AGAPION v. United States

In the United States Court of Federal Claims

No. 19-1596

Filed: June 10, 2026

)

BASIL AGAPION, et al., )

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Plaintiffs, )

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v. )

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THE UNITED STATES, )

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Defendant. )

)

TRIAL OPINION & ORDER

This case marks the third set of plaintiffs in this “rails-to-trails” saga that have proceeded

to trial seeking just compensation for the value of their property that was taken when a 3.1-mile

railroad corridor was converted for public recreational trail use. The government does not dispute

that the plaintiffs here collectively own 21 parcels of land adjacent to and underlying the former

railroad right-of-way in Greensboro, North Carolina. See United States’ Post-Trial Br., ECF No.

280 at 1. Because liability is undisputed, the Court must determine whether the plaintiffs are

entitled to just compensation and, if so, the amount of compensation. See Agapion v. United States,

Case No. 19-1596, ECF No. 20 (Agapion); Chapman Spring/Garden v. United States, Case No.

19-1942, ECF No. 11 (Chapman); Goodhue Partners, LLC et al. v. United States, Case No. 21-

87, ECF No. 10 (Goodhue); Mohorn et al. v. United States, Case No. 21-546, ECF No. 12

(Mohorn); Helen C. Wood, LLC et al. v. United States, Case No. 21-2143, ECF No. 17 (Wood);

Matthew K. Black et al. v. United States, Case No. 22-10, ECF No. 19 (Black).

Plaintiffs seek $10,747,334 in compensation, plus delay damages, attorneys’ fees, and

litigation expenses. See Agapion, Pls.’ Post-Trial Br., ECF No. 277 at 13–15. 1 By contrast, the

government contends that plaintiffs are owed nothing for the value of their land that was taken to

construct public recreational trails. See Agapion, United States’ Pre-Trial Br., ECF No. 195;

United States’ Post-Trial Br. For the reasons explained below, the Court finds that plaintiffs are

entitled to $8,914,102 in just compensation for the taking of their property.

1

Plaintiffs’ pre-trial submission estimated the total damages as $10,757,218. See Pls.’ Am. Mem.

of Contentions of Fact and Law, ECF No. 241-1 at 15, 96. However, plaintiffs’ post-trial brief requests a

$10,747,334 in total damages. See Pls.’ Post-Trial Br. at 13–15. The Court resolves the difference in the

amount of damages requested by considering the total amount set forth in plaintiffs’ post-trial brief.

I. Background

A. The Rail-Banking Program

Rails-to-trails cases are governed by the National Trails System Act (“Trails Act”), Pub.

L. No. 90-543 § 8(d), 82 Stat. 919, 925 (codified as amended at 16 U.S.C. § 1247(d)). Under the

Trails Act’s rail-banking program, the government may preserve historic railroad corridors for

potential reactivation following a railroad company’s decision to abandon the rail line. See

Preseault v. I.C.C., 494 U.S. 1, 5–6 (1990) (Preseault I). In the interim, these corridors are

converted into recreational trails for the public. Id.; see also 49 C.F.R. § 1152.29(a)(2)–(3).

To transfer control of the rail corridor, a railroad must notify the federal Surface

Transportation Board (“STB”) when it intends to abandon a rail line. See 49 U.S.C. § 10903(a);

49 C.F.R. §§ 1152.20–1152.22. When the railroad notifies the STB of its intent to abandon, a

qualified “trail sponsor”—usually a county, city, or qualifying non-profit organization—may

notify the STB of its interest in managing the railroad right-of-way for public recreational purposes

under the rail-banking program. See 49 C.F.R. § 1152.29(a). If the railroad agrees to negotiate

transfer of the right-of-way with the prospective trail sponsor, the STB then issues a Notice of

Interim Trail Use (“NITU”). Id. § 1152.29(d)(1). A NITU is the governmental action that stays

railroad abandonment while a sponsor uses a railroad right-of-way for trail use and blocks the

vesting of state reversionary interests in the right-of-way. Barclay v. United States, 443 F.3d 1368,

1371 (Fed. Cir. 2006), holding modified by Hardy v. United States, 965 F.3d 1338 (Fed. Cir. 2020)

(quoting Caldwell v. United States, 391 F.3d 1226, 1234 (Fed. Cir. 2004)).

After the STB issues the NITU, the railroad and trail sponsor enter into a negotiated trail-

use agreement, which defines the transfer and future operation of the rail corridor for recreational

purposes and potential reactivation. Id. The rail-banking process under section 8(d) prevents state

property laws that would otherwise take effect upon abandonment—i.e., the extinguishment of the

railroad easement for railroad purposes and the reversion of rights of way to abutting landowners—

and creates a new easement that is legally distinct from the original easement granted to the

railroad. Caldwell, 391 F.3d at 1229; Preseault v. United States, 100 F.3d 1525, 1550 (Fed. Cir.

1996) (en banc) (Preseault II). The new easement lasts in perpetuity or until the trail is no longer

used for recreation or rail-line reactivation. Caldwell, 391 F.3d at 1234.

The federal government’s takings liability for rail-banking transfers under section 8(d) is

well-settled. See Caquelin v. United States, 959 F.3d 1360, 1364 (2020) (citing Preseault I, 494

U.S. at 11-17). If an adjacent landowner owns property underlying the right-of-way in fee simple,

the federal government is liable for a taking when it prevents the property owner from asserting

its state law reversionary rights once the railroad abandons the easement. Ladd v. United States,

630 F.3d 1015, 1020 (Fed. Cir. 2010) (explaining that the STB’s “issuance of the NITU is the ...

government action in the rail-banking process that operates to ... preclude the vesting of state law

reversionary interests in the right-of-way,” thus denying the landowners possession of their

property unencumbered by the easement).

In the classic rails-to-trails case, a “Fifth Amendment taking occurs if the original easement

granted to the railroad under state property law is not broad enough to encompass a recreational

trail.” Caldwell, 391 F.3d at 1229 (Fed. Cir. 2004) (citing Preseault II, 100 F.3d at 1552). In

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many instances, the original easement granted to the railroad was limited to “railroad purposes

only.” Preseault II, 100 F.3d at 1543–44. If limited to railroad purposes, the original easement

would cease to exist under state property laws once the railroad abandons the line and the

landowner takes exclusive possession of its fee simple property. See Preseault I, 494 U.S. at 8.

Under section 8(d)’s rail-banking program, however, federal law prevents extinguishment of the

railroad easement when the STB issues the NITU and destroys state law reversionary interests.

See Caquelin, 959 F.3d at 1364 (citing Preseault II, 100 F.3d at 1525). This is a taking for which

the Fifth Amendment requires “just compensation.” Id; Ladd, 630 F.3d at 1025.

B. Findings of Fact

This case concerns a 3.1 mile stretch of railroad corridor formerly operated by Norfolk

Southern Railway Company (“Norfolk Southern”) between Milepost CF-65.6 and Milepost CF-

68.7 near downtown Greensboro, North Carolina. See Pls.’ Pre-Trial Mem. ¶ 1. The original

easement granted to Norfolk Southern was for “railroad purposes” only. See J. Stips. of Facts for

Trial, ECF No. 228 ¶ 1.

In April 2019, Norfolk Southern agreed to transfer its interest in the railroad to the City of

Greensboro (the “City”) as a trail sponsor under section 8(d). See Pls.’ Pre-Trial Mem. at 79; PX

178. On October 11, 2019, the STB issued a NITU to facilitate the transfer of the easement. See

Norfolk Southern Railway Company—Abandonment Exemption—in the City of Greensboro,

N.C., 2019 WL 5099688 (S.T.B.) (Oct. 11, 2019); PX 171. Thereafter, the City and Norfolk

Southern executed a non-warranty deed transferring the corridor to the City for $8,500,000. See

PX 177; J. Stips. of Facts for Trial, ¶ 7. Accompanying the deed was a survey map illustrating the

geographic dimensions of the railroad corridor conveyed as 200-feet wide and extending 100-feet

from each side of the centerline. See PX 177 Ex. B. at 1626. Norfolk Southern conveyed the

entirety of its interests in the corridor to the City. See PX 177–78.

The City acquired the railroad corridor to build out an existing network of publicly-owned

recreational trails in downtown Greensboro known as the “Downtown Greenway.” See Pls.’ Pre-

Trial Mem. ¶ 11. In this trial and related cases, documentary evidence and testimony demonstrates

that the City believes it owns the easement described in the survey, acts as though it owns the

easement, and the City’s course of conduct after entering the trail-use agreement reflects that

understanding. Id. ¶¶ 12–13, 15, 17; Agapion v. United States, 167 Fed. Cl. 761, 774 (2023)

(Agapion I); PX 144.1.

The 20 plaintiffs here owned property in fee simple that abuts and underlies portions of the

3.1 mile stretch of rail line that was encumbered by the trail use easement in 2019. See Pls.’ Post-

Trial Br. at 1–2; United States’ Post-Trial Br. at 1. The parcels of land and the owner of each

parcel as of October 11, 2019—the date that the STB issued the NITU—are detailed below:

1. 1007 Battleground Avenue (Parcel No. 4079). This parcel was owned by JESC,

LLC on October 11, 2019. See PX 1 at 3; PX 64. The total parcel size is 0.931-acre or 40,554

square feet (“SF”) and is zoned for commercial and multi-family residential uses. Id. at 16, 21–

22. Before the taking, the highest and best use of this property was commercial development as

either office or multi-family residential space. Id. The highest and best use after the taking remains

3

the same. Id. at 22. The area of parcel number 4079 encumbered by the trail-use easement is

roughly 10,602 SF. Id. at 33; Pls.’ Pre-Trial Mem. ¶ 34.

2. 2419 Lawndale Drive (Parcel No. 15313). This parcel was owned by GCP Real

IV, LLC on October 11, 2019. See PX 2; PX 65. The total parcel size is 2.84-acres or 123,710 SF

and is zoned for commercial and multi-family residential uses. PX 2 at 8. The property also

contains a one-story commercial building totaling 12,202 SF, which has been utilized as a Golden

Corral restaurant. Id.; Pls.’ Pre-Trial Mem. ¶ 43. Before the taking, the highest and best use of

this property was commercial use. PX 2 at 15. After the taking, the highest and best use remains

commercial use. Id. at 16. The area of parcel number 15313 encumbered by the trail-use easement

is 19,073 SF. Id. at 37; Pls.’ Pre-Trial Mem. ¶¶ 45–47.

3. 1621 Battleground Avenue (Parcel No. 12257). This parcel was owned by

Guilford Builders Supply Co on October 11, 2019. See PX 3 at 3; PX 36. The total parcel size is

1.77-acres or 77,101 SF and is zoned for commercial use. PX 3 at 17–18. The property supports,

among other things, a 11,529 SF multi-tenant retail building, numerous covered areas, canopies,

loading platforms, a 2,400 SF equipment shed, and a 50,000 SF of concrete paving. Id.; Pls.’ Pre-

Trial Mem. ¶ 54. Before the taking, the highest and best use of the property was commercial and

residential uses. PX 3 at 24. The highest and best use after the taking remains the same. Id. The

area of parcel number 12257 encumbered by the trail-use easement is 39,947 SF. Id. at 44–45;

Pls.’ Pre-Trial Mem. ¶¶ 56–58.

4. 2309 Lawndale Drive (Parcel No. 15151). This parcel was owned by Emily

Elizabeth Owen on October 11, 2019. See PX 4 at 3; PX 67; Pls.’ Pre-Trial Mem. ¶ 64. The total

parcel size is 0.22-acre or 9,583 SF and is zoned for single-family residential use. PX 4 at 15, 19.

The property contains a two-bed, one-bath single-family residence totaling 966 SF, along with a

one-car detached garage. Id. at 17. Before the taking, the highest and best use of the property was

residential use. Id. at 20. After the taking, the highest and best use remains residential use. Id.

The area of parcel number 15151 encumbered by the trail-use easement is 3,876 SF. Id. at 29–30.

5. 1705 Battleground Avenue (Parcel No. 12253). This parcel was owned by

Goodhue Partners LLC on October 11, 2019. See PX 6 at 7; PX 69; Pls.’ Pre-Trial Mem. ¶ 75.

The total parcel size is 0.39-acre or 16,988 SF and is zoned for commercial and multi-family

residential uses. PX 6 at 22, 28. The property contains a single-story building totaling 5,164 SF

with a partially completed paved parking lot and a cell tower valued by the County at $112,500.

Id. at 22–23. The building has a wood frame with brick siding on a concrete slab with “above

average” finishes and currently houses an interior decorator’s offices and showroom. Id. at 23;

Pls.’ Pre-Trial Mem. ¶ 76. Before the taking, the highest and best use of the property was

commercial development. PX 6 at 29. After the taking, the highest and best use remains

commercial development. Id. The area of parcel number 12253 encumbered by the trail-use

easement is 10,693 SF. Id. at 48; Pls.’ Pre-Trial Mem. ¶¶ 78–80.

6. 410 Hillside Drive (Parcel No. 4063). This parcel was owned by William and Dora

Nelson on October 11, 2019. See PX 7 at 3. The total parcel size is 0.30-acre or 13,068 SF and is

zoned for single-family residential use. Id. at 15–16, 20. The property contains a single-family

residence totaling 1,000 SF, which includes a basement, porches, a detached garage, and a

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driveway. Id. at 15, 17. Before the taking, the highest and best use was low-density, single-family

residential use. Id. The highest and best use of the property after the taking remains single-family

residential use. Id. at 21. The area of parcel number 4063 encumbered by the trail-use easement

is 6,200 SF. Id. at 29; Pls.’ Pre-Trial Mem. ¶¶ 89–91.

7. 2311 Lawndale Drive (Parcel No. 15150). This parcel was owned by Darlene R.

Stanley on October 11, 2019. See PX 8 at 3. The total parcel size is 0.23-acre or 10,019 SF and

is zoned for residential use. Id. at 3, 15–16. The property contains a single-story resident totaling

1,314 SF with three bedrooms, one full bath, a basement, and porches. Id. at 16–17. Before the

taking, the highest and best use of the property was single-family residential use. Id. at 20. After

the taking, the highest and best use of the property remains single-family residential use. Id. The

area of parcel number 15150 encumbered by the trail-use easement is 3,512 SF. Id. at 29; Pls.’

Pre-Trial Mem. ¶¶ 100–02.

8. 414 Hillside Drive (Parcel No. 4065). This parcel was owned by Kenneth Plott

and Cynthia Toy on October 11, 2019. See PX 9 at 3. The total parcel size is 0.18-acre or 7,841

SF and is zoned for single-family residential use. Id. at 3, 16. The property contains a single-

family residence totaling 1,245 SF, which includes three bedrooms, one full bath, a basement, a

driveway, an enclosed porch and wood deck, and a detached garage in the northwest corner of the

backyard. Id. at 15, 17. Before the taking, the highest and best use of the property was single-

family residential use. Id. at 21. After the taking, the highest and best use of the property would

be low-density, single-family residential development. Id. at 20. The area of parcel number 4065

encumbered by the trail-use easement is roughly 2,750 SF. Id. at 29–30; Pls.’ Pre-Trial Mem. ¶¶

111–13.

9. 2317 Lawndale Drive (Parcel No. 15147). This parcel was owned by H. Wayne

and Faye Mohorn on October 11, 2019. See PX 18 at 3. The total parcel size is 0.28-acre or

12,297 SF and is zoned for single-family residential use. Id. at 3, 16; Pls.’ Pre-Trial Mem. ¶ 120.

The property supports a single-story residence totaling 1,470 SF, which includes three bedrooms,

one full bath, an enclosed porch, an open porch, an attached storage room, and a driveway. PX 18

at 17. Before the taking, the highest and best use of the property was residential use. Id. at 20.

After the taking, the highest and best use remains residential use. Id. The area of parcel number

15147 encumbered by the trail-use easement is 3,466 SF. Id. at 31–32; Pls.’ Pre-Trial Mem. ¶¶

122–24.

10. 2205 and 2207 Fernwood Drive (Parcel Nos. 15157 and 15143). These abutting

parcels were owned by Dr. Robert Tury on October 11, 2019. The size of the parcels and the area

of take remain a source of continued confusion with none of the experts correctly calculating the

areas. For instance, Mr. Hickerson’s estimates of the area of take and the parcel size of 2207

Fernwood Drive conflict with his own map. DX 6327 at 7, app.B fig. 3. Ms. Straup incorrectly

depicts the area of take as wider than the parcel at 2207 Fernwood Drive. PX 258; DX 931 at 5;

DX 1879 at 1,8. Dr. Kilpatrick accepts a measurement error in the plat and misinterprets another

measurement, thereby inflating the size of the parcels. DX 257 at 8 fig. 6, 17; DX 1879 at 1, 8.

Finally, Mr. Kimmel uses multiple, mutually inconsistent estimates. DX 47 at 18–19, 21, 34.

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Relying on deed descriptions of the parcels and the survey map’s description of the

easement width, the Court finds as follows: the parcel sizes of 2205 and 2207 Fernwood Drive are

10,148.25 SF and 10,460.33 SF, respectively. Thus, the total size of the parcels is 20,608.58 SF.

The area of take is 10,390.45 SF, and it lies entirely within 2207 Fernwood Drive. Nevertheless,

both appraisers correctly assumed that the “larger parcel” consists of both two parcels. PX 257 at

16; DX 47 at 36. Before the taking, the highest and best use of the parcels was to support an office

building. After the taking, the highest and best use of the parcels would be commercial

development of the remainder property. See PX 257 at 44; DX 47 at 45.

11. 1707-A Battleground Avenue (Parcel No. 12252). This parcel was owned by Mary

Anton on October 11, 2019. See PX 19 at 7. The total parcel size is 0.34-acre or 14,810 SF and

is zoned for commercial use. Id. at 7, 26. The property supports a retail building totaling 2,608

SF that is used as an auto service garage, along with parking spaces and a paved driveway totaling

6,000 SF. Id. at 20. Before the taking, the highest and best use of the property was in its “as-is”

developed state. Id. at 26–27. After the taking, the highest and best use is commercial re-

development. Id. The area of parcel number 12252 encumbered by the trail-use easement is

roughly 8,400 SF. Id. at 45; Pls.’ Pre-Trial Mem. ¶¶ 144–46.

12. 1707-B Battleground Avenue (Parcel No. 12256). This parcel was also owned by

Mary Anton on October 11, 2019. See PX 20 at 7. The total parcel size is 0.22-acre or 9,583 SF

and is zoned for commercial use. Id. at 7, 20–21, 25. The property supports a single-story building

totaling 1,495 SF that houses a salon called the “Brow Lounge,” which provides manicure and

pedicure services. Id. at 20, 22. The property also contains paving and thirteen parking spaces

totaling 5,200 SF. Id. at 22; DX 48 at 25. Before the taking, the highest and best use of the

property was commercial development. PX 20 at 26. After the taking, the highest and best use

remains the same. Id. at 27. The area of parcel number 12256 encumbered by the trail-use

easement is roughly 6,300 SF. Id. at 46–47; Pls.’ Pre-Trial Mem. ¶¶ 155–57.

13. 1013 Battleground Avenue (Parcel No. 4072). This parcel was owned by

Davenport Energy, Inc. on October 11, 2019. See PX 23 at 7. The total parcel size is 1.22-acres

or 53,143 SF and is zoned as “light industrial.” Id. at 7, 20; Pls.’ Pre-Trial Mem. ¶ 164. Before

the taking, the highest and best use of the property was commercial development. PX 23 at 25.

After the taking, the highest and best use remains the same. Id. The area of parcel number 4072

encumbered by the trail-use easement is 36,441.10 SF. Id. at 33; Pls.’ Pre-Trial Mem. ¶¶ 166–68.

14. 623 Eugene Court (Parcel No. 1442). This parcel was owned by One Step Further,

Inc. on October 11, 2019. See PX 24 at 3, 15; PX 88. The total parcel size is 0.36-acre or 15,682

SF and is zoned as “central business” with a downtown development overlay. PX 24 at 15. The

property contains a one-story office building totaling 5,038 SF (along with a parking lot and

wooden fence) and houses a not-for-profit entity. Id. at 14, 16. Before the taking, the highest and

best use of the property was Class B office space. Id. at 3, 16, 19. After the take, there is no

highest and best use for the parcel as it is “effectively useless” for practical future development.

Id. at 41. The area of parcel number 1442 encumbered by the trail-use easement is 17,041 SF. Id.

at 39–40; Pls.’ Pre-Trial Mem. ¶¶ 175–77.

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15. 2204 Battleground Avenue (Parcel No. 15300). This parcel was owned by Sam’s

Commercial Properties, LLC on October 11, 2019. PX 25 at 7; PX 89.2 The total parcel size is

1.498-acres or 65,176.10 SF and is zoned as “commercial medium.” PX 25 at 7, 19. Before the

taking, the highest and best use of the property was as a vacant parcel with the potential for future

commercial development. Id. at 24–25. After the taking, the highest and best use of the property

would be commercial development. Id. at 25. The area of parcel number 15300 encumbered by

the trail-use easement is approximately 18,684 SF. Id. at 33–34; Pls.’ Pre-Trial Mem. ¶¶ 183–85.

16. 1450 Open Whilden Place (Parcel No. 60078). This parcel was owned by Whilden

Place Homeowner’s Association on October 11, 2019. See PX 26 at 3; PX 90; Pls.’ Pre-Trial

Mem. ¶ 191. The total parcel size is 8.53-acres or 371,567 SF and is zoned for multi-family

residential use with a downtown development overlay. PX 26 at 3, 14–15, 18. The parcel supports

a neighborhood of 63 single-family condominium homes but can support a total of 153 units. Id.

at 10, 14, 16, 20. Before the taking, the highest and best use of the property was for multi-family

residential development. Id. at 18–19. After the taking, the highest and best use remains the same.

Id. at 19. The area of parcel number 60078 encumbered by the trail-use easement is approximately

103,200 SF. Id. at 38–29; Pls.’ Pre-Trial Mem. ¶¶ 194–96.

17. 1304 Whilden Place (Parcel No. 6664). This parcel was owned by Helen C. Wood,

LLC on October 11, 2019. See PX 27, 91; Pls.’ Pre-Trial Mem. ¶ 202. The total parcel size is

0.34-acre or 14,810 SF and is zoned for multi-family residential use. See PX 27 at 16–18. The

property also supports a single-family residence totaling 1,424 SF, which previously functioned as

a duplex. Id. at 17–18. Before the taking, the highest and best use of the property was for use as

a single-family residence. Id. at 21–22. After the taking, the highest and best use would be low-

and medium-density residential development. Id. The area of parcel number 6664 encumbered

by the trail-use easement is approximately 8,000 SF. Id. at 30–31; Pls.’ Pre-Trial Mem. ¶¶ 205–

07.

18. 2300 Battleground Avenue (Parcel No. 15297). This parcel was owned by Joseph

Campbell on October 11, 2019. See PX 28 at 8; PX 92; Pls.’ Pre-Trial Mem. ¶ 213. The total

parcel size is 0.81-acre or 35,284 SF and is zoned as “commercial medium.” PX 28 at 26. The

property also contains a specialty auto service facility and an automatic carwash and storage areas.

Id. at 22. Before the taking, continued use of the parcel in the “as is” condition would be the

highest and best use of the property. Id. at 27–28. After the taking, the highest and best use of the

parcel would be high-end commercial development. Id. The area of parcel number 15297

encumbered by the trail-use easement is approximately 17,631 SF. Id. at 30–31; Pls.’ Pre-Trial

Mem. ¶¶ 216–18.

19. 1420 Whilden Avenue (Parcel No. 60069). This parcel was owned by Colleen

McNickle on October 11, 2019. See PX 29 at 3; PX 93; Pls.’ Pre-Trial Mem. ¶ 224. The total

parcel size is 0.14-acre or 5,898 SF and is zoned for medium-density residential development. PX

2

There is a discrepancy between plaintiffs’ statements and those of their expert, Dr. Kilpatrick,

regarding the identity of the owner of 2204 Battleground Avenue. Compare Pls.’ Pre-Trial Mem. ¶ 180

(identifying the owner as “Sam’s Commercial Properties, LLC”), with PX 25 at 7 (listing the “owner of

record” as Battleground Storage Associates LLC.”). The Court resolves any discrepancy regarding

ownership in favor of representations contained in plaintiffs’ pre-trial memorandum of facts and law.

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29 at 3, 17. The property supports a single-story condominium unit totaling 744 SF. Id. at 16–18.

Before the taking, the highest and best use of the property was in its “as-is” state for use supporting

a single-family condominium residence. Id. at 22. After the taking, the highest and best use will

be for residential development. Id. The trail-use easement encumbers the entirety of the

condominium unit, thereby constituting a “total taking” of the parcel. Id. at 30–32; Pls.’ Pre-Trial

Mem. ¶¶ 227–29.

20. 416 Hillside Drive (Parcel No. 4066). This parcel was owned by Charissa R.

Raynor on October 11, 2019. See PX 30 at 3; PX 94; Pls.’ Pre-Trial Mem. ¶ 235. The total parcel

size is 0.21-acre or 9,148 SF and is zoned for low-density, single-family residential development.

PX 30 at 15–16. A one-story residential structure totaling 1,059 SF sits on the property, along

with a driveway on the southern side of the property. Id. at 17. Before the taking, the highest and

best use of the parcel was in its “as-is” state supporting a single-family residence. Id. at 20. This

highest and best use remains the same after the taking. Id. at 21. The area of parcel number 4066

encumbered by the trail-use easement is approximately 2,831 SF. Id. at 29; Pls.’ Pre-Trial Mem.

¶¶ 238–40.

21. 404 Hillside Drive (Parcel No. 4060). This parcel was owned by Matthew Black

on October 11, 2019. See PX 31 at 3; PX 95; Pls.’ Pre-Trial Mem. ¶ 246. The total parcel size is

0.23-acre or 10,019 SF and is zoned for low-density, single-family residential development. PX

31 at 15–16. The property also supports a single-story home totaling 1,063 SF, along with a 500

SF unfinished basement and a driveway on the northern part of the property. Id. at 15, 17–18.

Before the taking, the highest and best use of the parcel was in its “as-is” statute for use as a single-

family residence. Id. at 21. After the taking, the highest and best use remains the same. Id. The

area of parcel number 4060 encumbered by the trail-use easement is approximately 6,060 SF. Id.

at 30–31; Pls.’ Pre-Trial Mem. ¶¶ 249–51.

C. Procedural History

The 20 plaintiffs across these six cases filed their operative complaints between 2020 and

2023. See Agapion, ECF No. 21; Chapman, ECF No. 7; Goodhue, ECF No. 9; Mohorn, ECF No.

152; Wood, ECF No. 15; Black, ECF No. 12. At varying points in 2020 and 2021, the parties

jointly stipulated to each plaintiffs’ ownership of the properties at issue. See Agapion, ECF No.

20; Chapman, ECF No. 11; Goodhue, ECF No. 10; Mohorn, ECF No. 12; Wood, ECF No. 17;

Black, ECF No. 19. 3 Although the claims of other landowners were settled, settlement of these

cases did not occur. See Agapion, ECF No. 48 at 1; Goodhue, ECF No. 104; Mohorn, ECF Nos.

92, 99. 4 Ultimately, the parties requested that a trial be held to determine the amount of just

compensation owed to plaintiffs for the government’s taking of their property. See Pls.’ Status

Report, ECF No. 208; United States’ Statement Proposing Trial Date, ECF No. 209. In April

2023, the Court issued an order and set trial for late September 2023. See Apr. 11, 2023 Order,

ECF No. 215.

3

The government submitted a filing that partially revoked its earlier stipulation to the parties’ title.

See Mohorn, ECF No. 62. The government’s revocation, however, does not implicate any of the properties

at issue in the cases covered by this opinion.

4

The cases of other landowners were dismissed with prejudice following the September 2023 trial

in this case. See Agapion, J. Stip. of Dismissal with Prejudice for Certain Claims, ECF No. 304.

8

Before the damages trial, the parties filed pre-trial briefs setting forth their proposed

findings of fact and law. See United States’ Pre-Trial Br.; Pls.’ Am. Memorandum of Contentions

of Facts and Law, ECF No. 241-1. 5 The Court held a damages trial via remote videoconference

from September 27 through September 29, 2023. 6 After the trial, the parties submitted post-trial

briefs in late 2023 and early 2024. See Pls.’ Post-Trial Br., ECF No. 277; United States’ Post-

Trial Br.; Pls.’ Reply Br., ECF No. 282. On April 23, 2024, the Court held closing arguments at

the courthouse in Washington, D.C. See Apr. 23, 2024 Order.

II. Overview of Trial Testimony

The four-day damages trial consisted of testimony from five witnesses. Plaintiffs presented

testimony from three expert witnesses: (1) Cynthia Straup; (2) Dr. John Kilpatrick; and (3) Charles

Matthews.

Ms. Straup is the managing director of Straup Solutions, a geographic information systems

(“GIS”) mapping company. See Trial Tr. 44–46; PX 163. Ms. Straup testified to a series of maps

created by her firm that depicted the geographic dimensions of the properties and the easement

obtained by the City from Norfolk Southern. See Trial Tr. 45–46, 59:8–20. She noted that her

maps and analysis were based on the survey attached to the non-warranty deed and valuation charts

filed with the county. Id. 45:3–23, 54:4–24. Based on these maps, Ms. Straup offered her opinions

regarding the portions of plaintiffs’ properties that are now encumbered by the City’s trail-use

easement. Id. 63:19–98:16; PX 90–98.

Plaintiffs also offered the testimony of Dr. Kilpatrick regarding his valuation of the twenty-

one affected properties. Trial Tr. 172:12–15. Dr. Kilpatrick possesses over 40 years of

professional experience in the real estate industry and is a certified appraiser in forty-nine states,

including in North Carolina. See PX 162; Pls.’ Pre-Trial Mem. ¶¶ 19–21. Dr. Kilpatrick offered

testimony regarding his valuation opinions for each of the affected properties, which were also set

forth in a series of appraisal reports. See PX 1–6, 7–9, 18–20, 23–31.

In his appraisal reports, Dr. Kilpatrick compared the “before” value of each property—the

value of the property if owned in fee simple—against the “after” value of the property—the value

of the property subject to the trail-use easement. See Trial Tr. 172:3–8. To value each property in

the “before” condition, Dr. Kilpatrick used three well-established appraisal methodologies to

determine fair market value: (1) the “sales comparison” approach; (2) the “income” approach; and

(3) the “cost” approach. See, e.g., PX 2 at 18–33. Dr. Kilpatrick then weighed these competing

valuation approaches to arrive at a reconciled value for each property. Id. at 33. To value each

property in the “after” condition, Dr. Kilpatrick subtracted the entire value of the land that was

5

Plaintiffs filed an earlier pre-trial memorandum of facts and law in January 2023 (at ECF No. 186)

but later submitted an updated memorandum to reflect certain changes that occurred in the intervening

period. See Pls.’ Consent Motion for Leave to Amend Plaintiffs’ Memorandum of Contentions of Facts

and Law, ECF No. 241. The Court granted leave for plaintiffs to file this updated memorandum. See Sept.

11, 2023 Order, ECF No. 243.

6

The Court resumed the valuation trial on October 4, 2023 to hear the testimony of Charles David

Matthews and Dr. John Kilpatrick. See Oct. 4, 2023 Order. Mr. Matthews and Dr. Kilpatrick both testified

remotely.

9

subject to the new easement from the “before” value. Id. at 38. Dr. Kilpatrick then added the costs

to build a 10-foot privacy wall to finalize his just compensation figures. Id. at 40; Trial Tr. 199–

201. In Dr. Kilpatrick’s opinion, the costs associated with building a privacy wall served as a

reasonable proxy for the severance damages to each plaintiffs’ unencumbered land.

Plaintiffs also offered rebuttal testimony by Charles Matthews. See generally Trial Tr.

915–991. Mr. Matthews attacked the reliability of the valuation and methodology employed by

the government’s appraisal witness, Matthew Kimmel. See PX 244–45. Mr. Matthews possesses

over 50 years of real estate appraisal and teaching experience, including experience with

appraising properties subject to a trail-use easement. See PX 261; Trial Tr. 937:4–938:11. A

licensed appraiser in North Carolina, Mr. Matthews testified that Mr. Kimmel incorrectly valued

plaintiffs’ property in the “before” condition by assuming that the property remained encumbered

by the original rail easement rather than valuing each property as unencumbered by the rail

easement. Id. 945:7–946:7. Mr. Matthews also testified that Mr. Kimmel’s “after” valuations

failed to meet the standard methodology used in a rails-to-trails appraisal because Mr. Kimmel

assumed that the City would not use the full extent of its trail-use easement. Id. 954:14–18. Based

on his analysis, Mr. Matthews claimed that Mr. Kimmel significantly undervalued the loss to

plaintiffs’ property resulting from the trail-use easement. Id. 964:17–25.

The government offered testimony from two expert witnesses: (1) Glen Hickerson; and (2)

Mr. Kimmel. Mr. Hickerson served as the government’s GIS-mapping expert. See United States’

Post-Trial Br. at 14; Trial Tr. 498:1–3. At trial, Mr. Hickerson testified that he calculated the

geographic boundaries of plaintiffs’ properties by relying on the 2019 and 2022 Guilford County

GIS parcel maps as base layers. See Trial Tr. 499:18–22, 501:21–22. He then overlayed the county

parcel maps with aerial photographs and a valuation map prepared by the Interstate Commerce

Commission (“ICC”) in 1927 that reflected the railroad’s easement interests along the corridor.

Id. 521–525; PX 187. Mr. Hickerson summarized his calculations and findings in a series of expert

reports submitted to the Court. See DX 6327–30. Based on his analysis, Mr. Hickerson concluded

that Ms. Straup inflated the size of plaintiffs’ properties because she relied on the 2019 survey map

attached to the non-warranty deed—a map which Mr. Hickerson claims is inaccurate—rather than

the 1927 maps prepared by the ICC. See Trial Tr. 535:14–536:15. Specifically, Mr. Hickerson

testified that the geographic dimensions of the trail-use easement reflected in the 2019 survey map

are larger than Norfolk Southern’s actual easement ownership interests. Id. 535:14–18. In Mr.

Hickerson’s view, the 1927 valuation maps are more reliable sources for determining the extent of

the original easement than the 2019 survey. Id. 537–38, 540.

The government also offered Mr. Kimmel’s testimony regarding the value of plaintiffs’

properties. A significant portion of Mr. Kimmel’s testimony focused on perceived legal errors

underlying Dr. Kilpatrick’s valuation analysis. Mr. Kimmel testified that he reviewed Dr.

Kilpatrick’s appraisal reports and created his own valuations of these properties when necessary.

Id. 593:1–7. Mr. Kimmel testified that he believed Dr. Kilpatrick incorrectly applied the “before-

and-after” methodology by failing to complete a true “after” valuation. Id. 427:15–428:15. In Mr.

Kimmel’s opinion, plaintiffs’ properties suffered no diminution in value resulting from the trail-

use easement because the “before” condition of each property should have been valued as though

it was already subject to the railway easement. Id. 631:7–23; DX 2–5, 19–20, 31–34, 46–52, 59–

61. Thus, Dr. Kilpatrick should have concluded that the “before” condition of each property—the

10

value of the property subject to the railway easement—was identical to the “after” condition—the

value of the property subject to the new trail-use easement. Trial Tr. 631:14–25.

Mr. Kimmel also criticized the methodologies employed by Dr. Kilpatrick to determine the

“before” condition of the property. Mr. Kimmel testified that the use of the three valuation

approaches was fundamentally flawed because Dr. Kilpatrick relied on unrepresentative

comparative properties and offered almost no information in support of his application of each

method. Id. 715:10–17, 738:1–12, 742–743; DX 1 at 47.

III. Discussion

The sole issue that must be resolved is the amount of just compensation owed to plaintiffs.

See Pls.’ Post-Trial Brief at 18 (“Whether Plaintiffs are owed compensation in these matters is not

open for debate: liability in these matters has been established.”); United States’ Post-Trial Br. at

7 (recognizing plaintiffs’ ownership of the “property adjacent to a 3.1-mile railroad corridor” and

that the issue before the Court is the amount of just compensation owed for the rail-corridor

conversion). The Court draws its factual findings from the complete record in this case and from

related litigation.

A. Legal Standard for Just Compensation

The Fifth Amendment to the United States Constitution prohibits the federal government

from taking private property for public use without paying the owner just compensation. U.S.

CONST. amend. V. This Court has jurisdiction over takings claims against the United States,

including those that occur under section 8(d) of the Trails Act. See 28 U.S.C § 1491; Preseault I,

494 U.S. at 11–17. If the government is found liable for the taking, the Court must determine the

just compensation owed to the plaintiff. See Cedar Point Nursery v. Hassid, 594 U.S. 139, 147

(2021) (“When the government physically acquires private property for a public use, the Takings

Clause imposes a clear and categorical obligation to provide the owner with just compensation.”)

(citation omitted); see also Castillo v. United States, 952 F.3d 1311, 1315 (Fed. Cir. 2020) (“[T]he

government must provide just compensation to the owner of the reversionary rights eliminated by

a Trails Act conversion.”) (citation omitted).

The prevailing benchmark for just compensation is the “fair market value” for the “highest

and best use” of the property. Olson v. United States, 292 U.S. 246, 255 (1934); Rasmuson v.

United States, 807 F.3d 1343, 1346, n.1 (Fed. Cir. 2015). Generally, this is measured by the “price

at which the property would change hands between a willing buyer and a willing seller” that are

both “reasonably informed as to all relevant facts.” Julius Goldman’s Egg City v. United States,

697 F.2d 1051, 1054 n.3 (Fed. Cir. 1983) (Egg City II) (quoting Miller v. United States, 620 F.2d

812 (Ct. Cl. 1980)). The constitutional mandate to pay just compensation—and the use of fair

market value to establish the amount owed—is to ensure that the owner of the condemned property

is made whole and no more. See United States v. 564.54 Acres of Land, 441 U.S. 506, 516 (1979).

If the taking is caused by the burden of an easement, fair market value is determined using

the “before-and-after” method—also known as the “Federal Rule”—which considers “the

difference between the value of the property before and after the Government’s easement was

11

imposed.” McCann Holdings, Ltd. v. United States, 111 Fed. Cl. 608, 614 (2013) (quoting Otay

Mesa Property, L.P., v. United States, 670 F.3d 1358, 1364 (Fed. Cir. 2012)). When the taking is

only partial, the amount of just compensation owed is the “diminution in value of the owner’s

remaining property resulting from the taking.” Childers v. United States, 116 Fed. Cl. 486, 497

(2013) (citation omitted); Uniform Appraisal Standards for Federal Land Acquisitions § 1.7.1.1

(6th ed. 2016) (the “Yellow Book”). The government may also compensate the property owner

for the “cost-to-cure” when it is less than the property’s reduction in fair market value. McCann

Holdings, Ltd., 111 Fed. Cl. at 614, 622–23 (citation omitted). However, the cost-to-cure is usually

an alternative and independent measurement for calculating damages compared with the Federal

Rule. United States v. Miller, 317 U.S. 369, 375–76 (1943); Vaizburd v. United States, 384 F.3d

1278, 1286 (Fed. Cir. 2004).

Regardless of the method employed by the Court for measuring just compensation, the

Court’s mission remains the same: remedying “actual damages” suffered by the plaintiff for the

taking. Gadsden Industrial Park, LLC v. United States, 956 F.3d 1362, 1371 (Fed. Cir. 2020)

(quotation marks omitted). The plaintiff bears the burden of proving that he is entitled to just

compensation and must demonstrate his damages “with reasonable certainty.” Id.; see also

Childers, 116 Fed. Cl. at 497 (citing Miller, 620 F.2d at 812). The Court will find that a plaintiff

has carried his burden when he presents reliable market data supporting an estimated reduction in

value to the injured property. See McCann Holdings, Ltd., 111 Fed. Cl. at 614.

The Court is not limited to any fixed methodology for determining fair market value and

just compensation. See Yaist v. United States, 17 Cl. Ct. 246, 257 (1989). Rather, the Court’s

responsibility is to “synthesize in its mind the record before it, determine to what extent opinion

evidence rested on fact, consider and weigh it all, and come up with figures supported by all the

evidence.” Washington Metro. Area Transit Auth. v. United States, 54 Fed. Cl. 20, 36 (2002)

(citation and alteration omitted). If “a plaintiff has not provided evidence sufficient to determine

just compensation,” the Court “is not obligated to fashion its own award.” Gadsden Indus. Park,

LLC, 956 F.3d at 1371.

B. The Parties’ Valuation Estimates

Plaintiffs collectively seek an award of $10,747,334 as the just compensation for the

government’s taking of their properties (plus delay damages, litigation expenses, and attorneys’

fees). See Pls.’ Post-Trial Br. at 13–14, 39. To establish these damages, plaintiffs rely on (1) Ms.

Straup’s testimony regarding the geographic dimensions of plaintiffs’ properties and the portions

of those properties now burdened by the trail-use easement; and (2) the Dr. Kilpatrick’s testimony

and appraisal reports regarding the value of each plaintiffs’ property both before and after it was

encumbered by the trail-use easement. See PX 1–6, 7–9, 18–20, 23–31, 90–98.

The government opposes any award of damages, embracing the opinion offered by Mr.

Hickerson that Ms. Straup miscalculated the size of plaintiffs’ properties by a total of 51,921.30

SF by relying on the 2019 map attached to the non-warranty deed rather than the 1927 ICC map.

United States’ Post-Trial Br. at 15; Trial Tr. 537:3–16, 538:7–23, 540:5–18. By enlarging the size

of plaintiffs’ property interests, the government contends that Ms. Straup incorrectly measured the

width of the easement throughout the corridor and thus miscalculated the “area of take.” See Trial

12

Tr. 535:14–536:15; United States’ Post-Trial Br. at 12–17. Mr. Hickerson claims that Ms. Straup

committed other errors, such as relying on an unreliable county parcel map, utilizing an incorrect

and overly simplistic mathematical formula for measuring irregular and curved parcels, and failing

to perform exact calculations of the parcel dimensions by rounding up. See Trial Tr. 133–134,

138:1–25; United States’ Post-Trial Br. at 17–18.

The government also attempts to undermine Dr. Kilpatrick’s valuation findings on three

independent grounds. First, the government claims that Dr. Kilpatrick’s appraisal was

fundamentally flawed because it was based on an incorrect understanding of the size and scope of

the plaintiffs’ properties and the easement. See United States’ Post-Trial Br. at 20, 29–31. Second,

Dr. Kilpatrick failed to properly calculate compensable damages because he did not follow the

before-and-after method. Id. at 20–29. Third, Dr. Kilpatrick improperly adds severance damages

to the total amount of just compensation owed. Id. at 31. On the second and third points, the

government relies on Mr. Kimmel’s criticism that Dr. Kilpatrick’s valuations were incomplete and

unreliable because he failed to provide sufficient explanation for his application of the sales

comparison, income, and cost approaches and submitted his own appraisals of the property. See

Trial Tr. 593:1–7.

For the following reasons, the Court finds that Dr. Kilpatrick's before-and-after valuation

findings are reliable and thus informative for determining just compensation. The Court will adopt

Dr. Kilpatrick’s findings, except for his conclusions regarding severance damages (i.e., the costs

associated with building a privacy wall), which the Court finds are not supported by the record.

C. Width and Exclusivity of the Easement

Plaintiffs believe that the 2019 survey map “defines the metes and bounds of what the City

acquired as part of its purchase of the Railroad’s easement rights, in conjunction with county level

parcel data from 2019.” See Pls.’ Post-Trial Br. at 12. That is because the 2019 survey map depicts

“the portion of land conveyed between the Railroad and the City” in the non-warranty deed. Id.

at 19. For support, plaintiffs cite two earlier decisions by the Court that resolved Fifth Amendment

takings claims arising out of the same underlying rails-to-trails conversion. Id. at 10. In both of

those cases, the Court found that the 2019 survey map defined the geographic boundaries of the

plaintiffs’ property interests and the scope of the easement. Agapion I, 167 Fed. Cl. 761, 774

(2023); Kotis Assocs., LLC v. United States, 176 Fed. Cl. 346, 373 (2025).

The government disagrees that the 2019 map controls and argues that Dr. Kilpatrick’s

findings do not accurately reflect the nature and extent of the property rights taken. According to

the government, Dr. Kilpatrick’s valuation relied on Ms. Straup’s erroneous calculations of the

geographic dimensions of the plaintiffs’ properties and the portions now encumbered by the trail-

use easement. See United States’ Post-Trial Br. at 6. In turn, the government contends that Ms.

Straup failed to correctly measure the dimensions of the trail-use easement because she relied on

the 2019 survey map rather than the 1927 ICC map. Id. For this argument, the government points

to a collection of property records which the government contends establishes that Norfolk

Southern did not have the legal title to the easement width reflected in the survey along the full 3.1

miles of rail line. Id. at 9. Because Norfolk Southern never possessed an easement as wide as the

one reflected in the 2019 survey map, the City did not obtain an easement as wide as the one

13

outlined in the survey and thus the plaintiffs are not entitled to compensation for that which the

City did not actually acquire.

In a valuation trial, the Court’s objective is to determine the just compensation owed after

considering all the evidence presented. Otay Mesa Property, L.P. v. U.S., 779 F.3d 1315, 1321

(Fed. Cir. 2015). This requires the Court to consider the accuracy of any factual and legal

underpinnings upon which the plaintiff relies to meet his burden of proof. Gadsden Indus. Park,

LLC, 956 F.3d at 1368 (“Whether a taking under the Fifth Amendment has occurred is a question

of law with factual underpinnings.”) (citation omitted). If a plaintiff’ case rests on unfounded or

inaccurate statements of law or fact, the Court should account for such errors and deficiencies

when making its just compensation determination. Ultra-Precision Mfg. Ltd. v. Ford Motor Co.,

338 F.3d 1353, 1359 (Fed. Cir. 2003). However, the Court will find that the plaintiff has met his

burden of proof when he presents credible market evidence combined with accurate factual and

legal assertions. McCann Holdings, Ltd., 111 Fed. Cl. at 614, 622–26.

Confronted with materially identical circumstances, the Court in Agapion I found that the

2019 survey map “defines the geographic dimensions of the property interest acquired by the

City.” Agapion I, 167 Fed. Cl. at 774. Two years later, the Court reached the same finding in

Kotis Associates, LLC., concluding that the NITU reflects “the authoritative document through

which Congress and the STB impose an ITUR easement [] and the corridor description adopted

therein is binding on this Court.” 176 Fed. Cl. 346, 371 (2025) (internal citations omitted). There,

the Court determined that “[t]he NITU clearly adopts the Survey Map on which plaintiffs rely” to

establish the geographic dimensions of the trail-use easement. Id. In reaching this decision, the

Court found that NITU’s adoption of the 2019 map was dispositive because the NITU is the sole

governmental action that can affect a taking in a rails-to-trails scenario. Id. at 370. When the STB

approved of the survey map, the agency authorized the scope of the new easement, and using

Congress’ grant of eminent domain power expanded what was assumedly a narrower railway

easement. Id. at 371.

The same holds true here. Plaintiffs rely on the same 2019 map and NITU that the Court

recognized as dispositive in Agapion I and Kotis for fixing the dimensions of the trail-use

easement. At the same time, the government fails to persuade the Court that it should depart from

its earlier decisions regarding the dispositive nature of the NITU and 2019 map. The Court thus

finds that the plaintiffs have met their burden of proving that the 2019 survey map governs the

dimensions of the new easement obtained by the City and thus reflects the taking of plaintiffs’

property.

The parties also dispute whether the trail-use easement is exclusive. Plaintiffs contend that

Dr. Kilpatrick’s valuation opinions correctly found that plaintiffs do not retain the legal right to

use the encumbered portion of their properties. See Pls.’ Post-Trial Br. at 29–35. Plaintiffs point

out that the NITU imposes no limitation on the City’s ability to convert the entire strip of the

easement into a recreational trail, thereby depriving plaintiffs “of two of the most important sticks

in the bundle of property rights: exclusion and improvement.” Id. at 30. In opposition, the

government argues that plaintiffs have failed to establish that the City’s new easement is exclusive

and thus deprives plaintiffs of the full use of the burdened property. See United States’ Post-Trial

Br. at 31–33. The government claims that the Trails Act and North Carolina law does not grant

14

the trail sponsor with “exclusive control of the corridor.” Id. at 32. Rather, the original landowners

retain the right to occupy any portion of a railroad easement “not presently needed for railroad

purposes.” Id. (quoting Carolina & N.W. Ry. Co. v. Piedmont Wagon & Mfg. Co., 51 S.E.2d 301,

306 (N.C. 1949) (internal quotation marks omitted). The government also asserts that plaintiffs

“retain their right to control the remaining portion of their properties” because the City has no

current plans to remove existing structures or improvements encroaching on the easement. Id. at

32.

For the same reasons explained in Agapion I and Kotis, the Court concludes that a fee

simple landowner effectively loses all property rights within the corridor of a section 8(d)

easement. Agapion I, 167 Fed. Cl. at 775; Kotis Assocs., LLC, 176 Fed. Cl. at 375. In short, a

section 8(d) transfer grants the trail sponsor the authority to dictate the area of the easement that it

needs to maintain the trail, and the federal government retains the authority to use the entire

easement to reactivate the rail line. 16 U.S.C. § 1247(d). The ultimate result: the landowner retains

no legal right to use the portion of the property encumbered by the trail-use easement. Although

the City or STB may never order the removal of any existing structure, they have the authority to

do so. See Caldwell, 391 F.3d at 1229. The loss of guaranteed legal rights is enough to find that

the trail-use easement is exclusive because plaintiffs possess “no legal right to maintain an

encroaching structure if either the STB or the City determine the encroachment conflicts with their

use of the easement.” Agapion I, 167 Fed. Cl. at 776.

In sum, plaintiffs have lost their guaranteed legal right to maintain structures within the

corridor. Dr. Kilpatrick correctly based his valuation findings on plaintiffs’ complete loss of

guaranteed legal rights to use the property encumbered by the trail-use easement. See PX 1–6, 7–

9, 18–20, 23–31; Trial Tr. 194:20–195:2. As the Court recognized in its two earlier opinions, Dr.

Kilpatrick’s valuation approach reflects “best appraisal practices and the Court’s understanding of

the Section 8(d) easement.” Agapion I, 167 Fed. Cl. at 776; Kotis Assocs., LLC, 176 Fed. Cl. at

376.

D. Calculation of Compensable Damages

The Court now considers the quantum of just compensation. As noted earlier, Dr.

Kilpatrick calculated just compensation for each parcel as the sum of (1) the difference between

the “before” and “after” value of the entire parcel; and (2) the cost of building a privacy wall

between the trail-use easement and the remainder of the parcel. Trial Tr. 203:14–21. In Dr.

Kilpatrick’s view, the costs associated with the privacy wall serves as a proxy for the value of

“severance damages” in this case. Id. 200:24–201:10; Pls.’ Post-Trial Br. at 35–37.

On the other hand, Mr. Kimmel valued the parcels as though each parcel was subject to the

railroad easement in the “before” condition. See United States’ Post-Trial Br. at 34; United States’

Pre-Trial Mem. ¶¶ 47, 49–51, 56–61; Trial Tr. 612–613, 631. Mr. Kimmel then concluded that

the parcels did not decrease in value—and thus plaintiffs are not entitled to any compensation—

because the “before” and “after” value are identical. Id. 631:21–25; see also Pls.’ Post-Trial Br.

at 27–28.

15

Based on the evidence presented, the Court concludes that Dr. Kilpatrick’s methodology

and calculations regarding before-and-after value of the 21 properties are credible, except for his

opinions regarding the inclusion of the privacy wall in his damages calculation.

1. Dr. Kilpatrick’s “before” and “after” value calculations are credible and

methodologically sound.

The Court now considers Dr. Kilpatrick’s valuation of the properties in the “before”

condition. Dr. Kilpatrick completed individual appraisals for each of the twenty-one properties.

See PX 1–4, 6–9, 18–21, 23–31. He later submitted an amended appraisal for the Tury property.

See PX 257. To estimate the “before” value of each property, Dr. Kilpatrick uses some

combination of three different valuation approaches: the sales comparison, income, and cost

approaches. For the thirteen properties that were classified as either vacant or residential, Dr.

Kilpatrick only used the sales comparison approach for estimating the “before” value. See PX 1,

4, 7–9, 18, 23, 25, 26–27, 29–31. For the remaining eight commercial properties, he used all three

approaches and then reconciled those three calculations to reach a final valuation estimate. See

PX 2–3, 6, 19–20, 24, 28, 257.

Dr. Kilpatrick’s method for evaluating the “after” condition of the properties considered

the effect that the taking had on the remainder of the parcel. For instance, Dr. Kilpatrick concluded

that the remainder of a parcel that had no future possible use due to the trail-use easement (such as

Parcel No. 4072) had an “after” value of zero. See, e.g., PX 23 at 36. For these properties, the

final just compensation value was simply equal to his “before” value. Id. at 37. However, Dr.

Kilpatrick reached different valuation findings for properties whose non-encumbered portions

retained some use despite the encumbrance imposed by the trail-use easement. For those

properties, Dr. Kilpatrick subtracted the land value of the area of the taking from the land value of

the whole parcel. See, e.g., PX 1 at 38. To finalize his just compensation findings for these

properties, Dr. Kilpatrick added the costs associated with building a privacy wall along the border

separating the trail-use easement and the plaintiff’s unencumbered property. Id. at 39–40.

Not surprisingly, Mr. Kimmel disagreed with Dr. Kilpatrick’s appraisals. Mr. Kimmel

asserted that Dr. Kilpatrick’s appraisal work is methodologically flawed and not consistent with

established appraisal practices. See DX 1, 6, 18–19, 26, 36, 54. In Mr. Kimmel’s opinion, the

Court should accept his legal conclusion and find that the properties did not experience any

decrease in value due to the trail-use easement because the “before” condition should reflect the

prior railroad easement. See Trial Tr. 612–613, 631.

The Court rejects the government’s view that the “before” value of each of these properties

should reflect the diminished value imposed by the railway easement. The government’s position

rests on an erroneous legal interpretation that is contradicted by a line of cases concluding that the

“before” condition is measured “as if the easement did not exist.” Moore v. United States, 54 Fed.

Cl. 747, 749 (2002); see also Ladd v. United States, 630 F.3d 1015, 1023 (Fed. Cir. 2010). The

Court addressed the deficiencies of the government’s argument in detail in Kotis Assocs., LLC,

176 Fed. Cl. at 377–78. Here, as in Kotis, the Court is not persuaded by the government’s theory.

The Court also disagrees with the government’s argument that Dr. Kilpatrick failed to

properly apply the sales comparison, income, and cost approaches when valuing the properties in

16

the “after” condition. See United States’ Post-Trial Br. at 14. Dr. Kilpatrick correctly valued each

property by reducing the value of the remainder parcel by the value of the area encumbered by the

trail-use easement. As discussed above, plaintiffs retained no legal rights in the encumbered

portion of the property. See Caldwell, 391 F.3d at 1229. And as the Court recognized in Agapion

I and Kotis, this approach reflects best appraisal practices in the section 8(d) easement context.

Agapion I, 167 Fed. Cl. at 776; Kotis Assocs., LLC, 176 Fed. Cl. at 376.

Next, the government asserts that Dr. Kilpatrick’s analysis is “unsupported by actual

market evidence and is therefore unreliable” because he allegedly failed to properly apply the sales

comparison approach to his “before” valuations. See United States’ Post-Trial Br. at 20. First, the

government alleges that Dr. Kilpatrick’s use of comparable sales was improper when appraising

1707-A Battleground Avenue because those comparisons involve such a wide range of values that

cannot be used as credible indications of the value of the subject property. Id. Second, the

government attacks Dr. Kilpatrick’s valuations of 410 and 414 Hillside Drive as not credible

because Dr. Kilpatrick valued the smaller and more irregular parcel at more than twice the per

square foot value of the larger property. Id. at 21.

The Court concludes that Dr. Kilpatrick reliably used the sales comparison approach. A

careful review of the relevant appraisal reports demonstrates that Dr. Kilpatrick accounts for the

various ways that the subject property may differ from each of the comparable sales. PX 7 at 22–

25; PX 9 at 22–25; PX 19 at 30–34. The fact that the selected comparable sales differ from the

subject property in a variety of ways should come as no surprise: land is unique, and no two parcels

are identical. In applying the sales comparison approach, Dr. Kilpatrick accounts for these

differences with upward or downward adjustments in value. See PX 7 at 25; PX 9 at 25; PX 19 at

34. Dr. Kilpatrick reasonably selected comparable sales for each of the subject properties and

consistently applied a well-established approach of adjusting for the dissimilar characteristics of

the selected properties.

The government also attacks Dr. Kilpatrick’s use of the income and cost approaches. See

United States’ Post-Trial Br. at 21–22. On the income approach, the government argues that the

comparable properties that Dr. Kilpatrick selected to estimate the market rent for 2300

Battleground Avenue are too dissimilar from the subject property to provide an accurate basis for

formulating a precise estimate. See United States’ Post-Trial Br. at 22. The government also

claims that Dr. Kilpatrick incorrectly used a national survey rather than local market data to

determine the market capitalization rate for each property. Id. at 23.

The Court finds that Dr. Kilpatrick’s methodology and application of the income approach

was sound. The expert reports that he prepared for 2300 Battleground Avenue detail how the

various comparable properties differ from the subject property and how those differences affected

his valuation. See PX 28 at 34–36. Further, as the Court recognized in Kotis, an appraiser’s

reliance on a national survey in lieu of local market data is reasonable. 176 Fed. Cl. at 383. In

these circumstances, Dr. Kilpatrick’s use of national survey data was reliable. See Franconia

Assocs. v. United States, 61 Fed. Cl. 718, 765 (2004).

On the cost approach, the government claims that Dr. Kilpatrick neglects to provide any

explanation supporting his application of this valuation approach, thereby undermining its

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reliability. Id. at 21. The Court disagrees. In his appraisal reports, Dr. Kilpatrick adequately

explains both how the cost approach is used and how he applied it to each property. See, e.g., PX

2 at 27–32. Dr. Kilpatrick describes how to complete a cost approach valuation. Id. at 27. He

also details the various comparative properties that were selected, how they differ from the subject

property, and the adjustments that were made to reconcile the properties into a final valuation. Id.

at 31.

2. The plaintiffs are not entitled to recover the cost of building a privacy wall.

The government also objects to Dr. Kilpatrick’s method of calculating severance damages,

claiming that his estimates are not supported by the record and amount to a windfall. See United

States’ Post-Trial Br. at 25. Specifically, the government contends that Dr. Kilpatrick’s method

of adding the cost of building a privacy wall along the entire length of each border that the property

shares with the easement is the exact same approach to estimating severance damages that was

considered and rejected in Agapion I and Kotis. Agapion I, 167 Fed. Cl. at 776; Kotis Assocs.,

LLC, 176 Fed. Cl. at 382.

In response, plaintiffs argue that the Dr. Kilpatrick’s “after” condition does not account for

the full extent of the diminution in value that they suffered due to the trail-use easement. Pls.’

Post-Trial Br. at 26; Trial Tr. 199:24–200:3. By adding in the cost of building a privacy wall to

the amount of just compensation, plaintiffs would be compensated for the full loss in value that

they have suffered.

The Court agrees with the government’s ultimate position that Dr. Kilpatrick’s inclusion

of the privacy wall as a proxy for severance damages is not justified and would overcompensate

the plaintiffs. To their credit, plaintiffs attempt to distinguish the estimate of severance damages

in this case from the proposed severance damages that were also rejected in Agapion I and Kotis.

Unlike in those cases, plaintiffs here point to the portion of Dr. Kilpatrick’s testimony in which he

states that his calculations did not result in double compensation because his original “after”

calculations do not include severance damages. See Pls.’ Post-Trial Br. at 28; Trial Tr. 206:18–

24.

Ultimately, an award of severance damages in this case fails for reasons similar to those

expressed in Agapion I and Kotis: just compensation is limited to making the landowner whole for

the value of their property that was taken. In cases where the property interest that is taken comes

in the form of an easement, the typical approach to adducing just compensation requires a valuation

of the property just before the easement and a valuation of the property just after the easement.

See Otay Mesa Prop. L.P. v. United States, 670 F.3d 1358, 1364 (Fed. Cir. 2012). The difference

between the two valuations represents the decrease in fair market value arising from the

encumbrance and thus represents the just compensation that is due to the owner. See Pressly v.

United States, 172 Fed. Cl. 264, 268 (2024) (citing United States v. Miller, 317 U.S. 369, 376

(1943)). This calculation should consider all damages that the property suffered from the

easement, including the loss of privacy and the right to exclude. See Miller, 317 U.S. at 375–76

(observing that in the event of a partial taking an owner must be compensated for any loss of value

arising from the relation of the whole parcel to the part taken).

Here, as in Agapion I and Kotis, Dr. Kilpatrick deviated from the standard calculation for

the reduction in fair market value used to determine just compensation. See Trial Tr. 443:6–23.

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Under Rule 54(b) of the Rules of the United States Court of Federal Claims, there being

no just reason to delay, the Court DIRECTS the Clerk of the Court to enter JUDGMENT for the

plaintiffs consistent with this opinion.

IT IS SO ORDERED.

s/ Loren A. Smith

Loren A. Smith,

Senior Judge

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