumbering, or other uses, would have been a delusion and a cruel and empty vision, inasmuch as the claim would be lost by loss of access, as well as the investment therein, which in many cases of mines required large sums of money, before a return could be had.

Congress did not leave the rights of miners and others to such chance, but passed the Act of July 26, 1866, (14 Stat. 251;¹ which declared in Section 1 thereof (30 U.S.C. § 22) that the mineral lands of the public domain were open to exploration and occupation, subject to regulations as may be prescribed by law and subject also to local customs and rules of miners so far as such may not be in conflict with the laws of the United States. Other sections provided for perfecting title to claims and for sale or patent thereof to the claimant. Section 5 (30 U.S.C....