Amoco Production Co. v. United States
619 F.2d 1383 (10th Cir. 1980)

MCKAY, J. In 1942, the Federal Farm Mortgage Corporation (FFMC) conveyed by special warranty deed a fee simple interest in certain land in Summit County, Utah, to Hyrum and Florence Newton. The original deed and all copies other than a recorded version kept in the Summit County Recorder's Office are apparently no longer in existence. The parties dispute the exact contents of the original 1942 deed. Appellants claim that the deed reserved to the FFMC a one-half mineral interest in the property. As recorded, however, the deed contains no such reservation.

In 1957, the FFMC conveyed by quitclaim deed to the United States all of its mineral interest in various tracts of property, including the Newtons' property. The United States subsequently leased its claimed one-half mineral interest to the other appellants in this case.

In 1960, the Newtons conveyed their entire interest in the property to a family corporation, the Hyrum J. Newton & Sons Sheep Company (Newton Company). Beginning in 1971, this family corporation leased the entire mineral interest in the property to the appellees.

Appellees brought suit on January 21, 1976, under 28 U.S.C. 2409a to quiet title to the disputed mineral rights.... [The appellees moved for summary judgment.]

[T]he district court was faced with two alternative approaches to resolve the merits of the dispute. The court could have determined whether the Newton Company or any of its successors in interest was a bona fide purchaser sufficient to cut off any interest in the appellants. The court selected, however, to decide first whether FFMC conveyed the disputed mineral interest to the Newtons in the 1942 deed, or whether it reserved the interest to itself. If the original 1942 deed contained no mineral reservation clause, the appellants obviously have no mineral interest in the property.

Because appellees brought this quiet title action, they have the burden of establishing their title to the disputed interest. By introducing the recorded version of the deed, which showed that they received the entire interest in the property, appellees established a prima facie right to relief. See Utah Code Ann. 78-25-3 (1953). The burden then shifted to the appellants to introduce evidence of the invalidity or inaccuracy of the recorded version of the deed. In granting summary judgment, the court excluded all of the evidence proffered by appellants.


The appellants offered evidence in an attempt to show that the routine practice of the FFMC was to reserve a one-half mineral interest in all property transferred during the relevant period. The court excluded this evidence on the ground that under Rule 1005 of the Federal Rules of Evidence, the availability of a properly recorded version of the 1942 deed precluded admission of any other evidence of the contents of the deed. We believe the court misinterpreted the purpose and effect of Rule 1005....

The notes of the Advisory Committee on the proposed rules of evidence help explain the purpose of this rule:

Public records call for somewhat different treatment. Removing them from their usual place of keeping would be attended by serious inconvenience to the public and to the custodian. As a consequence judicial decisions and statutes commonly hold that no explanation need be given for failure to produce the original of a public record.... This blanket dispensation from producing or accounting for the original would open the door to the introduction of every kind of secondary evidence of contents of public records were it not for the preference given certified or compared copies. Recognition of degrees of secondary evidence in this situation is an appropriate quid pro quo for not applying the requirement of producing the original.

Rule 1005 authorizes the admission of certified copies of records and documents filed and stored in public offices. The purpose of the rule is to eliminate the necessity of the custodian of public records producing the originals in court. This purpose is not furthered by extending the rule to encompass documents not filed and stored in public offices.

Rule 1005, by its terms, extends to "a document authorized to be recorded or filed and actually recorded or filed." This language encompasses deeds, mortgages and other documents filed in a county recorder's office. However, it is the actual record maintained by the public office which is the object of Rule 1005, not the original deed from which the record is made. If the original deed is returned to the parties after it is recorded, it is not a public record as contemplated by Rule 1005.

Applying Rule 1005 to exclude all other evidence of the contents of a deed is especially troublesome in a case such as this one. We cannot embrace an interpretation of the Rule which would exclude all evidence of the original deed other than the recorded version when the very question in controversy is whether the original deed was correctly transcribed onto the recorded version. Rule 1004(1), which authorizes the admission of other evidence of the contents of a writing if all originals are lost or destroyed, rather than Rule 1005, is applicable to the 1942 deed.(1) Accordingly, assuming it is otherwise admissible, evidence of a routine practice of the FFMC is relevant to prove conduct under Rule 406, and is admissible in lieu of the original under Rule 1004(1). Even if the evidence is not extremely probative, as indicated by the court, it is sufficient to create a question of fact and render summary judgment improper. Accordingly, the case must be remanded for the district court to consider admissibility of the evidence under a proper interpretation of Rules 1004 and 1005.


The appellants offered into evidence a photocopy of what is purportedly a conformed copy of the 1942 deed. The copy was found in a case file of the Bureau of Land Management (BLM). In excluding the file copy, the court indicated that it was "apparently incapable of being properly authenticated," and, in any event, admission would be "unfair" under Rule 1003 of the Federal Rules of Evidence.

Documentary evidence introduced in federal courts must be authenticated under the provisions of Rules 901 or 902 of the Federal Rules of Evidence. Specifically, the proponent of such evidence must produce evidence "sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a). The district court did not decide that the file copy could not be properly authenticated, but rather that it was "apparently incapable" of proper authentication. On remand, the appellants should be given the opportunity to properly authenticate the file copy under the provisions of Rule 901.(2)

The court also excluded the file copy on the ground that it would be "unfair to admit the duplicate in lieu of the original" under Rule 1003.(3) The trial court felt that admission of the file copy would be unfair because the most critical part of the original conformed copy (the reservation clause) is not completely reproduced in the "duplicate." We find no abuse of discretion in this holding.

In determining that admission of the file copy would be "unfair," the court was apparently considering admission for purposes of proving the contents of the original conformed copy (and ultimately, the original 1942 deed). However, the appellants also urge admissibility of the file copy for other purposes. They argue that the file copy supports their claim that the original 1942 deed was prepared on standard form 657, that it bears the same identification number as the county recorder's copy and the Federal Land Bank ledger, and that it demonstrates the physical length of the land description, supporting the theory that a flapped attachment was used on the 1942 deed. Even if admission of the file copy is unfair for the purpose of proving the contents of the original conformed copy, it may not be unfair for other purposes. Assuming the appellants can satisfactorily authenticate the file copy, on remand the district court should consider admissibility for these purposes.


The appellants urge that the district court improperly failed to consider an official BLM land office plat and a historical index which reflect the government's retained mineral interest. The court did not rule on this evidence, but said in a footnote: "[D]efendants allege that certain official land office plats or indexes reflect a mineral reservation in the federal government. The court, however, has seen no evidence supporting this allegation or the inference defendants wish to be drawn therefrom."

In fact, the evidence was before the court. The index and plat were submitted by some of the appellants as exhibits to a July 6, 1976, motion for summary judgment. Furthermore, they were specifically mentioned in the appellants' memorandum in opposition to the appellees' motion for summary judgment. Accordingly, on remand the district court should consider this evidence.(4)


The appellants also offered other evidence including a blank standard deed form 657, a copy of the 1957 quitclaim deed and certain working files of the BLM. On remand, the court should consider the admissibility of such evidence. The blank standard deed form would be relevant upon sufficient showing that the 1942 deed was prepared on a similar form. The 1957 quitclaim deed is not a "nullity" as suggested by the court. Rather, it represents a valid transfer of all interest retained by the FFMC, if any, to the United States. However, the appellants must show that it is relevant to issues in this case and otherwise admissible. The working files of the BLM, although not necessarily admissible as public records, may be admissible to show the practice of the agency and the manner in which deeds with lengthy descriptions were constructed....

Reversed and remanded.

1. 6. The court properly applied Rule 1005 in admitting a certified copy of the deed as recorded by the county recorder. Furthermore, because such a certified copy was available, the court should properly exclude any other proffered evidence of the contents of the recorded version of the deed. However, Rule 1005 does not preclude the admission of other evidence of the contents of the original 1942 deed. That deed is not a public record and Rule 1005 does not apply to it.

2. 7. Appellants urge that the file copy can be authenticated as a public record under Rules 901(b)(7) or 902(4). However, the mere fact that a document is kept in a working file of a governmental agency does not automatically qualify it as a public record for purposes of authentication or hearsay. Although the recorded version of a deed is a public record, a copy of a deed deposited in a working file of the BLM is not, by that fact alone, a public record.

3. 8. Although the BLM file copy is not a "duplicate" of the original 1942 deed, see Rule 1001(4), it is apparently a duplicate of the original conformed copy of the deed. As such, it is admissible to the same extent as the original conformed copy unless the trial court exercises its discretion under Rule 1003 to exclude it as "unfair."

4. 9. Unlike the file copy which is not a public record simply by virtue of its presence in a BLM working file, the BLM land office plat and historical index appear to be official records of a governmental agency and may qualify as "public records" under the federal rules.


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