United States of America v. St. Clair et al

Filing 78

ORDER denying 39 Motion for Summary Judgment. ORDERED that Plaintiff's cross motion for summary judgment contained in its Response 42 is DENIED, by Judge Raymond P. Moore on 2/25/2014.(trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 11-cv-02857-RM-KLM
UNITED STATES OF AMERICA,
Plaintiff,
v.
LAVERNE ST. CLAIR and
BEVERLY ST. CLAIR,
Defendants.

ORDER

THIS MATTER is before the Court on Defendants Laverne St. Clair and Beverly St.
Clair’s (“Defendants”) Motion for Summary Judgment (“Motion”) (ECF No. 39) and Plaintiff
United States of America’s (“Plaintiff”) cross motion for partial summary judgment (“Cross
Motion”) contained in its response (ECF No. 42). The parties’ dispute centers on the ownership
of 7.856 acres of land which Plaintiff contends are contained in “Lot 6.” At issue in Defendants’
Motion is whether Plaintiff’s claims are barred by the statute of limitations. At issue in
Plaintiff’s Cross Motion is whether it has established, as a matter of law, the land in dispute is
located outside of a land patent upon which Defendants rely for their claim of ownership. This
Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1345. Upon consideration of the
Motion, Plaintiff’s Response, Defendants’ Reply (ECF No. 49), the Court file, and the applicable
law, the Defendants’ Motion and Plaintiff’s Cross Motion are denied for the reasons stated
below.

I. FACTUAL BACKGROUND
A “township” is the way in which public lands of the United States must be surveyed by
dividing lines intersecting true north and south lines at right angles so as to form an area of sixmiles square. Each township is subdivided into 36 “sections,” on six rows of six, each of which
is one-mile square and contains 640 acres as nearly as possible. A township’s sections are
numbered beginning in the northeast section, proceeding west and east alternatively through the
township from 1 to 36. A township’s section contains 640 acres; a half section contains 320
acres; a quarter section contains 160 acres; and a “half” of a quarter section 80 acres.1 A
description of land that employs these fractional terms is called an “aliquot parts” description.
In 1877, U.S. Deputy Surveyor J.S. Fahringer of the General Land Office conducted a
survey (“Fahringer Survey”) of Township 36 North, Range 9 West, New Mexico Meridian,
which included Section 33 of Township 36. The Fahringer Survey did not create any lots in
Section 33. There are undisputedly “errors” in the Fahringer Survey, but the extent of such
errors is disputed.
On October 19, 1881, Plaintiff issued to Walter H. Overocker a patent (“Overocker
Patent”) for an area described as the S ½ NE ¼ and N ½ SE ¼ of Section 33, Township 36
North, Range 9 West, New Mexico Meridian, stated to contain 160 acres. Subsequently, other
surveys were conducted concerning Township 36, such as the Gove survey, Clark survey and
Storm survey. The nature of such surveys and their impact on the Overocker Patent are disputed.
By 1891, lots were created in Township 36, with the Overocker Patent depicted as located in
Lots 8 and 9 of Section 33 and Lot 2 of Section 34, and the disputed acres depicted as located in
Lot 6 of Section 33. Exactly when such lots were created and their impact on the Overocker

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There is a dispute over whether these sections may contain slightly more or less than such acreages, but this
dispute is not material at this time in light of the Court’s resolution of the Motion and Cross Motion.

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Patent are disputed, e.g., whether they accurately reflect the survey field notes on which such
depictions are based.
Between 1881 and 1951, the property covered by the Overocker Patent was sold,
transferred or otherwise conveyed numerous times. In May 1967, Angelo Dallabetta conveyed
land to Defendant Lavern St. Clair and his then-wife, describing the land as in Lot 9, Section 33
and also by metes and bounds. In June 1976, Defendant Lavern St. Clair executed a deed in
order to create a joint tenancy between him and Defendant Beverly St. Clair, describing the land
as in Lot 9, Section 33 and also by metes and bounds.
On May 25, 1984, Defendant Lavern St. Clair obtained a quit claim deed from the
Angelo Dallabetta Trust which stated, in part, that it conveyed the following described property:
“A tract of land lying and being in the N ½ SE ¼ of Section 33, Township 36 North, Range 9
West, N.M.P.M. more particularly described as follows…and containing 7.856 acres.” The deed
also references the land as lying west of Lot 9. If the 7.856 acres are a part of the Overocker
Patent, the total acreage for the patent would exceed 160 acres. The effect, if any, of this fact is
disputed.
On November 2, 2011, more than 100 years after the issuance of the Overocker Patent,
Plaintiff filed this action against Defendants alleging claims for ejectment and trespass. Plaintiff
seeks to eject Defendants from and enjoin their occupancy of Lot 6 and recover monetary
damages arising from Defendants’ alleged trespass.
II. ANALYSIS
“Summary judgment is appropriate if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” E.E.O.C. v.
Abercrombie & Fitch Stores, Inc., 731 F.3d 1106, 1116 (10th Cir. 2013) (internal alterations and

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quotation marks omitted). In evaluating the summary judgment motion, the court “view[s] the
facts, and all reasonable inferences those facts support, in the light most favorable to the
nonmoving party.” Simmons v. Sykes Enter., Inc., 647 F.3d 943, 947 (10th Cir. 2011). If there is
no genuine issue of material fact in dispute, the Court determines the correct application of the
substantive law and examines the factual record and reasonable inferences therefrom in the light
most favorable to the nonmoving party. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., supra at
1116; Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1246 (10th Cir. 2010).
A.

The Statute of Limitations.

Congress recognized long ago there should be a statute of limitations such that “when its
proper officers, acting in the ordinary course of their duties, have conveyed away lands which
belonged to the government, such conveyances should, after the lapse of a prescribed time, be
conclusive against the government.” United States v. Winona & St. P.R. CO., 165 U.S. 463, 476
(1897); see also, e.g., United States v. Whited & Wheless, Ltd., 246 U.S. 552, 562 (1918). Thus,
under the Act of March 3, 1891 (“Act”), suits by the United States to vacate or annul patents
issued prior to the passage of the Act must be brought within five years from the passage of the
Act.2 Whited & Wheless, Ltd., supra at 560; see Wollan v. U.S. Dept. of Interior, 997 F.Supp.
1397, 1401-1402 (D.Colo. 1998) (action by claimant, standing in shoe of the government, for
rescission of land conveyances barred by 43 U.S.C. § 1166). Statutes which bar the United
States from asserting rights are to be strictly construed, Whited & Wheless, Ltd., supra at 561,
and, accordingly, the Act is limited to suits to “vacate and annul” patents. Id. at 562.

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Currently, pursuant to 43 U.S.C. § 1166, “[s]uits by the United States to vacate and annul any patent shall only be
brought within six years after the date of the issuance of such patents.” Plaintiff did not dispute Defendants’
reliance on the Act’s five year statute of limitations. In light of the age of the Overocker Patent, if this statute of
limitations otherwise applies, it matters not whether the former five year bar under the Act or current six year bar
under § 1166 applies.

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The limitations of the Act were acknowledged in Whited & Wheless, Ltd., where the
Supreme Court reversed the lower court’s dismissal, as time barred, of the United States’ suit
brought in 1914 to recover the value of public lands described in an 1898 patent allegedly
procured by fraud. The Supreme Court noted that if the case was one to “vacate and annul” the
patent, it would be barred. Id. at 560. The case, however, was one to recover damages and,
therefore, the issue was whether the Act barred a suit for the value of land fraudulently procured
to be patented. The action was determined not barred because that statute of limitations “relates
to the remedy, and in terms applies only to one remedy, that for annulling the patent.” Id. at 561.
See, e.g., Lee Wilson & Co. v. United States, 245 U.S. 24, 31-32 (1917) (action to quiet title,
where United States sought to correct mistake on a survey, not barred by Act, rejecting
contention that rested on “unsound assumption that the correction of such a mistake [was] an
attempt to vacate or annul the patent”); United States v. Winona & St. P.R. Co., supra at 476
(action for cancellation of certification governed by statute of limitations to vacate or annul
patents).
In this case, Defendants argue the disputed acreage was conveyed as part of the
Overocker Patent and, therefore, Plaintiff can only claim title to that property if the Overocker
Patent was somehow invalid or excluded the subject property. Relying predominately on United
States v. Chandler-Dunbar Water Power Co., 209 U.S. 447, 449-450 (1908), Defendants argue
Plaintiff is challenging the validity of that patent and, as such, is barred from doing so under the
Act. Plaintiff argues that its suit does not attempt to vacate or annul a patent but accepts the
Overocker Patent’s validity, and that Defendants’ reliance on Chandler-Dunbar Water Power
Co. is misplaced. The Court agrees.

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In Chandler-Dunbar Water Power Co., the United States sought to remove a cloud from
its alleged title to two islands which defendant claimed under a patent, arguing the patent was
void as the land had been reserved. The Supreme Court stated there was “force in the contention
… that the land was reserved … [but] we are of the opinion that now the patent must be assumed
to be good,” id. at 449-450, due to the statute of limitations. The Supreme Court went on further
to state that: “[i]n form the statute only bars suits to annul the patent. But statutes of limitation,
with regard to land . . . are held to affect the right, even if in terms only directed against the
remedy.” Id. at 450. Unlike Chandler-Dunbar Water Power Co., however, here, there is no
request – express or implied – to annul, vacate or otherwise void the Overocker Patent.
An examination of the papers and the parties’ arguments shows that each side’s position
is premised on title to the dispute acreage, with Defendants arguing that the acreage is clearly
included on the face of the Overocker Patent and Plaintiff arguing that the acreage is in its Lot 6
which is not a part of the Overocker Patent. It appears to the Court that the parties’ dispute
concerns whether the 7.856 acres lies within or outside the Overocker Patent, the resolution of
which would not require vacating or annulling such patent. Accordingly, the Act does not apply
to bar Plaintiff’s claims.
B.

The Ownership of the 7.856 Acres.

In Plaintiff’s Response, it seeks partial summary judgment on the issue of the ownership
of the disputed 7.856 acres – that such acres are located in Lot 6 owned by Plaintiff. Defendants
object on two bases: (1) dispositive motions were due by November 2012; and (2) there are
genuine disputes of material facts as to this issue. The Court agrees with Defendants.
Under the Scheduling Order, as modified, dispositive motions were due by November 16,
2012. (ECF No. 38.) Plaintiff’s Cross Motion was contained in its Response filed December 14,

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2012, almost a month after the due date and without leave of the Court. Moreover,
D.C.COLO.LCivR 56.1, expressly states that a cross motion for summary judgment shall not be
included in a response brief but, instead, must be made in a separate motion. This Local Rule
was also disregarded. Finally, the record shows there are genuine disputes of material facts as to
the ownership of the acres at issue. Essentially, the parties rely on their experts to establish
whether the disputed acres are or are not included under the Overocker Patent, and the opinions
of one expert are disputed by another.
For example, Defendants’ experts opined the subsequent creation of Lot 6 lotted over a
portion of the property conveyed in the Overocker Patent – property which had already been
removed from the public domain and not subject to being replatted without permission. They
opined the disputed acres are located in the Overocker Patent. Plaintiff’s expert, on the other
hand, opined the Overocker Patent is in what became described as Lots 8 and 9 in Section 33 and
Lot 2 in Section 34, and that only the description of the Overocker Patent changed, not its
physical location. Plaintiff’s expert further opined the disputed acres are located in Lot 6 which
the Overocker Patent did not extend into and, accordingly, the acres are owned by Plaintiff.
Such conflicting opinions in turn rely on the experts’ interpretation of records, many of which
are not before the Court for its consideration.
III. CONCLUSION
Based on the foregoing, the undisputed material facts show Plaintiff’s claims are not
barred by the statute of limitations under the Act of March 3, 1891. On the other hand, genuine
disputes of material facts exist as to the ownership of the 7.856 acres. Accordingly, it is

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ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 39) is hereby
DENIED; and
FURTHER ORDERED that Plaintiff’s cross motion for summary judgment contained in
its Response (ECF No. 42) is DENIED.
Dated this 25th day of February, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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