Flying S. Land Company v. United States

Nos. 15-1252L, 15-1253L, 15-1268L

Filed: April 10, 2018

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

*

JOHN ARNOLD, et al., *

FLYING S. LAND CO., et al., *

*

JOE L. DAWSON, et al., *

* Fifth Amendment Taking; Rails to

Plaintiffs, * Trails; Fee Simple; Easement; Deed

v. * Interpretation; Adjacency; Motion to

* Strike.

UNITED STATES, *

*

Defendant. *

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

R. Deryl Edwards, Law Offices of R. Deryl Edwards, Joplin, MO, for plaintiffs in

Arnold, et al. v. United States, Case No. 15-1252L.

Thomas S. Stewart, Stewart, Ward & McCulley, LLC, Kansas City, MO, for

plaintiffs in Flying S. Land Co., et al. v. United States, Case No. 15-1253L. With him was

Elizabeth G. McCulley, Stewart, Ward & McCulley, LLC, Kansas City, MO and Steven

M. Wald and Michael Smith, Stewart, Ward & McCulley, LLC, St. Louis, MO.

Megan S. Largent, Arent Fox, LLP, Clayton, MO, for plaintiffs in Dawson, et al. v.

United States, Case No. 15-1268L. With her was Mark F. Hearne, Lindsay S.C. Brinton,

and Stephen S. Davis, Arent Fox, LLP, Washington, D.C.

Davené D. Walker, Trial Attorney, Natural Resources Section, Environment and

Natural Resources Division, United States Department of Justice, Washington, D.C., for

defendant. With her was Jeffrey H. Wood, Acting Assistant Attorney General,

Environment and Natural Resources Division, Washington, D.C.

OPINION

HORN, J.

In these Rails-to-Trails cases, plaintiffs are landowners in Kansas and Nebraska

who allege that they are entitled to receive just compensation under the Fifth Amendment

to the United States Constitution because the United States government allegedly

effected takings of their reversionary property interests through operation of the National

Trails System Act, 16 U.S.C. § 1241 et seq. (2012) (the Trails Act). Plaintiffs allege that

when the United States Surface Transportation Board (STB) issued a Notice of Interim

Trail Use (NITU) on October 22, 2015, related to the railroad line allegedly adjacent and

near to plaintiffs’ property, defendant preempted plaintiffs’ state-law right to regain full,

unencumbered title to their property. Although plaintiffs’ claims in all three cases relate to

the same railroad line in Harlan County, Nebraska, and Norton, Decatur, and Phillips

Counties, Kansas, plaintiffs filed their takings claims as three separate cases,

represented by three separate counsels of record, in the United States Court of Federal

Claims. The cases, which each include multiple types of plaintiffs, are captioned as John

Arnold, et al. v. United States, No. 15-1252L (Arnold), 1 Flying S. Land Co., et al. v. United

1The plaintiffs in Arnold are as follows: John Arnold and Susan Bolek, B & D Farm, LLC

(B & D Farm), Mark and Shayla Bailey, H. Drake and Karen Gebhard, Cecilia (Griffin)

Hillebrand, Jackson Irrevocable Farm Trust, Lee Martin Revocable Trust, Lee Martin,

Bernice Martin, Harold and Kristelle Mizell, Rodney and Tonda Ross, Robert Strevey,

Ricky Temple, L & S Tubbs Family, L.P. (L & S Tubbs Family), John C. and Joann Tweed

Trusts, Edwin and Phyllis Yeater, Ivan and Cathy Bohl Living Trust, and Morlock

Children’s Trust. Counsel of record for the Arnold plaintiffs is R. Deryl Edwards of the Law

Offices of R. Deryl Edwards.

At the beginning of this litigation, Arnold plaintiffs B & D Farm, LLC, was pursuing a

takings claim for two parcels, parcel numbers 136-14-0-00-00-001-00-0 and 136-14-0-

00-00-002-00-0, as was H. Kent and Diana Euhus Living Trusts, parcel numbers 141-01-

0-30-12-011 and 141-01-0-30-12-012. Similarly, Arnold plaintiffs Royce and Vicky Leitner

were identified in the complaint and alleged that the government effected a temporary

taking of their property interest.

Subsequently, plaintiffs in Arnold voluntarily moved to dismiss the claim for B & D Farm,

LLC parcel number 136-14-0-00-00-001-00-0, as well as the claim for Royce and Vicky

Leitner, on July 12, 2017, which the court granted, without prejudice, on August 16, 2017.

On January 4, 2018, plaintiffs in Arnold voluntarily moved to dismiss the two claims of H.

Kent and Diana Euhus Living Trusts, which the court granted, without prejudice, on

January 10, 2018.

2

States, No. 15-1253L (Flying S. Land Co.), 2 and Joe L. Dawson, et al. v. United States,

No. 15-1268L (Dawson). 3

2 The plaintiffs in Flying S. Land Co. are as follows: Flying S. Land Company, Flying S.

Partnership, Jonathan and Karen Cozad, Dale and Lenora Soderland, William C. and

Bertha G. Rea, Oberlin Concrete Co., Judith E. Nelson, Jerry G. and Connie K. Cox, J &

C Partnership LP, James and Janice Bricker, Clayton and Catherine Cox, Garth Gebhard,

Paul and Tammy Vincent, James Holterman, and Orville & Pauline Holterman Revocable

Trust, Sauvage Gas Service, Inc., Culbertson Farms, LLC, Silverstone & Dake’s Canal,

Inc., Dolores M. Koerperich Revocable Living Trust, c/o Dolores M. Koerperich, Gerry N.

and Theresa M. Tally, Perry and Ila Mae Schelling, Leo and Carolyn Zodrow, Edward

Braun, Cecil and Lavon Wright, GRS Revocable Trust, Craig E. Ingram and Genie L.

Ingram Living Trusts, AG Valley Cooperative, Arnold K. Graham, Gilbert T. Graham,

Gayle Mourin, Joan G. Poulus, and Richard and Robert McChesney. Counsel of record

for the Flying S. Land Co. plaintiffs is Thomas S. Stewart of Stewart, Wald & McCulley

LLC.

At the time the complaint was filed in Flying S. Land Co., the Edna M. Boettger Trust was

identified as a plaintiff in the case, however, at plaintiffs’ request, the court dismissed with

prejudice the claim of the Edna M. Boettger trust on January 24, 2017. Kevin L. Tubbs

Living Trust c/o Kevin L. and Miriam L. Ostmeyer Tubbs also was identified as a plaintiff

in the complaint filed in Flying S. Land Co. On January 12, 2018, plaintiffs in Flying S.

Land Co. moved to voluntarily dismiss the claim of Kevin L. Tubbs Living Trust c/o Kevin

L. Tubbs and Miriam L. Ostmeyer Tubbs, which the court granted, without prejudice, on

February 7, 2018.

Additionally, Flying S. Land Co. plaintiffs have identified plaintiffs Arnold K. Graham,

Gilbert T. Graham, Gayle Mourin, and Joan G. Poulus (Arnold K. Graham, et al.) as the

owners of parcel 074-059-31-0-00-00-001.00-0. Flying S. Land Co. plaintiffs have

identified plaintiff Arnold K. Graham as the sole owner of parcel 074-059-31-0-00-00-

004.00-0.

3 The plaintiffs in Dawson are as follows: Joe L. Dawson, Conrad C. Cox and Mary R.

Cox, trustees of the Conrad C. Cox Trust No. 1 and the Mary R. Cox Trust No. 1, Lloyd

E. and Pamela Y. Edgett, G & M Properties, LP (G & M Properties), Bruce G. Guinn, Jr.,

Duane R. and Darlene McEwen, M. Lee and Angela Juenemann, trustees of the M. Lee

Juenemann Living Trust and Angela Juenemann Living Trust (M. Lee and Angela

Juenemann), Shirley Kats and Derek T. Kats, trustees of the Shirley Kats Revocable Trust

and the Derek Kats Revocable Trust, Rosemary L. Mathes, Duane R. Mathes and

Darlene McEwen, Carol K. Ross and Kay L. Lee, trustees of the Carol K. Ross Trust No.

1 (Carol K. Ross and Kay L. Lee), Linda J. Tomasch, John E. Bremer, David G. Bremer,

and Larry L. and Iris L. Smith, trustees of the Larry L. Smith and Iris L. Smith Revocable

Living Trust. Counsel of record for the Dawson plaintiffs is Meghan S. Largent of Arent

Fox, LLP.

At the time plaintiffs in Dawson initiated Case No. 15-1268L, the complaint identified as

plaintiffs Eric Brown, trustee for the Ackerman Trust, Mark and Kathryn Christensen,

3

FINDINGS OF FACT

The Nebraska, Kansas & Colorado Railway (NKCR) previously operated a railroad

line that extended, in relevant part, approximately 57.31 miles through Harlan County,

Nebraska, and Norton, Decatur, and Phillips Counties in Kansas. Plaintiffs are

landowners in Harlan County, Nebraska, and Norton, Decatur, and Phillips Counties,

Kansas.

On May 14, 2015, NKCR proposed to the STB its intent to abandon 57.31 miles of

the railroad line through Nebraska and Kansas, specifically (1) from milepost 3.35 near

Orleans, Nebraska to milepost 29.84 at Almena, Kansas; (2) from milepost 47.23 at

Reager, Kansas to milepost 78.05 at Oberlin, Kansas; and (3) the Norton Spur in Norton,

Kansas. The railroad formalized its proposed abandonment of these segments on June

12, 2015, when it filed a verified Notice of Exemption with the STB. In its Notice of

Exemption, the NKCR certified that no traffic had been handled over the railroad line

segments for more than two years. The STB issued an abandonment exemption on

August 7, 2015, giving the railroad until August 2016 to consummate abandonment.

Subsequently, on September 2, 2015, Sunflower Rails-to-Trails Conservancy (Sunflower)

filed a statement of willingness to assume financial responsibility over the portion of the

rail line that NKCR sought to abandon. On September 14, 2015, Sunflower filed a request

with the STB for trail use over the railroad segments that NKCR had proposed for

Robert Duane, Leanna Henry, and Stacy A. Lambert, Stephen and Rhonda Mees, and

Christina and Nye Pelton. Plaintiffs moved to voluntarily dismiss these plaintiffs, without

prejudice, on July 28, 2017, and the court granted the motion on August 16, 2017.

Defendant originally disputed whether Dawson plaintiff Rosemary L. Mathes was the sole

owner of parcel 069-132-03-0-00-03-001-00-0-01. On July 20, 2017, Dawson plaintiffs

joined Dawson plaintiffs Duane and Darlene McEwen to Rosemary L. Mathes’ claim in its

Fifth Amended Complaint and also asserted a separate claim by Duane and Darlene

McEwen against defendant. Plaintiffs submitted to the court an affidavit of equitable

interest filed with the Norton County Recorder of Deeds’ Office by Duane and Darlene

McEwen in June 2014, which indicated that the McEwens and Rosemary L. Mathes had

entered into an agreement for the purchase and sale of real estate. The agreement

provided the Rosemary L. Mathes was the fee owner of tract one in parcel 069-132-03-

0-00-03-001-00-0-01, subject to the McEwens’ equitable interest. Additionally, plaintiffs

submitted to the court a joint tenancy warranty deed entered into by Rosemary L. Mathes

and Duane and Darlene McEwen on June 13, 2014. The joint tenancy warranty deed

conveyed to the McEwens fee interest in tract two of parcel 069-132-03-0-00-03-001-00-

0-01. Defendant has not submitted any evidence to the court disputing the interest of

Dawson plaintiffs Rosemary L. Mathes and Duane and Darlene McEwen in parcel 069-

132-03-0-00-03-001-00-0-01 and states “there is also no dispute as to whether the

remaining Plaintiffs owned their properties on the date that the STB issued the NITU” in

its motion for summary judgment filed in Dawson on August 18, 2017. For purposes of

clarity, the court refers to the joined claim of Rosemary L. Mathes and Duane and Darlene

McEwen as “Rosemary L. Mathes” and to the McEwens’ separate claim as “Duane and

Darlene McEwen.”

4

abandonment. NKCR filed a notice on September 24, 2015 that it was willing to negotiate

with Sunflower concerning the rail line.

On October 22, 2015, the STB issued a NITU, which invoked Section 1247(d) of

the Trails Act Amendment of 1983, 16 U.S.C. § 1247(d), and authorized the railroad to

negotiate a trail use agreement with Sunflower. Although the NITU was originally for a

period of 180 days, and initially expired on April 19, 2016, Sunflower requested, and

NKCR did not oppose, an extension of the negotiation period. The STB issued a decision

on April 14, 2016, extending the negotiation period until October 16, 2016. Thereafter,

Sunflower requested, but NKCR opposed, a second extension. The STB did not grant

any further extensions, and the NITU expired on October 16, 2016. On November 17,

2016, the STB issued a decision providing that if NKCR chose to abandon its rail line, it

must file a notice of consummation by December 15, 2016. On December 14, 2016,

NKCR requested an extension of its consummation deadline to March 15, 2017, and the

STB granted NKCR’s request on December 15, 2016. NKCR requested another

extension of its consummation deadline on February 16, 2017, which the STB granted on

March 3, 2017, thereby extending NKCR’s deadline to consummate abandonment of the

rail line to September 11, 2017. On September 11, 2017, the STB granted NKCR’s

request to extend the deadline for NKCR to consummate its abandonment of the rail line

from September 11, 2017 to March 1, 2018. NKCR submitted an additional extension of

time to consummate abandonment on February 23, 2018, and, on February 28, 2018, the

STB granted NKCR an extension of time until March 1, 2019 to consummate

abandonment of the railroad corridor. NKCR and Sunflower have not reached a trail use

agreement, and, as of the date of this opinion, NKCR has not filed a notice of

consummation of abandonment.

The parties in Arnold, Dawson, and Flying S. Land Co. have been unable to reach

stipulations regarding title issues, including fee or easement, as well as issues of

adjacency.

Ownership Disputes

In Flying S. Land Co., the parties dispute ownership with regard to plaintiff United

Methodist Church. Defendant contends that Flying S. Land Co. plaintiff United Methodist

Church has not presented adequate evidence to establish its ownership of the property

at issue on October 22, 2015, the date the NITU was issued. Plaintiffs allege that United

Methodist Church acquired the property at issue upon the death of the previous owner,

Loren Gill Sharp. According to plaintiffs, Isiah Sharp devised the property to his son, Loren

Gill Sharp, and plaintiffs argue that in probate documents submitted to the court, Isiah

Sharp intended to convey the property to Loren Gill Sharp, and, if Loren Gill Sharp did

not have children, then the property would pass to the Methodist Episcopal Church at

Norcatur, Kansas, upon the death of Loren Gill Sharp. Plaintiffs submit that Loren Gill

Sharp died without children on March 8, 1960, and, therefore, title to the property was

conveyed to United Methodist Church. In response, defendant argues that, even if Loren

Gill Sharp died without children, plaintiffs have not established that Flying S. Land Co.

plaintiff United Methodist Church ever acquired title to the property.

5

Adjacency Disputes

The parties have stipulated to many of the adjacency issues. The parties, however,

dispute whether the following plaintiffs’ properties are adjacent to the portion of the

railroad corridor affected by the NITU: Arnold plaintiffs Mark and Shayla Bailey, Harold

and Kristelle Mizell parcel 107-36-0-10-04-001, 4 Rodney and Tonda Ross’ parcel 102-

03-0-00-00-004.00-0 on the south side of the railroad corridor, 5 and Robert Strevey;

Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcel 020-141-01-0-30-20-010.00-

0, 6 James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0, 7 Arnold K. Graham

parcel 074-059-31-0-00-00-004.00-0, 8 J & C Partnership, Garth Gebhard, and

Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-01-002.00-0 and 074-056-24-

4Arnold plaintiffs Harold and Kristelle Mizell own two land parcels at issue in this case,

parcels 107-36-0-10-04-001 and 069-151-01-0-00-00-003-00-0-01. Defendant only

challenges the adjacency of parcel 107-36-0-10-04-001.

5 Arnold plaintiffs Rodney and Tonda Ross own parcels on both the southern and northern

sides of the railroad corridor. Defendant asserts that the Ross parcel 069-101-02-0-00-

00-001-00-0-01 on the north side of the railroad corridor is bisected by a state highway,

but defendant agrees that Ross parcel 069-101-02-0-00-00-001-00-0-01 is adjacent to

the railroad corridor.

6As discussed below, Flying S. Land Co. plaintiffs Gerry and Theresa Tally own two

parcels at issue. Defendant only challenges the adjacency of parcel 020-141-01-0-30-20-

010.00-0.

7 Flying S. Land Co. plaintiffs James and Janice Bricker own three parcels at issue in

Flying S. Land Co., parcel 020-124-18-0-00-09-004.00-0, parcel 020-124-18-0-00-03-

001.00-0, and parcel 020-124-18-0-00-01-001.00-0. The parties only dispute the

adjacency of parcel 020-124-18-0-00-03-001.00-0. The parties have stipulated that parcel

020-124-18-0-00-09-004.00-0 and parcel 020-124-18-0-00-01-001.00-0 are adjacent to

the railroad corridor.

8 Arnold plaintiff Arnold K. Graham owns two parcels at issue in the above-captioned

case, parcel 074-059-31-0-00-00-001.00-0 and parcel 074-059-31-0-00-00-004.00-0.

The parties only dispute the adjacency of parcel 074-059-31-0-00-00-004.00-0. The

parties have stipulated parcel 074-059-31-0-00-00-001.00-0 is adjacent to a portion of the

railroad corridor.

6

0-20-01-001.00-0; 9 and Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel

740-056-13-0-00-00-005.00-0. 10

Kansas State Highway 383

Kansas State Highway 383 (K-383) runs between a segment of the railroad

corridor and the following plaintiffs’ properties: Arnold plaintiffs Rodney and Tonda Ross’

parcel 102-03-0-00-00-004.00-0 on the south side of the railroad corridor; Flying S. Land

Co. plaintiffs Arnold K. Graham parcel 074-059-31-0-00-00-004.00-0, J & C Partnership,

Garth Gebhard, and Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-01-

002.00-0 and 074-056-24-0-20-01-001.00-0; and Dawson plaintiffs Conrad C. and Mary

R. Cox Trusts No. 1 parcel 74-056-130-00-00-005-000. Plaintiffs contend that K-383 is

an easement on these plaintiffs’ properties, so these plaintiffs still own the underlying

servient estate and there are no adjacency issues. Defendant disagrees and argues that

the Kansas Department of Transportation (KDOT) owns the highway land in fee, so these

plaintiffs’ parcels are separated from the railroad right-of-way by the highway such that

they are not adjacent to the railroad.

Based on submissions from the parties, it appears that the Kansas State Highway

Commission acquired the land for a state highway in Phillips County, Kansas, through

condemnation proceedings, however, it is not clear if the land for the state highway

referenced in the records of the condemnation proceedings submitted to the court

became K-383. Excerpts from the condemnation proceeding document are reproduced

below, in pertinent part:

The State Highway Commission of the State of Kansas for its petition alleges:

1. That said State Highway Commission is a body corporate under the laws of

the State of Kansas, with powers to lay out, establish, open, construct,

improve and maintain highways for the State of Kansas.

9 Flying S. Land Co. plaintiff Silverstone & Dake’s Canal, Inc. owns six parcels of land at

issue in Flying S. Land Co., which are identified with different parcel numbers. Because

each parcel implicates different issues, throughout the court’s analysis, the court refers

to the number of the parcel at issue. The parties have stipulated Silverstone & Dake’s

Canal, Inc. parcels 074-056-24-0-20-02-001-00-0, 260014100, 360004300, and

380012500 are adjacent to a portion of the railroad corridor.

10 Dawson plaintiffs Conrad Cox and Mary Cox, Trustees of the Conrad Cox Trust No. 1

and the Mary Cox Trust No. 1, own two parcels at issue, parcels 74-044-180-0-00-00-03-

00-0 and 74-056-130-00-00-005-00-0. The parties only dispute the adjacency of parcel

74-056-130-00-00-005-00-0 to the railroad corridor. In their partial motion to dismiss,

counsel for Dawson plaintiffs indicates that plaintiffs are only moving for partial summary

judgment “for the portion of the Cox Trust property that abuts and underlies the portion of

the railroad right-of-way acquired by the Follett ‘Right of Way’ Deed,” however, plaintiffs

discuss both Cox Trust parcels at length in their briefs. As such, the court addresses

plaintiffs’ arguments with regard to both Cox Trust parcels.

7

2. That said State Highway Commission desires to acquire in the name of the

State of Kansas for the establishment, laying out, opening, construction,

maintenance, improvement and drainage of the State Highway System in

Phillips County, Kansas, certain lots and parcels of land situated in said

county owned and described as follows:

[legal descriptions of lots and sections]

3. That on the ___ day of _____, 193_, the State Highway Commission of

Kansas, in regular session, found that in order to establish, lay out, open,

construct, improve, maintain and drain the State Highway System in Phillips

County, Kansas, it is necessary to acquire for such purposes the lots and

parcels of land above described and ordered that said lots and parcels of

land be acquired by the State Highway Commission for the State of Kansas

by the exercise of the right of eminent domain, as provided by R.S. Supp.

1930, 68-413, as amended by Chapter 246, Laws of Kansas, 1931.

4. That the State Highway Commission of Kansas, under and by virtue of R.S.

Supp. 1930, 68-413, as amended by Chapter 246, Laws of Kansas, 1931,

has the power to acquire in the name of the State of Kansas said lots and

parcels of ground or interests or rights therein by the exercise of the right of

eminent domain in accordance with the provisions of article 1, chapter 26,

of the Revised Statutes of 1923.

WHEREFORE, the State Highway Commission of Kansas

respectfully petitions that the Hon. E.E. Kite, Judge of the District Court of

Phillips County, Kansas, to examine this petition and find that this petitioner

has the power of eminent domain that said lands are necessary to said

petitioner’s lawful corporate purposes in the establishment, laying out,

opening, construction, improving, maintenance and drainage of the State

Highway System of Kansas, and that he appoint three disinterested

householders of Phillips County, Kansas, to view and appraise such lands

and parcels of ground; that such appraisers be ordered to take an oath to

well and truthfully make such appraisal and to report their appraisal of each

tract in writing under oath to said Judge; that said report when so made be

ordered filed with the Clerk of the District Court; that said Judge order that

notice of the filing of this petition be given either personally or by registered

mail to the lienholders of record of said lots and parcels of land, as required

by Chapter 246, Laws of Kansas, 1931, and that when these proceedings

are ended a record of said proceedings be filed with the Register of Deeds

of said County and be recorded in the same manner as other conveyances

of title.

(capitalization in original). The legal descriptions of some of the parcels described in this

condemnation appear to correspond with the legal description of the property owned by

Flying S. Land Co. plaintiffs J & C Partnership and Silverstone & Dake’s Canal, Inc.

8

parcels 074-056-24-0-20-01-002.00-0 and 074-056-24-0-20-01-001.00-0 and Dawson

plaintiffs Conrad C. and Mary R. Cox Trusts No. 1, but it is unclear whether the

condemnation proceedings included the parcels owned by Arnold plaintiffs Rodney and

Tonda Ross’s parcel 102-03-0-00-00-004.00-0 and Flying S. Land Co. plaintiffs Arnold K.

Graham parcel 074-059-31-0-00-00-004.00-0 and Garth Gebhard. Additionally, although

it appears that the condemnation proceedings involved land for a state highway in Phillips

County, Kansas, it is unclear if that state highway was K-383.

A chart created and emailed to defendant’s counsel by an employee of KDOT

identifies the plaintiffs’ parcels that are allegedly separated from the railroad corridor by

K-383. This Kansas Department of Transportation, employee-crafted chart indicates that

it is KDOT’s position that it holds fee title for all but one of the portions of K-383 adjacent

to the plaintiffs’ parcels at issue in these cases. This chart states that KDOT obtained this

part of the state highway right-of-way by deed in 1935 and holds fee simple in these

parcels.

Miscellaneous Adjacency Issues

The parties also have been unable to agree upon miscellaneous adjacency issues

that are distinct from K-383 for the following plaintiffs: Arnold plaintiffs Mark and Shayla

Bailey, Robert Strevey, and Harold and Kristelle Mizell parcel 107-36-0-10-04-001; and

Flying S. Land Co. plaintiffs Gerry and Theresa Tally and James and Janice Bricker.

A road, W. Opelik Street, which is distinct from K-383, appears to run between the

parcel owned by Arnold plaintiffs Mark and Shayla Bailey and the railroad corridor.

Additionally, N. Decatur Street, which is also distinct from K-383, appears to run between

both Arnold plaintiffs Robert Strevey parcel 107-36-0-10-04-002 and Harold and Kristelle

Mizell parcel 107-36-0-10-04-001 and the railroad corridor.

The parties also dispute whether certain parcels belonging to Flying S. Land Co.

plaintiffs Gerry and Theresa Tally and James and Janice Bricker are adjacent to the

railroad corridor. Plaintiffs in Flying S. Land Co. hired an external firm to map these

parcels in relation to the railroad corridor. In reliance on information gathered by this

external firm, plaintiffs argue that Tally parcel 020-141-01-0-30-20-010.00-0 11 is “adjacent

to the railroad corridor for approximately 345 feet. There is no road or parcel in between

the parcel and the corridor on the eastern 345 feet of the parcel. The western portion of

this parcel is blocked by the Church . . . .” In submissions to the court, plaintiffs represent

that, “[t]he County reported that a former street, South Mill Street, was vacated and the

south half of the road sent to the Tally parcel and the north half of the road went to the

Church of Christ parcel.” Plaintiffs rely on a map they allegedly received from the Decatur

County Assessor’s office that appears, albeit blurrily, to state “VACATED STREET” above

11 As noted above, Gerry and Theresa Tally have two claims for two parcels of land. The

parties have stipulated that parcel 020-141-01-0-30-19-005.00-0 is adjacent to the

railroad corridor. The parcel discussed above with adjacency issues is parcel 020-141-

01-0-30-20-010.00-0.

9

the street at issue. (capitalization in original). There is no definitive evidence in the record

that South Mill Street, indeed, was vacated or that the road “went” to the Church of Christ

and Flying S. Land Co. plaintiffs Gerry and Theresa Tally upon being vacated, nor is there

a legal description of what the word “went” means in the submitted document.

With regard to Flying S. Land Co. plaintiffs James and Janice Bricker parcel 020-

124-18-0-00-03-001.00-0, 12 plaintiffs represent that it was separated from the railroad

corridor by a road, South Railroad Street. According to plaintiffs, South Railroad Street

does not appear to be “on the list of vacated streets,” provided by the Recorder of Deeds

in Decatur County, Kansas. Thus, although plaintiffs assert that James and Janice

Bricker’s parcel 020-124-18-0-00-03-001.00-0 is adjacent to the railroad corridor,

plaintiffs recognize that there is a road separating the Bricker parcel from the railroad

corridor.

Conveyances

NKCR acquired the railroad line at issue in these cases from its predecessors-in-

interest, the Burlington, Kansas & Southwestern Railroad Company and the Chicago,

Burlington & Quincy Railroad Company. The railroad, and its predecessors, obtained its

interests in the railroad corridor in five ways: condemnation proceedings, the General

Railroad Right-of-Way Act of 1875, 43 U.S.C. § 934 (1875), private “Right of Way Deeds,”

1950 deeds from the United States, and deeds from the Lincoln Land Company.

In and around 1885, the Burlington, Kansas & Southwestern Railroad Company,

one of NKCR’s predecessors-in-interest, began construction of a railroad line that

traveled through Kansas and Nebraska and acquired land needed to construct the

railroad by condemnation proceedings, the General Railroad Right–of–Way Act of 1875,

private “Right of Way Deeds,” and deeds from the Lincoln Land Company. In 1950, the

Chicago, Burlington & Quincy Railroad Company, which was the successor-in-interest to

the Burlington, Kansas & Southwestern Railroad Company, acquired a portion of the

railroad corridor through deeds entered into by the United States, the railroad company,

Phillips County, Kansas, and Harlan County, Nebraska, to facilitate the construction of

the Harlan County Reservoir and Dam. At the time, part of the railroad line interfered with

the construction of the Harlan County Reservoir and Dam, which was necessary to

address severe flooding in the region, and the Chicago, Burlington & Quincy Railroad

Company entered into an agreement with the United States to construct an alternate

railroad line around the reservoir, through which it obtained the right-of-way to bypass the

reservoir.

The parties have stipulated to the applicable conveyance documents from

plaintiffs’ predecessors-in-interest to the railroad company’s predecessor-in-interest for

all plaintiffs except Flying S. Land Co. plaintiffs Gerry N. and Theresa M. Tally parcels

020-141-01-0-30-20-010.00-0 and 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co.,

12Flying S. Land Co. plaintiffs James and Janice Bricker have three claims for three

parcels of land. The parties have stipulated that parcels 020-124-18-0-00-09-004.00-0

and 020-124-18-0-00-01-001.00-0 are adjacent to the railroad corridor.

10

James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-

001.00-0, and 020-124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-

056-23-0-40-02-002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone &

Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0.

Lincoln Land Company Deeds or Condemnation

The parties dispute the applicable source conveyances from plaintiffs’

predecessors-in-title to the railroad company’s predecessor-in-interest for the following

Flying S. Land Co. plaintiffs: Gerry and Theresa Tally parcels 020-141-01-0-30-20-

010.00-0 and 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co., James and Janice

Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-

124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-

002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s Canal,

Inc. parcel 074-056-24-0-20-01-002.00-0. Plaintiffs contend that the Burlington, Kansas

& Southwestern Railroad Company acquired the railroad corridor over these plaintiffs’

properties through condemnation proceedings in Decatur and Phillips Counties, Kansas.

According to documents submitted by plaintiffs, the Decatur County condemnation was

filed on June 30, 1885, “to lay out a . . . Right of Way for the Burlington, Kansas and

Southwestern Railroad Company . . . .” The Decatur County condemnation includes legal

descriptions of parcels that belonged to Gerry & Theresa Tally parcels 020-141-01-0-30-

20-010.00-0 and 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s predecessor-

in-title. The Phillips County condemnation was filed on June 30, 1885, for “laying off right

of way . . . for the Burlington, Kansas and South Western Rail Road.” The Phillips County

condemnation does not include legal descriptions matching the legal descriptions owned

by Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcels 020-141-01-0-30-20-

010.00-0 and 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co., James and Janice

Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-

124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-

002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s Canal,

Inc. parcel 074-056-24-0-20-01-002.00-0. Defendant, however, contends that the

applicable conveyances for these parcels are a series of deeds in which the Lincoln Land

Company granted the land to the railroad company in fee. Defendant also states that a

valuation chart created by the Interstate Commerce Commission (ICC) in 1917 “clearly

identifies four deeds from the Lincoln Land Company to the railroad as the source

conveyance” for the section of the railroad corridor that is adjacent to Flying S. Land Co.

plaintiffs Gerry and Theresa Tally parcels 020-141-01-0-30-20-010.00-0 and 020-141-01-

0-30-19-005.00-0, Oberlin Concrete Co., James and Janice Bricker parcels 020-124-18-

0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-124-18-0-00-01-001.00-0,

Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth Gebhard, Paul

and Tammy Vincent, and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-

002.00-0.

11

Lincoln Land Co. Deeds

The parties have stipulated that NKCR’s predecessor-in-interest obtained its

interest in the sections of the railroad corridor adjacent to Arnold plaintiffs John Arnold

and Susan Bolek parcel 107-36-0-20-02-009-00-0, Mark and Shayla Bailey parcel 107-

36-0-20-13-005, Harold and Kristelle Mizell parcel 107-36-0-10-04-0001, Robert Strevey,

Edwin and Phyllis Yeater through a Lincoln Land Company deed dated February 27,

1886, which is located at book 4, page 424 (Lincoln Land Company Deed 4-424). The

pertinent portion of Lincoln Land Company Deed 4-424 provides:

The Lincoln Land Company to Burlington Kansas & S W. R. R. Co.

In consideration of the payment of One ($1.00[)], Dollar, The Lincoln Land

Company hereby sells and conveys to The Burlington Kansas and South

Western Railroad Company, all of its, right, title, and interest in and to the

following described real estate in Decatur County, and State of Kansas to

wit: [legal description of lots and sections]

Also conveying to said Railroad Company the right of way for the railroad

One hundred feet in width being fifty (50) feet on each side of the center line

thereof and commencing at the North East end of the tract of land herein

before described and running with said center line to its intersection with the

north line of Section No. Thirty six (36) in Township No. Two (2) South, of

Range No. Twenty six (26) west, of the Sixth Principal Meridian. Also the

right of way as aforesaid, commencing at the South West end of said tract,

and running in a South Westerly direction with said Railroad, to intersect the

west line of said Section No. Thirty six (36), subject to the taxes of the year

– 1885 and thereafter. In Witness Whereof, The President of the Lincoln

Land Company has hereunto set his hand, and affixed the seal of the

Company this 29th day of February, 1886.

The parties also have stipulated that NKCR’s predecessor-in-interest obtained an

easement from Lincoln Land Company Deed 4-424 in the section of the railroad corridor

adjacent to Arnold plaintiffs John Arnold and Susan Bolek parcel 107-36-0-20-02-009-00-

0, Mark and Shayla Bailey parcel 107-36-0-20-13-005, Harold and Kristelle Mizell parcel

107-36-0-10-04-0001, and Robert Strevey.

The parties, however, dispute whether NKCR’s predecessor-in-interest obtained a

fee interest or an easement in the section of the railroad corridor adjacent to Arnold

plaintiffs Edwin and Phyllis Yeater’s parcels. Defendant asserts that only the first granting

clause in Lincoln Land Company Deed 4-424 applies to the land underlying the railroad

corridor adjacent to Arnold plaintiffs Edwin and Phyllis Yeater’s parcels. Defendant

contends that the language in the first granting clause of Lincoln Land Company Deed 4-

424 conveyed a fee simple to NKCR’s predecessor-in-interest because the first granting

clause did not contain any restrictions limiting the conveyance to an easement. Plaintiffs,

12

however, argue that Lincoln Land Company Deed 4-424 only conveyed an easement

because the land was conveyed “for the inadequate consideration of $1.”

Condemnation

According to submissions from the parties, the Burlington, Kansas & Southwestern

Railroad Company, NKCR’s predecessor-in-interest, acquired land needed to construct

the railroad, in part, through condemnation proceedings relevant to the following plaintiffs’

predecessors-in-interest: Arnold plaintiffs Susan Bolek and John Arnold parcel 107-35-0-

00-00-003-00-0, B&D Farm, LLC, 13 and Rodney and Tonda Ross parcel 102-03-0-00-00-

004.00-0; Flying S. Land Co. plaintiffs Dolores M. Koerperich Revocable Living Trust

parcel 020-133-05-0-00-00-004.00-0, Clem Koerperich parcels 020-133-05-0-00-00-

003.00-0 and 020-133-08-0-00-00-004.00-0, William C. and Bertha G. Rea, 14 Leo and

Carolyn Zodrow parcel 020-122-09-0-00-00-001.00-0, 15 Flying S. Land Company parcels

020-123-08-0-00-00-004.00-0, 020-122-04-0-00-00-002.00-0, and 020-121-01-0-00-00-

001.00-0, Flying S. Partnership, Dale and Lenora Soderland, Cecil and Lavon Wright, AG

Valley Cooperative, 16 Clayton and Catherine Cox, and J&C Partnership LP; and Dawson

plaintiffs G & M Properties, LP, 17 Linda J. Tomasch, John E. Bremer, and David G.

Bremer. The parties have stipulated that the Burlington, Kansas & Southwestern Railroad

Company obtained only an easement over the land acquired through condemnation that

is adjacent to the above-identified plaintiffs, pursuant to Kansas state law. 18 See Kan.

Gen. Stat. Ch. 23, § 81 (1868); Kan. Cent. Ry. Co. v. Allen, 22 Kan. 285 (1879).

13 The parties have stipulated that NKCR’s interest in the section of the railroad corridor

adjacent to Arnold plaintiff B&D Farm, LLC was obtained by both condemnation and Right

of Way deed.

14 The parties have stipulated that NKCR’s interest in the section of the railroad corridor

adjacent to Flying S. Land Co. plaintiffs William C. and Bertha G. Rea parcel 020-135-15-

0-00-00-003.00-0 was obtained by both condemnation and the General Right-of-Way Act

of 1875 discussed below.

15 The parties have stipulated that NKCR’s interest in the section of the railroad corridor

adjacent to Flying S. Land Co. plaintiffs Leo and Carolyn Zodrow parcel 020-122-09-0-

00-00-001.00-0 was obtained by both condemnation and the General Right-of-Way Act

of 1875.

16The parties have stipulated that NKCR’s interest in the section of the railroad corridor

adjacent to Flying S. Land Co. plaintiff AG Valley Cooperative parcel 069-151-02-0-00-

00-001.00-0-01 was obtained by both condemnation and Right of Way deed.

17The parties have stipulated that NKCR’s interest in the section of the railroad corridor

adjacent to Dawson plaintiff G & M Properties, LP parcel 069-068-34-0-00-00-003-00-0-

01 was obtained by both condemnation and Right of Way deed.

18In its cross-motion for summary judgment, defendant states that Arnold plaintiffs John

Arnold and Susan Bolek “are the only plaintiffs that have set forth sufficient evidence to

13

General Railroad Right–of–Way Act of 1875

In 1875, the United States Congress passed the General Railroad Right–of–Way

Act of 1875 to provide railroad companies “right[s] of way through the public lands of the

United States . . . .” 43 U.S.C. § 934 (1875). The Burlington, Kansas & Southwestern

Railroad Company acquired land needed to construct the railroad at issue, in part,

through the General Railroad Right–of–Way Act of 1875. The land acquired through the

General Railroad Right–of–Way Act of 1875 includes the following plaintiffs’ properties:

Flying S. Land Co. plaintiffs William C. and Bertha G. Rea, Leo and Carolyn Zodrow, and

GRS Revocable Trust. The parties have stipulated that the railroad company obtained

only an easement over the land acquired by the General Railroad Right–of–Way Act of

1875, pursuant to the United States Supreme Court’s ruling in United States v. Brandt,

which held that the General Railroad Right–of–Way Act of 1875 conveyed to railroads

only an easement. See United States v. Brandt, 134 S. Ct. 1257 (2014).

Right of Way Deeds

Additionally, the Burlington, Kansas & Southwestern Railroad Company acquired

land needed to construct the railroad, in part, through private “Right of Way” deeds

exchanged between the railroad company and the following plaintiffs’ predecessors-in-

title: Arnold plaintiffs B&D Farm, LLC, H. Drake and Karen Gebhard, Cecilia Hillebrand,

Jackson Irrevocable Farm Trust, Lee Martin Revocable Trust, Bernice Martin, Harold and

Kristelle Mizell parcel 069-151-01-0-00-00-003-00-0-01, Rodney and Tonda Ross parcel

069-101-02-0-00-00-001-00-0-01, Ricky Temple, L & S Tubbs Family, L.P., John C.

Tweed Trust and Joann Tweed Trust, Ivan and Cathy Bohl Living Trust, and Morlock

Children’s Trust; Flying S. Land Co. plaintiffs Dolores M. Koerperich Revocable Living

Trust parcel 020-133-05-0-00-00-001.00-0, Sauvage Gas Service, Flying S. Land

Company parcel 020-109-31-0-00-001.00-0, Judith E. Nelson, United Methodist Church,

Jonathan and Karen Cozad, 19 Richard and Robert McChesney, Edward Braun, Arnold K.

Graham, et al., Arnold K. Graham, Jerry G. and Connie K. Cox parcel 074-056-23-0-00-

00-003.00-0, Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-01-001.00-0 and

074-056-24-0-20-02-001.00-0, and Craig E. Ingram Living Trust and Genine L. Ingram

Living Trust; and Dawson plaintiffs Conrad C. and Mary R. Cox, 20 Carol K. Ross and Kay

establish that they have an ownership interest” in the segment of the railroad corridor

acquired by condemnation.

19Defendant originally disputed that Jonathan and Karen Cozad owned parcel 020-107-

25-0-00-00-001-00-0. In its motions for partial summary judgment, plaintiffs submitted to

the court deeds proving Jonathan and Karen Cozad owned parcel 020-107-25-0-00-00-

001-00-0 on the date the NITU was issued. Defendant did not address plaintiffs’ evidence,

nor did defendant submit to the court any evidence disputing plaintiffs’ evidence.

20The parties have stipulated that NKCR’s interest in the section of the railroad corridor

adjacent to Conrad C. and Mary R. Cox parcel 74-044-180-00-00-003-00-0 was obtained

by both Right of Way deed and a 1950 deed discussed below.

14

L. Lee, Shirley Kats Revocable Trust and Derek Kats Revocable Trust, Rosemary L.

Mathes, Duane R. and Darlene McEwen, M. Lee Juenemann and Angela Juenemann, G

& M Properties, LP, Joe L. Dawson, Bruce G. Guinn, Jr., Jason and Travis Dial, Larry L.

and Iris L. Smith, trustees of the Larry L. Smith and Iris L. Smith Revocable Living Trust,

and Lloyd E. and Pamela Y. Edgett. The general language of the deeds was consistent

from deed to deed. Only the specific details such as parcel description, grantor, and

consideration changed from deed to deed, none of which are pertinent to the issues in

this opinion.

In pertinent part, the Right of Way deeds state the following:

Know all men by these presents, that [grantor] of the County of Norton and

State of Kansas in consideration of the sum of Twenty (20) dollars, in hand

paid the receipt whereof is hereby acknowledged, do hereby grant, bargain,

sell and convey unto the Burlington, Kansas & Southwestern Railroad

Company, its successors and assigns, the following described Real Estate

in Norton, County, State of Kansas, to wit:

A Strip of ground 100 feet Wide, it being 50 feet on each side of the center

line of the Railroad of said Company, as located upon the [specific

description of lot and section].

To have & to hold the same with the said Railroad Company its successors

& assigns forever[.] And in addition to the right of way described above, I

hereby grant for myself & my heirs & assigns the right to said Railroad

Company to erect & maintain a snow fence for the term of four months each

& every year after the date of this instrument at any point within one hundred

feet on either or both sides of the centerline of the said Railroad as now

located on the above described land, said terms of four months to begin on

November 15th & end March 15th, each year.

All of the Right of Way deeds were entered into in 1885 or 1886 and ranged in

consideration from $1.00 to $150.00.

1950 Deeds

The Chicago, Burlington & Quincy Railroad Company, one of NKCR’s

predecessors-in-interest, acquired the land needed to reroute part of the railroad right-of-

way around the Harlan County Dam and Reservoir Project through two quitclaim deeds

from the United States in 1950. One of the quitclaim deeds was for land located in Harlan

County, Nebraska, and the other quitclaim deed was for land located in Phillips County,

Kansas. The land the railroad company acquired through the Phillips County, Kansas

deed with the United States includes the following plaintiffs’ properties: Flying S. Land

Co. plaintiffs Culbertson Farms, LLC, Perry and Ila Mae Schelling, James Holterman, and

Orville and Pauline Holterman Revocable Trust and Dawson plaintiffs Conrad C. and

Mary R. Cox. The land the railroad company acquired through the Harlan County,

15

Nebraska deed with the United States relates to Flying S. Land Co. plaintiff Silverstone &

Dake’s Canal, Inc. parcels 260014100, 360004300, 380012500.

The 1950 Phillips County, Kansas deed is reproduced, in pertinent part, below:

THIS DEED, Made this 17th day of November, 1950, by and between the

United States of America, acting by and through the Secretary of the Army,

pursuant to authority contained in Section 2 of the Act of 20 June 1938 (52

Stat. 804, U.S.C.A. 558b) as extended by Section 3 of the Act of 11 August

1939 (53 Stat. 1414, 33 U.S.C.A. 558b-1), party of the First Part and the

Chicago, Burlington & Quincy Railroad Company, a company organized

and existing under the laws of the State of Illinois, of the City of Chicago, in

the State of Illinois, party of the Second Part.

WHEREAS, The United States of America has undertaken the development

of the Harlan County Dam and Reservoir Project in Harlan County,

Nebraska; and

WHEREAS, The Chicago, Burlington and Quincy Railroad Company owned

and operated a branch line and railroad between Republican City,

Nebraska, and Long Island, Kansas, which interfered with the use of the

Dam and Reservoir area by the United States of America; and

WHEREAS, Because of such interference, it became necessary for the

United States of America to construct a railroad above the maximum

Reservoir pool level in lieu of that portion of such branch line within the

area to be inundated; and

WHEREAS, On the first day of August, 1947, an agreement was entered

into by and between the party of the First Part and the party of the Second

Part for the relocation, rearrangement, and alteration of facilities of the party

of the Second Part, which agreement provided further for the exchange of

properties of the party of the First Part and party of the Second Part; NOW

THEREFORE

KNOW ALL MEN BY THESE PRESENTS:

That the party of the First Part, for and in consideration of the covenants

and recitals contained in agreement heretofore referred to and the

exchange of properties as provided for therein does by these presents

remise, release and quitclaim unto the said party of the Second Part, its

successors and assigns, all its right, title and interest in and to the following

described property situated in the County of Phillips and State of Kansas,

to wit:

[specific description of lot and section and description of the metes and

bounds for a series of properties]

16

TO HAVE AND TO HOLD the above described premises unto the party of

the Second Part, its successors and assigns forever, with all appurtenances

thereunto belonging.

SUBJECT to the following reservation: All uranium, thorium, and all other

materials determined pursuant to Section 5(b)(1) of the Atomic Energy Act

of 1945 (60 Stat. 761) to be particularly essential to the production of

fissionable material, contained, in whatever concentration, in deposits in the

lands covered by this instrument are hereby reserved for the use of the

United States, together with the right of the United States through its

authorized agents or representatives at any time to enter upon the land and

prospect for, mine, and remove the same, making just compensation for

any damage or injury occasioned thereby. However, such land may be

used, and any rights otherwise acquired by this disposition may be

exercised, as if no reservation of such materials had been made; except

that, when such use results in the extraction of any such material from the

land in quantities which may not be transferred or delivered without a

license under the Atomic Energy Act of 1946, as it now exists or may

hereafter be amended, such material shall be the property of the United

States Atomic Energy Commission, and the Commission may require

delivery of such material to it by any possessor thereof after such material

has been separated as such from the ores in which it was contained. If the

Commission requires the delivery of such material to it, it shall pay to the

person mining or extracting the same, or to such person as the Commission

determines to be entitled thereto, such sums, including profits, as the

Commission deems fair and reasonable for the discovery, mining,

development, production, extraction, and other services performed with

respect to such material prior to such delivery but such payment shall not

include any amount on account of the value of such material before removal

from its place of deposit in nature. If the Commission does not require the

delivery of such material to it, the reservation hereby made shall be of no

further force or effect.

Acceptance by the Second Party of this conveyance shall not constitute a

waiver of any of its rights under contract No. W-23-028-ang-1560, dated

August 1, 1947, between the parties hereto and all of such rights are

expressly reserved to the Second Party.

IN WITNESS WHEREOF, the party of the First Part has caused these

presents to be executed in its name by the Secretary of the Army and the

Seal of the Department of the Army to be hereunto affixed the day and year

first above written.

(capitalization in original).

17

The Harlan County deed is identical to the Phillips County deed except it includes

the following language after the specific descriptions of the properties being conveyed:

together with all easements appurtenant thereto more particularly described

as follows:

A perpetual easement in connection with the construction, operation, and

maintenance of a railroad including the right to make and maintain drainage

improvements, to borrow and excavate thereon, to remove dirt and other

materials therefrom, and such other uses as may be necessary in

connection with said railroad construction, operation, and maintenance

upon, over, and across the following described lands:

[specific description of lot and section and description of the metes and

bounds for a series of properties]

Procedural History

Plaintiffs in Arnold and Flying S. Land Co. filed their initial complaints against

defendant in the United States Court of Federal Claims on October 26, 2015. 21 Plaintiffs

in Dawson filed their initial complaint against defendant in this court on October 27,

2015. 22 Plaintiffs in Arnold filed their first and final amended complaint on March 18, 2016;

plaintiffs in Flying S. Land Co. filed their third and final amended complaint on January

12, 2017; and plaintiffs in Dawson filed their fifth and final amended complaint on July 20,

2017. 23 The court issued an order on July 7, 2017, instructing plaintiffs each to file their

“partial motions for summary judgment regarding title issues, including fee or easement,

as well as adjacency and the centerline presumption.” 24 Subsequently, the plaintiffs in all

21 Arnold was originally assigned to Judge Braden. On January 12, 2016, Arnold was

reassigned to the undersigned for all further proceedings. Flying S. Land Co. was

originally assigned to the undersigned on October 26, 2015.

22Dawson was originally assigned to Judge Firestone. On November 12, 2015, Dawson

was reassigned to Judge Braden. Dawson was reassigned to the undersigned on January

12, 2016 for all further proceedings.

23 Plaintiffs in Flying S. Land Co. filed their first amended complaint on December 17,

2015 and their second amended complaint on May 20, 2016. Plaintiffs in Dawson filed

their first amended complaint on May 6, 2016, their second amended complaint on August

5, 2016, their third amended complaint on October 26, 2016, and their fourth amended

complaint on February 1, 2017.

24Although defendant initially appeared to indicate that it would dispute the application of

the centerline presumption to plaintiffs in these three cases, in its cross motions for partial

summary judgment, defendant states that “[t]he United States does not dispute that this

[centerline] presumption exists under Kansas and Nebraska law. . . .” As a result, the

parties do not dispute the theory of the centerline presumption in Kansas and Nebraska,

18

three cases filed their motions for partial summary judgment. These motions pertain to

adjacency and title issues, as well as fee or easement issues, as the court instructed.

Defendant responded to each motion and cross-moved for summary judgment in all three

cases. 25 Additionally, the court instructed the parties to file joint transcriptions of the

Lincoln Land Company deeds, as the Lincoln Land Company deeds originally submitted

to the court were illegible. The court also instructed the parties to submit several filings

addressing additional issues found within the parties’ partial motions for summary

judgments. The cross-motions in all three cases are fully briefed.

On November 17, 2017, following the Supreme Court of Kansas’ October 27, 2017

decision in Jenkins v. Chicago Pacific Corp., 403 P.3d 1213 (Kan. 2017), defendant filed

its notice of partial withdrawal of its cross-motion for summary judgment in Arnold, Flying

S. Land Co., and Dawson. In its notice, defendant stated the “Jenkins opinion expounds

upon and clarifies Kansas law regarding the construction of deeds to a railroad company

that have all of the attributes of a fee simple conveyance, but are nonetheless implied

under state law as conveying only an easement,” and that defendant had undertaken a

review of the deeds at issue in these cases. Defendant also indicated that it

“acknowledges that several of the deeds in this action are similar to the deed in Jenkins

that the Kansas Supreme Court ruled should be interpreted to convey only an easement

because the language implied a railroad use.” Accordingly, defendant withdrew its cross-

motions for summary judgment as to the issue of fee ownership of the railroad for the

but dispute whether certain plaintiffs are adjacent to the railroad corridor, such that the

centerline presumption would apply.

25 Plaintiffs in Flying S. Land Co. also moved for partial summary judgment on the issue

of whether NKCR abandoned the railroad corridor under Kansas law. In their motion for

partial summary judgment, Flying S. Land Co. plaintiffs state:

in the event the Court believes Plaintiffs have not sufficiently shown that the

railroad only held an easement for railroad purposes and trail use exceeds

the scope of the easement issue, i.e., in the event the Court believes that

the grant of the railroad’s easement was broad enough to encompass a

recreational trail, Plaintiffs now address the abandonment issue.

Flying S. Land Co. plaintiffs argue that “NKCR clearly abandoned the right-of-way.” As

the court’s analysis will show, the easements held by NKCR were limited to railroad

purposes. The court, therefore, does not address Flying S. Land Co. plaintiffs’ argument

regarding abandonment of the railroad corridor under Kansas law.

Additionally, in their motion for partial summary judgment, Flying S. Land Co. plaintiffs

argue “that the terms of the railroad’s easements were limited to use for railroad purposes,

i.e., authorization for recreational use went beyond the scope of the easement . . . .”

As discussed, the court’s opinion only addresses issues of title and adjacency.

Accordingly, the court does not address Flying S. Land Co. plaintiffs’ partial motion for

summary judgment regarding whether recreational trail use exceeds the scope of the

NKCR’s easements.

19

following plaintiffs: Arnold plaintiffs B&D Farm, LLC parcel 136-14-0-00-00-002-00-0, H.

Drake and Karen Gebhard, Cecilia Hillebrand, Jackson Irrevocable Farm Trust, Lee

Martin Revocable Trust, Bernice Martin, Harold & Kristelle Mizell parcel 069-151-01-0-

00-00-003-00-0-01, Rodney and Tonda Ross 069-101-02-0-00-00-001-00-0-01, Ricky

Temple, L&S Tubbs Family, L.P., John C. Tweed Trust and Joan Tweed Trust, Ivan and

Cathy Bohl Living Trust, and Morlock Children’s Trust, Flying S. Land Co. plaintiffs

Dolores M. Koerperich Revocable Living Trust parcel 020-133-05-0-00-00-001.00-0,

Sauvage Gas Service, Inc., James and Janice Bricker, Flying S Land Co. parcel 020-109-

31-0-00-00-001.00-0, Judith E. Nelson, United Methodist Church, Karen and Jonathan

Cozad, Richard and Robert McChesney, Edward Braun, Arnold K. Graham, et al., Arnold

K. Graham, Jerry G. and Connie K. Cox, Garth Gebhard, Paul and Tammy Vincent,

Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-02-001.00-0 and 074-056-24-

0-20-01-001.00-0, and Craig E. Ingram Living Trust & Genine L. Ingram Living Trust, and

Dawson plaintiffs Conrad C. and Mary C. Cox Trusts No. 1, 26 Carol K. Ross and Kay L.

Lee, Trustees of the Carol K. Ross Trust No. 1, Shirley Kats Revocable Trust and Derek

Kats Revocable Trust, Rosemary L. Mathes, M. Lee Juenemann and Angela Juenemann,

G & M Properties, LP, Joe L. Dawson, Bruce G. Guinn, Jr., Jason and Travis Dial, Larry

L. Smith and Iris L. Smith, Trustees of the Larry L. Smith and Iris L. Smith Revocable

Living Trust; and Lloyd E. and Pamela Y. Edgett. Defendant also submitted to this court

in each case a revised chart regarding title issues, which indicated defendant agreed that

NKCR only possessed an easement in the sections of the railroad corridor adjacent to

the plaintiffs identified in defendant’s November 17, 2017 notice. 27

DISCUSSION

The court considers the parties’ cross-motions for partial summary judgment.

RCFC 56 is similar to Rule 56 of the Federal Rules of Civil Procedure in language and

26 Dawson plaintiff Conrad C. and Mary R. Cox Trusts No. 1 owns two parcels at issue in

this case, parcels 74-044-180-00-00-003-00-0 and 74-056-130-00-00-005-00-0. NKCR’s

predecessor-in-interest acquired its interest in the land underlying the railroad corridor

adjacent to parcel 74-044-180-00-00-003-00-0 partially by private Right of Way deed and

partially by a 1950s deed from the United States. NKCR’s predecessor-in-interest

acquired its interest in the land underlying the railroad corridor adjacent to parcel 74-056-

130-00-00-005-00-0 entirely by private Right of Way deed. Defendant only withdrew its

cross-motion for summary judgment as to the issue of fee ownership for the sections of

the parcels that were obtained by Right of Way deed.

27 Subsequently, on February 23, 2018, defendant submitted a filing to the court that

stated “[a]fter reviewing the prior filings and exhibits, it appears that counsel for the United

States accidentally included Plaintiffs [Paul and Tammy] Vincent’s property in its

November 17, 2017 Notice of Partial Withdrawal of its Cross-Motion for Summary

Judgment.” (capitalization in original). Defendant stated that “the Court should interpret

that this deed [Lincoln Land Company Deed] K-488, which is the applicable source deed

for both Plaintiffs Vincent’s property and Silverstone & Dake’s Canal’s parcel number 074-

056-24-0-20-01-002.00-01, conveyed a fee interest to the railroad.” (capitalization in

original) (footnote omitted).

20

effect. Both rules provide that “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” RCFC 56(a) (2017); Fed. R. Civ. P. 56(a) (2017); see

also Alabama v. North Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S.

541, 549 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Adickes

v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d 1279,

1286 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Ladd v. United States,

713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349 (Fed.

Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012);

Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed.

Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620

F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United

States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010),

cert. denied, 564 U.S. 1004 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d

1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375,

1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283

(Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden

v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.

Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.

Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v.

United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315,

317 (2012); Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United

States, 100 Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610

(2011).

A fact is material if it will make a difference in the result of a case under the

governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott

Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;

Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.

Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or

unnecessary factual disputes do not preclude the entry of summary judgment. See

Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.

372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.

2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79

Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,

216 (1958), cert. denied, 361 U.S. 843 (1959), reh’g denied, 361 U.S. 941 (1960).

When reaching a summary judgment determination, the judge’s function is not to

weigh the evidence and determine the truth of the case presented, but to determine

whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.

at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United

States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts

do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,

118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,

455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99

21

Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick

Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);

Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.

2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether

the evidence presents a disagreement sufficient to require submission to fact finding, or

whether the issues presented are so one-sided that one party must prevail as a matter of

law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of

Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc

suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When

the record could not lead a rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust

v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,

586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),

reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d

1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.

Cir. 1996). In such cases, there is no need for the parties to undertake the time and

expense of a trial, and the moving party should prevail without further proceedings.

In appropriate cases, summary judgment:

saves the expense and time of a full trial when it is unnecessary. When the

material facts are adequately developed in the motion papers, a full trial is

useless. “Useless” in this context means that more evidence than is already

available in connection with the motion for summary judgment could not

reasonably be expected to change the result.

Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,

(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d

890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng’g,

Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to

deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can

ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).

Summary judgment, however, will not be granted if “the dispute about a material

fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return

a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see

also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g

and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &

Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied

(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179

F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451;

Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Grp., Inc.

v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party

produces sufficient evidence to raise a question as to the outcome of the case, then the

motion for summary judgment should be denied. Any doubt over factual issues must be

22

resolved in favor of the party opposing summary judgment, to whom the benefit of all

presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009);

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United

States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 562 U.S. 827 (2010);

Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001),

reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.

957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.

Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion

declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371

(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R.

Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.

at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences

are to be drawn in his favor.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)

(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas

Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20

Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-

67; Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807. “However, once a moving

party satisfies its initial burden, mere allegations of a genuine issue of material fact without

supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,

F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. at 247-48.

The initial burden on the party moving for summary judgment to produce evidence

showing the absence of a genuine issue of material fact may be discharged if the moving

party can demonstrate that there is an absence of evidence to support the nonmoving

party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &

Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown

Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed.

Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741

(Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),

reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en

banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,

1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807; RQ

Squared, LLC v. United States, 119 Fed. Cl. 751, 757-58 (2015), subsequent

determination, 129 Fed. Cl. 742 (2017), aff’d, 708 F. App’x 685 (Fed. Cir. 2018). If the

moving party makes such a showing, the burden shifts to the nonmoving party to

demonstrate that a genuine dispute regarding a material fact exists by presenting

evidence which establishes the existence of an element essential to its case upon which

it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322; see also

Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long

Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Fla. Power & Light Co. v.

United States, 375 F.3d 1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc.,

247 F.3d 1202, 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103,

1108 (Fed. Cir. 2000); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807;

Rasmuson v. United States, 109 Fed. Cl. 267, 271 (2013). However, “a non-movant is

required to provide opposing evidence under Rule 56(e) only if the moving party has

23

provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA,

Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006).

Even if both parties argue in favor of summary judgment and allege an absence of

genuine issues of material fact, the court is not relieved of its responsibility to determine

the appropriateness of summary disposition in a particular case, and it does not follow

that summary judgment should be granted to one side or the other. See Prineville Sawmill

Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.

v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts,

L.P. v. United States, 586 F.3d at 968-69; B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d

587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,

1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5 (9th Cir.

2000), cert. denied, 532 U.S. 942 (2001); Bubble Room, Inc. v. United States, 159 F.3d

553, 561 (Fed. Cir. 1998) (“The fact that both the parties have moved for summary

judgment does not mean that the court must grant summary judgment to one party or the

other.”), reh’g denied and en banc suggestion declined (Fed. Cir. 1999); Allstate Ins. Co.

v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey v. Del Labs., Inc., 118 F.3d

1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401

F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083 (1969); Rogers v. United

States, 90 Fed. Cl. 418, 427 (2009), subsequent determination, 93 Fed. Cl. 607 (2010),

aff’d, 814 F.3d 1299 (2015); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387

(2009), aff’d, 615 F.3d 1378, (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir.

2010), cert. denied, 564 U.S. 1004 (2011); St. Christopher Assocs., L.P. v. United States,

75 Fed. Cl. 1, 8 (2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v.

United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion

on its own merits, taking care to draw all reasonable inferences against the party whose

motion is under consideration, or, otherwise stated, in favor of the non-moving party. See

First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g

en banc denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d

1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed. Cir.),

reh’g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002);

Oswalt v. United States, 85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v.

United States, 71 Fed. Cl. 114, 119 (2006).

“Questions of law are particularly appropriate for summary judgment.” Oenga v.

United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d

1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]

because no material facts were disputed, many being stipulated, and the only disputed

issues were issues of law. Moreover, on each issue one party or the other is entitled to

judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d

1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law

may be decided on motion for summary judgment.”).

In the above-captioned cases plaintiffs allege that defendant effected a taking

under the Fifth Amendment to the United States Constitution through operation of the

Trails Act. The Takings Clause of the Fifth Amendment to the United States Constitution

24

provides in pertinent part: “nor shall private property be taken for public use without just

compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is

to prevent the government from “‘forcing some people alone to bear public burdens which,

in all fairness and justice, should be borne by the public as a whole.’” Palazzolo v. Rhode

Island, 533 U.S. 606, 618 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49

(1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

(2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska

2009); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24, reh’g

denied, 439 U.S. 883 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005); E.

Enters. v. Apfel, 524 U.S. 498, 522 (1998); Pumpelly v. Green Bay & Miss. Canal Co., 80

U.S. (13 Wall.) 166, 179 (1871) (citing to principles which establish that “private property

may be taken for public uses when public necessity or utility requires” and that there is a

“clear principle of natural equity that the individual whose property is thus sacrificed must

be indemnified”); Rose Acre Farm, Inc. v. United States, 559 F.3d 1260, 1266 (Fed. Cir.),

reh’g en banc denied (Fed. Cir. 2009), cert. denied, 559 U.S. 935 (2010); Janowsky v.

United States, 133 F.3d 888, 892 (Fed. Cir. 1998); Res. Invs., Inc. v. United States, 85

Fed. Cl. 447, 469-70 (2009).

“[A] claim for just compensation under the Takings Clause must be brought to the

Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker

Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. at 520 (citing

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984)); see also Acceptance Ins.

Cos. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007); Morris v. United States, 392

F.3d 1372, 1375 (Fed. Cir. 2004) (“Absent an express statutory grant of jurisdiction to the

contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over

takings claims for amounts greater than $10,000.”). The United States Supreme Court

has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within

the jurisdiction of the [United States Court of Federal Claims] to hear and determine.”

Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 12 (1990) (Preseault I) (quoting

United States v. Causby, 328 U.S. 256, 267 (1946)); see also Lion Raisins, Inc. v. United

States, 416 F.3d 1356, 1368 (Fed. Cir. 2005); Narramore v. United States, 960 F.2d 1048,

1052 (Fed. Cir. 1992); Hardy v. United States, 127 Fed. Cl. 1, 7 (2016); Perry v. United

States, 28 Fed. Cl. 82, 84 (1993).

To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that

the government took a private property interest for public use without just compensation.

See Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (stating

that the “‘classic taking’” is one in which the government directly appropriates private

property for its own use (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning

Agency, 535 U.S. 302, 324 (2002)), cert. denied, 136 S. Ct. 2461 (2016); Adams v. United

States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S. 811 (2005); Arbelaez

v. United States, 94 Fed. Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed. Cl. 157,

162 (2006). “The issue of whether a taking has occurred is a question of law based on

factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78

(Fed. Cir.), cert. denied, 555 U.S. 1045 (2008). The government must be operating in its

sovereign rather than in its proprietary capacity when it initiates a taking. See St.

Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed. Cir. 2008).

25

The United States Court of Appeals for the Federal Circuit has established a two-

part test to determine whether government actions amount to a taking of private property

under the Fifth Amendment. See Casitas Mun. Water Dist. v. United States, 708 F.3d

1340, 1348 (Fed. Cir. 2013); Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.

Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing M & J Coal

Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert. denied, 516 U.S. 808

(1995)). A court first determines whether a plaintiff possesses a cognizable property

interest in the subject of the alleged takings. See Casitas Mun. Water Dist. v. United

States, 708 F.3d at 1348; Jackson v. United States, 135 Fed. Cl. 436, 444 (2017) (citation

omitted). Then, the court must determine whether the government action is a

“‘compensable taking of that property interest.’” Huntleigh USA Corp v. United States, 525

F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).

To establish a taking, a plaintiff must have a legally cognizable property interest,

such as the right of possession, use, or disposal of the property. See Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing United States v.

Gen. Motors Corp., 323 U.S. 373 (1945)); Piszel v. United States, 833 F.3d 1366, 1374

(Fed. Cir. 2016), cert. denied, 138 S. Ct. 85 (2017); Rogers v. United States, 814 F.3d

1299, 1303 (Fed. Cir. 2015); Casitas Mun. Water Dist. v. United States, 708 F.3d at 1348;

CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed. Cir. 2010), cert. denied,

563 U.S. 989 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.),

reh’g denied and en banc suggestion denied (Fed. Cir. 2000), cert. denied, 532 U.S. 941

(2001). “‘It is axiomatic that only persons with a valid property interest at the time of the

taking are entitled to compensation.’” Am. Pelagic Fishing Co. v. United States, 379 F.3d

at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001), cert.

denied, 353 U.S. 1077 (2002); and citing Cavin v. United States, 956 F.2d 1131, 1134

(Fed. Cir. 1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a

legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing

Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d

1344, 1352 (Fed. Cir. 2003); and M & J Coal Co. v. United States, 47 F.3d at 1154). The

court does not address the second step “without first identifying a cognizable property

interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed. Cir.) (citing

Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States,

291 F.3d 1334, 1340 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2002), cert. denied, 537

U.S. 1112 (2003)), reh’g denied and reh’g en banc denied (Fed. Cir. 2005); see also

Balagna v. United States, 135 Fed. Cl. 16, 22 (2017), recons. denied, No. 14-21L, 2017

WL 5952123 (Fed. Cl. Dec. 1, 2017). Only if there is to be a next step, “‘after having

identified a valid property interest, the court must determine whether the governmental

action at issue amounted to a compensable taking of that property interest.’” Huntleigh

USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United

States, 379 F.3d at 1372); see also Casitas Mun. Water Dist. v. United States, 708 F.3d

at 1348.

The STB has authority to regulate most railroad lines in the United States. See 49

U.S.C. § 702 (2012). A railroad seeking to abandon any part of its railroad line must either

26

(1) file an application to abandon or (2) file a notice of exemption to abandon the line. See

49 U.S.C. § 10903 (2012); see also 49 C.F.R. § 1152.50 (2017). “If the STB approves a

standard abandonment application or grants an exemption and the railroad ceases

operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and

state law reversionary property interests, if any, take effect.” Caldwell v. United States,

391 F.3d 1226, 1228-29 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6-8), reh’g en

banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005).

“The Trails Act is designed to preserve railroad rights-of-way by converting them

into recreational trails.” Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir.), reh’g

denied, 684 F.3d 1295 (Fed. Cir. 2012). By operation of the Trails Act, the STB may issue

a NITU, “suspending exemption proceedings for 180 days to allow a third party to enter

into an agreement with the railroad to use the right-of-way as a recreational trail.” Barclay

v. United States, 443 F.3d 1368, 1371 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006),

cert. denied, 846 U.S. 1209 (2007). Section 8(d) of the Trails Act, codified at 16 U.S.C. §

1247(d), “allows a railroad to negotiate with a state, municipal, or private group (‘the trail

operator’) to assume financial responsibility for operating the railroad right of way as a

recreational trail.” See Bright v. United States, 603 F.3d 1273, 1275 (Fed. Cir.) (citing

Caldwell v. United States, 391 F.3d at 1229), reh’g and reh’g en banc denied (Fed. Cir.

2010). If the railroad and an authorized trail provider 28 reach an agreement, the NITU

extends indefinitely, and the corridor is railbanked, with interim trail use permitted. See

49 C.F.R. § 1152.29(d)(1)-(2) (2016) (“The NITU will indicate that interim trail use is

subject to future restoration of rail service . . . . Additionally, the NITU will provide that if

the sponsor intends to terminate interim trail use on all or any portion of the right-of-way

covered by the interim trail use agreement, it must send the [STB] a copy of the NITU and

request that it be vacated on a specific date.”); see also Biery v. United States, 753 F.3d

at 1285 (“If the railroad and the [Surface Transportation] Board reach agreement, the land

underlying the railway may be transferred to a trail operator (e.g., state, political

subdivision, or qualified private organization) for interim trail use.” (citing Citizens Against

Rails–to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir. 2001))); Caldwell

v. United States, 57 Fed. Cl. 193, 194 (2003) (“The term railbanking refers to the

‘preservation of railroad corridor for future rail use,’ while making the corridor available for

other activities.” (quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903

n.1 (8th Cir. 1997))), aff’d, 391 F.3d 1226 (Fed. Cir. 2004), reh’g en banc denied (Fed.

Cir.), cert. denied, 546 U.S. 826 (2005).

When the NITU extends indefinitely and the corridor is railbanked, the STB retains

jurisdiction and abandonment of the railroad corridor is blocked. See 16 U.S.C. § 1247(d)

(“[I]n the case of interim use of any established railroad rights-of-way pursuant to

donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if

such interim use is subject to restoration or reconstruction for railroad purposes, such

28 The Trails Act indicates that a trail provider may be “a State, political subdivision, or

qualified private organization [that] is prepared to assume full responsibility for

management of such rights-of-way and for any legal liability arising out of such transfer

or use, and for the payment of any and all taxes that may be levied or assessed against

such rights-of-way.” 16 U.S.C. § 1247(d).

27

interim use shall not be treated, for purposes of any law or rule of law, as an abandonment

of the use of such rights-of-way for railroad purposes.”); see also Rasmuson v. United

States, 807 F.3d 1343, 1344 (Fed. Cir. 2015) (“NITUs ‘preserve established railroad

rights-of-way for future reactivation of rail service’ and permit the railroad operator to

cease operation without legally abandoning any ‘rights-of-way for railroad purposes.’”

(quoting 16 U.S.C. § 1247(d))).

As described by the United States Court of Appeals for the Federal Circuit:

Thus, section 8(d) of the Trails Act prevents the operation of state laws that

would otherwise come into effect upon abandonment-property laws that

would “result in extinguishment of easements for railroad purposes and

reversion of rights of way to abutting landowners.” Rail Abandonments-Use

of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591,

1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original

easement granted to the railroad under state property law is not broad

enough to encompass a recreational trail. See Preseault II, 100 F.3d at

1552; see also Toews [v. United States], 376 F.3d at 1376.

Caldwell v. United States, 391 F.3d at 1229; see also Rogers v. United States, 814 F.3d

at 1303 (“As we have previously explained in other rails-to-trails cases, a taking, if any,

occurs when, pursuant to the Trails Act, the STB issues a Notice of Interim Trail Use

(‘NITU’) to suspend the abandonment of the rail line by a railroad and preserve it for future

active railroad use.” (citing Barclay v. United States, 443 F.3d at 1373)); BHL Props., LLC

v. United States, 135 Fed. Cl. 222, 227-28 (2017) (citing Caldwell v. United States, 391

F.3d at 1233).

The Federal Circuit has established a three-part inquiry to determine takings

liability in cases involving the conversion of railroad rights of way for recreational trail use

by means of 16 U.S.C. § 1247(d) of the Trails Act, as follows:

(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 v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (Preseault II). Phrased

differently, the Federal Circuit has also indicated:

the determinative issues for takings liability are (1) who owns the strip of

land involved, specifically, whether the railroad acquired only an easement

or obtained a fee simple estate; (2) if the railroad acquired only an

easement, were the terms of the easement limited to use for railroad

28

purposes, or did they include future use as a public recreational trail (scope

of the easement); and (3) even if the grant of the railroad’s easement was

broad enough to encompass a recreational trail, had this easement

terminated prior to the alleged taking so that the property owner at the time

held a fee simple unencumbered by the easement (abandonment of the

easement).

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

Preseault II, 100 F.3d at 1533).

According to the United States Court of Appeals for the Federal Circuit, “[i]t is

settled law that a Fifth Amendment taking occurs in Rails-to-Trails cases when

government action destroys state-defined property rights by converting a railway

easement to a recreational trail, if trail use is outside the scope of the original railway

easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010), reh’g and reh’g

en banc denied, 646 F.3d 910 (Fed. Cir. 2011); see also Rogers v. United States, 814

F.3d at 1303; Ellamae Phillips Co. v. United States, 564 F.3d at 1373. “It is the law-created

right to own private property, recognized and enforced by the Constitution, legislation,

and common law, that gives the owner an historically rooted expectation of

compensation.” Preseault II, 100 F.3d at 1540. The United States Court of Appeals for

the Federal Circuit in Preseault II also indicated

that power includes the power to preempt state-created property rights,

including the rights to possession of property when railroad easements

terminate. As Justice O’Connor succinctly pointed out in her concurring

opinion in Preseault I, however, having and exercising the power of

preemption is one thing; being free of the Constitutional obligation to pay

just compensation for the state-created rights thus destroyed is another.

Id. at 1537 (citing Preseault I, 494 U.S. at 22).

To determine the nature of the property interest at issue, the court looks to state

law. See Rogers v. United States, 814 F.3d at 1305 (“We analyze the property rights of

the parties in a rails-to-trails case under the relevant state law.”). The United States Court

of Appeals for the Federal Circuit, interpreting a takings claim for a railroad right-of-way,

stated that, “state law generally creates the property interest in a railroad right-of-way.”

Barclay v. United States, 443 F.3d at 1374 (citing Preseault I, 494 U.S. at 8, 16). In a

footnote on the same page, the United States Court of Appeals for the Federal Circuit

repeated, “[i]n Toews v. United States, 376 F.3d 1371 (Fed. Cir. 2004), we reiterated that

state law controls the basic issue of whether trail use is beyond the scope of the right-of-

way.” Barclay v. United States, 443 F.3d at 1374 n.4. “The nature of the interest conveyed

is determined according to the law of the state where the conveyance occurred. ‘State

law creates and defines the scope of the reversionary or other real property interests

affected by the ICC’s [Interstate Commerce Commission] action pursuant to Section 208

of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).’” Chevy

Chase Land Co. of Montgomery Cnty. v. United States, 37 Fed. Cl. 545, 565 (1997)

29

(quoting Preseault I, 494 U.S. at 20 (O’Connor, J., concurring) (citing Ruckelshaus v.

Monsanto Co., 467 U.S. at 1001)), aff’d, 230 F.3d 1375 (Fed. Cir. 1999), reh’g and reh’g

en banc denied (Fed. Cir.), cert. denied, 531 U.S. 957 (2000); see also Whispell Foreign

Cars, Inc. v. United States, 97 Fed. Cl. 324, 331 (“Whether an individual has a

compensable private property interest is determined by state law.”), amended after

recons. in part, 100 Fed. Cl. 529 (2011). Moreover, in Ruckelshaus v. Monsanto Co., 467

U.S. at 1001, the Supreme Court stated, “we are mindful of the basic axiom that

‘“[p]roperty interests . . . are not created by the Constitution. Rather, they are created and

their dimensions are defined by existing rules or understandings that stem from an

independent source such as state law.”’” (quoting Webb’s Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577

(1972))) (omission in original). In Oregon ex rel. State Land Board v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977), the United States Supreme Court stated that, “[u]nder

our federal system, property ownership is not governed by a general federal law, but

rather by the laws of the several States.” Id. at 378; see also Davies Warehouse Co. v.

Bowles, 321 U.S. 144, 155 (1944) (“The great body of law in this country which controls

acquisition, transmission, and transfer of property, and defines the rights of its owners in

relation to the state or to private parties, is found in the statutes and decisions of the

state.”).

As indicated above, the plaintiffs in Arnold, Flying S. Land Co., and Dawson have

moved for partial summary judgment regarding title issues, including fee or easement, as

well as adjacency and the centerline presumption. Defendant cross-moved for partial

summary judgment in its favor on all of the remaining plaintiffs in each of the three cases.

Plaintiffs in all three cases argue that there are no genuine disputes of material fact on

the issues presented in the cross-motions and that they are entitled to judgment as a

matter of law because they have shown that all plaintiffs owned land adjacent to the

railroad corridor on the date the NITU was issued and that the railroad only held

easements limited to railroad purposes over the relevant portions of the corridor.

Defendant agrees that there are no genuine disputes of material fact, however, it argues

that it is entitled to judgment as a matter of law because each plaintiff has failed to

establish ownership of the land on the date the NITU was issued, adjacency to the railroad

corridor, that the railroad held only an easement for railroad purposes, or ownership of

the servient estate underlying any of the portions of the railroad corridor over which the

railroad held only an easement. In this decision the court is only deciding title issues,

including fee or easement, as well as adjacency and the centerline presumption.

During the briefing period, the parties were ordered to submit brief filings explaining

what impact, if any, the STB’s extensions of time for NKCR to consummate abandonment

has on the claims pending before the court. Plaintiffs in Flying S. Land Co. and Dawson

assert that the STB’s order does not affect plaintiffs’ claims pending before the court and

argue that the government’s taking began with the STB’s issuance of the NITU on October

22, 2015. Defendant asserts that the STB’s granting of NKCR’s request for an extension

of time to consummate abandonment “has no impact on the claims before this court.”

Defendant argues that:

30

Plaintiffs’ takings claims are premised on the STB’s issuance of a NITU and

the operation of the Trails Act. The NITU expired on October 16, 2016, and

no trail use agreement was reached that would trigger the preemptive effect

of the Trails Act. On these facts, the relevant time period for determining

whether the United States is liable for a temporary taking in this case begins

with the issuance of the NITU on October 22, 2015, and ends with the

expiration of that NITU on October 16, 2016.

Plaintiffs in Arnold, however, argue the STB’s extensions of time for NKCR to

consummate abandonment significantly and prejudicially impacted plaintiffs’ pending

claims. Plaintiffs contend the STB’s approval of NKCR’s three requests for an extension

of time to consummate abandonment were not ministerial agency actions, but, rather,

were government actions within the “agency’s exclusive and plenary jurisdictional powers

to regulate railroad abandonments.” According to the Arnold plaintiffs, “[a] necessary and

justifiable consequence of the STB’s orders . . . is the extension of the 5th Amendment

taking of Plaintiffs’ property until March 1, 2018.”29 Plaintiffs in Arnold reason the “5th

Amendment taking is continued” because the “STB’s jurisdiction to issue further NITUs is

retained and Plaintiffs’ reversionary rights are blocked.”

As discussed above, a taking, if any, occurs under the Trails Act when a railroad

right-of-way is converted to interim trail use, thereby blocking reversionary property

interests that, under state law, would otherwise vest in the adjacent landowners from so

vesting. See Caldwell v. United States, 391 F.3d at 1233 (citing Preseault II, 100 F.3d at

1552); see also Ladd v. United States, 630 F.3d at 1019. The STB’s issuance of a NITU

“marks the ‘finite start’ to either temporary or permanent takings claims by halting

abandonment and the vesting of state law reversionary interests when issued.” Caldwell

v. United States, 391 F.3d at 1235; see also Toscano v. United States, 107 Fed. Cl. 179,

184 (2012) (quoting Caldwell v. United States, 391 F.3d at 1228-29). “The 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.” Caldwell v. United States, 391 F.3d at 1233-34 (emphasis

in original); see also Ladd v. United States, 630 F.3d at 1023 (“The NITU is the

government action that prevents landowners from possession of their property

unencumbered by the easement.”); Barclay v. United States, 443 F.3d 1368, 1374 (Fed.

Cir. 2006) (“The barrier to reversion is the NITU, not physical ouster from possession.”).

A judge of the United States Court of Federal Claims has stated, “[i]n a rails-to-trails

takings case, the issue is not whether STB jurisdiction continues or whether the railroad

retains a property interest upon the expiration of a NITU, but whether the government has

taken any action that forestalls the vesting of the underlying landowners’ property rights.”

Farmers Co-op Co. v. United States, 100 Fed. Cl. 579, 583 (2011) (citation omitted). Once

the NITU expires, any original railroad purposes easements remain as burdens on the

plaintiffs’ property.

29As noted above, after the plaintiffs had submitted their filing in response to the court’s

September 18, 2017 Order, the STB granted NKCR an extension of time until March 1,

2019 to consummate abandonment of the railroad corridor.

31

The issuance of multiple, non-consecutive NITUs may be treated as a single

temporary taking, even if there was a gap of time between the issuance of the NITUs,

when the subsequently issued NITU serves as an extension of the previously issued

NITU. See Barclay v. United States, 443 F.3d at 1376; Farmers Co-op. Co. v. United

States, 98 Fed. Cl. 797, 807, recons. denied, 100 Fed. Cl. 579 (2011); Biery v. United

States, 99 Fed. Cl. 565, 581 (2011). At least one judge on the United States Court of

Federal has found that a temporary taking ends when a railroad “consummates

abandonment and plaintiffs’ reversionary interests revert to an unencumbered status,” or,

alternatively, “when the Government shows that it has abandoned the taking, leaving no

government claim to jurisdiction or control over the property.” See Ladd v. United States,

110 Fed. Cl. 10, 14 (2013). 30 In Ladd v. United States, a railroad requested “numerous

extensions” of the time in which it needed to consummate abandonment “before finally

allowing the allotted time for abandonment to expire.” Id. The railroad had not filed its

notice of consummation with the STB as of the date the opinion was issued in Ladd v.

United States. Id. The court considered using “the date that the most recent NITU expired”

and “the deadline for filing a Notice of Consummation” to measure the duration of a

temporary taking, but declined to do so because “new NITU’s may be issued after

previous NITU’s expire” and the deadline to consummate abandonment is “usually

extended more than once.” Id. at 13-14. The court stated that damages were to be paid

to the date of the court’s earlier opinion finding the government liable for a temporary

taking, with “leave for plaintiffs to return to this court for updated damages on a per diem

basis. This would continue until the Railroad files a Notice of Abandonment or defendant

shows that it has abandoned the taking.” Id. at 15 n.6.

In the above-captioned cases, the STB’s issuance of a NITU on October 22, 2015

initiated the government’s taking of the plaintiffs’ properties. See Caldwell v. United

States, 391 F.3d at 1235. Following the expiration of the NITU on October 16, 2016,

NKCR and Sunflower had not reached a trail use agreement. At that time, NKCR had the

option of exercising its authority to abandon the railroad corridor and filing a notice of

consummation, filing a request for an extension of time to consummate abandonment, or

retaining the rail line. See 49 C.F.R. § 1152.29(e)(2). Ultimately, as of the date of this

opinion, NKCR filed four requests for extensions of time to consummate abandonment,

all of which the STB granted, and, currently, NKCR has until March 1, 2019 to

consummate its abandonment of the railroad corridor with the STB. The STB’s decision

to grant NKCR’s four requests, however, did not prevent abandonment of the railroad

corridor or preclude the vesting of the property owner’s reversionary rights under state

law. Rather, NKCR’s decision not to consummate abandonment and to request four

extensions of time for the period in which NKCR has been given to consummate

abandonment prevented plaintiffs from receiving their reversionary rights. See Farmers

Co-op Co. v. United States, 100 Fed. Cl. at 583-84. As of the date of the issuance of this

opinion, the duration of the temporary taking at issue in these cases is unclear and may

depend on the actions taken by NKCR and the STB in the future. The duration of the

30The United States Court of Appeals decision in Ladd v. United States, 630 F.3d 1015,

which is discussed above, reversed and remanded to the United States Court of Federal

Claims “for a determination of the compensation owed to the appellants for the taking of

the Southern Stretch and the Northern Stretch of railway line.” Id. at 1025.

32

temporary taking, however, is not material to the court’s resolution of the parties’ cross-

motions for partial summary judgment currently before the court, and, if necessary, the

court will revisit this issue when determining damages.

Motion to Strike

Plaintiffs in Arnold, Flying S. Land Co., and Dawson have moved to strike the

unofficial chart created by a KDOT employee, and the affidavit of Thad Fowler, another

KDOT employee, that defendant attempted to rely on in support its partial motion for

summary judgment in all three cases as inadmissible under RCFC 56(c)(2) and RCFC

56(c)(4). Plaintiffs argue that the chart created by the KDOT employee and the affidavit

of Mr. Fowler are inadmissible because both exhibits contain improper legal conclusions,

contain statements made without personal knowledge by the authors, and lack

foundation. Plaintiffs also object to Mr. Fowler being offered as an expert under Federal

Rule of Evidence (FRE) 702 (2017) and assert his affidavit contains “explicit

contradictions to the parties’ stipulations.” Additionally, plaintiffs in Dawson assert that the

court should strike Mr. Fowler’s affidavit because Mr. “Fowler’s affidavit contains

inadmissible hearsay” and is based upon “unauthenticated documents containing

hearsay.”

In its response to plaintiffs’ motion to strike, defendant does not address whether

the chart created by a KDOT employee is admissible in support of its cross-motions for

partial summary judgment. 31 Defendant, however, argues that Mr. Fowler’s affidavit is

admissible. Defendant asserts that the Fowler “affidavit is not offered to prove that the

state owned the highway in fee; instead, it shows the documents that KDOT relies on to

form the basis of its position regarding title to the highway.” Defendant states that Mr.

Fowler’s “position as the Coordinating Land Surveyor in the Bureau of Right of Way for

KDOT involves the ‘proper interpretation of legal principles as they apply to land

boundaries’” and that he has the “‘knowledge, education, and experience to interpret’” the

documents attached to his affidavit. Defendant asserts Mr. Fowler’s statements are not

legal conclusions and notes that the “[c]ourt can certainly review the records presented

and reach a different legal conclusion.” Additionally, defendant maintains Mr. Fowler’s

position with KDOT provides the proper foundation for Mr. Fowler to attest to his review

of KDOT’s records, and that “Mr. Fowler reviewed records in his employer’s archives,

which are the kind of documents within the purview of his position, so he had personal

knowledge of the contents of the documents.” Defendant also claims that to Mr. Fowler’s

affidavit is not based on hearsay because the documents that Mr. Fowler reviewed “are

either already in the record or are properly presented and may be considered

independently as exceptions to the hearsay rule, because they are records that affect an

interest in property under Federal Rule of Evidence (‘Fed. R. Evid.’) 803(14) and are

ancient documents under Fed. R. Evid. 803(16).” Finally, defendant states that Mr. Fowler

is not being offered as an expert witness under FRE 702 and alleges the affidavit is not

inconsistent with defendant’s prior stipulations.

31The court notes that it appears from the email message included with the chart that the

chart was created for this litigation and was created in 2016.

33

In a motion for summary judgment, a party asserting that a fact is not genuinely

disputed must support its contention by citing to materials in the record, such as affidavits,

depositions, or stipulations, or by showing that the materials cited do not establish the

absence or presence of a genuine dispute of material fact. See RCFC 56(c)(1); see also

King v. United States, 130 Fed. Cl. 476, 492 n.27 (2017); Grand Acadian, Inc. v. United

States, 87 Fed. Cl. 193, 197 (2007). “A party may object that the material cited to support

or dispute a fact cannot be presented in a form that would be admissible in evidence”

under RCFC 56(c)(2). See also King v. United States, 130 Fed. Cl. at 492 n.27. RCFC

56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion

must be made on personal knowledge, present facts that would be admissible in

evidence, and show that the affiant or declarant is competent to testify on the matters

stated.” The court will not consider an affidavit supporting or opposing a motion for

summary judgment that contains statements that are legal conclusions, not based on the

affiant’s personal knowledge, or would otherwise be inadmissible as evidence. See

Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 228 n.19 (2009), aff’d,

614 F.3d 1383 (Fed. Cir. 2010), cert. denied, 562 U.S. 1286 (2011); Adarbe v. United

States, 58 Fed. Cl. 707, 712 n.1 (2003); see also Thomas v. United States, 106 Fed. Cl.

467, 476 n.4 (2012) (disregarding an expert witness’ affidavit when the affiant outlined his

opinion as to whether a plaintiff owned a reversionary interest under Tennessee law).

In its cross-motion for partial summary judgment, defendant offers the chart

created by a KDOT employee and the affidavit of Mr. Fowler to support its position that

“fee ownership of the land is in the state” and KDOT’s position that “it owns the pertinent

portion of [K-383] in fee.” The chart created by a KDOT employee identifies parcels that

are adjacent to a portion of K-383, alleges that some of those parcels were acquired by

the state by deed, and purports to state whether KDOT has a fee interest or an easement

in each parcel. The determinations in the chart as to whether KDOT owns the parcels in

fee are unsupported by the source documentation records. The chart does not contain

the deeds that allegedly conveyed the right-of-way for K-383 to KDOT in fee or any other

evidence to support defendant’s or KDOT’s contention that the state of Kansas owns the

parcels in fee. Whether legal conclusions or not, as a result of the absence of supporting

documents, the court does not consider the conclusions or statements contained in the

chart at this time.

Likewise, many of the statements in the affidavit of Mr. Fowler are inadmissible

legal conclusions. In the affidavit, Mr. Fowler, who is not being offered as an expert and

who does not claim to be a lawyer, declares that “as the Coordinating Land Surveyor, I

am responsible for the proper of interpretation of legal principles as they apply to land

boundaries,” and that he has the “knowledge, education, and experience” to interpret the

documents attached to his affidavit. Once again, without explanations of how the attached

documents support his conclusions, which as noted above, Mr. Fowler did not create, Mr.

Fowler states “[t]hat KDOT has a fee simple absolute ownership interest in a portion of”

twenty parcels in Norton County and Phillips County, Kansas. Mr. Fowler’s statements

offered in his affidavit are unsupported legal conclusions, not subject to cross-

examination, and will not be used by the court to resolve the cross-motions for summary

judgment. FRE 701 (2017) permits a lay witness to provide opinion testimony, but only if

34

the testimony is based on relevant facts that the witness perceived, assists the fact finder

in understanding the witness’ testimony or a matter at issue, and is not based on scientific,

technical, or specialized knowledge within the purview of FRE 702. See FRE 701; see

also Authentic Apparel Grp., LLC v. United States, 134 Fed. Cl. 78, 81 (2017) (“If a

witness’s testimony fails to meet any one of the three foundational requirements, it is not

admissible.” (citing FRE 701)); DataMill, Inc. v. United States, 91 Fed. Cl. 722, 736 (2010)

(quoting United States v. Espino, 317 F.3d 788, 797 (8th Cir. 2003) (citations omitted)).

Mr. Fowler’s assertions that KDOT owns portions of twenty parcels in fee do not explain

the circumstances under which K-383 was created because Mr. Fowler does not explain

how the attached documents justify his conclusions nor how the determinations about the

parcels were reached. Defendant may attempt to call Mr. Fowler as a lay witness or expert

witness at a potential trial, but defendant may not rely on Mr. Fowler’s affidavit to support

its cross-motion for summary judgment. See DataMill, Inc. v. United States, 91 Fed. Cl.

at 737-38 (striking a lay witness’ declaration as inadmissible under FRE 701 because the

declaration was not rationally based on the declarant’s perception and did not “aid the

court in determining a fact in issue”); Ryco Constr., Inc. v. United States, 55 Fed. Cl. 184,

196 n.6 (2002) (striking portions of a lay witness’ declaration that contained legal

conclusions). Accordingly, the court has not considered the statements in Mr. Fowler’s

affidavit in resolving the cross-motions for summary judgment currently before the court.

Ownership Disputes

The parties have stipulated that plaintiffs in all three cases owned their properties

at issue in these cases on the date the NITU was issued with the exception of Flying S.

Land Co. plaintiff United Methodist Church. Defendant contends that Flying S. Land Co.

plaintiff United Methodist Church is not the proper claimant in the Flying S. Land Co. case

because plaintiffs have not provided any evidence that United Methodist Church acquired

the property adjacent to the railroad corridor. Plaintiffs respond that, although there is no

formal warranty deed for this parcel, there are probate documents indicating that the land

was to be devised to United Methodist Church by an individual named Isiah Sharp, should

Isiah Sharp’s son, Loren Gill Sharp, die without children. Plaintiffs submitted probate

documents to establish that Isiah Sharp devised the land adjacent to the railroad corridor

to Loren Gill Sharp. The probate documents indicate that, if Loren Gill Sharp should die

without children, then the land devised to him should become the property “of the trustees

of the Methodist Episcopal Church at Norcatur, Kansas . . . .” Although defendant

acknowledges these probate documents, defendant argues that plaintiffs have not

provided any evidence to show that United Methodist Church actually acquired the

property upon the passing of Loren Gill Sharp or that the United Methodist Church of

Norcatur is the successor of the Methodist Episcopal Church at Norcatur. In response,

plaintiffs contend the “United Methodist Episcopal Church [of Norcatur, Kansas] became

the United Methodist Church” and allege the United Methodist Episcopal Church at

Norcatur changed its name to the United Methodist Church. Plaintiffs offer a link to a

website in support of their contentions. 32 The website, however, provides the history of

the “Rust United Methodist Church” in Oberlin, Ohio, and it does not appear to support

32 Grace Hammond et al., Rust United Methodist Church, OBERLIN (Fall 2003),

http://www2.oberlin.edu/external/EOG/AfAmChurches/Rust.htm.

35

plaintiffs’ assertion that the United Methodist Episcopal Church at Norcatur “became” or

changed its name to the United Methodist Church.

Although the court finds the probate documents submitted by plaintiffs to be

probative and helpful towards resolving the ownership issues pertaining to United

Methodist Church, these documents only establish that Isiah Sharp intended to devise

property to his son, Loren Gill Sharp, and that, upon the death of Loren Gill Sharp, that

property would pass to the Methodist Episcopal Church at Norcatur, Kansas. The court

finds, therefore, that there is still a genuine issue of material fact as to whether plaintiff

United Methodist Church is the same as or a successor to the Methodist Episcopal

Church of Norcatur, Kansas. Accordingly, at this time the court denies plaintiffs’ and

defendant’s motions for partial summary judgment regarding ownership with regard to

Flying S. Land Co. plaintiff United Methodist Church, and the issue is deferred to further

proceedings. If plaintiff can provide subsequent documentation as to the remaining

issues, perhaps the parties can resolve the issue by stipulation and should try to do so

Adjacency Disputes

The parties have stipulated that all plaintiffs are adjacent to the railroad corridor

except the following Kansas landowners: Arnold plaintiffs Rodney and Tonda Ross’ parcel

102-03-0-00-00-004.00-0 on the south side of the railroad corridor, Mark and Shayla

Bailey, Robert Strevey, and Harold and Kristelle Mizell parcel 107-36-0-10-04-001; Flying

S. Land Co. plaintiffs Arnold K. Graham parcel 074-059-31-0-00-00-004.00-0, J & C

Partnership, Garth Gebhard, Silverstone & Dake’s Canal Inc. parcels 074-056-24-0-20-

01-002.00-0 and 074-056-24-0-20-01-001.00-0, Gerry and Theresa Tally parcel 020-141-

01-0-30-20-010.00-0, and James and Janice Bricker parcel 020-124-18-0-00-03-001.00-

0; and Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel 740-056-13-0-

00-00-005.00-0. In general terms, plaintiffs and defendant state that, under Kansas law,

adjacency should be interpreted to mean that a parcel abuts, adjoins, or is “next to” the

railroad corridor. 33 Indeed, courts applying the centerline presumption under Kansas law

have indicated that a plaintiff claiming the centerline presumption must own property

abutting the easement. See Gauger v. State, 815 P.2d 501, 506 (Kan. 1991) (“The rule

is thus clear and of long standing that when the owner of real estate conveys land abutting

on a railroad right-of-way, and the owner (grantor) owns the servient estate of the railroad

right-of-way and the railroad the dominant estate for right-of-way purposes, the grantor

passes to the grantee the servient estate, unless the intention not to do so is clearly

indicated.”); Carpenter v. Fager, 361 P.2d 861, 864 (Kan. 1961) (“It is obvious from the

mentioned cases that the highway rule is applicable in a situation where the land abutting

a public easement is conveyed.”); cf. Sebree v. Bd. of Cty. Comm’rs of the Cty. of

Shawnee, 840 P.2d 1125, 1130 (Kan. 1992) (concluding that “‘abut’ means to touch”

when analyzing “the abutting requirement” of a common-law right of access to a public

highway claim).

33The parties have stipulated that all of the plaintiffs’ properties that are located in

Nebraska are adjacent to the railroad corridor.

36

K-383

K-383 runs between the following plaintiffs’ parcels and the railroad right-of-way:

Arnold plaintiffs Rodney and Tonda Ross’ parcel on the south side of the railroad corridor

102-03-0-00-00-004.00-0; Flying S. Land Co. plaintiffs Arnold K. Graham parcel 074-059-

31-0-00-00-004.00-0, J & C Partnership, Garth Gebhard, and Silverstone & Dake’s Canal,

Inc. parcels 074-056-24-0-20-01-002.00-0 and 074-056-24-0-20-01-001.00-0; and

Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel 074-056-13-0-00-00-

005.00-0. Plaintiffs argue, “[s]ince K383 is a state highway, it is deemed to be an

easement under Kansas law and, as a result, the claimants still own to the centerline of

the railroad’s right-of-way.” 34 Plaintiffs submitted to the court condemnation proceedings

for a state highway in Phillips County, Kansas, titled “In the Matter of Condemnation of

Land for State Highway Purposes.” (capitalization in original). Although it appears that the

Kansas State Highway Commission acquired the land for a state highway in Phillips

County, Kansas, through this condemnation proceeding, it is unclear if that state highway

was K-383. Conversely, defendant argues that KDOT owns the highway in fee. In support,

defendant pointed to the stricken unofficial chart discussed above sent from a KDOT

employee to defendant’s counsel via email in support of its position that KDOT owns K-

383 in fee. The chart purports to identify parcels that are adjacent to a portion of the

highway owned in fee that was acquired by deed in 1933 and 1935. As noted above,

defendant does not provide the 1933 or 1935 deeds that allegedly conveyed the right-of-

way for K-383 to KDOT in fee or other evidence to support its contention that KDOT

owned the land in fee. Defendant has submitted to this court several deeds titled “DEED

FOR HIGHWAY PURPOSES,” although, as with the condemnation proceeding submitted

to the court by plaintiff, it is unclear whether the referenced highway was K-383.

(capitalization in original).

If the highway was dedicated at common law, then KDOT holds only an easement

and abutting property owners, the plaintiffs in this case, retain fee interest in the right-of-

way. If the highway, however, was statutorily dedicated, then the fee vests in the public.

The circumstances under which a highway was created determines whether KDOT holds

K-383 right-of-way in fee. See Sw. Bell Tel. Co. v. State Corp. Comm’n of Kan., 664 P.2d

798, 801 (Kan. 1983) (“[F]ee title to public highways in Kansas may or may not be

governmentally owned, depending upon the circumstances which established the

highway.”). “The public obtains a mere easement to the land” laid out or dedicated at

common law, and “[t]he fee in the land never passes to the public, but remains in the

original owner.” Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603, 607 (1873). In

Southwestern Bell Telephone Co. v. State Corp. Commission of Kansas, the Supreme

Court of Kansas reaffirmed the statement of law earlier set out in Atchison & N.R. Co. v.

Garside, stating “the fee of a street dedicated under what is now K.S.A. [Kan. Stat. Ann.]

12–406 . . . vest[s] ‘absolutely’ in the county. It has long been established that the fee of

34 Plaintiffs cite to a case in which KDOT obtained an easement over a right-of-way by

condemnation. See Carson v. Kansas City, 506 P.2d 1111 (Kan. 1973). Although this

case is one instance of eminent domain laws being used to condemn a right-of-way and

of providing the state with only an easement, this case does not hold that KDOT acquired

an easement over K-383 under Kansas eminent domain law.

37

a statutorily dedicated street vests in the county . . . .” Sw. Bell Tel. Co. v. State Corp.

Comm’n of Kan., 664 P.2d at 801 (citing Atchison & N.R. Co. v. Garside, 10 Kan. 552,

564-65 (1873)).

Given the evidence in the record, it is unclear whether K-383 was dedicated

statutorily or at common law. The records submitted to the court indicate that there is a

genuine issue of material fact as to whether K-383 was established pursuant to an

easement, or if the State of Kansas owns the land underlying K-383 in fee simple.

Therefore, based on the information currently before the court, the court cannot determine

whether KDOT holds only an easement over the K-383 right-of-way or whether it holds

fee simple interest in the right-of-way.

Additionally, Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel

074-056-13-0-00-00-005.00-0 argue that the “Cox Trusts own the property underlying

K383 by the plain language of their deed.” The deed to the Cox Trusts No. 1 property

conveys:

An undivided one-half interest in and to all that portion of the Northwest

Quarter (NW/4) lying Southeasterly of the Burlington Railroad right-of-way,

the North Half of the Southwest Quarter (N/2 SW/4), and the Southeast

Quarter of the Southwest Quarter (SE/4 SW/4) South of Burlington Railroad,

all in Section Eighteen (18), Township (1) South, Range Nineteen (19) West

of the 6th P.M., in Phillips County, Kansas; and

An undivided one-half interest in and to all that portion of the Southeast

Quarter (SE/4) lying Southeasterly of the Burlington Railroad right-of-way in

Section Thirteen (13), the Southeast Quarter (SE/4) of Section Three, and

the Northwest Quarter (NW/4) of Section Four (4), all in Township One (1)

South, Range Twenty (20) West of the 6th P.M. in Philips County,

Kansas . . . .

together with all its appurtenances and warrant the title to the same, subject

to all prior mineral reservations, oil and gas leases, rights-of-way,

easements and protective covenants of record, if any.

According to plaintiffs, “the Cox’s Trust’s property includes K383” because K-383 is south

of the railroad corridor. As discussed, the evidence before the court does not demonstrate

whether KDOT holds an easement or a fee interest in K-383. Accordingly, the court denies

both plaintiffs’ and defendant’s motions for summary judgment on the issue of adjacency

for all parcels adjacent to K-383 and defers the issue for further proceedings.

Miscellaneous Adjacency Issues

W. Opelik Street, which is distinct from K-383, appears to lay between the parcel

owned by Arnold plaintiffs Mark and Shayla Bailey and the railroad corridor. N. Decatur

Street, which is also distinct from K-383, appears to lay between both the parcel owned

38

by Arnold plaintiff Robert Strevey and parcel 107-36-0-10-04-001 owned by Arnold

plaintiffs Harold and Kristelle Mizell and the railroad corridor. Plaintiffs allege that these

properties are adjacent to the railroad corridor and that defendant has failed to prove the

existence of these roads, even though the roads are apparent in the maps submitted to

the court by defendant. Plaintiffs further allege that the railroad right-of-way pre-existed

these roads, and the subsequent construction of the roads did not sever plaintiffs’ claim

in the land continuing to the railroad right-of-way. Defendant argues that plaintiffs’

properties are, in fact, separated from the railroad corridor by W. Opelik Street and N.

Decatur Street, and plaintiffs have not provided evidence that these intervening roads are

not intervening and are mere easements.

There is a genuine dispute of material fact and no evidence before the court at this

time as to whether the public holds fee simple interest in or only an easement over these

roads. If the public owned these roads in fee, then these roads keep these plaintiffs’

parcels from being adjacent to the railroad right-of-way. If, however, the public only held

an easement over these plaintiffs’ properties, then plaintiffs own the servient estate in the

road and are adjacent to the railroad right-of-way. Accordingly, the court denies both

plaintiffs’ and defendant’s motions for summary judgment on adjacency regarding Arnold

plaintiffs Mark and Shayla Bailey parcel 107-36-0-20-13-005, Robert Strevey parcel 107-

36-0-10-04-002, and Harold and Kristelle Mizell parcel 107-36-0-10-04-001.

In addition, the parties dispute the adjacency of certain parcels belonging to Flying

S. Land Co. plaintiffs Gerry and Theresa Tally and James and Janice Bricker. 35 Plaintiffs

contend that Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 and

James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0 are adjacent to the

railroad corridor, and defendant contends that these parcels are not adjacent to the

railroad corridor. As discussed above, plaintiffs hired an outside firm to review the

adjacency of these properties to the railroad corridor, and plaintiffs try to rely on the firm’s

findings to argue that Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-

0 is adjacent to the railroad corridor. According to the firm’s findings, Gerry N. and

Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 “is adjacent to the railroad corridor

for approximately 345 feet. There is no road or parcel in between the parcel and the

corridor on the eastern 345 feet of the parcel. The western portion of this parcel is blocked

by the Church of Christ of Oberlin.” Plaintiffs also submit to the court that “[t]he County

reported that a former street, South Mill Street, was vacated and the south half of the road

sent to the Tally parcel and the north half of the road went to the Church of Christ Parcel.”

Plaintiffs have not provided any evidence that South Mill Street was, indeed, vacated or

who retained the property interest in the street upon this alleged vacation.

35 As noted above, defendant contends that neither Gerry and Theresa Tally parcel 020-

141-01-0-30-20-010.00-0 nor James and Janice Bricker parcel 020-124-18-0-00-03-

001.00-0 are adjacent to the railroad corridor, but defendant stipulates to the adjacency

of the claims for Gerry and Theresa Tally parcel 020-141-01-0-30-19-005.00-0 and James

and Janice Bricker parcels 020-124-18-0-00-09-004.00-0 and 020-124-18-0-00-01-

001.00-0.

39

Defendant argues, “[p]laintiffs’ own maps show that the claim . . . for parcel number

020-141-01-0-30-20-010.00-0, is not adjacent to the rail line as a strip of land not owned

by Plaintiffs Tally separates their property from the rail line.” Plaintiffs’ map does, indeed,

show that no portion of Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-

0 abuts the railroad corridor, as there is a strip of unmarked land lying between the portion

of Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 that is not blocked

by the Church of Christ parcel and the railroad corridor. Additionally, plaintiffs’ own maps

show that the railroad corridor lies north of Gerry N. and Theresa M. Tally parcel 020-

141-01-0-30-20-010.00-0. If the road that allegedly lies between Gerry N. and Theresa

M. Tally parcel 020-141-01-0-30-20-010.00-0 and the railroad corridor was vacated and

the north half of the road “went to the Church of Christ parcel,” according to plaintiffs’

maps, Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 would still not

be adjacent to the railroad corridor because the Church of Christ’s interest in the vacated

road would lie between Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-

010.00-0 and the railroad corridor. Because the parcel is not adjacent to the railroad

corridor, the court grants defendant’s motion for summary judgment on the issue of

adjacency against Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcel 020-141-

01-0-30-20-010.00-0.

With regard to the James and Janice Bricker parcel 020-124-18-0-00-03-001.00-

0, plaintiffs submit that “[a] road, South Railroad Street, is in between this parcel and the

railroad corridor.” Plaintiffs allege that South Railroad Street is a dedicated road that has

not been vacated, although they provide little or no evidence to support these conclusory

allegations. Plaintiffs allege that, “[u]nder Kansas law, roads are easements and, as a

result, the abutting landowners own the underlying fee.”36 Similarly, defendant does not

address the presence of the road and simply alleges that this parcel “is not adjacent to

the rail line on Plaintiffs’ own maps as a strip of land not owned by Plaintiffs Bricker

separates their property from the rail line.” As discussed above, not all Kansas roads are

easements. See Sw. Bell Tel. Co. v. State Corp. Comm’n of Kan., 664 P.2d at 801. If the

road was dedicated at common law, then the public holds only an easement and James

and Janice Bricker retain fee interest in the road right-of-way. See id. If the road was

statutorily dedicated, however, then the fee vests in the public. Id. Given the absence of

evidence in the record, there remains a genuine dispute of material fact as to whether the

road between James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0 and the

railroad corridor was statutorily dedicated or dedicated at common law. Accordingly, the

court denies both plaintiffs’ and defendant’s motions for summary judgment regarding the

James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0.

36Plaintiffs cite to J & S Building Co. v. Columbian Title & Trust Co., 563 P.2d 1086 (Kan.

App. 1977) in support of their argument that “[u]nder Kansas law, roads are

easements . . . .” This citation is not dispositive. Although the decision states, “[a]t

common law the dedication of a street or highway for public use does not operate to divest

the owner of the adjoining land from which the roadway was taken of the fee title,” it does

not indicate that all roads in Kansas are easements. Id. at 1090.

40

Conveyances

As indicated above, the railroad obtained its interest in the railroad corridor in five

ways: condemnation proceedings, the General Railroad Right-of-Way Act of 1875, private

“Right of Way Deeds,” 1950 deeds from the United States, and deeds from the Lincoln

Land Company. The parties have stipulated to the applicable conveyance documents

from plaintiffs’ predecessors-in-interest to the railroad company’s predecessor-in-interest

for all remaining plaintiffs except Flying S. Land Co. plaintiffs Gerry N. and Theresa M.

Tally parcel 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co., James and Janice

Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-

124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-

002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s Canal,

Inc. parcel 074-056-24-0-20-01-002.00-0. Additionally, although not directly addressed in

their submissions to the court, the parties appear to disagree about the source

conveyance to Flying S. Land Co. plaintiffs Cecil and Lavon Wright and AG Valley

Cooperative. While defendant states in its motion for partial summary judgment that the

NKCR’s predecessor-in-interest obtained its interest in the portion of the railroad corridor

adjacent to Cecil and Lavon Wright and the AG Valley Cooperative by private deed,

plaintiffs assert that the railroad obtained its interest in the railroad corridor adjacent to

these plaintiffs’ properties by condemnation and private deeds.

Lincoln Land Co. Deeds or Condemnation

The parties dispute the applicable source conveyances from plaintiffs’

predecessors-in-title to NKCR’s predecessor-in-interest for the following Flying S. Land

Co. plaintiffs: Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0,37

Oberlin Concrete Co., James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0,

020-124-18-0-00-03-001.00-0, and 020-124-18-0-00-01-001.00-0, Jerry G. and Connie

K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth Gebhard, Paul and Tammy Vincent,

and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0. 38 Plaintiffs

contend that the Burlington, Kansas & Southwestern Railroad Company acquired the

right-of-way over these plaintiffs’ properties through condemnation proceedings in

Decatur and Phillips Counties, Kansas that occurred in 1885. Plaintiffs argue that the

condemnation proceedings only provided NKCR’s predecessor-in-interest with an

easement for railroad purposes. In contrast, defendant contends that the applicable

37The parties also dispute the applicable source conveyance document for Flying S. Land

Co. plaintiff Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0. As

discussed, the court has granted defendant’s motion for summary judgment against

Flying S. Land Co. plaintiff Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-

010.00-0 because it is not adjacent to the railroad corridor.

38As discussed above, the court has denied both plaintiffs’ and defendant’s motions for

partial summary judgment for Flying S. Land Co. plaintiffs James and Janice Bricker

parcel 020-124-18-0-00-03-001.00-0, Garth Gebhard, and Silverstone & Dake’s Canal,

Inc. parcel 074-056-24-0-20-01-002.00-0 because a genuine issue of material fact exists

as to whether plaintiffs’ properties are adjacent to a portion of the railroad corridor.

41

source conveyances for the railroad’s interest in the land adjacent to Flying S. Land Co.

plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0, Oberlin

Concrete Co., James and Janice Bricker, Jerry G. and Connie K. Cox parcel 074-056-23-

0-40-02-002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s

Canal, Inc. parcel 074-056-24-0-20-01-002.00-0 are four deeds in which the Lincoln Land

Company granted the land to NKCR’s predecessor-in-interest in fee. Defendant contends

that the applicable source conveyance document for Flying S. Land Co. plaintiffs Gerry

N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.

is the Lincoln Land Company deed located at Book 4, Page 330 (Lincoln Land Company

Deed 4-330), the applicable source conveyance document for James and Janice Bricker

is the Lincoln Land Company deed located at Book 4, Page 426 (Lincoln Land Company

Deed 4-426), the applicable source conveyance document for Jerry G. and Connie K.

Cox parcel 074-056-23-0-40-02-002.00-0 and Garth Gebhard is the Lincoln Land

Company deed located at Book M, Page 242 (Lincoln Land Company Deed M-242), and

the applicable source conveyance document for Paul and Tammy Vincent is the Lincoln

Land Company Deed located at Book K, Page 488 (Lincoln Land Company Deed K-488).

Defendant also asserts that the applicable source conveyance documents for Flying S.

Land Co. plaintiff Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0

are Lincoln Land Company Deed M-242 and Lincoln Land Company Deed K-488.

Defendant alleges that “[a]ssuming that the railroad initially acquired only an easement

by condemnation, in these cases, the railroad subsequently acquired fee title to those

same lands through the Lincoln Land Company deeds.”

In its motion for summary judgment, defendant originally asserted that the grants

in the deeds from the Lincoln Land Company did not contain any restrictions, and NKCR’s

predecessor-in-interest acquired an estate in fee through these conveyance documents.

In its notice of partial withdrawal of its motion for summary judgment, defendant states

that the Lincoln Land Company deeds relevant to Flying S. Land Co. plaintiffs James and

Janice Bricker, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth

Gebhard, and Paul and Tammy Vincent should be interpreted to convey an easement.

Defendant also submitted “a revised chart showing the current status of the disputed title

issues,” which indicated that the NKCR only possessed an easement over the section of

the railroad corridor adjacent to Flying S. Land Co. plaintiffs James and Janice Bricker,

Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth Gebhard, and

Paul and Tammy Vincent. 39 Nevertheless, defendant maintains that the Lincoln Land

Company deeds conveyed a fee interest to NKCR’s predecessor-in-interest in the land

adjacent to Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcel 020-141-01-0-30-

39 Although the parties dispute the applicable source conveyance document for Flying S.

Land Co. plaintiffs James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0 and

020-124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-

002.00-0, and Garth Gebhard, as the court’s analysis below demonstrates, regardless of

whether the applicable source conveyance document was a Lincoln Land Company deed

or condemnation proceedings, the NKCR only obtained an easement in the land adjacent

to Flying S. Land Co. plaintiffs James and Janice Bricker parcels 020-124-18-0-00-09-

004.00-0 and 020-124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-

23-0-40-02-002.00-0, and Garth Gebhard.

42

19-005.00-0, Oberlin Concrete Co., and Silverstone & Dake’s Canal, Inc. parcel 074-056-

24-0-20-01-002.00-0. Additionally, on February 23, 2018, in response to an order issued

by the court, defendant submitted a filing to the court that stated “[a]fter reviewing the

prior filings and exhibits, it appears that counsel for the United States accidentally

included Plaintiffs [Paul and Tammy] Vincent’s property in its November 17, 2017 Notice

of Partial Withdrawal of its Cross-Motion for Summary Judgment.” (capitalization in

original). Defendant also asserted that “the Court should interpret that this deed [Lincoln

Land Company Deed] K-488, which is the applicable source deed for both Plaintiffs

Vincent’s property and Silverstone & Dake’s Canal’s parcel number 074-056-24-0-20-01-

002.00-01, conveyed a fee interest to the railroad.” (capitalization in original) (footnote

omitted).

Decatur County, Kansas Condemnation Proceedings or Lincoln Land Company Deed 4-

430

Plaintiffs assert that the applicable source conveyance document for Flying S.

Land Co. plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0

and Oberlin Concrete Co. is the Decatur County condemnation proceeding. Conversely,

defendant asserts the applicable the source conveyance document for Flying S. Land Co.

plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin

Concrete Co. is Lincoln Land Company Deed 4-330. Defendant correctly notes that a

valuation chart created by the ICC in 1917 identifies Lincoln Land Company Deed 4-330

as the applicable source conveyance document for the Gerry N. and Theresa M. Tally

parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s parcel. Defendant also

states that plaintiffs had previously filed a chart titled “Parcel Legal Descriptions

Comparison to Lincoln Land Co.,” which, according to defendant, “seems to contradict”

plaintiffs’ position on the applicability of Lincoln Land Company Deed 4-330 to Gerry N.

and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s

parcel. In plaintiffs’ “Parcel Legal Descriptions Comparison to Lincoln Land Co.” chart,

plaintiffs state that Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0

and Oberlin Concrete Co.’s parcel are “on the south side of the former corridor and

adjacent to the legal description in the Lincoln Land Company deed. The Lincoln Land

Company deeds lots and blocks match with the valuation maps parcel ID numbers, which

matches the maps provided by plaintiffs.” In response, plaintiffs assert that the Lincoln

Land Company Deed 4-330 “does not involve the railroad right-of-way at all and only

applies to surrounding lots.” Plaintiffs also assert that “it is obvious that the

condemnations do apply, even if partially because the Lincoln Land Company deed is for

lots and does not cover the entire condemnation area.”

The purpose of the Decatur County condemnation proceeding, which occurred in

1885, was “to lay out a [illegible] and Right of Way for the Burlington Kansas and

Southwestern Railroad Company in Decatur County Kansas.” (capitalization in original).

Plaintiffs fail to cite to specific portions of the Decatur County condemnation proceeding

to support their position that the Decatur County condemnation proceeding was the

applicable source conveyance document. The Decatur County condemnation

proceeding, however, does appear to include legal descriptions of parcels that belonged

43

to the Gerry N. and Theresa M. Tally’s predecessor-in-title and Oberlin Concrete Co.’s

predecessor-in-title.

As plaintiffs acknowledge in their “Parcel Legal Descriptions Comparison to Lincoln

Land Co.” chart, however, the ICC valuation chart does identify Lincoln Land Company

Deed 4-330 as the applicable source conveyance document for the sections of the

railroad corridor adjacent the Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-

005.00-0 and Oberlin Concrete Co.’s parcel. The pertinent portion of Lincoln Land

Company Deed 4-330 provides:

In consideration of the Payment of Seventeen hundred and Fifty (1750)

Dollars. The Lincoln Land Company hereby sells and conveys to The

Burlington Kansas and South Western Railroad Company the following

described Real Estate situated in the County of Decatur and State of

Kansas to wit:

Lot Nos. Eleven (11) and Twelve (12) in Block No. Twelve (12); Lot Nos.

Twenty one (21), Twenty two (22), Twenty three (23), Twenty four (24),

Thirty Five (35) and Thirty-six (36) in Block No. Thirteen (13); Lot Nos.

Thirty three (33), Thirty four (34), Thirty five (35) and Thirty-six (36) in

Block no. Fourteen (14); Lot nos. One (1), Two (2), Six and Seven (7) in

Block no. Twenty one (21); Lot Nos. One (1), Two (2), Three (3), Four (4),

Five (5), Six (6), Seven (7), Eight (8), Eleven (11), Twelve (12), Thirteen

(13), Fifteen (15), Sixteen (16), Seventeen (17) and Eighteen (18) in Block

No. Twenty two (22); Lot nos. One (1), Two (2), Three (3), Nine (9), Ten

(10), Eleven (11), Twelve (12), Thirteen (13) and Fourteen (14) in Block

no. Twenty three (23); Lot nos. One (1), Two (2), Three (3), Four (4), Five

(5), Six (6), Seven (7), Eight (8) and Ten (10) in Block No. Twenty four (24);

Lot Nos. One (1), Two (2), Three (3), Four (4), Five (5), Six (6), Seven (7),

Eight (8), Nine and Ten (10) in Block no. Twenty five (25); Lot nos. One

(1), Three (3) and Five (5) in Block No. Twenty six (26); all in the city of

Oberlin, also the South one hundred (100) feet of commercial place of said

City according to the recorded plat thereof.

Neither party, however, supports their position regarding the applicability of Lincoln Land

Company Deed 4-330 with citation to a map that clearly divides the railroad corridor into

lots and blocks in a manner that is similar to the language used in the granting clause

contained in Lincoln Land Company Deed 4-330. The court, therefore, is unable at this

time to determine from the evidence before the court whether Lincoln Land Company

Deed 4-330 conveyed the entire railroad corridor to NKCR’s predecessor-in-interest, or,

as plaintiff asserts, whether Lincoln Land Company Deed 4-330 only conveyed certain

lots within the railroad corridor to NKCR’s predecessor-in-interest. As a result, there is a

genuine dispute of material fact as to whether the Decatur County condemnation

proceeding or Lincoln Land Company Deed 4-330 is the applicable source conveyance

document for the sections of the railroad corridor adjacent to Gerry N. and Theresa M.

Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s parcel.

44

Accordingly, the court denies both plaintiffs’ and defendant’s motions for partial summary

judgment for Flying S. Land Co. plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-

01-0-30-19-005.00-0 and Oberlin Concrete Co. parcel 020-141-01-0-30-19-001.00-0.

Phillips County, Kansas Condemnation Proceedings, Lincoln Land Company Deed M-

242, or Lincoln Land Company Deed K-488

Additionally, the parties dispute the applicable source conveyance document for

Flying S. Land Co. plaintiffs Paul and Tammy Vincent and Silverstone & Dake’s Canal,

Inc. parcel 074-056-24-0-20-01-002.00-0. Plaintiffs contend that NKCR’s predecessor-in-

interest acquired its interest in the railroad corridor adjacent to Paul and Tammy Vincent

and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0 through

condemnation proceedings in Phillips County, Kansas. Plaintiffs also assert that the deed

defendant identifies as the applicable source conveyance document, Lincoln Land

Company Deed K-488, “is not actually the applicable deed because the Lincoln Land

Company issued a correcting deed in 1886, Book M, Page 242, which ‘take(s) the place

of’ the deed dated June 30, 1885, located at Book K, Page 488.” Defendant, however,

argues that Lincoln Land Company Deed K-488 is the applicable source conveyance

document for Paul and Tammy Vincent and “for most of claim 27.A [Silverstone & Dake’s

Canal, Inc. parcel 074-056-24-0-20-01-002.00-0]” because the ICC “valuation schedule

does not indicate that one deed replaced the other here.” Defendant also states that it

has “identified a portion of claim 27.A [Silverstone & Dake’s Canal, Inc. parcel 074-056-

24-0-20-01-002.00-0] is closest [sic] to the Lincoln Land Co. deed recorded at Book M,

Page 242, but this property is not adjacent to the railroad corridor because of the

intervening state highway, K-383.” 40 Defendant notes that the ICC valuation chart states

that the “[d]eed [is] not in file” for the section of the railroad corridor adjacent to Silverstone

& Dake’s Canal parcel 074-056-24-0-20-01-002.00-0. Defendant, however, states that

the next four parcels on the ICC valuation chart identify Lincoln Land Company Deed K-

488 as the applicable source conveyance document, which, according to defendant,

“clearly indicates it [Lincoln Land Company Deed K-488] is a different deed than the one

that was corrected.” Defendant also argues that, although the ICC valuation chart states

the Lincoln Land Company Deed M-242 “is correcting and taking the place of a deed

dated June 30, 1885, this reference could easily refer to a different document that was

not recorded.” Additionally, defendant argues that Lincoln Land Company Deed K-488

and Lincoln Land Company Deed M-242 “cover different legal descriptions.”

The Phillips County condemnation proceeding was filed in 1885 for “laying off right

of way . . . for the Burlington, Kansas and South Western Rail Road.” Plaintiffs correctly

note the Phillips County condemnation proceeding appears to condemn land for railroad

40 In its February 23, 2018 filing, defendant states that the “United States notes that

Lincoln Land Company deed M-242 covers approximately one-quarter of the relevant

railroad corridor across Highway [K-]383, which separates this parcel [Silverstone &

Dake’s Canal’s parcel 074-056-24-0-20-01-002.00-0] from the rail line. The other 75% of

the railroad corridor is contained in Lincoln Land Company deed K-488.” (internal

references omitted).

45

purposes beginning in the northeast quarter of Section Six, Township One, Range

Eighteen West through the southwest quarter of Section Thirty-One, Township One,

Range Twenty West. Plaintiffs, once again, fail to cite to specific sections of the Phillips

County condemnation proceeding to support plaintiffs’ claim that the applicable source

conveyance document for Paul and Tammy Vincent and Silverstone & Dake’s Canal, Inc.

parcel 074-056-24-0-20-01-002.00-0 is the Phillips County condemnation proceeding,

which does not appear to include a legal description matching the legal description of

either Paul and Tammy Vincent’s parcel or Silverstone & Dake’s Canal, Inc. parcel 074-

056-24-0-20-01-002.00-0. Consequently, it is unclear whether the Phillips County

condemnation proceeding applies to the section of the railroad corridor adjacent to Flying

S. Land Co. plaintiffs Paul and Tammy Vincent and Silverstone & Dake’s Canal, Inc.

parcel 074-056-24-0-20-01-002.00-0.

Lincoln Company Deed K-488 was executed on June 30, 1885 and conveyed a

tract of land to the Burlington, Kansas & Southwestern Railroad Company “for it use

[sic] as Depot grounds at said town of Long Island,” which included land “[c]ommencing

at a point in the East line of Atchinson Avenue in the town of Long in said [Phillips]

County, extended . . . to a point in the South West 1/4 of the North West 1/4 of section

no. Twenty four (24) in Township No. one (1) South of Range no. Twenty (20)

West . . . .” 41 (capitalization in parties’ original joint transcription). Plaintiffs correctly

state in their “Parcel Legal Descriptions Comparison to Lincoln Land Co.” chart that the

legal description for Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-

002.00-0 “appears to match the boundary legal description listed in” the legal

description of Lincoln Land Company Deed K-488. 42 The legal description contained in

41 The parties’ joint transcription of Lincoln Land Company Deed K-488 provides “In

Witness Whereof the President of the said Lincoln Land Company has herewith set his

hand and affixed the seal of the company this this 30th day of June 1883.” (capitalization

in parties’ original joint transcription). The parties, however, both state in their partial

cross-motions that Lincoln Land Company Deed K-488 was executed on June 30, 1885,

and the ICC valuation chart indicates that Lincoln Land Company Deed K-488 was

executed on June 30, 1885. The copy of Lincoln Land Company Deed K-488 that the

parties submitted to the court, which is largely illegible, appears to state “this 30th day of

June 1885.” Thus, the parties’ joint transcription of Lincoln Land Company Deed K-488

incorrectly provides that Lincoln Land Company Deed K-488 was executed in 1883.

42Plaintiffs state that the legal description of Silverstone & Dake’s Canal, Inc. parcel

074-056-24-0-20-01-002.00-0 is:

East Half of Northwest Quarter (E1/2NW1/4) of Sec. 24, Twp 1 South,

R.20West AND West Half of the Northeast Quarter (W1/2NE1/4) and all that

part of the West Half of the Northwest Quarter (W1/2NW1/4) lying South

and East of the Burlington, Kansas, Southwestern Railroad right-of-way and

depot grounds, except that paart [sic] included in plat and survey of Original

Town of First Addition to Town of Long Island, Kansas, all in Section

46

the granting clause of Lincoln Land Company Deed K-488 also appears to include Paul

and Tammy Vincent’s parcel, as the maps submitted to the court by plaintiffs show that

Paul and Tammy Vincent’s parcel is east of Atchinson Avenue in the direction of

Section 24. 43

The ICC valuation chart, however, also identifies Lincoln Land Company Deed

M-242 as an applicable source conveyance document for a section of the railroad

corridor and indicates that Lincoln Land Company Deed M-242 was “made to correct

error in deed dated 6/30/85 from same Grantor. Deed not in file.” The pertinent portion

of Lincoln Land Company Deed M-242 states:

In consideration of the Payment of One ($1.00) Dollars, the Lincoln Land

Company hereby sells and conveys to the Burlington Kansas and South

Western Railroad Company all of its right, title and interest in and to the

following described real estate situate in Phillips County and State of

Kansas to wit: The right of way one hundred feet wide being fifty feet on

each side of the center line of the B. K. and S.W. R.R. and commencing at

the North East end of the tract of land used by said Railroad Co. as Depot

grounds at the town of Long Island in said county and state, which said tract

was by deed bearing date June 30, 1885 conveyed by the said Land Co. to

said R.R. Co. and from thence running in a North Easterly direction to the

East line of the West half of the North West Quarter of section no. Twenty

four (24) in Township no. One (1) South of Range no. Twenty 20 West of

6th P.M. Also the right of way as aforesaid beginning a the South West end

of the aforesaid Depot grounds and running [illegible] thence in a South

westerly direction to the West line of the South East quarter (SE¼) of

section no. Twenty three (23) in Tp. No. One (1) South of Range no. Twenty

(20) West of the Sixth Principal Meridian.

This deed is made to correct and take the place of a certain other deed

bearing date June 30, 1885 and made by the grantor hereof to the grantee

hereto the intentions of which was to convey the right of way as above

described but in which several errors in describing directions of lines

[illegible] were made. This deed being intended to [illegible] [illegible] said

former deed, subject to the taxes of the year (1885) and thereafter.

(capitalization and alterations in the parties’ original joint transcription).

Twenty-Four (24), Township One (1) South, Range Twenty (20) West of the

6th P.M., Phillips County, Kansas.

(capitalization in original).

43 Plaintiffs state that the legal description of Paul and Tammy Vincent parcel 074-056-

23-0-10-01-001.00-0 is “Northeast Quarter (NE/4) of Section Twenty-three (23),

Township One (1), South, Range Twenty (20), West of the Sixth (6th) P.M. except

irregular tract #2822.” (capitalization in original).

47

Lincoln Land Company Deed M-242 indicates that it was issued to correct errors in

the legal description contained in a deed that executed on June 30, 1885, which is the

date Lincoln Land Company Deed K-488 was executed, between the Lincoln Land

Company and the Burlington, Kansas & Southwestern Railroad Company, who were the

parties that executed Lincoln Land Company Deed K-488. Lincoln Land Company Deed

K-488 conveyed a tract of land to the Burlington, Kansas & Southwestern Railroad

Company “for it [sic] use as Depot grounds . . . .” (capitalization in parties’ original joint

transcription). The pertinent portion of Lincoln Land Company Deed M-242 states that

the Lincoln Land Company is conveying a one-hundred foot wide “right of way” to the

Burlington, Kansas & Southwestern Railroad Company that extends northeast from “the

tract of land used by said Railroad Co. as Depot grounds,” to the “East line of the West

half of the North West

This text is long and has been trimmed here. Open the source document for the complete record.