Mills v. United States

In the United States Court of Federal Claims

No. 15-1233L

(Filed: February 28, 2020)

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

Fifth Amendment Taking; Rails-

PAULINE MILLS, et al.,

to-Trails; Motion for Partial

Summary Judgment; RCFC 56;

Plaintiffs,

Trails Act; Florida Law; Right-

of-Way

v.

THE UNITED STATES,

Defendant.

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John R. Sears, St. Louis, MO, for plaintiffs.

Barbara M.R. Marvin, who was at the time with the United States

Department of Justice, Environment & Natural Resources Division,

Washington, DC, with whom was Jean E. Williams, Deputy Assistant

Attorney General.

OPINION

BRUGGINK, Judge.

This is an action brought under the Tucker Act1 for an alleged failure

to pay just compensation owed under the Fifth Amendment. Plaintiffs are

Florida landowners whose properties adjoin a railroad which has ended its

operations. Plaintiffs allege that, but for the operation of the Trails Act,2 the

1

The Tucker Act provides that the United States Court of Federal Claims has

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.” 28 U.S.C. § 1491(a)(1) (2012).

2

The Trails Act “preserve[s] shrinking rail trackage by converting unused

rights-of-way to recreational trails.” Preseault v. I.C.C., 494 U.S. 1, 4 (1990)

(“Preseault I”).

railroad would be deemed to have abandoned the track and their underlying

fee interests would no longer be burdened by an easement. Pending before

the court is plaintiffs’ August 26, 2019 motion for partial summary judgment

on liability under Rule 56 of the Rules of the United States Court of Federal

Claims. Defendant has cross-moved but limited its motion to partial

summary judgment on threshold title issues.

The matter is fully briefed, and oral argument was held on January 15,

2020. The motions raise difficult questions of Florida real estate law,

complicated by the virtually complete lack of original documents. For the

reasons explained below, we grant plaintiffs’ motion for partial summary

judgment on liability.

BACKGROUND3

This rails-to-trails case arises out of actions taken by the Surface

Transportation Board (“STB”), an agency of the United States, that issued a

Notice of Interim Trail Use (“NITU”) on July 14, 2014, to CSX

Transportation, Inc. (“CSXT”). Prior to issuing the NITU, CSXT filed a

Verified Notice of Exemption for the purposes of abandoning approximately

11.62 miles of rail line on CSXT’s Southern Region, in Alachua County,

Florida. CSXT is the successor in interest to the Live Oak, Tampa and

Charlotte Railway (“LOTCHR”), which received transfers of interests in

land from plaintiffs’ predecessors in interest in the 1880’s. The nature of

those interests is at issue in the pending motions.

Plaintiffs are the Estate of Pauline Mills (Claim 1), Southeast

Investment Management, Inc. (“SIM”) (Claims 2 and 3), Mary Forrester

(Claim 4), Bowtie Properties, Inc. (Claim 5), Florida Timber Co. (Claim 6),

the Eric J. Parker Living Trust (Claim 7), and the Estate of Bettye R. Freeney

(Claim 8). Each plaintiff claims to have owned fee simple title to the land

adjacent to and underneath the railroad line on the date of the taking.

Plaintiffs argue that, “[b]ut for the operation of the Trails Act, [they] would

have the exclusive right to physical ownership, possession, and use of their

property free of any easement for recreational trail use or future railroad use.”

Am. Compl. ¶ 13.

3

The facts are not materially disputed and derive from the Plaintiffs’

Amended Complaint (“Am. Compl.”) (ECF No. 15), Pls.’ Findings of Fact

(“Pls.’ Facts”) (ECF No. 70) and accompanying exhibits, as well as the

parties Joint Stipulations Regarding Title Matters (“Joint Stipulations”) (ECF

No. 37).

2

Defendant’s response relies on the interests of railroads which have

operated in this location for over one hundred years. The railroad interests

trace back to July 23, 1881, when LOTCHR was incorporated under the

general laws of Florida. As early as 1883, LOTCHR began to acquire land

and obtain deeds for construction of a railroad corridor, although none of the

deeds that LOTCHR obtained at that time are in the chain of title relevant in

this case. In 1884, however, LOTCHR merged with the Savannah, Florida,

and Western Railway Company, and, in 1893, LOTCHR connected with the

South Florida Railroad Company (“SFR”), which had already begun

constructing a railroad corridor in the area. Relying on the railroad charter

that SFR had obtained from the state of Florida, LOTCHR obtained interests

in land that are at issue in this case.

The sources of the railroad interests at issue here can be classified into

three groups. The easiest to dispose of relates to Claims 2 and 3. The parties

agree that, on May 5, 1893, a deed from J. Cummer & Son Lumber Co.

conveyed an easement limited to railroad purposes to LOTCHR and that

plaintiff SIM is thus entitled to a finding of summary judgment on the

threshold title issue in its favor. See Joint Stipulations ¶ 2.

The second type of conveyance implicates the claims of the Florida

Timber Co. (Claim 6) and the Eric J. Parker Living Trust (Claim 7). This

conveyance was a “bond for deed” executed on January 17, 1893, by the

Anglo Florida Phosphate Company. The “bond for deed” provides that:

[the Anglo Florida Phosphate Company] of the county of

[Alachua] and State of [Florida] for and in consideration of the

sum of [One] Dollar[], do hereby bind myself, my heirs,

executors, administrators and assigns, firmly by these presents,

to make good and sufficient deeds of warrantee to [SFR] of the

State of Florida, to a right of way [100] feet wide through the

following lands . . .

Reserving to myself and assigns the right to mine and remove

all phosphate and mineral deposits in such manner as not to

interfere with or endanger the track or road-bed of said railroad

company when constructed. The conditions of the above bond

being that said [SFR] shall within [six] months build a railroad

through said property; otherwise of no force and effect . . .

On this day personally appeared before me . . . to me well

known, and acknowledged that [they] executed the foregoing

bond for deed, for the purpose therein expressed.

3

Pls.’ Facts, Ex. H.

The parties disagree as to whether the instrument from the Anglo

Florida Phosphate Company was a present conveyance of any interest in

land, and, if it was, whether it was a fee or only an easement for a right-of-

way for railroad purposes. Plaintiffs argue that the “bond for deed” operated

as a present conveyance, but only of an easement. Defendant argues that the

instrument was not a present conveyance of any kind and ineffective to

transfer any interest in land.

The third category of claims relates to the four properties represented

in Claims 1, 4, 5, and 8. As to these parcels, the parties have not been able to

locate any instrument of transfer. Instead, plaintiffs offer secondary

evidence: a valuation map prepared by the Interstate Commerce Commission

(“ICC”), STB’s predecessor agency, which indicates that the railroad

interests in these properties were obtained under authority of state charter

granted to the railroad. The ICC valuation map was prepared in 1917 based

on information furnished to the ICC by railroad companies in order to

inventory their property. The then-functioning railroad, the Atlantic Coast

Line Railroad Company (“ACL”), represented that there was “No Record of

Conveyance” with respect to these four properties and that the railroad had

obtained its “[p]ossession under Charter.” Pls.’ Facts, Ex. F at PLF000027.4

The parties have been unable to locate the relevant charter. They disagree

about the legal effects of this state of the record. Defendant urges that, in the

absence of direct proof by plaintiffs that only an easement was obtained, the

court should assume that the railroad obtained a fee. Plaintiffs, of course,

urge the contrary.

Plaintiffs also argue, in the alternative, that even if this court finds that

the railroad did not acquire the lands related to this third category of claims

by Charter, it should consider whether the railroad obtained the land by

prescriptive use. Defendant, also in the alternative, responds that, if the

railroad did not obtain the land pursuant to its charter or a conveyance, it

could only have an interest by adverse possession, but that it is plaintiffs’

4

The ICC valuation also provides a column labeled “Kind of Instrument”

which shows that the J. Cummer & Son Lumber Co. obtained its interest in

property relating to Claims 2 and 3 by deed. Id. With respect to the interest

in property relating to Claims 6 and 7, the ICC valuation map uses the terms

“bond” and “deed” interchangeably for the “Kind of Instrument” granted by

the Anglo Florida Phosphate Company. Id.

4

duty to prove the elements and that what was acquired was only an easement,

two things defendant asserts they have failed to do.

Even assuming that the railroads only operated under easements with

respect to these four parcels, defendant also argues that “the uses authorized

by the Trails Act are not inconsistent with the scope of any such easements.”

Def.’s Cross-Motion for Partial Summ. J. (“Def.’s Cross-Motion”) 6.

Defendant further requests that this court withhold any ruling on the United

States’ liability until the Federal Circuit issues a ruling in the pending appeal

in Caquelin vs. United States, 140 Fed. Cl. 564 (2018), appeal docketed, No.

19-1385 (Fed. Cir. Jan. 9, 2019).

It is undisputed that CSXT quit operating on the trail in question in

July of 2014, and that the parcels owned by plaintiffs adjoin the railroad

corridor. See Joint Stipulations ¶ 3. The NITU was issued on July 14, 2014,

and published in the Federal Register on July 15, 2014. Since that time, no

trail use agreement has been reached between the STB and CSXT, and the

current negotiation deadline for expiration of the NITU has been extended

until February 16, 2020.5

DISCUSSION

The Trails Act “preserve[s] shrinking rail trackage by converting

unused rights-of-way to recreational trails,” known as “railbanking[.]”

Preseault I, 494 U.S. at 5. In order for a railroad right-of-way to be converted

into a recreational trail, the railroad must either (1) file a standard

abandonment application with the STB or (2) seek an exemption from filing

the application. Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir.

2004). “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.” Id. at 1228-29 (citations

omitted).

If the railroad and trail operator are willing to negotiate a trail use

agreement, the STB stays the abandonment and issues a NITU, allowing the

railroad right-of-way to be “railbanked[.]” Id. at 1229. The government’s

action to issue a NITU “operates to prevent abandonment of the corridor and

to preclude the vesting of state law reversionary interests in the right-of-

way.” Id. at 1233-34. Thus, “the appropriate triggering event for any takings

5

Counsel has notified the court that a trail use agreement still has not been

entered, nor has the deadline been extended.

5

claim under the Trails Act occurs when the NITU is issued.” Id. at 1235.

The operation of the Trails Act, like any government action, is subject

to the Fifth Amendment Takings Clause. Preseault I, 494 U.S. at 12-16. If

the government takes private property pursuant to the Trails Act, it must

provide just compensation. See id. If the railroad owns the underlying right-

of-way in fee simple at the time of the alleged taking, however, “another

party cannot be owed just compensation for the taking of that land.” Whispell

Foreign Cars, Inc. v. U.S., 97 Fed. Cl. 324 (2011). In a takings case, “only

persons with a valid property interest at the time of the taking are entitled to

compensation.” Wyatt v. U.S. 271 F.3d 1090, 1096 (Fed. Cir. 2001). “A Fifth

Amendment taking occurs if the original easement granted to the railroad

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

trail.” Caldwell, 391 F.3d at 1229 (citations omitted).

Thus, as the Federal Circuit explained, a rails-to-trails takings claim

presents three questions for determination:

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

[r]ailroad . . . acquire only easements, or did it obtain fee simple

estates; (2) if the [r]ailroad 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 [r]ailroad’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”). The parties have stipulated that the plaintiffs owned the adjacent parcels

of land to the railroad corridor on July 14, 2014. The issue raised by both

parties’ motions is whether the railroad owned the land underlying the right-

of-way in fee simple or whether it only had an easement.

We analyze the property rights of the parties under the applicable state

law, in this case, that of Florida. Rogers v. United States, 814 F.3d 1299,

1305 (Fed. Cir. 2015) (“Rogers I”) (citing Preseault II, 100 F.3d at 1543).

Florida, like many other states, follows the well-established rule:

[w]hen the language of a deed is clear and certain in meaning

and the grantor’s intention is reflected by the language

employed, there is no room for judicial construction of the

6

language nor interpretation of the words used . . . If there is no

ambiguity in the language employed then the intention of the

grantor must be ascertained from that language.

Rogers v. United States, 184 So.3d 1087, 1095 (Fla. 2015) (“Rogers II”). A

court should “consider the language of the entire instrument in order to

discover the intent of the grantor, both as to the character of the estate and

the property attempted to be conveyed, and to so construe the instrument as,

if possible, to effectuate such intent.” Reid v. Barry, 93 Fla. 849, 852 (1927).

Here, of course, the typical admonition is of little use, given the paucity of

transfer instruments. We turn now to the estates at issue.

A. The Anglo Florida Phosphate Co. Instrument

The Anglo Florida Phosphate Co. instrument purports to be a “bond

for deed,” which we quote above. It is the only instrument that the parties

were able to locate with respect to the claims of the Florida Timber Co.

(Claim 6) and the Eric J. Parker Living Trust (Claim 7).

The parties have different views of the effect of the “bond for deed.”

Plaintiffs contend that the words of the instrument constitute an immediate

transfer of an easement: “the bond serves as a deed, the purpose of the bond

was a conveyance, and the conveyance was a right in land and not of land

itself.” Pls.’ Resp. to Def.’s Cross-Mot. For Partial Summ. J. (“Pls.’ Resp.”)

3. Plaintiffs argue that, because the instrument granted only a right-of-way,

expressly retained mineral rights, and contained a clause requiring the

railroad to be built within six months, that it conveyed an easement at most.

Defendant, on the other hand, argues that the bond for deed was

ineffective to pass title, pointing out that it does not contain any granting

language and has no habendum clause. Specifically, defendant argues that

unlike the language contained in the J. Cummer & Son Lumber Co. deed,

which states that the lumber company “has granted, bargained, sold and

transferred, and . . . does grant, bargain, sell, and transfer unto the [Railroad],

its successors, and assigns the right of way for Railroad purposes over a strip

of land[,]” the bond for deed contains no language granting a present estate.

Def.’s Reply in Supp. of Cross-Motion for Partial Summ. J. (“Def.’s Reply”)

2. Defendant argues that “the language in the document is that of a contract

pursuant to which the grantor is agreeing to enter into a deed in the future

giving the railroad title to, or rights in, its property.” Def.’s Cross-Motion 10.

Defendant also argues that, if construed to convey anything, the

instrument contemplated a grant of a fee, not an easement, because,

7

according to the government, in Florida, a grant of a railroad right-of-way is

presumed to be a fee. Moreover, defendant argues that the clause requiring

the railroad to be built does not provide for a reverter of the property interest,

and that the reservation of mineral rights is inconsistent with the grant of only

an easement.

In Tucker v. Cole, 148 Fla. 214, 215 (1941), the Florida Supreme

Court considered whether a similar instrument was sufficient to convey a

present estate. The written instrument in that case provided:

‘Know all Men By These Presents that I, B. M. Dell of the State

of Florida and County of Alachua have this day bargained and

sold, aliened, confirmed and delivered unto R. J. Steele & J.

W. Roper of the State of North Carolina & Co. of Richmond a

certain tract or parcel of land situate, lying and being in the

State of Florida and County of Marion on the South side of

Orange Lake in Township Twelve (12) South of Range 22 East

and North of Section 26 containing six hundred & forty acres

(640), also two other parcels of land adjoining this containing

120 acres. The said Steele and Roper agreeing to pay me for

the above named lands the sum of Six Thousand Dollars in

three several installments as follows, viz. Two Thousand

Dollars on the 20th February next, Two Thousand Dollars on

the first of January 1856, Two Thousand Dollars on the first of

January 1857 and I agree and bind myself, my heirs, executors

administrators and assigns in the sum of Twelve Thousand

Dollars to the said Steele & Roper to make them a title or deed

to the above named land in fee simple when they have made

me the third or last payment as above prescribed. In witness of

which I have hereunto set my hand and Seal this the 18th day

of December 1854.[’]

Id. at 215-16.

The Florida Supreme Court agreed with the trial court’s determination

that the parties’ intention was sufficiently clear from the instrument to

convey a present estate. The key to this holding was the presence of a

granting clause: “have this day bargained and sold, aliened, confirmed and

delivered.” Id. at 219. In so holding, the court cited with approval to 16

American Jurisprudence section 20, which the court stated provided:

‘In order that an instrument purporting to convey title to land

or an interest or estate in land may be valid as a deed and

8

operative to pass such title to or interest in land, it is essential

that there be a grantor, a grantee and a thing granted, and that

it convey a present interest or estate. It is further necessary that

the instrument be signed by the grantor, someone whom he

directs to sign for him, or his authorized agent, be attested and

acknowledged in conformity to the local statutory

requirements, and delivered by the grantor to the grantee, or to

someone in his behalf and accepted by the grantee. No

prescribed form is, however, essential to the validity of a deed

or to make it operative if it makes known the transaction. To

make a conveyance valid, it is in general sufficient that there

be parties able to contract and to be contracted with, a proper

subject matter sufficiently described, apt words of conveyance,

and an instrument of conveyance duly sealed and delivered.

Generally speaking, any words which denote the intention of

the parties to a deed to transfer the title from one to another are

sufficient to make a conveyance, and the court will give effect

to that intention notwithstanding inaccuracy of expression or

the inaptness of words used.’

Id. at 219-20.6

Here, although we have a grantor, the Anglo Florida Phosphate Co., a

grantee, the SFR, and a thing to be granted, a right-of-way through the

described lands, what is missing is conveyance of “a present interest or

estate.” There is no granting clause. We thus agree with defendant and find

that the bond for deed was merely a contract whereby the grantor agreed to

bind itself to provide a deed to the railroad at a later date. It was ineffective

to transfer any interest in land to the railroad. The claim is not at an end,

however. As we explain in detail later, we find that the railroad took this

section by operation of its state charter, and, absent a record of a

condemnation or conveyance, the railroad gained only an easement for

railroad purposes. This result, we believe, is proper whether the SFR

acquired its interest in the property via the Anglo Florida Phosphate Co.

instrument or via operation of law by means of the railroad’s charter because

all that was conveyed or otherwise took was a railroad right-of-way.

Admittedly, the law in Florida on this subject is less than consistent.

Defendant is able to point to Florida Power Corp. v. McNeely, where the

6

We are unable to locate a first edition of American Jurisprudence. The

relevant current second edition section is found at 23 Am. Jur. 2d Deeds §

12 (February 2020 update).

9

court held that “a railroad right of way . . . is not a mere easement or user for

railroad purposes but is a fee vested in the railroad.” 125 So. 2d 311, 316

(Fla. Dist. Ct. App. 1960) (reh’g denied, 138 So. 2d 341 (Fla. 1961)).

McNeely in turn relies on Atl. Coast Line R. Co. v. Duval Country, 114 Fla.

254, 332 (Fla. 1934)), where the Florida Supreme Court held that:

[a] railroad right of way in . . . [Florida] is not a mere easement

or use for railroad purposes. Like other property it is acquired

by purchase or condemnation and vests a fee in the company

acquiring it which cannot be divested except as the law

provides.

Id. at 332.

As Judge Williams of this court pointed out in Rogers v. United States,

however, the parties in Atl. Coast Line R. Co. agreed that the railroad

acquired a fee in the right-of-way, “[t]hus, when the Florida Supreme Court

stated that a railroad right-of-way was not an easement, it did so in a context

where there was no question that the railway had obtained the land in fee

simple.” Rogers v. United States, 90 Fed. Cl. 418, 430 (2009) (“Rogers III”).

The relevant question was not before the court. I.e., the holding is merely

dicta, at best. Indeed, the court in McNeely clarified that “[t]his is not to say

that a railroad by arrangement or otherwise could not under any

circumstances operate by virtue of an easement.” Id. at 317.

Moreover, in Rogers I, 814 F.3d at 1299, the Federal Circuit clarified,

by referral of a legal question to the Florida Supreme Court, that, under

Florida state law, “a railroad can acquire either an easement or fee simple

title to a railroad right-of-way and that no statute, state policy, or factual

considerations prevails over the language of the deeds when the language is

clear.” Id. at 1309. It is incorrect, in other words, to assume that a grant to a

railroad of a right-of-way in Florida is necessarily a fee.

We think the better view is that a “right-of-way” for railroad purposes

should be construed according to its natural meaning, i.e. “[t]he right to pass

through property owned by another.” Right-of-Way, Black's Law Dictionary

(11th ed. 2019). In addition, there was no reference in the bond to a fee estate

or anything that might look like a fee estate, “land,” for instance. If plaintiff

was correct, in other words, that a present property interest was granted by

the Anglo Florida Phosphate Co. instrument, it would have been an

easement—the same result reached by our analysis below concerning the

effect of the Florida railroad charter statute.

10

B. Properties Acquired by Railroad Charter

With respect to Claims 1, 4, 5, and 8, the parties agree that the ICC

valuation map indicates that the railroad acquired its interests by charter.7

Defendant argues, however, that simply because the ICC’s notation indicated

that the railroad acquired its property interest by charter, “does not equate to

the railroad holding only an easement in the property.” Def.’s Reply 4.

Rather, defendant points out that, “under the Florida statutes applicable at the

time the [r]ailroad acquired its Interests, chartered railroads could acquire

and hold fee simple title in property.” Id. (citing Chap. 1987 of the Act of

February 19, 1874, (“Corporations–Railroads and Canals,”) § 10 (the third

power granted by the statute to railroad corporations in section 10),

hereinafter referred to as “1874 Act, Chap. 1987.”

Defendant, relying on the 1874 Act, Chap. 1987, points out that, at the

time, railroad companies were authorized to “purchase, hold, and use such

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

maintenance of its road or canal . . . .” Id. § 10. The statute also provided

that, when a “railroad or canal company formed under this chapter shall not

have acquired any real estate required for the purposes of its incorporation,”

it shall have the right to acquire the land by condemnation. Id. § 13. As

discussed below, however, neither party has produced any evidence that the

railroad purchased the land in dispute, nor has either produced evidence of a

condemnation proceeding.

In any event, while we agree with defendant that, under Florida

statutes applicable at the time, a railroad could acquire and hold fee simple

title in property by either purchase or condemnation, they were not limited

to acquiring only fee estates. The deed from J. Cummer & Son Lumber Co.,

for example, is an instance of a Florida railroad obtaining an easement by

purchase.

Defendant also argues that the ICC notation “held by Charter” cannot

be construed as an “admission” regarding the means by which the railroad

acquired its interests or to the nature of the interest conveyed. Id. In support

of this argument, defendant cites to Amaliksen v. United States, 55 Fed. Cl.

167 (2003), wherein this court stated: “The purpose of [the ICC’s] maps was

to identify parcels for valuation, not to distinguish types of ownership.” Id.

at 175. Defendant concludes that the ICC notation does not show what

7

The plaintiffs and corresponding claims are the Estate of Pauline Mills

(Claim 1), Mary Forrester (Claim 4), Bowtie Properties, Inc. (Claim 5), and

the Estate of Bettye R Freeney (Claim 8).

11

interest the railroad acquired or that the railroad began operations on the land

without a deed; rather, it merely shows “that the [r]ailroad had the right to

acquire and hold land pursuant to its charter from the State of Florida.” Def.’s

Reply 5-6.

Defendant’s reliance on Amaliksen is misplaced. The issue there was

whether it was appropriate to invoke any interpretive aids, such as earlier

deeds or ICC valuation maps, to show ownership when the language of the

deed was otherwise clear on its face. 55 Fed. Cl. at 172. Here, unlike

Amaliksen, neither party has provided any evidence of a deed. On the

contrary, plaintiffs have provided the only evidence of how the railroad

acquired its property interests: the ICC valuation map, which explicitly

states: “No Record of Conveyance” and “[p]ossession under Charter.” Pls.’

Facts, Ex. F.

While defendant agrees that “[the ICC valuation map] provide[s] a

guide to identifying the conveyance instruments by which railroads acquired

their interests in their railroad corridors,” it argues that simply because the

ICC valuation map provides that there is no record of conveyance and that

the railroad obtained its interest in the property by Charter, this does not mean

that the property was acquired without a deed. Def.’s Cross-Motion 14.

Rather, defendant states that “this could simply mean that at the time the

schedule was created[,] neither the ICC nor the [r]ailroad could identify or

locate the deed or other conveyance instrument applicable to that property.”

Id. Defendant also suggests that plaintiffs have failed to search beyond the

ICC valuation map for a record of a conveyance and relied on a mere

presumption that no deed exists.

Plaintiffs counsel certified to the court, however, that the railroad

“was subpoenaed in this case and produced all of its deeds and records of

acquisition and [that] none of them are for these segments . . . .” Pls.’ Resp.

6. Plaintiffs have done what they can, and it is thus inappropriate to speculate,

as defendant does, that the railroads might have obtained their interests by

fee and that we should merely assume that was the case.

Plaintiffs argue that, because the ICC valuation map clearly states that

the property has “No Record of Conveyance” and because it identifies that

the railroad obtained its “possession by Charter,” this means that there was

no conveyance instrument and that the only lawful means the railroad had

for obtaining possession was by Charter. Id. Plaintiffs point out that the ICC

valuation maps were created by the railroad, rather than the ICC, and each

map identifies the railroad engineer who filed the map with the ICC. See Pls.’

Facts, Ex. F. We reject defendant’s speculation and agree with the plaintiffs

12

that these definitive statements, absent any evidence to the contrary, suffice

to establish that there were no records of conveyance relating to these

segments in the property at issue.

Plaintiffs conclude by arguing that, given that there are no records of

conveyance and because the railroad acquired the property under color of

charter, the only conclusion left is “that the railroad entered the property

without a deed and used its powers to cut its easements through the property

and begin operations.” Pls.’ Resp. 5. In support, plaintiffs cite Pensacola &

Atlantic R.R. Co. v. Jackson, 21 Fla. 146, 152 (Fla. 1884), and Florida

Southern R. Co. v. Hill, 23 So. 566, 570 (Fla. 1898). In Pensacola & Atlantic

R.R. Co., the Florida Supreme Court stated that when “a chartered railroad

company wrongfully or without lawful right enters upon and takes

possession” of land, the landowner is not divested of his title to the land. 21

Fla. at 146. Moreover, in Florida Southern R. Co., the Florida Supreme Court

opined that, when a railroad takes possession of land without the landowners’

consent, and without condemnation proceedings, the railroad receives the

same rights and interests “which they would have secured by regular

condemnation proceedings, i.e. the right to the perpetual use of the property

for the purposes of their incorporation . . . .” 23 So. at 570. Thus, plaintiffs

argue that because the railroad obtained its interests in plaintiffs’ properties

under charter and without a conveyance or through condemnation, it obtained

only easements for railroad purposes.

Defendant responds that Florida Southern R. Co. does not support

plaintiffs’ argument because there “the landowners claimed that the railroad

‘unlawfully and wrongfully entered upon [their] land’ and constructed its

rights of way and tracks, and that they were entitled to compensation for the

railroad’s taking of their land.” Def.’s Cross-Motion 16 (quoting Florida S.

R. Co., 23 So. at 567). Defendant urges that the court did not hold “that if a

railroad takes land without a conveyance or other form of permission and

without pursuing condemnation proceedings, it necessarily obtains only an

easement for railroad purposes.” Id. at 17. Rather, defendant argues that the

court held that, under these circumstances, “the owner may treat his claim

for compensation as a vendor’s lien and foreclose in equity.” Id.

While the court in Florida S. R. Co. assumed that the railroad had

unlawfully and wrongfully entered onto complainant’s land, “the

complainants waived the tortious acts, ratified the [railroad’s] possession,

and regarded the taking and possession as done under the power of eminent

domain.” 23 So. at 570. Plaintiff’s preferred remedy of ousting the railroad,

in other words, was unavailable. Thus, the Florida Supreme Court did not

rely on whether there was a tortious or wrongful taking, rather it considered

13

the appropriate remedies left to the complainants when the railroad took land

without an agreement and without condemnation. Id. at 568.

Indeed the decision in Florida Southern R. Co. makes plain that

although the Florida courts view possession under charter as “without

permission” of the landowner when there was no purchase or condemnation,

it is not truly tortious in the sense that there was no color of right. 23 So. at

570 (“even where the original taking is tortious, because against the consent

of the owner, and without condemnation, it is, nevertheless, necessarily

referable to the power of eminent domain”). In other words, the railroad

charter gave it the right to enter; compensation would be determined later.

In making its determination that the railroad had to compensate the

complainants for the property taken, the court analyzed the principles

provided in Organ v. Memphis & L.R.R. Co., 51 Ark. 235, 236 (1889), where

the Arkansas Supreme Court held that, when a railroad takes land without an

agreement and without condemnation, the owner of such land may deem the

act as done under the right of eminent domain and demand just

compensation. Florida S. R. Co., 23 So. at 570. The Florida Supreme Court

viewed the Arkansas Supreme Court’s decision in Organ “as being

eminently just, and correct in principle, for the transaction is nothing more

nor less than an implied sale of an easement in the land, induced . . . by the

compulsory features of the power of eminent domain . . . .” Id. (citations

omitted). The Florida Supreme Court determined that “[t]he compensation

due [to] the owner is always in part, and frequently wholly, purchase money

for a perpetual interest in, or easement over, the land; and, inasmuch as equity

always implies a lien for the purchase price upon a voluntary sale upon credit

by the owner . . . .” Id. It went on to state that the railroad had “received the

same rights and interests in complainants’ property which they would have

secured by regular condemnation proceedings, i.e. the right to the perpetual

use of the property for the purposes of their incorporation . . . .” Id.

Although not explicitly discussed in Florida Southern R. Co., it must

be recognized that railroads in Florida were granted by the 1874 Act the right

to enter lands for purpose of building railroads without permission from the

owners, a form of eminent domain. 1874 Act, Chap. 1987 § 10 (fourth power

granted). They were not forced to wait for conveyance or condemnation. If

no voluntary conveyance was agreed upon, railroads were authorized to

obtain title by condemnation. Id. §§ 13-14. Construction of the railroad was

authorized before or pending the condemnation proceedings. Id. § 14.

Discussion of “lawfulness” thus must be viewed in the context of this general

grant of authority.

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We thus conclude that the best distillation of the law in Florida is that,

when a railroad company takes land under color of its statutory charter but

without an agreement and without a condemnation proceeding, it does not

divest the landowners of title and that the railroad merely obtains perpetual

use of the land for the purposes of its incorporation, i.e. an easement for

railroad purposes. We thus need not reach the issue of whether plaintiffs have

met established the elements of adverse possession or right of use by

prescription. There is no question what interest passed to the railroad with

respect to Claims 1, 4, 5, 6, 7, and 8. We find that the railroad acquired only

an easement in the land for railroad purposes by operation of charter.8

C. The Scope of the Easements

All that remains is defendant’s fallback position that the scope of the

easements might have encompassed railbanking. With respect to the

properties conveyed by the J. Cummer and Son Lumber Co. deed, defendant

does not dispute the scope of the easements. It agrees that the deed conveyed

an easement expressly limited to use for railroad purposes. Therefore, the

landowners that owned the property abutting the railroad right-of-way on the

date that the STB issued a NITU are entitled to just compensation under the

Fifth Amendment, as discussed below. As to the rest of the claims, however,

defendant argues that the scope of those easements do not preclude

railbanking and trail use.

Plaintiffs point out that this court “remains consistent in holding that

railbanking with interim recreational trail use is not a railroad purpose and

thus exceeds the scope of a railroad purpose easement.” Pls.’ Resp. 5.

Specifically, plaintiffs point to Glosemeyer v. United States, 45 Fed. Cl. 771,

779 (2000), wherein this court rejected the government’s argument that

recreational trail use and railbanking qualified as railroad purposes. In

Glosemeyer, this court quoted the Missouri Court of Appeals in rejecting the

government’s argument:

The term ‘railroad purposes’ . . . does not encompass other

forms of transportation, such as walking or bicycling, and the

8

With respect to Claims 6 and 7, which we found not to have been voluntarily

conveyed by the proffered bond for deed, we find the landowners in the same

position as those in Florida Southern R. Co. The railroad entered the property

and built a railroad, which, as we explained above, it had the color of right

to do pending its acquisition of title by agreement or condemnation. That

final step being missing from the record, the railroad acquired a perpetual

right of use, which is to say an easement for railroad purposes.

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recreational purposes . . . . The proposed development of a

hiking, biking, cross-country skiing, and nature trail is

completely unrelated to the operation of a railway and

consistent only with an intent to wholly and permanently cease

railway operations.

Id. at 779 (quoting Boyles v. Miss. Friends of Wabash Trace Nature Trail,

Inc., 981 S.W. 2d 644, 649-50 (Mo. Ct. App. 1998)). Plaintiffs further cite a

variety of decisions reaching the same result for other jurisdictions: Ellamae

Phillips Co. v. United States, 564 F.3d 1367 (Fed. Cir. 2009) (Colorado);

Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005) (Idaho); Preseault II,

100 F.3d at 1533 (Vermont); Schmitt v. United States, 2003 WL 21057368

at *7, *8 (S.D. Ind. 2003); (Indiana); Schneider v. United States, No.

8:99CV315, 2003 WL 25711838 (D. Neb. Aug. 29, 2003) (Nebraska);

Blendu v. United States, 75 Fed. Cl. 543 (2007) (Idaho); Schnabel v. County

of DuPage, 428 N.E.2d 671 (Ill. 1981) (Illinois); Pollnow v. State Dep't of

Natural Resources, 276 N.W.2d 738 (1979) (Wisconsin).

Furthermore, plaintiffs cite to this court’s holding in Rogers III,

where we held that, “[i]n Florida, the scope of an easement does not increase

with time, and accordingly, the ‘burden of a right of way upon the servient

estate must not be increased to any greater extent than reasonably necessary

and contemplated at the time of initial acquisition.’” Id. (quoting Crutchfield

v. F.A. Sebring Realty Co., 69 So. 2d 328, 330 (Fla. 1954)). In reaching the

decision that railbanking and trail use did not fall into the scope of the

easement granted to the railroad, this court relied on the Federal Circuit’s

analysis in Preseault II–i.e., whether at the time of the conveyance the parties

contemplated that the railroad could preserve its future use of the right of

way as a public trail.9 Id.

9

In Preseault II, the Federal Circuit determined that the language of the

easement conveyed by the original parties did not contemplate the railroad’s

ability to preserve the use of the right-of-way for future public recreational

trail purposes. The Preseault II court held:

When the easements here were granted to the Preseaults'

predecessors in title at the turn of the century, specifically for

transportation of goods and persons via railroad, could it be

said that the parties contemplated that a century later the

easements would be used for recreational hiking and biking

trails, or that it was necessary to so construe them in order to

give the grantee railroad that for which it bargained? We think

not. Although a public recreational trail could be described as

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Here, pursuant to its state charter, the railroad acquired an easement

for railroad purposes. We find, as we have many times before, that the

conversion of the easement to a public recreational trail constitutes a new and

unauthorized use. The landowners who owned the property abutting the

railroad right-of-way on the date the STB issued the NITU are entitled to just

compensation under the Fifth Amendment, as discussed below.

D. The Date of the Taking

Defendant also requested that this court withhold any ruling on

liability until the Federal Circuit issues a ruling in the pending appeal in

Caquelin. As the Federal Circuit has not yet issued an opinion in Caquelin,

defendant argues that this court should limit any ruling to a liability

determination only if “a trail agreement become[s] finalized.” Def.’s Cross-

Mot. 7. Plaintiffs, however, argue that “[t]he Federal Circuit has not issued

any ruling on any issue related to whether a taking occurs absent a trail

agreement.” Pls.’ Resp. 15 (citing Caquelin v. United States, 697 Fed. App.

1016, 1019-20 (Fed. Cir. 2017)). Rather, plaintiffs argue that, according to

the Federal Circuit’s per curium opinion in Caquelin, the court stated that

“[e]n banc review may be warranted” based on the factors in Arkansas Game

& Fish Commission v. United States, 568 U.S. 23 (2012), to address “whether

Ladd [v. United States, 630 F.3d 1015 (Fed. Cir. 2010)] should remain

governing precedent.” Caquelin, 697 Fed. App. at 1019.

On remand, Judge Lettow, in Caquelin, observed that the government

may take property physically or by regulation. Caquelin vs. United States,

140 Fed. Cl. 564, 573 (2018). These takings may be further divided into two

categories, categorical and non-categorical. Id. A categorical taking deprives

a roadway for the transportation of persons, the nature of the

usage is clearly different. In the one case, the grantee is a

commercial enterprise using the easement in its business, the

transport of goods and people for compensation. In the other,

the easement belongs to the public, and is open for use for

recreational purposes, which happens to involve people

engaged in exercise or recreation on foot or on bicycles. It is

difficult to imagine that either party to the original transfers

had anything remotely in mind that would resemble a public

recreational trail.

100 F.3d at 1542-43.

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landowners of all economically viable use of their property, while a non-

categorical taking deprives the landowner of some amount of the economic

use of their land. Id. Either taking may be permanent or temporary. Id.

Ultimately, Judge Lettow determined that, in a rails-to-trails case, a

categorical physical taking occurs upon the issuance of a NITU, regardless

of whether the NITU results in trail use of the corridor or if a trail agreement

is reached. Id. at 578. Although this court determined that the Arkansas Game

& Fish factors would be inapplicable to a categorical physical taking, Judge

Lettow nevertheless applied them, concluding that “a taking occurred when

the STB issued a NITU that blocked Mrs. Caquelin’s reversionary interest in

the land.” Id. at 584.

Here, it is undisputed that the STB issued a NITU on July 14, 2014,

that the parcels owned by plaintiffs adjoin the railroad corridor, and that no

trail use agreement has been reached between the STB and CSXT. As the

NITU has prevented abandonment of the corridor and precluded the plaintiffs

from their reversionary interests in the land underlying the right-of-way, we

find that the STB’s issuance of a NITU effected a categorical physical taking

and that the government owes plaintiffs just compensation. Nor, in any event,

would the application of the Arkansas Game & Fish factors would lead to a

different result. Cf. Banks v. United States, 138 Fed. Cl. 141 (2018) (denying

the government’s request to await a trial decision in Caquelin and granting

summary judgment on liability for the plaintiffs for a temporary taking).

CONCLUSION

Because the railroad obtained only a railroad right-of-way and that

easement did not encompass railbanking, we grant plaintiffs’ motion for

partial summary judgment on liability and deny defendant’s cross-motion.

The parties are directed to confer and propose further proceedings in a joint

status report, on or before March 20, 2020.

s/Eric G. Bruggink

ERIC G. BRUGGINK

Senior Judge

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