Kane County, Utah v United States

County sued to obtain a judgment of right of way under an 1866 federal statute in several roads over federal land. The district court found it had jurisdiction under the federal Quiet Title Act and granted rights of way as to some roads and denied it as to others. The panel affirmed in part, reversed in part and remanded. It adopted a rule requiring actual or implicit dispute of title by actions of the federal government in order for jurisdiction to lie under the Act. It held that claims based on omitting certain roads from a map, granting permits which did not purport to interfere with existing rights of way or failing to answer whether or not the federal government had an interest in the land did not satisfy this standard and thus claims as to those roads were barred. It held that claims to the North Swag road were not time barred as the publication of a roadless areas list did use the statutory definition of road for right of way purposes and the federal government specifically declared that rights under 1866 statute were not impaired and a meeting with government officials did not make a claim adverse to the rights of way. As to the Swallow Park Road, the panel held that the general withdrawal of land around water sources in 1926 did not extinguish rights of way under the 1866 statute as it is inconceivable that Congress would protect private access to water then ban roads which would be the sole access to the water and the withdrawal did not set aside the land for a specific purpose. The panel held that the district court erred in setting the width of the rights of way to the North Swag, Swallow Park and Skutumpah roads as it failed to consider the uses before 1976 when a new statutory regime came into effect in setting the width and wrongly deprived the federal government of its consultation rights as to future improvements.

Wahlcomtroflex, Inc. v Westar Energy, Inc.

Wahlcomtroflex sued Westar seeking payment of contract funds withheld as liquidated damages. The district court granted summary judgment to Westar and the panel affirmed. It held the contract unambiguously did not require actual delay for the liquidated damages to be paid, Wahlcomtroflex stated in the contract that delays would cause damages which is normally conclusive under Kansas law and the damages provision was not a penalty as the damages were reasonable in light of anticipated damages from blackouts. One judge added a concurrence noting Walcontroflex’s argument is inconsistent with Kansas law.