Before the Court en banc. Opinion by Justice Saitta.
In this appeal, the Court dealt with two issues: 1) whether land in question was subject to an easement that the City was entitled to use; and 2) whether the City’s use constituted a taking. In 1956, the federal Bureau of Land Management (“BLM”) conveyed property by patent “subject to a right-of-way not exceeding 33 feet in width, for roadway and utility purposes.” In 2008, the City designated a 40-foot-wide strip of the property for use in the Cliff Shadows Parkway Improvement Plan. The City planned to use the 33 feet of right-of-way plus an additional 7 feet. The 33-foot easement was the subject of the takings analysis. The district court found that the City was not entitled to use the easement because it was not specifically named in the federal land patent. The district court also determined that the City’s use of the easement constituted a taking and that the easement should be disregarded when calculating just compensation, awarding full market value to the property owner. The Nevada Supreme Court reversed based on its interpretation of the language of the grant and the interpretation of similar language from other jurisdictions, determining that the language of the land patent did create an easement that the City could use. The use of the term “right-of-way” refers to an easement, and the use of “subject to” creates that easement. The Court further stated that any ambiguities in federal land patents are construed in favor of the government. The Court further found that the City’s use of the property was within the scope of the easement, although the interpretation of an easement is strictly construed in favor of the landowner. The property owner unsuccessfully argued that the easement could only be used if the City’s improvements directly benefited the property owner. The Court held that a taking does not occur when the government uses its own previously created easement without exceeding the easement’s scope. The easement existed when the property owner purchased the property. Because the City utilized a valid easement, the Court did not analyze the issue regarding the calculation of just compensation. Reversed in part, vacated in part, and remanded. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson).
