rejecting arguments based on parol evidence that would limit the fee simple estate conveyed in a deed that included the phrase “to have and to hold the same in fee simple forever”
How later courts described this case
- rejecting arguments based on parol evidence that would limit the fee simple estate conveyed in a deed that included the phrase “to have and to hold the same in fee simple forever”
- “[W]e must apply the law of the state where the property interest arises.”
- “Thus, when an interest is conveyed as a right of way, whether the railroad obtains a right or land depends on the intent of the parties as reflected by the deed of conveyance.” (cleaned up
- applying Section 3787 to decide a deed “not under seal is ineffectual to convey the title of the grantor attempte[d] to be conveyed”
Written by the judges who cited it.
The opinion
In the United States Court of Federal Claims
No. 19-757 L
Filed: February 11, 2025
________________________________________
)
4023 SAWYER ROAD I, LLC, 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 was Lisa Lynne Russell, Deputy
Assistant Attorney General, United States Department of Justice, Environment & Natural
Resources Division.
OPINION AND ORDER
MEYERS, Judge.
Presently before the court are Plaintiff landowners who claim the Government took their
property interests in a railway corridor in Florida that was built to transport the Ringling Brothers
Circus. A few months ago, the court addressed the claims of another group of landowners whose
claims sprung from the same railway line and involved many of the same deeds as this case.
Barron v. United States, 174 Fed. Cl. 114 (2024). Because there is no reason to reinvent the
wheel for this case, the court applies the principles of law explained in Barron to this case as
well. Because the railroad held fee simple title to some properties and easements over others, the
court grants-in-part both cross-motions for partial summary judgment.
I. Background
This case pertains to 7.68 miles of the Venice Branch rail line in Sarasota County, Florida
between milepost SW 890.29 and 884.70 and milepost AZA 930.30 and 928.21. ECF No. 115-1
at 5 (Def.’s Ex. 1). 1 The railroad 2 filed a verified notice of exemption to abandon the Venice
Branch with the Surface Transportation Board (“STB”) on March 8, 2019. Id. at 5-9. On April
22, 2019, the Sarasota County Board of County Commissioners filed a request for public use and
a request for interim trail use with the STB. Id. at 34-37 (Def.’s Ex. 2). The STB issued a
Notice of Interim Trail Use or Abandonment (“NITU”) on May 14, 2019. Id. at 39-43 (Def.’s
Ex. 3). This action followed.
This case involves 214 Plaintiffs who claim the STB’s issuance of the NITU effected a
taking of their reversionary interests in the land underlying the railroad corridor. ECF No. 111-1
at 1. On December 18, 2024, the court bifurcated the claims of forty-seven Plaintiffs whose
claims the Government does not dispute 3 and deferred ruling on the claims of another 124
Plaintiffs whose claims rely on the deeds at issue in Barron v. United States, which is currently
on appeal to the Federal Circuit. ECF No. 136. Thus, the court addresses the remaining forty-
three Plaintiffs’ claims that rely on deeds, conveyances, or factual circumstances not previously
addressed in Barron.
Thirty-eight Plaintiffs’ interests in the railroad corridor arise from three documents: the
Honore Palmer and Potter Palmer (“Palmer”) conveyance, the Florida Mortgage and Investment
1
Because many of the exhibits in this case include multiple documents without consecutive
pagination, the court cites to the pagination in the ECF header for all documents other than the
Parties’ briefs.
2
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.
3
The Government does not oppose Plaintiffs’ motion for partial summary judgment for those
forty-seven Plaintiffs who are successors-in-interest to Adrian Honore. Accordingly, the court
grants Plaintiffs’ motion as to the successors-in-interest to Adrian Honore: 4023 Sawyer Road 1,
LLC; Julia R. Adkins and Austin C. Murphy; Randal S. and Joyce S. Albritton; Louis L.
Alderman, Jr., as Trustee of the Louis L. Alderman 2013 Revocable Trust; Bradley S. and Susan
B. Anderson; Geoffrey L. Bolton; Nicholas J. and Danette L. Boris; Endia K. and Gary Callahan;
Martin Carrillo-Plata; John and Joanne Cisler; Steven R. and Virginia M. Courtenay; Elise J.
Duranceau; William and Brooke Grames; Vincent and Karen Guglielmini; Noel K. Harris;
Angelo and Sarah J. Hoag; Larry E. Hudspeth; Daniel L. and Kristin Jadush; Judy H. Johnson;
Kenneth J. and Margaret A. Kellner; Joseph R. Knight; Patrick J. and Lisa A. Loyet; Kassandra
Luebke and Elaine Luebke; Thomas W. Marchese; Reuben S. and Kathy J. Martin; Jason J. and
Karen McGuire; Sue Moulton; Timothy and Mary Murphy; James Kirt, Nicholas James and
Christopher Andrew Nalefski; Perry M. and Pamela S. O’Connor; Sueko O’Connor; Michele and
Dorothy Ann Paradiso; Thomas Pearson; Todd A. and Carmen Perna; Patricia Lynne Pitts-
Hamilton; Pro Properties, LLC; Justin M. Reslan; Allen B. and Mary Ann E. Rieke; Michael A.
Ritchie; Chad, Grace, and Robert Schaeffer; Faith H. Simolari, As Trustee of the Philip Simolari
Revocable Trust; Russell S. Strayer; James H. and Glenda G. Thornton; Kenneth D. and Susan
K. Wells; David A. and Anna I. Ruiz-Welsher; Zbigniew and Wislawa Wrobel; and Stephen and
Margaret Zawacki.
2
Company (“FMIC”) conveyances recorded on pages 532 and 536 4 of Book 10, and the Charles
Ringling Company (“Ringling”) conveyance.
Three Plaintiffs claim property interests in land that the railroad acquired by possession,
and they move for partial summary judgment that the NITU effected a taking of their
reversionary interests in that land. ECF No. 111-1 at 73-75. The Government opposes summary
judgment for these three Plaintiffs because, it argues, further factual development is necessary on
these Plaintiffs’ claims, Plaintiffs have not made the requisite showing of property interests in
the land, and the railroad obtained fee simple title to the land via adverse possession. ECF No.
115 at 30-31; ECF No. 127 at 9-10.
The Parties do not agree which document governs the claims of the remaining two
Plaintiffs. ECF No. 140.
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 non-movant 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.
III. Discussion
A. Rails-to-Trails Takings Actions
“[T]o preserve shrinking rail trackage,” Congress enacted the National Trails System Act
Amendments of 1983 to allow “converting unused rights-of-way to recreational trails.”
Preseault v. Interstate Com. Comm’n (Preseault I), 494 U.S. 1, 5 (1990) (footnote omitted); see
also 16 U.S.C. § 1241 et seq. The Trails Act does so “through a process known as
4
Like the Parties, the court refers to these as the FMIC 532 and 536 conveyances.
3
‘railbanking.’” Caldwell v. United States, 391 F.3d 1226, 1229 (Fed. Cir. 2004). “Railbanking
maintains the STB’s jurisdiction over the dormant corridor, but allows a third party to assume the
. . . responsibilities of the right-of-way, preserve the right-of-way for future rail use, and, in the
interim, convert the corridor into a recreational trail.” Chi. Coating Co. v. United States, 892
F.3d 1164, 1167 (Fed. Cir. 2018) (citing Preseault I, 494 U.S. at 6-7); see also Ellamae Phillips
Co. v. United States, 564 F.3d 1367, 1370 (Fed. Cir. 2009) (citing 16 U.S.C. § 1247(d)).
Railbanking typically begins with the railroad filing a standard abandonment application
or requesting an exemption from filing the application. Caldwell, 391 F.3d at 1229; Chi.
Coating, 892 F.3d at 1167 (citing 49 C.F.R. §§ 1152.29, 1152.50). The railbanking process then
diverges from the abandonment process when “the railroad and trail operator indicate willingness
to negotiate a trail use agreement, [so] the STB stays the abandonment and issues” a NITU.
Caldwell, 391 F.3d at 1229-30 (citing 49 C.F.R. § 1121.4). The NITU “operates to prevent
abandonment of the corridor and to preclude the vesting of state law reversionary interests in the
right-of-way.” Id. at 1233-34; Ellamae Phillips Co., 564 F.3d at 1370 (“Congress provided in
the [Trails] Act that conversions to trail use that were subject to reactivation of rail service on the
route did not constitute abandonment.” (citing 16 U.S.C. § 1247(d))).
“The operation of the Trails Act is subject to the Fifth Amendment . . . .” Rogers v.
United States (Rogers I), 90 Fed. Cl. 418, 427 (2009) (citing U.S. Const. amend. V). A taking
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 (citing Preseault v. United States (Preseault II), 100 F.3d
1525, 1543 (Fed. Cir. 1996) (en banc)); see also Rogers I, 90 Fed. Cl. at 427.
At issue here is “whether the landowners had property interests in the right-of-way and
whether the Government’s actions constituted a taking of those interests” because “[i]n any
takings case, ‘only persons with a valid property interest at the time of the taking are entitled to
compensation.’” Rogers I, 90 Fed. Cl. at 428 (quoting Wyatt v. United States, 271 F.3d 1090,
1096 (Fed. Cir. 2001)). To determine whether the Government took Plaintiffs’ property
interests, the court must resolve three questions: (1) “did the [r]ailroad . . . obtain fee simple
[absolute] estates;” (2) if not, were the terms of the railroad’s property interests “limited to use
for railroad purposes, or did they include future use as public recreational trails”; and (3) even if
the railroad’s property interests “were broad enough to encompass recreational trails, had these
[property interests] terminated prior to the alleged taking so that the property owners at that time
held [unencumbered] fee simples.” Preseault II, 100 F.3d at 1533.
This case turns on the first two questions. Under the first question, “[i]f the railroad
company owns the land in fee simple [absolute], then the Government cannot have committed a
taking and the analysis ends.” Chi. Coating Co., 892 F.3d at 1170 (citing Preseault II, 100 F.3d
at 1533). And under the second question, there is a taking if the property interest “granted to the
railroad under state property law is not broad enough to encompass a recreational trail.”
Caldwell, 391 F.3d at 1229.
4
To answer these questions, the court analyzes “the property rights of the parties in a rails-
to-trails case under the relevant state’s law.” Castillo v. United States, 952 F.3d 1311, 1319
(Fed. Cir. 2020); Chi. Coating Co., 892 F.3d at 1170 (“[W]e must apply the law of the state
where the property interest arises.”). Here, the court applies Florida law.
B. Principles of Deed Construction under Florida Law
This court recently distilled the principles of deed construction under Florida law in two
rails-to-trails takings actions, Barron v. United States, 174 Fed. Cl. 114 (2024), appeal docketed,
No. 25-1179 (Fed. Cir. Nov. 14, 2024) and Kent v. United States, Nos. 15-365 L, 18-1591 L,
2025 WL 227490 (Fed. Cl. Jan. 17, 2025). The court applies the same principles of Florida law
that it explained at length in Barron to this case.
To recap, under Florida law, the intent of the grantor “governs the interpretation” of a
conveyance. Barron, 174 Fed. Cl. at 122 (internal quotation marks omitted) (quoting Rogers v.
United States (Rogers III), 107 Fed. Cl. 387, 393 (2012)). Courts look to the language of the
conveyance to discern that intent, “both as to the character of [the] estate and the property
attempted to be conveyed.” Id. (internal quotation marks omitted) (quoting Rogers III, 107 Fed.
Cl. at 393). If the language is unambiguous, then the court must discern the grantor’s intent from
that language. Id. (quoting Saltzman v. Ahern, 306 So. 2d 537, 539 (Fla. Dist. Ct. App. 1975)).
“‘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.’” Id. (quoting Seaboard Air Line Ry. Co. v. Dorsey, 149 So. 759, 761 (Fla.
1932)). While not required, certain language indicates the grantor intended to transfer a fee
simple estate: “an expansive granting clause that lacks any restrictive or limiting clauses,” a
description of “the interest conveyed as ‘land,’” and “[c]ovenants warranting title.” Id. at 122-
23. On the other hand, “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.” Id.
at 123 (citing Rogers I, 90 Fed. Cl. at 430-31). Language that describes the interest conveyed as
a “right-of-way” is not determinative of whether the grantor intended to convey an easement or a
fee simple estate; rather, the grantor’s intent depends on the other unambiguous language in the
conveyance. See id. (“Thus, when an interest is conveyed as a right of way, whether the railroad
obtains a right or land depends on the intent of the parties as reflected by the deed of
conveyance.” (cleaned up) (quoting Rogers v. United States (Rogers II), 93 Fed. Cl. 607, 623
(2010))).
Plaintiffs raise three arguments regarding Florida deed construction here that differ from
their briefing in Barron.
First, Plaintiffs contend that this court misapplied Section 689.10 of the Florida Statutes
when the court relied on it for the proposition that Florida presumes a grantor transfers fee
simple (or the greatest interest the grantor may convey) unless contrary language appears in the
deed. ECF No. 111-1 at 27-29. According to Plaintiffs (without citation to Florida law), the
statutory presumption does not apply to easements. ECF No. 122 at 18-19. In Rogers v. United
States (Rogers IV), 184 So. 3d 1087 (Fla. 2015), the Florida Supreme Court explained that the
effect of Section 689.10 “is that a deed is presumed to convey fee simple title, or whatever title
5
the grantor had power to convey, unless a contrary intention is shown by the language of the
deed.” Id. at 1095 n.5. While Rogers IV appeared to deal conclusively with this issue, the court
took the opportunity to further research Plaintiffs’ argument to confirm that the court’s prior
reliance on Section 689.10 was appropriate under Florida law.
The most analogous decision the court identified was Holland v. State, 388 So. 2d 1080
(Fla. Dist. Ct. App. 1980). In Holland, landowners “convey[ed] a strip of Santa Rosa County
land to the State . . . for road right of way purposes.” Id. at 1081. This grant was by warranty
deed for compensation—i.e., it was a typical sale of property by a willing seller to a willing
buyer. See id. Following the discovery of oil and gas, the grantors sought to limit the scope of
the interest conveyed in the warranty deed to an easement that did not grant subsurface mineral
rights. Id. Relying on Section 689.10, the court rejected the grantors’ argument, recognizing
that there were no words of limitation in the deed. Id. at 1081-82. And the fact that the deed
stated it was “for right of way purposes” did not create any ambiguity as to the estate conveyed.
Id. at 1081. The court explained that the grantors’ arguments failed because they “propose[d]
improperly to impeach ‘the language of which the instrument is the repository.’ That language
expresses the estate conveyed. Section 689.10.” Id. (internal citation omitted). To be clear, the
Plaintiffs’ argument that Section 689.10 does not apply to easements is irreconcilable with
Holland, which, although not binding, is persuasive on the meaning of Florida law. When
coupled with the clear statement in Rogers IV, the only conclusion that this court can reach is
that Section 689.10 applies to conveyances like those in this case and Barron.
Second, Plaintiffs argue the Supreme Court, Federal Circuit, and Florida law dictate that
a conveyance grants an easement when it describes the railroad’s property interest as a “right-of-
way.” ECF No. 111-1 at 21-22, 50-51; ECF No. 122 at 12-17. Plaintiffs point to the Court’s
decisions in Brandt Revocable Trust v. United States, 572 U.S. 92 (2014), and U.S. Forest
Service v. Cowpasture River Preservation Association, 590 U.S. 604 (2020). ECF No. 111-1 at
21-22, 50-51; ECF No. 122 at 12-14, 16. While both cases describe a “right-of-way” as an
easement, neither case turns on Florida law, so neither case controls the outcome here. See
Brandt Revocable Tr., 572 U.S. at 95, 104-06 (concluding the railroad’s right-of way under the
General Railroad Right-of-Way Act of 1875 was an easement that terminated upon
abandonment); Cowpasture River Pres., 590 U.S. at 613-15 (deciding that the Forest Service’s
“right-of-way” in the Appalachian Trail was only an easement and not “federal lands” under the
Leasing Act). Plaintiffs also point to the Federal Circuit’s decision in Barlow v. United States,
86 F.4th 1347 (Fed. Cir. 2023). ECF No. 122 at 14-15. The Barlow decision also did not affect
Florida law as the Federal Circuit applied Illinois law to determine that the words “right-of-way”
indicated the conveyance of an easement. 86 F.4th at 1354-55.
The only case from this court that applied Florida law, and that Plaintiffs cite to support
their point, is this court’s decision in Mills v. United States, 147 Fed. Cl. 339 (2020). ECF No.
111-1 at 21-22, 51; ECF No. 122 at 14, 16. While the court stated “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 (alteration in original) (quoting Right-of-
Way, Black’s Law Dictionary (11th ed. 2019)), this statement arose in the analysis of a document
with other language indicative of an easement, see Barron, 174 Fed. Cl. at 133 (distinguishing
6
the document analyzed in Mills from a document containing indicia of a fee simple estate
transfer), and the court acknowledged that a railroad in Florida can acquire an easement or fee
simple estate in a right-of-way, Mills, 147 Fed. Cl. at 347. Accordingly, Mills does not depart
from other Florida cases; rather, it is consistent with the cases that hold the phrase “right-of-way”
is not determinative of the grantor’s intent. The court upholds its analysis of the phrase “right-
of-way” from Barron. See 174 Fed. Cl. at 123.
But the District Court of Appeal of Florida has weighed in as well. As discussed above,
Holland held that simply stating that a deed is for a right of way did not create an easement when
there were no words of limitation in the deed. That court also considered the argument in Robb
v. Atlantic Coast Line Railway Co., 117 So. 2d 534 (Fla. Dist. Ct. App. 1960). Like here, the
Robb court considered:
Does the general warranty deed conveying fee simple title create
less than the fee when it recites that the land is conveyed “for
right-of-was [sic] purposes”, without more? Except for the words
“for right-of-way purposes”, in all other respects Exhibit A is a
general warranty deed conveying fee simple title.
Id. at 536. The court concluded that “a conveyance is not conditional when [the] purpose for the
transfer is stated in the instrument of conveyance; words of forfeiture must be present.” Id. at
536-37 (emphasis added). Thus, “[a] fee will pass by a deed containing a clause or recital which
is merely declaratory of the use contemplated of the land.” Id. at 537. In sum, the Florida courts
and this court’s prior cases applying Florida law are in accord that the phrase “right-of-way”
alone is not sufficient to turn a conveyance of fee simple title into an easement. None of the
cases applying other states’ laws changes that outcome under Florida law.
Third, Plaintiffs ask the court to look beyond the language of the conveyances to
“customs . . . when the instrument was created” and “the context in which the instrument was
drafted.” ECF No. 111-1 at 19; see also id. at 22-26 (describing the history and context of the
conveyances); ECF No. 122 at 17, 20. Specifically, they contend “Florida, like other states,
follows the rule that written language controls over preprinted boilerplate form language and
that, if there is a conflict between the printed form and the handwritten or typewritten language
there is an ambiguity concerning the parties’ intent.” ECF No. 111-1 at 25; see also ECF No.
122 at 20. The court does not look to the context of the conveyances here because “if the
grantor’s intent is unambiguous from [the] language of the deed, the court does not consider
extrinsic evidence.” Barron, 174 Fed. Cl. at 125 (citing Rogers IV, 184 So. 3d at 1100). The
Florida authorities Plaintiffs cite support that the courts look to extrinsic evidence only when a
document contains internally inconsistent language. See McNair & Wade Land Co. v. Adams, 45
So. 492, 493 (Fla. 1907) (looking to “the intent, and not the words” to reconcile inconsistent
clauses within a conveyance); Enter. Leasing Co. v. Demartino, 15 So. 3d 711, 716 (Fla. Dist.
Ct. App. 2009) (deciding the presence of inconsistent “written and preprinted provisions” raises
a question of fact about the intent of parties entering a liability release). Thus, so long as the
conveyance language is consistent and unambiguous, the court need not look to extrinsic
evidence. Plaintiffs’ citation to Preseault II for this argument is also of no avail because the
Federal Circuit applied Vermont law, not Florida law. Preseault II, 100 F.3d at 1535-37
(applying Vermont law to conclude a form deed conveyed an easement instead of fee simple);
7
Barron, 174 Fed. Cl. at 128 (“Vermont law is not Florida law . . . .”). The court does not need to
look beyond the executed conveyances here.
C. In Florida, Railroad Companies May Hold Fee Simple Title in Land
Acquired for Building Railroads.
Plaintiffs raise largely the same arguments that the plaintiffs in Barron raised that the
railroad could not, as a matter of law, acquire fee simple title in the railroad corridor. The court
considered and addressed those arguments in Barron, and the court adopts its analysis from
Barron to address Plaintiffs’ arguments in the present case:
• “The fact that a railroad is a creature of state law does not prevent it from
receiving fee simple title from a willing grantor,” Barron, 174 Fed. Cl. at 125;
• Preseault II’s analysis based on Vermont law does not govern claims under
Florida law, id. at 128; 5
• “the strips and gores argument is inapplicable” to the conveyances in this case
because “the language is clear,” id. at 125 (cleaned up) (quoting Rogers IV, 184
So. 3d at 1099); and
• the Rogers quintet provide the governing legal principles applicable to these
cases, id. at 123-24. 6
5
Plaintiffs also argue Florida law operates similarly to Missouri law and points to the Federal
Circuit’s analysis of Missouri law in Behrens v. United States, 59 F.4th 1339 (Fed. Cir. 2023).
ECF No. 111-1 at 18. Like Vermont law, Missouri law does not govern this case, Barron, 174
Fed. Cl. at 128, so the Federal Circuit’s analysis of Missouri law in Behrens does not govern the
principles of Florida law in this case. More problematic for Plaintiffs is that the Florida Supreme
Court explicitly rejected the argument (based on Missouri law) that “nominal consideration [is] a
factor in discerning the grantor’s intent to convey an easement rather than the fee simple title,” as
this court explained in Barron; rather, “[t]he law of Florida . . . is that the amount of
consideration stated in a deed provides no basis for questioning the validity of the deed.”
Barron, 174 Fed. Cl. at 124-25 (quoting Rogers IV, 184 So. 3d at 1097).
6
Plaintiffs challenge Judge Williams’s analysis of the deeds’ language “excepting” a right-of-
way. ECF No. 111-1 at 51-52. As this court explained in Barron, the Florida Supreme Court
and Federal Circuit agreed with Judge Williams’s analysis of the deeds, so the court will not hold
to the contrary here. 174 Fed. Cl. at 123-24 (“[T]his 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.”); see also Rogers IV, 184 So. 3d at 1095 (“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. United
States, Nos. 2013-5098, 2013-5102, slip op. at 5 n.1 (Fed. Cir. filed July 21, 2014) (“While the
8
In sum, railroads may acquire fee simple title under Florida law, so the court still must
discern “what the grantors intended to convey in an unambiguous conveyance.” Barron, 174
Fed. Cl. at 125 (citing Rogers IV, 184 So. 3d at 1094-95). With this understanding of the
applicable Florida property law, the court turns to the property interests at issue in this case.
D. The Deeds
The court turns first to the three conveyances that govern thirty-eight Plaintiffs’ claims.
1. The Palmer Conveyance
Plaintiffs Thomas M. Fay and Joyce R. Fay (“Fays”) argue the Palmer conveyance
transferred only an easement to the railroad. 7 ECF No. 111-1 at 63. The Government does not
raise any arguments regarding the construction of the Palmer conveyance, which provides:
This Indenture[] . . . Between Honore Palmer and Potter Palmer[]
. . . and the TAMPA SOUTHERN RAILROAD COMPANY[] . . .
WITNESSETH: that [Honore Palmer and Potter Palmer], for and
in consideration of the sum of [blank] of lawful money of the
United States of America, to them in hand paid by the [railroad],
. . . have granted, bargained, sold, aliened, remised, released,
conveyed, and confirmed, and by these presents do grant, bargain,
sell, [alien], remise, release, convey, and confirm unto the
[railroad], and its successors and assigns, upon the terms and
conditions hereinafter set out, all of these certain tracts or parcels
of land . . .
[The document describes the conveyed land.]
Together with all and singular, the tenements, hereditaments and
appurtenances thereunto belonging or in anywise appertaining, and
the reversions reminders, rents, issues, and profits thereof and else
all the estate, right, title, interest, dower, and right of dower,
property possession, claim, and demand whatsoever of [Honore
Palmer and Potter Palmer], both in law and in equity of in and to
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.”).
7
The Government claims that the parcels controlled by the Palmer conveyance are controlled by
the FMIC 536 conveyance. ECF No. 115 at 15 n.4. The Government states, “Plaintiffs agree,”
id., but the document that the Government cites for their agreement, ECF No. 111-3 (Pls.’ Ex. 1),
still maintains that the Palmer conveyance governs the Fays’ claims. ECF No. 111-3 at 5 (Pls.’
Ex. 1). The Government did not challenge Plaintiffs’ arguments at oral argument that the Palmer
conveyance controlled the Fays’ claims. ECF No. 143 at 7, 33, 36 (Hr’g Tr. 7:7-22, 33:3-6,
36:3-10). Thus, the Palmer conveyance governs the Fays’ claims.
9
the above granted premises with the hereditaments and
appurtenances.
This deed is given for the sole purpose of transferring to said
grantee [Tampa Southern Railroad Company] a right of way for
railroad purposes and upon the express provision that said grantee
shall construct its railroad from Bradenton to Sarasota, Florida,
over said right of way within twenty four months from the date of
this instrument. Should said grantee not construct said railroad as
herein set out, or should any part of the said land not be used for
railroad purposes, or should some at any time be abandoned for
railroad purposes, than the land is so abandoned for such purposes,
or not used for such purposes shall revert to the grantors, their
heirs, successors, or assigns.
TO HAVE AND TO HOLD the same in fee simple forever.
And [Honore Palmer and Potter Palmer] do covenant with the
[railroad] that they are lawfully seized of the said premises, that
they are free from all encumbrances and that they have good right
and lawful authority to sell the same and [Honore Palmer and
Potter Palmer] do hereby fully warrant the title to the said land,
and will defend the same against the lawful claim of all persons
whomever.
ECF No. 111-15 at 17-21 (Pls.’ Ex. 10).
The Fays argue that the Palmer conveyance granted the railroad an easement primarily
based on its similarities to the Honore conveyance. ECF No. 111-1 at 63. The Honore
conveyances provides the following:
ADRIAN C. HONORE, . . . 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 right of way
for railroad purposes over and across the following described
parcels of land . . .
...
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 of 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 places and parcels of land shall
10
ipso facto revert to and again become the property of the
undersigned, his heirs, administrators and assigns.
ECF No. 111-15 at 2, 4 (Pls.’ Ex. 8). This court in Rogers I held this same language conveyed
only an easement, 90 Fed. Cl. at 430-31, and the Parties stipulated this language conveyed an
easement in the present case, ECF No. 115 at n.1.
The Honore and Palmer conveyances have some similarities, but they differ in key
respects. Like the Honore conveyance, the Palmer conveyance: (1) uses the phrase “right of
way” to describe the property conveyed; (2) conditions the conveyance on the railroad
constructing and commencing operations on the property; and (3) includes a reversionary clause
that states if the railroad ceases to use the property for “railroad purposes,” the property
“revert[s] to” the grantor. On the other hand, the Palmer conveyance does not recount the
amount of consideration given by the railroad and includes more indicia of a transfer of a fee
simple estate. Given these key differences, the court analyzes the Palmer conveyance anew.
a) The Property Interests
The Palmer conveyance grants the railroad at least a voluntary grant, and at most a fee
simple determinable. Under either analysis, the Fays retain a reversionary interest in the railroad
corridor and the NITU prevented that reversion.
(1) Voluntary Grant
The Fays argue the Palmer conveyance was a voluntary grant. ECF No. 111-1 at 60, 63.
The Palmer conveyance is dated 1923, ECF No. 111-15 at 17 (Pls.’ Ex. 10), so the operative
voluntary grant statute is Section 4354 of the Florida Statutes (1920), see also ECF No. 111-1 at
60. This statute states the following:
Every railroad . . . shall be empowered: . . . [t]o take and hold such
voluntary grants of real estate and other property as shall be made
to it to aid in the construction, maintenance and accommodation of
its road . . . but the real estate received by voluntary grant shall be
held and used for purposes of such grant only.
Fla. Stat. § 4354(2) (1920). As the court explained in Barron, “a voluntary grant or conveyance
is ‘[a] conveyance made without valuable consideration.’” 174 Fed. Cl. at 124 (quoting Rogers
IV, 184 So. 3d at 1094).
Here, the Palmer conveyance states it was made “for and in consideration of the sum of
[blank space] of lawful money of the United States of America, to them in hand paid by the
[railroad], at or before the ensealing and delivery of these presents, the receipt whereof is hereby
acknowledged.” ECF No. 111-15 at 18 (Pls.’ Ex. 10). The space is blank where the Parties
would have indicated the amount of consideration. The conveyance does not otherwise state the
amount of consideration. Thus, the face of the conveyance does not indicate the railroad gave
11
any consideration, even nominal consideration. 8 As a conveyance without consideration, the
Palmer conveyance falls under the purview of the voluntary grant statute.
(2) Fee Simple Determinable
Even if the voluntary grant statute did not apply, the Palmer conveyance did not transfer
fee simple absolute title. As Preseault I explains, a taking in a rails-to-trails case may occur
when a railroad holds “easements or similar property interests.” 494 U.S. at 8. One such similar
property interest is a fee simple determinable. See Nat’l Wildlife Fed’n v. Interstate Comm.
Comm’n, 850 F.2d 694, 703 (D.C. Cir. 1988) (“Other rights-of-way are specifically limited to
railroad use and may revert to the original owner (or a successor in interest) if railroad use is
discontinued. While these more limited interests, which do implicate the takings clause, take a
variety of forms, the two most common types are the fee simple determinable and the
easement.”); Nat’l Ass’n of Reversionary Prop. Owners v. STB, 158 F.3d 135, 137 (D.C. Cir.
1998) (“Some land is obtained in fee simple, but often a railroad company holds a lesser interest
in the land such as an easement or a fee simple determinable.”). Here, the Palmer conveyance
language conveys a fee simple determinable under Florida law. 9
In Richardson v. Holman, 33 So. 2d 641 (Fla. 1948), the Florida Supreme Court reviewed
the following reservation in a warranty deed:
Provided however, and this conveyance is made subject to and
upon the express condition that should the [Tampa and Sulphur
Springs Traction Company] cease to use the foregoing land for
railroad purposes, then and in that event the title to said property
shall revert to and vest in the said [grantor] and his heirs and
assigns.
Id. at 641-42. The parties contested whether that language created a fee simple determinable or
“an estate upon a condition subsequent.” Id. at 642. The court determined the clause providing
“[t]he title to said property shall revert to and vest in the” grantor sufficed as “words of reverter,”
so the grantor retained a reversionary interest in the property. Id. at 643 (internal quotation
marks omitted). Further, “the possibility of reverter . . . materialized when the [grantee] ceased
to use the lands for street railroad purposes.” Id. And, under Florida law, the fee simple
determinable’s reversionary interest—the “possibility of reverter”—may be conveyed or devised.
Id. at 645.
8
The Fays do not specifically argue that the lack of consideration in the Palmer conveyance
renders it a voluntary grant, but Plaintiffs’ briefing groups the Palmer conveyance with other
conveyances as voluntary grants. ECF No. 111-1 at 60, 63.
9
The Parties also did not specifically argue whether the Palmer conveyance granted a fee simple
determinable. According to the Plaintiffs, it created an easement. But the language here conveys
more than a mere right of access. In the end, whether the Palmer conveyance granted an
easement or fee simple determinable is immaterial because in either case Plaintiffs retained the
reversionary interest that was blocked by the NITU.
12
Here, the Palmer conveyance is not labeled a warranty deed, but it contains a warranty
clause: the grantors “do hereby fully warrant the title to the said land, and will defend the same
against the lawful claim of all persons whomsoever.” ECF No. 111-15 at 21 (Pls.’ Ex. 10).
Further, the Palmer conveyance includes the phrase “TO HAVE AND TO HOLD in fee simple
forever.” Id. at 20. But it also contains an explicit reverter: “should any part of the said land not
be used for railroad purposes, or should some at any time be abandoned for railroad purposes,
then the land is so abandoned for such purposes, or not used for such purposes shall revert to the
grantors.” Id. Therefore, the Palmer conveyance’s similarities to the conveyance in Richardson
indicate it grants the railroad a fee simple determinable, and the Fays’ possibility of reverter
materialized when the railroad stopped railroad operations, just as the successor-in-interest’s
possibility of reverter materialized in Richardson.
b) The Scope of the Railroad’s Property Interest
Under either analysis above, the railroad did not receive the fee simple absolute estate.
The court must proceed to the second question of the Preseault II analysis: whether the railroad’s
property interest is broad enough to cover recreational trail use. 100 F.3d at 1533. It is not.
Both the voluntary grant statute and the express terms of the Palmer conveyance limit the
railroad’s interest to use of the property for railroad purposes. Fla. Stat. § 4354(2) (1920); ECF
No. 111-15 at 20 (Pls.’ Ex. 10). In Richardson, the possibility of reverter arose when the railroad
ceased to use the land for “railroad purposes.” 33 So. 2d at 643. In Rogers I, this court decided
the express easement for “railroad purposes” in the Honore conveyance did not extend to
recreational trail use. 90 Fed. Cl. at 432-33; see also id. at 432 (“[T]he usage of a right-of-way
as a recreational trail is ‘clearly different’ from the usage of the same parcel of land as a railroad
corridor.” (quoting Preseault II, 100 F.3d at 1542)). Thus, the railroad’s property interest,
whether it exists by operation of the voluntary grant statute or as a fee simple determinable, is
not broad enough to cover recreational trail use.
Because the railroad’s property interest is not broad enough to cover recreational trail
use, the court “need not reach the third prong of the Preseault II analysis.” Rogers I, 90 Fed. Cl.
at 432. Rather, the first two prongs of the Preseault II analysis establish the NITU effected a
taking of the Fays’ property interests in the land by creating “a new, unauthorized easement.” Id.
at 433. Accordingly, the court grants Plaintiffs’ motion for partial summary judgment for the
Fays and denies the Government’s cross-motion for summary judgment for the Fays.
2. The Florida Mortgage and Investment Company Conveyances
Thirty-one Plaintiffs 10 (“FMIC Plaintiffs”) claim the railroad obtained only an easement
under the FMIC conveyances. ECF No. 111-1 at 67-69. The Government argues these
10
These Plaintiffs are: John M. Alvis; Catherine Teresa Gray; Joshua Carroll Hackney; Joe R.
Hembree, As Trustee of the Joe R. Hembree Revocable Trust; Michael and Vivian Kravchak;
Lewma Enterprise, Inc.; Cameron W. and Carol T. McGough; Rickey Smull; Irvin J. and
Cynthia P. Spiegel; William A. and Jill Booth; John L. and Mary Allgyer and Levi and Tammy
L. Lantz, Jr.; JB Holdings of Sarasota, LLC; Bob Allen and Lori Ann Jefferson; Bonnie A.
Klein; Earnest R. Locklear, Carolyn B. Barclay, and Steven H. Locklear; Shannon Lugannani
13
conveyances transferred title in fee simple absolute to the railroad. ECF No. 115 at 15-19. The
following language comes from the FMIC 536 conveyance:
THIS INDENTURE[] . . . BETWEEN The Florida Mortgage and
Investment Company . . . and the FLORIDA WEST SHORE
RAILWAY . . . WITNESSTH:
That the [FMIC], for and in consideration of the sum of One
Dollar, to it in hand paid by the [Florida West Shore Railway], the
receipt whereof in hereby acknowledged, has granted, bargained
and sold to the [Florida West Shore Railway], its successors and
assigns forever, the following described land to wit:
Description of part of right-of-way to be obtained from Col. J.H.
Gillespie:
...
Which plat or parcel of land is more clearly shown in red on the
attached blue-print . . . and made in the office of the Assistant
Engineer, Savannah, Ga., which blue-print is hereby made a part of
this description.
And the [FMIC] does hereby fully warrant the title to said land,
and will defend the same against the lawful claims of all persons
whomever.
ECF No. 111-18 at 6-9 (Pls.’ Ex. 16-A); ECF No. 115-3 at 6-8 (Def.’s Ex. 12); see also ECF No.
111-18 at 2-3 (Pls.’ Ex. 16); ECF No. 115-3 at 11-12 (Def.’s Ex. 13). The language of the FMIC
532 and 536 conveyances is the same other than the property descriptions, and the FMIC
Plaintiffs make the same arguments regarding these two conveyances. 11 ECF No. 111-1 at 67-
69. Thus, the court addresses these two conveyances together.
At oral argument, the Government compared the FMIC conveyances to the Neihardt deed
examined in Barron. ECF No. 143 at 33-36 (Hr’g Tr. 33:11-34:11, 35:10-21, 36:11-13). First,
and Helen Elena Emegbagha; Callie Parsons; Marc and Leann Schlabach; John and Jaana
Avramidis; David and Cynthia Gaul; Andrew and Jennifer Heath; Anna Marie Martin; Thomas
McCall and Susan Coakley; Susan Schmitt, as Trustee of the Schmitt Revocable Trust; Raymond
and Linda Wenck; Thomas and Michelle M. Dodson; Kimberly Dawn Hewitt, As Trustee for the
Kimberly Dawn Hewitt Revocable Trust; The Oaks at Woodland Park Homeowners Assoc.;
Anthony and Karen Puccio; Keith E. Rollins and Lisa J. Paxson-Rollins; and Brian T. Sanborn.
ECF No. 111-3 at 10-11 (Pls.’ Ex. 1).
11
While the Government raises separate arguments for each FMIC conveyance in its briefing,
ECF No. 115 at 15-19, the Government addressed these conveyances together at oral argument,
ECF No. 143 at 33-34 (Hr’g Tr. 33:18-34:11), and the Government’s arguments for each
conveyance apply equally to both.
14
the expansive granting clauses use the same language: the grantor “has granted, bargained and
sold to” the grantee “its successors and assigns forever, the following described land, to wit.”
Compare ECF No. 111-18 at 7 (Pls.’ Ex. 16-A), ECF No. 115-3 at 6 (Def.’s Ex. 12), ECF No.
111-18 at 2 (Pls.’ Ex. 16), and ECF No. 115-3 at 11 (Def.’s Ex. 13), with ECF No. 111-18 at 23
(Pls.’ Ex. 17), and ECF No. 115-7 at 1 (Def.’s Ex. 1); see also Barron, 174 Fed. Cl. at 131
(describing the Neihardt deed’s granting clause as “expansive”). Second, the Neihardt deed and
the FMIC conveyances all describe the property conveyed as “land.” Compare ECF No. 111-18
at 7, 9 (Pls.’ Ex. 16-A), ECF No. 115-3 at 6, 8 (Def.’s Ex. 12), ECF No. 111-18 at 2-3 (Pls.’ Ex.
16), and ECF No. 115-3 at 11-12 (Def.’s Ex. 13), with ECF No. 111-18 at 23, and ECF No. 115-
7 at (Def.’s Ex. 1); see also Barron, 174 Fed. Cl. at 131 (explaining that describing property as
land “indicates that Mr. Neihardt was selling land, not the right to access land”). Third, the
conveyances include the same warranty clauses as the Neihardt deed: the grantor “does hereby
fully warrant the title to said land, and will defend the same against the lawful claims of all
persons whomsoever.” Compare ECF No. 111-18 at 9 (Pls.’ Ex. 16-A), ECF No. 115-3 at 8
(Def.’s Ex. 12), ECF No. 111-18 at 3 (Pls.’ Ex. 16), and ECF No. 115-3 at 12 (Def.’s Ex. 13),
with ECF No. 111-18 at 23 (Pls.’ Ex. 17), and ECF No. 115-7 at 1 (Def.’s Ex. 1); see also
Barron, 174 Fed. Cl. at 131.
Also at oral argument, Plaintiffs argued that the warranty clauses warrant what the
grantor has given, here an easement, and nothing more, relying on Preseault II. ECF No. 143 at
27-29 (Hr’g Tr. 27:15-29:3). While Preseault II decided a warranty clause does not compel that
a conveyance grants fee simple title under Vermont law, 100 F.3d at 1535-37, the Federal Circuit
did not provide support for Plaintiffs’ argument that a warranty clause in a deed warrants the
grant of an easement rather than a fee simple estate, ECF No. 143 at 27-29 (Hr’g Tr. 27:15-29:3).
Accordingly, the court maintains its analysis from Barron and the cases applying Florida law to
consider a warranty clause as “another factor in favor of concluding [a grantor] sought to convey
fee simple title.” 174 Fed. Cl. at 131.
The FMIC conveyances differ from the Neihardt deed by referring to a “right-of-way to
be obtained from Col. J.H. Gillespie.” ECF No. 111-18 at 7 (Pls.’ Ex. 16-A); ECF No. 115-3 at
6 (Def.’s Ex. 12); ECF No. 111-18 at 2 (Pls.’ Ex. 16); ECF No. 115-3 at 11 (Def.’s Ex. 13).
Regardless, the court explains supra Section III.B that the phrase “right-of-way” is not
determinative of the railroad’s property interest under Florida law. In light of the other indicia of
a fee simple estate, the reference to the right-of-way in the FMIC conveyances does not alter the
court’s conclusion. The FMIC conveyances granted the railroad fee simple absolute.
The FMIC Plaintiffs make several arguments to the contrary. The FMIC Plaintiffs’
arguments based on Section 689.10 of the Florida Statutes and the context of the conveyances do
not change the court’s conclusion for the same reasons discussed supra Section III.B. The court
considers the FMIC Plaintiffs’ remaining arguments below.
Like the Palmer conveyance, the FMIC Plaintiffs argue the FMIC conveyances are
voluntary grants to the railroad. ECF No. 111-1 at 60, 68-69. “[A] voluntary grant or
conveyance is ‘[a] conveyance made without valuable consideration,’” but nominal
consideration does not indicate that “a conveyance was a voluntary grant.” Barron, 174 Fed. Cl.
at 124 (quoting Rogers IV, 184 So. 3d at 1094). The FMIC conveyances, unlike the Palmer
conveyance, recite consideration of one dollar. ECF No. 111-18 at 2 (Pls.’ Ex. 16); id. at 7 (Pls.’
15
Ex. 16-A); ECF No. 115-3 at 6 (Def.’s Ex. 12); id. at 11 (Def.’s Ex. 13). Thus, “the deeds . . .
recite valuable consideration, even if nominal, [so] they are grants by bargain and sale and are
not voluntary grants under Florida law.” Barron, 174 Fed. Cl. at 125. Further, the “amount of
. . . consideration is irrelevant to the question of what the grantor conveyed to the railroad,” id.,
so nominal consideration does not affect the “nature of the interest” or the “validity of the
conveyance,” ECF No. 111-1 at 52 (emphasis in original). In sum, the FMIC conveyances are
not voluntary grants.
The FMIC Plaintiffs also argue the conveyances’ references to blueprints support that the
FMIC conveyances granted easements. ECF No. 111-1 at 68; ECF No. 122 at 18. The
referenced blueprints indicate the railroad “had already surveyed and located the railroad right-
of-way” over the land. ECF No. 111-1 at 68. Thus, “only after entering the owner’s land,” the
railroad “obtain[ed] a written conveyance from the owner,” so the FMIC Plaintiffs argue the
conveyance operates as “a grant of an easement for the operation of a railway line, not title to the
fee estate in the land.” ECF No. 122 at 18. The court in Barron specifically addressed the
argument that if a conveyance references land that the railroad previously entered, surveyed, and
built upon, then the conveyance transfers only an easement. 174 Fed. Cl. at 127-28. According
to the Florida Supreme Court, the railroad occupying the property before the formal grant does
not invalidate “a deed meeting all the formal requisites for passing fee simple title.” Id. at 128
(quoting Rogers IV, 184 So. 3d at 1100). Rather, the railroad’s property interest remains
dependent on the intent of the grantor reflected in the unambiguous language of the conveyance.
Id. (“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.” (quoting Rogers IV, 184 So. 3d at 1100)). The language of the FMIC conveyances
transfers the fee simple estate, so the blueprints referenced in these conveyances do not change
that conclusion.
Because the railroad obtained title in fee simple absolute under the FMIC conveyances,
the FMIC Plaintiffs do not have property interests in the railroad corridor. Accordingly, the
NITU did not effect a taking, and the court grants summary judgment to the Government with
respect to these thirty-one FMIC Plaintiffs.
3. The Ringling Conveyance
Six Plaintiffs 12 (“Ringling Plaintiffs”) claim the railroad obtained only an easement under
the Ringling conveyance. ECF No. 111-1 at 72-73. The Government claims the railroad
obtained title in fee simple absolute. ECF No. 115 at 23-24. The language of the conveyance is
as follows:
This indenture . . . between CHARLES RINGLING COMPANY, a
Corporation of the State of Florida, . . . and TAMPA SOUTHERN
12
These Plaintiffs are: Denise Doucette Erb and Lorraine E. Colby; Joyce P. and Julie Gwen
Hardie; David Ivanov, as Trustee of the 2976 Poplar Street Land Trust; Lakewood Venture
Capital LLC; Faye M. Rood; and Sarasota County Agricultural Fair Association. ECF No. 111-3
at 12 (Pls.’ Ex. 1).
16
RAILROAD COMPANY, a Corporation created and organized
under the laws of the State of Florida[] . . .
Witnesseth, That the [Charles Ringling Company] for and in
consideration of the sum of One Dollar and other valuable
considerations, to it in hand paid, the receipt, whereof is hereby
acknowledged, has granted, bargained, sold and conveyed to the
[Tampa Southern Railroad Company], its successors and assigns,
forever, the following described land in the County of Sarasota,
State of Florida, to-wit:
...
A strip of land fifty (50) feet wide, being twenty-five (25) feet on
each side of the center line of the Tampa Southern Railroad, as
located and to be constructed through the South half . . .
...
TO HAVE AND TO HOLD the same in fee simple forever.
ECF No. 111-19 at 2-3 (Pls.’ Ex. 18); ECF No. 115-10 at 2-3 (Def.’s Ex. 22).
The phrase “TO HAVE AND TO HOLD the same in fee simple forever” explicitly
indicates the grantor intended to convey the fee simple estate to the railroad. See Fla. Moss
Prods. Co. v. City of Leesburg, 112 So. 572, 573-74 (Fla. 1927) (rejecting arguments based on
parol evidence that would limit the fee simple estate conveyed in a deed that included the phrase
“to have and to hold the same in fee simple forever”). The Ringling Plaintiffs argue the court
should read the fee simple language merely to indicate that a “servitude, such as an easement,
can be inheritable,” and they point to the Federal Circuit’s analysis of similar language under
Vermont law in Preseault II. ECF No. 111-1 at 73. This argument runs contrary to the plain
language of the Ringling conveyance, which grants a fee simple estate under Florida law. See
Fla. Moss Prods., 112 So. at 573-74. Further, like the FMIC conveyances, the Ringling
conveyance’s granting clause uses expansive language, and the conveyance describes the
property conveyed as “land.” While it is true that the Ringling conveyance does not include a
warranty clause, that is only a factor to consider when determining the grantor’s intent, not a
necessary element of a deed conveying fee simple absolute. Here, the language clearly shows
that the railroad obtained title in fee simple to the land transferred by the Ringling conveyance.
The Ringling Plaintiffs parade many of the same arguments discussed above to support
that the railroad received only an easement under the Ringling conveyance. The Ringling
Plaintiffs’ arguments based on Section 689.10 of the Florida Statutes and the context of the
conveyances fail for the same reasons discussed supra Section III.B. Further, the Ringling
conveyance, like the FMIC conveyances, recounts consideration in the form of one dollar and,
therefore, is not a voluntary grant. Similarly, the conveyance’s reference to an existing right of
way that the railroad had already located does not limit the railroad to an easement because, as
discussed supra Section III.D.2, the railroad’s entry, survey, and construction upon land does not
muddle the unambiguous terms of a conveyance.
17
The Ringling Plaintiffs also argue the conveyance transferred only an easement because it
describes the property as a “strip of land . . . through” the platted lots. ECF No. 111-1 at 72. The
court in Barron rejected a similar argument because this language “merely describes the location
of the strip of land conveyed . . . and does not define or characterize the nature of the property
interest conveyed.” 174 Fed. Cl. at 128 (internal quotation marks omitted) (quoting Rogers II,
93 Fed. Cl. at 621). Thus, the language describing the land as a “strip of land . . . through” the
platted lots does not affect the estate conveyed to the railroad.
The Ringling conveyance granted the fee simple estate to the railroad, so the Ringling
Plaintiffs’ taking claims fall flat. The court grants the Government’s cross-motion for summary
judgment for these six Ringling Plaintiffs.
E. The Railroad Interests That Lack Documentation
The Parties stipulated that no document governs the claims of three Plaintiffs—John W.
and Christine L. Fordham (“Fordhams”), Bradley Blum Morrison, and Shirley P. Ramsey; rather,
the railroad obtained its property interest in the corridor “By Possession.” ECF No. 111-12 at 16
(Pls.’ Ex. 5). The Fordhams, Morrison, and Ramsey argue the railroad obtained, at most, a
prescriptive easement in the corridor. ECF No. 111-1 at 74-75. They further argue the burden is
on the Government to prove the railroad obtained a prescriptive easement, and the Government
cannot even meet that burden to establish the railroad holds any property interests in the corridor.
Id. at 75. The Government argues the Fordhams, Morrison, and Ramsey improperly shifted their
burden to prove their ownership interests in the corridor to the Government, and the railroad
obtained a fee simple interest in the corridor by adverse possession. ECF No. 115 at 31.
The Government argues that the railroad obtained fee simple title in the corridor by
adverse possession. Id. at 30-31. A railroad’s possession of land may result in the railroad
acquiring the fee simple estate via adverse possession, or it may create an easement. See Rogers
III, 107 Fed. Cl. at 399 (citing Downing v. Bird, 100 So. 2d 57, 64-65 (Fla. 1958), to explain the
differences between adverse possession and prescriptive easements). Under Florida law, adverse
possession requires possession that is “(i) actual and exclusive, (ii) continuous for seven years,
(iii) open and notorious, and (iv) adverse under a claim of title.” Whispell Foreign Cars, Inc. v.
United States, 106 Fed. Cl. 777, 784 (2012); see also Rogers III, 107 Fed. Cl. at 400 (citing Fla.
Stat. § 1722 (1906)). The burden is on the party claiming adverse possession “to prove that the
. . .possession is adverse,” and all elements of adverse possession “must be proved by clear and
positive proof.” Downing, 100 So. 2d at 64.
Thus, the Government, as the party claiming adverse possession, bears the burden of
proof on the adverse possession elements. The Government did not come forward with its own
evidence in support of adverse possession. Rather, the Government opposed partial summary
judgment for the Fordhams, Morrison, and Ramsey to seek further factual development on their
claims. ECF No. 115 at 30-31. As the court explained in Whispell Foreign Cars, “the laying of
tracks and the running of rail cars [] could be the result of either an adverse action by the railroad
or a permissive one,” so the government did not prove the railroad held the land adversely to the
landowners and thus could not prove the railroad obtained title via adverse possession. 106 Fed.
Cl. at 787. Likewise, the Government here has not offered any evidence that the railroad’s
possession of the corridor was adverse to, rather than permitted by, the landowners.
18
Accordingly, the Government did not establish the railroad obtained fee simple title via adverse
possession in the railroad corridor.
Because the Government does not prove the railroad acquired fee simple title via adverse
possession, the greatest property interest that the railroad could have obtained is an easement.
Two nineteenth-century Florida Supreme Court cases are particularly instructive here. 13 In
Pensacola and Atlantic R.R. Co. v. Jackson, 21 Fla. 146 (1884), the Florida Supreme Court
considered a landowner’s rights and the railroad’s rights in land where the landowner had
acquiesced to the railroad building on his land but later brought suit against the railroad. Id. at
149-50. The court decided the landowner retained “his title to the land,” but he could not get
injunctive relief to stop the railroad from operating on his land. Id. at 152. Rather, the
landowner could seek damages from the railroad. Id. at 153. Likewise, in Florida Southern R.
Co. v. Hill, 23 So. 566 (Fla. 1898), the Florida Supreme Court decided that a railroad’s entrance
upon land without the landowners’ consent or initiating condemnation proceedings operates as
“an implied sale of an easement in the land, induced, it may be true, by the compulsory features
of the power of eminent domain.” Id. at 570. This court in Mills decided Pensacola and Florida
Southern illustrate the following principle of Florida law:
[W]hen a railroad company takes land under color of its statutory
charter but without an agreement and without a condemnation
proceeding, it does not divest the landowners of title and . . . the
railroad merely obtains perpetual use of the land for the purposes
of its incorporation, i.e. an easement for railroad purposes.
Mills, 147 Fed. Cl. at 349-50. Here, the Parties agree that no agreement governs the railroad’s
property interest in the property owned by the Fordhams, Morrison, and Ramsey, nor do they
argue that the railroad initiated condemnation proceedings. ECF No. 111-12 at 16 (Pls.’ Ex. 5).
Thus, the railroad’s possession of the corridor did not divest the Fordhams, Morrison, and
Ramsey—or their predecessors-in-interest—of their title to the land, but created an easement for
railroad purposes.
Because the railroad did not obtain fee simple title, the court considers whether its
easement covers recreational trail use. This court in Mills determined that an easement obtained
by the railroad’s possession of land under the railroad’s charter was limited to “railroad
purposes.” 147 Fed. Cl. at 351. Accordingly, “the conversion of the easement to a public
recreational trail constitutes a new and unauthorized use.” Id. Likewise, the railroad’s easement
in the present case does not extend to the use of the railroad corridor as a recreational trail. As a
result, the NITU effected a taking of the property interests held by the Fordhams, Morrison, and
Ramsey, so the court grants partial summary judgment in their favor.
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The Fordhams, Morrison, and Ramsey cite to the Federal Circuit’s decision in Barlow v.
United States, 86 F.4th 1347 (Fed. Cir. 2023), to support their prescriptive easement argument.
ECF No. 122 at 8. The Federal Circuit applied Illinois law in Barlow. 86 F.4th at 1359-60. The
court here rests its conclusions on Florida law, so it does not review the arguments founded on
Barlow.
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F. The Pendley Document
The remaining two Plaintiffs, Mabel Brunton (subject to life estate of Wallace David
Brunton) and Jeffrey Doyle, as Trustee of the Wallace David Brunton Testamentary Trust in
place of Jeffrey C. Doyle (“Brunton”); and Gary L. Cathey and Victoria L. Goodrich (“Cathey-
Goodrich”) contend that the railroad held only an easement for railroad purposes that
encumbered their property. Throughout their briefing, the Parties argued about the legal
significance of an unexecuted deed from Mr. O.H. Pendley to the railroad and whether the result
was a conveyance of title in fee simple absolute or an easement. ECF No. 111-1 at 70-71; ECF
No. 115 at 26-28; ECF No. 122 at 9-11; ECF No. 127 at 8-9. On the eve of argument, however,
the Government informed the court and Plaintiffs that it now believed that these Plaintiffs were
not Mr. Pendley’s successors-in-interest; rather, the Government explained that it now believed
that these Plaintiffs are successors-in-interest to the FMIC and their property covered in the
FMIC 536 conveyance. ECF No. 140.
The first thing the court must consider is whether the Pendley document conveyed fee
simple title to the rail corridor to the railroad. If the Pendley document conveyed title to the
railroad, it would not matter if these Plaintiffs were successors to Pendley or FMIC because the
railroad would have gotten fee simple title either way. But if the Pendley document conveyed
only an easement, then the existence of these Plaintiffs’ claims turns on whether they are
successors to Pendley or FMIC. For several reasons, the Pendley document could not convey the
fee simple estate to the railroad.
First, the Pendley document could not transfer the fee simple estate to the railroad under
the Florida statute of frauds. ECF No. 111-1 at 71. The Pendley document itself is undated, but
based on a declaration from the railroad’s agent that is in the record, the Pendley document arose
around 1923. ECF No. 111-12 at 5 (Pls.’ Ex. 4); ECF No. 115-10 at 11 (Def.’s Ex. 24). The
operative statute of frauds in Florida in 1923 was Section 3787 of the Florida Statutes (1920),
which provided that:
No estate or interest of freehold . . . in or out of any messuages,
lands, tenements or hereditaments shall be created, made, granted,
transferred or released in any other manner than by deed in writing,
signed, sealed and delivered in the presence of at least two
subscribing witnesses by the party creating, making, granting,
conveying, transferring or releasing such estate, interest, or term of
years, or by his agent thereunto lawfully authorized, . . . ; and no
estate or interest . . . in, to or out of any lands, tenements,
messuages or hereditaments, shall be assigned or surrendered
unless it be by deed, signed, sealed and delivered in the presence of
at least two subscribing witnesses, by the party so assigning or
surrendering, or by his agent thereto lawfully authorized, or by the
act and operation of law.
Fla. Stat. § 3787 (1920); see also ECF No. 111-1 at 71 (citing Fla. Stat. § 689.01, Florida’s
current statute of frauds that is similar to the 1920 statute). The Pendley document is unsigned
and not under seal. ECF No. 111-12 at 2 (Pls.’ Ex. 4); ECF No. 115-10 at 8 (Def.’s Ex. 24).
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Under the operative statute of frauds, the Pendley document could not transfer fee simple title to
the railroad. See Barclay v. Bank of Osceola Cnty., 89 So. 357, 358-59 (Fla. 1921) (applying
Section 3787 to decide a deed “not under seal is ineffectual to convey the title of the grantor
attempte[d] to be conveyed”). The declaration from the railroad that the Pendley document in
the property records is materially the same as what Mr. Pendley signed does not satisfy the
statute of frauds.
Second, the Government’s argument is not helped by the railroad agent’s declaration.
That declaration states “[t]his deed was not signed by the wife of O.H. Pendley, and was sent out
for her signature but has never been returned.” ECF No. 111-12 at 5 (Pls.’ Ex. 4); ECF No. 115-
10 at 11 (Def.’s Ex. 24). Thus, the declarant—the railroad’s agent, ECF No. 111-12 at 5 (Pls.’
Ex. 4); ECF No. 115-10 at 11 (Def.’s Ex. 24)—states that Mrs. Pendley, who also had ownership
rights to the property, did not convey her interest to the railroad. Thus, even if the railroad
declaration could overcome the statute of frauds, it makes clear that Mrs. Pendley never signed
any deed to the railroad, rendering the document ineffective.
Third, even if the court accepts the Government’s argument that the Pendley document
and accompanying declaration are the “best evidence” of the grantor’s intent, ECF No. 115 at
27-28; ECF No. 127 at 8-9, credits the railroad agent’s declaration that O.H. Pendley signed the
Pendley document, ECF No. 111-12 at 5 (Pls.’ Ex. 4); ECF No. 115-10 at 11 (Def.’s Ex. 24), and
overlooks the fact that Mrs. Pendley did not sign it, the Pendley document recounts no
consideration was given for the conveyance. The Pendley document states the following:
WITNESSETH: That [Pendley], for and in consideration of the
sum of [blank] Dollars of lawful money of the United States of
America, to [blank] in hand paid by the [railroad], at or before the
ensealing and delivery of these presents, the receipt whereof is
hereby acknowledged, ha[s] granted, bargained, sold, aliened,
remised, released, conveyed and confirm, unto the [railroad], and
its successors and assigns forever, all of a certain tract or parcel of
land situated, lying and being in the County of Sarasota, State of
Florida, to-wit . . . .
ECF No. 111-12 at 2 (Pls.’ Ex. 4); ECF No. 115-10 at 8 (Def.’s Ex. 24). If this document is the
best evidence of the grantor’s intent, the grantor intended a voluntary grant to the railroad—the
space is blank where this document should include the consideration paid by the railroad to the
Pendleys. ECF No. 111-12 at 2 (Pls.’ Ex. 4); ECF No. 115-10 at 8 (Def.’s Ex. 24). As the court
explains supra Section III.D.1, a conveyance without consideration is a voluntary grant, and a
voluntary grant to a railroad does not extend to recreational trail use. Accordingly, the lack of
consideration also prevents the Pendley document from conveying fee simple title to the railroad.
The Pendley document did not convey title to the railroad, but the railroad constructed a
railway line across the Brunton and Cathey-Goodrich Plaintiffs’ land. As the court discusses
supra Section III.E, a railroad that takes land without a valid conveyance or condemnation
proceedings takes at most an easement for railroad purposes. Because the Pendley document
does not convey any interest in the property underlying the corridor, the Brunton and Cathey-
Goodrich claims rise or fall on who their predecessor-in-interest was, which is disputed at this
21
point. Therefore, the court can grant summary judgment on the legal effect of the Pendley
document (none), but not on the Brunton or Cathey-Goodrich claims.
The court held a conference with the Parties and explained that a chain of title from
Brunton and Cathey-Goodrich back to either the Pendleys or FMIC will be necessary to
determine whether these claims can survive. The court, therefore, grants-in-part Plaintiffs’
motion for partial summary judgment insofar as the Pendley document did not convey title to the
railroad. The court defers ruling on whether these Plaintiffs are successors-in-interest to the
Pendleys or the FMIC until that issue is developed through the chain of title that the court
directed the Parties to file.
IV. Conclusion
For the foregoing reasons, the court GRANTS-IN-PART and DENIES-IN-PART
Plaintiffs’ Motion for Partial Summary Judgment, ECF No. 111; and GRANTS-IN-PART and
DENIES-IN-PART the Government’s Cross-Motion for Partial Summary Judgment, ECF No.
115.
The court GRANTS-IN-PART and DEFERS-IN-PART Plaintiffs’ motion as to the
“Pendley Plaintiffs”—Mabel Brunton (subject to life estate of Wallace David Brunton) and
Jeffrey Doyle, as Trustee of the Wallace David Brunton Testamentary Trust in place of Jeffrey
C. Doyle; and Gary L. Cathey and Victoria L. Goodrich. The court ORDERS the Parties to file
a notice that traces the Brunton and Cathey-Goodrich Plaintiffs’ chain of title, with deeds in the
chain attached as exhibits, to either the Pendleys or the FMIC.
The court GRANTS Plaintiffs’ motion and DENIES the Government’s cross-motion as
to the successors-in-interest of Honore and Potter Palmer—Thomas M. and Joyce R. Fay. The
Parties will proceed to the damages phase for these Plaintiffs.
The court GRANTS Plaintiffs’ motion as to the successors-in-interest to Adrian Honore
and the Plaintiffs whose properties are encumbered by prescriptive easements: John W. and
Christine L. Fordham; Bradley Blum Morrison; Shirley P. Ramsey; 4023 Sawyer Road 1, LLC;
Julia R. Adkins and Austin C. Murphy; Randal S. and Joyce S. Albritton; Louis L. Alderman, Jr.,
as Trustee of the Louis L. Alderman 2013 Revocable Trust; Bradley S. and Susan B. Anderson;
Geoffrey L. Bolton; Nicholas J. and Danette L. Boris; Endia K. and Gary Callahan; Martin
Carrillo-Plata; John and Joanne Cisler; Steven R. and Virginia M. Courtenay; Elise J. Duranceau;
William and Brooke Grames; Vincent and Karen Guglielmini; Noel K. Harris; Angelo and Sarah
J. Hoag; Larry E. Hudspeth; Daniel L. and Kristin Jadush; Judy H. Johnson; Kenneth J. and
Margaret A. Kellner; Joseph R. Knight; Patrick J. and Lisa A. Loyet; Kassandra Luebke and
Elaine Luebke; Thomas W. Marchese; Reuben S. and Kathy J. Martin; Jason J. and Karen
McGuire; Sue Moulton; Timothy and Mary Murphy; James Kirt, Nicholas James and
Christopher Andrew Nalefski; Perry M. and Pamela S. O’Connor; Sueko O’Connor; Michele and
Dorothy Ann Paradiso; Thomas Pearson; Todd A. and Carmen Perna; Patricia Lynne Pitts-
Hamilton; Pro Properties, LLC; Justin M. Reslan; Allen B. and Mary Ann E. Rieke; Michael A.
Ritchie; Chad, Grace, and Robert Schaeffer; Faith H. Simolari, As Trustee of the Philip Simolari
Revocable Trust; Russell S. Strayer; James H. and Glenda G. Thornton; Kenneth D. and Susan
22
K. Wells; David A. and Anna I. Ruiz-Welsher; Zbigniew and Wislawa Wrobel; and Stephen and
Margaret Zawacki. The Parties will proceed to the damages phase for these Plaintiffs.
The court DENIES Plaintiffs’ motion, GRANTS the Government’s cross-motion, and
DIRECTS the Clerk’s Office to enter judgment for the Government on the claims of the
following Plaintiffs:
1. The successors-in-interest of the Florida Mortgage and Investment Company:
John M. Alvis; Catherine Teresa Gray; Joshua Carroll Hackney; Joe R. Hembree, As Trustee of
the Joe R. Hembree Revocable Trust; Michael and Vivian Kravchak; Lewma Enterprise, Inc.;
Cameron W. and Carol T. McGough; Rickey Smull; Irvin J. and Cynthia P. Spiegel; William A.
and Jill Booth; John L. and Mary Allgyer and Levi and Tammy L. Lantz, Jr.; JB Holdings of
Sarasota, LLC; Bob Allen and Lori Ann Jefferson; Bonnie A. Klein; Earnest R. Locklear,
Carolyn B. Barclay, and Steven H. Locklear; Shannon Lugannani and Helen Elena Emegbagha;
Callie Parsons; Marc and Leann Schlabach; John and Jaana Avramidis; David and Cynthia Gaul;
Andrew and Jennifer Heath; Anna Marie Martin; Thomas McCall and Susan Coakley; Susan
Schmitt, as Trustee of the Schmitt Revocable Trust; Raymond and Linda Wenck; Thomas and
Michelle M. Dodson; Kimberly Dawn Hewitt, As Trustee for the Kimberly Dawn Hewitt
Revocable Trust; The Oaks at Woodland Park Homeowners Assoc.; Anthony and Karen Puccio;
Keith E. Rollins and Lisa J. Paxson-Rollins; and Brian T. Sanborn; and
2. The successors-in-interest of the Charles Ringling Company: Denise Doucette
Erb and Lorraine E. Colby; Joyce P. and Julie Gwen Hardie; David Ivanov, as Trustee of the
2976 Poplar Street Land Trust; Lakewood Venture Capital LLC; Faye M. Rood; and Sarasota
County Agricultural Fair Association.
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 successors-in-interest to the Florida Mortgage
and Insurance Company and the Charles Ringling Company identified in Paragraphs 1 and 2
above.
It is so ORDERED.
s/ Edward H. Meyers
Edward H. Meyers
Judge
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