Opinion

Jackson v. United States

Court: United States Court of Federal Claims
Filed: Nov 20, 2017
Status: Published
On the bench: Mary Ellen Coster Williams
Cited by: 0 cases
Authority: More cited than 4.0%

granting defendant summary judgment where plaintiffs did not own parcels adjacent to the rail corridor

How later courts described this case

granting defendant summary judgment where plaintiffs did not own parcels adjacent to the rail corridor
finding that the railroad was granted a fee simple because there was an outright conveyance of land
holding that the outermost, 43 unfettered limit of such an easement was what was convenient or necessary for railroad operations
granting defendant summary judgment where plaintiffs provided no conveying instruments to show ownership in the subject parcels at the time the NITU was issued

Written by the judges who cited it.

The opinion

In the United States Court of Federal Claims

Nos. 14-397L, 15-194L

(Filed: November 20, 2017)

*****************************

* Partial Summary Judgment;

GLORIA J. JACKSON, et al., *

Class Action; Fifth Amendment

Takings; National Trails System

Plaintiffs, *

* Act; 16 U.S.C. § 1247(d); Ga.

v. * Code Ann. § 1689 (1882); Ga.

* Code Ann. § 2167 (1895); Fee

THE UNITED STATES, * Simple; Right-of-Way; Creation

* of Easement Under Georgia Law;

Defendant. * Strips and Gores Doctrine.

*****************************

Mark F. (Thor) Hearne, II, Lindsay S.C. Brinton and Meghan S. Largent, Arent Fox, LLP,

112 South Hanley Road, Suite 200, Clayton, MO 63105, for Plaintiffs. Debra J. Albin-Riley,

Arent Fox LLP, 555 West Fifth Street, 48th Floor, Los Angeles, CA 90013, for Plaintiffs.

John C. Cruden and Stephen Finn, United States Department of Justice Environment &

Natural Resources Division, Natural Resources Section, 601 D Street, N.W., Washington, D.C.

20004, for Defendant. Craig Keats and Evelyn Kitay, Surface Transportation Board Office of the

General Counsel, 395 E Street, S.W., Washington, D.C. 20024, Of Counsel.

_____________________________________________________________________________

OPINION AND ORDER

_____________________________________________________________________________

WILLIAMS, Judge.

Plaintiffs, 47 property owners in Newton County, Georgia, claim that the Government

effected a taking of their property when the Surface Transportation Board (“STB”) issued a Notice

of Interim Trail Use or Abandonment (“NITU”) on August 19, 2013, pursuant to the National

Trails System Act (“Trails Act”). Plaintiffs claim that their predecessor owners granted easements

to the Middle Georgia & Atlantic Railway (“MGAR”) for the sole purpose of operating a railroad,

and that once these easements were no longer used for railroad operations, the property reverted

to Plaintiffs in fee simple. Plaintiffs claim that the NITU prevented this reversion and imposed a

new easement for a recreational trail and “railbanking” on their land. 1 In contrast, Defendant

“Railbanking” is a mechanism whereby railroads ceasing operations on particular lines

would convey the lines to qualified entities to operate the rights-of-way as interim recreational

trails pending future reactivation of rail service. 16 U.S.C. § 1247(d) (2016); see Preseault v.

Interstate Commerce Comm’n, 853 F.2d 145, 147 (2d Cir. 1988).

asserts that Plaintiffs’ predecessor owners granted the railroad a fee simple interest, or, if

easements were granted, these easements were broad enough to encompass use of the land as a

recreational trail.

Currently before the Court are the parties’ cross-motions for partial summary judgment.

For the reasons stated below, the Court grants in part each party’s cross-motion.

Background2

The Railroad Line

In September 1889, the Georgia legislature granted the Eatonton & Machen Railroad

Company a charter to “construct, lay out, maintain, equip and operate a line of railroad from the

town of Eatonton, in Putnam county, to the town of Machen, in Jasper county, in this State . . . .”

Pls.’ Mot. Summ. J. App. C, at C-4. The railroad’s charter incorporated Section 1689(l) of the

Georgia Code, stating:

That section 1689(l) of the Code of this State, concerning the acquisition of rights-

of-way and other property for the construction of railroads, and setting forth the

methods of proceeding to condemn such property in certain cases therein stated, be,

and the same is hereby, made a part of this charter and incorporated into the same,

and all powers, rights, privileges and franchises set forth and described in said

section may be exercised by [the Eatonton & Machen Railroad Company] in the

matter therein set forth.

Id.

A month later in October 1889, the Georgia legislature passed an Act to change the name

of the Eatonton & Machen Railroad Company to the Middle Georgia and Atlantic Railway

Company (“MGAR”). Id. at C-11. After receiving its charter, MGAR “assembled its rail system

between 1890 and 1894.” Second Am. Compl. Ex. 1, at 17.3 The railroad line between Eatonton

and Machen, Georgia opened in 1891, and an extension from Machen to Covington was completed

in 1893. Id. To construct this rail line, MGAR obtained property rights from local landowners.

MGAR used a standard form, labeled “Right of Way,” for these conveyances, with blank spaces

to be filled in by the landowners. Plaintiffs refer to the form as a “Right-of-Way deed,” Defendant

refers to it as an “1890-1894 Deed,” and the Court refers to it as the “MGAR form deed.”

In December 1896, the Central of Georgia Railroad Company (“CGA”) purchased MGAR

in a foreclosure sale. Id. In 1899, CGA extended the line to Porterdale to serve a textile mill and

obtained property rights from local landowners for this construction. CGA used its own pre-

printed forms for these conveyances, with blank spaces to be filled in by the landowners.

This background is derived from the parties’ pleadings and attachments to their motion

papers.

Exhibit 1 is the “Combined Environmental and Historic Report” that Central of Georgia

Railroad Company submitted to the Surface Transportation Board on April 24, 2013.

Southern Railway Company (“SR”) purchased CGA on June 17, 1963. Id. In 1971, SR

merged CGA with two other railroad companies, the Savannah Atlanta Railway and the

Wrightsville and Tennille Railroad, to form the Central of Georgia Railroad Company. Id.

Norfolk Southern Corporation acquired control of SR on June 1, 1982. Id. In 1989, SR leased the

former MGAR line to the Great Walton Railroad. This line included the segment at issue. Id. at

18. In December 1990, SR changed its name to Norfolk Southern Railway Company. Id. at 17.

In 2010, Norfolk Southern Railway Company and Great Walton Railroad “each obtained

regulatory authority to discontinue service over the Newborn-Covington line segment . . . .” Id. at

18. According to Central of Georgia Railroad Company’s Environmental and Historic Report, this

line has been inactive since 2010, when rail service was “legally discontinued.” Id. at 15.

The Railroad’s Petition to “Abandon” the Corridor

This case concerns 14.9 miles of rail line between Mileposts E 65.80 near Newborn and E

80.70 near Covington in Newton County, Georgia. Id. at 17. On July 1, 2013, Central of Georgia

Railroad Company, as a wholly-owned subsidiary of Norfolk Southern Railway Company, filed

“a verified notice of exemption” with the STB “to abandon 14.90 miles of rail line” between

milepost E 65.80 and milepost E 80.70. Id. Ex. 2, at 48.

On July 26, 2013, the Newton County Trail Path Foundation filed a request that the STB

issue a Public Use Condition and a Certificate or Notice of Interim Trail Use rather than an outright

abandonment authorization for this section of rail line. Id. Ex. 3, at 1. In its filing with the STB,

the Trail Path Foundation described the location of milepost E 65.80 as “the point of the line’s

crossing of Route 229 in Newborn” and that of Milepost 80.70 as “near the intersection of

Washington Street, SW, and Turner Lake Road, SW, in Covington.” Id. Ex. 3, at 2.

On August 19, 2013, the STB issued a NITU and Public Use Condition. Id. Ex. 4. The

NITU provided a 180-day period for Central of Georgia Railroad Company and the Newton

County Trail Path Foundation to negotiate an interim trail use agreement for the use of the line as

a trail. Id. Ex. 4, at 2. The NITU also stated that interim trail use/railbanking was subject to

“possible future reconstruction and reactivation of the right-of-way for rail service . . . .” Id. at 4.

The STB extended the NITU several times in 2015 and 2016. Pls.’ Not. (ECF No. 61); Def.’s

Not. (ECF No. 83). The NITU was set to expire on January 30, 2017, but on September 28, 2016,

the Central of Georgia Railroad Company and the Trail Path Foundation entered into a Lease

Agreement for interim trail use and railbanking for the entire line. Pls.’ Not. Ex. A (ECF No. 95).

On October 14, 2016, CGA, in a letter to the STB, requested that a correction to the NITU

be made, explaining that CGA determined that the map attached to its July 1, 2013 Notice of

Exemption “did not properly depict the precise location of milepost E-65.80.” Def.’s Not. Ex. A

(ECF No. 96). Specifically, CGA stated that the description of milepost E 65.80 as “the point of

the Line’s crossing of Route 229 in Newborn, Georgia” was incorrect in that milepost E 65.80

“properly corresponds to a point just east of the Ziegler Road crossing west of downtown Newborn,

Newton County, Georgia.” Id.

On November 18, 2016, the STB issued a decision accepting CGA’s and Newton Trail’s

revised map and modifying the NITU to correct the reference to milepost E 65.80. Id. Ex. C.

The Landowners4

Plaintiffs claim that they acquired their parcels prior to the STB’s issuance of the NITU on

August 19, 2013, and that they owned property abutting and underlying the railroad corridor at the

time of the NITU. Plaintiffs claim their property interests in this railway corridor on the basis of

19th century deeds, and Defendant posits that a somewhat different list of 19th century deeds is

controlling. The parties agree that the railroad traversed an area of land, referred to as the “Samuel

Johnson Condemnation,” without obtaining any deed. Three Plaintiffs own property covered, in

whole or in part, by the Samuel Johnson Condemnation.

Discussion

Summary Judgment Standard

Plaintiffs and Defendant move for summary judgment on the issue of liability. Summary

judgment is appropriate where 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 also Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986). A genuine dispute is one that “may reasonably be resolved in favor

of either party.” Liberty Lobby, 477 U.S. at 250. A fact is material if it “might affect the outcome

of the suit.” Id. at 248. The moving party bears the burden of establishing the absence of any

material fact, and any doubt over factual disputes will be resolved in favor of the nonmoving party.

Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Once this

burden is met, the onus shifts to the nonmovant to present evidence from which a finder of fact

might rule in his favor. If he does so, there is a genuine issue of fact that requires a trial. Liberty

Lobby, 477 U.S. at 257.

When considering a motion for summary judgment, a court does not weigh each side’s

evidence, but views the inferences to be drawn from the underlying facts in the light most favorable

to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per

curiam). When opposing parties both 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.” Mingus Constructors, 812 F.2d at 1391.

In adjudicating a motion for summary judgment, “‘the Court may neither make credibility

determinations nor weigh the evidence and seek to determine the truth of the matter. Further,

summary judgment is inappropriate if the factual record is insufficient to allow the Court to

determine the salient legal issues.’” Nacchio v. United States, 115 Fed. Cl. 195, 200 (2014), aff’d

in part, rev’d in part on other grounds and remanded, 824 F.3d 1370 (Fed. Cir. 2016) (quoting

Mansfield v. United States, 71 Fed. Cl. 687, 693 (2006)). Cross-motions for summary judgment

“are not an admission that no material facts remain at issue,” since “the separate summary

judgment motions of each party may focus on different legal principles” and rely on different sets

On October 16, 2015, the Court consolidated this case with Guenther, et al. v. United

States, No. 15-194L. The Guenther plaintiffs are a group of landowners in Newton County,

Georgia, whose takings claims arise out of the same August 19, 2013 NITU. However, because

the cases were consolidated after the Jackson plaintiffs filed their summary judgment motion, the

Guenther plaintiffs’ claims are not the subject of the cross-motions for summary judgment before

the Court.

of facts. Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997) (citing United States v.

Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978)).

Takings Claims and the Trails Act

Congress enacted the Trails Act to preserve shrinking rail trackage by converting unused

rights-of-way to recreational trails. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5

(1990) (“Preseault I”); see also 16 U.S.C. § 1241 et seq. (2016). The operation of the Trails Act

is subject to the Fifth Amendment to the United States Constitution, which provides that private

property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V.

Accordingly, when private property interests are taken by the Government pursuant to the Trails

Act, the property owners are entitled to just compensation. See Preseault I, 494 U.S. at 13.

Because property rights arise under state law, Georgia law governs whether the landowners in this

case have a compensable property interest. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001

(1984) (citing Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980));

Preseault I, 494 U.S. at 20–25 (O’Connor, J., concurring).

In a rails-to-trails case, a taking, if any, occurs when “state law reversionary interests are

effectively eliminated in connection with a conversion of a railroad right-of-way to trail use.”

Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004). The Trails Act prevents a

common law abandonment of the railroad right-of-way from being effected, thus precluding state

law reversionary interests from vesting. Id. at 1229. Stated in traditional property law parlance,

upon abandonment or termination of a railroad’s easement, “the burden of the easement would

simply be extinguished, and the landowner’s property would be held free and clear of any such

burden.” Toews v. United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004). By preventing the

abandonment and concomitant restoration of a fee simple unburdened by the easement, the Trails

Act effects a taking. See Barclay v. United States, 443 F.3d 1368, 1371 (Fed. Cir. 2006).

As the Federal Circuit has explained:

Abandonment is suspended and the reversionary interest is blocked “when the

railroad and trail operator communicate to the STB their intention to negotiate a

trail use agreement and the agency issues an NITU that operates to preclude

abandonment under section 8(d)” of the Trails Act. We concluded that “[t]he

issuance of the NITU is the only government action in the railbanking process that

operates to prevent abandonment of the corridor and to preclude the vesting of state

law reversionary interests in the right of way.” Thus, a Trails Act taking begins

and a takings claim accrues, if at all, on issuance of the NITU.

Id. at 1373 (quoting Caldwell, 391 F.3d at 1233-34) (alteration and emphasis in original) (internal

citations omitted). If standard abandonment had occurred under 49 U.S.C. § 10903, the railroad,

as the owner of the servient estate, would not retain any property interest in the right-of-way, and

that property interest would revert to the dominant landowner. Id. at 1371. Thus, the Trails Act,

in preventing this reversion, effects a taking. See id. In another sense, the taking occurs when the

Government, pursuant to the Trails Act, creates a new easement for a new use over land that was

encumbered by an easement limited to railroad purposes. See Preseault v. United States, 100 F.3d

1525, 1550 (Fed. Cir. 1996) (“Preseault II”) (describing the conversion of a railroad easement to

a recreational trail as “a new easement for [a] new use”). The statutory imposition of this second

easement - - which otherwise had not been granted - - is a taking. Id.

Plaintiffs’ Ownership Interests at the Time of the Issuance of the NITU

In any takings case, only persons with valid property interests at the time of the taking are

entitled to compensation. Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001). A

claimant must prove ownership in the property right that was allegedly taken when the claim

accrued. United States v. Dow, 357 U.S. 17, 20-21 (1958). The Federal Circuit has made clear

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)

(internal citations omitted).

Each of the 47 Plaintiffs claims at least one property interest in land abutting and

underlying the railway, and some Plaintiffs allege multiple property interests. Throughout their

briefing, Plaintiffs and Defendant used different numbering systems to identify Plaintiffs’ claims

for individual parcels. For ease of reference, the Court adopts Plaintiffs’ numbering system as

used in the parties’ spreadsheet. Pls.’ Not. Ex. 1 (ECF No. 67). Plaintiffs and their respective

claims are listed in Appendix A.

Defendant disputes the claimed location of eight of Plaintiffs’ parcels, arguing that those

parcels are not adjacent to and underlying the railroad corridor. Def.’s Mot. Summ J. 34-36. The

owners of these eight parcels are Louise Sanford, Gloria J. Jackson, Betty Walton, GA Building

Authority, Leonard D. and Argie Hardeman, Randall and Katheryn Smith, Miller Property and

Renovation, LLC, and Greyland Real Estate Investments Inc.5

Plaintiff Walton’s Property is Located Outside the Boundaries of the NITU

In supplemental briefing, Plaintiffs conceded that Plaintiff Betty Walton does not own

property within the scope of the NITU. Pls.’ Resp. Ex. 1 (ECF No. 67); Joint Resp. App. A, at 21

(ECF No. 109). Plaintiffs propose voluntary dismissal without prejudice as to this claim, but

Defendant asks for summary judgment. Joint Resp. App. A, at 21 (ECF No. 109). To establish a

taking, a plaintiff must first “identif[y] a cognizable Fifth Amendment property interest that is

asserted to be the subject of the taking.” Casitas Mun. Water Dist. v. United States, 708 F.3d 1340,

1348 (Fed. Cir. 2013). Because Plaintiff Walton by her own admission does not possess a

cognizable property interest in land allegedly taken, entry of judgment in Defendant’s favor is

warranted, not a voluntary dismissal that might permit this Plaintiff to again raise such claim. See

Barlow v. United States, 123 Fed. Cl. 186, 199-200 (2015) (granting defendant summary judgment

where plaintiffs provided no conveying instruments to show ownership in the subject parcels at

the time the NITU was issued); Thomas v. United States, 106 Fed. Cl. 467, 477 (2012) (granting

defendant summary judgment where plaintiffs did not own parcels adjacent to the rail corridor).

In an order dated August 30, 2017, this Court denied the parties’ cross-motions for

summary judgment as to Plaintiffs Hardeman, Jackson, GA Building Authority, and Sanford in

conjunction with ruling on Plaintiffs’ motion to strike deposition testimony. Order 7 (ECF No.

131). The Court found that factual issues remained and that the record required further

development on whether these Plaintiffs had suffered a temporary taking. Id.

As such, the Court grants summary judgment in favor of Defendant on the claim of Betty Walton

(Claim No. 274).

Parcels That May Not Underlie or Abut the Railway Corridor

The Property of Randall and Katheryn P. Smith

Plaintiffs assert that the parcel owned by the Smith Plaintiffs (Claim No. 155) abuts both

the railroad corridor and East End Road, which Plaintiffs argue “is within the right-of-way.” Pls.’

Resp. 5 (ECF No. 67). Plaintiffs provide the following map in support of their claim and represent

that the shaded area marked “155” is the Smiths’ parcel:

Pls.’ Reply Ex. 4 (ECF No. 82). Defendant argues that parcel No. 155 does not abut and underlie

the railway corridor. Def.’s Mot. Summ. J. 35. Defendant provides the following map in support

of its position and identifies the Smith Plaintiffs’ parcel as the shaded area marked “Smith A.

Randall:”

Def.’s Mot. Summ. J. Ex. G, at 92. The parties further dispute whether East End Road, labelled

as such on Defendant’s map, is within the railroad corridor. Pls.’ Not. 5 (ECF No. 67); Def.’s Not.

13 (ECF No. 74).

The parties’ maps depict conflicting locations of the Smiths’ property vis-à-vis the railway

corridor. Whether any portion of the Smith Plaintiffs’ parcel No. 155 abuts and underlies the

railway corridor and whether East End Road is within the railroad corridor cannot be resolved on

the basis of this record. The Court requires evidence on the preparation and interpretation of these

conflicting maps. In the event East End Road is determined to be located within the railroad

corridor, facts addressing the legal import of this road on Plaintiffs’ property rights may also be

necessary to determine liability.

The Property of Miller Property and Renovation

Plaintiffs argue that the parcel owned by Plaintiff Miller Property and Renovation

(“Miller”), Claim No. 60, abuts the railroad corridor “at the intersection of the right-of-way with

Mill Street,” giving rise to a taking. Pls.’ Resp. 2 (ECF No. 67). Plaintiffs rely on the following

map of the Miller property in relation to the right of way and represent that the rectangular area

marked “60” is the Miller parcel:

Id. Ex. B.

Defendant argues that to the extent that this parcel touches the rail corridor, the “only

potential property underlying the rail corridor extending from the parcel would fall under a street

crossing [Mill Street] that is claimed by possessory title, i.e., adverse possession.” Def.’s Resp. 6

(ECF No. 74). Defendant states that this crossing was claimed by possession over 100 years ago

and still is used as a public road today. Id.; see also Ga. Code Ann. § 44-5-160 (2017) (“Title by

prescription is the right to property which a possessor acquires by reason of the continuance of his

possession for a period of time fixed by law.”); Ga. Code Ann. § 44-5-163 (“Possession of real

property in conformance with the requirements of Code Section 44-5-161 for a period of 20 years

shall confer good title by prescription to the property against everyone except the state and those

persons laboring under the disabilities stated in Code Section 44-5-170.”).6 Defendant also asserts

that if any portion of the parcel abuts the corridor beyond Mill Street, it would be governed by the

Butler deed, which conveyed a fee. Def.’s Resp. App. A, at 2 (ECF No. 74).

Defendant provides the following map in support of its claim and identifies the Miller

Property and Renovation parcel as “Miller Prop & Renovation:”

Ga. Code Ann. § 44-5-170 states: “[p]rescription shall not run against the rights of a minor

during his or her minority, a person incompetent by reason of mental illness or intellectual

disability so long as the mental illness or intellectual disability lasts, or a person imprisoned during

his or her imprisonment.”

Def.’s Mot. Summ. J. Ex. L.

The parties further dispute whether Mill Street, labelled as such on Defendant’s map, is

within the railroad corridor. Pls.’ Resp. 2 (ECF No. 67); Def.’s Resp. 6 (ECF No. 74). The original

deed transferring ownership to Miller Property and Renovation describes the location of the

property as:

Beginning at a point on the southwesterly side of South Mill Street 100 feet

southwesterly, as measured along the southwesterly side of South Mill Street from

the corner formed by the intersection of the southwesterly side of South Mill Street

and the southwesterly right of way of Thompson Avenue.

Second Am. Compl. Ex. 43. The deed does not reference any railway or railroad corridor. See id.

Rather, the deed states on a single line in a standalone paragraph without context: “Subject to all

easements and restrictions of record if any.” Id.

Whether any portion of the Miller Plaintiff’s parcel (Claim No. 60) abuts and underlies the

railway corridor and whether Mill Street is within the railroad corridor, are genuine issues of

material fact that preclude entry of summary judgment for either party. Again, the Court requires

evidence on the preparation and interpretation of the maps.

The Property of Greyland Real Estate Investments, Inc.

Claim No. 39

Although the parties agree that only a corner of this .21 acre parcel touches the railroad

corridor, they do not agree which deed applies to this parcel. Joint Resp. App. A, at 4 (ECF No.

109). Plaintiffs assert that the Wright deed applies and rely on the following map with the circled

portion depicting Greyland’s parcel:

Pls.’ Reply Ex. F (ECF No. 82). Defendant asserts that both the Wright deed and the Simms deed

apply to this Greyland parcel, and rely on the following map:

Def.’s Mot. Summ. J. Ex. Q, at 98.

The Wright deed, dated April 9, 1890, contains the following language:

This Indenture Witnesseth: That the undersigned R.F. Wright has bargained, sold,

and conveyed to the MIDDLE GEORGIA & ATLANTIC RAILWAY

COMPANY, a corporation, of said State, the following property: A strip of land

situate in the 462nd District of Newton County, Georgia, Thirty feet wide, the same

being Fifteen feet on each side the centre line of said Railroad, for a right of way

of said Railroad, or for any other use, in the discretion of said Company, and more

particularly described as follows:

Along the line of recent survey made by said Middle Georgia and Atlantic

Rail Way Co.

The Consideration of this Deed is the sum of Ten Dollars paid by said Company to

the undersigned before the execution of these presents.

To Have and to Hold the described land, with its members and appurtenances unto

the said Middle Georgia & Atlantic Railway Company, its successors and assigns,

forever. And the said R.F. Wright will forever warrant and defend the title hereby

conveyed to the said Railroad Company against any and every person whatsoever.

In Witness Whereof, the said R.F. Wright has hereunto set his hand and affixed his

seal, and delivered these presents, this the Ninth day of April 1890.

Joint Not. Transcribed Conveyances Ex. 2, at 52.

The Simms deed, dated April 9, 1890, contains the following language:

This Indenture Witnesseth: That the undersigned Mrs. S.J. Simms has bargained,

sold, and conveyed to the MIDDLE GEORGIA & ATLANTIC RAILWAY

COMPANY, a corporation, of said State, the following property: A strip of land

situate in the City of Covington District of Newton County, for a right of way of

said Railroad, or for any other use, in the discretion of said Company, and more

particularly described as follows:

Through my town lot as now laid out and graded & of sufficient width to

make and maintain said Railroad in good & safe condition.

The Consideration of this Deed is the sum of One Dollars [sic] paid by said

Company to the undersigned before the execution of these presents.

To Have and to Hold the said described land, with its members and appurtenances

unto the said Middle Georgia & Atlantic Railway Company, its successors and

assigns, forever. And the said S.J. Simms will forever warrant and defend the title

hereby conveyed to the said Railroad Company against any and every person

whatsoever.

In Witness Whereof, the said S.J. Simms has hereunto set her hand and affixed her

seal, and delivered these presents, this 22nd day of August 1892.

Id. at 54 (emphasis added).

On October 16, 2015, this Court ordered Plaintiffs to clarify the record as to Greyland’s

claim. The Court stated:

To determine liability with respect to Plaintiff Greyland Real Estate and

Investments Inc., the Court must determine whether Plaintiff has alleged a property

interest in a parcel that abuts the railroad right-of-way. The record is unclear as to

which parcels Plaintiff Greyland Real Estate claims were the subject of a taking.

Plaintiff provided the Court with a deed for one parcel, three maps, each mapping

the location of a different parcel, generated by the Newton County Assessor’s

Office online, and one Newton County Ad Valorem Tax Notice. Each of these five

attachments appears to describe a different parcel. In addition, Plaintiffs attach in

their reply brief, without explanation, a deed for a parcel that may correspond to

one of the three Newton County Assessor’s Office maps. Plaintiffs shall clarify

which parcel(s) are at issue and correlate the deeds with such parcel(s).

Order 2 (Oct. 16, 2015) (ECF No. 63) (internal citations omitted).

In response, Plaintiffs submitted the Rutland deed, dated April 5, 2002, and stated:

Greyland Real Estate and Investments, Inc. (Greyland) has three parcels that abut

and underlie the right-of-way. They are depicted on Exhibit 1 to the Declaration of

J. Brannon as parcels with the map identification numbers 39, 41, and 43. All three

parcels abut and underlie the portion of the right-of-way conveyed to the railroad

by the R. Wright Deed (Book X, Page 388).

Pls.’ Resp. 2 (ECF No. 67). Exhibit 1 to the Declaration of J. Brannon depicts the claims of all 47

Plaintiffs in this litigation. This single-page exhibit contains a large map on the left side of the

page showing the entire portion of the rail corridor that is the subject of this litigation marked with

the parcels belonging to each Plaintiff. On the right side of the page, there are four smaller maps

showing close-ups of four different segments of the rail corridor. Greyland’s parcel, Claim No.

39, is circled in the image below, which is insert A from Exhibit 1 to the Declaration of J. Brannon:

Brannon Decl. Ex. 1 (ECF No. 37).

Plaintiffs continued:

a. Map ID 39: The first parcel is Newton County Parcel Identification Number

C0200-00170-004-000. This parcel contains .21 acres according to the Newton

County Assessor’s records. The corresponding tax receipt for the year 2013 is

attached as Exhibit C. Greyland acquired this property by Deed Book 1201, Page

299. A copy of this deed is attached as Exhibit D.

Pls.’ Resp. 2-3 (ECF No. 67) (internal citations omitted). Plaintiffs do not discuss Exhibit D, the

Rutland deed, other than to say that this deed was Greyland’s means of acquiring this property.

Defendant argues that Plaintiffs have not demonstrated that any of these six tracts of land

described in the April 5, 2002 Rutland deed corresponds to Greyland’s Claim No. 39, stating:

Plaintiffs have not identified which of the six tracts described in the deed is parcel C0200-

00170-004-000. The six tracts within the deed variously reference prior deeds or plats to

describe the property locations. These plats and deeds do not appear to have been provided

to Defendant or the Court. Further, the tracts . . . are all on “East Street” but the property

description . . . indicates the property is on “East Haven” and Exhibit 85 to Plaintiffs’

Amended Complaint indicates that the property is at “2122 East Haven Drive.”

Def.’s Resp. 7 (ECF No. 74) (internal citation omitted).

Plaintiffs did not respond to Defendant’s arguments that the plats and deeds are not in the

record, nor do they clarify the name of the street on which this Greyland property is located. Pls.

Reply 3 (ECF No. 82). Plaintiffs state:

This Court asked us to “clarify which parcel(s) are at issue and correlate the deeds

with such parcel(s).” We clarified this point in our response. The government

replied suggesting we had the wrong deeds for parcels 5(a) and 5(b). The correct

deed for both parcels 5(a) and 5(b) is found in Book 891, Page 488 and is attached

as Exhibit 3. The government does not object to paragraph 5(c) of our Response.

Id. (internal citations omitted). Exhibit 3 is a copy of yet another deed dated January 10, 2000,

from Sara M. Jernigan and W.D. Ballard to Greyland Real Estate Investments, Inc. Plaintiffs do

not discuss the Jernigan/Ballard deed.

It is unclear what property is encompassed in Greyland Claim No. 39 and what deed(s)

control that property interest. As such, the Court requires evidence on what property is the subject

of Greyland Claim No. 39 and on the preparation and interpretation of the maps portraying this

parcel. The Court denies summary judgment to both parties on Greyland’s Claim No. 39.

Ruling on Parcels That Defendant Claims Do Not Abut or Underlie the Railroad

Corridor

The Court grants summary judgment in favor of Defendant on the claim of Plaintiff Betty

Walton (Claim No. 274) as this Plaintiff’s parcel does not underlie or abut the railroad corridor.

The Court denies summary judgment to both parties as to the claims of Plaintiffs Randall

and Katheryn Smith (Claim No. 155), Miller Property and Renovation (Claim No. 60), and

Greyland Real Estate (as to Claim No. 39), as there are genuine issues of material fact as to whether

these Plaintiffs had property interests at the time of the alleged taking.

Whether the Railroad Acquired Easements or Fee Simple Estates Under the Original

Conveyances

In Preseault II, the Federal Circuit explained that whether a plaintiff is entitled to

compensation in a rails-to-trails case depends on three issues:

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

only easements, or did it obtain fee simple estates; (2) if the Railroad acquired only

easements, were the terms of the easements limited to use for railroad purposes, or

did they include future use as public recreational trails; and (3) even if the grants of

the Railroad’s easements were broad enough to encompass recreational trails, had

these easements terminated prior to the alleged taking so that the property owners

at that time held fee simples unencumbered by the easements.

Preseault II, 100 F.3d at 1533.

Whether the current landowners have a property interest in the land underlying and abutting

the railroad right-of-way depends upon the language of the original conveyance that granted

MGAR the property at issue. See Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373-74

(Fed. Cir. 2009); Toews, 376 F.3d at 1376; Rogers v. United States, 90 Fed. Cl. 418, 428-29

(2009). Plaintiffs assert that the deeds conveyed easements, while Defendant contends that the

deeds conveyed property in fee simple. The Court must examine these deeds in light of Georgia

statutes and common law at the time that the deeds were executed. Preseault II, 100 F.3d at 1534.

The Georgia Code Provision Incorporated Into the Railroad’s Charter Informs the

Court’s Interpretation of the Deeds

Plaintiffs argue that Georgia Code §1689, which was incorporated by reference into the

Eatonton & Machen Railroad charter, necessarily limited the railroad’s property interest in the

original grantors’ conveyances to an easement. Ga. Code Ann. § 1689(i) (1882).7 This provision

of Georgia’s statute, “Powers of the corporation,” states:

[A corporation] shall be empowered, first, to cause such examinations and surveys

to be made of the proposed railroad as shall be necessary to the selection of the

most advantageous route, and for such purposes to be empowered by its officers,

agents, servants or employees, to enter upon the land or water of any person for that

purpose. Second, to take and hold such voluntary grants of real estate and other

property as may be made to it, to aid in the construction, maintenance and

accommodation of its road, but the real estate received by voluntary grant shall be

held and used for the purpose of such grant only. Third, to purchase, hold and use

all such real estate and other property as may be necessary for the construction and

maintenance of its road, and the stations, wharves, docks, terminal facilities, and

all other accommodations necessary to accomplish the object of its incorporation,

and to sell, lease or buy any land necessary for its use.

Id. (emphasis added). The statute stated that the purposes of the railroad’s articles of association

were constructing, maintaining, and operating a railroad for public use or maintaining or operating

a railroad already constructed. Id. at § 1689(a).

Further, the Georgia statute expressly granted the railroad eminent domain authority:

In the event of any company organized under the provisions of this section does not

procure from the owner or owners thereof, by contract, lease or purchase, the title

to the lands, or right of way, or other property necessary or proper for the

construction or connection of said railroad and its branches or extensions . . ., it

shall be lawful for said corporation to construct its railroad over any lands

belonging to other persons, or over such rights of way or tracks of other railroads

as aforesaid, upon paying or tendering to the owner thereof, or to his or her legally

authorized representative, just and reasonable compensation for the right of way . .

Id. at § 1689(l).

The 1882 version of the statute controls, as the MGAR form deeds were executed between

1890 and 1894.

Plaintiffs argue that these provisions of the Georgia Code, incorporated by reference into

the railroad’s charter, reflect that Georgia balanced its grant of eminent domain to railroads with a

corresponding limitation upon the interest a railroad could obtain when it acquires a right-of-way

under this eminent domain authority. Pls.’ Mot. Summ. J. 11. Specifically, Plaintiffs contend that

the Georgia railroad incorporation statute coupled with Georgia common law necessarily

prevented the railroad from obtaining a fee simple interest from the original grantors via any of

the original conveyances and limited the railroad’s property interest to an easement. Id. at 10-16.

While the statute does not obviate the fundamental requirement that the Court examine the

language of the original deeds, the Court affords the statute significant weight in interpreting these

conveyances. See Preseault II, 100 F.3d at 1534 (“The question of what estates in property were

created by these turn-of-the-century transfers to the Railroad requires a close examination of the

conveying instruments, read in light of the common law and [state] statutes . . . then in effect.”);

Hardy v. United States, 127 Fed. Cl. 1, 8 (2016). As such, this contemporaneous statutory

framework provides an important context for the Court’s interpretation of the conveyances at issue.

See Preseault II, 100 F.3d at 1536.

The Strips and Gores Doctrine Does Not Limit the Railroad’s Interest to an Easement

Plaintiffs offer another interpretive aid for construing the deeds at issue, arguing that, under

Georgia common law, the doctrine of “strips and gores” prevents the creation of fee estates in

strips used as rights-of-way, such that the original grantors could only have conveyed easements

to the railroad. Pls.’ Mot. Summ. J. 14-15. This Court, however, does not find that doctrine

applicable in the context of determining what property interests were conveyed.

The “strips and gores doctrine” is a principle of interpretation used by courts to resolve

ambiguities in deeds. Under this doctrine, when a deed conveys land which is bounded by a road,

railroad right-of-way, or stream, the boundary of the land is the centerline of the road, railroad

right-of-way, or stream. Fambro v. Davis, 348 S.E.2d 882, 884 (Ga. 1986).8 This canon of

construction prevents the accidental creation of property interests in the “strips and gores” of land

located between the edge of a parcel and the center of the road, railroad right-of-way, or stream

that bounds the parcel, so that unproductive and valueless strips are not held by “detached

ownership.” Id. (quoting Johnson v. Arnold, 18 S.E. 370, 372 (Ga. 1893)). As the Supreme Court

of Georgia has recognized:

The rule avoids the undesirable result of having long, narrow strips of land owned

by people other than the adjacent landowner. Pindar asserts that this rule of

construction also should govern the construction of deeds that designate a railroad

right-of-way as a boundary. This Court has, in fact, already applied it to language

in a will to determine title to an abandoned railroad right-of-way. We now adopt

this rule for use in construing deeds that have as a boundary a railroad right-of-way.

Fambro was decided by the Supreme Court of Georgia, the state’s highest appellate court.

The Supreme Court of Georgia was created in 1835. See Michael B. Terry, Symposium Article:

Historical Antecedents of Challenges Facing the Georgia Appellate Courts, 30 Ga. St. U. L. Rev.

965, 968 (2014). A lower appellate court, the Court of Appeals of Georgia, was created in 1906,

but the Supreme Court of Georgia could not review its decisions until 1916. Id. at 969-70.

Descendants of Bulloch, Bussey & Co. v. Fowler, 475 S.E.2d 587, 589 (Ga. 1996).

Plaintiffs argue that the Fambro court “emphatically embrace[d] the strips-and-gores

doctrine.” Pls.’ Mot. Summ. J. 15. While the “strips and gores doctrine” is alive and well in

Georgia, the Fambro court did not apply the “strips and gores doctrine” to determine the nature of

the property interest in the strip of contested land. In Fambro, the parties did not dispute that the

railroad’s right-of-way had reverted to the grantees in fee simple, and the Supreme Court of

Georgia merely used the “strips and gores doctrine” to aid in determining the terminus of that fee

interest, ultimately concluding it was the centerline of the right-of-way. 348 S.E.2d at 884. The

“strips and gores doctrine” does not aid in ascertaining what property interest was conveyed; the

doctrine only illuminates the boundary of the property interest granted.

The Deeds at Issue

Plaintiffs’ claims in this case can be divided into three categories: the MGAR form deeds,

the modified MGAR form deeds, and the Porterdale spur form deeds.9

The MGAR Form Deeds

In construing deeds, the Court must examine these instruments in light of the Georgia

statutes and common law at the time that the deeds were executed. Preseault II, 100 F.3d at 1534;

Hardy, 127 Fed. Cl. at 8. Twenty-three deeds at issue in this case are preprinted forms that MGAR

prepared and contain language that is substantively identical to that of the deed signed by S. B.

Mixon in 1891.10 Both the MGAR form deeds and the modified MGAR form deeds are listed in

Appendix B. The Mixon deed,11 a typical MGAR form deed, states:

No 40

S.61

Right of Way Deed

From S.B. Mixon

Middle Georgia and Atlantic Railway Co.

Georgia, Newton County

Plaintiffs also discuss in their papers the Henderson quitclaim deed and the Samuel Johnson

Condemnation. However, Plaintiffs did not associate the Henderson quitclaim deed with any

landowner’s claims in their papers and do not mention this deed in the updated chart of claims the

parties filed on February 17, 2017. As such, the Court does not analyze the Henderson deed. The

Court considers the Samuel Johnson Condemnation in the context of MGAR deeds that the parties

agree convey easements.

Eight additional deeds, described as modified MGAR form deeds, are variations on the

preprinted forms and discussed separately below.

Italics denote typewritten text, and regular font denotes handwriting. This tracks Plaintiffs’

transcription of the deeds.

Left for record at 10 am 1st day of

June, 1891 and recorded in

Book X folio 392-393. 16th

Day of June 1891.

James B. Davis, Clerk

Right of Way Deed

Georgia, Newton County

This indenture witnesseth: that the undersigned Mrs. S.B. Mixon has

bargain, sold and conveyed to the MIDDLE GEORGIA & ATLANTIC RAILWAY

COMPANY, a corporation, of said State, the following property: a strip of land

situated in the 462nd District of Newton County, twenty five feet wide, the same

being twelve and a half feed [sic] on each side the centre line of said Railroad, for

a right of way of said Railroad, or for any other use in the discretion of said

Company, and more particularly described as follows:

Along the line of recent survey made by said Middle Georgia & Atlantic

Railway Company.

The Consideration of this Deed is the sum of two hundred and fifty dollars

paid by said Company to the undersigned before execution of these presents.

To have and to hold the said described land, with its members and

appurtenances unto the said Middle Georgia & Atlantic Railway Company, its

successors and assigns, forever. And the said Mrs. S.B. Mixon will forever warrant

and defend the title hereby conveyed to the said Railroad Company against any and

every person whatsoever.

In witness whereof, the said Mrs. S.B. Mixon has hereunto set her hand and

affixed her seal, and delivered these presents, this the__ day of April, 1890.

Signed, sealed and delivered in presence of:

- S.O. Wright

- GMT Besard JP

- Mrs. S.B. Mixon [L.S.]

Ref. No. 40

DEED

From

S.B. Mixon

Middle Ga & A.Ry Co.

Dated

April 1890

Newton County

462 G.M. District

Lot No.

Recorded June 16, 1892

Book X Folio 392-93

Description of Conveyance in Brief:

Right of way 25 feet

12 and ½ feet on each side

I judge to be in the

City of Covington

Joint Not. Transcribed Conveyances Ex. 1, at 10 (emphasis added).

According to Plaintiffs, the Mixon deed and the substantially similar MGAR form deeds

granted the railroad an easement limited to the operation of a railroad, and once that operation

ceased, ownership reverted to Plaintiffs in fee. Plaintiffs point to the following features of these

MGAR form deeds to argue that these deeds gave the railroad an easement:

 The instruments were described as “Right Of Way deeds.”

 The purpose of the grants was stated to be “for a right of way of said railroad.”

 Some deeds described the location of the right-of-way as passing “through” or

“across” the grantor’s land.

 The deeds were prepared by MGAR and thus should be construed against the

drafter.

 Some deeds recited nominal consideration.

Pls.’ Mot. Summ. J. 18.

Defendant focuses on the following elements to argue that the MGAR form deeds

conveyed a fee simple interest in the railroad corridor:

 The habendum clause stated that the railroad and its “successors and assigns” were to

have and to hold this land “forever.”

 The deeds stated that they bargained, sold, and conveyed a “strip of land” rather than a

right-of-way.

 The description of the strip of land stated that it was for a right-of-way of the railroad,

or for “any other use” in the discretion of the railroad.

 The grantor would “forever warrant and defend the title hereby conveyed” to the

railroad company.

 Many deeds recited substantial consideration, and the use of nominal consideration in

some instances was not determinative under Georgia law.

Def.’s Mot. Summ. J. 21, 24-25.

In Presault II, the Court concluded that the conveyances must be interpreted considering

the state statute and the fact that the railroad exercised its eminent domain power prior to executing

the deeds. Preseault II, 100 F.3d at 1354-55, 1357. The Federal Circuit explained:

The references to the purposes of the Railroad, and to the provisions of the Act

incorporating it, are to 1898 Vermont Acts No. 160, entitled “An Act to Incorporate

the Rutland-Canadian Railroad Company,” approved November 4, 1898. That Act

provided that certain named individuals

constituted and created a body politic and corporate by the name of the

“Rutland-Canadian Railroad Company,” for the purpose and with the right

of constructing, maintaining and operating a railroad for public use in the

conveyance of persons and property by the power of steam or otherwise . .

. . Said Corporation shall have and enjoy the right of eminent domain . . .

[and] may . . . take . . . such real and personal estate as is necessary or proper

in the judgment of such corporation, for the construction, maintenance and

accommodation of such railroad . . . as the purposes of the corporation may

require . . . .

1898 Vt. Acts No. 160, § 1. The Act goes on to state that the corporation shall have

all privileges and rights given by the general law to railroad companies for

acquiring title and possession to property covered by its location.

* * *

On balance it would seem that, consistent with the view expressed in Hill, the

[grant] retained its eminent domain flavor, and the railroad acquired only that which

it needed, an easement for its roadway. Nothing the Government points to or that

we can find in the later cases would seem to undermine that view of the case; the

trial court’s conclusion that the estate conveyed was an easement is affirmed.

Id. at 1534-35, 1537 (alterations in original) (internal citation omitted). In the referenced case,

Hill v. Western Vermont Railroad Co., the Supreme Court of Vermont found that where a railroad

acquires land, either through eminent domain or by purchase from the landowner, “there is this

implied limitation . . . that the company will take only so much land or estate therein as is necessary

for their public purposes.” 32 Vt. 68, 76 (1859).

Here, as in Preseault II, the governing state statute strongly supports an interpretation that

the MGAR form conveyances granted the railroad an easement, not a fee simple. Section 1689(i)

of the Georgia Code provided: