# Beres v. United States

> United States Court of Federal Claims · April 16, 2019

URL: https://www.frixlaw.com/law-library/cases/4388001

## Case

- **Court:** United States Court of Federal Claims
- **Decided:** April 16, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4388001

## How later opinions describe it (automated extraction)

- stating that Washington State law “is clear that title is acquired by adverse possession upon passage of the 10-year period,” not when a quiet title action is filed, and that a “quiet title action merely confirm[s] that title to the land had passed” (citations omitted)

## Opinion text

Nos. 03-785L, 04-1456L, 04-1459L, 04-1463L, 04-1465L, 04-1467L, 04-1469L, 04-
1471L, 04-1472L, 04-1473L
Filed: April 16, 2019

* * * * * * * * * * * * * *
*
WARREN S. BERES, et al., *
* Motion to Dismiss; Motion to Strike;
Plaintiffs, * Cross-Motions for Partial Summary
v. * Judgment; Rails to Trails; Fifth
* Amendment Taking; Subject Matter
UNITED STATES, * Jurisdiction; Deed Interpretation;
* Plat Interpretation; Adverse
Defendant. * Possession; Preemption; RCFC
* * * * * * * * * * * * * * * 56(d).

Cecilia Fex, Ackerson Kauffman Fex, P.C., Washington, D.C., for plaintiffs in D.
Mike Collins, et al. v. United States, Case No. 04-1472L; and Reid Brown, et al. v. United
States, Case No. 04-1473L.

Richard M. Stephens, Stephens & Klinge LLP, Bellevue, WA, for plaintiffs in
Warren S. Beres v. United States, Case No. 03-785L; Clifford F. Schroeder, et al. v.
United States, Case No. 04-1456L; Clarence A. Peterson, et al. v. United States, Case
No. 04-1459L; Raymond Spencer, et al. v. United States, Case No. 04-1463L; Robert C.
Nelson, et al. v. United States, Case No. 04-1465L; and Eugene Morel, et al. v. United
States, Case No. 04-1467L.

Tanya C. Nesbitt, Trial Attorney, Natural Resources Section, Environmental 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.

OPINION

HORN, J.

At issue in the court’s Opinion is whether ten plaintiffs have an interest in the land
underlying the railroad corridor at issue in D. Mike Collins, et al. v. United States, No. 04-
1472L (Collins), Robert G. Nelson, et al. v. United States, No. 04-1465L (Nelson),
Clarence A. Peterson, et al. v. United States, No. 04-1459L (Peterson), Raymond
Spencer, et al. v. United States, No. 04-1463L (Spencer), and Clifford F. Schroeder, et
al. v. United States, No. 04-1456L (Schroeder). The plaintiffs in the specifically-named,
consolidated cases allege that the United States effected a taking without just
compensation along a 12.45-mile railroad line (the railroad corridor) near the eastern
shore of Lake Sammamish in King County, Washington, when the Surface Transportation
Board issued a Notice of Interim Trail Use (NITU) on September 18, 1998.

The ten specifically-named plaintiffs1 whose interests are addressed in this
Opinion are Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and
Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson
plaintiff Donna Marie Raab Matrinez,2 Collins plaintiffs D. Michael and Vanessa Collins,
Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs Robert and Beth
Nelson and the Estate of William F. Hughes.3

The cases were consolidated for case-management purposes under the lead case,
Warren S. Beres v. United States, Case No. 03-785L (Beres). The court previously has
issued multiple Opinions in the specifically-named cases. See Beres v. United States,
104 Fed. Cl. 408, 412 (2012) (discussing Opinions issued in the above-captioned cases)
(Beres V). In Beres V, an Opinion in which the court addressed “the scope of the rights
of way in these multifaceted takings cases, involving numerous plaintiffs, multiple

1 The parties’ filings with the court have referred to sets of married plaintiffs as one
plaintiff, and, in this Opinion, the court likewise refers to sets of married plaintiffs as one
plaintiff.
2 Documents submitted to the court throughout the course of this litigation have referred
to Donna Marie Raab Matrinez as both “Donna Marie Raab Matrinez” and “Donna Marie
Raab Martinez.” Plaintiffs submitted to the court an affidavit signed by Donna Marie Raab
Matrinez, in which Ms. Raab Matrinez signs her last name as “Raab Matrinez,” and both
parties’ cross-motions for partial summary judgment use the last name “Raab Matrinez.”
The court, therefore, will refer to that plaintiff as Donna Marie Raab Matrinez.
3 In defendant’s motion for partial summary judgment, defendant originally moved for
partial summary judgment against Paul and Joanne Spears, plaintiffs in Estate of Pearl
Welch, No. 04-1471L (Welch), as well as against Brian and Mary Conway, Scott and
Sandra DeMers, and Foster and Lemoine Radford, who are plaintiffs in Waverly Hills Club
v. United States, No. 04-1473L (Waverly Hills Club). In defendant’s reply, defendant
states:

The parties have reached a settlement in principal of the remaining claims
in Estate of Welch, No. 04-1471L and Waverly Hills Club, No. 04-1474L,
and dispositive title issues are not present in the remaining three actions:
Beres v. United States, No. 03-785L (Fed. Cl.); Brown v. United States,
No. 04-1473L (Fed. Cl.) [(Brown)]; and Morel v. United States, No. 04-1467
(Fed. Cl.) [(Morel)].

On June 12, 2018, pursuant to the parties’ June 8, 2018 joint stipulations of dismissal, the
court dismissed, with prejudice, the claims of Welch plaintiff Paul and Joanne Spears and
Waverly Hills Club plaintiffs Brian and Mary Conway, Scott and Sandra DeMers, and
Foster and Lemoine Radford, whose claims initially were addressed in defendant’s motion
for partial summary judgment.
2
statutory land grants, different deed types, a prescriptive easement and subsequent
conveyances over a more than one hundred year time period,” the court explained:

One opinion denied defendant’s motion for summary judgment regarding
the interpretation of the General Railroad Right of Way Act of 1875, 18 Stat.
482, 43 U.S.C. § 934 et seq. (repealed in 1976), (the 1875 Act), and its
effect on plaintiffs Warren and Vicki Beres. See Beres v. United States, 64
Fed. Cl. 403 (2005) [(Beres I)]. This court also issued an Order forwarding
the plaintiffs’ request for certification on relevant questions of state law to
the State of Washington Supreme Court, which the State of Washington
Supreme Court summarily denied. See Schroeder v. United States, 66 Fed.
Cl. 508 (2005) [(Beres II)]. Subsequently, this court issued an opinion,
addressing issues of collateral estoppel regarding former plaintiffs Gerald
L. and Kathryn B. Ray and a number of other plaintiffs in the above
captioned consolidated cases. See Beres, et al. v. United States, 92 Fed.
Cl. 737 (2010) [(Beres III)]. Finally, this court issued an opinion addressing
the question of fee versus easement for a number of the deeds which
conveyed rights of way to the railroads. See Beres, et al. v. United States,
97 Fed. Cl. 757 (2011) [(Beres IV)].

Beres V, 104 Fed. Cl. at 412 (footnote omitted). The facts in the Opinions discussed
above are incorporated into this Opinion, and certain facts relevant to the court’s analysis
are repeated below. Following the numerous previous Opinions issued by this court on a
variety of issues and numerous attempts by the parties at settlement negotiations, the
parties have filed cross-motions for partial summary judgment, as well as a motion to
dismiss and a motion to strike, addressed below in this Opinion.

FINDINGS OF FACT

The following specific facts which bear on the issues currently before the court are
summarized below. In 1998, the Burlington Northern and Santa Fe Railway (Burlington
Northern), a successor-in-interest to the Seattle, Lake Shore and Eastern Railway
Company, sought an exemption to abandon the railroad corridor from the Surface
Transportation Board (STB). Beres V, 104 Fed. Cl. at 417 (citation omitted). On May 13,
1998, the STB granted Burlington Northern an exemption to abandon the railroad corridor.
Id. (citation omitted). On September 16, 1998, the STB authorized The Land Conservancy
of Seattle and King County (TLC) to assume financial responsibility for Burlington
Northern’s right-of-way pursuant to the National Trails System Act, 16 U.S.C. § 1241 et
seq. (1994) (the Trails Act). Beres V, 104 Fed. Cl. at 417 (citation omitted). On September
18, 1998, the STB authorized the issuance of a NITU permitting King County and TLC to
establish a public recreational trail over the railroad right-of-way, pursuant to 16 U.S.C. §
1247(d) (1994), and, subsequently, King County reached an agreement with Burlington
Northern for use of the railroad right-of-way for trail purposes. Beres V, 104 Fed. Cl. at
417. On September 29, 1998, counsel for the TLC indicated to the STB that the parties
had reached a railbanking agreement related to Burlington Northern’s railroad corridor
pursuant to the NITU. Id.

3
Lake Sammamish is located to the west of the parcels owned by the ten plaintiffs
whose interest in the land underlying the railroad corridor currently is at issue in this
Opinion. The railroad corridor is to the east of all ten of the plaintiffs’ parcels, and the East
Lake Sammamish Parkway is to the east of the railroad corridor. The ten plaintiffs’
parcels, therefore, lie between Lake Sammamish and the railroad corridor.

Spencer, Schroeder, and Peterson Plaintiffs

The parties dispute whether the metes and bounds in the deeds conveying land to
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff
Donna Marie Raab Matrinez rebut the centerline presumption under Washington State
law. The parties also dispute whether Spencer plaintiffs Raymond and Lael Spencer,
John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and
Kathy Schroeder, and Peterson plaintiff Donna Marie Raab Matrinez have an interest in
the land underlying the railroad corridor.

The deeds conveying parcels of land to Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway all contain references
to tracts of land on an unrecorded plat map of a subdivision of land created by Willis J.
Connell, as indicated in the text of those plaintiffs’ deeds quoted below.4 The pertinent
portion of the deed conveying parcel number 173870-0035 to Spencer plaintiffs Raymond
and Lael Spencer states:

That portion of Government Lot 2[5] in Section 32, Township 25 North,
Range 6 East, in King County, Washington, described as follows:

Beginning at the intersection of a line of said Government Lot 2 with the
southwesterly line of the Northern Pacific Railway right-of-way; thence north
38 degrees 00 minutes 00 seconds east along said right-of-way line 313.29
feet to the true point of beginning; thence continuing north 38 degrees 00
minutes 00 seconds east along said right-of-way line 75.00 feet; thence
north 52 degrees 00 minutes 00 seconds west 230 feet more or less to the
westerly line of said Government Lot 2; thence southwesterly along said
westerly line to a point which bears north 52 degrees 00 minutes 00
4Unlike the deeds conveying land to Spencer plaintiffs Raymond and Lael Spencer, John
and Carolyn Rossi, and Reid and Susan Brockway, the deeds conveying land to
Schroeder plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff Donna Marie
Raab Matrinez do not contain references to the unrecorded plat map of a subdivision
created by Willis J. Connell.
5 When a section of land “contains or borders upon a body of water, which interrupts the
normal quarter-section measurements [of land], all or part of the section may be divided
into irregular portions called ‘government lots.’” See 18 W ILLIAM B. STOEBUCK & JOHN W.
WEAVER, WASHINGTON PRACTICE SERIES: REAL ESTATE § 13.2 (2d ed. 2004 & Supp. 2018).
4
seconds west from the true point of beginning; thence south 52 degrees 00
minutes 00 seconds east 230 feet more or less to the point of beginning;

(ALSO KNOWN AS Tract 8 and the northeasterly 25 feet of Tract 7,
Connell’s Subdivision of Government Lot 2, according to the unrecorded
plat thereof.)

(capitalization in original). The pertinent portion of the deed conveying parcel number
173870-0130 to Spencer plaintiffs John and Carolyn Rossi states:

That portion of Government Lot 2, Section 32, Township 25 North, Range
6 East, W.M., in King County, Washington, described as follows:

Beginning at the intersection of the southerly line of said Government Lot
with the westerly line of the right-of-way of the Northern Pacific Railway
Company and running thence northerly along said westerly line 1238.29
feet to the true point of beginning; thence northerly along said westerly line
62 feet; thence North 52° 00’ 00” West 43 feet; thence northeasterly at right
angles 13 feet; thence North 52° 00’ 00” West to the westerly line of said
Government Lot; thence southerly along said westerly line to a point from
which the true point of beginning bears South 52° 00’ 00” east; thence South
52° 00’ 00” East 210 feet, more or less, to the true point of beginning.

Together with second class shorelands adjoining.

(Also known as Tract 26 and a portion of Tract 27, Willis J. Connell’s
Subdivision, according to the unrecorded plat thereof; together with second
class shorelands adjoining.)

(capitalization in original). Similarly, the pertinent portion of the deed conveying parcel
number 173870-0080 to Spencer plaintiffs Reid and Susan Brockway states:

BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF
GOVERNMENT LOT 2, SECTION 32, TOWNSHIP 25 NORTH, RANGE 6
EAST, W.M., IN KING COUNTY, WASHINGTON, WITH THE WESTERLY
LINE OF THE NORTHERN PACIFIC RAILWAY RIGHT OF WAY; THENCE
ALONG SAID RIGHT OF WAY LINE NORTH 38°00’ EAST 738.29 FEET
TO THE TRUE PLACE OF BEGINNING; THENCE NORTH 38°00’ EAST
75 FEET; THENCE NORTH 52°00’ WEST 225 FEET, MORE OR LESS,
TO THE WESTERLY LINE OF SAID GOVERNMENT LOT 2; THENCE
SOUTHWESTERLY ALONG SAID LOT LINE TO A POINT WHICH BEARS
NORTH 52°00’ WEST FROM THE TRUE PLACE OF BEGINNING;
THENCE SOUTH 52°00’ EAST 220 FEET, MORE OR LESS, TO THE
PLACE OF BEGINNING.

5
(BEING KNOWN AS TRACT 16 AND THE SOUTH HALF OF TRACT 17,
WILLIS J. CONNELL’S SUB-DIVISION, ACCORDING TO THE
UNRECORDED PLAT THEREOF; SUBJECT TO A ROADWAY OVER
THE SOUTHEASTERLY 15 FEET THEREOF; TOGETHER WITH
SECOND CLASS SHORE LANDS RUNNING THEREON.)

(capitalization in original).

The Spencer plaintiffs state, and the plat maps submitted to the court indicate, that
Willis J. Connell created the subdivision in March 1927.6 The 1927 plat map created by
Willis J. Connell is titled “Connell’s Sub. Of Gov Lot 2” and indicates that the subdivision
is located in Section 32, Township 25 North, Range 6 East, and contains thirty-one tracts
of land. The thirty-one tracts are numbered sequentially and are all bordered by
Sammamish Lake to the west. The plat map indicates that thirty-one parcels are not all
the same size, and that the western border runs along the sinuosities of Lake
Sammamish. For example, on the plat map of Willis J. Connell’s subdivision, the distance
between Lake Sammamish and the eastern border of Tract 26, a tract identified in the
deed conveying land to Spencer plaintiffs John and Carolyn Rossi, is listed as 175 feet
wide, while the distance between Lake Sammamish and the eastern border of Tract 16,
a tract identified in the deed conveying land to Spencer plaintiffs Reid and Susan
Brockway, is listed as 225 feet wide. The distance between Lake Sammamish and the
eastern border of Tract 8, a tract identified in the deed conveying land to Spencer plaintiffs
Raymond and Cael Spencer, is listed as 250 feet wide.

To the east of the eastern border of all of the thirty-one parcels is a dotted line,
above which is written “NOR. PAC. RY.” (capitalization in original). To the east of that
dotted line is another line, above which is written “R. of Way Limit,” and to the east of line
6 Plaintiffs submitted to the court two plat maps of the subdivision created by Willis J.
Connell in 1927, the first of which plaintiffs labeled “Connell’s Plat Map ver. 1” and the
second of which plaintiffs labeled “Connell’s Plat Map ver. 2.” The plat map labeled
“Connell’s Plat Map ver. 1” is a large copy of a plat map of the subdivision created by
Willis J. Connell in 1927. The plat map labeled “Connell’s Plat Map ver. 2” appears to be
a smaller, photo-copied, black-and-white copy, sometimes very difficult to read, of the
subdivision created by Willis J. Connell in 1927. Plaintiffs’ cross-motion for partial
summary judgment indicates that the plat map labeled “Connell’s Plat Map ver. 1” and
the plat map labeled “Connell’s Plat Map ver. 2” both were created in March 1927. The
two plat maps are substantially the same, with the same number of tracts, which appear
to have the same dimensions. There do not appear to be any significant differences
between the plat map labeled “Connell’s Plat Map ver. 1” and the plat map labeled
“Connell’s Plat Map ver. 2.” The two versions of the plat map, however, do contain some
minor differences, although the minor differences do not impact the court’s analysis in this
Opinion. The court’s analysis in this Opinion discusses the plat map labeled “Connell’s
Plat Map ver. 1,” and the court’s analysis will note any differences between the plat map
labeled “Connell’s Plat Map ver. 1” and the plat map labeled “Connell’s Plat Map ver. 2”
when relevant.

6
labeled “R. of Way Limit” is yet another line, above which is written “County Road
Margin.”7 (capitalization in original). The number “50.’” is written between the eastern
edge of the parcels and the dotted line labeled “NOR. PAC. RY.,” as well as between the
dotted line labeled “NOR. PAC. RY.” and the line labeled “R. of Way Limit.” (capitalization
in original).

Based on the record before the court, it appears that Willis J. Connell died shortly
after creating the 1927 unrecorded plat map. A probate document concerning the estate
of Willis J. Connell, which is dated January 30, 1928, lists as inventory: “That portion of
Government Lot 2, Section 32, Township 25, North, Range 6 E. W. M., lying West of the
Northern Pacific Railroad right of way, together with the shore lands of the second class
fronting thereon, less the north ten feet previously conveyed.” The probate document
concerning the estate of Willis J. Connell does not explicitly mention the land underlying
the railroad corridor.

Unlike the deeds conveying parcels of land to Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, the deeds conveying
parcels to Schroeder plaintiffs Clifford and Kathy Schroeder and to Peterson plaintiff
Donna Marie Raab Matrinez do not contain references to the unrecorded plat map of the
subdivision created by Willis J. Connell. The pertinent portion of the deed conveying
parcel number 322506-9144 to Schroeder plaintiffs Clifford and Kathy Schroeder states:

Beginning at a point which is 229.36 feet east and 834.91 feet north of the
southwest corner of said Government Lot 4 and running southwesterly 66
feet along the northwesterly margin of the Northern Pacific Railroad right of
way to the point of beginning; thence north 70° 28’ 04” west to the shore of
Lake Sammamish; thence southwesterly along said shoreline to a line
which is parallel to an 250 feet southwesterly of said initial course of north
70° 28’ 04” west; thence south 70° 28’ 04” east along said parallel line to
the northwesterly margin of the Northern Pacific Railroad right of way;
thence northerly along said margin to the point of beginning. EXCEPT the
northeasterly 100 feet thereof.

(capitalization in original). The pertinent portion of the deed conveying parcel number
322506-9241 to Peterson plaintiff Donna Marie Raab Matrinez states:

That portion of government lot 3 and the northeast quarter of the southwest
quarter of section 32, township 25 north, range 6 east, W.M., in king [sic]
County, Washington, described as follows:

Beginning at the intersection of the westerly line of the Northern Pacific
Railway Company’s right-of-way with the east-west center line of said
section; thence south 38°05’37” west 282.99 feet; thence north 51°54’23”
7The plat map labeled “Connell’s Plat Map ver. 2” contains the words “Redmond Issaquah
Road” above the line marked as “County Road Margin” in the plat map labeled “Connell’s
Plat Map ver. 1.” (capitalization in original).
7
west 190 feet, more or less, to the westerly line of said government lot;
thence northeasterly along said lot line to the northwest corner thereof;
thence easterly along said lot line to the point of beginning . . . .

The “Shorelands” Conveyances and Collins plaintiffs D. Michael and Vanessa
Collins, Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs
Robert and Beth Nelson and the Estate of William F. Hughes

The parties have referred to five plaintiffs as the plaintiffs with the “shorelands”
issue. The five plaintiffs whose deeds reference second-class shorelands are Collins
plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam
Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F.
Hughes. Nelson plaintiff the Estate of William F. Hughes claims to own two parcels, the
first of which is parcel number 202506-9071 and is located in Government Lot 1. Nelson
plaintiff the Estate of William F. Hughes’ second parcel is parcel number 202506-9085
and is located in Government Lot 2. The parcels alleged to be owned by Collins plaintiffs
D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam Freedman and
Nelson plaintiffs Robert and Beth Nelson all are located in Government Lot 2.

According to defendant, “[u]nder Washington law, second-class shorelands are
‘shores of a navigable lake or river belonging to the state, not subject to tidal flow, lying
between the line of ordinary high water and the line of navigability, and more than two
miles from the corporate limits of any city.’” (emphasis in original) (quoting W ASH. REV.
CODE § 79.105.060 (2017)).8 Defendant also states that, “[i]n sum, under [Washington]
state law, ‘second-class shorelands’ are defined as lands underwater.” Plaintiffs state that
second-class shorelands “would ordinarily mean they are underwater and adjacent to so-
called ‘uplands,’[9] i.e., dry ground. See, e.g., Albee v. Town of Yarrow Point, 445 P.2d
340, 343 (Wash. 1968). But that is not the case here.” (footnote omitted). The land
underneath a body of water is considered to be the “‘bed,’” which is defined as “the land
under the water beyond the ‘shorelands,’ on tidal water also called the ‘tidelands’ or the

8The current version of the Revised Code of Washington defines first-class shorelands
as:

[S]hores of a navigable lake or river belonging to the state, not subject to
tidal flow, lying between the line of ordinary high water and the line of
navigability, or inner harbor line where established and within or in front of
the corporate limits of any city or within two miles of either side.

See W ASH. REV. CODE § 79.105.060 (2019).
9 The State of Washington Supreme Court has indicated that uplands are dry land
abutting navigable water. See Davidson v. State, 802 P.2d 1374, 1376 (Wash. 1991) (en
banc) (“When plaintiffs purchased their property in 1961, they believed they were
purchasing all of the uplands (dry land bordering the lake) and abutting shorelands
(submerged land out to the State-owned harbor area) encompassing the marina
improvements.”).
8
‘beach.’ In general, then, shorelands lie between uplands and beds.” See 18 W ILLIAM B.
STOEBUCK & JOHN W. WEAVER, W ASHINGTON PRACTICE SERIES: REAL ESTATE § 13.5 (2d ed.
2004 & Supp. 2018).

According to plaintiffs, the “story of these properties begins in the late 19th
century.” On June 13, 1887, Alfred Palmberg executed a deed conveying a 100-foot wide
strip of land to the Seattle, Lake Shore and Eastern Railway Company, on which the
railroad corridor was subsequently constructed.10 The June 13, 1887 deed provided that
“[a]ll riparian and water front rights on Lake Samamish [sic] are hereby expressly
reserved.” In Beres IV, the undersigned determined that the June 13, 1887 deed only
conveyed an easement to the Seattle, Lake Shore and Eastern Railway Company. See
Beres IV, 97 Fed. Cl. at 781-92. According to plaintiffs and defendant, as of June 13,
1887, Alfred Palmberg had not yet acquired second-class shorelands from Washington
State.

On March 30, 1893, Alfred Palmberg executed a deed conveying a parcel of land
in Government Lot 2 and Government Lot 3 to Alonzo C. Stares in exchange for $60.00.
The pertinent portion of the March 30, 1893 deed stated:

Beginning at a point on the line between lots 2 and 3 in section 20 Tp. 25 N
R. 6 E. W.M. 569 64/100 feet south of the NW corner of said lot 3 thence
west in said lot 2 two hundred and twenty one and 58/100 (221 58/100) feet
thence southwesterly along a line drawn at right angels [sic] to the center
line of the Seattle Lake Shore and Eastern Railway Company fifteen and
3/10 feet to the easterly margin of the right of way of said Railway Company
thence southeasterly along said right of way two hundred forty and 4/10
(240 4/10) feet thence east eighty seven (87) feet to the line between said
lots 2 and 3 thence east in said lot 3 fifty five (55 25/100) feet thence north
two hundred (200) feet thence west fifty five and 25/100 (55 25/100) feet to
the place of beginning containing 1 one acre Together with all riparian rights
as reserved from Seattle Lake Shore and Eastern Railway Company
fronting upon and appurtenant to the land hereinbefore described.

(the A. Stares tract). According to plaintiffs and defendant, in 1908, Alfred Palmberg died,
and his wife, Bertha Palmberg, inherited Alfred Palmberg’s property. On September 29,
1914, Bertha Palmberg and King County executed a quitclaim deed conveying to King
County a sixty-foot-wide strip of land in Governments Lots 1 and 2 “lying easterly of and
adjacent to the right of the Northern Pacific Ry.” in exchange for $200.00. Following the

10 The Seattle, Lake Shore and Eastern Railway Company subsequently was acquired
by the Seattle and International Railroad, which subsequently was acquired by the
Northern Pacific Railway Company. See Beres V, 104 Fed. Cl. at 416. In 1970, the
following railway companies merged to form the Burlington Northern Railroad: Northern
Pacific Railway Company; the Great Northern Railway; the Chicago, Burlington and
Quincy Railroad; the Spokane, Portland and Seattle Railway; and other wholly-owned
subsidiaries. Id.
9
legal description of the strip of land being conveyed appeared the words “Right-of-way
Issaquah Redmond Road.”

Bertha Palmberg appears to have died in 1918. Bertha Palmberg’s probate
document listed the following six individuals as children of Bertha Palmberg: Maude
Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, Bert Stares, and Alfred W.
Palmberg, who the parties indicate is the son of Alfred Palmberg and Bertha Palmberg.
Bertha Palmberg’s probate document listed four different parcels, each of which is located
in either Government Lot 1, 2, or 3 and is described as extending to the eastern line of
the railroad corridor. Bertha Palmberg’s probate documents indicated that each of the six
children listed above were to receive an undivided one-sixth interest in the properties
described in the probate document, as well as an undivided one-sixth interest in any other
real or personal property belonging to Bertha Palmberg. According to a title report dated
November 15, 1946, which is discussed below, it appears that Maude Palmberg, Annie
Stangroom, and Alfred W. Palmberg were the children of both Alfred Palmberg and
Bertha Palmberg. Bessie Zengel, Gertie Gorman,11 and Bert Stares appear to be children
of Bertha Palmberg, but appear to have a father other than Alfred Palmberg.

In 1928, after Bertha Palmberg’s estate had been probated, Alfred W. Palmberg
applied to purchase second-class shorelands adjacent to Government Lot 2 from the
State of Washington. Plaintiffs have submitted to the court a report “on title,” which was
completed by the Lawyers & Realtors Title Insurance Company on July 19, 1928, and
was marked as “ENTERED” by the “Commissioner Pub. Lands Office.” (capitalization in
original). The July 19, 1928 title report states that “we have examined the records” and
“find” that Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, Alfred W.
Palmberg, and Bert Stares are tenants in common for “[a]ll of Government Lot 2, EXCEPT
portion described as Parcel ‘A’ and except railroad right of way and except County roads.”
(capitalization in original). Parcel A is defined in the July 19, 1928 title report, and the
legal description of Parcel A appears to match the legal description of the A. Stares tract,
which, as discussed above, was conveyed by Alfred Palmberg, the father of Alfred W.
Palmberg, to Alonzo C. Stares in 1893. The July 19, 1928 title report further states that
the “records do not disclose the location of the railroad right of way with reference to the
meander line[12] or the high water line, however, the deed to the railroad company of the
right of way expressly reserves all riparian and water front rights on Lake Sammamish.”

11The documents submitted to the court refer to what appears to be a single individual
as both Gertie Gorman and Gertie Gorman Hughes. The parties have not established
when Gertie Gorman became Gertie Gorman Hughes. The court uses Gertie Gorman
when the relevant document states Gertie Gorman, and the court uses Gertie Gorman
Hughes when the relevant document states Gertie Gorman Hughes.
12 In 1920, the State of Washington Supreme Court stated:

By the United States government system of surveys, a meander line is run
when a water course or other body of water is the external boundary of the
adjacent land. The line showing the place of the water course of other body
of water and its course, sinuousities [sic], and distance, is called a ‘meander
10
On August 3, 1928, Edward C. Dohm, a “State Field Engineer,” submitted a report
to the State of Washington Commissioner of Public Lands regarding Alfred W. Palmberg’s
application to purchase second-class shorelands. Edward Dohm’s report states:

Sir — I herewith submit the following report on App. No. 8732 by Alfred
Palmberg (A. Palmberg) to purchase shore lands of the second class in
front of parts of lot 2, section 20, township 25 north, range 6 east, on the
east side of Lake Sammamish, in King County.

The applicant claims to be the owner of the abutting upland and states that
there are no improvements on the shore lands.

In proof of ownership has submitted the certificate of title dated July 19,
1928, from Lawyers & Realtors Title Insurance Company, showing that
Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, A.
Palmberg and Bert Stares are holders as tenants in common and as their
separate estates a certain tract of upland located in said lot 2.

This application, together with App. No. 8710 covering the balance of the
frontage bordering on said lot 2 have been given considerable study owing
to the peculiar descriptions which have been used in describing the upland
tracts. We have secured 3 maps from the Northern Pacific Railway
Company and a plat from the Engineer of King County. These plats show
the railway right of way and the county road right of way mentioned in the
descriptions and also show that the line of high water is located outside of
the west line of the Northern Pacific right of way, and also outside the
government meander line.

line.’ The general rule adopted by both federal and state courts is that
meander lines are not run as boundaries of the fractional tracts thus
surveyed, but for the purpose of defining the sinuousities [sic] of the banks
of the streams and other bodies of water and as a means of ascertaining
the acreage of such body of land subject to sale and which is to be paid for
by the purchaser. It has therefore generally been held both by federal and
state courts that such meander lines are for the purpose of showing the
border lines of the streams, but that the water courses themselves
constitute the real boundaries.

Rue v. Oregon & W.R. Co., 186 P. 1074, 1077 (Wash. 1920) (citations omitted); see also
WILLIAM B. STOEBUCK & JOHN W. W EAVER, 18 WASHINGTON PRACTICE SERIES: REAL ESTATE
§ 13.5 (2d ed. 2004 & Supp. 2018) (“‘Meander lines’ are straight-line segments, run by
surveyors, that approximately follow the sinuosities of the edge of a body of water. They
are run in straight-line segments because it would be difficult, if not practically impossible,
for a surveyor to measure and describe the irregular edge of a body of water. . . . A
meander line is not the boundary of uplands that border on a body of water; the actual
shore of the body of water is the boundary.” (footnote omitted)).
11
From our study of the records, the following description is submitted:

All shore lands of the second class owned by the State of
Washington, situate in front of, adjacent to or abutting upon the
following described uplands:

In front of all of lot 2, section 20, township 25 north, range 6 east W.
M., except the following described tract:

[legal description appearing to match the legal description of the A.
Stares tract]

The above portion of said lot 2, not thus excepted. [sic] have a
frontage of 15.81 lineal chains, more or less, measured along
government meander line.

(emphasis in original).

The State of Washington appears to have approved Alfred W. Palmberg’s
application to purchase the second-class shorelands, and Alfred W. Palmberg appears
to then have made installment payments to the State of Washington in exchange for the
second-class shorelands. On February 27, 1940, the State of Washington and Alfred W.
Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, and Bert
Stares, the six heirs of Bertha Palmberg, executed a deed, in which the State of
Washington, in exchange for compensation of $395.25, conveyed:

All shore lands of the second class, owned by the State of Washington,
situate in front of, adjacent to or abutting upon the following described
uplands:

In front of all of lot 2, section 20, township 25 north, range 6 east, W.M.,
except the following described tract:

[legal description appearing to match the legal description of the A. Stares
tract]

The above portions of said lot 2, not thus excepted, have a frontage of 15.81
lineal chains, more or less, measured along the government meander line.

According to plaintiffs’ cross-motion for partial summary judgment in this court, “[i]n
1945—and this is where the ‘shorelands’ misnomer showed up in Plaintiffs’ chain of title—
one of the heirs, Bert Stares (Bertha’s son from another marriage, hence the different last
name), filed a partition action in order to split the remaining Palmberg property between
the six heirs.” Plaintiffs submitted a complaint to this court dated June 22, 1945, which

12
was filed in the Superior Court of the State of Washington for King County and listed Bert
Stares and Gertie Gorman Hughes as plaintiffs. In subsequent documents filed with the
Superior Court of the State of Washington for King County, Gertie Gorman Hughes is
listed as a defendant, without explanation as to why Gertie Gorman Hughes originally
was listed as a plaintiff on the June 22, 1945 complaint. The June 22, 1945 complaint lists
“MAUDE PALMBERG, ANNIE STANGROON [sic], MRS AUTHUR HARRIS, Formerly
EILEEN STANGROON, BESSIE ZENGEL, Deceased and her heirs, and ALFRED [W.]
PALMBERG, Deceased and his heirs” as defendants. (capitalization in original). The
court notes that the complaint appears to incorrectly list Annie Stangroom as Annie
Stangroon. The parties have not indicated who “MRS AUTHUR HARRIS, Formerly
EILEEN STANGROON,” is or her role in the partition action, although, the November 15,
1946 title report, which is discussed below, states that Eileen Stangroon does not have
an interest in the land at issue in the partition action. (capitalization in original).

The June 22, 1945 complaint filed in Washington State court stated that “all of the
parties herein are joint owners of the following described property in King County,
Washington.” The June 22, 1945 complaint then provided:

Those portions of Government Lots 1, 2 and 3 of Section 20, Township 25
North, Range 6 E.W.M., Described as follows:

PARCEL “A”
Beginning at a point on the North line of said Government Lot 1, 630 feet
East of the Northwest corner thereof; then South 900 feet; thence
Southwesterly, at right angles to the right-of-way of the Northern Pacific
Railway Company (formerly the Seattle and International Railway) to the
Northeasterly line of said right-of-way; thence Southeasterly, along said
Northeasterly line to the South line of said Government Lot 1; thence East,
along said South line to the Southeast corner thereof; thence North, along
the East line thereof, to the Northeast corner thereof; thence West, along
the North line, to the point of beginning, EXCEPT County Road.

PARCEL “B”
Beginning at the Northeast corner of said Government Lot 2; thence South,
along the East line thereof, 569.04 feet; thence 221.58 feet; thence
Southwesterly, at right angles, to the right-of-way of the Northern Pacific
Railway Company (formerly the Seattle and International Railway), 15.3
feet, to the Northeasterly line of said right-of-way; thence Northwesterly,
along said Northeasterly line, to the North line of said Government Lot 2;
thence East, along said North line, to the point of beginning, TOGETHER
WITH second class shore lands adjoining, EXCEPT County Road.

PARCEL “C”
Beginning at the Southeast corner of said Government Lot 2; thence North,
along the East line thereof, 110 feet; thence West 87 feet to the
Northeasterly line of the right-of-way of the Northern Pacific Railway

13
Company (formerly the Seattle and International Railway); thence
Southeasterly, along said Northeasterly line, to the point of beginning,
TOGETHER WITH second class shore lands adjoining, EXCEPT County
Road.

(capitalization in original). The June 22, 1945 complaint requested that the Superior Court
of the State of Washington for King County partition the interests of the parties listed in
the complaint.

On April 14, 1948, Gertie Gorman Hughes, who, at that time, was listed as a
defendant, filed with the Superior Court of the State of Washington for King County a
document titled “BILL OF PARTICULARS,” attached to which was a copy of a title report
dated November 19, 1946. (capitalization in original). The attached November 19, 1946
title report described three separate parcels in Government Lots 1 and 2. The legal
description of the first parcel appears to match the legal description of Parcel A in the
June 22, 1945 complaint and states that title was vested in the heirs of Alfred Palmberg
and Bertha Palmberg, except for Maude Palmberg. The November 19, 1946 title report
indicates that Bert Stares acquired the interest of Maude Palmberg in the parcel with a
legal description appearing to match the legal description in Parcel A by quitclaim deed
dated June 7, 1945. The legal description of the second parcel in the November 19, 1946
title report appears to match the legal description of Parcel B in the June 22, 1945
complaint, but further states that the second parcel was “EXCEPT portion if any, in said
railroad right of way.”13 (capitalization in original). According to the November 19, 1946
title report, title to the second parcel, “EXCEPT the second class shorelands,” was vested
in S. L. Stangroom and Annie Stangroom.14 (capitalization in original). The legal
description of the third parcel in the title report appears to match the legal description of
Parcel C in the June 22, 1945 complaint, but further states that the third parcel was
“EXCEPT County Road; TOGETHER with second class shore lands adjoining, EXCEPT
portion if any, in said railroad right of way.” The November 19, 1946 title report stated that
title to the third parcel was vested in an individual, H. N. Coury, “EXCEPT the second
class shore lands,” and indicated that title to the second-class shorelands was not vested
in H. N. Coury. According to the November 19, 1946 title report, the second-class
shorelands in the second and third parcels were vested in undivided one-sixth interests
in the heirs of Alfred W. Palmberg, the heirs of Bessie Zengel, Maude Palmberg, Annie
Stangroom, Gertie Gorman Hughes, and Bert Stares.15 The November 19, 1946 title
report suggested that the Superior Court lacked jurisdiction over the land owned by H. N.
Coury.

13 As noted above, in the June 22, 1945 complaint, Parcel B was described as being
“TOGETHER WITH second class shore lands adjoining, EXCEPT County Road.”
(capitalization in original).
14 S.L. Stangroom and Annie Stangroom appear to have been spouses.
15The November 19, 1946 title report indicated that Alfred W. Palmberg and Bessie
Zengel were deceased at the time the title report was published.
14
According to the Superior Court of the State of Washington for King County’s
January 21, 1949 Findings of Fact and Conclusions of Law, a trial in the partition action
was held in September 1948. The Superior Court’s Findings of Fact and Conclusions of
Law describes three parcels, which are labeled as Parcel A, Parcel B, and Parcel C. The
Findings of Fact and Conclusions of Law described the three parcels as:

In the County of King, State of Washington, those portions of Government
Lots 1 and 2 of Section 20, Township 25 North, Range 6 E.W.M. described
as follows:

PARCEL A:

Beginning at a point on the north line of Government Lot 1, 630 feet east of
the northwest corner thereof; thence South 900 feet; thence southwesterly
at right angles to the right-of-way of the Northern Pacific Railway Company
(formerly the Seattle and International Railway) to the northeasterly line of
said right-of-way; thence southeasterly along said northeasterly line to the
south line of said Government Lot 1; thence east along said south line to
the southeast corner thereof; thence north along the east line thereof to the
northeast corner thereof; thence west along the north line to point of
beginning; thence west along the north line to point of beginning; EXCEPT
County Road;

PARCEL B:

Beginning at the northeast corner of said Government Lot 2; thence south,
along the east line thereof 569.64 feet; thence west 221.58 feet; thence
southwesterly at right angles to the right-of-way of the Northern Pacific
Railway Company (formerly the Seattle and International Railway) 15.3 feet
to the northeasterly line of said right-of-way; thence northwesterly along
said northeasterly line to the north line of said Government Lot 2; thence
east along said North line to the point of beginning; EXCEPT County Road;
TOGETHER with second class shore lands adjoining, EXCEPT portion if
any, in said railroad right of way.

PARCEL C:

The second class shorelands adjoining that certain parcel of land
particularly described as “Beginning at the Southeast corner of said
Government Lot 2; thence North, along the East line thereof, 110 feet;
thence West 87 feet to the Northeasterly line of the right of way of the
Northern Pacific Railway Company (formerly the Seattle and International
Railway); thence Southeasterly, along said Northeasterly line, to the point
of beginning, EXCEPT County Road.” [illegible] any, in said [illegible] right
of way.

15
(strike-through and capitalization in original).

The Superior Court of the State of Washington for King County found that “title to
Parcel B, exclusive of second class shorelands,” was acquired by S. L. Stangroom and
Annie Stangroom. According to the Superior Court’s Findings of Fact and Conclusions of
Law, S.L. Stangroom and Annie Stangroom acquired Parcel B, excluding the second-
class shorelands, “beneficially and not as redemption subject to claims of other heirs of
the decedent Alfred Palmberg and Bertha Palmberg.” The Superior Court’s Findings of
Fact and Conclusions of Law indicate that S. L. Stangroom and Annie Stangroom
acquired Parcel B, excluding the second-class shorelands, after the State of Washington
foreclosed on that portion of Parcel B when Bert Stares failed to pay taxes on the property
described in Parcel B, excluding the property described as second-class shorelands.
Regarding the remaining property that had not been “beneficially” acquired by the
Stangrooms, which the Superior Court of the State of Washington for King County
described as Parcel A, “PARCEL B SHORELANDS,” and Parcel C, the Superior Court
determined that “partition in kind cannot be awarded without prejudice to the right of the
parties hereto.” (capitalization in original). The Superior Court of the State of Washington
for King County concluded that “partition in the proceeds of sale can be had without
prejudicing the rights of the parties hereto,” and the Superior Court appointed Charles W.
Bovee as “referee to perform the duties imposed on referees in partition suits, including
the matter of sale of the property involved being partitioned.”

According to a document titled “REFEREE’S RETURN OF SALE,” which was
dated May 14, 1949, the referee, Charles W. Bovee, held an auction of “Parcel (a),”
“Parcel (b),” and “Parcel (c)” on April 30, 1949.16 (capitalization in original). The Referee’s
Return of Sale does not appear to contain legal descriptions of Parcel (a), Parcel (b), or
Parcel (c), but it appears that the legal descriptions contained Charles W. Bovee’s “Parcel
(a),” “Parcel (b),” and “Parcel (c)” corresponded with the legal descriptions of Parcel A,
Parcel B, and Parcel C in the Superior Court’s Findings of Fact and Conclusions of Law,
which the Superior Court of the State of Washington for King County ordered Charles W.
Bovee to partition.17 Mr. Bovee indicated in the Referee’s Return of Sale that Parcel (a)
was sold to J.J. Simpson for $7,500.00 and “Parcels (b) and (c) in combination” were sold
to J.A. Earley for $6,600.00. On May 20, 1949, the Superior Court of the State of
Washington for King County issued an order confirming Mr. Bovee’s sale and directing
that title to Parcel (a) be vested in J.J. Simpson and that title to Parcels (b) and (c) be
16Although the Superior Court of the State of Washington for King County’s January 21,
1949 Findings of Fact and Conclusions of Law refers to the relevant parcels as “PARCEL
A,” “PARCEL B,” and “PARCEL C,” Charles Bovee’s May 14, 1949 Referee’s Return of
Sale document refers to the relevant parcels as “Parcel (a),” “Parcel (b),” and “Parcel (c).”
(capitalization in original).
17As discussed above, the Superior Court of the State of Washington for King County
determined that title to the land described in Parcel B lying east of the railroad corridor
was vested in S. L. Stangroom and Annie Stangroom and was not subject to partition.
Parcel (b) in Mr. Bovee’s sale, therefore, only included the second-class shorelands
“adjoining” Parcel B.
16
vested in J.A. Earley. As indicated in the Superior Court of Washington’s January 21,
1949 Findings of Fact and Conclusions of Law, Parcel (a) contained land, but not second-
class shorelands, in Government Lot 1, while Parcels (b) and (c) contained “second class
shore lands” in Government Lot 2.

Government Lot 1

On June 8, 1949, Charles W. Bovee, as the court-appointed referee of the partition
action, executed a deed conveying land in Government Lot 1 to J.J. Simpson for
$7,500.00. Specifically, the June 8, 1949 deed stated:

That portion of Government Lot 1, Section 20, Township 25 North, Range
6, E. W. M., King County, Washington, described as follows: Beginning at a
point on the north line of Government Lot 1, 630 feet east of the northwest
corner thereof; thence south 900 feet; thence southwesterly at right angles
to the right of way of Northern Pacific Railway Company (formerly Seattle
and International Railway) to the northeasterly line of the said right of way;
thence southeasterly along said northeasterly line to the south line of said
Government Lot 1; thence east along said south line to the southeast corner
thereof; thence north along the east line thereof to the northeast corner
thereof; thence west along the north line to point of beginning; EXCEPT
County Road.

(capitalization in original). Subsequently, on July 1, 1949, J.J. Simpson and Gertie
Gorman Hughes executed a real estate contract, in which J.J. Simpson exchanged land
with a legal description appearing to match the legal description provided in the June 8,
1949 deed quoted above for $7,500.00. A statutory warranty deed conveying the land
described in the June 8, 1949 real estate contract to Gertie Gorman Hughes was recorded
on November 23, 1962.

According to plaintiffs, after executing the July 1, 1949 real estate contract with J.J.
Simpson, Gertie Gorman Hughes then “sought to purchase the adjoining shorelands from
the State.” A July 28, 1950 document titled “AFFIDAVIT OF ACTUAL OWNERSHIP and
WAIVER OF PREFERENCE RIGHT” signed by Gertie Gorman Hughes and J.J. Simpson
states that J.J. Simpson is the legal and record owner of the property described in the
June 8, 1949 deed quoted above. (capitalization in original). The July 28, 1950 document
also states that J.J. Simpson contracted to sell the land described in the June 8, 1949
deed to Gertie Gorman Hughes via the July 1, 1949 real estate contract, and that J.J.
Simpson “desires to and does waive his preference right to purchase the shore lands in
front of the above-described land, in favor of Gertie Gorman Hughes, who is the applicant
to purchase the same.”

On July 30, 1951, the Department of Public Lands for the State of Washington
issued an order conveying second-class shorelands to Gertie Gorman Hughes for
“$50.00 per lineal chain or a total value of $202.00.” The July 30, 1951 order described
the second-class shorelands as:

17
The shore lands of the second class, owned by the State of Washington,
situate in front of, adjacent to or abutting upon that portion of Lot 1, Section
20, Township 25 North, Range 6 East, W.M., lying southeasterly of a line
running S 45° 35’ W from a point in said Lot 1 which is East 630 feet and
South 900 feet from the northwest corner thereof, with a frontage of 4.04
lineal chains, more or less.

The July 30, 1951 order stated that Gertie Gorman Hughes had “purchased the abutting
uplands,” and that “by virtue of such upland ownership the said Gertie Gorman Hughes
is entitled to the preference right to purchase shore lands abutting upon her upland.”

On April 11, 1956, Gertie Gorman Hughes conveyed land in Government Lot 1,
which was described as bordering “the northeasterly margin of the Issaquah-Redmond
County Road with the south line” of Government Lot 1, to William F. Hughes. On June
14, 1966, Gertie Gorman Hughes executed a deed conveying land in Government Lot 1
to William F. Hughes and Betty Mary Hughes. The legal description of the land in the
June 14, 1966 deed had a substantially similar legal description to the legal description
of the land contained in the June 8, 1949 real estate contract between Gertie Gorman
Hughes and J.J. Simpson. The June 14, 1966 deed further stated that the conveyance
was “LESS” an area of land to the east of “the Issaquah-Redmond County Road” and that
the conveyance was

TOGETHER WITH the second class shorelands conveyed to the above
named grantor from the State of Washington by deed dated September 19,
1951, and recorded in Volume 3098 of Deeds at Page 491 under King
County Auditor’s Receiving No. 4185298.

(capitalization in original).

On March 8, 1978, Gertie Gorman Hughes executed a deed with William John
Hughes and Peggy Anne Hughes. The March 8, 1978 deed conveyed appearing to match
the land described in the June 14, 1966 deed following the word “LESS” and described
as being east of “the Issaquah-Redmond County Road.” (capitalization in original). In
1987, William F. Hughes and Betty Mary Hughes executed a deed conveying a strip of
land in Government Lot 1 to William John Hughes and Peggy Anne Hughes. In 1988, the
Hughes family appears to have implemented a lot line adjustment in Government Lot 1.
On May 26, 1989, William F. Hughes and Betty Mary Hughes executed a deed with the
Kao Family Partnership. In the May 26, 1989 deed, William F. Hughes and Betty Mary
Hughes appear to only convey lands lying to the east of the County Road, and do not
appear to convey the second-class shorelands to the west of the County Road. According
to plaintiffs’ cross-motion for partial summary judgment, “[t]he Hugheses received and
retained all lands in the partition action in Government Lot 1 except for the part later
deeded east of the right of way.”

18
Government Lot 2

Following the Superior Court of the State of Washington for King County’s
confirmation of the sale of Parcels (b) and (c) to J.A. Earley on May 20, 1949 by Charles
W. Bovee, the court-appointed referee, Mr. Bovee and J.A. Earley executed a deed for
$6,600.00 on June 8, 1949. The June 8, 1949 deed described the land being conveyed
as follows:

Those portions of Government Lot 2, Section 20, Township 25 North, Range
6 E. W. M., King County, Washington, described as follows:

The second class shore lands adjoining the following described property:
Beginning at the northeast corner of said Government Lot 2; thence south
along east line thereof 569.64 feet; thence west 221.58 feet; thence
southwesterly at right angles to right of way of the Northern Pacific Railway
Company (formerly the Seattle and International Railway) 15.3 feet to the
northeasterly line of said right of way; thence northwesterly along said
northeasterly line to the north line of said Government Lot 2; thence east
along said north line to the point of beginning; EXCEPT County Road;
EXCEPT portion if any, in said railroad right of way;

The second class shore lands adjoining that certain parcel of land
particularly described as: Beginning at the southeast corner of said
Government Lot 2; thence north, along the east line thereof, 110 feet;
thence west 87 feet to the northeasterly line of the right of way of the
Northern Pacific Railway Company (formerly the Seattle and International
Railway); thence southeasterly, along said northeasterly line, to the point of
beginning, EXCEPT County Road. EXCEPT portion, if any, in said railroad
right of way.

(capitalization in original). On August 11, 1949, Charles W. Bovee filed a petition for a
corrected deed for J.A. Earley in the Superior Court of the State of Washington for King
County, in which Mr. Bovee stated that the legal description in June 8, 1949 deed was
“ambiguous.” On August 12, 1949, the Superior Court of the State of Washington for King
County issued an Order instructing Charles W. Bovee to issue a corrected deed to J.A.
Earley.

Charles W. Bovee executed a corrective deed dated August 11, 1949 to J.A.
Earley. The August 11, 1949 contained the following legal description of the land being
conveyed to J.A. Earley:

All shore lands of the second class formerly owned by the State of
Washington situated in front of, adjacent to or abutting upon government lot
2, section 20, township 25 north, range 6 east, W. M., except the shore
lands in front of the following described tract:

19
[legal description appearing to match the legal description of the A. Stares
tract]

The portions of said government lot 2, not thus excepted, have a frontage
of 15.81 lineal chains, more or less, measured along the government
meander line.

The shorelands hereby conveyed are all the shore lands of the second class
conveyed by that certain deed from the State of Washington to Alfred
Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie
Gorman and Bert States by deed dated February 27, 1940 . . . .

Nelson plaintiff the Estate of William F. Hughes, parcel number 202506-9085,
Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam
Freedman and Nelson plaintiffs Robert and Beth Nelson assert that they all “trace their
ownership of the right of way back to Earley, who purchased the ‘second class
shorelands’ – i.e., the shorelands, uplands, and right of way – in the partition action.” In
each of the deeds conveying land to Nelson plaintiff the Estate of William F. Hughes,
parcel number 202506-9085, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, and Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson,
the land being conveyed is described as second-class shorelands “adjacent to,”
“abutting,” or “adjoining” Government Lot 2.

Adverse Possession

According to all ten plaintiffs, “in the unlikely event their title failed to convey
ownership underlying the railroad right of way, then the circumstances show they are
entitled to partial summary judgment on the alternative basis that they or their
predecessors adversely possessed the right of way.” The ten plaintiffs each assert that
“evidence shows that under Washington State law they (or their predecessors) satisfied
the elements of adverse possession to the subject properties on or before September 18,
1998,” prior to the issuance of the NITU, and, therefore, obtained an interest in the land
underlying the railroad corridor through adverse possession. Defendant, however,
contends that the plaintiffs “cannot adversely possess the reversionary interest in the
right-of-way.” Defendant has not yet conducted discovery into whether plaintiffs have
adversely possessed the land underlying the railroad corridor. Defendant contends that,
“[i]f the Court allows Plaintiffs’ adverse possession claims to proceed, the United States
requests that the Court deny Plaintiffs’ cross-motion for partial summary judgment
pursuant to RCFC [Rules of the United States Court of Federal Claims] 56(d) in order to
allow the United States adequate time to discover facts necessary to its defense” because
the “current posture of the litigation is such that the parties have not engaged in intensive
factual or expert discovery on the issue of adverse possession.”

20
Procedural History

Defendant filed a motion for partial summary judgment, in which defendant argues
that Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff
Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and
the Estate of William F. Hughes do not own the land underlying the railroad corridor.
Regarding plaintiffs’ alternative argument that they obtained an interest in the land
underlying the railroad corridor through adverse possession, defendant asserts that
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff
Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and
the Estate of William F. Hughes cannot adversely possess the land underlying the railroad
corridor because plaintiffs’ adverse possession claims are preempted by the I.C.C.
Termination Act of 1995 (the ICCTA). Defendant also argues that, under Washington
State law, plaintiffs cannot adversely possess a reversionary interest.

Plaintiffs filed a single, combined cross-motion for partial summary judgment, in
which Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff
Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and
the Estate of William F. Hughes each assert that they own the land underlying the railroad
corridor in fee through their respective deeds. Alternatively, Spencer plaintiffs Raymond
and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder
plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez,
Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam
Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F.
Hughes argue that, if they do not own the land underlying the railroad corridor based on
their deeds, “then plaintiffs or their predecessors adversely possessed the fee title subject
to the railroad easements before September 18, 1998.” According to plaintiffs’ cross-
motion, the ICCTA does not preempt their alternative adverse possession claims, nor
does Washington State law bar their alternative adverse possession claims. Plaintiffs
attached to their cross-motion for partial summary judgment a declaration signed by Jerry
Broadus, who states that he is “a retired licensed land surveyor and inactive (retired)
attorney in Washington State,” a declaration signed by Vicki E. Orrico, who states that
she is “a lawyer licensed to practice law in the State of Washington,” and a declaration
signed by Charles A. Klinge, who states that he has “been an attorney since 1990 and
admitted to practice in the State of Washington since 1996.”

Subsequently, defendant filed a motion to strike the declarations signed by Mr.
Broadus, Ms. Orrico, and Mr. Klinge. In defendant’s motion to strike, defendant argues
that the court should strike the declarations signed by Mr. Broadus, Ms. Orrico, and Mr.
Klinge because ownership of the land underlying the railroad corridor is a legal question

21
not suitable for expert testimony. Defendant also asserts that plaintiffs violated Rule
26(a)(2) (2018) of the Rules of the United States Court of Federal Claims (RCFC) by
failing to disclose Mr. Broadus, Ms. Orrico, and Mr. Klinge as experts, and that Mr.
Broadus, Ms. Orrico, and Mr. Klinge are not qualified to provide expert testimony.
Plaintiffs filed an opposition to defendant’s motion to strike, in which plaintiffs argue that
“[d]efendant confuses expert statements that are offered to assist the Court in
understanding the evidence with inadmissible legal conclusions.” Plaintiffs contend that,
“[w]ith no trial scheduled, the declarations do not violate RCFC 26(a)(2),” and that Mr.
Broadus, Ms. Orrico, and Mr. Klinge are qualified as expert witnesses. According to
plaintiffs, striking the declarations signed by Mr. Broadus, Ms. Orrico, and Mr. Klinge is
“not an appropriate remedy if any remedy is needed.”

In a footnote in defendant’s motion for partial summary judgment, defendant had
stated that the “United States renews its objection that this Court does not have
jurisdiction to entertain Plaintiffs’ adverse possession claims because they must be
adjudicated in a Washington state proceeding before they can be asserted against the
United States in a takings case.” Defendant’s cross-motion presumably referred to
defendant’s opposition to plaintiffs’ March 17, 2017 motion requesting that the court issue
“an order affirming this Court has jurisdiction to determine whether the land taken by the
United States had been adversely possessed by certain plaintiffs prior to the taking,”
which the court had denied as premature. After receiving the parties’ filings discussed
above, the court issued an Order directing defendant to update and restate its challenge
to this court’s jurisdiction over plaintiffs’ alternative claims involving adverse possession.

Thereafter, defendant filed a motion to dismiss plaintiffs’ claims of acquiring an
interest in the land underlying the railroad corridor through adverse possession pursuant
to RCFC 12(b)(1) (2018) and 12(b)(6) (2018). Defendant argues that the court lacks
jurisdiction over plaintiffs’ adverse possession claims because the claims “are between
private parties and cannot be definitively resolved by this Court.” According to defendant,
“[e]ven if the Court were to find that it has subject matter jurisdiction over Plaintiffs’
adverse possession claims, these claims should still be dismissed under RCFC 12(b)(6)
because the facts Plaintiffs have alleged do not entitle them to a legal remedy.” Plaintiffs
filed an opposition to defendant’s motion to dismiss, in which plaintiffs argued that this
court does have jurisdiction over plaintiffs’ adverse possession claims, to which defendant
filed a reply.

DISCUSSION

“Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g
en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see also Int’l Elec.
Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The Tucker
Act, 28 U.S.C. § 1491 (2018), grants jurisdiction to this court as follows:

22
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon the
Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express or implied contract with the United States,
or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United States
(1) founded on an express or implied contract with the United States, (2) seeking a refund
from a prior payment made to the government, or (3) based on federal constitutional,
statutory, or regulatory law mandating compensation by the federal government for
damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);
see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.
Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,
552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable
under the Tucker Act. The claim must be one for money damages against the United
States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United
States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116
(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566
F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that
creates the right to recovery of money damages against the United States.”); Golden v.
United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United
States, the United States Court of Appeals for the Federal Circuit identified three types of
monetary claims for which jurisdiction is lodged in the United States Court of Federal
Claims. The Ontario Power Generation, Inc. court wrote:

The underlying monetary claims are of three types. . . . First, claims alleging
the existence of a contract between the plaintiff and the government fall
within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver
encompasses claims where “the plaintiff has paid money over to the
Government, directly or in effect, and seeks return of all or part of that sum.”
Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
[1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in
which ‘the Government has the citizen’s money in its pocket’” (quoting
Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .
Third, the Court of Federal Claims has jurisdiction over those claims where
“money has not been paid but the plaintiff asserts that he is nevertheless
entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.
Claims in this third category, where no payment has been made to the
government, either directly or in effect, require that the “particular provision
of law relied upon grants the claimant, expressly or by implication, a right to
be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.

23
[392,] 401-02 [1976] (“Where the United States is the defendant and the
plaintiff is not suing for money improperly exacted or retained, the basis of
the federal claim-whether it be the Constitution, a statute, or a regulation-
does not create a cause of action for money damages unless, as the Court
of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as
mandating compensation by the Federal Government for the damage
sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
commonly referred to as claims brought under a “money-mandating”
statute.

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.
of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.’” United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see
also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.
Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.
Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief
must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.
at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional
provision[] that operate[s] to waive sovereign immunity for claims premised on other
sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the
Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject
matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,
1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);
see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881; Fisher v. United
States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (noting that the absence of a money-
mandating source is “fatal to the court’s jurisdiction under the Tucker Act”); Price v. United
States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66
(2009).

When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson
v. Pardus, 551 U.S. 87, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a
judge must accept as true all of the factual allegations contained in the complaint.” (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246,
1249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as
true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)));
Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir.
2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).

24
“Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff’s claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the
grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing
that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)
(2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555-57, 570). To properly state a claim for relief, “[c]onclusory allegations of
law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.
Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in
part) (quoting C. W RIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1286 (3d
ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations
unsupported by any factual assertions will not withstand a motion to dismiss.”), aff’d, 460
U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief above the
speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting
v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated
in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

In the specifically-named cases, plaintiffs allege that defendant effected a taking
under the Fifth Amendment to the United States Constitution through the operation of the
Trails Act. The Takings Clause of the Fifth Amendment to the United States Constitution
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 N.Y., 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).

25
“[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); 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).

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.

26
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 (2018). A railroad seeking to abandon any part of its railroad line must either
(1) file an application to abandon or (2) file a notice of exemption to abandon the line. See
49 U.S.C. § 10903 (2018); see also 49 C.F.R. § 1152.50 (2018). “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

27
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 provider18 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) (2018) (“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
1279, 1285 (Fed. Cir.) (“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))), reh’g and reh’g en banc denied (Fed. Cir. 2014); 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
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
18 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).
28
enough to encompass a recreational trail. See Preseault II, 100 F.3d at
1552; see also Toews [v. United States], 376 F.3d [1371,] at 1376 [(Fed.
Cir.), reh’g denied (Fed. Cir. 2004)].

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)); Burnett v. United
States, 139 Fed. Cl. 797, 804 (2018) (“A Fifth Amendment takings occurs in rails-to-trails
cases when the government, through the issuance of a CITU [Certificate of Interim Trail
Use] or NITU, destroys an individual’s state law reversionary interest in property
underlying a railroad right-of-way.” (citing Ladd v. United States, 630 F.3d at 1023-24));
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
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); see also Chi. Coating Co., LLC v. United States, 892 F.3d
1169, 1170 (Fed. Cir. 2018) (citing Ellamae Phillips Co. v. United States, 564 F.3d at

29
1373); Butler v. United States, 139 Fed. Cl. 617, 622 (2018) (quoting Ellamae Phillips Co.
v. United States, 564 F.3d at 1373).

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.”); see also Chi. Coating
Co., LLC v. United States, 892 F.3d at 1170 (citing Bd. of Regents v. Roth, 408 U.S. 564,
577 (1972)). 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 Cty. v. United States, 37 Fed. Cl. 545, 565 (1997)
(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

30
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.”’” (omission in original) (quoting Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of Regents v. Roth,
408 U.S. at 577)). 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.”). The
parties do not dispute that Washington State law applies to the specifically-named cases.

In the specifically-named cases, all ten plaintiffs assert that plaintiffs are entitled to
compensation because plaintiffs own the land underlying the railroad corridor “by way of
their deeds.” Alternatively, all ten plaintiffs allege that they acquired title to the land
underlying the railroad corridor through adverse possession. Defendant asserts that this
court lacks jurisdiction over plaintiffs’ claims based on plaintiffs’ alternative adverse
possession theory because the claims are “inchoate claim[s]” and involve “unresolved
claims between private parties,” namely the plaintiffs and unidentified third-parties who
allegedly own fee interest in the land underlying the railroad corridor. According to
defendant, the court lacks jurisdiction to resolve such questions involving third parties
because the Tucker Act only provides this court with jurisdiction to resolve claims against
the United States. Defendant argues that, in United States v. Sherwood, 312 U.S. 584
(1941), the United States Supreme Court “found that a Tucker Act claim must be
dismissed if ‘maintenance against private parties is prerequisite to prosecution of the suit
against the United States . . . .’” (omission in original) (quoting United States v. Sherwood,
312 U.S. at 588). In its motion to dismiss, defendant notes that “there may be little case
law on this specific issue.”

Plaintiffs assert that “Plaintiffs could find no case directly on point—likely none exist
because the [defendant’s jurisdictional] argument seems so far-fetched.” All of the
plaintiffs, however, argue that it is the court’s “task” to determine whether plaintiffs
acquired interests in the land underlying the railroad corridor through adverse possession,
as plaintiffs, alternatively, have alleged. Plaintiffs assert that, under Washington State
law, “once the requisite elements of adverse possession are met title is perfected and the
land belongs to the adverse possessor regardless of any judicial proceeding.” (emphasis
in original). Moreover, plaintiffs contend that the court “routinely adjudicates” whether a
plaintiff has a compensable interest in a takings case. Plaintiffs argue:

31
[W]hen construing a deed or other documents in a Trails Act takings case
and consequently deciding whether or not the plaintiff was a bona fide
owner on the date of take, the Court will have reviewed evidence and
necessarily decided that other successors in interest to the original owner
of the right of way—i.e., absent third parties—did or did not own the right of
way. And more specifically to this point, a plaintiff in this Court need not first
file a quiet title action in a state court to have a state court confirm title as
between other, potential third-party owners of the property underlying a
railroad easement before the plaintiff can file a takings case in this Court or
before this Court can rule on the merits of ownership.

All ten plaintiffs also contend that their “claims are against the United States for taking
their property interests that were vested in them as of September 1998—they are not
making any claim against a purported absent third party because the title vested in them
either by deeds or via adverse possession long ago.” (emphasis in original). According to
plaintiffs, defendant misconstrues United States v. Sherwood, 312 U.S. 584, because, in
the specifically-named cases, “there is no requirement that there first be a quiet title suit
brought elsewhere in a state court to perfect or vest title in Plaintiffs.”

In United States v. Sherwood, Jacob Sherwood had recovered a judgment in a
New York State court against Frederick Kaiser in the amount of $5,567.22. United States
v. Sherwood, 312 U.S. at 585. The New York State court’s order “authorized” Jacob
Sherwood “to bring suit against the Government to recover for breach of its contract with
Kaiser for the construction of a post office building.” See id. Subsequently, Jacob
Sherwood filed a lawsuit against the United States and Frederick Kaiser in the United
States District Court for the Eastern District of New York. See id. In discussing the Tucker
Act jurisdiction of the United States Court of Claims, a predecessor court to this court, the
United States Supreme Court stated that the Court of Claims’ jurisdiction

is confined to the rendition of money judgments in suits brought for that relief
against the United States . . . and if the relief sought is against others than
the United States the suit as to them must be ignored as beyond the
jurisdiction of the court. . . . [O]r if its maintenance against private parties is
prerequisite to prosecution of the suit against the United States the suit must
be dismissed.

Id. at 588 (citations omitted). The United States Supreme Court stated that the lawsuit
filed by Jacob Sherwood could not have been “maintained in the Court of Claims because
that court is without jurisdiction of any suit brought against private parties and because
adjudication of the right or capacity of respondent [Jacob Sherwood] to proceed with the
suit upon the contract of the judgment debtor [Frederick Kaiser] with the United States is
prerequisite to any recovery upon the Government contract.” Id.

The cases before this court, however, differ from the circumstances in Sherwood,
because, under Washington State law, plaintiffs did not, prior to filing suit in this court,
need to bring actions against third-parties in order to have obtained interests in the land

32
underlying the railroad corridor through adverse possession. The State of Washington
Supreme Court has stated:

The doctrine of adverse possession permits a party to acquire legal title to
another’s land by possessing the property for at least 10 years in a manner
that is “(1) open and notorious, (2) actual and uninterrupted, (3) exclusive,
and (4) hostile.” ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 757, 774 P.2d
6 (1989) (citing Chaplin v. Sanders, 100 Wash. 2d 853, 857, 676 P.2d 431
(1984)). Title vests automatically in the adverse possessor if all the
elements are fulfilled throughout the statutory period. El Cerrito, Inc. v.
Ryndak, 60 Wash. 2d 847, 855, 376 P.2d 528 (1962) (“When real property
has been held by adverse possession for 10 years, such possession ripens
into an original title.”).

Gorman v. City of Woodinville, 283 P.3d 1082, 1083 (Wash. 2012) (en banc); see also
Ofuasia v. Smurr, 392 P.3d 1148, 1157 (Wash. Ct. App. 2017) (“[T]itle automatically vests
in an adverse possession claimant when the requirements of adverse possession have
been satisfied for 10 years.” (citing Gorman v. City of Woodinville, 283 P.3d at 1083)).
Thus, “[w]hen a person adversely possesses real property for 10 years, such possession
ripens into an original title.” Nickell v. Southview Homeowners Ass’n, 271 P.3d 973, 978
(Wash. Ct. App.) (citing El Cerrito, Inc. v. Ryndak, 376 P.2d at 532), review denied, 282
P.3d 96 (Wash. 2012); see also Smale v. Noretep, 208 P.3d 1180, 1182 (Wash. Ct. App.
2009) (“If the Smales adversely possessed the portion of the disputed property that
originally fell within their fence line, their possession ripened into original title after 10
years of possession.” (citing El Cerrito, Inc. v. Ryndak, 376 P.2d at 532)). The filing of a
quiet title action in a Washington State court is not a “prerequisite” to obtaining title
through adverse possession under Washington State law. See Gorman v. City of
Woodinville, 283 P.3d at 1085; see also Ofuasia v. Smurr, 392 P.3d at 1157 (stating that
a “new title holder need not file suit to perfect” an interest in land obtained through adverse
possession (citing Gorman v. City of Woodinville, 283 P.3d at 1085)); Halverson v. City
of Bellevue, 704 P.2d 1232, 1234 (Wash. Ct. App. 1985) (stating that Washington State
law “is clear that title is acquired by adverse possession upon passage of the 10-year
period,” not when a quiet title action is filed, and that a “quiet title action merely confirm[s]
that title to the land had passed” (citations omitted)).

In the specifically-named cases, the ten plaintiffs did not need to file lawsuits
against private parties in order to establish ownership interests in the land underlying the
railroad corridor through adverse possession. Under Washington State law, if plaintiffs
had satisfied the elements for adverse possession by September 18, 1998, when the
NITU was issued in the specifically-named cases, plaintiffs could have had vested
interests in the land underlying the railroad corridor when the alleged taking occurred.
Washington State law does not require that the plaintiffs in these cases maintain a quiet
title action in Washington State court in order to acquire or confirm their interests in the
land underlying the railroad corridor, as title in the allegedly adversely possessed land
automatically would vest by operation of law when all of the requisite elements for adverse
possession were satisfied, which plaintiffs contend occurred prior to the issuance of the

33
September 18, 1998 NITU. Plaintiffs’ claims in the specifically-named cases generally
also differ from a quiet title action, which plaintiffs could have filed in Washington State
court or federal district court against the alleged third parties. In this court, none of the
plaintiffs currently addressed in this Opinion have requested, as they could have done in
Washington State court or in federal district court, that, based on plaintiffs’ adverse
possession claims, the court independently “confirm[]” that title has passed to the
plaintiffs. See Gorman v. City of Woodinville, 283 P.3d at 1084 (internal quotation marks
and citation omitted). Nor are any of the plaintiffs seeking to “obtain paper title in the form
of a court judgment that he has acquired title.” See 17 W ILLIAM B. STOEBUCK & JOHN W.
WEAVER, W ASHINGTON PRACTICE SERIES: REAL ESTATE § 8.6 (2d ed. 2004 & Supp. 2018).19
Rather, plaintiffs seek to establish as an alternative theory that the actions of the United
States resulted in a taking of their property in violation of the Fifth Amendment to the
United States Constitution.

Moreover, plaintiffs’ claims in the specifically-named cases are against the United
States, not “unidentified third parties who are not before the Court,” as defendant argues.
None of plaintiffs’ claims seek remedies from the alleged third parties not before the court.
The ten plaintiffs in the specifically-named cases allege that the United States effected a
taking without just compensation along the railroad corridor, when the Surface
Transportation Board issued a NITU on September 18, 1998, and that plaintiffs had
acquired, prior to September 18, 1998, interests in the land underlying the railroad either
through their deeds or through adverse possession. In order to assess the validity of the
plaintiffs’ takings claims, the court must determine whether each of the plaintiffs had an
interest in the property allegedly taken by the government. See Casitas Mun. Water Dist.
v. United States, 708 F.3d at 1348 (stating that, “[f]irst, the court determines whether the
claimant has identified a cognizable Fifth Amendment property interest that is asserted to
be the subject of the taking”). Plaintiffs’ alleged takings claims may involve considering
whether plaintiffs had satisfied the elements of adverse possession under Washington
State law as of September 18, 1998, but consideration of such evidence does not alter
the nature of plaintiffs’ claims, which seek to acquire compensation for an alleged taking
by the government. Indeed, in a situation involving a title dispute in a takings claim
between a plaintiff and the United States, the United States Court of Claims stated:

If plaintiff had brought suit to be restored possession of her land, perhaps
the issue would be different and 28 U.S.C. 2409a might require this suit be
brought in the district court. But this is not a suit for possession. It is a just
compensation action and thereby within the historical jurisdiction of the
court. To hold otherwise would allow defendant in its answer to determine
the situs of an action by alleging governmental ownership. This we decline
to do.

19The State of Washington Supreme Court has referred to William B. Stoebuck as a “well
regarded commentator.” See Presbytery of Seattle v. King Cty., 787 P.2d 907, 913
(Wash.) (en banc), cert. denied, 498 U.S. 911 (1990); see also Bain v. Metro. Mortg. Grp.,
Inc., 285 P.3d 34, 40 (Wash. 2012) (en banc) (discussing the statements of “learned
commentators William Stoebuck and John Weaver”).

34
Bourgeois v. United States, 212 Ct. Cl. 32, 35 n.1, 545 F.2d 727, 729 n.1 (Ct. Cl. 1976);
see also Katzin v. United States, 908 F.3d 1350, 1366 (Fed. Cir. 2018) (Newman, J.,
dissenting) (“When title is disputed as to property purportedly taken, and the remedy
sought is just compensation, the Court of Federal Claims has authority to decide title.”).
Thus, because plaintiffs’ claims do not require the filing of a quiet title suit under
Washington State law in order to establish their interest in the land, and because all of
the plaintiffs assert takings claims against the United States for monetary compensation,
this court concludes it does have jurisdiction to address plaintiffs’ alternative claims of
acquiring interests also through adverse possession. The court, therefore, denies
defendant’s motion to dismiss under RCFC 12(b)(1) based on defendant’s position
regarding plaintiffs’ alternative adverse possession theory.

Although the parties have not cited, and there does not appear to be case law
directly addressing the court’s jurisdiction over the specific type of adverse possession
claims presented in this case and discussed above, the court notes that, in determining
whether the ten plaintiffs acquired an interest in the land underlying the railroad corridor
through the deeds in their chains of title, the court will be required to analyze deeds
between plaintiffs and third-parties not currently before the court, as well as deeds
between plaintiffs’ predecessors-in-title and judicial proceedings involving the land at
issue in the specifically-named cases. The court notes that members of this court routinely
have examined chains of title, which involve numerous transactions involving interests in
land executed by third parties not before the court, to determine whether plaintiffs possess
a valid interest in land allegedly taken by the government. See, e.g., the undersigned’s
decision in Lucier, et al. v. United States, 138 Fed. Cl. 423, 464-66, recons. denied, 138
Fed. Cl. 793 (2018).

Additionally, in defendant’s motion to dismiss, defendant briefly argues, “[i]n each
complaint, Plaintiffs alleged that they had obtained their property interest by a deed,” and
that, “[e]ven if the Court were to find that it has subject matter jurisdiction over Plaintiffs’
adverse possession claims, these claims should still be dismissed under RCFC 12(b)(6)
because the facts Plaintiffs have alleged do not entitle them to a legal remedy.” According
to plaintiffs, however, “[e]ach complaint alleges that Plaintiffs possess property interests
and are silent as to the method of acquiring the interest,” and that plaintiffs are not
required to allege in the complaints “the method by which ownership was obtained.” In
the complaints of Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi,
and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder,
Peterson plaintiff Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa
Collins, Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs Robert and
Beth Nelson and the Estate of William F. Hughes, each plaintiff simply “claims” an
“interest” in the “real property” which plaintiffs allege has been taken by the government.
None of the plaintiffs’ complaints assert acquisition of a property interest in the land
underlying the railroad corridor solely through a deed, but, rather, assert that the plaintiffs
did have an interest in the land underlying the railroad corridor as of the date of the alleged
taking by the government. The complaints plausibly allege that each plaintiff had an

35
interest in the land allegedly taken by the government, and the court denies defendant’s
motion to dismiss pursuant to RCFC 12(b)(6).

The parties also have crossed-moved for partial summary judgment. RCFC 56
(2018) is similar to Rule 56 of the Federal Rules of Civil Procedure in language and 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); Fed. R. Civ. P. 56(a) (2018); 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 at 1286; 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

36
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
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)) (citation omitted), vacated on other
grounds, 970 F.2d 890 (Fed. Cir. 1992); 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 Premier Office Complex of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed.
Cir. 2019); Chi. Coating Co., LLC v. United States, 892 F.3d at 1169; 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.

37
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 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; and 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 (Fe

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4388001. Public record. Not legal advice.