Barlow v. United States

In the United States Court of Federal Claims

No. 13-396 L

(Filed: September 1, 2015)

)

WILLIAM E. BARLOW AND TWILA )

L. BARLOW, et al., )

)

Plaintiffs, )

)

v. ) Rails-to-Trails; Fifth Amendment

) Takings; National Trails System Act;

THE UNITED STATES, ) Illinois Law; Fee Simple; Easement;

) Notice of Interim Trail Use (NITU)

Defendant. )

)

)

)

)

Steven M. Wald, Counsel of Record, Stewart Wald & McCulley, LLC, Saint Louis, MO,

for plaintiff.

Marissa A. Piropato, Trial Attorney, John C. Cruden, Assistant Attorney General,

Environmental and Natural Resources Division, United States Department of Justice,

Washington, DC, for defendant.

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiffs, landowners who own property adjacent to a railroad line owned by the Union

Pacific Railroad Company, brought this takings action against the United States pursuant to the

National Trails System Act, 16 U.S.C. §§ 1241-51 (2012). Plaintiffs allege a Fifth Amendment

takings of their reversionary interest in property underlying the railroad line right-of-way, as a

result of the Surface Transportation Board’s issuance of a Notice of Interim Trail Use on

November 13, 2008. The parties have filed cross-motions for partial summary judgment on the

question of whether a compensable takings has occurred, pursuant to Rule 56 of the Rules of the

United States Court of Federal Claims (“RCFC”). For the reasons set forth below, the Court

GRANTS in part and DENIES in part plaintiffs’ motion for partial summary judgment and

GRANTS in part and DENIES in part defendant’s motion for partial summary judgment.

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II. FACTUAL AND PROCEDURAL BACKGROUND1

A. Factual Background

This “rails-to-trails” case involves an alleged takings of real property situated along an

abandoned railroad line located between milepost 461.5 in Fulton County, Illinois and milepost

486.2 in Peoria County, Illinois (the “Railroad Line”). 2nd Am. Compl. at 2; Pl. Mot. at Ex. D;

Def. Mot. at 6-7. It is undisputed that plaintiffs owned the land abutting the Railroad Line on the

date of the alleged takings. Def. Mot. at 7.

1. The Railroad Line

The Peoria and Farmington Railway was incorporated under Illinois state law in 1869

pursuant to a special act of the Illinois Legislature. Def. Mot. at 6, Ex. A. The Peoria and

Farmington Railway constructed the Railroad Line between 1882 and 1883. Pl. Mot. at 2, Ex. A;

Def. Mot. at Ex. A, Ex. B. To construct the Railroad Line, the Peoria and Farmington Railway

acquired property through conveyances, transfers, and condemnation. Pl. Mem. at 12; see e.g.,

Pl. Mot. at Ex. P, Ex. DD; Def. Mot. at Ex. C, Ex. D.

The Union Pacific Railroad Company (“Union Pacific”) is the successor-in-interest to the

Peoria and Farmington Railway, as well as to the Burlington Monmouth & Illinois River

Railway Company and the Iowa Central Railway Company, which each owned the Railroad Line

at various times. Def. Mot. at 6, Ex. B; Pl. Mem. at 12.

On July 1, 2008, Union Pacific filed a petition for exemption from formal abandonment

proceedings with the Surface Transportation Board, which has exclusive authority over the

construction, operation and abandonment of rail lines. Pl. Mem. at 10-11; Pl. Mot. at Ex A.

On July 21, 2008, the Illinois Department of Natural Resources expressed an interest in

acquiring the Railroad Line for railbanking and interim trail use, by filing a Statement of

Willingness to Assume Financial Responsibility with the Surface Transportation Board. Pl. Mot.

1

The facts recounted in this Memorandum Opinion and Order are taken from plaintiffs’ second amended

complaint (“2nd Am. Compl. at ___”), plaintiffs’ motion for partial summary judgment (“Pl. Mot. at __”),

plaintiffs’ memorandum in support of its motion for partial summary judgment (“Pl. Mem. at__”),

defendant’s motion for partial summary judgment (“Def. Mot. at __”), plaintiffs’ opposition thereto (“Pl.

Opp. at __”), and defendant’s reply (“Def. Rep. at __”). Except where otherwise noted, the facts recited

here are undisputed.

2

at Ex. C. On October 16, 2008, Union Pacific indicated it was willing to negotiate with the

Illinois Department of Natural Resources. Def. Mot. at Ex. E. Based upon the mutual

expression of interest by the Illinois Department of Natural Resources and Union Pacific, the

Surface Transportation Board issued a Notice of Interim Trail Use (“NITU”) for the Railroad

Line on November 13, 2008. 2nd Am. Compl. at 13; Pl. Mot. at Ex. D.

Although the NITU was originally set to expire on May 12, 2009, the Surface

Transportation Board has granted several extensions of the expiration date for the NITU. Pl.

Mot. at Ex. E. The most recent extension of the NITU was set to expire on April 26, 2015. Pl.

Mot. at 3; Def. Mot. at 7. In this regard, the parties have not informed the Court of the current

status of the NITU. See generally Pl. Opp.; Def. Rep.

B. The Disputed Parcels

In their complaint, plaintiffs identify 51 parcels of land located along the Railroad Line

that they allege the government has taken without just compensation. See generally 2nd Am.

Compl. The parties address 21 of these parcels in their cross-motions for partial summary

judgment. See generally Pl. Mot.; Def. Mot. The 21 parcels can be grouped into five categories:

(1) parcels conveyed by “right-of-way” agreements; (2) parcels conveyed by “for railroad

purposes” agreements; (3) parcels with no conveying instrument; (4) parcels acquired by

condemnation; and (5) parcels to which the parties agree Union Pacific held only an easement.

See Pl. Mot. at Ex. F-L; Def. Mot. at n.1, App. A-D. The parcels are further described below.

1. Parcels Conveyed By “Right-of-Way” Agreements

First, 13 parcels of land have been conveyed to Union Pacific via its predecessor-in-

interest, the Burlington, Monmouth & Illinois River Railway Company, by “right-of-way”

agreements (parcels 23, 37, 51, 55, 57, 58, 59, 74, 80, 83, 91, 98, 102). Pl. Mem. at 16-17; Pl.

Mot. at Ex. P-BB; Def. Mot. at 11-12.2 The parties agree that the right-of-way agreements for

these parcels contain identical conveyance language, which provides as follows:

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Table 1: Parcels Conveyed By “Right-of-Way” Agreements

NARA Map/Parcel:

Pl. Exhibit No. Grantor Affected Plaintiffs

1/23: Ex. P H. Kruse William E. & Twila L. Barlow

2/37: Ex. Q V. Ulrich Real Estate Development Associates, LLC

2/51: Ex. R E. Hall George L. & Marcia J. Swords

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RIGHT OF WAY

In Consideration Of the benefits to be derived from the location and building of the

Burlington, Monmouth & Illinois River Railway and One Dollar to me in hand paid

by said Railway Company, the receipt whereof is hereby acknowledged, I do hereby

grant and convey unto the said Burlington, Monmouth & Illinois River Railway the

Right of Way for said Railway, four rods wide, over and across the [description of

land].

And I Promise and Agree To make all proper and necessary deeds to convey in fee

simple to said Company, said Right of Way, as soon as said Railway is located on or

across said described premises.

Pl. Mot. at Ex. P-BB.

2. Parcels Conveyed By “For Railroad Purposes” Agreements

Two parcels have been conveyed to Union Pacific via its predecessor-in-interest, the

Burlington, Monmouth & Illinois River Railway Company, by agreements containing “for

railroad purposes” language (parcels 44 and 47). Pl. Mem. at 20; Def. Mot. at 14.3 The

agreement for parcel 44 states, in relevant part, that the grantors “convey and quitclaim to the

Burlington Monmouth & Illinois River Railway Company for railroad purposes . . . all interest in

2/55: Ex. S N. Williams Blake T. Nebergall; Estate of Ethelyn Nebergall; Kent M. Nebergall; Phillip M.

Nebergall; Jill M. Eklund; Bethany Wenger; Linda Pille; Judith D. Schmidgall;

Tommy E. Trotter Revocable Trust; Daniel W. Arnold; Chester Hoffman &

Catherine Schneider; Randall & Sonja S. Whitehurst

3/57: Ex. T J.H. Pinkerton Harold A. & Sara E. Passmore; Jacqueline R. Snowden Declaration of Trust &

Richard Kent Snowden Declaration of Trust

3/58: Ex. U J.A. Pinkerton Carol S. Newell; John E. & Tammi L. Murphy; Harold A. & Sara E. Passmore

3/59: Ex. V L.K. Gooding Virgil D. Janssen; Donald P. & Deb Wallengfang

3/74: Ex. W J.M. Hart James W. Hart, Jr.

4/80: Ex. X J. B. Patton Raymond D. & Dortha Ryer

4/83: Ex. Y G.W. DuMars Kent L. Hudson

5/91: Ex. Z J. Larkin Janet K. Beecher

5/98: Ex. AA W.T. Bell John T. & Betty L. Fegan; Dale & Jean Peterson

5/102: Ex. BB D. Downes Michael Redlingshafer, Estate of Audrey Redlingshafer, Estate of John Redlingshafer

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Table 2: Parcels Conveyed By “For Railroad Purposes” Agreements

NARA Map/Parcel:

Pl. Exhibit No. Grantor Affected Plaintiffs

2/44: Ex. DD J. Borland et al. Francis H. Roark, Jr.; William & Faith Bryan; Leroy G. & Patricia A. Hagenbuch

2/47: Ex. EE R.C. Goodrich Andre L. Garrison; Donald L. & Suzanne K. Holmes; Roland B. & Kathryn E.

Polhemus; Richard C. & Donna J. Vogel; Leamon C. Smith; Corwin E. Storer &

Nicole L. Mauser-Storer

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the following described real estate, to wit: a strip of land . . . .” Pl. Mot. at Ex. DD. The

agreement for parcel 47 states, in relevant part, that the grantors “convey and warrant for railroad

purposes to the Burlington Monmouth & Illinois River Railway Company . . . the following

described real estate, to wit: a strip of land . . . .” Pl. Mot. at Ex. EE.

3. Parcels Without A Conveying Instrument

In addition, plaintiffs have not provided conveying instruments for three of the parcels in

dispute (parcels 33, 87, 90).4 Pl. Mem. at 22; Def. Mot. at 16.

4. Parcels Acquired Through Condemnation

Furthermore, the parties agree that one parcel has been acquired by a predecessor-in-

interest to Union Pacific by condemnation (parcel 26).5 Pl. Mem. at 23-24; Def. Mot. at 17.

5. Parcels Plaintiffs Held In Fee Simple

Lastly, the parties agree that plaintiffs owned parcel 29 and the Illinois Route 116 parcel

in fee simple at the time the Surface Transportation Board issued the NITU on November 13,

2008.6 Def. Mot. at 1; Pl. Mem. at 20, 26.

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Table 3: Parcels Without A Conveying Instrument

NARA Map/Parcel:

Pl. Exhibit No. Grantor Affected Plaintiffs

1/33: N/A Clarke Coal & Teresa G. Seymour; Tim Menefee

Coke Co.

4/87: Ex. FF [left Marvin & Debra A. Swadinsky; Donna Mae Walker Declaration of Trust; The

blank] Donald Gronewold Trust; The Harold Lee Gronewold Declaration of Trust; Mary

Jane Severt

4/90: Ex. FF Trivoli Lonne E. Winters; Raymond N. & Jodie DePriest; Eleanor Jean Gronewold

Township Declaration of Trust

5

Table 4: Parcel Acquired Through Condemnation

NARA Map/Parcel:

Pl. Exhibit No. Grantor Affected Plaintiffs

1/26a: Ex. GG Sarah Allen Scott W. Hamilton

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Table 5: Parcels Plaintiffs Held In Fee Simple

NARA Map/Parcel:

Pl. Exhibit No. Grantor Affected Plaintiffs

2/29: Ex. CC A. Royster Estate of Hilda Stretch

Illinois Rte. 116 John F. & Lena C. William & Faith A. Bryan; Francis H. Roark Jr.

Borland; Charles H.

& Sylvia Cameron

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C. Procedural Background

On June 13, 2013, plaintiffs filed a complaint, alleging a Fifth Amendment takings claim

against the United States, which plaintiffs subsequently amended on March 20, 2014, and on

July 23, 2014. See generally Pl. Comp.; 1st Am. Compl.; 2nd Am. Compl. On October 3, 2014,

the Court issued an Order certifying an opt-in class under RCFC 23, which includes all persons

owning an interest in the Railroad Line. See generally October 3, 2014 Order; see RCFC 23.

On November 14, 2014, plaintiffs filed a motion for partial summary judgment on the

question of whether a permanent or temporary takings has occurred with respect to 21 of the 51

parcels listed in their complaint. Pl. Mot. at 4-5. On January 29, 2015, defendant filed a cross-

motion for partial summary judgment on this question, arguing that no compensable takings has

occurred. See generally Def. Mot. On March 2, 2015, plaintiffs filed a reply in support of their

motion for partial summary judgment and a response in opposition to defendant’s cross-motion

for partial summary judgment. See generally Pl. Opp. On April 13, 2015, defendant filed a

reply in support of its cross-motion for partial summary judgment. See generally Def. Rep. On

May 7, 2015, plaintiffs filed a motion requesting oral argument. See generally Pl. Mot. for

Oral Arg.

II. Legal Standards

A. Jurisdiction

The Tucker Act grants this Court jurisdiction over Fifth Amendment takings claims

against the United States. See 28 U.S.C. § 1491; Morris v. United States, 392 F.3d 1372, 1375

(Fed. Cir. 2004) (“[T]he Tucker Act provides the Court of Federal Claims exclusive jurisdiction

over takings claims for amounts greater than $10,000.”).

B. Summary Judgment

A grant of summary judgment is appropriate when the pleadings, affidavits and

evidentiary materials filed in a case reveal that “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Biery v. United States, 753 F.3d 1279, 1286

(Fed. Cir. 2014). A dispute is “genuine” when “the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A fact is “material” if it

could “affect the outcome of the suit under the governing law . . . .” Id.

In resolving motions for summary judgment, the Court will not make credibility

determinations and will draw all inferences ‘“in the light most favorable to the party opposing

the motion.”’ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88

(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). In doing so, the Court

does not weigh the evidence presented, but instead must “determine whether there is a genuine

issue for trial.” Anderson, 477 U.S. at 249; Agosto v. INS, 436 U.S. 748, 756 (1978) (“[A trial]

court generally cannot grant summary judgment based on its assessment of the credibility of the

evidence presented . . . .”); see also Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004).

And so, the Court may only grant summary judgment when “the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving party . . . .” Matsushita, 475 U.S. at

587.

The above standard applies when the Court considers cross-motions for summary

judgment. Principal Life Ins. Co. & Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014);

see also Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both

parties move for summary judgment, ‘“the court must evaluate each party’s motion on its own

merits, taking care in each instance to draw all reasonable inferences against the party whose

motion is under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting

Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

C. The National Trails System Act

The Interstate Commerce Act of 1887, ch. 104, 24 Stat. 379, and the Transportation Act

of 1920, ch. 91, 41 Stat. 477–78, granted the Interstate Commerce Commission, now the Surface

Transportation Board, exclusive authority over the construction, operation and abandonment of

the Nation’s rail lines. See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,

321 (1981). In order for a railroad company to terminate rail service, the railroad company must

obtain the consent of the Surface Transportation Board. See Barclay v. United States, 443 F.3d

1368, 1371 (Fed. Cir. 2006), cert. denied, 549 U.S. 1209 (2007). To obtain such consent, the

railroad company may apply for permission to discontinue service, seek permission to terminate

through abandonment proceedings, or file a request for an exemption from abandonment

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proceedings. See 49 U.S.C. § 10903(d)(1)-(2) (2012); Barclay, 443 F.3d at 1371. Once the

Surface Transportation Board consents, the rail line is removed from the national transportation

system and the Surface Transportation Board’s jurisdiction comes to an end. Id.

In 1983, Congress amended the National Trails System Act to include an alternative

process for railroad companies to abandon rail lines. 16 U.S.C. § 1247(d); Preseault v. Interstate

Commerce Comm’n, 494 U.S. 1, 5-6 (1990) (“Preseault I”); Caldwell v. United States, 391 F.3d

1226, 1229 (2004) (“Caldwell II”). This process, known as “railbanking,” preserves corridors or

rights-of-ways not in use for train service for possible future use as recreational trails. Id.

In order for a rail line to be “railbanked,” the railroad company must first file an

abandonment application under 49 U.S.C. § 10903 (2002), or a notice of exemption from that

process under 49 U.S.C. § 10502 (2012). Once an abandonment application, or request for an

exemption, is filed, a party interested in railbanking may request the issuance of a certificate of

interim trail use (“CITU”) (in abandonment application proceedings) or a NITU (in abandonment

exemption proceedings). 49 C.F.R. §1152.29(c)-(d). If the railroad company indicates that it is

willing to negotiate a railbanking and interim trail use agreement, the Surface Transportation

Board issues the CITU or NITU. Id. The issuance of the CITU or NITU preserves the Surface

Transportation Board’s jurisdiction over the rail line and allows the railroad company to

discontinue operations and remove track and equipment while the parties negotiate a railbanking

and interim trail use agreement. Id.; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 711-

12 (2011).

The NITU or CITU affords the railroad company 180 days in which to negotiate a

railbanking and interim trail use agreement with the third party. 49 C.F.R. § 1152.29(c)(1),

(d)(1); Caldwell II, 391 F.3d at 1229-30, 1233. “If an agreement is reached, the NITU [or CITU]

automatically authorizes the interim trail use. If the [Surface Transportation Board] takes no

further action, the trail sponsor then may assume management of the right-of-way, subject only

to the right of a railroad to reassert control of the property for restoration of rail service.”

Caldwell v. United States, 57 Fed. Cl. 193, 195 (2003) aff'd, 391 F.3d 1226 (Fed. Cir. 2004)

(Caldwell I) (internal citations omitted); see also 16 U.S.C. § 1247(d); 49 C.F.R. §

1152.29(d)(2). If no agreement is reached, the railroad company may proceed with the

abandonment process. 49 C.F.R. §§ 1152.29(d)(1), (e)(2).

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D. Fifth Amendment Takings And “Rails-to-Trails” Cases

A Fifth Amendment takings occurs in rails-to-trails cases when the government, through

the issuance of a CITU or NITU, destroys an individual’s state law reversionary interest in

property underlying a railroad right-of-way. Ladd v. United States, 630 F.3d 1015, 1023-24

(Fed. Cir. 2010); Barclay, 443 F.3d at 1374 (“The issuance of the NITU is the only event that

must occur to ‘entitle the plaintiff to institute an action.’ Accrual is not delayed until a trail use

agreement is executed or the trail operator takes physical possession of the right-of-way.”

(internal citations omitted)); Caldwell I, 391 F.3d at 1233–34. “[O]nly persons with a valid

property interest at the time of the taking are entitled to compensation.” Wyatt v. United States,

271 F.3d 1090, 1096 (Fed. Cir. 2001).

To determine whether a Fifth Amendment takings has occurred in a rails-to-trails case,

the Court follows a three-part analysis established by the United States Court of Appeals for the

Federal Circuit. See Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009)

(citing Preseault v. United States, 100 F.3d 1525, 1533 (1996) (“Preseault II”)). First, the Court

must determine who owned the land at issue at the time of the takings; and specifically whether

the railroad company owned the land in fee simple or held only an easement. Id. Second, if the

railroad company owned only an easement, the Court must determine whether the terms of the

easement are limited to use for railroad purposes, or whether the terms include use as a public

recreational trail. Id. Third, if the railroad company’s easement is broad enough to encompass

recreational trail use, the Court must determine whether the easement terminated prior to the

alleged takings, so that the property owner held a fee simple estate unencumbered by easement at

the time of the takings. Id.

To determine whether the railroad company held an easement, or held the property in fee

simple at the time of the takings, the Court must look to the law of the state in which the property

is located. Preseault II, 100 F.3d at 1540. Because the Railroad Line is located in Illinois,

Illinois state law applies in this case. 2nd Am. Compl. at 2; Preseault I, 494 U.S. at 20-21.

Under Illinois law, agreements should be construed in a manner that fulfills the intention

of the parties. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Cent. Ill. Public Serv. Co.,

43 N.E.2d 993, 996 (Ill. 1942). This intention should be ascertained by reading the agreement as

a whole, and every word and clause within the agreement should be considered and given full

9

effect if possible. Keen v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 64 N.E.2d 499,

502-03 (Ill. 1945); Tallman v. E. Ill. & Peoria R.R. Co., 41 N.E.2d 537, 539 (Ill. 1942); Sowers

v. Illinois Cent. Gulf R.R. Co., 503 N.E.2d 1082, 1084 (Ill. App. Ct. 1987). “Absent an

ambiguity in the deed, the intention of the parties must be discerned solely from the language of

the instrument, without consideration of extrinsic factors.” Urbaitis v. Commonwealth Edison,

575 N.E.2d 548, 552 (Ill. 1991) (citing Shelton v. Andres, 478 N.E.2d 311, 314 (Ill. 1985)).

Additionally, under Illinois law, determining whether an agreement grants an easement or

a fee simple estate requires “construction of the instrument to determine whether the granting

clause conveys a designated piece of land or whether it refers to a right or privilege with respect

to the piece of land.” Penn Cent. Corp. v. Commonwealth Edison Co., 512 N.E.2d 118, 119 (Ill.

App. Ct. 1987) (citing McVey v. Unknown Shareholders of Inland Coal & Washing Co., 427

N.E.2d 215, 217 (Ill. App. Ct. 1981)). Generally speaking, an instrument containing the words

“convey and warrant” is deemed to convey a fee simple estate. Urbaitis, 575 N.E.2d at 552

(citing Tallman, 41 N.E.2d at 543). However, an instrument that grants simply a “right” in a

parcel of land is deemed to convey only an easement. Urbaitis, 575 N.E.2d at 552 (citing

Magnolia Petroleum Co. v. West, 30 N.E.2d 24, 26 (Ill. 1940)).

In addition to the above common law rules of construction, the Illinois Legislature has

enacted the Conveyance Act, which sets forth the default rules for conveyances of property. 765

Ill. Comp. Stat. Ann. 5/0.01-5/39 (1990). Specifically, section 13 of the Conveyance Act

provides that “[e]very estate in lands which shall be granted, conveyed or devised, although other

words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a

fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear

to have been granted, conveyed or devised by construction or operation of law.” 765 Ill. Comp.

Stat. Ann. 5/13 (1985) (emphasis added). Section 19 of the Conveyance Act also authorizes

railroad companies to “take and hold such voluntary grants of real estate and other property as

shall be made to it, in aid of the construction and use of its railway, and to convey the same when

no longer required for the uses of such railway, not incompatible with the terms of the original

grant.” 610 Ill. Comp. Stat. Ann. 5/19 (1985). This authorization has been interpreted by Illinois

state courts to permit “railroad corporations to take title in fee simple to lands conveyed to it.”

Keen, 64 N.E.2d at 505.

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III. LEGAL ANALYSIS

The parties’ cross-motions for partial summary judgment present three key questions:

First, what was the nature of the property interest held by Union Pacific in the 21 parcels in

dispute at the time that the Surface Transportation Board issued the NITU? Second, in the event

that Union Pacific held an easement to any of the relevant parcels, was the scope of the easement

exceeded by the issuance of the NITU? Lastly, if the scope of any easement has been exceeded,

did a temporary or permanent takings occur?

For the reasons discussed below, the undisputed material facts show that Union Pacific

held the 13 parcels conveyed by “right-of-way” agreements and the two parcels conveyed by

“for railroad purposes” agreements in fee simple when the Surface Transportation Board issued

the NITU. The undisputed material facts also demonstrate that plaintiffs have not met their

burden of proof to show that they held cognizable property interests in the three parcels for

which plaintiffs have not provided conveying instruments.

A material fact remains in dispute with respect to the ownership of the single parcel

acquired by Union Pacific through condemnation.

In addition, the undisputed material facts also show that plaintiffs held parcel 29 and the

Illinois Route 116 parcel in fee simple, and that Union Pacific held only an easement in these

parcels, when the Surface Transportation Board issued the NITU. In this regard, the undisputed

material facts also show that the scope of the easements held by Union Pacific had been

exceeded when the Surface Transportation Board issued the NITU.

And so, the Court DENIES plaintiffs’ motion for partial summary judgment and

GRANTS defendant’s motion for partial summary judgment with respect to the 13 parcels

conveyed to Union Pacific by “right-of-way” agreements and the two parcels conveyed to Union

Pacific by “for railroad purposes” agreements. Because plaintiffs fail to meet their burden of

proof with respect to the three parcels for which plaintiffs have not provided conveying

instruments, the Court DENIES plaintiffs’ motion for partial summary judgment and GRANTS

defendant’s motion for partial summary judgment with respect to these parcels. In addition, the

Court DENIES both parties’ motions for partial summary judgment with respect to the parcel

acquired by condemnation. Finally, the Court GRANTS in part plaintiffs’ motion for partial

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summary judgment and DENIES in part defendant’s motion for partial summary judgment, with

respect to parcel 29 and the Illinois Route 116 parcel.

A. Nature Of The Parties’ Property Interest

In “rails-to-trails” takings cases, the Court must decide as a threshold matter, whether the

railroad company in question held the disputed property in fee simple under applicable state law

at the time of the takings. Preseault II, 100 F.3d at 1533. And so, the Court begins the analysis

here by addressing whether Union Pacific held a fee simple interest in any of the parcels in

dispute when the Surface Transportation Board issued the NITU.

1. Parcels Conveyed By “Right-of-Way” Agreements

The undisputed material facts show that Union Pacific held the 13 parcels conveyed to

the Burlington, Monmouth & Illinois River Railway Company by “right-of-way” agreements in

fee simple when the Surface Transportation Board issued the NITU.7 In this regard, the parties

agree that the conveyance language for the 13 parcels is identical and provides, in pertinent part,

that:

RIGHT OF WAY

In Consideration Of the benefits to be derived from the location and building of

the Burlington, Monmouth & Illinois River Railway and One Dollar to me in

hand paid by said Railway Company, the receipt whereof is hereby

acknowledged, I do hereby grant and convey unto the said Burlington,

Monmouth & Illinois River Railway the Right of Way for said Railway, four

rods wide, over and across the [description of land].

And I Promise and Agree To make all proper and necessary deeds to convey in

fee simple to said Company, said Right of Way, as soon as said Railway is

located on or across said described premises.

Pl. Mot. at Ex. P-BB (emphasis added).

The plain language of the right-of-way agreement shows that the agreement conveys a

fee simple estate. The agreement provides in pertinent part that “I do hereby grant and convey

unto the said Burlington, Monmouth & Illinois River Railway the Right of Way for said

7

Although the 21 parcels were originally conveyed to various other railroad companies, Union Pacific, as

the successor-in-interest, holds the same property interest in the parcels as held by its predecessor. Penn

Cent. Corp., 512 N.E.2d at 121 (successors-in-interest are granted a fee simple title in land if fee simple

title was conveyed to their predecessor-in-interest).

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Railway . . . And I Promise and Agree To make all proper and necessary deeds to convey in fee

simple . . . said Right of Way . . . .” Id. (emphasis added). Under Illinois state law, there is a

rebuttable presumption that real property that is conveyed by an agreement containing the word

“covey”−as is the case here−conveys that property in fee simple. 765 Ill. Comp. Stat. Ann. 5/13

(1985); see also Keen, 64 N.E.2d at 502-03; Sowers, 503 N.E.2d at 1085. This presumption can

be overcome if a contrary intent is clearly expressed in the agreement. Id. And so, the Court

presumes here that the right of way agreement conveyed a fee simple estate in the 13 parcels to

Union Pacific, unless there is other language in the agreement to rebut this presumption. Keen,

64 N.E.2d at 502; Tallman, 41 N.E.2d at 539; Sowers, 503 N.E.2d at 1085.

Plaintiffs point to the words “right-of-way” and “across,” which appear in the agreement,

to argue that there was no intent to convey a fee simple estate to Union Pacific. Pl. Mem. at 17-

18. Plaintiffs’ reliance upon these words to rebut the presumption that a fee simple estate has

been conveyed to Union Pacific is, however, misplaced.

First, Illinois state courts have interpreted the words “right-of-way” to rebut the

presumption that agreements convey real property in fee simple, under certain circumstances.

Tallman, 41 N.E.2d at 540. Specifically, when the words “right-of-way” are used in an

agreement conveying real property to indicate the nature of the property interest being conveyed,

Illinois state courts have held that such agreements convey only an easement. Id. On the other

hand, Illinois state courts have held that when the words “right-of-way” are used to describe the

parcel being conveyed−rather than the property interest being conveyed−these words do not

limit the fee simple estate conveyed. Keen, 64 N.E.2d at 503; Sowers, 503 N.E.2d at 1086 (The

phrase “right of way” “in the consideration clause cannot be construed to limit the estate

conveyed.”); see also Urbaitis, 575 N.E.2d at 553 (“[T]here is no per se rule that the mere

inclusion of the term ‘right-of-way’ in any deed to a railroad negates the possibility that title in

fee simple was conveyed.”).

A plain reading of the agreement at issue here makes clear that the words “right-of-way”

do not limit the estate conveyed to Union Pacific. Rather, these words describe the 13 parcels

that have been conveyed to Union Pacific. See Pl. Mot. at Ex. P-BB; see also Keen, 64 N.E.2d at

503; Sowers, 503 N.E.2d at 1086; Pl. Mot. at Ex. P-BB. In this regard, the agreements are

entitled “RIGHT OF WAY” and provide in two places that the grantors convey the “Right of

13

Way.” Pl. Mot. at Ex. P-BB. By entitling the agreement “RIGHT OF WAY” the parties have

demonstrated their intent to use this phrase to describe the parcels to be conveyed to the railroad

company. Id. This intent to describe the parcels−rather than to limit the estate conveyed−is

further evidenced by the language in the agreement that provides that the grantor intends “to

convey in fee simple.” Id. In fact, to read the right-of-way agreement to limit the fee simple

estate granted by this clause would require the Court to interpret the agreement in a manner

contrary to the parties’ express intent to convey the parcels in fee simple. And so, the Court

must read the agreement as a whole and conclude that the words “right-of-way” do not limit the

fee simple estate conveyed to Union Pacific in this case.

The word “across” similarly does not limit the estate conveyed to the railroad company.

As discussed above, the agreement provides in pertinent part that:

I do hereby grant and convey unto the said Burlington, Monmouth & Illinois

River Railway the Right of Way for said Railway, four rods wide, over and

across the [description of land].

And I Promise and Agree To make all proper and necessary deeds to convey in

fee simple to said Company, said Right of Way, as soon as said Railway is

located on or across said described premises.

Pl. Mot. at Ex. P-BB (emphasis added). Illinois state courts have held that the word “across”

may limit the estate conveyed to something less than a fee simple estate, under certain

circumstances. Tallman, 41 N.E.2d at 539; Spierling v. Ohl, 83 N.E. 1068, 1069 (Ill. 1908).

But, Illinois state courts have specifically held that the word “across” does not limit the estate

conveyed when it is being used to simply describe the property at issue. Penn Cent. Corp., 512

N.E.2d at 120 (“We find that the use of the words ‘over’, ‘across’, and ‘through’ is merely

descriptive of the estate conveyed and does not constitute a limitation on the use of the land. In

addition, we find that the other language in the deed, such as the phrase ‘a strip of land,’ is clear

and unambiguous in purporting to convey the land itself in fee simple.”).

Here, a plain reading of the agreement shows that the word “across” is intended to

describe where the parcel being conveyed is located. Pl. Mot. at Ex. P-BB. In both instances

where the word “across” appears in the agreement, this word precedes a detailed description of

the parcels conveyed to the railroad company. Id. And so, reading the right-of-way agreement

as a whole shows that the parties intended the word “across” to describe the parcels conveyed to

the railroad company. For this reason, there is nothing in the right-of-way agreement to rebut the

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presumption under Illinois state law that the parties to these agreements intended to convey the

parcels to the railroad company in fee simple.8 See King v. Lee, 118 N.E. 724, 726 (Ill. 1918)

(“It is well settled that, where real property is conveyed in fee restrictions in the use are not

favored . . . .”).

Because the right-of-way agreement conveys a fee simple estate under Illinois law,

plaintiffs could not have held any of the 13 parcels conveyed by right-of-way agreements in fee

simple at the time the Surface Transportation Board issued the NITU. And so, plaintiffs’ motion

for partial summary judgment as to parcels 23, 37, 51, 55, 57, 58, 59, 74, 80, 83, 91, 98, and 102

must be denied. For the same reasons, defendant’s cross-motion for partial summary judgment

with respect to these parcels is granted.

2. Parcels Conveyed By “For Railroad Purposes” Agreements

The undisputed material facts also show that when the Surface Transportation Board

issued the NITU, Union Pacific held parcels 44 and 47 in fee simple. The agreements

transferring these parcels contain the phrase “for railroad purposes,” which plaintiffs maintain

limits the estate conveyed to an easement. Pl. Mot. at Ex. DD, Ex. EE; Pl. Mem. at 20-21. For

the reasons discussed below, the Court disagrees.

With respect to parcel 44, the agreement conveying this parcel provides, in pertinent part,

that the grantor does “convey and quitclaim to the Burlington Monmouth & Illinois River

Railway Company for railroad purposes . . . all interest” in the parcel. Pl. Mot. at Ex. DD

(emphasis added). The agreement for parcel 47 provides in pertinent part that the grantor does

“convey and warrant for railroad purposes to the Burlington Monmouth & Illinois River

Railway Company” the parcel. Pl. Mot. at Ex. EE (emphasis added).

As established above, the use of word “convey” creates a rebuttable presumption that the

parcels are being conveyed in fee simple under Illinois law. 765 Ill. Comp. Stat. Ann. 5/13

8

Although no deeds were located granting the parcels to the railroad company in fee simple, the property

owner’s covenant to convey the parcels in fee simple runs with the land regardless of whether the parties

have the deeds memorializing such a conveyance. Purvis v. Shuman, 112 N.E. 679, 682 (Ill. 1916)

(covenants that run with the land are those that “concern[] the lands and the enjoyment of it”); Louisville

& Nashville R.R. Co. v. Illinois Central R.R. Co., 51 N.E. 824, 825 (Ill. 1898) (covenant allowing a

railroad company a right-of-way over a railroad line runs with the land).

15

(1985); see Keen, 64 N.E.2d at 504 (“deed conveying to a railroad company ‘a strip of land,’ in

the absence of any limitation in the deed upon the estate conveyed, conveys fee-simple title to

the ‘strip of land’ described.”); Penn Cent. Corp, 512 N.E.2d at 119-20. And so, the question for

the Court to resolve is whether the words “for railroad purposes” limit the estate conveyed to

Union Pacific. Sowers, 503 N.E.2d at 1084-86.

A plain reading of the two agreements shows that the words “for railroad purposes” do

not limit the estate conveyed to Union Pacific. Although the Court is not aware of any Illinois

state cases that have interpreted the meaning of the phrase “for railroad purposes,” within the

context of an agreement conveying real property to a railroad company, Illinois state courts have

addressed the meaning of similar language. In Keen v. Cleveland, Cincinnati, Chicago & St.

Louis Ry. Co., the Supreme Court of Illinois held that the words “for the purpose of facilitating

the construction and completion” of the railroad line do not limit the conveyance, because the

language is “merely the expression of the considerations which prompted the grantor to execute

the deed. . . .” Keen, 64 N.E.2d at 503. Similarly, in Sowers v. Illinois Cent. Gulf R.R. Co., the

Fifth District Appellate Court of Illinois also held that the words “to construct their Railroad” do

not limit the estate conveyed to something less than a fee simple estate. Sowers, 503 N.E.2d at

1086. For this reason, the court concluded that, when “reference is made to the purpose of the

grant as enabling the grantee to construct a railroad on the subject property, this did not limit the

estate conveyed to be a mere easement for use as a railroad right of way.” Sowers, 503 N.E.2d at

1086. In addition, in Penn Cent. Corp. v. Commonwealth Edison Co., the Third District

Appellate Court of Illinois also held that the words “for the purpose of enabling the said

Company to construct their said Road” do not limit the conveyance to the railroad company,

because these words were “merely expressive of the purpose which motivated the grantor to

make the conveyance.” Penn Cent. Corp., 512 N.E.2d at 119-20.9

The Keen, Sowers and Penn Cent. Corp. cases are instructive in determining the nature of

the property interest conveyed to Union Pacific here. A plain reading of the agreements at issue

9

Plaintiffs rely upon Magnolia Petroleum Co. v. West, 30 N.E.2d at 26 to support their argument that the

“for railroad purposes” language in the agreements at issue here limits the estate conveyed to an

easement. Pl. Mem. at 20-21; Pl. Opp. at 3-4. But in Magnolia Petroleum, the Supreme Court of Illinois

found that the phrase “for railroad purposes” did not alone limit the conveyance. Magnolia Petroleum

Co., 30 N.E.2d at 25-27. Rather, the court relied upon other evidence to determine that the parties

intended to convey only an easement in that case. Id.

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in this case shows that the words “for railroad purposes” are intended to explain the reason for

conveying parcels 44 and 47 was to operate a railroad line. Pl. Mot. at Ex. DD, EE; Keen, 64

N.E.2d at 503; Sowers, 503 N.E.2d at 1086-87; Penn Cent. Corp., 512 N.E.2d at 120. Indeed,

similar to the language at issue in Penn Cent. Corp., the “for railroad purposes” language is

“merely expressive of the purpose which motivated the grantor to make the conveyance.” Penn

Cent. Corp., 512 N.E.2d at 119-20. And so, the words “for railroad purposes” do not serve to

limit the fee simple estate transferred to Union Pacific. 765 Ill. Comp. Stat. Ann. 5/13 (1985);

Keen, 64 N.E.2d at 504 (“deed conveying to a railroad company ‘a strip of land,’ in the absence

of any limitation in the deed upon the estate conveyed, conveys fee-simple title to the ‘strip of

land’ described.”).10

Given this, the undisputed material facts show that Union Pacific held parcels 44 and 47

in fee simple when the Surface Transportation Board issued the NITU. Plaintiffs’ motion for

partial summary judgment as to parcels 44 and 47 must, therefore, be denied. For the same

reasons, defendant’s cross-motion for partial summary judgment with respect to these parcels is

granted.

3. Parcels Without A Conveying Instrument

In addition, plaintiffs have not met their burden to show that they held a cognizable

property interest in parcels 33, 87 and 90 when the Surface Transportation Board issued the

NITU. The United States Court of Appeals for the Federal Circuit has held that “[i]t is plaintiffs’

burden to establish cognizable property interests for purposes of their takings . . . claims.”

Klamath Irrigation Dist. v. United States, 635 F.3d 505, 519 n.12 (Fed. Cir. 2011); see

Burgess v. United States, 109 Fed. Cl. 223, 237 (2013) (This burden of proof “requirement

plainly applies to rails-to-trails cases.”); Estate of Hage v. United States, 687 F.3d 1281, 1291

(Fed. Cir. 2012) (“It is the [plaintiffs’] burden to establish cognizable property interests for the

purposes of their takings claims.”); Thomas v. United States, 106 Fed. Cl. 467, 478 (2012). And

10

This conclusion is further supported by the language in the agreement for parcel 44, which conveyed

“all of [the grantor’s] interest” in the land. Pl. Mot. at Ex. DD. This language indicates that no

reversionary interest or right-of-re-entry has been preserved in the land if the Burlington, Monmouth &

Illinois River Railway Company failed to use the land “for railroad purposes.” Id.; Keen, 64 N.E.2d at

503-04.

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so, plaintiffs must show that they have cognizable property interests in these parcels in order to

pursue their takings claims.

Plaintiffs have not satisfied their burden. In their motion for partial summary judgment,

plaintiffs do not provide any documentation to show who owns parcels 33, 87 and 90, or how

these parcels have been conveyed to Union Pacific. Pl. Memo. 21-23; Pl. Mot. at Ex. O, Ex. HH,

Ex. FF; Def. Mot. at 15-17. Instead, plaintiffs put forward documents to show that certain

plaintiffs own the land abutting the disputed parcels. See Pl. Mot. at Ex. M, Ex. L, Ex. F-K,

Ex. O, Ex. FF, and Ex. HH.11 This Court has held that, if the “evidence produced merely

suggests that a right-of-way was transferred, but does not prove whether such an interest was, in

fact, conveyed,” plaintiffs have not met their burden of proof. McClurg Family Farm, LLC v.

United States, 115 Fed. Cl. 1, 17-18 (2014). And so, plaintiffs have not shown that they have

cognizable property interests in the disputed parcels. Id.

Nonetheless, plaintiffs point to this Court’s “rails-to-trails” decision in The Dana R.

Hodges Trust v. United States, to argue that they have provided sufficient evidence to meet their

burden of proof. 101 Fed. Cl. 549 (2011); Pl. Mem. at 3. Plaintiffs’ reliance upon the Hodges

case is misplaced.

In Hodges, this Court held that plaintiffs met their burden of proof by providing valuation

maps stating that there was “no deed” conveying the property, along with other deeds and tax

records. Hodges, 101 Fed. Cl. at 560. But, the Court in Hodges specifically found that the

reference to “no deed” in the valuation maps in that case indicated that the property had been

acquired by adverse possession. Id. In contrast, here, the valuation maps put forward by

plaintiffs contain no such language. Pl. Mot. at Ex. F-K. In fact, there is no evidence before the

Court to even suggest that parcels 33, 87 and 90 have been acquired by adverse possession. Id.

Given this, the Hodges case is distinguishable from this matter and plaintiffs have simply

not met their burden to show that they owned parcels 33, 87 and 90 in fee simple at the time that

the Surface Transportation Board issued the NITU. Id. Plaintiffs’ motion for partial summary

11

Plaintiffs have provided the Court with the ICC Valuation Schedules (Pl. Mot. at Ex. L); the ICC

Valuation Maps (Pl. Mot. at Ex. F-K); plaintiffs’ subpoena to Union Pacific (Pl. Mot. at Ex. O); Union

Pacific’s response to plaintiffs’ subpoena (Pl. Mot. at Ex. FF); the correspondence between plaintiffs’

counsel and Union Pacific (Pl. Mot. at Ex. HH); and deeds, tax records, and maps (Pl. Mot. at Ex. M).

18

judgment as to these parcels must, therefore, be denied. For the same reasons, defendant’s cross-

motion for partial summary judgment with respect to these parcels is granted.

4. Parcel Acquired Through Condemnation

Because there are material facts in dispute as to the ownership of parcel 26, neither party

has established that they are entitled to summary judgment with respect to this parcel. Pl. Mem.

at 23; Pl. Mot. at Ex. GG; Def. Rep. at 8. In this regard, the parties agree that parcel 26 has been

acquired by condemnation. Id. But, the parties disagree about which railroad company actually

condemned the parcel and when the condemnation occurred. Id. As established below, the

resolution of this factual dispute is material to resolving whether plaintiffs have a cognizable

property interest in this disputed parcel.

Pursuant to the 1870 Illinois Constitution, a railroad company may only obtain an

easement for property acquired through condemnation proceedings. Ill. Const. 1870, art. II, §

13; Chicago & E. Ill. R.R. Co. v. Clapp, 66 N.E. 223, 223 (Ill. 1903) (“Section 13 of article 2 of

the Constitution of 1870 of Illinois provides that ‘the fee of land taken for railroad tracks without

consent of the owners thereof, shall remain in such owners subject to the use for which it is

taken.’”) (citations omitted). But, prior to the adoption of the 1870 Illinois Constitution, a

railroad company could acquire land conveyed by condemnation in fee simple. Cleveland,

Cincinnati, Chicago & St. Louis Ry. Co., 43 N.E.2d at 996 (“The general condemnation laws in

force prior to the adoption of the Constitution in 1870 provided that a railroad company in

acquiring title for a right of way should take it in fee simple.”). And so, if a railroad company

chartered prior to the adoption of the 1870 Illinois Constitution condemned parcel 26, it is at

least possible that the acquired parcel could have been conveyed in fee simple. On the other

hand, if a railroad company chartered after the adoption of the 1870 Illinois Constitution

condemned parcel 26, there can be no dispute that Union Pacific could have only acquired an

easement in the parcel.

In their motion, plaintiffs maintain that the Iowa Central Railway Company, which

formed after the adoption of the 1870 Illinois Constitution, condemned parcel 26. Pl. Opp. at 7-

8. In contrast, the government argues that the Peoria and Farmington Railway, which

incorporated before the adoption of the 1870 Illinois Constitution, obtained parcel 26 in fee

19

simple by condemnation. Def. Rep. at 8.12 But, neither party has put forward evidence to

establish which railroad company acquired parcel 26 by condemnation or when the

condemnation occurred. Because these factual questions are material to resolving the dispute

over whether parcel 26 has been conveyed to Union Pacific in fee simple, the Court is unable to

resolve this issue by summary judgment. RCFC 56(a); see Anderson, 477 U.S. at 247-48; Biery,

753 F.3d at 1286. And so, the parties’ cross-motions for partial summary judgment on this issue

must be denied.

5. Parcels Plaintiffs Held In Fee Simple

Lastly, the undisputed material facts show that plaintiffs held parcel 29 and the Illinois

Route 116 parcel in fee simple when the Surface Transportation Board issued the NITU. In its

motion for partial summary judgment, the government concedes that “the applicable

conveyances (‘deeds’) by which Union Pacific’s predecessor-in-interest acquired its interests in

the portions of the subject corridor adjacent to these three claimants’ properties only conveyed an

easement to the railroad under applicable Illinois state law.” Def. Mot. at 1 n.1. And so, there is

no dispute that plaintiffs held these parcels in fee simple, and that Union Pacific held only an

easement with respect to these parcels, when the Surface Transportation Board issued the NITU.

B. Scope Of Easement And Takings

Because there is no dispute that Union Pacific held an easement with respect to parcel 29

and the Illinois Route 116 parcel, the Court next turns to the question of whether the scope of the

easement for those parcels has been exceeded by the issuance of the NITU. See Ellamae Phillips

Co., 564 F.3d at 1373; see also Preseault II, 100 F.3d at 1533. To make this determination, the

Court looks to whether the terms of the easement are limited to use for railroad purposes, or

12

While the Illinois Supreme Court has declined to consider whether the 1870 Constitution applies

retroactively to a railroad charter incorporated before 1870, the United States Court of Appeals for the

Seventh Circuit has found that the relevant portions of the 1870 Constitution have no retroactive effect.

Marathon Oil Co. v. Heath, 358 F.2d 34, 37 n.6 (7th Cir. 1966) (“Section 13 of article II of the Illinois

constitution, S.H.A., adopted in 1870, effected a change in the condemnation power of railroads from that

granted by the statutes we have discussed by providing that railroads may acquire no more than an

easement over the right of way taken. This change had no retroactive effect.”) (internal citations omitted);

Peoria & R.I. Ry. v. Birkett, 62 Ill. 332, 337 (1872) (“We do not decide as to the effect of the constitution

upon the charter of the company . . . .”). And so, it appears that the Peoria and Farmington Company

could have acquired the parcel in fee simple. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 43

N.E.2d at 996; see also Marathon Oil Co., 358 F.2d at 37 n.6.; Peoria & R.I. Ry., 62 Ill. at 337.

20

whether the terms include use as a public recreational trail. Id. In this regard, if the terms of the

easement are limited to use for railroad purposes, the issuance of the NITU would exceed the

scope of the easement. Id.; see Duresa v. Commonwealth Edison Co., 807 N.E.2d 1054, 1063

(Ill. App. Ct. 2004).

The government does not contest that the issuance of the NITU in this case exceeded the

scope of the easements for parcel 29 and the Illinois Route 116 parcel. Def. Mot. at 1 n.1, 27-30,

App. A. And so, the remaining question before the Court is whether a temporary or permanent

takings of these parcels has occurred. Caldwell II, 391 F.3d at1234.

In order to resolve this question, the Court must ascertain, among other things, whether

the NITU in this matter has expired and, if so, whether a railbanking and interim trail use

agreement is in place. Caldwell II, 391 F.3d at 1234; Preseault II, 100 F.3d at 1552. The parties

have stated the NITU at issue in this matter was set to expire on April 26, 2015. Pl. Mot. at 3;

Def. Mot. at 7. But, the parties have not informed the Court of the current status of the NITU, or

stated whether a railbanking and interim trail use agreement is currently in place. Id.; Def. Mot.

at 7; see generally Pl. Opp.; Def. Rep.

If the NITU has in fact expired and has been converted to a notice of abandonment, a

temporary takings may have occurred. Ladd, 630 F.3d at 1025 (“where no trail use agreement is

reached, the taking may be temporary” (internal citations omitted)); Caldwell II, 391 F.3d at

1234. On the other hand, if the Illinois Department of Natural Resources and Union Pacific have

reached a railbanking and interim trail use agreement, a permanent takings may have occurred.

Caldwell II, 391 F.3d at 1234; Preseault II, 100 F.3d at 1552; see also Toews, 376 F.3d at 1376.

Because information about the current status of the NITU will inform the Court’s takings

analysis, the Court will hold the question of whether there has been a temporary or permanent

takings of parcel 29 and the Illinois Route 116 parcel in abeyance until the parties have provided

the Court with information about the status of the NITU.

IV. CONCLUSION

In sum, at the time the Surface Transportation Board issued the NITU, the undisputed

material facts show that Union Pacific held the 13 parcels conveyed by “right-of-way”

agreements and the two parcels conveyed by “for railroad purposes” agreements in fee simple.

21

In addition, the undisputed material facts show that plaintiffs have not met their burden to

establish that they held cognizable property interests in the three parcels for which they have

provided no conveyance documents. Furthermore, there are material facts in dispute regarding

the nature of the property interest held by plaintiffs and by Union Pacific in the parcel acquired

by condemnation. Finally, the undisputed material facts show−and the parties agree−that

plaintiffs held parcel 29 and the Illinois Route 116 parcel in fee simple at the time the Surface

Transportation Board issued the NITU, and that the scope of the easement granted to Union

Pacific in these parcels has been exceeded by the NITU.

For the foregoing reasons, the Court:

1. GRANTS defendant’s motion for partial summary judgment with respect to

parcels 23, 33, 37, 44, 47, 51, 55, 57, 58, 59, 74, 80, 83, 87, 90, 91, 98, 102 and DENIES

plaintiffs’ motion for partial summary judgment with respect to these parcels;

2. GRANTS in part plaintiffs’ motion for partial summary judgment with respect to

parcel 29 and the Illinois Route 116 parcel and DENIES in part defendant’s motion for

partial summary judgment with respect to these parcels; and

3. DENIES plaintiffs’ motion for partial summary judgment with respect to parcel

26 and DENIES defendant’s motion for partial summary judgment with respect to this

parcel.

The Court HOLDS in ABEYANCE the parties’ cross-motions for partial summary

judgment on the question of whether a permanent or temporary takings has occurred with respect

to parcel 29 and the Illinois Route 116 parcel.

Because the Court holds this issue in abeyance, the Court also DENIES plaintiffs’

motion for oral argument as moot.

The parties are directed to FILE a Joint Status Report on or before September 22, 2015,

that shall state their views on the following issues:

a. Whether a railbanking and interim trail use agreement is in place, or

whether the NITU has expired, or has been extended.

b. Whether discovery is needed to establish what railroad company acquired

parcel 26 by condemnation and when the condemnation occurred.

22

c. In light of the Court’s Memorandum Opinion and Order, how the parties

propose to proceed with respect to resolving plaintiffs’ claims regarding

the remaining parcels identified in the complaint.

IT IS SO ORDERED.

s/ Lydia Kay Griggsby

LYDIA KAY GRIGGSBY

Judge

23