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In its application, which was filed on July 29, 1964, the company asked that the provisions of 43 CFR, 1964 Supp., 2234.4–1(c)(5) be waived. These provisions, briefly, require an applicant for a rightof-way for a transmission line having a voltage of 33 kilovolts or more to file a stipulation agreeing to allow this Department to utilize for the transmission of power any surplus capacity of the line or to increase the capacity of the line for that purpose. The expense is to be borne by the Department, and other detailed terms and conditions governing the exercise of the right by the Department are prescribed in the regulations.

The manager ruled that he could not waive the requirements of section 2234.4–1(c)(5) and that the company must agree to those requirements.

In its appeal, the company generally asserts that the provisions are unreasonable, arbitrary, and unconstitutional. More specifically, it states that the proposed transmission line was planned and agreed upon by the Atomic Energy Commission, acting for the United States, that other officers and employees of the United States do not have authority to impose additional conditions in the contract between the company and the Commission, and that if the right-of-way is denied for failure of the company to accept the illegal terms and conditions it will be impossible for the company to comply with the contract.

The validity of the regulations under attack was thoroughly discussed and sustained by a decision of the Director, Bureau of Land Management, dated May 28, 1964 (Los Angeles 096498), which was recently affirmed by the Department in Southern California Edison Company, 71 I.D. 405 (A-30325, November 3, 1964). There is no need to repeat the discussion. The only point requiring consideration in this appeal is the argument of the company concerning its contract with the United States, acting through the Atomic Energy Commission.

A reading of the contract (Modification No. 2, Supplemental Agreement executed November 13, 1963, to Contract AT (29–1)-1518) reveals no support whatsoever for the company's contentions. The only provision in the contract relating to the construction of the transmission line and rights-of-way for the line is to be found in subsection 1.c. of Article II. This subsection provides in part

c. The Contractor (appellant], in addition, agrees that it will construet, oper ate and maintain at its sole expense a 115,000 volt * * * transmission line * * * The (Atomic Energy] Commission agrees that, upon request of the Contractor, it will enter into an agreement with the Contractor to provide a reasonable license, permit or easement (as may be selected by the Commission) for sufficient "right-of-way,” for a reasonable length of time, to the Contractor for November 17, 1964

the construction and operation of said transmission line over Government-owned land under the jurisdiction of the Commission in Los Alamos County. *

The last sentence quoted obviously pertains only to land under the jurisdiction of the Atomic Energy Commission in Los Alamos County. The right-of-way sought here is across public land under the jurisdiction of this Department in Sandoval County. Clearly under the contract any other rights-of-way like all other elements necessary for the contractor to provide the transmission line "at its sole expense" remains the contractor's responsibility.

It is plain too that this Department is not attempting to impose any additional conditions in the contract. The matter of the right-of-way sought here and the conditions necessary to acquire it are wholly outside the scope of the obligations undertaken on behalf of the United States under the contract.

The company has established no basis for modification of the decision of the Santa Fe, New Mexico, land office.

Therefore, pursuant to the authority delegated to the Solicitor by the Secretary of the Interior (210 IM 2.2A (4) (a); 24 F.R. 1348), the decision appealed from is affirmed.

EDWARD WEINBERG,

Acting Solicitor.

NORA BEATRICE KELLEY HOWERTON

A-30109

Decided November 17, 1964

Color or Claim of Title: Applications Color or Claim of Title: Good Faith A color of title application is properly rejected where the deeds under which

the tract applied for has been claimed have a description from which it is impossible to define and limit the tract applied for with any certainty, and also where it appears that the appellant cannot establish a holding of the tract in good faith for 20 years since she held it for less than that period and her immediate predecessor-in-interest was aware of the superior title in the United States when he conveyed to her since he had previously filed a color of title application for the tract which had been rejected, and, therefore, his holding could not be tacked on to hers to establish the requisite period.

APPEAL FROM THE BUREAU OF LAND MANAGEMENT

Mrs. Nora Beatrice Kelley Howerton has appealed to the Secretary of the Interior from a decision by the Division of Appeals, Bureau of Land Management, dated June 20, 1963, affirming a land office

757-277-64

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decision rejecting her application to purchase a tract of land allegedly held by her under a claim or color of title. The rejection was on two grounds: that the deeds through which appellant claims the land do not describe it with any degree of certainty; and that the appellant had not shown that her occupation of the tract applied for was founded on any reasonable basis for a belief that the land was held in good faith under a valid claim.

The appellant's application was filed under the Color of Title Act of December 22, 1928, 45 Stat. 1069, as amended by the act of July 28, 1953, 67 Stat. 227, 43 U.S.C. SS 1068, 1068a (1958), as a class 1 claim, so designated by departmental regulations, 43 CFR, 1964 Supp., 2214.1-1(b), formerly 43 CFR, 1964 rev., 140.3. As provided by the act, class 1 claims are those where purchase must be allowed if it is shown to the satisfaction of the Secretary of the Interior that:

a tract of public land has been held in good faith and in peaceful, adverse, possession by a claimant, his ancestors or grantors, under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation

The appellant traces her color of title back to probate proceedings instituted in 1898 relating to the Estate of F. S. Quigley. In 1899 the probate judge authorized the administrator of the Estate to sell certain real property in the Estate. By a deed dated January 19, 1900, the Estate conveyed certain property to Achilli Regozzio, who later conveyed to J. B. Holley, who in turn conveyed it to Hoyt Clayton Neer on May 26, 1917. It appears that Neer is the appellant's brother. He conveyed it to their father, H. Clarence Neer, on May 9, 1929, who conveyed the land to the appellant by deed dated August 25, 1952. In the probate proceedings and in all the subsequent deeds, the description as to the tract which appellant claims was conveyed thereby is substantially as follows:

A strip of land lying on the south boundary of the S.W.44 of the N.E.14 of Sec. 24, Tp. 26 N.R. 9 E. M.D.M., and lying between the south line of the Yale Placer Claim and north boundary of Crescent Town Site, with the house, barn and other improvements thereon.'

The appellant also furnished a metes and bounds description of the claimed tract which was run for her by a private surveyor. From this description it appears that the tract is part of lot 7 of sec. 24 of the above mentioned township and is in Plumas County, California.

1 The land office decision and a statement by a title company dated July 10, 1961, on Bureau Form 4-1251, listing the conveyances, both apparently erroneously omitted the reference to the SW44 and simply described the land as lying on the “South boundary of the NE 44 of sec. 24." A previous statement by the same company, dated December 23, 1960, gives the description as above.

November 17, 1964

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The decision below pointed out that the description in the deeds was inadequate and indefinite. It referred to the fact that the only mining claim shown on county records as being in the immediate vicinity of the tract claimed which may have been used in the description is a “Yale Placer Mine," which was located by Daniel Doherty on June 29, 1901, and which had been "surveyed for location, but that the description of that claim would make its south boundary identical with the north boundary of the Crescent Townsite. Thus, as appellant concedes, there would be no in-between area which would include the tract described in the probate proceedings.

Appellant, however, objects to the finding that the description is inadequate to identify the tract, asserting that she was not responsible for the description, but that the description was first given in the probate proceedings and in the subsequent conveyances. She denies that the Yale Placer Mine is the same as the Yale Placer Claim referred to in the description because of the slight difference in the name and because the location notice of the Yale Placer Mine was recorded after the description referring to a Yale Placer Claim had been used in the probate proceedings and the first conveyance in 1900. She states that there are several recorded mining claims of the same name in other townships in the county and that therefore the Doherty claim may not be the only Yale Placer Claim which could have been used and that there could have been another claim which was not indexed in the county records by that name.

The difficulty with appellant's contentions is that she does not satisfactorily explain the reference to the Yale Placer Claim or show that there was some identification which could be relied on by anyone referring to the deeds to ascertain where the tract is located on the ground. Indeed, she has submitted affidavits from residents of the area, who, although saying they thought she, her father, and brother were owners of the land they occupied, also state that they do not know of any Yale Placer Claim in the area.

With respect to the fact that the Yale Placer Mine does cover the area applied for, she alleges that it is not a valid mining claim because it was abandoned the year after location by the failure of the locator to do the annual required assessment. She alleges that whoever prepared the description in the Quigley Estate proceedings must have been referring to another Yale Placer Claim or they were mistaken as to the physical location of the Doherty claim.

In order to give color of title to an occupancy of land, the land must be held under some deed or other instrument which describes the tract with some certainty. See Karvonen v. Dyer, 261 F. 2d 671 (9th Cir. 1958). It is apparent that appellant still is not certain as to the exact area which the deeds she relies on purportedly conveyed. Although appellant contends that the Bureau decision overlooked the invalidity of the Yale Placer Mine claim, the invalidity or validity of that claim is not the criterion here insofar as determining whether a known boundary of that claim was a boundary of the tract for which appellant alleges she has a color or claim of title. Likewise, the affidavits showing no knowledge by persons in the area of any Yale Placer Claim do not help, for if no one knew of such a claim and if there is no recorded description of any other claim bearing that name or some other means of identifying its boundaries to which reference might be made, it would be impossible to ascertain the limits of the tract in question here since one of its boundaries is dependent upon ascertaining the boundary of the Yale Placer Claim.

Aside from this problem, the description also appears to be inadequate to establish the north boundary of the claimed tract. A letter dated August 1, 1961, by appellant's surveyor explaining how he ran the survey indicates that he used an existing roadway to delineate the north boundary of the tract since the claimant was not occupying more than the area south of the roadway and did not desire land north of it, although appellant would apparently claim that there is land which lies between the roadway and the Yale Placer Claim. Thus, the tract appellant desires to purchase apparently is a smaller one than the one allegedly described in the deeds although the actual area so described remains undefined. In addition to the deficiencies in the land description already mentioned, it is noted also that there are no aids or references in the description which would establish the limits of the east and west boundaries of the tract.

The uncertainty and inadequacy of description also are relevant to the question of good faith which was raised in the decision below. For the purpose of this decision, however, it will be unnecessary to discuss some of the points raised below and by the appellant since they are superseded by a more fundamental issue with respect to the requirement of a holding “in good faith" for more than 20 years under the Color of Title Act.

Assuming the good faith of the appellant, it is noted that she had not held the tract for the requisite 20-year period when she filed her application on March 28, 1961, because she acquired her interest in 1952 when her father deeded the tract to her. The Color of Title Act, however, permits the “tacking"on of a holding under color of title in good faith by the grantors or ancestors of a claimant to make up the requisite 20-year period so that the 20-year period here could be made up by a holding in good faith by appellant's immediate predecessor

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