BARRON v. United States

In the United States Court of Federal Claims

No. 21-2181 L

Filed: October 31, 2024

________________________________________

)

DEBORAH E. BARRON and JOHN )

BUENAVENTURA BAEZ, et al., )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

__________________________________________

Mark Fernlund Hearne, II, True North Law LLC, St. Louis, MO, for Plaintiffs.

Christopher Michael Chellis, Trial Attorney, United States Department of Justice, Environment

& Natural Resources Division, Washington, D.C., with whom were Michael K. Robertson, Trial

Attorney, United States Department of Justice, Environment & Natural Resources Division,

Washington, D.C. and Todd Kim, Assistant Attorney General, United States Department of

Justice, Environment & Natural Resources Division.

OPINION AND ORDER

This rails-to-trails case requires the court to construe the terms of certain deeds and a

condemnation decree under Florida law to determine what estate was transferred to the railroads.

Under Florida law, the grantor’s intent as shown on the face of a deed controls. And although

Florida law is not as clear on the interpretation of a condemnation decree, Florida courts instruct

that this court should interpret the decree by its plain terms. In this case, these principles lead the

court to conclude that the disputed deeds 1 and condemnation decree conveyed fee simple title to

the property at issue to the railroads. Therefore, the court grants the Government’s motion for

partial summary judgment.

I. Background

On March 8, 2019, Seminole Gulf Railway, L.P. (“SGR”) filed a verified notice of

exemption to abandon an approximately 7.68-mile segment of its rail line known as the Venice

Branch. ECF No. 18-1 at 62 (Exhibit 7). The Venice Branch “extends between milepost SW

1

As explained below, the Government does not contest that the Honore conveyance applicable

to a few plaintiffs conveyed only an easement that was not broad enough to include trail use.

The court does not consider it a disputed conveyance.

890.29 on the north side of Ashton Road and milepost SW 884.70, and between milepost AZA

930.30 and milepost AZA 928.21 on the north side of State Highway 780”—it partly lies “within

the City of Sarasota, Sarasota County, Fla., with the remainder lying within unincorporated

Sarasota County.” Id. On May 14, 2019, the Surface Transportation Board (“STB”) issued a

Notice of Interim Trail Use or Abandonment (“NITU”) concerning the Venice Branch, invoking

Section 8(d) of the Trails Act. Id. at 62-66.

Most of the Plaintiffs have predecessors-in-interest who conveyed an interest in the land

underlying the Venice Branch to the Seaboard Air Line Railway or the Florida West Shore

Railway by means of the Honore, Sarasota Land Company, Clough, Burton, or Neihardt deeds.

ECF No. 19 (Joint Title Stipulations).2 The parties dispute whether the interests conveyed by

these deeds transferred a fee simple interest to the railroad, thereby extinguishing any property

interest to the underlying land, or merely an easement, in which case Plaintiffs allege they are

entitled to compensation for a taking of their property. One railroad also acquired an interest in

the land by means of a U.S. District Court condemnation judgment. ECF No. 18, ¶¶ 105-09;

ECF No. 19; ECF No. 31-9 (Exhibit 7) (Condemnation Judgment). The parties dispute whether

the judgment granted the railroad fee simple title or merely an easement.

II. Standard of Review

Under Rule 56, “[t]he court shall grant summary judgment if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Rules of the Court of Federal Claims (“RCFC”) 56(a). The movant has the initial burden

to show that there is no genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). A “genuine” dispute of material fact exists where a reasonable jury “could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

And a “material” fact is one “that might affect the outcome of the suit under the governing law,”

as opposed to “disputes that are irrelevant or unnecessary.” Id.

If the movant meets its initial burden, the burden shifts to the nonmovant to show a

genuine dispute of a material fact. Id. at 256-57. The nonmovant can do this by “citing to

particular parts of materials in the record” or by “showing that the materials cited do not

establish the absence . . . of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” RCFC 56(c)(1). “By its very terms, this standard

provides that the mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the requirement is that

there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in original).

And while “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to

be drawn in his favor[,]” id. at 255, the nonmovant’s evidence must be “significantly probative”

and more than “merely colorable” to defeat summary judgment, id. at 249-50.

2

All the railroads’ interest passed to successors and eventually to CSX Transportation, Inc. ECF

No. 18 ¶ 13. Because the specific railroad to which the original conveyances were made is

generally not material to the outcome of this case, the court refers to “the railroad” unless the

specific railroad is important to the resolution of an argument.

III. Discussion

A. Rails-to-Trails Takings Actions

The Trails Act was created “to preserve shrinking rail trackage by converting unused

rights-of-way to recreational trails.” Rogers v. United States (Rogers I), 90 Fed. Cl. 418, 427

(2009) (citing Preseault v. Interstate Com. Comm’n (Preseault I), 494 U.S. 1, 5 (1990)); see also

16 U.S.C. § 1241 et seq. “[F]or a railroad right-of-way to be converted into a recreational trail,

the railroad must either (1) file a standard abandonment application with the STB or (2) seek an

exemption from filing the application.” Mills v. United States, 147 Fed. Cl. 339, 344 (2020)

(citing Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004)). If the standard

abandonment application is approved or the exemption is granted, “the railroad ceases operation,

the STB relinquishes jurisdiction over the abandoned railroad right-of-way and state law

reversionary property interests, if any, take effect.” Id. (citing Caldwell, 391 F.3d at 1228-29).

“The Trails Act, through a process known as ‘railbanking,’ provides an alternative to

abandoning a railroad right-of-way . . . .” Caldwell, 391 F.3d at 1229. Railbanking “allows a

railroad to negotiate with a state, municipality, or private group (the ‘trail operator’) to assume

. . . responsibility for operating the railroad right-of-way as a recreational trail.” Id. (citing

Preseault I, 494 U.S. at 6-7). And “[i]f the railroad and trail operator are willing to negotiate a

trail use agreement, the STB stays the abandonment and issues a NITU, allowing the railroad

right-of-way to be ‘railbanked’”—the NITU “operates to prevent abandonment of the corridor

and to preclude the vesting of state law reversionary interests in the right-of-way.” Mills, 147

Fed. Cl. at 344 (internal quotation marks omitted) (quoting Caldwell, 391 F.3d at 1229-34).

Thus, in a rails-to-trails takings claim, “the issuance of the original NITU triggers the accrual of

the cause of action.” Barclay v. United States, 443 F.3d 1368, 1378 (Fed. Cir. 2006).

“The operation of the Trails Act is subject to the Fifth Amendment” so “when private

property interests are taken by the Government pursuant to the Trails Act, the property owners

are entitled to just compensation.” Rogers I, 90 Fed. Cl. at 427 (citing Preseault I, 494 U.S. at

13); U.S. Const. amend. V. A takings question arises “in the typical rails-to-trails case because

many railroads do not own their rights-of-way outright but rather hold them under easements or

similar property interests.” Preseault I, 494 U.S. at 8. Thus, a “taking occurs when, pursuant to

the Trails Act, state law reversionary interests are effectively eliminated in connection with a

conversion of a railroad right-of-way to trail use.” Caldwell, 391 F.3d at 1228. That means

there is a taking “if the original easement granted to the railroad under state property law is not

broad enough to encompass a recreational trail.” Id. at 1229. But “[i]f the railroad owns the

underlying right-of-way in fee simple at the time of the alleged taking[,]” there is no taking of

any property interests because the railroad, not the adjacent landowners, owns the full bundle of

property rights. See Mills v. United States, 147 at 344. It is therefore necessary to determine

who owned which property interests on the date of the taking because “[i]n a takings case, ‘only

persons with a valid property interest at the time of the taking are entitled to compensation.’” Id.

(quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001)). Thus, “another party

cannot be owed just compensation for the taking of that land.” Id. (internal quotation marks

omitted) (quoting Whispell Foreign Cars, Inc. v. United States, 97 Fed. Cl. 324, 330 (2011)).

B. The NITU

The STB issued the NITU in this case on May 14, 2019. Therefore, the court must

“determine whether the landowners had property interests in the right-of-way and whether the

Government’s actions constituted a taking of those interests.” Id. To do this, the court must

resolve three questions:

(1) who owned the strips of land involved, specifically did the

[r]ailroad . . . acquire only easements, or . . . fee simple estates;

(2) if the [r]ailroad acquired only easements, were the terms of the

easements limited to use for railroad purposes, or did they include

future use as public recreational trails; and

(3) even if the grants of the [r]ailroad’s easements were broad

enough to encompass recreational trails, had these easements

terminated prior to the alleged taking so that the property owners at

that time held fee simples unencumbered by the easements.

Mills, 147 Fed. Cl. at 344 (quoting Preseault v. United States (Preseault II), 100 F.3d 1525, 1533

(Fed. Cir. 1996) (en banc)). The parties have stipulated that the Plaintiff landowners were the

owners of the parcels at issue on the date of the NITU. ECF No. 19 at 1. “As such, these named

landowners have cleared a preliminary hurdle in pursuit of their takings claims; they owned land

adjacent to the railway when the taking allegedly occurred.” Rogers I, 90 Fed. Cl. at 428. Thus,

the court only considers the second and third prongs of the Presault II analysis.

C. Principles of Deed Construction under Florida Law

In rails-to-trails cases, this court “analyze[s] the property rights of the parties . . . under

the relevant state law.” Rogers v. United States (Rogers IV), 814 F.3d 1299, 1305 (Fed. Cir.

2015) (citing Preseault II, 100 F.3d at 1543). Given that the property in this case is in Florida,

the court applies Florida law when analyzing the property rights. “Under Florida law, ‘the

intention of the parties . . . governs the interpretation of a document.’” Rogers v. United States

(Rogers III), 107 Fed. Cl. 387, 393 (2012) (quoting Thrasher v. Arida, 858 So. 2d 1173, 1175

(Fla. Dist. Ct. App. 2003)). As the Florida Supreme Court explained in response to a certified

question from the Federal Circuit: “The effect of a deed, both as to the property conveyed and

the character of the estate conveyed, is determined by the intent of the grantor.” Rogers v.

United States (Rogers V), 184 So. 3d 1087, 1095 (Fla. 2015). Courts “should ‘consider the

language of the entire instrument in order to discover the intent of the grantor, both as to the

character of [the] estate and the property attempted to be conveyed, and to so construe the

instrument as, if possible, to effectuate such intent.’” Rogers III, 107 Fed. Cl. at 393 (quoting

Reid v. Barry, 112 So. 846, 852 (Fla. 1927)); see also Ivey v. Peacock, 47 So. 481, 481 (Fla.

1908) (“The general rule of construction obtaining here as elsewhere that all parts of an

instrument will be looked to, and that construction adopted that carries out most clearly the

evident intent of the parties” shall be adopted.). And “[i]f there is no ambiguity in the language

employed then the intention of the grantor must be ascertained from that language.” Saltzman v.

Ahern, 306 So. 2d 537, 539 (Fla. Dist. Ct. App. 1975).

Florida also presumes that the grantor intended to convey his or her entire estate unless

there is clear language to the contrary:

Where any real estate has heretofore been conveyed or granted or

shall hereafter be conveyed or granted without there being used in

the said deed or conveyance or grant any words of limitation . . .

such conveyance or grant, whether heretofore made or hereafter

made, shall be construed to vest the fee simple title or other whole

estate or interest which the grantor had power to dispose of at that

time in the real estate conveyed or granted, unless a contrary

intention shall appear in the deed, conveyance or grant.

Fla. Stat. § 689.10 (emphasis added). 3 The result of this statute is that “a deed is presumed to

convey fee simple title, or whatever title the grantor had power to convey, unless a contrary

intention is shown by the language of the deed.” Rogers V, 184 So. 3d at 1095 n.5.

“No stock words or phrases are required” to indicate what estate and property the grantor

intends to convey; rather, “it is only necessary that such words be employed as will show the

grantor’s intent.” Seaboard Air Line Ry. Co. v. Dorsey, 149 So. 759, 761 (Fla. 1932). That said,

there are numerous cases that provide guidance on discerning the intent of a grantor under

Florida law. For example, an expansive granting clause that lacks any restrictive or limiting

clauses indicates the grantor intended to convey a parcel in fee simple. Rogers v. United States

(Rogers II), 93 Fed. Cl. 607, 619 (2010), aff’d, 814 F.3d 1299 (Fed. Cir. 2015). In Rogers II, the

court concluded that “[b]ecause [the original landowner] held the lands in fee simple and

transferred ‘all of its right, title and interest’ to Seaboard [the railroad], it conveyed fee simple

title. The granting clause does not contain language limiting the interests conveyed to certain

uses or purposes, nor does it reference an easement.” Id. And the court explained that “[t]his

unambiguous language is in stark contrast to the Honore conveyance . . . in which the grantor

3

Florida adopted the predecessor of this statute in 1903, at which time it provided:

Where any real estate shall hereafter be conveyed or granted

without there being used in the conveyance or grant any words or

limitation, such as heirs or successors, or similar words, such

conveyance or grant shall be construed to pass the fee simple or

other whole estate or interest which the grantor had power to

dispose of in the real estate conveyed or granted, unless a contrary

intention shall appear in the conveyance or grant.

Reid, 112 So. at 860-61 (quoting 1903 Fla. Laws ch. 5145, § 1). In 1925, Florida made the

statute retroactive—i.e. applicable to conveyances made prior to the enactment of the 1903

statute. Rogers V, 184 So.3d at 1095 n.5. Because all the conveyances at issue in this case were

made after 1903, the 1925 change to the law does not impact Plaintiffs’ rights. See ECF No. 31-

5 (Sarasota Land Co. deed executed in 1910); ECF No. 31-6 (Burton deed executed in 1910);

ECF No. 31-7 (Clough deed executed in 1910); ECF No. 31-8 (Neihardt deed executed in 1905).

Therefore, the court applies the current version of Fla. Stat. § 689.10, as the parties do, and the

Florida Supreme Court did in Rogers V.

transferred to Seaboard an easement, described as ‘a right of way for railroad purposes over and

across the following described parcels of land.’” Id. (citing Rogers I, 90 Fed. Cl. at 429); see

also Andrews v. United States, 147 Fed. Cl. 519, 526 (2020), aff’d, 844 F. App’x 351 (Fed. Cir.

2021); Whispell Foreign Cars, Inc., 97 Fed. Cl. at 335 amended on reconsideration in part, 100

Fed. Cl. 529 (2011).

Similarly, a granting clause with a reversionary clause or restrictive language limiting the

use of the property indicates the grantor intended to convey only an easement. Rogers I, 90 Fed.

Cl. at 430-31; Rogers III, 107 Fed. Cl. at 394-99; Whispell Foreign Cars, Inc., 97 Fed. Cl. at

335-36. A description of the interest conveyed as a ‘right of way,’ however, “can refer either to

a ‘right of crossing’—an easement—or to ‘a strip of land which a railroad takes, upon which to

construct its railroad’—an estate in fee.” Rogers II, 93 Fed. Cl. at 623. Thus, when an interest is

conveyed as a “right of way,” “[w]hether the railroad obtains a ‘right’ or ‘land’ depends on the

intent of the parties as reflected by the deed of conveyance.” Id.; see also Rogers V, 184 So. 3d

at 1094-95.

Additionally, an instrument describing the interest conveyed as “land” weighs in favor of

interpreting the conveyance as granting fee simple. Rogers II, 93 Fed. Cl. at 619 (“[T]he

descriptions of the three conveyed parcels reference a ‘strip of land,’ and two ‘tract[s] of

land.’ . . . . This is further indication that the parties intended to convey land, rather than a right

to use or control land for a limited purpose.”) (citation omitted); Andrews, 147 Fed. Cl. at 526

(“The deed refers to a parcel of land, not a right of way.”). Covenants warranting title in an

instrument also factor in favor of interpreting the instrument as conveying fee simple. Rogers II,

93 Fed. Cl. at 619-20. And under Florida law, “the amount of consideration does not inform the

interpretation of the deeds . . . .” Id. at 624 (cleaned up); Rogers V, 184 So. 3d at 1097 (“The

law of Florida . . . is that the amount of consideration stated in a deed provides no basis for

questioning the validity of the deed. The language of the deed determines the nature of the estate

conveyed.”) (cleaned up); Venice E., Inc. v. Manno, 186 So. 2d 71, 75 (Fla. Dist. Ct. App. 1966)

(“[W]e cannot inquire into the adequacy of the consideration given for the disputed conveyances.

It is fundamental that the law will not consider the adequacy or the sufficiency of the

consideration given for a conveyance or transaction.”).

And, of course, the Florida Supreme Court has also addressed Florida law in the context

of rails-to-trails litigation in Rogers V. Plaintiffs argue, however, that Rogers V cannot be read

broadly to apply to this case for three reasons. ECF No. 39 at 27. First, Plaintiffs claim the

certified question in Rogers “assumed the deeds . . . granted a fee simple estate and premised its

answer on this assumed predicate. The Court in Rogers did not engage in deed construction,

rather the Court assumed the grantor intended to convey fee title.” Id. at 25-26. While the

certified question from the Federal Circuit assumed the deeds transferred fee simple title, the

Florida Supreme Court did not assume that the deeds in Rogers granted fee simple at all:

We need not discuss the language of the deeds in this case in detail

. . . because the Court of Federal Claims did a thorough job of it in

reaching the conclusion that the deeds by their language appeared

to convey fee simple title. The deeds in question in this case

included all the formal statements needed to show that the land

was purchased and that the deeds granted fee simple title.

Rogers V, 184 So. 3d at 1095. Further, “the deeds were clear in their language and conveyed fee

simple title.” Id. at 1097. The Florida Supreme Court thus agreed with Judge Williams that the

deeds at issue unambiguously conveyed fee simple title; it did not assume that the deeds

conveyed fee simple. In addition to Judge Williams and the Florida Supreme Court, the Federal

Circuit also found the deeds in Rogers unequivocally conveyed land to the railroad in fee simple:

“While the Appellants dispute whether the deeds appear on their face to transfer a fee simple

interest in the properties at issue, like the Court of Federal Claims before us, we conclude that

they do.” Rogers IV, 814 F.3d at 1308 (citation omitted). Thus, this court adheres to Judge

Williams’s application of Florida law in construing deeds, which the Federal Circuit and the

Florida Supreme Court agreed with too.

Second, Plaintiffs argue that “[t]he government’s overbroad reading of the Florida

Supreme Court’s decision in Rogers” redefines “the property interest in land subject to railroad

rights-of-way as a fee estate and not an easement.” ECF No. 39 at 27. Under this reading,

Rogers V is “a new declaration of the law defining established property interests originally

established in the early 1900s” and “violates Stop the Beach Renourishment v. Florida Dept. of

Env. Protection, 560 U.S. 702 (2010), in which the Supreme Court prohibited Florida Courts

from redefining property interests.” Id. at 26. 4 But Rogers V did not redefine any existing

property interests or change anything about Florida law. Rogers V affirmed this court’s

understanding of Florida precedents over the last century as holding that there is a presumption

that a deed conveys fee simple title (or the greatest title the grantor could convey) but that the

language of the deed controls. The Florida Supreme Court in no way redefined the meaning of a

fee simple or an easement, nor did anything to change the governing principle that the grantor’s

intent controls. Nor does the Government’s reading of it.

Third, Plaintiffs argue that Rogers V does not apply because unlike the deeds in Rogers

V, the deeds here are “voluntary grants subject to Florida’s voluntary conveyance statute.” ECF

No. 39 at 25. Plaintiffs rely upon Section 2241 of the Florida Statutes (1892) for the proposition

that the conveyances made voluntary grants to the railroads for them to build their rail lines and,

therefore, created only an easement. ECF No. 31-2 at 23-24; ECF No. 39 at 20, 24-25. Section

2241 provided that “the real estate received by voluntary grant shall be held and used for

purposes of such grant only.” ECF No. 31-2 at 23 (quoting Fla. Stat. § 2241 (1892)). Plaintiffs

contend that because these deeds recite what they consider to be nominal consideration, they are

voluntary grants. ECF No. 31-2 at 24-25. And, according to Plaintiffs, the parties in Rogers V

did not allege that the conveyances were voluntary grants, making that case distinguishable from

this one.

4

See also Plaintiffs’ Notice of Additional Authority, ECF No. 45 at 3 (urging the court and the

Government to take heed of “the Supreme Court’s decision in [Tyler v. Hennepin County, 598

U.S. 631 (2023)] . . . so that the government has opportunity to consider and address” the

decision and “its effect upon the government’s argument that the Florida Supreme Court’s

answer to the certified question in 2015 in Rogers somehow redefined the rule governing how

this Court should interpret the interest a grantor intended to convey in property . . . in the early

1900s.”).

Contrary to the Plaintiffs’ argument, however, the plaintiffs in Rogers V (represented by

the same counsel as Plaintiffs here) made this same argument to the Florida Supreme Court

relying on the same cases that Plaintiffs rely upon here. Compare ECF No. 31-2 at 24-25 with

Initial Br. Of Appellants at 10-13, Rogers v. United States, SC 14-1465 (Fla. 2014). 5 And the

Florida Supreme Court expressly rejected this argument under Florida law. According to Rogers

V, a voluntary grant or conveyance is “[a] conveyance made without valuable consideration.”

184 So. 3d at 1094 (quoting Black’s Law Dictionary 408 (10th ed. 2014)). As an example,

‘“[v]oluntary grants’ of land to railroads might include land grants made by a state or local

government or the federal government. Other grantors might donate land to railroads in the hope

of benefiting from the location of the railroad tracks or a station.” Id. at 1094 n.3. But the

Florida Supreme Court expressly rejected the argument that nominal consideration indicated a

conveyance was a voluntary grant:

Appellants also cite Ogg v. Mediacom LLC, 142 S.W.3d 801 (Mo.

Ct. App. 2004), where a Missouri court found nominal

consideration to be a factor in discerning the grantor’s intent to

convey an easement rather than fee simple title. The law of

Florida, however, is that the amount of consideration stated in a

deed provides no basis for questioning the validity of the deed.

Id. at 1097 (citations omitted).

The deeds at issue here are, like in Rogers V, “grants by bargain and sale for valuable

consideration.” Id. at 1094. The amount of that consideration is irrelevant to the question of

what the grantor conveyed to the railroad. Thus, because the deeds here recite valuable

consideration, even if nominal, they are grants by bargain and sale and are not voluntary grants

under Florida law.

D. In Florida, railroad companies may hold fee simple title to land acquired for

building railroads.

Plaintiffs put forth a variety of arguments as to why the railroad companies could, as a

matter of law, only have acquired an easement by these deeds. Each will be addressed in turn.

First, Plaintiffs assert that railroad corporations could only acquire easements when

acquiring property to build a railroad line. ECF No. 31-2 at 21-23. They argue “a railroad

corporation is a creature of state law and a railroad corporation’s power and authority to acquire

property, especially including property acquired through the exercise of eminent domain, is

defined by the public purpose for which the railroad corporation was chartered.” Id. at 23. And

because railroad corporations only need an easement to accomplish their public purpose of

operating a railroad, that is the only interest the railroads could have acquired in the deeds at

issue. Id.

But this broad assertion finds no basis in Florida law. “Florida law recognizes that

railroads may hold fee simple title to land acquired for the purpose of building railroad tracks.”

5

For the avoidance of doubt, this is the property owners’ brief in Rogers V.

Rogers V, 184 So. 3d at 1095 (citing Atl. Coast Line R.R. Co. v. Duval Cnty., 154 So. 331 (Fla.

1934); Clark v. Cox, 85 So. 173 (Fla. 1920); Fla. Power Corp. v. McNeely, 125 So. 2d 311 (Fla.

Dist. Ct. App. 1960)). The fact that a railroad is a creature of state law does not prevent it from

receiving fee simple title from a willing grantor. And the fact that railroad companies may have

been able to accomplish their endeavors via easements is irrelevant to the question of what the

grantors intended to convey in an unambiguous conveyance. Rogers V, 184 So. 3d at 1094-95.

Second, Plaintiffs argue that “[t]he strip and gore doctrine is a background principle of

law that informs the interpretation of these conveyances. The common law has long disfavored

the creation of fee estates in strips or gores of land used as rights of way.” ECF No. 31-2 at 28.

But, again, “under Florida state law, a railroad can acquire either an easement or fee simple title

to a railroad right-of-way and . . . no statute, state policy, or factual considerations prevails over

the language of the deeds when the language is clear.” Rogers IV, 814 F.3d at 1309 (emphasis in

original); see also Rogers V, 184 So. 3d at 1098. Thus, when the language is clear, the “‘strips

and gores’ argument [is] inapplicable.” Rogers V, 184 So. 3d at 1099.

Third, Plaintiffs “describe the development of the Sarasota area in the early 1900s, the

Palmer family, and the construction of Seaboard Air Line Railway’s railway line from Sarasota

to Venice.” ECF No. 39 at 3 (citing ECF No. 31-2 at 5-15). Here, they argue that “[t]his

historical context demonstrates why (and the purpose for which) these landowners granted the

railroad right-of-way easements across the owners’ land.” Id. But if the grantor’s intent is

unambiguous from language of deed, the court does not consider extrinsic evidence. Rogers V,

184 So. 3d at 1100. This is because Florida courts “[do] not endeavor to discover the intent of

the parties based on circumstances allegedly surrounding the deed’s enactment” but “determine

the parties’ intent from the express text of the Contract.” Rogers II, 93 Fed. Cl. at 618 (internal

quotation marks omitted) (quoting Fin. Healthcare Assoc. v. Pub. Health Tr., 488 F. Supp. 2d

1231, 1239 (S.D. Fla. 2007)).

Therefore, Plaintiffs’ arguments fail in this regard. Under Florida law, railroad

companies may obtain fee simple title to land acquired for building railroads.

E. The Deeds

With this understanding of Florida property law, the court turns to the deeds at issue in

this case.

1. Honore Conveyance

The court does not take it upon itself to interpret the Honore deed for two simple reasons.

First, Judge Williams did a thorough and persuasive job of construing the Honore deed in Rogers

I. Rogers I, 90 Fed. Cl. at 429-33. Second, and more importantly, the parties in this case have

stipulated that the Honore deed conveyed only an easement that was not broad enough to include

recreational trail use. ECF No. 19 at 1. The court includes the Honore deed for comparison to

the disputed conveyances to show what language conveying an easement under Florida law

looks like. The Honore deed states:

KNOW ALL MEN BY THESE PRESENTS, That the

undersigned, ADRIAN C. HONORE, a bachelor of Chicago,

Illinois, for and in consideration of the sum of one dollar ($1.00)

and other good and valuable considerations this day to him in hand

paid, the receipt whereof is hereby acknowledged, does hereby

remise, release, and forever quit claim unto the SEABOARD AIR

LINE RAILWAY, a corporation of the State of Virginia and other

States, a right of way for railroad purposes over and across the

following described parcels of land, lying and being in the County

of Manatee, and State of Florida[.]

*****

TO HAVE AND TO HOLD the said premises unto the said

Seaboard Air Line Railway, its successors and assigns and to its or

their proper use, benefit and behoof forever for railroad purposes.

This conveyance is made upon the express condition, however,

that if the Seaboard Air Line Railway shall not construct upon said

land and commence the operation thereon with one year of the date

hereof a line of railroad, or, if at any time thereafter the said

Seaboard Air Line Railway shall abandon said land for railroad

purposes then the above described pieces and parcels of land shall

ipso facto revert to and again become the property of the

undersigned, his heirs, administrators and assigns.

ECF No. 1-1 at 2-4. 6 Note that the granting clause conveys only “a right of way for railroad

purposes over and across” certain land, but it does not convey the land itself. Thus, it is not

conveying land, only the right to pass over land. Rogers I, 90 Fed. Cl. at 429. Indeed, as another

member of this court recognized, the most natural reading of the term “right of way” is that it

conveys an easement. Mills, 147 Fed. Cl. at 346. And the granting clause contains an explicit

limitation on the use the railroad could make of the right of way.

The second paragraph above reinforces the limited use for which the property is

conveyed to the railroad. But most importantly for determining Mr. Honore’s intent is the

explicit reversion to his successors if the railroad ceased using the property as a railway. Rogers

I, 90 Fed. Cl. at 429-31. In plain terms, the Honore deed provides that if the railroad stopped

using the property for railroad purposes, the property would “revert to and again become the

property of the undersigned, his heirs, administrators and assigns.” ECF No. 1-1 at 4. In other

words, the conveyance itself makes Mr. Honore’s intent to transfer only an easement clear,

which is dispositive of the issue.

2. Sarasota Land Company and Clough Conveyances

Because the operative language in the Sarasota Land Company and Clough conveyances

is materially identical, as Plaintiffs acknowledge, ECF No. 31-2 at 39, the court examines them

6

Because the exhibit containing the Honore deed is not consecutively paginated, the court cites

to the pagination in the ECF Header.

together and quotes the Sarasota Land Company conveyance unless otherwise indicated. 7 The

Plaintiffs argue that these conveyances 8 transferred only an easement to the railroad, while to

Government contends they conveyed fee simple title to the railroads.

The court begins with the language of the conveyance:

[F]or and in consideration of the sum of Five Dollars . . . and other

valuable considerations, [the Sarasota Land Company] hereby

grants, bargains, sells and conveys unto [the Seaboard Air Line

Railway] all their right, title and interest, of any nature whatsoever

in and to the following property, to wit:

All those certain pieces or parcels of land lying and being in the

County of Manatee . . . and being described as follows:

A Strip of land one hundred (100) feet wide, being fifty (50) feet

on each side of the center line of the Seaboard Air Line Railway as

located across the lands owned by [Sarasota Land Company] . . . .

*****

TOGETHER WITH all and singular the tenements, hereditaments

and appurtenances thereunto belonging or appertaining, and every

right, title or interest, legal or equitable, of the said portion of the

first part in and to the same.

ECF No. 31-5.

The Sarasota Land Company and Clough conveyances unambiguously transferred fee

simple title to the property they describe. First, in the granting clause, the grantor “grants,

bargains, sells and conveys unto [the Seaboard Air Line Railway] all their right, title and

interest, of any nature whatsoever in and to the following property.” Id. (emphasis added). This

broad conveyance of “all right, title, and interest of any nature whatsoever” clearly reflects an

intent to convey fee simple. Rogers II, 93 Fed. Cl. at 619. And the grantors were conveying all

their interest in land, further supporting that they were conveying the fee estate. Second, the

7

The only differences in the two deeds are the grantors and the consideration. In the Sarasota

Land Company conveyance, the Sarasota Land Company is the grantor, and the consideration is

five dollars. ECF No. 31-5. In the Clough conveyance, the Cloughs are the grantors, and the

consideration is fifty dollars. ECF No. 31-7. Because Florida does not consider the amount of

consideration in determining the intent of the parties, the different consideration is not a material

difference. See Rogers V, 184 So. 3d at 1097.

8

The successors-in-interest to the Sarasota Land Company are Plaintiffs Deborah Barron, John

Buenaventura Baez, James Achille, Jonathan Achille, the ALB Revocable Trust, the RPB

Revocable Trust, Courtyard Villas, LLC, the Mallon Family Trust, Ronald Nourse, Old Forest

Lakes Owners’ Association, Gilda Pascual, Stephen Stiller, Christopher Wormwood, and Sharon

Krueger. The successor-in-interest to Mr. and Mrs. Clough is Plaintiff James Musselwhite.

conveyances describe the property being conveyed as “[a]ll those certain pieces or parcels of

land lying and being in the County of Manatee . . . and being described as follows: A Strip of

land.” ECF No. 31-5. This too indicates an intent to convey fee simple title because the grantor

was transferring land—not an easement over the land. Rogers II, 93 Fed. Cl. at 619. The

conveyance of all title to certain lands grants considerably more than the “right of way” that the

Honore conveyance did. Indeed, the term “right of way” does not appear anywhere in these

conveyances. Finally, unlike the Honore conveyance, the Sarasota Land Company and Clough

conveyances do not include a reversionary clause or any limitation on the railroad’s use of the

property. Given the clear conveyance of “all right, title and interest,” the lack of any

reversionary clause is telling. See Whispell Foreign Cars, Inc., 97 Fed. Cl. at 336; Andrews, 147

Fed. Cl. at 526. All of this indicates unambiguously that the grantors intended to convey the

property in fee simple rather than merely an easement.

Plaintiffs’ efforts to construe these deeds as conveying only an easement for railroad use

are not persuasive and, in several cases, have been explicitly rejected by the Florida Supreme

Court. First, Plaintiffs contend that because the conveyances conveyed a ‘“strip of land . . . on

each side of the center line of the Seaboard Air Line Railway” this indicates the railroad had

already entered the land and thus “memorialized the railroad’s right-of-way easement in a strip

of land across which the railway had already entered the land, surveyed and built a railroad line.”

ECF No. 31-2 at 38 (quoting ECF No. 31-5). Plaintiffs rely on Preseault II for this assertion,

arguing that when “the instrument . . . describes the railway line as already and located across

[the] property. . . . this means the railroad only acquired an easement, not title to the fee estate in

land.” ECF No. 39 at 20. While Plaintiffs acknowledge that Preseault II applied Vermont law,

they argue that “[t]he principles of Vermont law in the early 1900s, upon which Preseault II

relied are indistinguishable from Florida law in the early 1900s. Thus, the Federal Circuit’s

analysis in Preseault II directs this court to reach the same conclusion here.” ECF No. 39 at 8.

Plaintiffs’ reliance on Preseault II is misplaced. Vermont law is not Florida law—

Montpelier does not govern Miami. Plaintiffs have pointed to nothing that supports their

assertion that “[t]he principles of Vermont law in the early 1900s . . . are indistinguishable from

Florida law in the early 1900s.” ECF No. 39 at 8. At oral argument, Plaintiffs claimed that this

assertion was supported by the fact that the Vermont Chief Justice, Justice Redfield’s “treatise on

railroad law . . . was cited a number of times in Florida Courts, the Florida Supreme Court in the

early 1900s, for various points.” ECF No. 48 at 16:9-13. But Florida courts merely citing to a

treatise “for various points” is not enough to establish Florida courts have adopted Vermont law

wholesale, or that Florida follows Vermont in limiting railroads to easements if they already

occupy a parcel.

In fact, prior plaintiffs made this very same argument in Rogers, and this court rejected it.

Rogers II, 93 Fed. Cl. at 623 (concluding that “Preseault II . . . was limited to a situation where a

railroad exercised eminent domain under principles of Vermont law[, but when the railroad did

not acquire land under eminent domain, Florida law considers] the terms of the deeds a[s]

controlling and not the context in which the property was acquired.”). And, most importantly,

the Florida Supreme Court rejected it too:

Appellants have not cited any source of statutory or decisional law

applicable in Florida that supports their argument that a deed

meeting all the formal requisites for passing fee simple title is

rendered invalid or is limited in its effect by the fact that the

grantee is already occupying the property. When a deed is

unambiguous and sufficient on its face to show the grantor’s intent

as to the property described and the estate conveyed, extrinsic

evidence is not admissible to vary the terms.

Rogers V, 184 So. 3d at 1100 (citing Fla. Moss Prods. Co. v. City of Leesburg, 112 So. 572 (Fla.

1927)) (additional citations omitted).

Second, Plaintiffs contend that both deeds acknowledge “that the land underlying the

railway strip was ‘owned’ and retained by the grantor[s].” ECF No. 31-2 at 39. But Plaintiffs

come to this interpretation by cherry-picking language out of context. The deed conveys “All

those certain pieces or parcels of land . . . described as follows: A Strip of land one hundred

(100) feet wide, being fifty (50) feet on each side of the center line of the Seaboard Air Line

Railway as located across the lands owned by” Sarasota Land Company. ECF No. 31-5; see also

ECF No. 31-7 (“A strip of land . . . on each side of the center line of the Seaboard Air Line

railway as located across the lands owned by [the Cloughs] . . . .”). But the deeds clearly

conveyed the “strip of land,” and the reference to the lands owned by the SLC and the Cloughs

simply locates the strip of land. This does not indicate in any way that the grantors were

retaining ownership of the land under the railroad. Read in context, this language clearly is a

description of where the conveyed land is, not the interest being conveyed.

Judge Williams’s discussion of this argument in Rogers II applies equally here. In

Rogers II, the plaintiffs argued that despite the unambiguous intent to convey fee simple title, the

fact that a deed for a strip of land “through the lands of the grantor” meant that the conveyance

was for only an easement. Rogers II, 93 Fed. Cl. at 621. But “[t]he language ‘through the land

of the grantor’ in the deed merely describes the location of the strip of land conveyed to [the

railroad] and does not define or characterize the nature of the property interest conveyed to [the

railroad].” Id. Here too, Plaintiffs rely upon the language locating the property, not the property

being conveyed.

Finally, Plaintiffs argue that the deeds should be construed against the railroad because

the railroad drafted them. ECF No. 31-2 at 37-39. According to Plaintiffs, “the fact that the

[SLC] conveyance’s language is identical to the Clough deed demonstrates that the railroad

drafted the deed and should be construed in favor of these landowners . . . . [and] the Clough

deed should be construed against the railroad.” Id. at 39. But under Florida law, “[r]ules of

construction will be utilized only where the meaning or effect of the deed is doubtful.” Rogers

V, 184 So. 3d at 1095 (quoting Saltzman, 306 So. 2d at 539); see also Heath v. First Nat’l Bank

in Milton, 213 So. 2d 883, 888 (Fla. Dist. Ct. App. 1968) (“Any . . . ambiguities in the language

of the instrument must be construed more strongly against the drafter of such instrument.”

(emphasis added)); Consol. Dev. & Eng’g Corp. v. Ortega Co., 158 So. 94, 96 (Fla. 1933)

(“[B]ecause [the mortgage clauses] appear in an instrument which was prepared for the

mortgagee’s benefit, any ambiguity in language . . . must be construed most strongly against the

mortgagee.”) (emphasis added); Sec. First Fed. Sav. & Loan Ass’n v. Jarchin, 479 So. 2d 767,

770 (Fla. Dist. Ct. App. 1985) (“Insofar as the language may be deemed ambiguous, Florida law

is clear that any ambiguity in contractual language will be interpreted against the party who

selected that language . . . .”); Beres v. United States, 97 Fed. Cl. 757, 803 (2011) (“[B]ecause

this court concludes that the railroad . . . drew up the deeds, . . . any ambiguity in the . . . Deeds

must be interpreted in the grantors’ favor.”) (emphasis added). Because the Sarasota Land

Company and Clough conveyances contain no ambiguities, there is no basis to invoke this rule of

construction when interpreting these deeds.

Because the Sarasota Land Company and Clough conveyances unambiguously conveyed

fee simple title to the railroad, the NITU did not affect a taking of property held through these

conveyances. See Preseault II, 100 F.3d at 1533.

3. The Burton Conveyance

The Burton conveyance 9 was executed on October 5, 1910, between Oscar and Alice

Burton and the Seaboard Air Line Railway. ECF No. 31-6. The deed provides:

[I]n consideration of the sum of Five Dollars . . . [the Burtons] do

hereby grant, bargain, sell and convey unto [Seaboard Air Line

Railway] the following property to-wit: A strip of land one hundred

(100) feet wide, being fifty (50) feet on each side of the center line

of the Seaboard Air Line Railway as located across the lands owned

by [the Burtons] . . . .

Said Strip of land contains 6.2 acres, more or less. TOGETHER,

with all and singular the tenements, hereditaments and

appurtenances thereunto belonging or appertaining, and every right,

title or interest, legal or equitable, of [the Burtons] and to the same.

TO HAVE AND TO HOLD the same unto [Seaboard Air Line

Railway] its successors and assigns, to its or their own proper use,

benefit and behoof, forever. And [Sarasota Land Company], for

value received, doth hereby sell, transfer and assign unto [Seaboard

Air Line Railway] all its right, title and interest in and to the

aforesaid contract of sale 10 of . . . 1909 . . . .

Id.

The language of the Burton conveyance unambiguously conveys fee simple title. First,

the deed is expansive and contains no limitations—it provides that the land is being conveyed to

Seaboard Air Line Railway and its successor “to its or their own proper use, benefit and behoof,

forever.” Id. (emphasis added). The fact that the land is being transferred forever and for

9

The successors-in-interest to Mr. and Mrs. Burton are Plaintiffs Willis Martin, Alta Martin,

James Myers, and Katherine Myers.

10

The deed provides that the Burtons contracted to sell certain land in Manatee County, Florida,

to Frank S. Colton and Neville Bailey in 1909. ECF No. 31-6. Colton and Bailey in turn

transferred all their right and interest in and to the contract of sale to the Sarasota Land

Company. Id.

whatever proper uses shows an intent to transfer fee simple title. Second, the conveyance

describes the property being conveyed as “land”—specifically as “[a] strip of land one hundred

(100) feet wide . . . . on each side of the center line of the Seaboard Air Line Railway as located

across the lands owned by [the Burtons].” Id. (emphasis added); see Rogers II, 93 Fed. Cl. at

619. Again, grantors transferring “land” indicates an intent to transfer fee simple title. Third and

finally, unlike the Honore deed, there is no reference to a right of way, no reversionary clause,

nor any indication that the Burtons retained any interest in the property. Thus, everything in the

conveyance establishes that the Burton conveyance intended to convey a fee simple interest to

Seaboard Air Line Railway.

For the Burton conveyance, Plaintiffs reiterate previous arguments that the deed

conveyed an easement because it “conveyed only a strip of land for a railway already existing on

the land of the grantor” and that “courts should construe any ambiguity in the deed if [sic]favor

of the landowner.” ECF No. 31-2 at 36-37. As explained above, these arguments are not viable

under Florida law. See supra Section III.E.2. Plaintiffs again assert the deed “acknowledged

that the land underlying the railway strip was ‘owned’ and retained by the grantors.” ECF No.

31-2 at 36. But nowhere in the deed does it state that the land underlying the railroad strip was

retained by the grantors. When the Burton conveyance describes the land “as located across the

lands owned by” the Burtons, it is in the context of describing what land is being conveyed—like

in the Sarasota Land Company and Clough conveyances; it is not expressing that the Burtons

would maintain ownership of the underlying land. Rogers II, 93 Fed. Cl. at 621 (“The language

‘through the lands of the grantor’ in the deed merely describes the location of the strip of land

conveyed to [the railroad] and does not define or characterize the nature of the property interest

conveyed to [the railroad].”). Rogers III clarified that “other language in the Honore

conveyance—the phrases ‘a right of way’ and ‘for railroad purposes’—as well as ‘over and

across . . . the parcels of land,’ reflected the grantor’s intent to convey an easement.” Rogers III,

107 Fed. Cl. at 396 (citing Rogers I, 90 Fed. Cl. at 429-31). And “[t]he word ‘across,’ in

conjunction with the words ‘as located,’ merely describes the location of the subject parcel and

does not qualify or limit the property interest the grantors conveyed.” Id. So too in this case.

Plaintiffs next argue that “[u]nless the parties make clear in the deed they intended

creation of a fee simple estate . . . the most convincing conclusion is that they intended an

easement.” ECF No. 31-2 at 36-37. Not so. Under Florida law, there is no presumption that a

deed conveys an easement. To the contrary, Florida law presumes exactly the opposite under

Section 689.10 of the Florida Statutes. In Florida, absent a contrary intention, “a deed is

presumed to convey fee simple title.” Rogers V, 184 So. 3d at 1095 n.5. In other words,

Plaintiffs’ argument flips Florida law on its head.

Similarly unavailing is Plaintiffs’ contention that the “limitation to railroad purposes is

implicit in the deed, evidencing that the parties intended the grant of only an easement.” ECF

No. 31-2 at 36. According to Plaintiffs, because the deed conveys “a strip of land,” this means it

“is most likely for the creation of a corridor for the passage of trains,” and further, “a conveyance

of a strip of land ‘across’ the property. . . denotes . . . a right of passage over the land.” Id. at 37

(citing Restatement (Third) of Property: Servitudes § 2.2). Again, Plaintiffs have jumped the

tracks. The term “strip of land” in the granting clause of a deed indicates the parties “intended to

convey land, rather than a right to use or control land for a limited purpose.” Rogers II, 93 Fed.

Cl. at 619 (citing A.E. Korpela, Deed to railroad company as conveying fee or easement, 6

A.L.R.3d 973, § 4); see also Whispell Foreign Cars, Inc., 97 Fed. Cl. at 335-37; Andrews, 147

Fed. Cl. at 526. Plaintiffs’ argument fails because it is premised on assumptions and

presumptions about what the grantors intended to convey despite the language of the deed, which

Florida law does not allow the court to do.

Because the Burton conveyance unambiguously conveyed fee simple title to the railroad,

the NITU did not affect a taking of property held through these conveyances. See Preseault I,

494 U.S. at 16.

4. The Neihardt Conveyance

In January 1905, Moses Neihardt 11 conveyed property to the railroad. The Neihardt

conveyance provides that:

[F]or and in consideration of the sum of One Dollars [sic] . . . paid

by [the Florida West Shore Railway] . . . [Mr. Neihardt] has granted,

bargained and sold to [the Florida West Shore Railway], its

successors and assigns forever, the following-described land, to wit:

. . . [description of the metes and bounds of the land conveyed] . . . .

And [Mr. Neihardt] does hereby fully warrant the title to said land,

and will defend the same against the lawful claims of all persons

whomsoever.

ECF No. 31-8.

The text of the Neihardt conveyance demonstrates that Mr. Neihardt unambiguously

conveyed fee simple title to the railroad. First, the granting clause is expansive and contains no

limiting language—it provides that Mr. Neihardt “has granted, bargained and sold to [the

Florida West Shore Railway], its successors and assigns forever, the following-described land.”

ECF No. 31-8 (emphasis added); see Whispell Foreign Cars, Inc., 97 Fed. Cl. at 335 (holding

that a deed conveyed fee simple title in part because it “granted, conveyed, bargained and sold”

its interest). Second, the conveyance describes the land conveyed as “the following described

land.” ECF No. 31-8 (emphasis added). Again, this indicates that Mr. Neihardt was selling land,

not the right to access land. Rogers II, 93 Fed. Cl. at 619; see also Andrews, 147 Fed. Cl. at 526.

Third, unlike the Honore conveyance, there is no mention of a right of way or a reversionary

clause, which further supports the conclusion that Mr. Neihardt was conveying fee simple rather

than an easement. Fourth and finally, the conveyance contains a warranty clause—another factor

in favor of concluding that Mr. Neihardt sought to convey fee simple title rather than an

easement. Rogers II, 93 Fed. Cl. at 619-20; Whispell Foreign Cars, Inc., 97 Fed. Cl. at 337-39.

Plaintiffs’ arguments to the contrary are not persuasive. They assert “[t]he form deed’s

generic and non-descriptive language does not demonstrate that any title was conveyed to the

railroad beyond an easement” and “[u]nless the parties made clear in the deed that they intended

creation of a fee simple estate in an otherwise unusable strip of land, the most convincing

11

The successors-in-interest of Mr. Neihardt are Plaintiffs Enos Weaver, Jr. and Anna Mary

Weaver.

conclusion is that they intended an easement.” ECF No. 31-2 at 40. Not so. The deed states

clearly that Mr. Neihardt “granted, bargained and sold . . . land” to the railroad. ECF No. 31-8

(emphasis added). And it would make little sense for Mr. Neihardt to fully warrant the title to

the land if the railroad was not acquiring title to the land. Id. (provision stating that Neihardt

“fully warrant[ed] the title to said land”) (emphasis added); see also Rogers II, 93 Fed. Cl. at

619-20; Whispell Foreign Cars, Inc., 97 Fed. Cl. at 337-39. This warranty clause clearly

indicates a transfer of fee simple. Further, under Florida law “a deed is presumed to convey fee

simple title, or whatever title the grantor had power to convey, unless a contrary intention is

shown by the language of the deed.” Rogers V, 184 So. 3d at 1095 n.5 (citing Fla. Stat. §

689.10). Again, Plaintiffs are attempting to turn Florida law on its head.

Plaintiffs also contend that Mr. Neihardt conveyed an easement because “[t]he

conveyance recites only one dollar of consideration, and the strip of land is a fifty-foot-by-sixty-

foot strip of land.” ECF No. 39 at 21. But under Florida law, the amount of consideration is

irrelevant to determining whether a deed conveys an estate in fee or an easement. Rogers V, 184

So. 3d at 1097. Plaintiffs further question, “[w]hy would Moses Neihardt, a Missouri widower,

intend to convey the railroad title to the land? And why would the railroad desire any greater

interest in this fifty-by-sixty-foot strip of land than an easement?” ECF No. 39 at 22. But this

conjecture is also irrelevant. “When interpreting a deed under Florida law, ‘[t]he Court’s

function in interpreting and enforcing a contract is to determine the parties’ intent from the

express text of the Contract.’” Rogers III, 107 Fed. Cl. at 394 (quoting Fin. Healthcare Assocs.,

488 F. Supp. 2d at 1239) (emphasis added).

Because the Neihardt deed unambiguously conveyed fee simple title to the railroad, the

NITU did not affect a taking of property held through these conveyances. Preseault I, 494 U.S.

at 16.

F. The Condemnation Judgment

In the 1920’s the Tampa Southern Railroad Company sought to condemn property held

by Bonnie Tankersly and Mattie Davis, which resulted in a district court condemnation

judgment. Plaintiffs argue the 1926 condemnation judgment granted “an easement for railroad

purposes over and across the land now owned by Jane Shumway.” ECF No. 31-2 at 32. The

Government contends that the condemnation granted the railroad fee simple title to the covered

property. ECF No. 32 at 13. The condemnation judgment provides:

That the property sought to be condemned is described as follows:-

All that certain piece, parcel or strip of land situate, lying and

being in the Southwest Quarter . . . particularly described as

follows:

[The judgment describes the metes and bounds of the land.]

That the compensation made therefor shall be the sum of $61,500

Dollars . . . .

That the amount of said compensation shall be paid to Bonnie K.

Tankersley and Mattie V. Davies . . . .

It is considered by the Court that the property therein described be

appropriated by the Tampa Southern Railroad Company for use as

a right of way for said Railroad Company, upon the petitioner

paying . . . the compensation . . . .

ECF No. 31-9 at 7-8.

Plaintiffs are steadfast that the railroad could only acquire an easement through the

condemnation proceeding. But Florida precedent is clear that railroad companies can acquire fee

simple title by condemnation. In Atlantic Coast Line, the Florida Supreme Court explained: “A

railroad right of way in this state is not a mere easement or user for railroad purposes. Like other

property it is acquired by purchase or condemnation and vests a fee in the company acquiring it

which cannot be divested except as the law provides.” 154 So. at 332 (emphasis added). This

1934 decision, which is almost contemporaneous with the 1926 judgment here, makes clear that

railroads could acquire fee simple title through condemnation. 12 Likewise, while analyzing

instruments from the late 1800s and early 1900s, this court concluded that “under Florida statutes

applicable at the time, a railroad could acquire and hold fee simple title in property by either

purchase or condemnation.” Mills, 147 Fed. Cl. at 347 (emphasis added).

Plaintiffs next argue that because the railroad could operate with only an easement, that is

all it could acquire through the condemnation action. Specifically, Plaintiffs argue that “under

Florida law, the railroad could only acquire an easement for railroad purposes when it

condemned the land.” ECF No. 31-2 at 36. As Plaintiffs contend, “Florida adopted the principle

that, ‘[a] condemning authority exercising the power of eminent domain is not permitted to

acquire a greater quantity of property or interest therein than is necessary to serve the public

purpose for which the property is acquired.”’ Id. at 35 (quoting Trailer Ranch, Inc. v. City of

Pompano Beach, 500 So. 2d 503, 507 (Fla. 1986)). While this eminent domain limiting

presumption exists, it does not mean that railroads could, as a matter of law, only acquire

easements when acquiring land by eminent domain. Florida caselaw rejects this. Atl. Coast Line

R.R. Co., 154 So. at 332. Again, under Florida law, a railroad may acquire fee simple by

condemnation so long as it is necessary to accomplish the public purpose for which the property

is acquired. And “when the law says that private property may be taken for public use only

when it is necessary for such use, it means a reasonable, not an absolute necessity.” Wilton v. St.

Johns Cnty., 123 So. 527, 535 (Fla. 1929).

12

The court does not understand this statement to be an absolute statement that all rights of way

are considered fee simple estates under Florida law. Rather, as Judge Williams explained in

Rogers I, the statement in Atlantic Coast Line was made in a case where the parties agreed that

the railroad owned the right of way in fee. 90 Fed. Cl. at 430. Indeed “longstanding precedent”

in Florida also makes clear that railroads could hold a right of way as easements. Id. (collecting

cases). But this language does confirm that railroads could obtain fee simple title through

condemnation.

The next question is how to interpret the condemnation judgment. In Rogers V, the

Florida Supreme Court did not address this issue because there were no condemnation judgments

at issue in that case. Rogers V, 184 So. 3d at 1096. Other Florida courts, however, have held

that “[t]he legal operation and effect of a judgment must be ascertained by a construction and

interpretation of its terms, and this presents a question of law for the Court.” Boynton v. Canal

Auth., 311 So. 2d 412, 415 (Fla. Dist. Ct. App. 1975); see also Morris v. Winbar LLC, 273 So.

3d 176, 179 (Fla. Dist. Ct. App. 2019) (same). And “[i]f the language used in a judgment is

ambiguous then it may be construed, but if the language employed is plain and unambiguous

there is no room for construction nor interpretation, and the effect thereof must be determined in

the light of the literal meaning of the language used.” Boynton, 311 So. 2d at 415.

The language of the condemnation judgment is ambiguous as to the title being taken. On

one hand, the condemnation judgment’s language is expansive and describes the property

condemned as land, specifically as “[a]ll that certain piece, parcel or strip of land.” ECF No. 31-

9 at 7. This language is almost the same as seen in the conveyances discussed above, indicating

a transfer of the fee estate. See Rogers I, 90 Fed. Cl. at 429-31; Rogers II, 93 Fed. Cl. at 619.

And while the judgment states the property was “appropriated by the Tampa Southern Railroad

Company for use as a right of way for said railroad company,” ECF No. 31-9 at 8, there is no

limiting language restricting the use of the right of way to railroad purposes. In Rogers V, the

Florida Supreme Court stated that when discerning the intent of a deed, the inclusion of a

purpose for the transaction, without more, does not indicate an intent to convey only an

easement. Rogers V, 184 So. 3d at 1095. Finally, there is no reversionary language.

On the other hand, Plaintiffs argue the judgment conveyed an easement because “[i]t is

well settled that the grant of a right of way is usually understood to constitute an easement.”

ECF No. 31-2 at 33. Plaintiffs rely on Nerbonne, N.V. v. Florida Power Corp., 692 So. 2d 928,

928 n.1 (Fla. Dist. Ct. App. 1997), for the proposition that “[t]he conveyance of a right-of-way is

generally held to create only an easement. ECF No. 31-2 at 33. Similarly, as Judge Bruggink

explained: “We think the better view is that a ‘right-of-way’ for railroad purposes should be

construed according to its natural meaning, i.e. ‘[t]he right to pass through property owned by

another.’” Mills, 147 Fed. Cl. at 347 (quoting Right-of-Way, Black’s Law Dictionary (11th ed.

2019)).

Mills and Nerbonne are also distinguishable. In Mills, “there was no reference . . . to . . .

anything that might look like a fee estate.” Id. This judgment, however, has language that

indicates it conveys fee simple (i.e. the taking of land). And as discussed above, under Florida

law “right of way” language alone is not determinative— “the term right-of-way . . . can refer

either to . . . an easement—or . . . an estate in fee. Whether the railroad obtains a ‘right’ or ‘land’

depends on the [parties’] intent . . . .” Rogers II, 93 Fed. Cl. at 623 (internal citation omitted)

(quoting 43 Fla. Jur. 2d, Railroads § 32); see also Rogers V, 184 So. 3d at 1094-95.

Nerbonne concerned the grant of a permit, not a condemnation action. Nerbonne, 692

So. 2d at 928. Moreover, the condemnation judgment here clearly conveyed “[a]ll that certain

piece, parcel or strip of land[,]” ECF No. 31-9 at 7, while in Nerbonne the conveyance granted “a

right-of-way for public road purposes and full authority to enter upon, construct and operate a

road over and upon the following described lands situate in Orange County.” Nerbonne, 692 So.

2d at 928. The judgment here, however, concerns the “property” rather than the right to operate

a railroad over it. See ECF No. 31-9 at 7. And the habendum clause in Nerbonne read “TO

HAVE AND TO HOLD the said easement or right-of-way unto the party of the second part and

its successors for the purpose aforesaid.” Nerbonne, 692 So. 2d at 928. There is no such

limitation in the condemnation judgment here.

Again, Florida courts are clear that the “effect of a judgment must be ascertained by a

construction and interpretation of its terms” and if unambiguous, the judgment “must be

determined in the light of the literal meaning of the language used.” Boynton, 311 So. 2d at 415.

Because the decree’s language is ambiguous, however, the court may look to extrinsic evidence

to interpret the terms of the decree. See Rogers II, 93 Fed. Cl. at 625 (“Florida courts have [ ]

admitted separate and contemporaneous deeds or instruments in order to discern the real intent of

an otherwise ambiguous instrument.”); Boynton, 311 So. 2d at 415 (“In cases of ambiguity or

doubt the meaning of the judgment must be determined by that which preceded it and that which

it was intended to execute. If a judgment cannot be interpreted from the language in the

judgment itself, the entire record may be examined and considered . . . .”). But the court must

not allow extrinsic evidence to change the terms of the judgment. E.g., Rogers II, 93 Fed. Cl. at

625) (“[E]xtrinsic evidence is allowable to the extent it ‘removes’ or clarifies the ambiguity, but

it may not be used to ‘vary, alter, or contradict a written instrument.’”) (quoting Whitfield v.

Webb, 131 So. 786, 788 (Fla. 1931)); Boynton, 311 So. 2d at 415 (when considering the extrinsic

evidence, “the adjudication should not extend beyond that which the language used fairly

warrants, since the purpose and function of construction is to give effect to that which is already

latent in the judgment”).

To address the ambiguity, the court finds it appropriate to consider filings made in the

1926 action 13 that Plaintiffs filed in this case to see what light they shed on the proper

interpretation of the judgment. Boynton, 311 So. 2d at 415 (allowing the court to review the

record of the condemnation proceeding to interpret the judgment). Because neither party

sufficiently briefed this issue, the court ordered “supplemental briefing on the issue of what

interest in property the railroad acquired by the 1926 condemnation judgment.” ECF No. 52.

The Government believes this evidence supports its position that the judgment transferred fee

simple to the railroad. ECF No. 55 at 2. Plaintiffs believe that the record shows the railroad got

only an easement. ECF No. 56 at 12. But both parties agree that it is appropriate for the court to

consider the filings in the district court action to construe ambiguities in the terms of the

condemnation judgment. ECF No. 55 at 2; ECF No. 58 at 1.

As a starting point, the court looks at each party’s proposed jury instructions to

understand what the parties were asking the jury to do in the condemnation action. The

railroad’s proposed instruction reads:

The jury are instructed that, in considering the compensation to be

paid to the defendant for the land about to be taken, they are to fix

the actual cash market value of the land taken. And they are

further instructed that they are not to consider the price at which

13

The court recognizes that this judgment is 98 years old and the record available to the court is

limited. Plaintiffs have filed all the records they could locate from the 1926 docket. ECF No. 56

at 6 n.7.

the property would sell for under special or extra-ordinary

circumstances, but its fair market value, if sold in the market under

ordinary circumstances for cash, and not on time, and assuming

that the owners are willing to sell and the purchaser is willing to

buy . . . .

*****

Market value is the amount the strip would sell for if put upon the

open market, and sold in the manner in which property is

ordinarily sold for cash in the community where it is situated, with

a reasonable time being given to find a purchaser and make the

sale.

ECF No. 31-9 at 25-26. And the property owners’ proposed jury instruction reads:

In fixing the compensation to be paid the owners for the land

sought to be taken it is proper for you to determine whether or not

the proposed appropriation imposes an injury or impairment of

value to the adjoining land of Defendants of the same tract from

which this land is taken and in fixing the amount of compensation

to be awarded by you[,] you should include the amount of such

injury if any there be in your award.

Id. at 29.

At the outset the court acknowledges that it is not clear which of these proposed

instructions was given, if it was a combination of the two, or something else entirely. But the

court does consider these proposed instructions relevant in discerning what the parties thought

the condemnation judgment would do. Both instructions charge the jury with considering what

the land would sell for if put on the open market. They do not instruct the jury to determine the

value of a right of way for railroad use or a sale of an easement in the land. And both refer to the

property at issue as the “land about to be taken,” id. at 25 (emphasis added), or the “land sought

to be taken,” id. at 29 (emphasis added). As the property owners put it, “it is proper for you to

determine whether or not the proposed appropriation imposes an injury or impairment of value to

the adjoining land of Defendants of the same tract from which this land is taken . . . .” Id.

(emphasis added). Because the taking of an easement would not remove land from the

landowners’ tract, this statement indicates that the landowners thought that the property the

railroad was condemning would be taken from the land that they would retain. This indicates

that the condemnation action would result in the taking of property, not an easement to use that

property.

Another document found in the district court records is an agreement by the parties

delineating the land to be condemned, which also indicates that they understood that the district

court was condemning the fee simple estate:

It is agreed that the area of the land sought to be taken in this

proceeding and shown in and on the map filed . . . as plaintiffs

Exhibit No. 2 is as follows:-

From the East extremity . . . to the line marked “B” is (1.74) . . .

acres. From the line on the area in red marked “B” to the line

marked “A” is (2.01) . . . acres and from the said line marked A to

the North end of the area marked in red is (5.23) . . . acres.

And that the triangular tract in the South . . . is approximately 5

acres.

ECF No. 31-9 at 43. This document—signed by both parties—indicates that what was being

taken was land rather than an easement.

While Plaintiffs spend much of their supplemental briefs discussing historical

background and rehashing arguments that a railroad may not acquire fee simple by

condemnation, Plaintiffs also assert that the condemnation proceedings indicate the court

condemned the property as an easement. ECF No. 58 at 3-4. Plaintiffs emphasize the use of

right of way language in the condemnation petition, the show cause order, the property owners’

answer, and the condemnation judgment. ECF No. 56 at 9-10. They argue “[i]t is manifest in

these condemnation pleadings that everyone concerned, the railroad, the owners and the court, all

referred to the railroad’s interest as a ‘right-of-way’ for the specific ‘purpose’ of constructing and

operating a railway line.” Id. at 28.

It is true that some of the condemnation proceeding documents use right-of-way

language. The Petition to Condemn the property states: “Petitioner further says it is authorized,

under the laws of the State of Florida, to take and condemn real estate for purposes necessary for

its use as a railroad.” ECF No. 31-9 at 38 (emphasis added). And “Petitioner further shows

unto the Court that the taking of the said property by your petitioner is for the purpose of its use

as a right of way for the construction of its railroad, and that the said property is necessary for

that purpose.” Id. at 40 (emphasis added). The Show Cause Order instructs parties to appear

“and to show cause why said property should not be taken for the uses and purposes set forth in

the petition filed by the Tampa Southern Railroad Company.” Id. at 24 (emphasis added). The

property owners’ answer also uses right of way language, but unlike the other documents this

language does not describe the land being condemned as a right of way. See id. at 32-34.

Regardless, all this right of way language must be viewed in context of the condemnation

proceeding.

In Rogers V, the Florida Supreme Court explained that in the 1920s, Section 4354 in the

Revised General Statutes of Florida (1920) applied. 184 So. 3d at 1092-93. This statute

provided:

Every railroad and canal company shall be empowered

*****

[t]o lay out its road or canal . . . and to construct the same, and, for

the purpose of cuttings and embankments and for obtaining gravel

and other material, to take as much land as may be necessary for

the proper construction, operation and security of the road or

canal, or to cut down any trees that may be in danger of falling on

the road or into the canal, making compensation therefor as

provided for land taken for the use of the company.

Id. (citation omitted) (emphasis added). Section 4354 accordingly applied at the time of the

1926 condemnation. Thus, to exercise eminent domain power and effectuate a taking, the

railroad would have had to prove that it was seeking “to take . . . land . . . necessary for the

proper construction, operation and security of the road.” Id. Indeed, under Florida law “where

the statute conferring the authority, or the statute on the subject of eminent domain, limit the

taking to such property as may be necessary for the purpose in question, whether any necessity

exists for taking particular property for a particular purpose is ultimately a judicial question,

upon which the owner is entitled to be heard.” Wilton, 123 So. at 535. The railroad would,

therefore, have had to show it was seeking to condemn the land for the purpose of construction

and use of a railroad. And if the railroad was not seeking to condemn for such a purpose or did

not include such purpose in its petition, the taking could be challenged by the landowner. See

Spafford v. Brevard Cnty., 110 So. 451, 455 (Fla. 1926) (“[W]here the sovereign power is

delegated with limitations or conditions upon the exercise of the right of eminent domain, the

owner of property sought to be taken under such delegated authority has a right to be heard in an

appropriate tribunal upon the question of whether delegated authority is being duly exercised in

taking his property.”).

In this case, there was a challenge to the condemnation because the landowners argued

that it was not for railroad purposes. In their answer, the property owners argued the railroad

“seeks in and by said petition to condemn certain land in said petition particularly described,

which is not essential for the construction of its line of railroad . . . but beyond the destiny and

termination of its purposes and authority and its power to extend and proceed with its said road.”

ECF No. 31-9 at 33 (emphasis added). Accordingly, the right of way language in the

condemnation documents does not conclusively show an intent to condemn only an easement.

Rather, it is likely that the railroad was merely complying with Florida law by asserting that it

was seeking to condemn the land for a proper purpose, and to defeat the potential challenge by

the landowners. Therefore, the court does not believe the fact that the railroad sought “to take

and condemn real estate for purposes necessary for its use as a railroad” necessarily means that

the railroad sought only an easement. See ECF No. 31-9 at 38. If the court construed the

language stating the purpose of the condemnation was to construct a railroad conclusively meant

that a railroad sought an easement, it would appear impossible that a railroad could obtain a fee

simple estate through condemnation under a statute that requires the condemnation to be

necessary to the operation of a railroad. But, as explained above, Florida law recognizes the

railroad’s ability to obtain a fee simple estate through condemnation.

Plaintiffs also claim that “[n]o Florida court presented with language similar to the

condemnation pleadings . . . has concluded a railroad acquired title to the fee estate in a strip of

land.” ECF No. 56 at 35. And they assert “should this Court believe Florida law is ambiguous

or unsettled as to whether the 1926 condemnation verdict actually granted title to the fee simple

estate . . . this Court should certify this question to the Supreme Court of Florida.” Id. It does

not seem like a disputed proposition that a condemnation judgment should be interpreted like a

deed insofar as the court must look to the language of the judgment to ascertain the nature of the

estate conveyed. Boynton, 311 So. 2d at 415. That is what this court has done and that is what

the court believes Florida law requires.

Regardless, Plaintiffs’ requested certification is not possible. Although they cite the

Florida Constitution as a means by which this court may certify a question to the Florida

Supreme Court, ECF No. 56 at 2, they fail to address the language of that document. Instead,

they rely on a prior decision of this court certifying a question to the Indiana Supreme Court

under Indiana law. Id. at 38-39. Of course, the question is one of Florida law, not Indiana law.

And the Florida Constitution provides that the Florida Supreme Court “[m]ay review a question

of law certified by the Supreme Court of the United States or a United States Court of Appeals

which is determinative of the cause and for which there is no controlling precedent of the

supreme court of Florida.” Fla. Const. art. V, § 3(b)(6) (emphasis added). And the Florida rules

specify “[o]n either its own motion or that of a party, the Supreme Court of the United States or a

United States court of appeals may certify . . . questions of law to the Supreme Court of Florida

if the answer is determinative of the cause and there is no controlling precedent of the Supreme

Court of Florida.” Fla. R. App. P. 9.150(a) (emphasis added). This court is undeniably not the

Supreme Court of the United States nor a United States Court of Appeals. Thus, under Florida

law, this court may not certify a question of law to the Florida Supreme Court even if this court

thought it appropriate. If Plaintiffs want a question certified to the Florida Supreme Court, they

must convince the Federal Circuit to do so.

Finally, in their supplemental briefing, Plaintiffs contend that the condemnation judgment

only created an easement because Tankersley and Davis continued to hold their property and

wound up before the Florida Supreme Court regarding who held title to the land. ECF No. 56 at

35. Before turning to the specific legal arguments, a review of the history of the conveyances to

Tankersley and Davis is necessary.

J.C. Bishop owned a parcel of land in fee simple that included the land at issue in the

condemnation action. Tankersley v. Davis, 175 So. 501, 502 (Fla. 1937). He was the father of

Tankersley and Davis. On March 14, 1924, Bishop conveyed a life estate in part of his land to

Tankersley with fee going to her children. Id. at 502-03. If Tankersley died without a child,

however, Davis would inherit the life estate and her children would get fee simple title to the

property. Id. If Davis had no living children, then fee would pass to Davis’s heirs. Id. at 503.

At the same time, Bishop conveyed a life estate in another part of his land to Davis with fee

going to her children. Id. In the event Davis died without children, Tankersley would get a life

estate with fee going to her children. Id. If she died without children, then fee would pass to her

heirs. Id. At some point between conveying the property interests and the filing of the

condemnation action, Bishop died, leaving Tankersley and Davis as the only ones holding a

present interest in the land that the railroad sought to condemn. The district court entered its

condemnation decree at issue in this case in 1926. Tankersley died in 1927. Sorting out the

various property interests in Bishop’s property resulted in litigation before the Florida Supreme

Court, which concluded that Davis owned fee simple title to the property conveyed by her father.

Id. at 505.

Plaintiffs assert that the fact that the Florida Supreme Court determined that Davis held

fee simple title to the parcels conveyed by her father means that the railroad could only have held

an easement burdening that property. ECF No. 56 at 4-6. This argument, however, presumes

that the railroad sought to condemn the entirety of both parcels that Bishop conveyed to

Tankersley and Davis. But that is clearly not what the condemnation sought to do. Although the

court does not have before it the metes and bounds of the various Bishop parcels, Tankersley and

Davis clearly understood that the railroad was not seeking to take all their property. Indeed, their

proposed jury instruction recognized that they would retain their interests in the “adjoining land

of Defendants of the same tract from which this land is taken.” ECF No. 31-9 at 29. In other

words, the property at issue in Tankersley was not the same property at issue in the

condemnation action, it was the “adjoining land” that remained after the district court removed

the property from the Tankersley and Davis parcels. Indeed, the Florida Supreme Court makes

no reference to any encumbrance on either parcel at issue in Tankersley. Given the significant

length at which the Florida Supreme Court traced all the relevant property interests and various

estates that different parties held in the property, the failure to mention any interest of the

railroad indicates that there was no such encumbrance (i.e., there was no easement over the

property that Davis held in fee simple).

In the end, although the district court judgment is ambiguous as to the estate being

condemned, the review of the record before the district court demonstrates that the parties

understood that fee simple title was being taken. Therefore, the court concludes that the

condemnation judgment affected the taking of fee simple title and there was no reversionary

interest that would have reverted to Plaintiffs but for the NITU. Therefore, there was no taking

of their property.

G. Motion to Sever Claims

Plaintiffs also requested this court “under Rule 20 and for the effective administration of

justice, to sever the [three] claims” arising out of the Honore deed, ECF No. 20 at 1, as well as

“order that these owners’ claims proceed to a final determination of the specific compensation

due each owner,” id. at 14. The Government opposed the motion “because severing the three

claims for which the Government has stipulated to liability (the “Honoré Properties”) would be

inefficient and costly” and it explained “[i]f and when Plaintiffs’ counsel make a settlement

offer” concerning these claims “undersigned counsel will review the offer and respond

accordingly.” ECF No. 22 at 1.

RCFC 21 sets forth that “[o]n motion or on its own, the court may at any time, on just

terms, add or drop a party. The court may also sever any claim against a party.” It is within the

court’s discretion to sever a claim and RCFC 20 provides guidance in determining whether

parties or claims are misjoined. In re Nintendo Co., Ltd., 544 F. App’x 934, 938 (Fed. Cir.

2013); see also RCFC 20(a)(1) (“Persons may join in one action as plaintiffs if: (A) they assert

any right to relief jointly, severally, or in the alternative with respect to or arising out of the same

transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or

fact common to all plaintiffs will arise in the action.”). At this stage, severance of any claims is

futile. The Honore claims are the only claims that survive the motion for summary judgment and

therefore there are no other claims from which to sever them. Given this, Plaintiffs’ motion to

sever the Honore claims is denied as moot.

IV. CONCLUSION

For the foregoing reasons, the Plaintiffs’ Motion for Partial Summary Judgment, ECF

No. 31, is DENIED. The Government’s Cross-Motion for Partial Summary Judgment, ECF No.

32, is GRANTED. Plaintiffs’ Motion to sever the Honore claims, ECF No. 20, is DENIED.

The Clerk’s Office is directed to:

1. Enter judgment for the Government on the claims of the successors-in-interest of the

Sarasota Land Company: Deborah Barron; John Buenaventura Baez; James Achille; Jonathan

Achille; the ALB Revocable Trust; the RPB Revocable Trust; Courtyard Villas, LLC; the Mallon

Family Trust; Ronald Nourse; Old Forest Lakes Owners’ Association; Gilda Pascual; Stephen

Stiller; Christopher Wormwood; and Sharon Krueger.

2. Enter judgment for the Government on the claim of the successor-in-interest of Mr.

Clough: James Musselwhite.

3. Enter judgment for the Government on the claims of the successors-in-interest of Mr.

Neihardt: Enos Weaver, Jr. and Anna Mary Weaver.

4. Enter judgment for the Government on the claims of the successors-in-interest of Mr.

and Mrs. Burton: Willis Martin, Alta Martin, James Myers, and Katherine Myers.

5. Enter judgment for the Government on the claims of the successor-in-interest of Ms.

Tankersley and Ms. Davis: Jane Shumway.

Pursuant to Rule 54(b), the court determines that there is no just reason for delay entering

judgment for the Government as to the claims of the Plaintiffs listed above.

It is so ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge