Footnotes Footnote Because Koncor thus stands in the shoes of a village corporation with respect to the issues presented in this case, for convenience we refer to Koncor throughout as though it itself were a village corporation. The fact that ANCSA does not impose a legal requirement that village corporations share revenues with regional corporations does not imply a congressional intent that the village corporations should be able to obtain from regional corporations, without payment, all resources necessary to develop their surface estates. Koncor proposes what it describes as the "dormant estate" theory in support of its contention that it has a right to use Koniag's rock without paying for it. Koniag's citation to United States v. Consideration Although ANCSA land grants were not made as part of a direct sale, they must reasonably be viewed as having been supported by valuable consideration. Glover, however, stands only for the proposition that, "where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of contrary legislative intent.
Construing sand and gravel to be part of the surface estate would give those Corporations near large cities and developing areas a significant economic advantage over the others. Moreover, as a general rule, when an estate is split and simultaneously conveyed to two parties, the case for an implied easement is much stronger than when the grantor retains his interest. The benefits and burdens of this servitude run with the respective estates. This case, however, presents some unique concerns. A greater flaw in Koncor's position is that it conflicts with the purpose underlying one of ANCSA's most important provisions. In this circumstance, a district court may conclude that Koniag has no adequate remedy at law. While the Act itself does not speak directly to this congressional expectation, it is reflected in ANCSA's requirement that Natives form corporations to receive and administer the land they receive. Koniag cross-appeals, arguing that Koncor should be enjoined from using rock without Koniag's consent. For the reasons set out below, we vacate the injunction. According to the injunction, " 'same project' refers to such things as camp sites, log sort yards, or log transfer sites, each considered separately. Such tactical decisions, made not because they are topographically necessary, but in order to obtain as much rock as possible without paying for it, unfairly deprive Koniag of revenues from the sale of rock, and fall outside the range of what we consider legitimate incidental uses that do not require payment to Koniag. The district court denied both parties the primary relief they requested. See Restatement of Property section , comment f. The district court never addressed this second issue. Therefore, before Koncor can expect courts to intervene on its behalf, it must establish two things. Therefore, we reject Koniag's position that Koncor must pay for any and all rock it moves in cut-and-fill construction. These wholly owned lands are referred to as "fee lands. Language of the patents Koniag notes that its patent to the subsurface underlying Koncor's estate contains certain restrictions. Consequently, if Koniag has absolute control over the disposition of its rock, it can block Koncor's timber harvesting by setting an unreasonably high price, or by refusing to sell rock at all. Pregerson, Canby and Boochever, Circuit Judges. The United States patented to the village corporations the surface estate in approximately 22 million acres of land. Koniag's estate is burdened with a corresponding servitude. Nothing in our decision turns on the differences among these substances. Footnote 2 -- For convenience, we shall use "rock" to refer to rock, sand, and gravel, collectively. We agree, but find the argument irrelevant. Additionally, each of approximately Native villages was required to form a village corporation with its villagers as shareholders. If the parties do not settle on a mutually agreeable price, on remand Koncor has the burden of showing that the price 8 Koniag demands for rock is unreasonably high, or that Koniag is refusing to sell Koncor rock at any price.
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