ECM, Inc. v. Placer Dome U.S., Inc.

*669 MEMORANDUM *

Appellant ECM, Inc. (“ECM”) appeals the entry of summary judgment in favor of Appellee Placer Dome U.S. (“PDUS”). The district court ruled that the disclosure provision of the lease agreement between ECM and PDUS’s predecessor-in-interest did not run with the land and therefore did not bind PDUS.

We review a district court’s grant of summary judgment de novo. Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). Three elements define a covenant that runs with the land: 1) the original parties to the covenant must intend for the covenant to run; 2) the covenant must touch and concern the land; and 3) there must be privity of estate. Wheeler v. Schad, 7 Nev. 204, 208-09 (1871).

For reasons explained by the district court, we conclude that the disclosure provision did not touch and concern the land. The covenant therefore does not run with the land, and PDUS is not bound by it.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

dissenting.

I respectfully dissent.

The facts of this case are relatively straightforward. ECM, Inc. (“ECM”) staked the Gold Acres South (“GAS”) claim in Nevada. Placer Dome U.S. Inc. (“PDUS”) staked claims to the northwest of the GAS claim. ECM leased the GAS claim to Royal Gold, Inc. (“Royal Gold”) pursuant to the ECM Lease. Section 19(b) of the ECM Lease stated:

Royal Gold later entered into a joint venture with PDUS to explore the GAS claim, and PDUS assumed primary responsibility for exploring the GAS claim. PDUS acquired soil samples from the GAS claim; ECM was also given those soil samples. PDUS analyzed the samples, which suggested a gold discovery on the GAS claim. PDUS also acquired data from a drill hole on its own claim which suggested a gold discovery running below ground from PDUS’s claim into the GAS claim. PDUS prepared reports regarding the gold discovery on the GAS claim, but did not provide any of those reports to ECM. PDUS then sought to restructure the lease of the GAS claim. ECM, not knowing of the gold discovery, agreed to a new lease which diluted its interest in the GAS claim. PDUS later struck gold on the GAS claim, and ECM cried foul.

The issue,…