92-35197, 92-35580 | 9th Cir. | Sep 20, 1996
Lead Opinion
Per Curiam Opinion; Dissent by Judge ALARCON.
ORDER
The opinion dated November 30, 1993 is withdrawn.
OPINION
The government’s petition for rehearing is granted, the opinion of November 30,1993 at 10 F.3d 649" date_filed="1993-11-30" court="9th Cir." case_name="Paul G. Shultz v. Department of Army, United States of America">10 F.3d 649 is withdrawn, and the following opinion is substituted in its place.
Paul G. Shultz appeals the district court’s judgment in favor of the government in his quiet title action under 28 U.S.C. § 2409a. Shultz argued that he has a right-of-way across Fort Wainwright to get back and forth between Fairbanks and his property under either R.S. 2477, 43 U.S.C. § 932, or Alaska common law, or both. Because we ultimately agree with the district court that Shultz has not sustained his burden to factually establish a continuous R.S. 2477 route or a right-of-way under Alaska common law, we affirm the district court. We do not reach Shultz’s argument that the district court erred by holding that his action was time-barred by 28 U.S.C. § 2409a(g).
AFFIRMED.
Dissenting Opinion
dissenting:
I respectfully dissent.
I would deny the petition for a rehearing and reverse the district court’s judgment for the reasons set forth in Judge Fletcher’s scholarly opinion in Shultz v. Department of the Army, 10 F.3d 649 (9th Cir.1993).