# Chevy Chase Land Co. of Montgomery County v. United States

> United States Court of Federal Claims · March 10, 1997 · 37 Fed. Cl. 545

URL: https://www.frixlaw.com/law-library/cases/6646329

## Case

- **Full name:** The CHEVY CHASE LAND COMPANY OF MONTGOMERY COUNTY, MARYLAND, and Columbia Country Club, a District of Columbia corporation, Intervenor-Plaintiff v. The UNITED STATES, and Montgomery County, Maryland, Third-party
- **Court:** United States Court of Federal Claims
- **Decided:** March 10, 1997
- **Citations:** 37 Fed. Cl. 545; 1997 U.S. Claims LEXIS 44; 1997 WL 112592
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Merow
- **Judges:** Merow
- **Cited by:** 25 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/6646329

## How later opinions describe it (automated extraction)

- applying the preexisting limitation analysis to a physical takings case and stating that the Lucas Court’s “investigation into [the] analytical framework for per se regulatory taking also discussed the framework to be utilized for per se physical takings”
- emphasizing “the outright grant of the right-of-way and the absence of purpose limitations”

## Opinion text

OPINION
MEROW, Judge.
In this Rails-to-Trails takings case, Plaintiff, the Chevy Chase Land Company (“CCLC” or “the land company”), moved for summary judgment against Defendant, the United States of America and Intervenor-defendant, Montgomery County, Maryland. Both Defendants have tendered cross-motions for summary judgment against Plaintiff, CCLC.
The Columbia Country Club (“the Club” or “CCC”) subsequently entered this action as Intervenor-plaintiff and filed a separate motion for summary judgment against all other parties, including Plaintiff, CCLC. Both Plaintiff, CCLC, and Defendant, the United States, countered the Club’s motion for summary judgment with cross-motions for summary judgment.
The Rails-to-Trails Conservancy (“the Conservancy”) tendered an amicus curiae brief in support of Defendants’ takings analysis.
Oral argument ensued.
Upon consideration, it is concluded that: (1) Both Defendants’ cross-motions for summary judgment against Plaintiff, CCLC, are granted, and Plaintiffs motion for summary judgment is denied; and (2) Columbia Country Club’s motion for summary judgment is denied; the cross-motion for summary judgment tendered by Plaintiff, CCLC, is dismissed for lack of jurisdiction; and Defendant’s cross-motion for summary judgment against the Club is granted.
I. BACKGROUND
A Introduction
Plaintiffs have alleged a taking pursuant to the Fifth Amendment of the Constitution 1 resulting from actions taken pursuant to federal legislation known as the Rails-to-Trails Act (the “Act”), 2 16 U.S.C. § 1247 (d).
*552 The taking alleged involves a strip of land approximately one mile long, and 100-feet wide, spanning some 12 acres in Montgomery County, Maryland. The land company conveyed this parcel, termed a railroad “right-of-way, 3 ” to the Metropolitan Southern Railroad (“MSRR”) by deed in 1911. MSRR operated a railroad on this right-of-way up through May 10,1985.
On April 9, 1986 application was made pursuant to Interstate Commerce Commission (“ICC”) regulations for authorization to abandon rail service on the line. See 49 CFR 1152.22. The ICC entered a decision on February 25, 1988 permitting abandonment on condition that the railroad maintain the right-of-way for a period of 180 days to enable the acquisition of the right-of-way for public use pursuant to the Rails-to-Trails Act. During this period Montgomery County came forward as a potential purchaser, seeking to use the land for a light-rail system as well as a hiker/biker path within the constraints of 16 U.S.C. § 1247 (d), and to postpone abandonment of the railroad corridor. On December 14, 1988 4 the ICC approved the purchase and transfer of use and issued a Certificate of Interim Trail Use (“CITU”) pursuant to the Act. The right-of-way property was then conveyed to Montgomery County by quitclaim deed for consideration of $10 million. 5 As a result of the ICC’s actions pursuant’to the Rails-to-Trails Act, ICC abandonment of the railroad right-of-way was delayed indefinitely.
B. ARGUMENTS
The land company initiated the instant takings action in 1992, asserting that it owns the right-of-way strip and that postponement of the railroad’s abandonment of the right-of-way obstructed its full fee simple absolute property interest in this strip. CCLC’s takings argument has three dependent components. First, CCLC contends that it had originally conveyed the parcel to MSRR as an easement for the purpose of operating a railroad, and that CCLC retained title to this strip in fee simple absolute during the time MSRR used it for railroad operations. Second, CCLC asserts that MSRR’s termination of railroad service caused the railroad easement to lapse and, as a result, a reversion occurred and CCLC now possesses unencumbered title. Third, the land company maintains that the ICC’s authorization of Montgomery County’s purchase of the right-of-way effected a Fifth Amendment taking of its property, because the federal regulatory sanction of the County’s use constitutes a physical and regulatory invasion and causes an expansion in scope of the original railroad easement.
Defendants, the United States and Montgomery County, assert that CCLC actually conveyed the right-of-way to MSRR in fee simple absolute. By doing so, they maintain, the land company fully relinquished its title and any interest it had in the land at issue back in 1911, the date of conveyance. As a result, CCLC had no interest in the land in 1988, when the CITU issued. Accepting this formulation, CCLC’s other arguments need not be considered. Defendants proceed to assert alternatively that even had the 1911 deed conveyed only an easement to MSRR, the easement never lapsed, because neither the railroad nor Montgomery County had abandoned it, as a matter of law. Defendants contend that even had the easement been abandoned, no Fifth Amendment taking has occurred because CCLC held no compen-sable expectancy to a reversion due to the highly regulated nature of the railroads.
On summary judgment, Intervenor-plain-tiff, the Columbia Country Club, asserts that it, too, has suffered a taking of its property within the right-of-way. The Club claims to have interests in a portion of the 100-foot wide strip extending some 1,686 feet and *553 totalling approximately 3.89 acres. The Club alleges that it used this property as part of its golf course. The Club asserts that it acquired fee simple absolute title to the majority of these 3.89 acres by adverse possession. The Club also contends that it has certain easements within the railroad corridor. The introduction of a hiker/biker trail, as well as a highly-trafficked light-rail system pursuant to the Rails-to-Trails Act, the Club maintains, will effect a taking of the property in which it has an interest within the right-of-way, as well as that within its surrounding golf club.
All other parties oppose the Club’s position, stating that the Club has acquired neither fee simple absolute, nor a lesser property interest of an easement in the strip, because the Club enjoyed permissive use. Even if the Club had a property interest in the strip, Plaintiff and Defendants assert that no taking may have occurred because the Club had no reason or right to expect that use of the railroad right-of-way would continue exactly as it existed in the early part of this century, when the Club obtained the land for its golf course.
C. Railroad Regulatory Framework
Prior to 1920, the Maryland legislature regulated all railroad transactions within the state. Regulatory oversight commenced with the railroad’s legislative charter or certificate of incorporation which proscribed the railroad’s authorized uses of its right-of-way. See Public Service Comm’n of Maryland v. Phila., B. & W.R. Co., 122 Md. 438 , 89 A. 726 (1914) (hereinafter “PSC of Md.”); 1870 Md. Laws ch. 476 (requirement for legislative charter removed; incorporation permitted pursuant to provisions of act). Various legislation further limited railroads’ actions. See e.g. 1870 Md. Laws ch. 362 (taxes); 1874 Md. Laws eh. 446 (train passage over connecting railroads); 1870 Md. Laws ch. 476 (for the “creation and regulation” of incorporated railroad companies). In 1910, Maryland enacted legislation establishing a state administrative agency, called the Public Service Commission, to regulate railroad transactions. See 1910 Md.Laws ch. 180, § 26 (“No common earner, railroad corporation, or street railroad corporation shall ... exercise any franchise or right under any provision of the railroad law, or of any other law not heretofore lawfully exercised, without first having obtained the permission and approval of the commission.”) This provision specifically applied to abandonment. See 1914 Md. Laws ch. 445, § 1, cited in Benson v. Maloy, 141 Md. 398 , 118 A. 852, 854 (1922) (“The provisions ... empowering the commission to grant such permission and approval ... after due hearing ... shall likewise apply to the abandonment or discontinuance in whole or in part by any common carrier, railroad corporation____”) (emphasis added).
From 1920 forward, the federal government has retained exclusive jurisdiction over the interstate operation of this nation’s railroads beginning with the enactment of the Transportation Act of 1920 (“1920 Act”). This Act granted the ICC exclusive and plenary jurisdiction over abandonment, construction and operation of the nation’s interstate railroad lines. See Transit Comm’n v. United States, 289 U.S. 121, 127 , 53 S.Ct. 536, 538 , 77 L.Ed. 1075 (1933). The 1920 Act provided,
(18) ... no carrier by railroad subject to this Act shall abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment.
Transportation Act of 1920, Ch. 91 tit. IV, Sec. 402, § 1(18), 41 Stat. 474 , 477-78 (1920).
The abandonment provision of the 1920 Act was reformulated in 1976 as part of the Rail Revitalization and Regulatory Reform Act. Pub.L. No. 94-210 tit. VIII, § 802, 90 Stat. 125 , 127-130 (1976) (codified as amended at 49 U.S.C. § 10903 ). Under this legislation abandonment or discontinuance of a railroad line was subject to an ICC finding that “... the present or future public convenience and necessity require[d] or permitted] ...” such act. 49 U.S.C. § 10903 (d). An order authorizing abandonment allowed a carrier to terminate service on a line, and the line, at that point, was no longer part of the national rail transportation system. 49 U.S.C. *554 § 10903 (b)(1); Preseault v. ICC, 494 U.S. 1 , 5-6 n. 3, 110 S.Ct. 914 , 918-19 n. 3, 108 L.Ed.2d 1 (1990). Discontinuance, in contrast, allowed a rail carrier to cease active operations on its line for an indefinite period ■without departing from ICC jurisdiction and the national rail transportation system. Id. The 1976 Act’s discontinuance provisions also provided for the ICC to delay a railroad’s disposition of lines proposed for abandonment for 180 days after issuance of an ICC abandonment decision. 49 U.S.C. § 10906 .
In 1983, Congress enacted the Rails-to-Trails Act, which added section 8(d) to the National Trails System Act. See supra n. 2. Pub.L. No. 98-11, § 208 , 97 Stat. 42 , 48 (1983) (codified at 16 U.S.C. § 1247 (d) (1988) (“the Rails-to-Trails Act”)). One of the purposes of this amendment was the preservation of established railroad rights-of-way for reactivation in the future. The provision provides in part,
“... in furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service ... in the case of interim use of any established railroad rights-of-way ... such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such right-of-way for railroad purposes. If a State, political subdivision, or qualified private organization 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, then the Commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use” (emphasis added).
By enacting this section, Congress provided that potential interim trail use would be considered prior to abandonment of rail lines, and that such use would not constitute abandonment under state law.
Under the regulations which implement the 1983 Rails-to-Trails Act, the ICC was to issue a Certificate of Interim Trail Use (CITU) to allow a earner to negotiate an agreement with a public or private organization willing to assume responsibility for the right-of-way, and under circumstances where “the public convenience and necessity permit abandonment.” 49 C.F.R. § 1152.29 (b)(l)(ii). If an agreement was reached, section 1247(d) treated interim trail use as a discontinuance which preserved ICC jurisdiction over the right-of-way, rather than an abandonment which would terminate ICC jurisdiction and cause any right-of-way held as an easement to revert to the owner of the underlying estate in fee simple. During the interim, the rail corridor was to be held in a national “rail bank,” subject to ICC control, for future rail use. 6
D. Historical Context of Right-of-Way Conveyance
Plaintiffs Fifth Amendment taking claim with respect to the right-of-way is premised upon the following facts. Plaintiff, the Chevy Chase Land Company, incorporated on June 6, 1890 under the direction of Francis G. Newlands, a developer who would subsequently become a United States Representative and then Senator from Nevada. 7 New-lands established the CCLC as a vehicle to develop a neighborhood situated on either side of the District of Columbia’s northwestern border which would come to be known as Chevy Chase. By 1890, Newlands’ land company had amassed some 1712 acres of land for this planned community.
CCLC was but one of Newlands’ development projects. Prior to and throughout his tenure in Congress, Newlands spearheaded *555 the planning and development of several residential communities throughout the country. 8 As a member of the House Ways and Means Committee and the Senate Committee on Interstate Commerce, he worked on the development of an interstate transportation network to facilitate the development of his projects.
To provide access to Chevy Chase, New-lands and CCLC forged relationships with several railroad companies, including the MSRR. In 1890, MSRR incorporated and acquired the right to ran a railroad on the Maryland portion of an approximately seven-mile B & 0 spur line known as “the Georgetown Branch.” MSRR incorporated in 1890, and subsequently became a subsidiary of the Baltimore and Ohio Railroad (“B & 0”), which was owned by the Chessie System Railroads, a unit of CSX Corporation. 9 The spur line departed the main B & 0 line just northwest of Silver Spring (at “Georgetown Junction” or “Linden Station”), and extended across Montgomery County, Maryland to the District of Columbia boundary at a point near the Potomac River. The line then ran along the Potomac into Georgetown. About a mile of the line traversed CCLC property, on either side of Connecticut Avenue, near Chevy Chase Lake and just north of the endpoint of the Rock Creek Railroad.
On March 4, 1891, the land company adopted a resolution deeming it “... advisable and to be for the benefit ...” of the company to have this [MSRR] railroad line cross its property. Accordingly, on April 21, 1891, the land company and MSRR executed a Memorandum of Agreement (“1891 Agreement”) proposing a conveyance of real property to the latter for the contemplated railroad. 10 It provided,
[T]he Metropolitan Southern Railroad Company contemplating the construction of a line of road in connection with its Metropolitan Branch, to be known as the Metropolitan Southern Railroad, to traverse certain lands, the property of the Chevy Chase Land Company, as hereinafter appearing, the said Chevy Chase Land Company in consideration of the agreement of the said railroad company hereinafter set forth, agrees to donate and convey a right of way 100 feet wide.... And the said Land Company for the consideration aforesaid further agrees to donate and convey to the said Railroad Company for the purposes of a passenger and freight depot, and uses incident thereto, including side tracking, the following described parcel of land, designated for the purposes of this agreement as Parcel A ..., containing 0.9 acres more or less. $ ^ í¡: >¡:
And in consideration of the aforesaid agreement of the said Land Company, the said Railroad Company agrees to erect upon the said parcel “A” a passenger station, to cost not less than $4,000 or to contribute the sum of $4,000 towards the erection by said Land Company of such passenger station on said parcel “A” and also the said railroad Company, for the consideration aforesaid, agrees to give said Land Company the right to connect its power house or power houses by a siding or sidings to said railroad Company’s tracks____
1891 Agreement (emphasis added).
According to the 1891 Agreement, MSRR would construct its “tracks from the Metropolitan Branch [of B & O railroad in Silver Spring] ... to Connecticut Avenue extended from the District of Columbia, on or before the 31st day of August, 1891.” MSRR also promised to give the land company the right to connect power houses by sidings to MSRR’s tracks. On the same day the 1891 Agreement was executed, the parties execut *556 ed a separate agreement in which MSRR granted CCLC half-price rates on its transportation of railroad freight on the Georgetown Branch.
By 1892 MSRR had completed part of the line, from Georgetown to Chevy Chase Lake. Building then ceased and MSRR eventually completed the line and commenced service in 1910.
MSRR never built the depot contemplated by the 1891 Agreement, deciding instead to construct a freight siding on the depot tract. During the interim, the Rock Creek Railroad built a passenger depot just to the south of the tract apportioned for the depot in the 1891 Agreement.
After construction of the railroad had been completed in 1910, the land company and the railroad revised their original agreement and the land company conveyed the right-of-way by a 1911 deed. A letter of December 20, 1910 from a land company official 11 to one Mr. J.D. McCubbin, Jr. of the B & 0 referenced this agreement. The letter provided,
I have had a long talk with Senator Newlands, President of the Chevy Chase Land Company, and have succeeded in getting his consent to the arrangement suggested by you sometime during the past summer.
This arrangement was that the Baltimore and Ohio Railroad pay to the Chevy Chase Land Company Four Thousand Dollars in cash, and in consideration of this payment, have conveyed to it, all the property covered by its right of way contract with the Land Company, entered into some years ago, the building of a Passenger Station as required by said contract, to be waived by reason of the Four Thousand Dollar payment above referred to.
The parties then executed a deed on March 22, 1911, which they would record on April 4, 1911. The granting clause stated,
... the said party of the first part [the land company] for and in consideration of the sum of FOUR THOUSAND (4,000) DOLLARS, to it paid by the said party of the second part, does hereby grant and convey unto the said party of the second part [MSRR], its successors and assigns, a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as “Parcel A” and does hereby grant and convey unto the said party of the second part [MSRR], its successors and assigns, in fee — simple, the land and premises, hereinafter designated as “Parcel B”____
The right-of-way, or Parcel, A in the deed, was described by metes and bounds, and was summarized as a “... parcel being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of the Chevy Chase Land Company----” Parcel B was described by metes and bounds as well.
The deed’s warranty clause stated,
AND the said party hereto of the first part hereby covenants to warrant specially the property hereby conveyed, and to execute such further assurances of said land as may be requisite.
Additionally, the deed provided that upon its signing the April 21, 1891 Memorandum of Agreement would be void and that the parties’ full agreement would be embodied within the deed. It stated,
... the contract and agreement entered into on the Twenty-first day of April, 1891 ... is mutually abrogated, canceled and set aside, and [MSRR], is hereby released and discharged from the obligation set forth in said contract, of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars, or of contributing the sum of Four Thousand (4,000) Dollars toward the erection by the said [CCLC], of a passenger station on the hereinbefore described parcel of land designated as Parcel “B”; and the said [MSRR], as is evidenced by its acceptance of this conveyance, hereby releases [CCLC], from any obligation ... to erect or cause to be erected the passenger station aforesaid.
The only reference to a restriction on MSRR’s use of the parcel comes at the end of a paragraph delineating its metes and *557 bounds. It states that use was “[s]ubject to [an] existing right of way for highway and other purposes over what is known as Connecticut Avenue Extended.”
E. CCLC’s Additional Railroad Ventures
Before the land company had incorporated and during the years ensuing from 1891 until the Georgetown Branch became operational, Newlands and CCLC had begun arrangements for additional railroad access to Chevy Chase. Newlands was instrumental in the establishment of the Rock Creek Railway Company of the District of Columbia (“Rock Creek RR”) trolley line, which ran from the downtown area of the District of Columbia, and up Connecticut Avenue to Chevy Chase. Newlands became its president and acquired a controlling interest in the line in 1890. CCLC and the Rock Creek company owned and operated this line as a joint venture which became operational in September, 1892. Although CCLC conveyed its interest in the railway to Rock Creek RR in December, 1892, it continued to depend closely upon the trolley line for transporting residents to and from the new community. 12
Next, on November 8, 1894, the Land Company executed a deed to the Chevy Chase and Kensington Electric Railway Company of Montgomery County, Maryland conveying a limited right for railroad use of CCLC’s land. The lease contained specific provisions concerning how the land would be used and directing that the right-of-way would lapse in the event the property were not used for railway purposes. The language of the deed provided,
[the land company] for consideration of Five Dollars ... conveyed ... unto the said [railroad company] its successors and assigns a right of way over____ A strip of land 25 feet wide ... subject to the following provisos, limitations and conditions. The said [railroad company] shall construct and complete and commence regularly operating within nine months hereafter an electric railway____ [I]f the said [railroad company] ... shall thereafter fail to continuously operate said railway as an electric railway the interest of the said [railroad company] in the right of way hereby conveyed shall at once cease and determine and the same shall therefrom revert to [the Land Company], its successors and assigns____
FDA at 5-7.
On April 14, 1896, CCLC executed a deed to the Glen Echo Railroad Company of Montgomery County, Maryland, similarly containing specific conditions limiting the usage of the land and providing for reversion in case the railway failed to meet those conditions. In the deed CCLC discussed the conveyance of “... a right of way for the purpose of constructing and operating the railroad....” FDA at 8-12 (emphasis added). It further provided, “the said right of way shall only be used and occupied by the said railroad company as a right of way for an Electric railroad, and for no other purpose or service whatsoever....” Id. Additionally, the consideration for this exchange stated by the railway was one dollar plus the agreement that all of the “actual residents located along the right of way” would be able to ride the railroad for free. Id.
CCLC arranged for and granted interests in its land to entities other than railroads, as well, while instituting conditions for reversions and preserving the underlying fee simple estate. On November 2, 1892, the land company filed conditions for the dedication of land for public roads and parks with the Clerk for the Circuit Court of Maryland. Again, on July 18, 1896, the Land Company dedicated land to the Board of County School Commissioners of Montgomery County for the construction of a schoolhouse, containing specific provisions restricting the usage of the property to a schoolhouse, and that the failure to maintain a school on the land would forfeit the interest and cause a reversion to the land company.
F. Span of MSRR Line Use
From 1911 through 1985, MSRR and its successors and assigns have used and con *558 trolled the right-of-way. Rail operations fluctuated throughout the railroad’s life from 1911 until 1985. By the early 1980’s, use had decreased to an average of two trains per week. Over the years, the railroad was used primarily for hauling freight, and for occasional site-seeing excursions as well as for the transport of troops during the Korean War. 13
During MSRR’s operational period, CCLC leased portions of the right-of-way from CSX, MSRR’s parent corporation. On November 15, 1973, the Land Company leased for an annual rent of $50 plus reimbursement of all taxes assessed upon a “rectangularly shaped parcel of land containing ... approximately 10,304 square feet, situated south of Lessor’s track and east of Connecticut Avenue.” The lease provided that “Lessee [CCLC] shall not at any time own or claim any right, title or interest in or to the premises.” By 1982, CSX indicated that it would increase the rent. In response, on June 30, 1982, the land company offered to pay $50 per month plus “any real estate taxes that might be levied on this property.” On August 2, 1982, the land company agreed to increase its payments from $50 per year to $750 per year and otherwise keep the original lease intact.
The parties executed an additional agreement on November 15, 1973 providing that CCLC would obtain a private pedestrian crossing agreement “for the purpose of ingress and egress to Licensee’s office building.” Again, the land company was denominated as the “licensee” in the agreement.
Over these years, CCLC was not assessed and did not pay any property taxes on the strip of land at issue in this case. Nor did it ever list Parcel A as a corporate asset in its financial reports.
In the early 1980’s, the railroad took several actions to indicate that service would be terminated upon the Georgetown Branch. In 1983 the railroad posted notice on lines of a future intent to abandon within three years. (At the time only two entities still were using the railroad for the hauling of freight.) On August 13, 1984, an internal memorandum was circulated within the railroad which provided that the Georgetown Branch would be abandoned and that plans for bridgework would be abandoned. In 1985, CSX terminated operations on the Georgetown Branch, due to the need for major repairs to a railroad trestle over Rock Creek. Subsequent to resolving to seek federal regulatory permission to abandon their rail line, on April 9, 1986, MSSR and B & O, as part of the CSX corporation, filed an application with the ICC, seeking to abandon their common earner obligation to maintain the Georgetown Branch.
On February 25, 1988, the ICC issued a decision finding abandonment of the line appropriate should no offer for continued rail operations be received, and to allow CSX a period of 180 days to enter into negotiations with the government of Montgomery County for a transfer of the Maryland portion of the Georgetown Branch pursuant to 16 U.S.C. § 1247 . Within the decision, the ICC acknowledged that use of the line had declined 91.1% from 1969 through 1985. See generally Plaintiffs Appendix at A-112-125, ICC Docket No. AB-19 (Sub-No. 112), February 25,1988. [“A-_”]. The ICC also noted that there were two remaining users of the railroad in 1985, and that both had contracted with CSX to receive their deliveries by truck. Id. Further, it indicated that repair of the railroad alone would cost some $573,000. Id.
On November 22, 1988, Montgomery County and CSX reached an agreement. The ICC then issued a Certificate of Interim Trails Use “CITU” on December 14, 1988 permitting Montgomery County’s proposed uses of the rail corridor pursuant to 16 U.S.C. § 1247 (d). As contemplated by the CITU, CSX and subsidiaries conveyed the Maryland portion of the Georgetown Branch to Montgomery County by quitclaim deed on December 16,1988 for $10 million.
The County submitted its Georgetown Branch Light Rail Feasibility Study — its plan to institute a combined recreational trail *559 and light railroad over the strip of land at issue — to the Maryland Legislature in January, 1989, which was adopted in November 1989. By 1990, the State of Maryland agreed to contribute up to $70 million for construction of the project. As of January 1991, the State estimated that the trolley would cost $183.2 million. The parties have indicated that the proposed combined project has not yet been fully implemented.
G. Columbia Country Club’s Relationship With the Right-of-Way
The Club’s takings claim stems from the following facts. In summer 1909, the Club 14 chose two parcels of land in Chevy Chase, one measuring 39.311 and another 89.459 acres, totalling 128.77 acres combined, as the site for a clubhouse and golf course. The two parcels were located to the north and south of the 100-foot wide right-of-way at issue in this case, and were owned by CCLC at the time. However, MSRR was already in possession of the right-of-way pursuant to the 1891 Agreement. MSRR would, as stated above, receive a deed from CCLC conveying this right-of-way in 1911.
As the land the Club sought to purchase would be bisected by MSRR’s right-of-way, on June 26, 1909 the Club entered into what appears to be an option contract with CCLC which conditioned the sale of the two parcels upon the Club’s ability to obtain permission from B & 0 Railroad (MSRR’s parent company) to cross MSRR’s tracks. Plaintiffs Supplemental Appendix at 51 (“SA-_”). The parties located among CCLC’s records an undated document referring to this agreement. It provides,
All the conditions of the option dated June 26, 1909, given by F.G. Newlands, President, Chevy Chase Land Company, to Columbia Golf Club, to be carried out unless changed by this contract. The sale is made on condition that permission can be obtained by the Columbia Golf Club from the Baltimore & Ohio Railroad Company to cross its tracks which run through the property covered by this contract which is necessary to make the property valuable for a Golf Course.
SA-51 (emphasis added).
The Club contends that “Senator New-lands, [then] President of the CCLC, advised [the Club] to secure the right to cross over the right-of-way so that [the Club] could build its golf course and the CCLC could sell the land to [the Club] for such purpose.” Columbia Country Club’s Proposed Findings of Uncontroverted Facts, citing Club Brief Appendix at 6, 26 (“CBA-_”). 15
On November 11, 1909, the Club and MSRR executed such an agreement. It provided,
WHEREAS, the said Columbia Country Club is the owner of certain land situated near Chevy Chase, in the County of Montgomery, State of Maryland, and contemplates the location and maintenance on a portion thereof of a golf course,
AND WHEREAS, the said Metropolitan Southern Railroad owns and maintains a right-of-way, road-bed and track running through and across the said land of the said Columbia Country Club,
AND WHEREAS, the said Columbia Country Club is desirous of obtaining and securing from the said Metropolitan Southern Railroad Company a permission, license or privilege for the members and guests of said Columbia Country Club and caddies and servants in the employment of said members and guests, and other agents and employees of said Club, to go upon, over and across the said right-of-way, road-bed and tracks of said Metropolitan Southern Railroad Company during the day time, and at such points thereon as may be hereafter agreed upon by the parties hereto in writing.
NOW THIS AGREEMENT WITNES-SETH, that for and in consideration of the payment of Five Dollars to the said Columbia Country Club by the Metropolitan Southern Railroad Company, and the grant by said Metropolitan Southern Rail *560 road Company unto the said Columbia Country Club of the permission, license and privilege hereinbefore set forth, the said Columbia Country Club will, and does hereby, assume all risk of loss, damage or injury to its members, guests, caddies or employees, as hereinbefore described, while using, crossing or upon said right-of-way, road-bed or tracks of the said Metropolitan Southern Railroad Company, and hereby releases the said Metropolitan, its successors and assigns, from all claim from loss, damage or injuries sustained by said Columbia Country Club, its employees, guests, or the caddies or servants employed by said Columbia Country Club, or its guests, whether caused by the negligence of said Metropolitan Southern Railroad Company, its agents, employees or otherwise, and the said Columbia Country Club does hereby covenant to save harmless and indemnify the said Metropolitan Southern Railroad Company, from and against all claims, or demands, costs and expenses of any kind by reason of any accident, injury, damage or loss of life to its members or guests, or their caddies or employees whatsoever, which may arise in any way from the use or crossing of said right-of-way, road-bed or tracks, or through the negligence, carelessness or other acts of the said Columbia Country Club, its officers, agents, guests, caddies or employees.
1909 Agreement, CBA-27, 28 (emphasis added).
After this agreement had been signed, on November 22, 1909, CCLC conveyed the two parcels of land to the Club. The deed provided,
... the land and premises hereby conveyed shall only be used for the purpose of a Golf Course and Club grounds, ... [and CCLC] hereby covenants to warrant specially the property hereby conveyed, and to execute such further assurances of said land as may be requisite.
Id. at 34 . The deed was recorded among the land records of Montgomery County.
The Club opened its golf course on these two parcels in January 1911. A few years later, in 1913, CCLC conveyed additional smaller parcels to the Club situated adjacent to the parcels conveyed in 1909. On November 24, 1913, yet another four parcels were conveyed totalling 4.138 acres. Montgomery County Opp’n to Club S.J. Mot. Exh. A-l. [“MC Opp. Exh__”].
The Club’s board of governors minutes from 1914 reflect that one “Dr. Harban [a board member] was authorized to enter into arrangements with the officials of the B. & O. R.R., for the purpose of seeming right of way across their tracks, with the understanding that the R.R. Co. would not be held liable for any ... accidents that might occur.” Federal Defendant’s Appendix 128-30, Minutes of May 20,1914.
The Club obtained additional parcels from CCLC in later years. By deed dated October 29, 1919, CCLC conveyed to it an additional parcel of approximately three-fourths of an acre. On July 3, 1940 the Club obtained three additional small parcels from CCLC which also bordered upon the right-of-way. CBA-1, 36; SA-64. By 1940, the Club had acquired a total of approximately 145.35 acres, its current landholding.
At present, there are four paths crossing the tracks on the right-of-way. Two of them were created to connect the two large parcels comprising the original golf course. The other two — both located to the west of Tee # 2 — were created subsequent to 1940, when the Club acquired additional parcels west of Tee # 2 and lying to the north of the tracks, to connect existing portions with the newly acquired portions of the course. See SA-64-66, July 1940 Deed (conveyance of Parcel B north of the tracks and west of the land conveyed in 1909); CBA-36 (1940 conveyance labeled as Parcel B and Liber 792 folio 001). Club affidavits attest that one of these post-1940 crossings has been in use since approximately 1962, see CBA-36, CBA-43, and that Club members remember the use of all three other crossings since the 1930’s. See CBA-73-74, Gott Affid.; CBA-69-70 WestAffid.; CBA-49r50.
The Club’s proffered affidavits contain statements from members, employees and surveyors attesting to the veracity of its survey map and indicate that the members, *561 guests, agents and employees of the Club have utilized these crossings as well as other parts of the 100-foot right-of-way. See CBA-43 (Mr. Budd); CBA-46 (Mr. Robinson); CBA-49 (Mr. Walker); CBA-65 (Mr. Davis); CBA-69 (Mr. West). The Club’s asserted uses of the right-of-way include: (1) walking and riding golf carts upon the crossing paths over the tracks and upon the adjacent land; (2) Club employees’ landscaping, spraying foliage and trimming brash, grass and weeds along and upon the right-of-way; CBA-43, CBA-36, and (3) the extension and placing of tees and greens within the right-of-way. CBA-49, CBA-36; SA-17, Farr Af-fid. If 10.
Throughout the years, the Club has not been assessed or paid property taxes on any portion of the right-of-way. SA-24, Club Int. Answer No. 9; MC Opp. Exh. 1, 2 (county tax valuation maps 1919 and 1967).
In the early 1980’s, Club counsel wrote to CSX apparently seeking another agreement concerning the Club’s use of the right-of-way. In a 1982 letter counsel referred to a meeting between Club counsel and CSX and also made reference to the uncovering of the 1909 agreement. The letter provides,
This has reference to Mr. Spencer’s meeting with Mr. Trotman [Club counsel] on June 29 and your telephone conversation with Mr. Spencer on July 2 concerning Railroad property being used by members and guests of the Columbia Country Club at Chevy Chase, Maryland.
Upon further research of our corporate records, Mr. Spencer located an old agreement dated November 11, 1909 between the B & 0 and the Columbia Country Club. In view of this agreement, a new one will be unnecessary.
MC Opp. Exh. 4, July 8, 1982 Letter from J. Trotman to CSX.
In the mid-1980’s, at approximately the same time that MSRR and B & 0 had expressed an intent to petition for abandonment or discontinuance of rail service upon the right-of-way, the Club attempted to secure continued passage over the right-of-way. In 1986 counsel for the Club initiated contact with CCLC and CSX inquiring as to the nature of the ownership of property rights on the right-of-way.
In February 1986 counsel wrote to CCLC, [i]t is conceivable that the right of reverter would return the property to the Chevy Chase Land Company in the event that the raih’oad abandons its right-of-way.
SA-21, February 19, 1986 letter from K.W. Parkinson to CCLC.
Again, in August 1986, apparently under the belief that CCLC had title to the right-of-way, counsel for the Club wrote to CCLC requesting “to acquire ... its right of revert-er for that portion of the right-of-way which transits the Club property.” SA-20, Aug. 11, 1986 letter from K.W. Parkinson to CCLC. CCLC counsel asserts that Club counsel had been in contact with the land company “over a period of a year to eighteen months,” around this time and that Club counsel never suggested that the Club had any title interest in the right-of-way whether by adverse possession or otherwise. SA-18-19, Farr Affid.
Additionally, in April 1986 Club counsel wrote to CSX:
[W]e ... are veiy much concerned about the rights of the parties related to the raih’oad right-of-way through the golf course____ We would like to explore all avenues so as to protect the beautiful golf course at the Club. As far as I know, the relationship between the raih’oad and the Club has always been friendly and mutually supportative [sic] throughout its long 76 year history.
MC Opp. Exh. 5, April 18, 1986 letter from K.W. Parkinson to CSX.
Montgomery County’s planned light-rail and hiker/biker trail will traverse the right-of-way running through the Club’s golf course and will require the Club to relocate certain tees, holes and greens. In the Maryland Department of Transportation Evaluation Report on the Montgomery County Georgetown Branch Trolley/Trail Project of January 15, 1991, the county provides that “[w]ithin the Countiy Club, the vertical alignment of the trolley will be raised approximately five feet to provide for golf cart underpasses which allows for movement between the greens north and south of the *562 alignment.” The report also provides, “[o]n the eastern edge of the Country Club, the tournament tee at holes Nos. 15 & 18, which are within the existing railroad ROW (right-of-way), must be relocated or abandoned. Greens at holes 14 & 17 must also be modified.”
II. STANDARD OF REVIEW
All four parties in the instant case have moved for summary judgment, each asserting that there are no material issues of fact genuinely in dispute with regard to whether a taking with respect to CCLC or the Club has occurred. Each concludes that judgment is thus appropriate as a matter of law.
When presented with cross-motions for summary judgment, the court must evaluate each party’s motion on its own merits. Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed.Cir.1987). Cross-motions are simply a claim by each party that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not establish that if one is rejected the other must necessarily be allowed. Bataco Indus., Inc. v. United States, 29 Fed. Cl. 318, 322 (1993), aff'd 31 F.3d 1176 (Fed. Cir.1994).
A movant will be entitled to summary judgment when, under the governing law, there are no disputed issues of material fact. RCFC 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 , 106 S.Ct. 2505, 2509-10 , 91 L.Ed.2d 202 (1986); Jay v. Secretary, DHHS, 998 F.2d 979, 982 (Fed.Cir.1993). Material facts are those which will significantly affect the outcome of a suit under the governing law. Anderson, 477 U.S. at 248 , 106 S.Ct. at 2510 .
The moving party bears the initial burden of demonstrating the absence of all genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 , 106 S.Ct. 2548, 2553-54 , 91 L.Ed.2d 265 (1986), cert. denied, 484 U.S. 1066 , 108 S.Ct. 1028 , 98 L.Ed.2d 992 (1988). Once the moving party has made a sufficient showing, then the burden shifts to the non-moving party to present facts evidencing a reasonable dispute as to any material factual issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348, 1356 , 89 L.Ed.2d 538 (1986), cert. denied, 481 U.S. 1029 , 107 S.Ct. 1955 , 95 L.Ed.2d 527 (1987); see also J.P. Emco v. United States, No. 90-617T, 1996 WL 751363 at *11 (Fed.Cl. Sept. 18, 1996) (citing Lujan v. National Wildlife Federation, 497 U.S. 871, 888 , 110 S.Ct. 3177, 3188-89 , 111 L.Ed.2d 695 (1990)) (legal conclusions alleged by non-movant insufficient to preclude summary judgment). All factual inferences will be held in favor of the non-moving party. Matsushita, 475 U.S. at 587 , 106 S.Ct. at 1356 (1986).
Moreover, summary judgment will be appropriate when the material facts are adequately developed in the motion papers, such that a full trial will be useless because additional evidence could not reasonably be expected to change the outcome of a case. Brown v. United States, 30 Fed.Cl. 23, 26 (1993) (citing Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626 (Fed.Cir. 1984)).
III. DISCUSSION
A. Ripeness/Statute of Limitations
Before addressing the various elements of the parties’ substantive takings arguments, the issue of whether this matter was brought within the applicable six-year statute of limitations as provided in the Tucker Act, 28 U.S.C. § 1491 , will be addressed sua sponte as it presents an issue requiring clarification.
Determination of the date upon which a taking claim accrues requires consideration of each element of the taking claim as it relates to the facts of the particular case. See e.g., Preseault v. United States, 100 F.3d 1525, 1538 (Fed.Cir.1996). In certain takings cases, the mere enactment of legislation has effectively deprived an owner of his property, and commenced the running of the statute. See Alliance of Descendants of Texas Land Grants v. United States, 37 F.3d 1478, 1482 (Fed.Cir.1994), cited in Fallini v. United States, 56 F.3d 1378, 1380 (Fed.Cir.1995), cert. denied — U.S. -, 116 S.Ct. 2496 , 135 L.Ed.2d 189 (1996). In those cases, the *563 relevant statute did not set forth contingencies upon which the parties’ property might be taken in the future, but rather, the very enactment of the statute caused the deprivation. See e.g. Alliance of Descendants, 37 F.3d at 1482 (property interest in cause of action accrued on passage of Treaty precluding such actions); Maniere v. United States, 31 Fed.Cl. 410, 421 (1994) (bank with vested right in property affected by passage of FIR-REA, OTS banking statute and related regulations); Whitney Benefits, Inc. v. United States, 18 Cl.Ct. 394, 406-07 (1989), op. corrected, 20 Cl.Ct. 324 (1990), aff'd 926 F.2d 1169 (Fed.Cir.), cert. denied, 502 U.S. 952 , 112 S.Ct. 406 , 116 L.Ed.2d 354 (1991) (denial of mining permit would not fix cause of action because statute forbid coal mining “from its very inception”).
In contrast, in the instant matter, as in Preseault, another case arising out of the operation of the Rails-to-Trails Act, passage of this 1983 statute merely created a regime within which a taking could occur under certain specific factual circumstances and could therefore not fix the statute of limitations for a takings action. 16 Preseault, 100 F.3d at 1538-39 . The Preseault court stated that the enactment of broad legislation authorizing a federal agency to engage in future regulatory activity is not the type of government action that alone supports a taking claim. Id. (citing Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 , 101 S.Ct. 2352 , 69 L.Ed.2d 1 (1981)). A taking cannot occur under 16 U.S.C. § 1247 (d) until either (1) a railroad effects an abandonment of a railroad easement under state law but the reversion to the fee owner is obstructed by way of federal statute, and/or (2) an approval of a plan for a hiker/biker trail which would burden a right-of-way with an additional servitude. See e.g. Preseault, 100 F.3d at 1538-39 . Only at either of these two points would the implementation of the Rails-to-Trails Act actually cause a taking of property of an underlying fee owner. Id. Likewise, if CCLC’s contention is correct — that it has retained ownership of the underlying fee to MSRR’s former right-of-way — then a taking could occur either at the point of abandonment under state law, or, even if there has been no abandonment, the point at which the land was asserted to have been burdened by an additional servitude of a hiker/biker trail.
However, the statute of limitations does not start to run until there has been an administrative determination and assignment to a hiker/biker trail. See id. Only then will the taking claim be ripe for determination. The Preseault court expressed the underlying rationale by explaining that “[ujntil the ICC makes the administrative decision to convert an unused right-of-way to a trail, rather than simply permit abandonment, and finds an appropriate public agency to operate the trail, a landowner’s suit for a taking would run afoul of established requirements for exhaustion . of administrative remedies.” Id. (citing Hodel, 452 U.S. 264 , 101 S.Ct. 2352 , 69 L.Ed.2d 1 (1981)); Williamson County Regional Planning Comm’n v. Hamilton Bank, 473 U.S. 172 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (1985). Before such determination, the parties cannot be certain that the ICC will postpone an abandonment or increase the usage upon the railroad right-of-way. Of course, once suit has been brought, a taking may be held to have occurred during the ensuing period of time during which the owner is unable to use his or her property prior to determination. See e.g., First English Evan. Luth. Church v. Los Angeles Cty., 482 U.S. 304 , 322 n. 10, 107 S.Ct. 2378 , 2389 n. 10, 96 L.Ed.2d 250 (1987). (citing Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 5 , 104 S.Ct. 2187, 2191-92 , 81 L.Ed.2d 1 (1984)).
The ICC issued its decision authorizing abandonment of MSRR’s use of the right-of-way on February 25, 1988, and providing for a 180-day period within which to *564 permit for the transfer and sale of the right-of-way to an appropriate entity. The administrative approval of Montgomery County’s purchase then occurred December 14, 1988, when the ICC issued a Certificate of Interim Trails Use “CITU”, permitting Montgomery County’s proposed uses of the right-of-way pursuant to 16 U.S.C. § 1247 (d). CCLC filed this action on April 8, 1992. Therefore it filed this action within the applicable six-year limitations period.
The Club’s complaint, filed on January 22, 1993, is also timely. The actual taking alleged by the Club is somewhat different from that alleged by CCLC. The Club objects to an excess use of the right-of-way by Montgomery County. It asserts that implementation of the proposed plan will interfere with its ability to utilize its golf course— portions of which are located within, and the majority of which is located adjacent to — the right-of-way. As such, the Club’s alleged taking claim did not accrue until Montgomery County purchased the right-of-way in 1988. 17
B. Taking Claim, of Chevy Chase Land Company
1. Property Interest
In order to decide whether a taking has occurred, initially it must be determined whether CCLC has a compensable interest in the property at issue. This Court has jurisdiction to determine title to real property as a preliminary matter when addressing a taking claim. See e.g. Yaist v. United States, 228 Ct.Cl. 281 , 656 F.2d 616 (1981) (citing Bourgeois v. United States, 212 Ct.Cl. 32 , 545 F.2d 727 , 729 n. 1 (1976)). CCLC therefore, must, at the outset, provide sufficient proof that it retains the underlying fee simple absolute title to the right-of-way, and did not convey it to MSRR by the 1911 deed. See Preseault, 100 F.3d at 1532-37 . The issue presented is whether CCLC conveyed a fee simple or an easement by the 1911 deed.
a. Description of Asserted Interests
Prior to turning to the 1911 deed, it is necessary to define the terminology involving estates in land which the parties utilize to discuss the conveyance here at issue. The concept of estates involves the legally permissible interests in land as measured by a time element. State Roads Commission v. Johnson, 222 Md. 493, 497-98 , 161 A.2d 444, 447 (1960) (citing Gavit’s Notes on Blackstone’s Commentaries, at 281). Possessory estates may be held for a variety of different durations. A fee simple absolute (often inaccurately described as “fee simple”) is of infinite duration, and comprises the greatest estate that one can possess. Roger A. Cunningham et al., The Law of Property, § 2.2, at 29 (2d ed. 1993) (hereinafter “Cunningham § _at_”). See generally, Johnson, 161 A.2d at 447 (“ ‘absolute estate in perpetuity’ is synonymous with ‘fee simple absolute’ ”). Other possessory estates are limited in duration, such as the defeasible fee simple (abbreviated by the occurrence of a specified event), the fee simple determinable (lasting only “so long as” a designated state of affairs continues), and so on. 18
Easements, as opposed to possessory estates in land, do not impart a right of possession and full use, but rather, a specifically defined right to use land which is owned and possessed by another. Cunningham, § 8.1, at 437. When a mere easement is conferred, another individual property owner retains the underlying fee simple interest. At the point the easement uses lapse, a full, unburdened interest in the parcel will again be possessed by the individual owning fee simple title. Often, instead of calling a property owner’s retained interest a “fee simple burdened by an easement,” some commentators, and indeed, at times the parties in this case, *565 have labelled the retained interest following the creation of an easement as a “reversion” in fee. This is because upon termination of the easement, the full estate “reverts” to the owner. 19
Easements are generally created and transferred by the same kinds of instruments as possessory estates in land and usually pass under the same statutes of inheritance. Cunningham, § 8.1, at 487. While owners of possessory estates enjoy exclusive occupation, meaning the possessor may wholly exclude all others from all parts of the land without having to show that the other individual will actually interfere with any aspect of use and enjoyment, with an easement the right to exclude others extends only so far as to prevent their interference with the servitude’s particular purpose. Id. As an easement confers only limited uses of a parcel of land, the owner of the underlying fee may make all uses of the land that do not unreasonably interfere with the easement. Id., § 8.9, at 460.
Another distinction between the two interests lies in their alienability. Fee simple absolute estates in land are freely alienable. Generally, easements are not, with the exception of commercial easements — ones held for business uses or that have independent economic value. Id., § 8.10, at 461 n. 3, 4. Therefore, while fee simple absolute owners may grant at their discretion easements or licenses to others to use their land, to the extent that commercial easement holders can grant or divide their easements among additional parties, they may only convey easements to others for uses covered by their easement.
b. Construction of 1911 Deed between CCLC and MSRR
All parties have stipulated that prior to the conveyance embodied in the 1911 deed, CCLC owned legal title to the land at issue in this ease. Although all parties submit to the authenticity of the 1911 deed, the parties dispute its legal meaning. Plaintiffs say that it conveyed an easement to the right-of-way at issue for railroad purposes. They assert that the parties’ shared intent is illustrated by language in the 1891 Agreement as well as the railroad’s charter. Plaintiffs maintain that the right-of-way was owned by CCLC throughout this century as a present estate in fee simple absolute, subject to the burden of an easement held by MSRR. Defendants assert that the deed simply conveyed the right-of-way in fee simple absolute.
The nature of the interest conveyed is determined according to the law of the state where the conveyance occurred. “[Sjtate law creates and defines the scope of the reversionary or other real property interests affected by the ICC’s action pursuant to Section 208 of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247 (d).” Preseault v. I.C.C., 494 U.S. at 20 , 110 S.Ct. at 926 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 , 104 S.Ct. 2862, 2871-72 , 81 L.Ed.2d 815 (1984).
Maryland law requires that a court look to the 1911 deed language to determine the nature of the interest conveyed. See Levin v. Cook, 186 Md. 535, 538-39 , 47 A.2d 505, 507 (1946) (citations omitted). Under Maryland law the acceptance of a deed gives rise to a presumption that it is an execution of the whole contract of conveyance of real property. Id. All other prior agreements become null and void, except where the agreement contains covenants collateral to the deed or where the deed appears to be only a partial execution of the contract. Id.; Preseault, 100 F.3d 1525 (other documents such as railroad charters considered collaterally).
In construing the import of a dee'd, a court must endeavor to deduce the intentions of the parties by considering the deed instrument as a whole, viewing the language used in light of the facts and circumstances of the transaction at issue as well as the governing law at the time of conveyance. Watson v. Raley, 250 Md. 266, 268-69 , 242 A.2d 488, 489-90 (1968); Green v. Eldridge, 230 Md. 441, 447-48 , 187 A.2d 674, 677 *566 (1963); Brown v. Whitefield, 225 Md. 220, 169 A.2d 920 (1961); Whittington v. Mann, 211 Md. 199 , 126 A.2d 617 (1956). The entire deed is to be given effect and the parties’ intent must prevail. Bright v. Lake Linganore, 104 Md.App. 394, 416 , 656 A.2d 377, 389 (1995), citing Guilford Ass’n, Inc. v. Beasley, 29 Md.App. 694, 700 , 350 A.2d 169, 172-73 (1976) (courts must consider the circumstances surrounding the parties at the time a covenant is made). Parol evidence may be considered of collateral and independent facts which tend to support a deed, provided it is not offered for the purpose of varying the agreement. Fedder v. Component Structures Corporation, 23 Md.App. 375, 380 , 329 A.2d 56, 60 (1974); Levin, 47 A.2d at 507 .
If, after considering the surrounding circumstances and applicable principles of construction, the legal import of the deed is apparent, the Court may conclude its analysis at that point, and render a decision as to the nature of the interest granted upon a motion for summary judgment or similar summary proceeding. See Eldridge, 187 A.2d at 677 (case decided on dismissal of bill of complaint, deed language required construction as easement, and circumstances surrounding conveyance were considered to be in accord with such reading). 20
However, if the deed is ambiguous, or susceptible of two reasonable meanings, then the shared intent of the parties to the conveyance becomes a genuine issue of material fact limiting the grant of summary judgment. In determining whether a deed is ambiguous, the court need not necessarily look for a particular word or phrase which may be susceptible of two meanings, but must look to the document as a whole. See Midkiff v. Castle and Cooke, Inc., 45 Haw. 409, 415-16 , 368 P.2d 887, 891 (1962); Wards Co. v. Stamford Ridgeway Assocs., 761 F.2d 117, 120 (2d Cir.1985) (ambiguity only exists if instrument is susceptible of at least two fairly reasonable meanings). 21
The general thrust in construction of a deed involving a right-of-way has been that the clearer and fuller use indicated as granted, the more likely that the intended grant was a fee simple absolute; the more limited the use, the more likely that an easement was conveyed. John O. Dyrud, Railroad Rights of Way — Types of Interests Acquired, 22 Maryland L.Rev., 57, 61 n. 16 (citing 2 American Law of Property § 8.21 (1952)) (hereinafter “Dyrud, 22 Md.L.Rev., at_”). In construing whether a fee simple absolute or an easement has been conveyed by deed, Maryland courts have considered some or all of the following factors: (1) the specificity of the language of the deed describing the parcel being conveyed and any limitations on use of the subject parcel, (2) the extent of the privilege of usage granted, (3) the extent of the consideration offered, (4) whether the party claiming title needed to retain a pos-sessory estate, (5) the type of deed by which the parcel was conveyed, (6) the duration of the interest conveyed, (7) as well as all relevant surrounding circumstances at the time of conveyance, such as which party was to be assessed and pay taxes on the parcel. See generally, DC Transit v. State Rds. Comm’n, 259 Md. 675 , 270 A.2d 793 (1970), appeal after remand, 265 Md. 622 , 290 A.2d 807 (1972) (“DC Transit II”); E. Washington Ry. Co. v. Brooke, 244 Md. 287 , 223 A.2d 599 (1966); Eldridge, 187 A.2d at 677-78 .
These factors are applied in conjunction with the applicable rules of construction set forth in the governing law. In 1911, at the time of conveyance here at issue, Maryland law included the following provisions:
No words of inheritance shall be necessary to create an estate in fee simple, but every conveyance of real estate shall be construed to pass a fee simple estate, unless a *567 contrary intention shall appear by express terms or be necessarily implied therein,
Md.Code, Conveyancing, Art. 21 §§ 11 (1911). Although “fee simple” language designates intended duration, Maryland courts have generally interpreted this statutory language to be referring to the fee simple absolute estate as compared to more limited interests. See e.g. Richfield Oil Co. v. Chesapeake & C.B.R. Co., 179 Md. 560, 571-72 , 20 A.2d 581, 587 (1941).
The word “grant,” the phrase “bargain and sell,” in a deed, or any other words purporting to transfer the whole estate of the grantor shall be construed to pass to the grantee the whole interest and estate of the grantor in the lands therein mentioned, unless there be limitations or reservations showing, by implication or otherwise, a different intention.
Md.Code, Conveyancing, Art. 21 §§ 12 (1911).
Additional principles of construction extant in Maryland law at the time of the conveyance provided that restrictions were not be implied, and all doubts or ambiguities were to be resolved in favor of allowing the free use of the property. Maryland Trust Co. v. Tulip Realty Co., 220 Md. 399, 409-10 , 153 A.2d 275 , 282 (1959); accord Bd. of Cty. Supervisors of Prince William Cty., Virginia v. United States, 48 F.3d 520, 526 (Fed.Cir. 1995) (citing Richard R. Powell and Patrick J. Rohan, 5B Powell On Real Property, §§ 839-40 (1994) (restraints on alienation of property are generally disfavored)). Further, Maryland courts have time and again applied the rule that contracts will be construed against the grantor. See Hodges v. Owings, 178 Md. 300, 303-04 , 13 A.2d 338, 339-40 (1940); see also Yorkway Apartments, Inc. v. Dundalk Co., 180 Md. 647, 650 , 26 A.2d 398 -99 (1942). Additionally, Maryland law provided that railroads had the right to acquire fee simple absolute interests as well as easements. See 1870 Md.Laws ch. 476 § 10 (authorization to condemn land); 1852 Md.Laws ch. 326 § 14 (authorization for B & O to condemn land); also see 1904 Md.Laws art. 23, § 259 (may acquire lands by purchase or gift).
With this in mind, the relevant language in the deed must be examined:
... the said party of the first part (CCLC), for and in consideration of the sum of FOUR THOUSAND (4,000) DOLLARS, to it paid by the said party of the second part (MSRR), does hereby grant and convey unto the said party of the second part, its successors and assigns, a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as “Parcel A” and does hereby grant and convey unto the said party of the second part, its successors and assigns, in fee-simple, the land and premises, hereinafter designated as “Parcel B”....
1911 Deed (emphasis added).
It describes the right-of-way, or Parcel A, by metes and bounds, and summarizes it as a
... ALL that piece or parcel of land described by metes and bounds ... parcel being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of the Chevy Chase Land Company____
The deed’s warranty clause states,
AND the said party hereto of the first part hereby covenants to warrant specially the property hereby conveyed, and to execute such further assurances of said land as may be requisite.
It further points out that the conveyance is
SUBJECT to existing right of way for highway and other purposes over what is known as Connecticut Avenue Extended.
Legally significant aspects of the deed language can be categorized into the following groups: (1) the degree of limitations upon the conveyance; (2) usage of the term “fee simple;” (3) additional language of the deed; (4) the consideration contemplated; and (5) the additional surrounding circumstances.
1. Limitations Upon the Conveyance
Under Maryland law at the time of the conveyance, the word “grant” was held to pass the whole estate of the grantor unless the deed contained “limitations or reservations” indicating otherwise. Md.Code, Conveyancing, Art. 21 §§ 11-12 (1911). In cases *568 involving the construction of a deed referencing a right-of-way, Maryland courts have found that if a corridor has been designated for railway purposes, that such limitation evidences intent to convey merely an easement, and not a fee simple absolute interest. See e.g. Richfield Oil, 20 A.2d at 584 ; but see 4 H Tiffany, The Law of Property § 980.1 (3d ed. 1939) (a purpose clause, of and by itself, does not operate to limit the estate granted by the deed; it does not convert an otherwise absolute granting and habendum clause into an easement or other limited estate, unless there is other language clearly manifesting such an intention).
However, as stated earlier, the legal significance of the conveyance of a “right-of-way” has differed based upon the presence or absence of limitations in deeds conveying these parcels. The fuller the use of the property transferred the stronger is a case that a fee simple has been transferred, and courts have considered unqualified use of the term right-of-way to denote a possessory estate. Cunningham, § 8.3, at 443. The absence of limitations has influenced courts to find that a fee simple absolute had been conveyed. See e.g. Sowers v. Illinois Cent. Gulf R. Co., 152 Ill.App.3d 163, 172-73 , 105 Ill.Dec. 76, 82-83 , 503 N.E.2d 1082, 1088-89 (1987). Baldwin’s treatise on railroad law, which was published in 1904, seven years prior to the conveyance at issue, explained that to construct a deed granting an easement, a party must state in the granting clause of a deed “a right of way for railroad purposes over and upon.” Si-meon E. Baldwin, American Railroad Law, IV at 609-10 (1904).
The deed language here at issue contains no limitations upon MSRR’s use of the right-of-way. In 1911 prior to the conveyance, CCLC owned the right-of-way parcel as an estate in fee simple, and the granting clause of the deed provided that CCLC was to “grant and convey” the land as a “right-of-way.” The only limitation on CCLC’s grant to MSRR involved what amounted to a reservation by CCLC of a “right of way for highway purposes” on Connecticut Avenue which would cross over MSRR’s right-of-way. This phrase recognized a usage limitation upon Connecticut Avenue for an existing easement. That CCLC designated that this other right-of-way was “for highway purposes” would suggest that CCLC understood that limiting language was necessary for the creation of an easement. Yet, with respect to MSRR’s right-of-way, no limitation was stated. These facts point to an intent to convey the right-of-way in fee simple absolute.
CCLC stresses that all Maryland courts have found conveyances of rights-of-way to have involved easements and not fee simple absolute estates. See e.g. U.S. v. 1.44 Acres of Land, 304 F.Supp. 1063,1070 (D.Md.1969); D.C. Transit I, 270 A.2d at 795 ; East Washington, 223 A.2d at 603 . Plaintiffs interpret this fact as meaning that any grant of a right-of-way in the state of Maryland would involve an easement. Although the circumstances in the cases previously addressed by Maryland courts were determined to have militated in favor of easements, in fact, Maryland courts have acknowledged that the conveyance of a right-of-way may involve a fee simple absolute estate or an easement. Maryland & Pa. R.R. v. Mercantile-Safe Deposit and Trust Co., 224 Md. 34 , 37 n. 1, 166 A.2d 247, 248 (1960), cited in Read v. Montgomery County, Md., 101 Md.App. 62, 69 , 643 A.2d 476, 479 (1994). The Maryland Court of Appeals stated, “[i]n one sense it is ‘the strip of land upon which the track is laid’; in the other sense it is ‘the legal right to use such strip.’ ” Id. In legal terms a “right-of-way” denotes an easement, but in railroad parlance and lay speech it indicates a possessory estate of the strip of land upon which the track is laid. John O. Dyrud, Railroad Rights of Way — Types of Interests Acquired, supra, at 62 n. 21; see also D.C. Transit I, 270 A.2d at 799 ; Maryland & Penn. R.R. Co. v. Mercantile-Safe, 166 A.2d at 248 n. 1; United States v. 1.44 Acres of Land, 304 F.Supp. 1063,1071 (Md.1969); Joy v. City of St. Louis, 138 U.S. 1, 44 , 11 S.Ct. 243, 255-56 , 34 L.Ed. 843 (1891).
The majority of Maryland right-of-way cases have involved deeds containing language denoting that the grant was for a specified use, such as for “railroad purposes” or a railroad company’s “chartered purposes,” or other similar purpose restrictions in the granting or habendum clauses. See
*569 1.44 Acres of Land, 304 F.Supp. at 1070 (“right of way for its chartered purposes” in deed indicated easement); D.C. Transit I, 270 A.2d 793, 795 (1970) (habendum clause specifies tract indicated was for a right-of-way and such other purposes as said Railway Company is authorized under its act of incorporation); East Washington, 223 A.2d at 603 (“right of way ... being a strip of land ... for railroad purposes”); Richfield, 20 A.2d at 584 (“rights of way for railroad purposes”). In these cases, Maryland courts have found the phrase “for railroad [or other specific] purposes” — whether in the granting or habendum clauses of the deed — to be language conditioning the grantee’s use of the land. As such, they determined that only a right or privilege to use the land, an easement, had been intended to be conveyed.
Other Maryland cases have involved deeds which did not specifically include limiting language such as “for [specified] purposes” within the granting clause, as was used in Hb Acres, D.C. Transit, E. Washington and Richfield, yet it was determined that the language of the deeds as a whole indicated that the grant was confined to a privilege or right conditioned upon certain circumstances. See Eldridge, 187 A.2d at 675 ; Hodges, 13 A.2d at 339-40 . For example, in Hodges , the deed conveyed “... a strip of land ... width as may be required in the construction and use of said Railroad ... together with the right to divert streams of water for Railroad purposes, and to take and use any stone or timber or other material within the limits of said strip of land____” Hodges, 13 A.2d at 338-39 . In construing this language to convey only an easement, the court held that if there had been an intention to convey the underlying fee, the right to use the stone, timber and other materials on the land would have come automatically, without leave or permission from the grantor or anyone else. Id. at 340 .
In Eldridge , the deed’s granting clause conveyed “the uninterrupted use, liberty and privilege of, and passageway in and along a certain right of way____” Eldridge, 187 A.2d at 675 . In construing the import of the deed, the court held that this language as a whole evidenced the conveyance of a privilege to use land — an easement — and not an estate in land. Id. at 677-78.
The instant case is easily distinguished from the scenarios presented previously in Maryland courts, because there is no conditional language limiting the uses of the right-of-way parcel; rather, the deed provides for a “free and perpetual right of way” — thus indicating full, unrestricted use. Again, the only limitation on the use of the right-of-way parcel was that it was subject to “an existing right of way for highway and other purposes over what is known as Connecticut Avenue” — a pre-existing easement. This was merely a provision marking a public highway right-of-way. It did not limit the scope of uses of the railroad’s right-of-way. Further, it did not prevent the other parcel, the one previously allotted for the depot, from being conveyed as an estate in fee simple absolute.
Thus, due to the outright grant of the right-of-way and the absence of purpose limitations, consideration of the deed in conjunction with conveyancing law of the time lends strength to a construction of the transaction as contemplating a fee simple estate. Several additional elements serve to reinforce the construction of the term “right-of-way” as describing an estate in fee simple absolute. These factors include (1) the prior existence of the right-of-way; (2) the warranty clause in the deed; and (3) the fact that other deeds of the time period from CCLC to various railroads and entities contained limiting language.
First, the fact that the right-of-way had already been built may indicate that the parties had intended the conveyance of a parcel in fee simple absolute, and not an easement. See Sowers, 105 Ill.Dec. 76 , 503 N.E.2d 1082 . Once the tracks have already been laid, the term right-of-way in a deed may be construed to likely have referenced a physical entity and the land supporting it — as opposed to a mere right or privilege of passage, as the term “right-of-way” when used in the abstract, may be held to connote. See e.g. Eldridge, 187 A.2d at 674 ; East Washington, 223 A.2d at 603 . As in Sowers , use of the term right-of-way was, necessarily, a reference to the identity of the location of the land *570 conveyed as that land which had already been occupied by the grantee railroad company as its roadbed. 105 Ill.Dec. at 82-83 , 503 N.E.2d at 1088-89 . This reference served to locate the strip of land conveyed— and designate its specific metes and bounds.
Maryland right-of-way cases have generally involved deeds referring to rights-of-way which were projected to be built in the future — not rights-of-way which were already built at the time of conveyance. See 1.44 Acres, 304 F.Supp. 1063 ; Eldridge, 187 A.2d 674 ; Hodges, 13 A.2d 338 (deed granted land “as may be required” indicating construction of railroad to occur in future); cf. Richfield, 20 A.2d at 585 . Richfield is the only Maryland case involving the conveyance of a right-of-way with tracks already laid upon it. However, the facts of Richfield are distinguishable from the instant case and Sowers . In Richfield usage limitations were set forth in the deed. Further, the grantor was the parent corporation of the grantee. As such, the court reasoned that the grantor would not have intended to grant a fee because doing so might result in its loss of the ability to cross from one part of its land to another should the grantee come under new ownership at some point in the future. Richfield, 20 A.2d at 587 . Therefore, in the instant ease, Maryland courts would likely determine that existence of the tracks prior to the conveyance would explain the usage of the term right-of-way and that, consequently, the term was descriptive of the actual land and tracks, and not of a prescribed use of the parcel, as would be indicative of an easement.
Secondly, and further illustrative of an intent to convey a fee simple in this case, is the deed’s warranty clause. The clause provides that CCLC “... covenants to warrant specially the property hereby conveyed, and to execute such further assurances of said land as may be requisite.” (emphasis added). By referring to land, and not distinguishing between parcel A (the right-of-way) and parcel B, this clause demonstrates that the intent was to convey land or real property — and not a mere right to use the described parcels.
Further, the fact that there were no limitations on the use of the right-of-way is even more telling in light of the surrounding circumstances. See Fedder, 329 A.2d at 60 ; Levin, 47 A.2d at 507 (parol evidence may be considered of collateral and independent facts which tend to support a deed, provided it is not offered for the purpose of varying the agreement). During this very time period, CCLC executed several deeds which contained precise usage limitations in order to convey interests lesser than fee simple estates, illustrating that CCLC was aware at the time it executed the 1911 deed that words of purpose limitation were necessary to create an easement.
Around the same time, on November 8, 1894, CCLC deeded to the Chevy Chase and Kensington Electric Railway Company
“... a right of way over ... A strip of land 25 feet wide ... subject to the following-provisos, limitations and conditions. The said [railroad company] shall construct and complete and commence regularly operating within nine months hereafter an electric railway.... [I]f the said [railroad company] ... shall thereafter fail to continuously operate said railway as an electric railway the interest of the said [railroad company] in the right of way hereby conveyed shall at once cease and determine and the same shall therefrom revert to [the Land Company].... ”
FDA 5-7 (emphasis added). Here, the Club clearly spelled out limitations upon the grantee’s usage of its right-of-way.
Again, on April 14,1896, CCLC executed a deed with the Glen Echo Railroad Company of Montgomery County, Maryland, similarly containing specific limiting conditions, contemplating “... a right of way for the purpose of constructing and operating the rail-road____” It further provided, “the said right of way shall only be used and occupied by the said railroad company as a right of way for an Electric railroad, and for no other purpose or service whatsoever____” This limiting language indicated an intent to convey an easement.
During the late nineteenth and early twentieth centuries, CCLC executed numerous other deeds for highways, parks and parkways as well as for land to a schoolhouse. In each it described contingencies upon which *571 the easement would lapse and the land would revert to CCLC in fee simple absolute.
The 1911 deed does not even refer to the word “railroad,” let alone restrict the use of the land to railroad purposes. Nor does it contemplate a reversion or lapsing of the right-of-way. Based upon CCLC’s failure to include any restrictive or reversionary language, the warranty clause contained within the deed which warrants both parcels in the same manner, as well as CCLC’s contemporaneous deeds containing clear limiting language, the 1911 deed must be construed to reflect an intent to grant a fee simple absolute, and not an easement.
2. Use of Term “Fee Simple”
Plaintiffs maintain that the granting clause of the deed evidences a distinction in the nature of the interests granted in the two parcels, because while both are referred to as parcels “of land,” parcel A, the right-of-way, is merely described as “free and perpetual,” whereas parcel B is described as being conveyed in “fee simple.” In so arguing, Plaintiffs assume that the term “fee simple” as contained in the 1911 deed, designates an estate in fee simple absolute, whereas usage of the terms “free and perpetual” merely defines the contemplated extent and duration of the use of the right-of-way granted by CCLC.
In actuality, usage of the terms “perpetual” and “fee simple” in the granting clause of the deed further illustrates that the same interest was to be conveyed in the two parcels involved in this ease. Although the words “fee simple” often have been misinterpreted as designating the nature of a property interest as being an estate, the term actually defines duration. The term “fee simple” specifically relates to the time element or the duration of the interest, and indicates that the holder of an interest in land retains such right in perpetuity — for infinity. Cunningham, § 11.1, at 766 n. 53. Both easements and possessory estates in land may be conveyed in fee simple and thus be of perpetual duration. Id; see Eldridge, 187 A.2d at 677 . Easements — unless otherwise indicated — are generally held in fee simple, See Md. Real Property Code § 4-105 — “every grant or reservation of an easement passes or reserves an easement in perpetuity.” 22 In the instant case, there is no reason to believe that the term was misused by the parties to distinguish the interest conveyed in the depot — as a possessory estate — from the interest conveyed in the right-of-way.
Further, the parties’ prior history illustrates that before the execution of the 1911 deed, there had been no distinction in the way that the parties had intended to convey the parcels. Indeed, the parcels were referenced identically in the 1891 Agreement and the 1910 letter from a CCLC official.
The unrecorded 1891 Agreement appears to intend the conveyance of an easement, as it indicates that the land discussed was to be used in conjunction with MSRR’s contemplated railroad. It provided,
The Metropolitan Southern Railroad Company contemplating the construction of a line of road in connection with its Metropolitan Branch, to be known as the Metropolitan Southern Railroad, to traverse certain lands, the property of the Chevy Chase Land Company, ... [CCLC would] donate and convey to the said railroad company a right of way ... [metes and bounds description] ... and ... donate and convey to the said Railroad Company for the purposes of a passenger and freight depot, and uses incident thereto, including side tracking, the following described parcel of land (Parcel B)____
1891 Agreement (emphasis added). This language contains no distinction in its refer- *572 enees to the depot parcel and the right-of-way. Based upon its implicit (railroad usage 23 ) and explicit usage limitations (freight depot) on the parcels, it is fairly clear that it contemplated the conveyance of an easement.
Then, after nearly two decades had passed, and subsequent to the completion of the railroad, in 1910 the letter from a CCLC official to one J.D. McCubbin made reference to a new instrument of conveyance which the parties had negotiated. It provided, “I have had a long talk with Senator Newlands, President of the Chevy Chase Land Company, and have succeeded in getting his consent to the arrangement suggested by you sometime during the past summer.” The official continued, “the arrangement was that the Baltimore and Ohio Railroad pay to the Chevy Chase Land Company Four Thousand Dollars in cash, and in consideration of this payment, have conveyed to it, all the property covered by its right of way contract with the Land Company, entered into some years ago----” (emphasis added). The letter indicates that the 1891 agreement had been superseded and a new agreement involving conveyance of estates in the land covered by the 1891 agreement was made.
Therefore, as the term “fee simple” apparently indicated the duration and not the nature or extent of the estate being conveyed, the usage of the words fee simple in describing parcel B — the depot parcel — does not give rise to any negative implication as to the nature of the interest conveyed in parcel A.
3. Additional Deed Language
Plaintiff further asserts that usage of prepositions such as “over” and “through,” denoting the location of the right-of-way within the deed illustrates that CCLC owned the underlying fee estate and that MSRR only received a right to use the land. The 1911 deed discusses a “... right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as “Parcel A”.... through the land of the Chevy Chase Land Company____” (emphasis added). Plaintiffs assert that Maryland courts have construed deeds with such language as eon-
veying easements. Examples of such cases include, 1.44 Acres, 304 F.Supp. at 1070 , E. Washington, 223 A.2d 599 , and Richfield, 20 A.2d 581 .
These cases involved significant indications of an intent to grant an easement in the form of limitations on usage of the land within the deeds — and plainly did not turn on the usage of such prepositional phrases. See id. Cases which involved deeds lacking use limitations and where similar common law and conveyancing statutes to Maryland’s were in place, such as Midland Valley Railroad Co. v. Arrow Industrial Manufacturing Co., 297 P.2d 410 (Okl.1956) and Valdosta, 150 S.E. 845 , rather, more effectively demonstrate the proper construction of the instant deed. In these cases, the “over” and “across” language referencing the exact parcel of land over which the right-of-way existed did not deter courts from construing deeds as conveying fee simple absolute estates. See id.
For example, in Midland, a strip of land had been conveyed to a railroad as a “strip of land for a right of way over and across the following described tract of land.” Midland, 297 P.2d at 411 . The land described was the actual strip which was at issue in the conveyance, and yet the court was not persuaded that the interest conveyed was an easement. Midland, 297 P.2d at 411 . In Valdosta, “A strip of land sixty feet wide for a railroad right of way over, upon, and across about twenty-five acres,” the precise acreage of the easement, was conveyed, and yet the court was not deterred from finding that a fee simple had been intended. Valdosta, 150 S.E. at 847-48 .
Further, even in Sowers , where the right-of-way referenced in the deed was described as running across a larger plot — which at first blush might seem to indicate that the right-of-way was merely a right to use that portion of another’s land, a possessory estate was held to have been conveyed. Sowers, 105 Ill.Dec. at 83 , 503 N.E.2d at 1089 . However, the fact that the tracks were built along with the syntax of the deed language, convinced the Sower’s court that the words “over *573 and above” merely “served to locate the strip of land conveyed out of a larger tract.” Id. Such language was “consistent with the description of the right of way,” as the tracks and roadbed had already been laid upon the parcel of land at issue in the deed. Id.
Thus, usage of the terms “through” and “across” someone else’s adjacent land by the involved parties does not necessarily indicate that the grantee was not being conveyed an estate in the tract in question.
Of notable significance is that the 1909 license agreement between MSRR and the Columbia Country Club provided, “[wjhere-as, the said Metropolitan Southern Railroad Company owns and maintains a right-of-way, road-bed and track running through and across the said land of the said Columbia Country Club.” (emphasis added). If this court were to apply Plaintiffs own reasoning, the words through and across would indicate that the Club owned the underlying fee and that the MSRR owned tracks running across this fee. It is quite clear, however, that in this instance the Club did not acquire by conveyance the fee underlying the MSRR tracks — none of the parties have asserted this.
It is therefore apparent that at the time the 1911 deed was negotiated and drafted, it was common usage to utilize these prepositional phrases to locate a parcel. Therefore, it is more probable that these prepositional phrases were used for descriptive purposes and were not necessarily intended to dictate or circumscribe the interest conveyed in the land. Accordingly, this language is not determinative of the interest conveyed by the 1911 deed.
4. Consideration
Courts have considered the extent of consideration exchanged as a factor in this analysis, as well — the greater the consideration exchanged, the more likely the court will construe a right-of-way deed as intending the conveyance of a fee simple absolute. See e.g. Valdosta, 150 S.E. at 847-48 . The 1911 deed speaks of $4000 consideration in return for a 12-acre right-of-way and a .9 acre depot lot. CCLC points out that the deed states that the $4000 payment was actually for the cancellation of the depot construction obligation arising in the 1891 agreement, and further assert that this amount was not substantial enough consideration for a conveyance of the right-of-way in fee simple absolute in 1911, in light of the higher jury awards for easements condemned between 1891-93. Thus, CCLC contends that it was only enough to compensate for the conveyance of an easement interest. Defendants, on the other hand, point to the December 20, 1910 letter by a CCLC official which indicates that the $4000 was to be paid in consideration of the conveyance of the “property covered by its right of way contract with the Land Company,” [including the railroad corridor and the depot tract], as well as the waiver of the obligation to build a depot.
First, regarding CCLC’s contention that the amount of consideration was insubstantial, the cases involving higher jury awards presented by CCLC are not probative with regard to the consideration inquiry in this case because they involved condemnation pi’oceedings where parties’ land was taken away against their wishes. As stated above, this case involves a bargained-for deed.
Additionally, four thousand dollar’s would appear to be more than nominal consideration for a 12-acre right-of-way and .9 acre lot conveyed in the 1911 deed. In Valdosta, 150 S.E. 845 , a court found $400 to be substantial consideration for the conveyance of 25 acres in fee and factored this into its ultimate construction of a similar deed for a railroad right-of-way to be conveyed in fee simple. ($400 was substantial consideration for right-of-way, as distinguished from case where easement held conveyed for benefit of construction of railroad + $5.). See Phillips v. Missouri-Kansas-Texas Ry. Co., 20 F.Supp. 498, 503 (W.D.Okl.1937) ($650 consideration given, and no purpose limitation results in finding of fee simple); Midkiff v. Castle & Cooke, Inc., 368 P.2d at 889 (1899 transfer of in excess of 23.8 acres for consideration of $3294 found to confer fee simple). In comparison, in the Maryland cases where the courts held that easements had been transferred, the consideration was nominal. See e.g. DC Transit I, 270 A.2d 793 ($1.00 *574 consideration); Hodges, 13 A.2d at 338 ($1 consideration).
Further, as evidenced by the 1891 Agreement and CCLC’s many dealings with railroads, CCLC had wished for railroads and public highways to adjoin and serve its Chevy Chase landholding. In this regard, CCLC had secured half-rate discount fares from MSRR for shipment of freight. A-63. Based upon this analysis, the amount of consideration tendered does not militate in either direction — that the deed contemplated either a fee simple absolute estate or an easement.
5. Additional Surrounding Circumstances
The parties’ actions at the approximate time of the right-of-way conveyance provide additional insight into the intent behind the 1911 deed. The circumstances surrounding the purchase of land by Columbia Country Club from CCLC are perhaps most significant in deciphering the nature of the interest received by MSRR in the right-of-way.
First, the language of the lieense/crossing agreement between MSRR and the Club provided, “[wjhereas, the said Metropolitan Southern Railroad Company owns and maintains a right-of-way, road-bed and track running through and across the said land of the said Columbia Country Club.” This language illustrates that MSRR had believed at the time that it owned and did not merely possess the right-of-way, or would own it once there had been recordation of a deed.
Second, CCLC sold two tracts of land to the Club — not one large plot — in 1909. See CBA-29. The two tracts were separated by the MSRR right-of-way. Had MSRR acquired only an easement, CCLC could have conveyed the fee underlying the right-of-way to the Club, and reserved an easement over the property for MSRR, as it reserved an easement for highway purposes over Connecticut Avenue in the 1911 deed to MSRR. When a right-of-way is an easement, the owner of the servient tenement retains title to the underlying land and is entitled to use the land in any manner which does not interfere with the easement holder’s use. See e.g. National Wildlife Federation v. ICC, 850 F.2d 694 , 703 (D.C.Cir.1988); Cunningham, § 8.1, at 436-37. No evidence has been presented illustrating that this was even contemplated by the parties. Alternatively, CCLC could have held the fee interest in the right-of-way strip of land and granted the Club an easement over the strip. CCLC did not do this either. Conveyance of the two separate parcels is therefore indicative that CCLC had already contemplated the granting of title underlying the right-of-way to MSRR, as it seems improbable that CCLC would have split the some 129-acre plot otherwise.
Further weighing in favor of a fee simple absolute is that CCLC sent the Club to MSRR in 1909 — before the execution of their agreement — to obtain the right to cross over the MSRR right-of-way. CCLC indicated to the Club that it would need to obtain written permission from MSRR to cross the right-of-way prior to purchasing the two parcels. However, one who owns underlying fee title need not obtain permission from the party in possession of the easement so long as the proposed use will not interfere with the existing easement. See Richfield, 20 A.2d at 589 (owner of fee title may utilize land burdened by easement so long as such usage does not “interfere or interrupt the reasonable and proper use” of the easement holder’s intended use of land). The owner of the fee underlying the strip may allow third parties to use the right-of-way in a manner which does not interfere with the right-of-way easement. West, Public Service Comrn’n v. Maryland Gas Transmiss’n Corp., 162 Md. 298, 312, 316 , 159 A. 758, 765 (1932) (unnecessary to obtain permission from State for underlying fee owner’s commissioning of third party to project pipeline underneath right-of-way easement if such act would not “interfere in any way with ... the public easement.”). Crossings for the Club (such as the bridges that were erected) would not necessarily disturb the railroad. Assuming CCLC owned the underlying fee in this case, it could have arranged for Club use by simply requiring the railroad to cooperate. If the land company believed in 1911, as it now asserts, that it would continue to possess the underlying fee simple- *575 estate in the strip, it would only have made sense that it would have provided the crossing agreement to the Club. It would not have required an agreement from MSRR.
Additionally, all evidence presented points to the fact that the railroad paid property taxes along the strip, yet another incident illustrative of ownership. CCLC has stated that it neither was assessed not paid any property taxes on the right-of-way property.
6. Conclusion
The parties’ subsequent and conflicting understandings of the deed notwithstanding, a consideration of the entire text of the deed, as well as the corresponding circumstances surrounding its execution, reveals that the parties intended the conveyance of an estate in fee simple absolute. The parties have thoroughly presented all available evidence together with excellent briefs and arguments. In light of this construction of the 1911 deed, with respect to the claims of Plaintiff, the Chevy Chase Land Company, summary judgment in favor of the Defendants, the United States and Montgomery County, must be granted.
2. ABANDONMENT
The parties’ briefs also address the contingency that the deed would be construed to have conveyed an easement instead of an estate in fee simple absolute. While it has been determined that the 1911 deed did not convey an easement, the contentions of the parties concerning the existence of a taking if an easement had been deeded in 1911 will be addressed.
Plaintiffs assert that MSRR abandoned the asserted easement, causing it to lapse and unencumbered title to he with CCLC. Defendants continue to maintain that MSRR acquired the railroad property in fee simple absolute, but argue in the alternative that if this Court should find that only an easement were conveyed by the 1911 deed, that such easement has not been abandoned. Defendants also argue at length that Montgomery County, once having acquired the right-of-way pursuant to the Rails-to-Trails Act, also did not abandon it. In this regard, they have set forth Montgomery County’s extensive plans to build a light rail and hiker/biker trail on the property. They further assert that Montgomery County’s intended uses of the right-of-way are within the scope of that original easement.
Easements for public purposes acquired by quasi-public corporations such as railroads, either by purchase, condemnation or prescription, derive their very existence from the continued use of the property for such purposes. See Canton Co. v. Baltimore & O.R. Co., 99 Md. 202, 218 , 57 A. 637, 638-39 (1904), cited in Mercantile-Safe Deposit & Trust Co., 166 A.2d at 250 . When such public use is abandoned, the easement lapses, and the fee owner is left with unencumbered title to the property. Id. The burden of proving abandonment rests with the party who asserts or relies upon it. Read, 643 A.2d at 481 , (citing Mercantile-Safe Deposit & Trust Co., 166 A.2d at 250 ). Here, Plaintiff, CCLC relies upon the abandonment to establish its takings case.
CCLC sets forth several acts which it asserts are demonstrative of the railroad’s intent to abandon, as a matter of law: (1) B & O’s statement in 1983 that it would abandon railroad service in three years; (2) B & O’s July, 1985 resolution to seek ICC approval to terminate l'ail service; (3) MSRR’s refusal to fix the tracks when they fell into disrepair in 1985, and accompanying cesser of use from that point; and (4) the railroad’s April 9, 1986 application to the ICC seeking its approval of the abandonment and discontinuance of service over the Georgetown Branch.
Defendants assert that the acts proffered by Plaintiffs are not illustrative of abandonment, as a matter or law, because (1) the railroad tracks and ties remain — as had been a determinative factor in other cases where abandonment was found, cf. D.C. Transit II, 290 A.2d at 811-12; and that (2) the railroad’s 1985 resolution did not indicate that railroad use would be altogether terminated, but rather, constituted the first step in the process of allowing another entity to assume responsibility for the line while retaining the option to abandon if the railroad later decided to do so; and (3) at the time of conveyance and recordation of the easement the *576 abandonment could not occur under state law unless it had been approved by the Maryland Public Service Commission, the appropriate regulatory board. See 1910 Md.Laws ch. 180, § 26, as added by 1914 Md.Laws ch. 445, § 1, cited in Benson, 118 A. 852 -54 (1922).
Courts applying Maryland law in the context of easement abandonment have consistently held that abandonment is a question of intent. See Read v. Montgomery County, 101 Md.App. 62, 72 , 643 A.2d 476, 481 (1994); Peck v. Baltimore Cty., 286 Md. 368 , 410 A.2d 7, 9 (1979); Canton, 57 A. at 638-39 ; Vogler v. Geiss, 51 Md. 407, 410 (1879). In Vogler , an 1879 landmark case involving the abandonment of an easement, the court set forth a test to determine the intent to abandon, which Maryland courts have used as a yardstick ever since. Vogler, 51 Md. at 410 . The Vogler court instructed that to establish an intent to abandon, the party with the burden of proof must present evidence of “[A] cesser of the use, coupled with any act clearly indicative of an intention to abandon the right.” Id. The court explained,
[the] act or acts relied on ... must be of a decisive character; and while a mere declaration of an intention to abandon will not alone be sufficient, the question whether the act of the party entitled to the easement amounts to an abandonment or not, depends upon the intention with which it was done, and that is a subject for the consideration of the jury.
Id. The Maryland Court of Appeals explained in DC Transit II that the action necessary to produce abandonment of an easement “must be action in respect of its use which indicates an intention never to make use of it again.” DC Transit II, 290 A.2d at 810 (citing 2 American Law of Property § 8.97 (A.J. Casner ed. 1952)).
Whether circumstances are sufficient to establish an intent to abandon must be decided on a case-by-case basis. D.C. Transit II, 290 A.2d at 811. While there is not one specific type of act that will qualify as the requisite act for purposes of the Vogler test, Maryland courts have found that the tearing up of tracks (DC Transit II, 290 A.2d 807 ); failure to repair tracks or resume service and removal of track material accompanied by corporate resolution to abandon (P.S.C. of Md., 89 A. 726 ); and the erection of permanent structures upon the tracks (Vogler, 51 Md. 407 ), had fulfilled this requirement.
As resolution of the abandonment inquiry requires a determination of intent, an issue of fact, it often cannot be made on summary judgment. See e.g., Peck, 410 A.2d at 9 (reversing grant of summary judgment on abandonment issue and remanding for retrial when street had been relocated from original easement as the intent of the parties was a material fact to be determined by factfinder). However, in the instant case, although the parties dispute the ultimate legal conclusion of whether an abandonment occurred, the material facts are agreed. Here, as in Preseault, the abandonment inquiry requires a factual conclusion based on inferences to be drawn from the undisputed evidence. As was pointed out in Preseault, “[n]othing would be gained by requiring a further proceeding at the trial level, since the parties had full opportunity to establish all relevant underlying facts. Trial would not enhance the court’s ability to draw factual inferences and conclusions.” Preseault, 100 F.3d at 1545-46 ; see id at 1553-54 (Rader, J. and Lourie, J. concurring) (parties did not show the existence of any disputed material fact). 24 The facts of this case are clear and lead to the ultimate legal conclusion that abandonment of the line by the railroad did occur.
In this case, the Vogler test for abandonment has been satisfied. The intent of the railroad to never make use of this right-of-way again has been evidenced by certain undisputed acts, (1) the railroad’s application to the ICC for abandonment, (2) the railroad’s opting to decline to fix the tracks when they fell into disrepair, and (3) the railroad’s making arrangements with the two remaining shippers on the line to transport *577 their goods by truck, as evidenced in the railroad’s application to the ICC.
Service on the MSRR line continued from 1911 through 1985, but had decreased markedly by the early 1980’s. See A-112-125. In 1983 the railroad posted notices along the line indicating that it intended to abandon the line by applying to the ICC in this regard within three years. On May 10,1985 service on the Georgetown Branch was fully terminated due to the immediate need for major repairs to the trestle over Rock Creek, as well as repairs to other positions of the line. Subsequently, in June 1985, B & 0 passed a corporate resolution to abandon or discontinue service upon the railroad corridor and seek ICC approval to do so.
CCLC maintains that the passage of this resolution was the decisive act evidencing abandonment as required in Vogler . However, a close inspection of the resolution’s text reveals that, although the document evidences that the railroad contemplated abandonment, it was not a definitive act of abandonment, but merely demonstrated the steps which would be indicative of an abandonment in the future.
The 1985 resolution provided,
RESOLVED, that this Company abandon or discontinue service over the following Georgetown Subdivision lines: ... H: * # * # #
(2) Discontinue service on that portion of the Georgetown Subdivision ... owned by Metropolitan Southern Railroad Company, in Montgomery County, MD, a distance of approximately 7 miles; and jjs íJí sj« >*: sfc
RESOLVED, that ... the execution of an application or notice of exemption to the Interstate Commerce Commission ... or, if appropriate, the execution of a petition for exemption to said Commission by Company counsel, in respect of any such aban-donments and discontinuances, shall be conclusive evidence of such determination.
B & 0 Resolution of June 11, 1985, A-85 (emphasis added). As this language demonstrates, the railroad intended the filing of an ICC petition for abandonment or discontinuance to be “conclusive evidence” of such intent.
Minutes from an MSRR director’s meeting of July 22, 1985 similarly show that MSRR ultimately sought to abandon the line. MSRR Director Minutes, July 22, 1985, A-87. They provide,
RESOLVED, that this company abandon, and its (sic) hereby consents to the Baltimore and Ohio Railroad Company’s discontinuance of service on, that segment of its line of railroad, being a portion of the Georgetown Subdivision---- $ ¡¡i
... and the execution of an application or notice of exemption to the Interstate Commerce Commission ... in respect of any such abandonment, shall be conclusive evidence of such determination.
(emphasis added).
The separate references to the application for ICC approval to abandon and the actual abandonment determinations within both corporate resolutions show that the railroad bodies were cognizant of the distinction between an actual property law abandonment of the right-of-way (meaning an intent to not use it again) and the term “abandonment” meaning the federal, ICC-imposed regulatory hurdle. Reading of these resolutions in any other way would make them redundant and rob the statements that execution of an application would be “conclusive evidence of such determination,” of any meaning at all.
Again, although they do not constitute acts indicative of abandonment in and of themselves, the resolutions are relevant because they explain the steps necessary to illustrate a future abandonment. Within these resolutions the railroad stated that an application to the ICC would be evidence of an abandonment. See Restatement of Property § 504(c) (Verbal expressions of an intention to abandon are relevant for the purpose of giving meaning to acts which are susceptible of being interpreted as indicating an intention to give up the use authorized by an easement, but which do not of themselves conclusively demonstrate the intention behind them.)
*578 When the railroad then proceeded to submit this application on April 9, 1986, on behalf of MSRR, B & 0, and its affiliates, it therefore acted in a manner indicative of abandonment. A-88-111, April 9, 1986 Application to ICC, ICC Docket No. AB-19 (Sub-No. 112). Further, within the application, the railroad stated explicitly, “[a]ppli-cants have not considered any alternative to the proposed abandonment.” Id. at 98. Supporting this contention were additional actions by the railroad including leaving the tracks in disrepair and then diverting the line’s two remaining shippers’ deliveries to be transported by truck. See A-115, ICC Decision of February 28, 1988. Therefore, evidence of abandonment has been provided.
Defendants, attempting to show that the above does not constitute an abandonment, argue that the railroad could have filed for ICC abandonment and still planned to utilize the corridor for spur, side tracking, or intrastate uses, all uses not governed by the ICC. See 49 U.S.C. § 10907 (no authority over spur, side track, switching). Defendants have not presented any evidence in support of such intent.
Defendants also assert that the railroad had discussed the possibility of transferring the line to Montgomery County, and therefore did not intend to abandon, citing KCT Railway Corp. — Abandonment Exemption— Franklin, Anderson, and Allen Counties, KS, Dkt. No. Ab-335 (Sub-No. 2X), 7 ICC 2d 1035 (June 6, 1991) (ICC finds interest in negotiating trail use agreement inconsistent with intent to consummate abandonment). They point to minutes from a December 18, 1985 meeting in which CSX contemplated the sale of the property to Montgomery County:
We will negotiate with Montgomery County for the transfer of the section of right-of-way between the District line and our main rail line north of Silver Spring for use as a transit-way or public bike path, in exchange for development rights of comparable value, either at selected air rights location along the right-of-way, or on other property to be traded for. FDA-112. Defendants also point to the railroad’s 1988 attempts to sell the line to Montgomery County as well as Laurel Sand and Gravel as illustrative of an intent to keep the right-of-way, inconsistent with an intent to abandon. However, efforts to sell the line subsequent to filing of the ICC application are not necessarily evidence of an intent to postpone abandonment. They equally likely could illustrate that the railroad realized that it would be subject to the rail-banking provisions.
The fact that CSX had contemplated the possible sale of the right-of-way would not preclude abandonment under Maryland property law. In P.S.C. of Md., 89 A. 726 , the Maryland Court of Appeals concluded that a railroad had abandoned its railroad in 1897 with its cesser of use and accompanying acts, despite the fact that the railroad continued to be sold and transferred numerous times thereafter. This reasoning retains current validity because the termination of the uses for which an easement was granted may occur, and thus a state law abandonment, and yet a railroad may still intend to or actually sell the righLof-way during the period before the ICC grants the abandonment. Conversely, KCT Railway, contemplates the only the ICC-instituted abandonment, not state law property rights, and therefore the inferences drawn from negotiations for trail use are not relevant to the determination at hand.
Further, had the railroad sought to sell the property in 1986, and not to abandon, it could have done so under the appropriate statutes governing ICC practice. See 49 U.S.C. 11343 (transfer and purchase by other common carriers); 49 U.S.C. 10901 (common carrier status). 25 Or, it could have applied for a mere discontinuance. The facts of this case demonstrate that it chose not to take these alternate actions. Rather, the railroad sought abandonment and acted upon this intention.
Therefore, under the Vogler test, the railroad effected a state law abandonment. The Vogler test has been utilized as the sole inquiry by Maryland courts with respect to *579 abandonments alleged to have been effected subsequent to 1910, even after state regulatory approval had been required by state law, and subsequent to 1920, when, by federal statute, federal approval supplanted state approval. See e.g. D.C. Transit II, 290 A.2d at 810-12 ; Maryland & P.R. Co., 166 A.2d at 250-51 (abandonment found when service vacated, despite no appeal for any type of regulatory approval).
Defendants further point out that abandonment under Maryland law from 1910 onward required appeal and regulatory approval from a state commission, thus adding an extra step, under state law, before the lapsing of a right-of-way and the enjoyment of unencumbered title by the underlying fee owner. 26 With the passage of the Transportation Act of 1920, the federal government placed the state regulatory structure under the governance of the ICC. Defendants argue that ICC approval parallels prior Maryland Public Service Commission (“PSC”) approval and is necessary in order to establish state law abandonment.
The enactment requiring state regulatory approval by the Public Service Commission is 1910 Md.Laws ch. 180. It provides that regulatory approval be subject to an inquiry into whether abandonment will suit the public needs. It provides,
No common carrier, railroad corporation, or street railroad corporation shall begin the construction of a railroad or street railroad, or any extension thereof, or exercise any franchise or right under any provision of the railroad law, or of any other law not heretofore lawfully exercised, without first having obtained the permission and approval of the commission. The commission shall have power to grant the permission and approval herein specified whenever it shall, after due hearing, determine that such construction or such exercise of the franchise or privilege is necessary or convenient for the public service.
1910 Md.Laws ch. 180, § 26 (emphasis added). 27
The Maryland Court of Appeals was faced with the task of deciphering the meaning of the phrase “necessary or convenient for the public service” in Benson v. Maloy, when citizens petitioned the court to overturn a Public Service Commission approval of abandonment, objecting to it based upon their need to utilize the railroad in question. Benson, 118 A. 852 . The Benson court stated as follows:
What constitutes for a common earner the elements which make the operation of the roads necessary or convenient for the public service? Suppose it be a single passenger a day, is he the public? If not, what other measure can be found by which to formulate the meaning to be given this expression? Manifestly from the adjudicated cases, the only safe criterion in that regard is that which has heretofore been laid down by the court, the measure of which is the ability of the road from its earnings to meet its operating expenses and fixed charges, to say nothing of any return whatever to the stockholders of the company.
Benson, 118 A. at 854 (emphasis added). The Benson court expanded upon the considerations of public interest weighing in favor not compelling the operation of a railroad which has deteriorated to a point where its continued operation would inevitably lead to catastrophe for which the railroad would not have the means to compensate any injured. Id. These pronouncements provide guidance as to what post-1911 PSC approval of abandonment in Maryland would require. However, this standard is not as rigorous as the one suggested by Defendant or applied by the ICC.
The ICC in 1988 conducted a- parallel inquiry into public convenience and necessity and found that abandonment was proper. *580 See A-112-125. To make the abandonment determination the ICC utilized the standard of Colorado v. United States, 271 U.S. 253, 268 (1926), and “... weighted] the potential harm to affected shippers and communities from abandonment against the burden from continued operation on the railroad and interstate commerce,” — a higher standard than that adopted by the PSC in Benson , which looked less to the affected shippers and communities and more toward the financial state of the railroad. See A-118. Nevertheless, the ICC examined both issues of public ridership on the line and financial hardship, and still found abandonment appropriate, although it postponed its implementation as required by the Rails-to-Trails Act.
The ICC noted that the two remaining users of the railroad in 1985 had contracted with CSX to receive deliveries by track which would have been placed upon the Georgetown Branch, and that no other party expressed a desire to use the railroad. Id. at A-115. The ICC also analyzed the financial condition of the line, and noted that repair of the railroad alone would cost some $573,000, use of the line had declined 91.1% from 1969-1985 and continued use of the line would cause CSX to incur significant opportunity costs. Id. at A-116. Upon these and other related based, the ICC concluded as follows:
The present and future public convenience and necessity permit abandonment by CSX of the line of railroad described above, subject to (1) the employee protective conditions in Oregon Short Line R. Co. — Abandonment—Goshen, 360 I.C.C. 91 (1979); (2) the condition that CSX keep intact all the right-of-way, ... for a period of 180 days from the effective date of this decision to enable any State or local government agency or other interested person to negotiate the acquisition of the right-of-way for public use; and (3) the environmental and other conditions discussed above.
Abandonment of the line will not result in a serious adverse impact on rural and community development.
See A-125 (emphasis added).
The only condition deferring actual abandonment on February 25,1988 was the provision for the 180-day inquiry into Rails-to-Trails recreational and preservational uses as provided in the Rails-to-Trails Act. This inquiry into a possible sale for future railroad and recreational uses was simply not part of Maryland’s Public Service Commission analysis. Further, the fact that CSX sought voluntarily to negotiate with purchasers under the 180-day CITU does not indicate that abandonment had not occurred. To the contrary, had state law and not federal ICC regulations governed this area, once the February determination had been issued, the right-of-way would have reverted.
Thus, to the extent the creation of the PSC in 1910 added an extra step to state law abandonment, state law abandonment still must be considered to have occurred. Abandonment under this rubric took place at the very latest on February 25,1988 — the date of the ICC order, because the order provided, at a minimum, the rough equivalent of the PSC abandonment authorization.
In conclusion, assuming that the railroad right-of-way was an easement, such an easement was, in fact, abandoned under state law. As abandonment did occur, it is not necessary to decide whether Montgomery County’s intended uses of the corridor for a light-rail and hiker/biker trail are within any original right-of-way easement.
3. Taking
Again, as concluded above this case is appropriate for summary judgment at this juncture because by their 1911 deed, CCLC conveyed to MSRR a fee simple absolute interest. It has been determined that CCLC retained no residual interest in the land subsequent to this purchase. Therefore, there can be no taking of CCLC’s property. See e.g. Preseault, 100 F.3d at 1549-52 . However, had MSRR received only an easement in 1911, the absence of a Fifth Amendment taking would not be a foregone conclusion.
In asserting that a taking has occurred, CCLC states that it owned the fee simple absolute estate underlying the right-of-way property prior to its granting of an easement to MSRR — which was effected in 1891 and memorialized and recorded in the 1911 deed. *581 From 1911 through 1985, MSRR maintained the right-of-way for its railroad. At the latest, MSRR and its parent companies abandoned the right-of-way on February 25,1988, and, if it is assumed that it was held only pursuant to an easement, the easement lapsed at that time. To the extent that Montgomery County now plans to physically possess this parcel and utilize it for a light-rail and hiker/biker trail, CCLC claims such physical invasion under these circumstances constitutes a taking of a new easement.
Relying largely upon Lucas v. South Carolina Coastal Council, 505 U.S. 1003 , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992), Defendants assert that no taking may be held to have occurred. They point out that in 1911 — the year CCLC deeded the right-of-way to MSRR — CCLC could not have harbored any expectation of an abandonment of the right-of-way easement without the approval of a state regulatory body. See id. (antecedent inquiry with respect to expectations appropriate for per se taking). This, Defendants argue, is because Maryland statutory law enacted in 1910 placed the authority to approve abandonment within the ambit of a state regulatory agency, called the PSC. The necessity of application to and approval by this state-imposed regulatory regime, they assert, defined and diminished CCLC’s expectation of gaining a full reversion of its property interest. Further, even if the Maryland state law did not create an environment in which postponement of abandonment could be effected for the particular purposes of trail or light-rail use, they contend that the state legislation injected basic background principles within the property interest of CCLC such that it generally could not expect a reversion and abandonment free of regulatory control.
A taking may result from the denial of use of property as well as from taking of actual title and/or physical occupation of property. See Lucas, 505 U.S. at 1028-29 , 112 S.Ct. at 2899-2901 , 120 L.Ed.2d 798 ; Chicago, R.I. & P.R. Co. v. United States, 284 U.S. 80, 96 , 52 S.Ct. 87, 92 , 76 L.Ed. 177 (1931). The takings analysis was articulated by Justice Holmes’ in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 , 43 S.Ct. 158, 160 , 67 L.Ed. 322 (1922), where he stated “if a regulation goes too far it will be recognized as a taking.” To facilitate decisions based upon this general statement of the law, courts have utilized a three-tiered approach in which

[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/6646329. Public record. Not legal advice.