# Beres v. United States

> United States Court of Federal Claims · April 5, 2012 · 104 Fed. Cl. 408

URL: https://www.frixlaw.com/law-library/cases/6663157

## Case

- **Full name:** Warren BERES and Vicki Beres v. UNITED STATES
- **Court:** United States Court of Federal Claims
- **Decided:** April 5, 2012
- **Citations:** 104 Fed. Cl. 408; 2012 U.S. Claims LEXIS 470; 2012 WL 1606254
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Horn
- **Judges:** Horn
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6663157

## How later opinions describe it (automated extraction)

- noting that Federal Circuit Rule 32.1 “makes no provision regarding the citation of nonprecedential dispositions issued before [2007]”

## Opinion text

OPINION
HORN, Judge.
At issue is the scope of the rights of way in these multifaceted takings cases, involving numerous plaintiffs, multiple statutory land grants, different deed types, a prescriptive easement and subsequent conveyances over a more than one hundred year time period for property located along the eastern shore of Lake Sammamish in King County, Washington. The plaintiffs in these consolidated 1 lawsuits allege that when the United States Department of Transportation, Surface Transportation Board (STB) issued a Notice of Interim Trail Use (NITU), the federal government denied plaintiffs a reversionary interest in the rights of way located on their properties, formerly occupied by a railroad, which plaintiffs claim constituted takings under the Fifth Amendment to the United States Constitution.
This court previously has issued multiple opinions in these consolidated cases. One opinion denied defendant’s motion for summary judgment regarding the interpretation of the General Railroad Right of Way Act of 1875, 18 Stat. 482 , 43 U.S.C. § 934 et seq. (repealed in 1976), 2 (the 1875 Act), and its effect on plaintiffs Warren and Vicki Beres. See Beres v. United States, 64 Fed.Cl. 403 (2005). This court also issued an Order forwarding the plaintiffs’ request for certification on relevant questions of state law to the State of Washington Supreme Court, which the State of Washington Supreme Court summarily denied. See Schroeder v. United States, 66 Fed.Cl. 508 (2005). Subsequently, this court issued an opinion, addressing issues of collateral estoppel regarding former plaintiffs Gerald L. and Kathryn B. Ray and a number of other plaintiffs in the above captioned consolidated cases. See Beres et al. v. United States, 92 Fed.Cl. 737 (2010). Finally, this court issued an opinion addressing the question of fee versus easement for a number of the deeds which conveyed rights of way to the railroads. See Beres et al. v. United States, 97 Fed.Cl. 757 (2011). The facts established in those decisions are incorporated into this opinion. Certain of the relevant facts are briefly repeated below, together with additional facts pertinent to this opinion.
FINDINGS OF FACT
The railroad line in question was originally constructed by the Seattle, Lake Shore & Eastern Railway Company (SLS & E) from May 1887 through March 1888. The SLS & E acquired rights of way across public lands under the 1875 Act. The 1875 Act granted railroad companies rights of way over public land to construct tracks and operate railways. Requirements for obtaining a right of way were set forth in the 1875 Act, and included filing a map of the intended railroad with the local district land office and receiving approval from the Secretary of the Interior. See 1875 Act, § 4 (codified at 43 U.S.C. § 937 (repealed by the Federal Land Policy and Management Act of 1976, Pub.L. No. 94-579, § 706 (a), 90 Stat. 2743 )). Pursuant to the 1875 Act, between 1887 and 1891, the SLS & E took the necessary steps to establish a railroad right of way across public land along the eastern shore of Lake Sammamish in King County, Washington. On July 5, *413 1887, the SLS & E secured approval from the Department of the Interior of their map identifying the location for proposed construction of a railroad running generally along the eastern shoreline of Lake Sammamish, Washington. Construction of the railroad was completed in 1888. On April 15, 1891, the SLS & E filed, with the United States Land Office in Seattle, Washington, a Map of Location showing the final location of the constructed railroad. A segment of the completed railroad traversed through a parcel of land identified as Government Lot 4, Section 6, Township 24 North, Range 6 East, Willamette Meridian, in King County, Washington.
On January 11, 1892, after the SLS & E had secured its right of way under the 1875 Act, the United States issued a land patent to William H. Cowie. The parcel of land patented to William H. Cowie was described as Government Lot 4, in Section 6, Township 24 North, Range 6 East, Willamette Meridian, in what is now King County, Washington. Therefore, the parcel of land patented to William H. Cowie included a portion of the rights of way previously secured by the SLS & E.
In Beres v. United States, 64 Fed.Cl. 403 , this court determined that:
Under the facts at issue in the case currently before this court, when the United States granted a right-of-way to the [SLS & E], pursuant to the 1875 Act, it granted an easement to the railroad for railroad purposes, in keeping with the purpose of the 1875 Act. The 1875 Act indicated that future dispositions of such lands shall be disposed of “subject to” the right-of-way granted to a railroad. Act of 1875, at § 4. The language of the 1875 Act makes no statement reserving any property interest in the United States. Thus, when the United States granted a land patent to William H. Cowie in 1892, the land transfer was subject only to the existing railroad right-of-way by operation of the specific words of the 1875 Act.
Beres v. United States, 64 Fed.Cl. at 427 .
The parties have stipulated for the purposes of their cross-motions for partial summary judgment, subject to verification by professional mapping or like services, that at least some of the Beres plaintiffs, 3 Case No. 03-785L; Ritzen plaintiffs, 4 Case No. 04-1469L; Estate of Pearl Welch plaintiffs, 5 Case No. 04-1471L; and/or the Waverly Hills Club, Inc. plaintiffs, 6 Case No. 04-1474L, are successors-in-interest to Mr. Cowie. 7
In addition to acquiring rights of way by way of the 1875 Act, during May and June of 1887, the SLS & E acquired land needed to construct the railroad along the eastern shore of Lake Sammamish by right of way deeds from plaintiffs’ predecessors in title: grantors Louis and Mary Tahalthkut for the Schroeder plaintiffs, 8 Case No. 04-1456L; grantors Bill and Mary Hilchkanum for the Chamberlin plaintiffs, 9 Case No. 04-1457L; *414 grantors George and Elizabeth Davis for the Klein plaintiffs, 10 Case No. 04-1458L; grantors Bill and Lucinda Sbedzuse for the Peterson plaintiffs, 11 Case No. 04-1459L, and the Lane plaintiff, 12 Case No. 04-1468L; grants ors Jim and Alice Yonderpump for the Spencer plaintiffs, 13 Case No. 04-1463L, and grantor Alfred Palmberg for the Nelson plaintiffs, 14 Case No. 04-1465L; and the Collins plaintiffs, 15 Case No. 04-1472L (collectively, the SLS & E Deeds). The deed at issue in Manning, 16 Case No. 04-1466L, was acquired by the Northern Pacific Railway Company (Northern Pacific), successor of the SLS & E, on June 3, 1904, by Quit Claim Deed (the 1904 Reeves Quit Claim Deed) from the Manning plaintiffs’ predecessor in title, J.D. and Elizabeth Reeves. 17
In pertinent part, the SLS & E Deeds were in the following format:
In Consideration of the benefits and advantages to accrue to us from the location, construction and operation of the Seattle, Lake Shore and Eastern Railway in the County of King in Washington Territory we do hereby donate, grant and convey unto said Seattle, Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands in said County, described as follows, to wit:
[specific description of lot and section]
Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said Railway Company, which location is described as follows, to wit:
[description of the metes and bounds]
And the said Seattle, Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.
To Have and to Hold said premises with the appurtenances unto the said party of the second part, and to its successors and assigns forever.
In Witness Whereof the parties of the first part have hereunto set their hands and seals this [_] day of [Month], A.D. 1887.
*415 The source deeds in Schroeder, Chamberlin, Klein, Peterson, Lane, and Spencer follow this form. The source deed at issue in Nelson and Collins, also follows the same form, but contains the following additional sentence in the habendum clause: “All riparian and water front rights on Lake Samamish [sic] are hereby expressly reserved.” In an earlier opinion, the court concluded that after analysis of the seven plus two Brown factors in Brown v. State, 130 Wash.2d 430 , 924 P.2d 908, 911 , recons. denied (Wash. 1996), the language of the source deeds was intended to convey easements to the SLS & E. See Beres et al. v. United States, 97 Fed.Cl. at 803 .
Additionally, the June 3, 1904 Reeves Quit Claim Deed to the Northern Pacific, at issue in Manning, states, in pertinent part:
This Indenture made this third day of June in the year of our Lord one Thousand nine hundred and four, Between J.D. Reeves and Elizabeth Jane Reeves, his wife, the parties of the first part and the Northern Pacific Railway Company, a corporation, the party of the second part, Witnesseth: That the said parties of the first part for and in consideration of the sum of One hundred and Fifty dollars of the United States to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged do by these presents, remise, release, and forever quit claim unto the said party of the second part and to its assigns all right, title and interest and estate of said first parties in and to all that certain lot, piece or parcel of land, situate lying and being in the County of King, State of Washington, and particularly bounded and described as follows, to wit:
The interest of said grantors in and to a tract of Land lying within lines drawn parallel with with [sic] 18 the center of the main Line track and fifty feet from said center of the Seattle, Lake Shore & Eastern Railway, now the Northern Pacific Railway, through the Townsite of Inglewood, King County, State of Washington, and running from Ash Street to Willow Streets and through the following Blocks in said Townsite; [list of blocks] according to the plat of said Town of Inglewood as recorded in Volume three, of Plat Books, page 169 records of King County, Washington; the intention being to convey herein a right of way fifty feet on each side of said track through any lots or blocks conveyed to the Grantor J.D. Reeves by grant of date, November 13, 1903, from King County, Washington, said lots being - as follows, [list of lots and blocks]
Together will [sic] all and singular the tenements, hereditaments and appurtenances thereunto, belonging, or in anywise appertaining, and the reversions, remainder and remainers [sic], rents, issues and profits thereof.
To have and to hold all and singular the said premises together with the appurtenances, unto said party of the second part and to its heirs and assigns forever. In witness whereof, The said parties of the first part have hereunto set hands and seals the day and year first above written.
In its!. April 7, 2011 opinion, this court concluded “that the grantors of the 1904 Reeves Quit Claim Deed intended to convey only an easement to the railroad.” Beres et al. v. United States, 97 Fed.Cl. at 809 . In addition to acquiring rights of way by the 1875 Act, the SLS & E Deeds, and the 1904 Reeves Quit Claim Deed, the SLS & E also acquired land to construct the railroad along the eastern shore of Lake Sammamish by prescriptive easement in 1887 or 1888. According to the parties’ Joint Stipulations, “the SLS & E acquired an easement by adverse possession/prescriptive easement in Government Lot 2, Section 7, Township 24 North, Range 6 East, W.M.” The parties also stipulated that after the SLS & E acquired its interest by adverse possession/prescriptive easement, “certain suceessors-in-interest to the patentee conveyed by deed an interest in sections of the right-of-way in Government Lot 2, Section 7, Township 24 North, Range *416 6 East, W.M.” The Morel plaintiffs, 19 Case No. 04-1467L, and the Brown plaintiffs, 20 Case No. 04-1473L, are “successors-in-inter-est to landowners who retained a fee interest in the right-of-way subject to, or burdened by, the railroad’s easement acquired by adverse possession/prescriptive easement.” 21
The SLS & E went through receivership in 1889 and was subsequently purchased by the Seattle and International Railroad. The Seattle and International Railroad was subsequently acquired by the Northern Pacific Railway Company. The Burlington Northern Railroad was formed in 1970 through the merger of the Northern Pacific Railway, the Great Northern Railway, the Chicago, Burlington and Quincy Railroad, and the Spokane, Portland and Seattle Railway, among other wholly-owned subsidiaries, and by virtue of these series of transactions, Burlington Northern Railroad became the successor-in-interest to the SLS & E. On December 31, 1996, the Atchison, Topeka & Santa Fe Railway Company formally merged into the Burlington Northern Railroad and became Burlington Northern & Santa Fe Railway Company (Burlington Northern).
In 1997, Burlington Northern, the successor-in-interest to the SLS & E’s and Northern Pacific’s rights of way, concluded that continued operation of the pertinent line was not economically viable. See Redmond-Issaquah R.R. Pres. Ass’n v. Surface Transp. Bd., 223 F.3d 1057, 1058 (9th Cir.2000). Therefore, in 1998, Burlington Northern sought an exemption from the STB to abandon a 12.45 mile line of railroad on the eastern shore of Lake Sammamish, a portion of which traverses the plaintiffs’ properties. See Burlington N. & Santa Fe Ry. Co.-Abandonment Exemption-in King Cnty., WA STB Docket No. AB-6 (Sub. No. 380X), 1998 WL 638432 (S.T.B. Sept. 16, 1998).
On May 13, 1998, the STB granted Burlington Northern an exemption to abandon a 12.45 mile length of railroad between milepost 7.3, near Redmond, and milepost 19.75, at Issaquah, in King County, Washington. See id. On September 16, 1998, the STB authorized The Land Conservancy of Seattle and King County (TLC) to assume financial responsibility for the rights of way pursuant to the National Trails System Act Amendments of 1983, Pub.L. No. 98-11, § 208 , 97 Stat. 42 , codified at 16 U.S.C. § 1247 (d) (2006) (the Trails Act). See Burlington N. & Santa Fe Ry. Co.-Abandonment Exemption-in King Cnty., WA, STB Docket No. AB-6 (Sub. No. 380X), 1998 WL 638432 . The STB also authorized the issuance of a NITU for the Burlington Northern right of way, permitting King County and the TLC to establish a public recreational trail over the railroad right of way. The STB’s ruling authorized conversion of the railroad rights of way into a recreational trail, pursuant to 16 U.S.C. § 1247 (d). The NITU was issued on September 18, 1998. King County, Washington subsequently reached an agreement with Burlington Northern for use of the rights of way for trail purposes. On September 29, 1998, counsel for the TLC informed the STB that the parties had reached agreements railbanking the railroad con’idor pursuant to the NITU. Since the STB approved conversion of the railway to a trail, no railway carriers have used the railroad, and the tracks have been removed from the rights of way.
DISCUSSION
The plaintiffs in the above captioned consolidated eases allege that the federal government’s actions resulted in takings of their property without compensation, in violation of the Fifth Amendment to the United States *417 Constitution. This court previously determined that the 1875 Act conveyed only easements, the SLS & E Deeds conveyed only easements, the 1904 Reeves Quit Claim Deed conveyed only an easement to the Northern Pacific, and the parties have stipulated that the SLS & E acquired certain of their interests by adverse possession/preseriptive easement. The parties have filed partial cross-motions for summary judgment on the limited issue of the scope of those easements.
Rule 56 of the Rules of the United States Court of Federal Claims (RCFC) is patterned on Rule 56 of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) and is similar, both in language and effect. Both rales provide that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a) (2011); Fed.R.Civ.P. 56(a) (2012); see also Alabama v. North Carolina, — U.S. -, 130 S.Ct. 2295, 2308 , 176 L.Ed.2d 1070 (2010); Hunt v. Cromartie, 526 U.S. 541, 549 , 119 S.Ct. 1545 , 143 L.Ed.2d 731 (1999); Nebraska v. Wyoming, 507 U.S. 584, 590 , 113 S.Ct. 1689 , 123 L.Ed.2d 317 (1993); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 , 90 S.Ct. 1598 , 26 L.Ed.2d 142 (1970); Fujitsu Ltd. v. Netgear Inc., 620 F.3d 1321, 1325 (Fed.Cir.), reh’g denied (Fed.Cir.2010); Consol. Coal Co. v. United States, 615 F.3d 1378, 1380 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010), cer t. denied, — U.S. -, 131 S.Ct. 2990 , 180 L.Ed.2d 821 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d 1350, 1355 (Fed.Cir.2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375, 1378 (Fed.Cir.2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283 (Fed.Cir.2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed.Cir.2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2004), cert. denied, 545 U.S. 1139 , 125 S.Ct. 2963 , 162 L.Ed.2d 887 (2005); Cohen v. United States, 100 Fed.Cl. 461, 469 (2011); Boensel v. United States, 99 Fed.Cl. 607, 610 (2011). A fact is material if it will make a difference in the result of a case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 , 106 S.Ct. 2505 see also Thompson v. United States, 101 Fed.Cl. 416, 426 (2011); Cohen v. United States, 100 Fed.Cl. at 469 . Irrelevant or unnecessary factual disputes do not preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48 , 106 S.Ct. 2505 ; see also Scott v. Harris, 550 U.S. 372, 380 , 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed.Cir.2001); Walker v. United States, 79 Fed.Cl. 685, 692 (2008); Curtis v. United States, 144 Ct.Cl. 194, 199 , 168 F.Supp. 213, 216 (1958), cert. denied, 361 U.S. 843 , 80 S.Ct. 94 , 4 L.Ed.2d 81 (1959), reh’g denied, 361 U.S. 941 , 80 S.Ct. 375 , 4 L.Ed.2d 361 (1960).
When reaching a summary judgment determination, the judge’s function is not to weigh the evidence and determine the truth of the case presented, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 , 106 S.Ct. 2505 see, e.g., Schlup v. Delo, 513 U.S. 298, 332 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995); Ford Motor Co. v. United States, 157 F.3d 849, 854 (Fed.Cir.1998) (“Due to the nature of the proceeding, courts do not make findings of fact on summary judgment.”); Cohen v. United States, 100 Fed.Cl. at 469-70 ; Boensel v. United States, 99 Fed.Cl. at 611 ; Macy Elevator, Inc. v. United States, 97 Fed.Cl. 708, 717 (2011); Dick Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed.Cl. 113, 126 (2009); Johnson v. United States, 49 Fed.Cl. 648, 651 (2001), aff'd, 52 Fed.Appx. 507 (Fed.Cir.2002), published at 317 F.3d 1331 (Fed.Cir.2003). The judge must determine whether the evidence presents a disagreement sufficient to require submission to fact finding, or whether the issues presented are so one-sided that one party must prevail as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52 , 106 S.Ct. 2505 ; Jay v. Sec’y of Dep’t of Health and Human Servs., 998 F.2d 979, 982 (Fed.Cir), reh’g denied and en banc suggestion declined (Fed.Cir.1993). *418 When the record could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d 1306, 1316 (Fed.Cir.2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548 , 1553 n. 3 (Fed.Cir.1996). In such a case, there is no need for the parties to undertake the time and expense of a trial, and the moving party should prevail without further proceedings.
In appropriate cases, summary judgment: saves the expense and time of a full trial when it is unnecessary. When the material facts are adequately developed in the motion papers, a full trial is useless. “Useless” in this context means that more evidence than is already available in connection with the motion for summary judgment could not reasonably be expected to change the result.
Dehne v. United States, 23 Cl.Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d 624, 626 (Fed.Cir.1984)), vacated on other grounds, 970 F.2d 890 (Fed.Cir.1992) (citation omitted); see also Metric Constr. Co., Inc. v. United States, 73 Fed.Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 , 106 S.Ct. 2505 ; see also Takeda Pharm. Co. v. Doll, 561 F.3d 1372, 1375 (Fed.Cir.2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2007), cert. denied, 555 U.S. 812 , 129 S.Ct. 38 , 172 L.Ed.2d 19 (2008); Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d 955 , 971 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2001), cer t. denied, 534 U.S. 1109 , 122 S.Ct. 913 , 151 L.Ed.2d 879 (2002); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350, 1353 (Fed.Cir.1999); Gonzales-McCaulley Inv. Group, Inc. v. United States, 101 Fed.Cl. 623, 629 (2011). In other words, if the non-moving party produces sufficient evidence.to raise a question as to the outcome of the case, then the motion for summary judgment should be denied. Any doubt over factual issues must be resolved in favor of the party opposing summary judgment, to whom the benefit of all presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557 , 129 S.Ct. 2658, 2677 , 174 L.Ed.2d 490 (2009); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88 , 106 S.Ct. 1348 ; Yant v. United States, 588 F.3d 1369, 1371 (Fed.Cir.2009), cert. denied, — U.S. -, 131 S.Ct. 69 , 178 L.Ed.2d 23 (2010); Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed.Cir.2001), reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed.Cir.2002), ce rt. denied, 539 U.S. 957 , 123 S.Ct. 2637 , 156 L.Ed.2d 655 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257 ; Wanlass v. Fedders Corp., 145 F.3d 1461, 1463 (Fed.Cir.), reh’g denied and en banc suggestion declined (Fed.Cir.1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371 (citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed.Cir.2000)); Boensel v. United States, 99 Fed.Cl. at 611 (“ ‘The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’ ” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. 2505 ) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88 , 106 S.Ct. 1348 ; Casitas Mun. Water Dist. v. United States, 543 F.3d at 1283 , Lathan Co., Inc. v. United States, 20 Cl.Ct. 122, 125 (1990))). “However, once a moving party satisfies its initial burden, mere allegations of a genuine issue of material fact without supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed.Cir.2009); see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48, 106 S.Ct. 2505 .
The initial burden on the party moving for summary judgment to produce evidence showing the absence of a genuine issue of material fact may be discharged if the moving party can demonstrate that there is an absence of evidence to support the non-moving party’s case. See Celotex Corp. v. *419 Catrett, 477 U.S. 317, 325 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986); see also Riley & Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed.Cir.2005); Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed.Cir.), reh’g denied (Fed.Cir.2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741 (Fed.Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed.Cir.1994), reh’g denied and en banc suggestion declined (Fed.Cir.1995)), reh’g denied and en banc suggestion declined (Fed.Cir.1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1569 (Fed.Cir.1997); Dana R. Hodges Trust v. United States, 101 Fed.Cl. 549, 553 (2011). If the moving party makes such a showing, the burden shifts to the nonmoving party to demonstrate that a genuine dispute regarding a material fact exists by presenting evidence which establishes the existence of an element essential to its ease upon which it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322, 106 S.Ct. 2548 ; see also Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed.Cir.2009); Long Island Sav. Bank, FSB v. United States, 503 F.3d at 1244 ; Florida Power & Light Co. v. United States, 375 F.3d 1119, 1124 (Fed.Cir.2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207 (Fed.Cir.2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed.Cir.2000). However, “a non-movant is required to provide opposing evidence under Rule 56(e) only if the moving party has provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1369 (Fed.Cir.2006).
Even if both parties argue in favor of summary judgment and allege an absence of genuine issues of material fact, the court is not relieved of its responsibility to determine the appropriateness of summary disposition in a particular’ case, and it does not follow that summary judgment should be granted to one side or the other. See Prineville Sawmill Co. v. United States, 859 F.2d 905, 911 (Fed.Cir.1988) (citing Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.Cir.1987)); see also Marriott Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968-69 (Fed.Cir.2009); B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 593 (6th Cir.2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030 , 1037 n. 5 (9th Cir.2000), cert. denied, 532 U.S. 942 , 121 S.Ct. 1403 , 149 L.Ed.2d 346 (2001); Bubble Room, Inc. v. United States, 159 F.3d 553, 561 (Fed.Cir.1998) (“The fact that both the parties have moved for summary judgment does not mean that the court must grant summary judgment to one party or the other.”), reh’g denied and en banc suggestion declined (Fed.Cir.1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir.1998); Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed.Cir.1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401 F.2d 689, 692 (4th Cir.1968), cert. denied, 393 U.S. 1083 , 89 S.Ct. 866 , 21 L.Ed.2d 776 (1969); Rogers v. United States, 90 Fed.Cl. 418, 427 (2009), subsequent determination, 93 Fed.Cl. 607 (2010); Consol. Coal Co. v. United States, 86 Fed.Cl. 384, 387 (2009), aff'd, 615 F.3d 1378 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2990 , 180 L.Ed.2d 821 (2011); St. Christopher Assocs., L.P. v. United States, 75 Fed.Cl. 1, 8 (2006), aff'd, 511 F.3d 1376 (Fed.Cir.2008); Reading & Bates Corp. v. United States, 40 Fed.Cl. 737, 748 (1998). The court must evaluate each party’s motion on its own merits, taking care to draw all reasonable inferences against the party whose motion is under consideration, or otherwise stated, in favor of the non-moving party. See First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d 1314, 1322 (Fed.Cir.2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2001), cer t. denied, 534 U.S. 1114 , 122 S.Ct. 921 , 151 L.Ed.2d 886 (2002); Oswalt v. United States, 85 Fed.Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v. United States, 71 Fed.Cl. 114, 119 (2006).
Cross-motions are no more than a claim by each party that it alone is entitled to summary judgment. The making of such inherently contradictory claims, however, *420 does not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich Co. v. United States Filter Corp., 245 F.3d at 593 ; Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir.1998); Rogers v. United States, 90 Fed.Cl. at 427 ; Reading & Bates Corp. v. United States, 40 Fed.Cl. 737, 748 (1998).
“Questions of law are particularly appropriate for summary judgment.” Oenga v. United States, 91 Fed.Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d 1344, 1347 (Fed.Cir.1999) (“Summary judgment was appropriate here [in Dana Corp.] because no material facts were disputed, many being stipulated, and the only disputed issues were issues of law. Moreover, on each issue one party or the other is entitled to judgment as a matter of law.”)). For the purposes of resolving the cross-motions for partial summary judgment currently before the court, the material facts are not in dispute. Therefore, the issues presented may be resolved by summary judgment.
Under the Tucker Act, the United States Court of Federal Claims has exclusive jurisdiction to render judgment upon any claim against the United States for money damages exceeding $10,000.00 that is “founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.” 28 U.S.C. § 1491 (a)(1) (2006). Therefore, “a claim for just compensation under the Takings Clause must be brought to the Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. 498, 520 , 118 S.Ct. 2131 , 141 L.Ed.2d 451 (1998) (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 , 104 S.Ct. 2862 , 81 L.Ed.2d 815 (1984)); see also Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1336 (Fed.Cir.2007); Morris v. United States, 392 F.3d 1372, 1375 (Fed.Cir.2004) (“Absent an express statutory grant of jurisdiction to the contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over takings claims for amounts greater than $10,000.”). The United States Supreme Court has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the [United States Court of Federal Claims] to hear and determine.” Preseault v. Interstate Commerce Comm’n, 22 494 U.S. 1, 12 , 110 S.Ct. 914 , 108 L.Ed.2d 1 (1990) (quoting United States v. Causby, 328 U.S. 256, 267 , 66 S.Ct. 1062 , 90 L.Ed. 1206 (1946)); see also Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1368 (Fed.Cir.2005); Narramore v. United States, 960 F.2d 1048, 1052 (Fed.Cir.1992); Perry v. United States, 28 Fed.Cl. 82, 84 (1993).
The Takings Clause of the Fifth Amendment to the United States Constitution provides in- pertinent part: “nor shall private property be taken for public use without just compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is to prevent the government from ‘“forcing *421 some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Palazzolo v. Rhode Island, 533 U.S. 606, 618 , 121 S.Ct. 2448 , 150 L.Ed.2d 592 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49 , 80 S.Ct. 1563 , 4 L.Ed.2d 1554 (1960)); see also Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 123-24 , 98 S.Ct. 2646 , 57 L.Ed.2d 631 , reh’g denied, 439 U.S. 883 , 99 S.Ct. 226 , 58 L.Ed.2d 198 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 , 125 S.Ct. 2074 , 161 L.Ed.2d 876 (2005); E. Enters. v. Apfel, 524 U.S. at 522 , 118 S.Ct. 2131 ; Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1266 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1501 , 176 L.Ed.2d 109 (2010); Janowsky v. United States, 133 F.3d 888, 892 (Fed.Cir.1998); Resource Invs., Inc. v. United States, 85 Fed.Cl. 447, 469-70 (2009); Pumpelly v. Green Bay & Miss. Canal Co., 80 U.S. (13 Wall.) 166, 179 , 20 L.Ed. 557 (1871) (citing to principles which establish that “private property may be taken for public uses when public necessity or utility requires” and that there is a “clear principle of natural equity that the individual whose property is thus sacrificed must be indemnified.”).
To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that the government took a private property interest for public use without just compensation. See Adams v. United States, 391 F.3d 1212, 1218 (Fed.Cir.2004), cert. denied, 546 U.S. 811 , 126 S.Ct. 330 , 163 L.Ed.2d 43 (2005); Arbelaez v. United States, 94 Fed.Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed.Cl. 157, 162 (2006). “The issue of whether a taking has occurred is a question of law based on factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78 (Fed.Cir.), cert. denied, 555 U.S. 1045 , 129 S.Ct. 626 , 172 L.Ed.2d 608 (2008).
The Federal Circuit has established a two-part test to determine whether governmental actions amount to takings of private property under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.Cir.2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed.Cir.), cert. denied, 516 U.S. 808 , 116 S.Ct. 53 , 133 L.Ed.2d 18 (1995)). A court first determines whether a plaintiff possesses a cognizable property interest in the subject of the alleged takings. Then, the court must determine whether the government action is a “ ‘compensable taking of that property interest.’ ” Huntleigh USA Corp. v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372 ).
A takings plaintiff must have a legally cognizable property interest, such as the right of possession, use or disposal of the property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 , 102 S.Ct. 3164 , 73 L.Ed.2d 868 (1982) (citing United States v. Gen. Motors Corp., 323 U.S. 373 , 65 S.Ct. 357 , 89 L.Ed. 311 (1945)); CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed.Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2459 , 179 L.Ed.2d 1211 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed.Cir.), reh’g denied and en banc suggestion denied (Fed.Cir.2000), ce rt. denied, 532 U.S. 941 , 121 S.Ct. 1402 , 149 L.Ed.2d 345 (2001). “ ‘It is axiomatic that only persons with a valid property interest at the time of the taking are entitled to compensation.’ ” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed.Cir.2001), cert. denied 535 U.S. 1077 , 122 S.Ct. 1960 , 152 L.Ed.2d 1021 (2002) and citing Cavin v. United States, 956 F.2d 1131, 1134 (Fed.Cir.1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d 1344, 1352 (Fed.Cir.2003) and M & J Coal Co. v. United States, 47 F.3d at 1154 ). The court does not address the second step “without first identifying a cognizable property interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed.Cir.) (citing Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States, 291 F.3d 1334, 1340 (Fed.Cir.), reh’g *422 en banc denied (Fed.Cir.2002), cert. denied, 537 U.S. 1112 , 123 S.Ct. 904 , 154 L.Ed.2d 785 (2003)), reh’g denied and reh’g en banc denied (Fed.Cir.2005). Only if there is to be a next step, “after having identified a valid property interest, the court must determine whether the governmental action at issue amounted to a compensable taking of that property interest.” Huntleigh USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 ).
If a plaintiff has a valid property interest, the government takes that interest by destroying, physically occupying, or excessively regulating it for a public purpose. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., — U.S. -, 130 S.Ct. 2592, 2601 , 177 L.Ed.2d 184 (2010); Boyle v. United States, 200 F.3d 1369, 1374 (Fed.Cir.2000). “ ‘When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.’ ” Brown v. Legal Found. of Wash., 538 U.S. 216, 233 , 123 S.Ct. 1406 , 155 L.Ed.2d 376 (2003) (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 321-23 , 122 S.Ct. 1465 , 152 L.Ed.2d 517 (2002)) (citations omitted); see also John R. Sand & Gravel Co. v. United States, 457 F.3d 1345, 1357 (Fed.Cir.) (“[A] permanent physical occupation by the government is a per se physical taking requiring compensation under the Fifth Amendment because it destroys, among other rights, a property owner’s right to exclude.”), reh’g en banc denied (Fed.Cir.2006), aff'd, 552 U.S. 130 , 128 S.Ct. 750 , 169 L.Ed.2d 591 (2008). The United States Supreme Court has indicated that when “deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole....” Penn Central Transp. Co. v. City of New York, 438 U.S. at 130-31 , 98 S.Ct. 2646 . If a plaintiff does possess a property interest, the court decides if the “property has been deprived or abridged sufficiently to qualify as ‘taken.’ ” See Northwest La. Fish & Game Pres. Comm’n v. United States, 574 F.3d 1386, 1390 (Fed.Cir.2009) (quoting Members of Peanut Quota Holders Ass’n v. United States, 421 F.3d 1323, 1330 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2005), cert. denied, 548 U.S. 904 , 126 S.Ct. 2967 , 165 L.Ed.2d 951 (2006)), cert. denied, — U.S. -, 130 S.Ct. 1072 , 175 L.Ed.2d 886 (2010); see also Acceptance Ins. Cos. v. United States, 583 F.3d 849, 854 (Fed.Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 2402 , 176 L.Ed.2d 922 (2010); Boise Cascade Corp. v. United States, 296 F.3d 1339, 1343 (Fed.Cir.2002), ce rt. denied, 538 U.S. 906 , 123 S.Ct. 1484 , 155 L.Ed.2d 226 (2003); Wyatt v. United States, 271 F.3d at 1099-1100 ; Karuk Tribe of Cal. v. Ammon, 209 F.3d at 1374 .
The STB has authority to regulate most railroad lines in the United States. See 49 U.S.C. § 702 (2006). A railroad seeking to abandon any part of its railroad lines must either (1) file an application to abandon or (2) file a notice of exemption to abandon the line. See 49 U.S.C. § 10903 (2006); see also 49 C.F.R. § 1152.50 (2012). “If the STB approves a standard abandonment application or grants an exemption and the railroad ceases operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and state law reversionary property interests, if any, take effect.” Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed.Cir.2004) (citing Preseault I, 494 U.S. at 6-8 , 110 S.Ct. 914 ), reh’g en banc denied (Fed.Cir.), ce rt. denied, 546 U.S. 826 , 126 S.Ct. 366 , 163 L.Ed.2d 72 (2005).
Alternatively, by operation of the Trails Act, the STB may issue a NITU, “suspending exemption proceedings for 180 days to allow a third party to enter into an agreement with the railroad to use the right-of-way as a recreational trail.” Barclay v. United States, 443 F.3d 1368, 1371 (Fed.Cir.), reh’g en banc denied (Fed.Cir.2006), cert. denied, 549 U.S. 1209 , 127 S.Ct. 1328 , 167 L.Ed.2d 81 (2007). Section 8(d) of the Trails Act, “allows a railroad to negotiate with a state, municipal, or private group (‘the trail operator’) to assume financial responsibility for operating the railroad right of way as a *423 recreational trail.” See Bright v. United States, 603 F.3d 1273, 1275 (Fed.Cir.), reh’g and reh’g en banc denied (Fed.Cir.2010) (citing Caldwell v. United States, 391 F.3d at 1229). If the railroad and an authorized trail provider 23 reach an agreement, the NITU extends indefinitely, and the corridor is rail-banked, with interim trail use permitted. See 49 C.F.R. § 1152.29 (d)(1)-(2) (current through Mar. 29, 2012) (“The NITU will indicate that interim trail use is subject to future restoration of rail service ... [t]he NITU will also provide that, if the user intends to terminate trail use, it must send the [STB] a copy of the NITU and request that it be vacated on a specific date.”); see also Caldwell v. United States, 57 Fed.Cl. 193, 194 (2003) (quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901 , 903 n. 1 (8th Cir.1997)) (“The term railbanking refers to the ‘preservation of railroad corridor for future rail use,’ while making the corridor available for other activities.”), aff'd, 391 F.3d 1226 (Fed.Cir.2004), reh’g en banc denied (Fed.Cir.), cert. denied, 546 U.S. 826 , 126 S.Ct. 366 , 163 L.Ed.2d 72 (2005). When the NITU extends indefinitely and the corridor is railbanked, the STB retains jurisdiction and abandonment of the rail corridor is blocked. See 16 U.S.C. § 1247 (d) (“[I]n the ease of interim use of any established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such interim use is subject to restoration or reconstruction for railroad purposes, such interim use shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.”).
As described by the United States Court of Appeals for the Federal Circuit:
Thus, section 8(g) of the Trails Act prevents the operation of state laws that would otherwise come into effect upon abandonment-property laws that would “result in extinguishment of easements for railroad purposes and reversion of rights of way to abutting landowners.” Rail Abandonments-Use of Rights-of-Way as Trails, Ex Parte No. 274 (Sub. No. 13), 2 I.C.C.2d 591 , 1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original easement granted to the railroad under state property law is not broad enough to encompass a recreational trail. See Preseault II, 100 F.3d at 1552; see also Toews [v. United States], 376 F.3d at 1376.
Caldwell v. United States, 391 F.3d at 1229.
The Federal Circuit has established a three-part inquiry to determine takings liability in cases involving the conversion of railroad rights of way to a recreational trail via 16 U.S.C. § 1247 (d) of the Trails Act:
(1) who owned the strips of land involved, specifically did the Railroad ... acquire only easements, or did it obtain fee simple estates; (2) if the Railroad acquired only easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; and (3) even if the grants of the Railroad’s easements were broad enough to encompass recreational trails, had these easements terminated pri- or to the alleged taking so that the property owners at that time held fee simples unencumbered by the easements.
Preseault II, 100 F.3d at 1533. Phrased differently, the Federal Circuit more recently indicated:
the determinative issues for takings liability are (1) who owns the strip of land involved, specifically, whether the railroad acquired only an easement or obtained a fee simple estate; (2) if the railroad acquired only an easement, were the terms of the easement limited to use for railroad purposes, or did they include future use as a public recreational trail (scope of the easement); and (3) even if the grant of the railroad’s easement was broad enough to encompass a recreational trail, had this easement terminated prior to the alleged taking so that the property owner at the *424 time held a fee simple unencumbered by the easement (abandonment of the easement).
Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed.Cir.2009) (citing Preseault II, 100 F.3d at 1533).
As noted above, this court previously issued opinions determining that the conveyances pursuant to the 1875 Act, the SLS & E Deeds, and the 1904 Reeves Quit Claim Deed conveyed only easements and not fee interests, and the parties have stipulated that the interests the SLS & E acquired by adverse possession/prescriptive easement also were easements and not fee interests, thereby addressing the first part of the Federal Circuit’s rails to trails takings inquiry. The court, therefore, ordered the parties to brief the second part of the rails to trails takings inquiry, the scope of the easements.
Scope of the Easements
The United States Court of Appeals for the Federal Circuit has indicated that “[a] Fifth Amendment taking occurs if the original easement granted to the railroad under state property law is not broad enough to encompass a recreational trail.” Caldwell v. United States, 391 F.3d at 1229 (citing Preseault II, 100 F.3d at 1533). The Federal Circuit also has stated, “[i]t is settled law that a Fifth Amendment taking occurs in Rails — to—Trails eases when government action destroys state-defined property rights by converting a railway easement to a recreational trail, if trail use is outside the scope of the original railway easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed.Cir.2010), reh’g and reh’g en banc denied, 646 F.3d 910 (Fed.Cir.2011) (citing Ellamae Phillips Co. v. United States, 564 F.3d at 1373 ); see also Jenkins v. United States, 102 Fed.Cl. 598, 605 (2011); Dana R. Hodges Trust v. United States, 101 Fed.Cl. at 551. In Toews v. United States, 376 F.3d 1371 (Fed.Cir.), reh’g denied (Fed.Cir.2004), the Federal Circuit noted that “[i]t is elementary law that if the Government uses ... an existing railroad easement for purposes and in a manner not allowed by the terms of the grant of the easement, the Government has taken the landowner’s property for the new use. The consent of the railroad to the new use does not change the equation-the railroad cannot give what it does not have.” Id. at 1376 .
Despite the court’s clear instructions to the parties to “brief the limited issue of the scope of the easement for all of the deeds at issue in the consolidated cases,” the defendant’s first argument in its cross-motion for partial summary judgment states that “the operative question is not the scope of the easement, but rather whether the issuance of the NITU blocked abandonment under state law,” and defendant’s abandonment argument covers almost one-third of the total arguments in the defendant’s opening brief. 24 As previously indicated to the parties, however, the court will direct its attention to the third and final part of the rails to trails takings inquiry, abandonment, only if indicated by the results of the current scope of the easements inquiry. See Whispell Foreign Cars, Inc. v. United States, 100 Fed.Cl. 529, 541 (2011) (footnote omitted) (“Because the court has determined that recreational trail use is not within the scope of the easement, the court need not determine at this time whether the easement was abandoned under Florida law.”); see also Ybanez v. United States, 102 Fed.Cl. 82, 87 (2011) (“Where the scope of a new easement exceeds the original grant, a determination of whether abandonment occurs is unnecessary.”) (citing Preseault II, 100 F.3d at 1533 and Toews v. United States, 376 F.3d at 1381 ). Similarly, when interpreting the 1875 Act, a Judge of the Court of Federal Claims noted: “Defendant raises several arguments concerning abandonment. Since we have determined *425 that trail use exceeds the scope of the easement, we have no need to address the contingent issue of abandonment.” Ellamae Phillips Co. v. United States, 99 Fed.Cl. 483, 487 (2011).
Turning to the merits of the scope of the easements inquiry, the plaintiffs broadly argue that for the plaintiffs involved, “[i]t is beyond cavil that these easements were never intended to be used as linear parks,” and “[f]or this reason, when the Government authorized recreational trail use on these easements, it effected a per se taking, giving rise to its liability.” Therefore, plaintiffs allege they are entitled to partial summary judgment on the issue of the scope of the easements, and further that, “[ujnder settled Federal Circuit law, just compensation is due Plaintiffs here.” By contrast, the defendant argues that the United States is entitled to partial summary judgment, “because rail-banking and interim trail use fall within the scope of the easements at issue under longstanding Washington law and the facts of this ease. As a result, Plaintiffs cannot show that the United States has taken any property interest belonging to them, warranting summary judgment in favor of the United States.”
Scope of the Easements for the SLS & E Deeds
As indicated above, the SLS & E Deeds are in the following format:
In Consideration of the benefits and advantages to accrue to us from the location, construction and operation of the Seattle, Lake Shore and Eastern Railway in the County of King in Washington Territory we do hereby donate, grant and convey unto said Seattle, Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands in said County, described as follows, to wit:
[specific description of lot and section]
Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said Railway Company, which location is described as follows, to wit:
[description of the metes and bounds]
And the said Seattle, Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.
To Have and to Hold said premises with the appurtenances unto the said party of the second part, and to its successors and assigns forever.
In Witness Whereof the parties of the first part have hereunto set their hands and seals this [-] day of [Month], A.D. 1887. 25
As the SLS & E Deeds are essentially the same, except for the grantors’ names, the date the deeds were executed, the property descriptions, minor grammatical differences, and the use of the singular versus plural in the case of the source deed at issue in Nelson and Collins, the court will analyze the scope of the easements for all the SLS & E Deeds together.
There is no dispute that State of Washington law controls to determine the scope of the easements for the SLS & E Deeds. The United States Court of Appeals for the Federal Circuit, interpreting a takings claim for a railroad right of way, was clear that “state law generally creates the property interest in a railroad right-of-way,” Barclay v. United States, 443 F.3d at 1374 (citing Preseault I, 494 U.S. at 8, 16 , 110 S.Ct. 914 ), and in a footnote on the same page repeated, “[i]n Toews v. United States, 376 F.3d 1371 (Fed.Cir.2004), we reiterated that state law controls the basic issue of whether trail use is beyond the scope of the right-of-way.” Barclay v. United States, 443 F.3d at 1374 n. 4. “The nature of the interest conveyed is determined according to the law of the state where the conveyance occurred. ‘State law creates and defines the scope of the rever-sionary or other real property interests af- *426 feeted by the ICC’s [Interstate Commerce Commission] action pursuant to Section 208 of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247 (d).’ ” Chevy Chase Land Co. of Montgomery Cnty. v. United States, 37 Fed.Cl. 545, 565 (1997) (quoting Preseault I, 494 U.S. at 20 , 110 S.Ct. 914 (O’Connor, J., concurring) (citing Ruckelshaus v. Monsanto Co., 467 U.S. at 1001 , 104 S.Ct. 2862 )), aff'd, 230 F.3d 1375 (Fed.Cir.1999), reh’g and reh’g en banc denied (Fed.Cir.), cert. denied, 531 U.S. 957 , 121 S.Ct. 380 , 148 L.Ed.2d 293 (2000); see also Whispell Foreign Cars, Inc. v. United States, 97 Fed.Cl. 324, 331 (“Whether an individual has a compensable private property interest is determined by state law.”), amended after recons. in part, 100 Fed.Cl. 529 (2011).
While Chevy Chase Land Co. of Montgomery County v. United States and Preseault I specifically addressed the application of state law to be applied in Rails to Trails cases, the United States Supreme Court has made similar pronouncements about state law governing how determinations are made regarding property conveyances. For example, in Ruckelshaus v. Monsanto Co., 467 U.S. at 1001 , 104 S.Ct. 2862 , the Supreme Court stated, “we are mindful of the basic axiom that ‘ “[property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” ’ ” (quoting Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 , 101 S.Ct. 446 , 66 L.Ed.2d 358 (1980) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972))) (omission in original). In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363 , 97 S.Ct. 582 , 50 L.Ed.2d 550 (1977), the United States Supreme Court stated that, “[u]nder our federal system, property ownership is not governed by a general federal law, but rather by the laws of the several States.” Id. at 378 , 97 S.Ct. 582 ; see also Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155 , 64 S.Ct. 474 , 88 L.Ed. 635 (1944) (“The great body of law in this country which controls acquisition, transmission, and transfer of property, and defines the rights of its owners in relation to the state or to private parties, is found in the statutes and decisions of the state.”). The Federal Circuit also has directed that state law determines whether trail use exceeds the scope of the easement. See generally Toews v. United States, 376 F.3d 1371 ; see also Preseault II, 100 F.3d at 1541-42.
According to the State of Washington Supreme Court, under Washington law, “when construing a deed, the intent of the parties is of paramount importance and the court’s duty to ascertain and enforce.” Brown v. State, 924 P.2d at 911 (footnote omitted); see also Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n, 156 Wash.2d 253 , 126 P.3d 16, 25-26 (2006); Wash. State Grange v. Brandt, 136 Wash.App. 138 , 148 P.3d 1069, 1073 (2006) (“Generally, when construing a deed, the intent of the parties is of paramount importance and courts must ascertain and enforce such intent.”), review denied, 161 Wash.2d 1024 , 171 P.3d 1054 (2007). The State of Washington Supreme Court also has concluded that, “[t]he interpretation of an easement is a mixed question of law and fact. What the original parties intended is a question of fact and the legal consequence of that intent is a question of law.” Sunnyside Valley Irr. Dist. v. Dickie, 149 Wash.2d 873 , 73 P.3d 369, 372 (2003) (citing Veach v. Culp, 92 Wash.2d 570 , 599 P.2d 526, 527 (1979)). The Sunnyside Valley court also offered standard contract interpretation guidance, as applied to railroad deeds, stating:
The intent of the original parties to an easement is determined from the deed as a whole. Zobrist v. Culp, 95 Wash.2d 556 , 627 P.2d 1308 [, 1310] (1981). If the plain language is unambiguous, extrinsic evidence will not be considered. City of Seattle v. Nazarenus, 60 Wash.2d 657 , 374 P.2d 1014 [, 1019-20] (1962). If ambiguity exists, extrinsic evidence is allowed to show the intentions of the original parties, the circumstances of the property when the easement was conveyed, and the practical interpretation given the parties’ prior conduct or admissions.
*427 Sunnyside Valley Irr. Dist. v. Dickie, 73 P.3d at 372 (other citations omitted); see also City of Seattle v. Nazarenus, 60 Wash.2d 657 , 374 P.2d 1014, 1019-20 (1962) (“ ‘Where the language is unambiguous, other matters may not be considered; but where the language is ambiguous the court may consider the situation of the property and of the parties, and the surrounding circumstances at the time the instrument was executed, and the practical construction of the instrument given by the parties by their conduct or admissions.’ ”) (quoting 28 C.J.S. Easements § 26, p. 680). 26
The State of Washington Supreme Court, however, has applied the “context rule” to interpretation of railroad deeds. As indicated in Harris v. Ski Park Farms, Inc., “[t]his court has adopted the ‘context rule’ which succinctly stated is that ‘extrinsic evidence is admissible as to the entire circumstances under which [a] contract [is] made, as an aid in ascertaining the parties’ intent,’ specifically adopting the Restatement (Second) of Contracts §§ 212, 214(e) (1981).” Harris v. Ski Park Farms, Inc., 120 Wash.2d 727 , 844 P.2d 1006, 1014 , recons. denied (Wash. 1993), cert. denied, 510 U.S. 1047 , 114 S.Ct. 697 , 126 L.Ed.2d 664 (1994) (footnote omitted) (omissions in original); see also Brown v. State, 924 P.2d at 912 (“In addition to the language of the deed, we will also look at the circumstances surrounding the deed’s execution and the subsequent conduct of the parties.”). Citing to Brown v. State, the State of Washington Court of Appeals in Roeder Co. v. K & E Moving & Storage Co., Inc., noted that “the Supreme Court has recently ruled that, in light of Washington’s adoption of the ‘context rule’ for contracts, courts may look to extrinsic evidence along with the deed itself to determine the parties’ intent.” Roeder Co. v. K & E Moving & Storage Co., Inc., 102 Wash.App. 49 , 4 P.3d 839 , 841 n. 6 (citing Brown v. State, 924 P.2d at 912 and Harris v. Ski Park Farms, Inc., 844 P.2d at 1014 ), recons. denied, (Wash.Ct.App.2000), review denied, 142 Wash.2d 1017 , 16 P.3d 1264 (2001) (emphasis in original). To look first to the language of the statutes and the source deeds, but also to refer to the context of the deeds at their time of execution is reasonable, given their age and the sometimes stilted language used. The meaning of these deeds is not always clear to a reader well more than 100 years later, creating possible ambiguities.
In addition to acknowledging and citing the court’s prior decisions, the plaintiffs argue that the express language in the SLS & E Deeds, regarding the location, construction and operation of the SLS & E, describes one purpose of the easement; to build and operate a railroad. There was no other purpose. According to plaintiffs, “[t]his language clearly and objectively manifests a single purpose of using the easement to operate a railroad. The only reasonable interpretation is that the grant of the right of way was for the purpose stated, and only that purpose.” (emphasis in original).
Defendant argues, however, that “other than conveying land for a right-of-way, none of the deeds at issue expressly limit the use of the right-of-way to any specific purpose.” According to the defendant, “[t]he rights-of-passage granted thus encompass the right to pass through in vehicles of all types, including trains and bicycles, and to pass on foot. Trail use therefore falls within the scope of the easements granted.” Although defendant chose essentially to rear-gue, with only slight variation, the arguments it had made earlier regarding whether the SLS & E Deeds conveyed a fee interest or an easement, the court already rejected defendant’s line of argument in its earlier opinions. This court previously observed:
The defendant argues that the use of the term “strip” indicates conveyance of a fee *428 interest, citing to the Washington State Court of Appeals decision in Ray v. King County, which determined, “where there is no language relating to the purpose of the grant or limiting the estate conveyed, and the deed conveys a strip of land, courts will construe the deed to convey fee simple title.” Ray v. King Cnty., 86 P.3d at 189 (citing Brown v. State, 924 P.2d at 913 ) (footnote omitted). In the SLS & E Deeds, however, the language of the granting clause establishes the purpose of the grant, to receive the benefits from the construction, operation, and maintenance of a railroad, for which purpose the right of way use was conveyed to the SLS & E.
Beres et al. v. United States, 97 Fed.Cl. at 784, and, this court previously determined that:
The SLS & E Deeds also use the phrase “right of way” as a limitation of the grant to the SLS & E. The deed in Kershaw conveyed “a strip of land seventy five feet wide ... to be used by [the Railway] as a right of way for a railway forever, together with the perpetual right to construct, maintain and operate a railway or railways over and across the same.” [Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association, 126 P.3d] at 18 (brackets in original). The SLS & E Deeds state the purpose of the conveyance as: “In Consideration of the benefits and advantages to accrue to us from the location, construction and operation of the Seattle, Lake Shore and Eastern Railway in the County of King in Washington Territory we do hereby donate, grant and convey unto said Seattle, Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands....”
The defendant argues, however, that the SLS & E Deeds contain “no language limiting the grant to the privilege of constructing, operating, or maintaining a railroad over the land.” As quoted immediately above, however, the granting clauses of the SLS & E Deeds specifically refer to the railroad purpose for granting the right of way, “[i]n Consideration of the benefits and advantages to accrue to us from the location, construction and operation” of the railroad to the benefit of the source deed grantors.
Beres et al. v. United States, 97 Fed.Cl. at 787-88. In addition, this court previously found: “In fact, in the language of the SLS & E Deeds, the consideration for the right of way was specifically related to benefits the grantors of the source deeds expected to have ‘accrue’ to them from the railroad, the construction and operation of the railroad. Moreover, as discussed below, no monetary consideration is listed in the SLS & E Deeds, therefore, the construction and operation of the railroad was the consideration offered to the source deed grantors.” Id. at 788. Therefore, despite the defendant’s repeated assertions to the contrary, and refusal to accept of the court’s previous decisions in this ease, the court already has decided that the SLS & E Deeds did have a specific and limited purpose — the railroad purpose of limiting the easements to location, construction and operation of the SLS & E. Review of the SLS & E Deeds and the arguments raised during the scope of the easements litigation, including defendant’s failure to offer much new information, only serves to confirm the court’s finding that the SLS & E Deeds were limited to the railroad purpose of “the location, construction and operation of the Seattle, Lake Shore and Eastern Railway in the County of King in Washington Territory....”
Further supporting the conclusion that the plain language of the SLS & E Deeds was to grant easements for the purpose of the location, construction and operation of the SLS & E railroad, is the fact that the grantors apparently received no financial compensation for the easements, but only received the benefits which would result from the location, construction and operation of the railway. The plain language of the SLS & E Deeds state: “In Consideration of the benefits and advantages to accrue to us from the location, construction and operation of the Seattle, Lake Shore and Eastern Railway,” without any mention of financial compensation. This stands in contrast to the railroad deeds in cases the court previously analyzed in its earlier opinion, which repeatedly identify the compensation to the grantor. For example, *429 in Morsbach v. Thurston County, 152 Wash. 562 , 278 P. 686 (1929), the 1872 railroad deed stated, in part: “Know all men by these presents that Edward Kratz, of Thurston county, Washington Territory, in consideration of two hundred dollars ($200.00) paid by the Northern Pacific Railroad Company and other good and valuable considerations, the receipt whereof is hereby acknowledged, do by these presents give, grant, bargain, sell and convey unto said Northern Pacific Company....” Id. at 687 . Later decisions by the State of Washington Supreme Court interpreting railroad deeds also included the amount of compensation to the grantor. For example, in Swan v. O’Leary, 37 Wash.2d 533 , 225 P.2d 199 (1950), the 1909 quit claim deed stated, in part: “This indenture witnes-seth, That Minnie L. Swan, unmarried, party of the first part, for and in consideration of the sum of Six Hundred & Twenty-five Dollars in lawful money of the United States of America to her.” Similarly in Veach v. Culp, 599 P.2d 526 , the 1901 quit claim deed stated, in part: “(T)he [sic] said party of the first part, for and in consideration of the sum of Two Hundred and Twenty-five Dollars....” Id. at 527 (omissions in original).
In Roeder Co. v. Burlington Northern, Inc., 105 Wash.2d 567 , 716 P.2d 855 , recons. denied (Wash. 1986), the State of Washington Supreme Court noted that “[t]he granting clause of the deed states that the Improvement Company, in consideration of ten dollars, ‘conveys and warrants unto Belling-ham and Northern Railway Company ... for all railroad and other right of way purposes, certain tracts and parcels of land situate in the City of Bellingham....’” Id. at 857 (omissions in original). Similarly, the exemplary, statutory warranty form deed in Brown v. State, 924 P.2d 908 , stated, in part “KNOW ALL MEN BY THESE PRESENTS, That Geo. D. Brown and Annie L. Brown his Wife of Spokane County, State of Washington, for and in consideration of Ten & 00/100 Dollars, to them in hand paid, the receipt whereof is hereby acknowledged.” Id. at 910 (capitalization in original). More recently, in 2006, the State of Washington Supreme Court in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association, 126 P.3d 16 , identified the compensation from the railroad in the 1905 deed at issue as “we, the said E.A. Kershaw and Ora A. Kershaw ... for and in consideration of the sum of [$1,000.00] ... and other good and valuable considerations including the covenants of the [Railway] ... do hereby give, grant, sell, confirm and convey to the said ... NORTH YAKIMA & VALLEY RAILWAY COMPANY....” Id. at 18 (omissions, brackets, and capitalization in original).
Unlike the exemplary deeds quoted immediately above, the SLS & E Deeds currently at issue before this court do not indicate receipt of any financial compensation by the grantors. Given the lack of monetary compensation, the only benefit the grantors apparently received was the location, construction and operation of the railroad. The limited purpose for which the grantors gave easements was for the railroad development and use. Any use of the easements broadening the concept of the “location, construction and operation” of a railroad, therefore, exceeds the scope of the easements.
Defendant also repeats its reliance on the decisions of the State of Washington Court of Appeals in Ray v. King County, 120 Wash. App. 564 , 86 P.3d 183 , review denied, 152 Wash.2d 1027 , 101 P.3d 421 (2004) and the United States Court of Appeals for the Ninth Circuit in King County v. Rasmussen, 299 F.3d 1077 (9th Cir.2002), cert. denied, 538 U.S. 1057 , 123 S.Ct. 2220 , 155 L.Ed.2d 1106 (2003), for the proposition that the Hilchkanum deed, 27 and the SLS & E Deeds generally, do not restrict how the rights of way granted to SLS & E could be used. The defendant points to the State of Washington Court of Appeals decision in Ray, which stated, “[t]he language of the deed grants a right of way to the Railway without expressly restricting how that right of way was to be used,” Ray v. King Cnty., 86 P.3d at 190 (emphasis in original), and to the decision of the Ninth Circuit in Rasmussen , which stated that “neither the granting nor the haben- *430 dum clauses contains language clearly limiting the use of the land to a specific purpose.” King Cnty. v. Rasmussen, 299 F.3d at 1086 . Defendant argues that the Ray and Rasmussen decisions refute the plaintiffs’ contention that the defendant ignores the “express and clear statement of how the easement would be used,” instead, arguing that “the United States is properly reading the granting clause as the courts did in both Ray and Rasmussen.” The defendant, citing to Rasmussen , argues that if the grantors of the SLS & E Deeds “intended to limit the use of the right-of-way to any specific purposes, they would have inserted that language as a limitation in the granting clause, but they did not do so.” According to the defendant, to reach the conclusion that the purpose of the easements was to build and operate a railroad requires “rewriting the deeds by importing into the granting clause the consideration as a limitation on the grant. This is contrary to Washington law.” 28 As this court previously determined: “In the SLS & E Deeds, however, the language of the granting clause establishes the purpose of the grant, to receive the benefits from the construction, operation, and maintenance of a railroad, for which purpose the right of way use was conveyed to the SLS & E.” Beres et al. v. United States, 97 Fed.Cl. at 784.
Neither Ray nor Rasmussen is determinative in this ease. The court’s earlier April 7, 2011 opinion took great pains to distinguish the Ray and Rasmussen cases from the above captioned consolidated cases. This court wrote:
The defendant relies heavily on decisions issued by the United States District Court for the Western District of Washington and the United States Court of Appeals for the Ninth Circuit in King County v. Rasmussen, 143 F.Supp.2d 1225 [ (W.D.Wash.2001)], King County v. Rasmussen, 299 F.3d 1077 , as well as the State of Washington Court of Appeals, Division 1 in Ray v. King County, 86 P.3d 183 , which found that the Hilchkanum deed, one of the SLS & E Deeds also at issue before this court, conveyed a fee interest and not an easement to the SLS & E. Although these decisions are of analytical interest, none of these decisions are precedential for this court. The decision in Ray v. King County is a State of Washington lower court decision. Similarly, decisions issued by the United States District Court for the Western District of Washington and the United States Court of Appeals for the Ninth Circuit, although potentially persuasive, are not binding on the State of Washington Supreme Court or this court. This court is bound by the decisions of the United States Supreme Court and the United States Court of Appeals for the Federal Circuit.
Beres et al. v. United States, 97 Fed.Cl. at 798 (citations omitted). This court continued, stating:
Analysis of the Ray v. King County and the King County v. Rasmussen cases, and their analytical impact on this consolidated action, must be undertaken in the context of the State of Washington Supreme Court decisions in Brown v. State and Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Association. Certain important differences between Ray v. King County and King County v. Rasmussen and the SLS & E Deeds currently before this court are apparent. The Ray v. King County and King County v. Rasmussen cases were brought as quiet title actions, not as taking claims, as are the consolidated eases before this court. See generally Ray v. King Cnty., 86 P.3d 183 ; King Cnty. v. Rasmussen, 299 F.3d 1077 ; King Cnty. v. Rasmussen, 143 F.Supp.2d 1225 . None of the plaintiffs before this court, as successors in interest, were before the court in Ray v. King County or King County v. Rasmussen. More significantly, all the decisions in Ray v. King County and King County v. Rasmussen were decided prior to the State of Washington Supreme Court’s decision in Kershaw *431 Sunnyside Ranches, Inc. v. Yakima Interurban Association. Indeed, the Ninth Circuit specifically noted that “[t]he Washington Supreme Court provided its most recent guidance on this issue [easement versus fee interest] in Brown.” King Cnty. v. Rasmussen, 299 F.3d at 1084 . The decision in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Association, while not rejecting the holding or the evaluation factor guidance offered in Brown, added a new, significant analytical approach to the precedent in the State of Washington, that a presumption of an easement exists when the phrase “right of way” is used to define the purpose of the grant.
Beres et al. v. United States, 97 Fed.Cl. at 800 (footnote omitted). Finally, this court noted:
Moreover, the record in this case contains exhibits which were not before the courts in Ray v. King County and King County v. Rasmussen. The record in this court contains six virtually indistinguishable, SLS & E Deeds and additional relevant exhibits. The records in Ray v. King County and King County v. Rasmussen included only the Hilchkanum deed and limited additional information. Moreover, the railroad’s decision to follow what appears to be a pre-printed form, which was not in the form of statutory warranty deed, for all the SLS & E Deeds, and the apparent illiterate state of the majority of the source deed grantors, supports plaintiffs’ argument that the form deeds were drafted by the railroad. Therefore, any ambiguity in the language of the deeds should be construed against the railroad. See Hanson Indus., Inc. v. Cnty. of Spokane [ 114 Wash.App. 523 ], 58 P.3d [910,] 916 [ (Wash.Ct.App.2002) ].
In contrast, in Ray v. King County, the State of Washington Court of Appeals indicated that the Hilchkanums, not the railroad, drafted the deed, which appears from the record before this court to be both implausible and incorrect.
Beres et al. v. United States, 97 Fed.Cl. at 801 (footnote omitted).
In both Ray and Rasmussen, the State of Washington Court of Appeals and the Ninth Circuit, respectively, were interpreting the Hilchkanum deed to determine if the right of way conveyed an easement or a fee interest to the SLS & E. See generally Ray v. King Cnty., 86 P.3d 183 ; King Cnty. v. Rasmussen, 299 F.3d 1077 . As repeatedly noted in the court’s April 7, 2011 opinion, although both courts determined that the right of way in the Hilchkanum deed conveyed a fee interest and not an easement to the SLS & E, neither court reached the issue of the scope of the easements, because neither court determined easements were intended by the grantors. The relative value of either ease, already called into question by the court’s earlier opinion, therefore, is diminished further for the purpose of an inquiry of the scope of easements of the SLS & E Deeds. For the reasons described above, the defendant’s repeated efforts to try to reargue the merits of the decisions in Ray and Rasmussen, as applied to the SLS & E Deeds, proves ineffective.
The defendant additionally argues that the language of the SLS & E Deeds stands in contrast to two State of Washington Supreme Court cases in which a railroad right of way easement was specifically limited for railroad purposes. In Zobrist v. Culp, 95 Wash.2d 556 , 627 P.2d 1308 (1981), the grantors gave an easement to a railroad which was limited by
[s]aid right of way is hereby granted for the purpose of running and operating a Railroad thereover.... Provided always however that if second party shall at any time cease or fail to use the right of way herein mentioned and described for the purpose of running and operating a railroad over the same for the continuous period of 12 consecutive months then and from thenceforth this instrument and the estate hereby granted shall cease and revert to first party.
Id. at 1308-09.
In the first place, the Zobrist ease was brought as a quiet title action. See generally Zobrist v. Culp, 627 P.2d 1308 . In Zobrist , the State of Washington Supreme Court concluded “that for a period of more than 1 year *432 the tracks across the petitioner’s property were not used for the purpose of ‘running and operating a railroad over the same/ ” id. at 1311, and the appellate court reinstated the trial court’s finding that the easement had been extinguished. Id. at 1309. Nonetheless, defendant argues that the language of the SLS & E Deeds “contrasts starkly with the language in a deed previously analyzed under Washington law in Zobrist_” Both the Zobrist deed and the SLS & E Deeds limited the scope of the easements. In the case of the Zobrist deed, the limitations were “for the purpose of running and operating a Railroad,” and “for the purpose of running and operating a railroad over the same for the continuous period of 12 consecutive months.” In the case of the SLS & E Deeds, the scope of the easements was limited by the language for the “location, construction and operation of the Seattle, Lake Shore and Eastern Railway.” The differences between the Zobrist deed and the SLS & E Deeds are hardly material distinctions for the purpose of the scope of the easements inquiry.
In support of its cross-motion for partial summary judgment on the scope of the easements inquiry, the defendant also cites to Lawson v. State, 107 Wash.2d 444 , 730 P.2d 1308 (1986). After receiving plaintiffs’ response, also relying on Lawson , the defendant became less enthusiastic about the utility of the Lawson case. Plaintiffs had had pointed out that the Lawson ease “deals with the same regional trail system, and even the same East Lake Sammamish segment of that trail system, that is now at issue in the case at bar.” (emphasis in original). As attested to in an affidavit included in the Joint Exhibits to the ease currently before this court, two of the plaintiffs in Lawson also derived their property from the Hilehkanum source deed, one of the SLS & E Deeds. 29 In response to plaintiffs, the defendant retreats and now argues that plaintiffs’ reliance is misplaced, and that Lawson has no application to the facts in the above captioned case because Lawson was decided on a motion to dismiss, and, therefore, in Lawson , “ ‘plaintiffs’ factual allegations are presumed to be true.’ ” (quoting Lawson v. State, 730 P.2d at 1310-11 ). Defendant is correct that although plaintiffs claim that the deed language “is exactly the same deed language as the present case,” (emphasis in original), the Lawson court did not consider the terms of the Hilehkanum deed, because it dismissed as unripe the claim of the Hilchkanums’ successors-in-interest. Despite the rhetoric exchanged between the parties, the Lawson court did state that “[d]efendants argue that under Washington law a railroad is a perpetual public easement. They contend that a railroad right of way easement does not terminate upon a change from one transportation use to another transportation or recreation use, or any other consistent public use. We disagree.” Id. at 1311.
In addition to Lawson , plaintiffs cite to King County v. Squire Investment Co., 59 Wash.App. 888 , 801 P.2d 1022 (1990), review denied, 116 Wash.2d 1021 , 811 P.2d 219 (1991) for support that a public recreational trail use is beyond the scope of the easement granted to the SLS & E. The discussion regarding the scope of the easement in Squire Investment, however, is dicta, as the State of Washington Court of Appeals determined that the deed at issue in Squire Investment conveyed an easement to the railroad which terminated when the railroad abandoned the line with Interstate Commerce Commission approval. This precluded any need by the State of Washington Court of Appeals to address the scope of the easement. See id. at 1025 (“King County contends, however, that its use of the right-of-way as a recreational trail is within the scope of the interest conveyed to the railroad and, hence, it was not abandoned. The County’s argument is without merit. Burlington Northern formally abandoned the right-of-way on July 29, 1985 [the date the ICC issued a Certificate of Abandonment]. The easement was extinguished at that moment and its interest reverted to the Squires’ heirs. Burlington Northern had no interest to convey to King County for use as a rail *433 road much less as a trail.”) (footnotes omitted).
If the court were limited by the language of Sunnyside Valley Irrigation District v. Dickie, which stated, “[i]f the plain language is unambiguous, extrinsic evidence will not be considered,” Sunnyside Valley Irr. Dist. v. Dickie, 73 P.3d at 372 (citing City of Seattle v. Nazarenus, 374 P.2d at 1019-20 ), the court’s inquiry would be over as the plain language of the SLS & E Deeds indicates that the grant to the SLS & E of easements was for the purpose of “the location, construction and operation” of the SLS & E. The State of Washington Supreme Court, however, as indicated above, also has instructed the court to look at the circumstances surrounding the deed’s execution and the subsequent conduct of the parties. In Harris v. Ski Park Farms, Inc., 844 P.2d at 1014 , the State of Washington Supreme Court rejected the requirement that ambiguity in the contract language must exist before allowing evidence of the “surrounding circumstance,” in the case of railroad deeds. The Harris court instead “adopted the ‘context rule’ which succinctly stated is that ‘extrinsic evidence is admissible as to the entire circumstances under which [a] contract [is] made, as an aid in ascertaining the parties’ intent,’ specifically adopting the Restatement (Second) of Contracts §§ 212, 214(c) (1981).” Id. (footnote omitted) (omissions in original); see also Brown v. State, 924 P.2d at 912 (“In addition to the language of the deed, we will also look at the circumstances surrounding the deed’s execution and the subsequent conduct of the parties.”); Roeder Co. v. K & E Moving & Storage Co., Inc., 4 P.3d at 841 n. 6 (noting that Washington State courts should “consider both the deed and the extrinsic evidence.”) (citing Brown v. State, 924 P.2d at 912 and Harris v. Ski Park Farms, Inc., 844 P.2d at 1014 ).
The defendant argues that “in the context of the times in which the deeds were granted during the late 1800s and early 1900s, railroads were considered to be public highways or roads.” Therefore, defendant contends that “[e]ven if any limitation arguably has been placed upon the use of the right-of-way, it must be understood to encompass use of the right-of-way as a highway or road.” For support, the defendant cites to Black’s Law Dictionary, and alleges “road” is defined as “‘[a] highway; an open way or public passage; a line of travel or communication extending from one town or place to another; a strip of land appropriated and used for purposes of travel and communication between different places.’ ” (quoting Black’s Law Dictionary). Defendant, however, does not include a pinpoint citation reference, or even identify which edition or year of publication of Black’s Law Dictionary defendant is citing to for the definition of road. It is not surprising then that the first edition of Black’s Law Dictionary, dated 1891, which would best reflect the contemporary understanding of the term “railroad” in the late 1800s and early 1900s, has a different definition than the one offered by the defendant, and defines “road” as “a way or a passage; a line of travel or communication extending from one town or place to another.” Black’s Law Dictionary 1049 (1st ed. 1891). The first edition of Black’s Law Dictionary’s definition of road, unlike the defendant’s definition, does not mention “highway,” or “public passage.” The first edition of Black’s Law Dictionary defines a “highway” as “[a] free and public road, way, or street; one which every person has the right to use.” Id. at 572. Notably, this definition of highway was not cited by the defendant. 30 Moreover, while also not cited by the defendant, the first edition of Black’s Law Dictionary defines a “railroad” as: “A road or way on which iron or steel rails are laid for wheels to run on, for the conveyance of heavy loads in cars or carriages propelled by steam or other motive pow *434 er.” Id. at 992. This definition of railroad is not synonymous with the definition of a road.
In response, the plaintiffs do not disagree that the term “road” sometimes was used as a shorthand refei’ence for a railroad, however, they note “[ajlthough a railroad may at times be referred to as a ‘road,’ this does not bring the East Lake Sammamish Trail within the scope of the railroad easement.” Merely stating that a railroad is a public highway is insufficient to demonstrate that a public recreational trail is within the scope of the railroad easements. Since the deeds at issue conveyed the easements to locate, construct and operate the SLS & E, the railroad purpose of the easements was clear in the conveyances and is not contradicted by the contemporaneous dictionary definitions.
Defendant also cites to a 1911 State of Washington Supreme Court decision, Puget Sound Electric Railway v. Railroad Commission, 65 Wash. 75 , 117 P. 739 (1911), which stated in passing that “[a] railroad is a public highway, created for public purpose.” Id. at 743. Notably, Puget Sound addressed the rates a railroad could charge, and made the comment about railroads as public ways in the context of a railroad’s obligation to the public. As the Puget Sound court noted: “Railways and other public service corporations are created upon the hypothesis that they will be a public benefit. The state confers upon them special and extraordinary privileges. It exacts from them in return the performance of public duties, and that they hold their property in trust, not only for the pecuniary benefit of their stockholders, but for the public use as well.” Id. Citing to the same language, the State of Washington Supreme Court in Lawson stated:
It is true railroad companies were created on the theory that they will provide a public benefit. Pursuant to statute, the State has conferred upon them special and extraordinary privileges. In return, the railroads must hold their property in trust for the public use. Puget Sound Elec. Ry. v. Railroad Comm’n, 65 Wash. 75, 83-84 , 117 P. 739 (1911). A railroad is a public highway, created for public purposes. Puget Sound Elec. Ry., at 84, 117 P. 739.
Lawson v. State, 730 P.2d at 1311 . Taking the analysis from Puget Sound one step further, the Lawson court continued:
But these considerations do not necessarily lead to the conclusion that a railroad right of way is a perpetual public easement. To the contrary, this court has frequently recognized that railroad rights of way revert to reversionary interest holders when a railroad company abandons a line. See, e.g., Roeder Co. v. Burlington Northern, Inc., 105 Wash.2d 567 , 716 P.2d 855 (1986); Zobrist v. Culp, 95 Wash.2d 556 , 627 P.2d 1308 (1981); Morsbach v. Thurston Cy., 152 Wash. 562 , 278 P. 686 (1929). These eases demonstrate that, under Washington law, when an easement is granted to a railroad through a private conveyance, the easement is not a “perpetual public easement.”
Lawson v. State, 730 P.2d at 1311 .
To bolster its claim that the public recreational trail is within the scope of the rights of way at issue, the government also cites to the 1971 Urban Trails Plan for King County, Washington, which states that one of the goals of the Urban Trails Plan, conceived before the railway was abandoned and converted in to a trail, was to “complement the County-wide transportation system by providing facilities for hikers and riders.” Plaintiffs respond that “the Government ignores the first three goals which were to ‘provide a healthful leisure time activity,’ and to provide ‘non-motorized access to and among recreation resources’ and to provide ‘the opportunity for the enjoyment of scenic amenities.’” Defendant also overlooks the following statement in the introduction and background section of the Plan, “[mjotorized vehicles, including trail bikes and four-wheel-drive vehicles will not be permitted on the proposed urban routes. These trail uses would not be compatible with residential neighborhoods in an urban area.” If smaller motorized vehicles would be incompatible for use on the trail, a motorized train on a railroad track is just as incompatible, if not more so. A railroad is larger, louder, and has more impact on a trail than other motorized vehicles, such as trail bikes or four-wheel-drive vehicles.
*435 In addition, defendant quotes from the 2004 King County Department of Natural Resources and Parks’ Regional Trail Inventory and Implementation Guidelines to argue that King County’s regional trails, such as the East Lake Sammamish Trail, “ ‘serve a significant number of transportation oriented trips, i.e., commuting, shopping, etc. [and] ... function as conduits between major destinations, and as recreation destinations in and of themselves,’ ” and that the “regional trails should be considered as a transportation faeility[, which] is not a lesser facility to any street.” Defendant, however, selectively quotes from the Regional Trail Inventory and Implementation Guidelines, as the quotation defendant uses refers to Street and Driveway Crossings, and the entire quotation demonstrates that it is only in the limited instances of when a trail crosses a street or a driveway that it should it be considered “a transportation facility.” The entire section states:
Street and Driveway Crossings: Street and driveway crossings are covered in both the AASHTO [American Association of State Highway and Transportation Officials] guide to the development of bicycle facilities and in the Manual on Uniform Traffic Control Devices. The one item that should be stressed here is that in planning for such crossings under the guidance of those manuals, is that the regional trails should be considered as a transportation facility. It is not a lesser facility to any street, and should be considered a street, or any other transportation corridor, in determining right of way at such crossings.
(second emphasis added).
Further undercutting defendant’s argument that the public recreational trail is a transportation corridor is plaintiffs’ correct observation that it is not the Transportation Department that administers the trail, but the King County’s Department of Natural Resources and Parks. Plaintiffs’ also cite to Title 7 of the King County Code, Parks and Recreation, and the definition of parks and recreation facility, which states: “R. ‘Facility,’ ‘facilities,’ ‘parks and recreation facility,’ ‘parks and recreation facilities’ or ‘park area’ means any building, structure, park, open space, trail or other property owned or otherwise under the jurisdiction of the parks and recreation division of the department of natural resources and parks,” to emphasize that a public recreational trail in King County is a park and recreation facility, not a transportation facility. As plaintiffs note, “emphasizing the ‘public transportation’ purposes of the trail does not bring the rails to trails conversion within the scope of the easement.”
Like the defendant, plaintiffs also cite to a number of historical sources to provide context and demonstrate that a recreational trail is outside the scope of the grantors’ easements. For example, in explaining the benefits that would accrue to the grantors by virtue of the location, construction and operation of a railroad, plaintiffs cite to the book, Our Town Redmond, by Nancy Way (1989). Plaintiffs note that in the 1880s and 1890s “ ‘most people traveled on horse or foot, and this often meant harrowing and backbreaking experiences. There are many stories of settlers carrying furniture and household belongings on their backs .... still others regularly carried 50-pound sacks of flour on their back.’ ” (quoting Nancy Way, Our Town Redmond 31). Therefore, according to plaintiffs, the operation of a railroad as a means of travel would be of real benefit to the original grantors.
Plaintiffs also argue that “the greatest benefit and advantage to accrue from rail service was to vastly improve the accessibility to the Seattle markets and seaport with freight.” Citing again to Our Town Redmond, plaintiffs note that among other industries, logging became viable because of rail service:
“Rail service was crucial to the logging of the Squak Valley and hillsides after the turn of the century. Spurs to pick up logs went everywhere, even on pilings out into Lake Sammamish.... Logging brought the first real growth and commerce to Redmond. The town’s population in 1885 was 100. It grew to 271 by 1900 ... The Redmond area had around eight sawmills operating at various times between 1890 and 1930. One employed as many as 200 *436 men. The Seattle Lake Shore and Eastern [Railway] opened the area up to lumbering, since it made transportation of both logs and lumber much easier.”
(quoting Nancy Way, Our Town Redmond 39, 49) (emphasis in original). Similarly, plaintiffs argue that coal mining was made economically feasible by the construction and operation of a railroad in the area. Quoting from A Hidden Past: An Exploration of Eastside History, published by the Seattle Times, plaintiffs state that: “ ‘Issaquah, briefly called Gilman, grew up around its [the SLS & E] depot as coal mining and logging in the area brought in settlers,’ ” (quoting A Hidden Past: An Exploration of Eastside History, 28 (2000)) and quoting from a History of Seattle From the Earliest Settlement to the Present Time, by Clarence B. Bagley (1916), plaintiffs note:
“That transportation was the main problem confronting the coal mine operators in King County is shown by the history of the Issaquah field. It was from this mine that L.B. Andrews dug the first flour sack of really good coal ever brought into Seattle. This was in 1863, but it was not until the building of the Seattle, Lake Shore & Eastern, now the North Pacific’s North Bend branch, in 1888, that this immense body of coal was made available to market.”
(quoting Clarence B. Bagley History of Seattle From the Earliest Settlement to the Present Time 130-31). Plaintiffs summarize, “[i]n short, operation of the railroad meant vastly improved transportation of freight, significant economic activity, and an increasing population,” and “[t]o have railroad service was an economic advantage over those that did not.” 31
Defendant argues that “all of the documents reciting the history of the Redmond and Seattle area during the late 1800s, relied upon by the Plaintiffs, are irrelevant because none contain any information relating to the grantors.” According to the defendant, each of the documents “only goes to the subjective, unilateral intent of the grantors and may not be considered under Washington law.” Although not dispositive, plaintiffs’ citations demonstrate the general intent of individuals in Washington in the late 1800s, such as the grantors. Railroad service brought unique benefits to the grantors which were not achievable by a pedestrian, bike, and horse trail, emphasizing the benefits to be achieved as a result of the “location, construction and operation” of the SLS & E the grantors sought in return for the easements granted. Regardless of the information offered by both parties, the record includes no information, historical or otherwise, to suggest that the original grantors intended the easements conveyed to the SLS & E to be for anything other than railroad purposes. In fact, the language of the conveyances themselves clearly indicates that the conveyances to the railroad were for “the location, construction and operation of the Seattle, Lake Shore & Eastern Railway.” As the United States Court of Appeals for the Federal Circuit in Toews declared:
[I]t appears beyond cavil that use of these [railroad] easements for a recreational trail — for walking, hiking, biking, picnicking, frisbee playing, with newly-added tarmac pavement, park benches, occasional billboards, and fences to enclose the trail-way — is not the same use made by a railroad, involving tracks, depots, and the running of trains. The different uses create different burdens. In the one case there was an occasional train passing through.... In the other, individuals or groups use the property, some passing along the trail, others pausing to engage in activities for short or long periods of time.
*437 Toews v. United States, 376 F.3d at 1376 . And, additionally stated by the Federal Circuit, “[s]ome might think it better to have people strolling on one’s property than to have a freight train rumbling through. But that is not the point. The landowner’s grant authorized one set of uses, not the other.” Id. at 1376-77 ; see also Thompson v. United States, 101 Fed.Cl. at 433. More recently another Judge of the United States Court of Federal Claims wrote:
A railroad, or a highway for public travel, has the primary purpose of transporting goods and people. The purpose of a recreational trail is fundamentally different. A bicycle trail does not exist to transport people but rather to allow the public to engage in recreation and enjoy the outdoors. The two uses are distinct and an easement for a recreational trail is not like in kind to an easement for railroads.
Capreal, Inc. v. United States, 99 Fed.Cl. 133, 145 (2011). In conclusion, the scope of easements of the SLS & E Deeds was exceeded by the conversion of the railroad easement to trail use.
Scope of the Easement for the 1904 Reeves Quit Claim Deed
The 1904 Reeves Quit Claim Deed states, in pertinent part:
This Indenture made this third day of June in the year of our Lord one Thousand nine hundred and four, Between J.D. Reeves and Elizabeth Jane Reeves, his wife, the parties of the first part and the Northern Pacific Railway Company, a corporation, the party of the second part, Witnesseth: That the said parties of the first part for and in consideration of the sum of One hundred and Fifty dollars of the United States to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged do by these presents, remise, release, and forever quit claim unto the said party of the second part and to its assigns all right, title and interest and estate of said first parties in and to all that certain lot, piece or parcel of land, situate lying and being in the County of King, State of Washington, and particularly bounded and described as follows, to wit:
The interest of said grantors in and to a tract of Land lying within lines drawn parallel with with [sic] 32 the center of the main Line track and fifty feet from said center of the Seattle, Lake Shore & Eastern Railway, now the Northern Pacific Railway, through the Townsite of Inglewood, King County, State of Washington, and running from Ash Street to Willow Streets and through the following Blocks in said Townsite; [list of blocks] according to the plat of said Town of Inglewood as recorded in Volume three, of Plat Books, page 169 records of King County, Washington; the intention being to convey herein a right of way fifty feet on each side of said track through any lots or blocks conveyed to the Grantor J.D. Reeves by grant of date, November 13, 1903, from King County, Washington, said lots being as follows, [list of lots and blocks]
Together will [sic] all and singular the tenements, hereditaments and appurtenances thereunto, belonging, or in anywise appertaining, and the reversions, remainder and remainers [sic], rents, issues and profits thereof.
To have and to hold all and singular the said premises together with the appurtenances, unto said party of the second part and to its heirs and assigns forever. In witness whereof, The said parties of the first part have hereunto set hands and seals the day and year first above written.
Washington law also controls to determine the scope of the easement for the 1904 Reeves Quit Claim Deed. In their cross-motion for partial summary judgment, the plaintiffs note that “[t]he Government makes no additional argument that is specific to the 1904 Reeves deed.” Indeed, in its opening brief the defendant referred to the “deeded easements” generally and argued that “none of the deeds at issue expressly limit the use of the right-of-way to any specific purpose,” *438 and defendant did not make any unique arguments regarding the 1904 Reeves Quit Claim Deed. To the extent that the defendant implicitly argues that the 1904 Reeves Quit Claim Deed, like the SLS & E Deeds, must be understood to encompass use of the right of way as a highway or road, and the trail was a transportation corridor, the court’s rejection of those arguments applies equally to the discussion of the 1904 Reeves Quit Claim Deed.
In its reply brief, the defendant raises one additional argument:
[E]ven if the Plaintiffs’ consideration argument had merit with respect to the Hilchkanum-type deed, it falls flat when applied to the Reeves deed, where the consideration was not “the benefits and advantages to accrue” but, rather, “the sum of One hundred and Fifty dollars.” Thus, Plaintiffs cannot import this consideration into the granting clause as a limitation on the scope of the grant. The Reeves deed conveyed a right-of-way without any restrictions or limitations on its use. Trail use, therefore, is within the scope of the Reeves deed.
This court’s analysis regarding the 1904 Reeves Quit Claim Deed in Beres et al. v. United States, 97 Fed.Cl. 757 , stated:
The language in the 1904 Reeves Quit Claim Deed also is similar to the language of the deed in Swan v. O’Leary, 225 P.2d 199 , in which the quit claim deed stated, “for the purpose of a Railroad right-of-way to-wit:-a strip of land 50 feet in width ....” Id. at 199 (emphasis in original). Both the quit claim deed in Swan v. O’Leary and the 1904 Reeves Quit Claim Deed signaled the grantor’s clear objective to convey a right of way.
Beres et al. v. United States, 97 Fed.Cl. at 806. This court’s analysis continued:
Notably, the 1904 Reeves Quit Claim Deed does not use the phrase “strip of land,” but specifically uses the phrase a “right of way.” The 1904 Reeves Quit Claim Deed states, “the intention being to convey herein a right of way fifty feet on each side of said track through any lots or blocks conveyed to the grantor....”
Id. at 807. 33 This court previously concluded “that the grantors of the 1904 Reeves Quit Claim Deed intended to convey only an easement to the railroad.” Id. at 809. The right of way conveyed to Northern Pacific was limited to the right of way fifty feet on each side of the “Seattle, Lake Shore & Eastern Railway, now the Northern Pacific Railway railroad track.”
The record before this court indicates that the construction of the SLS & E railroad was initiated in the 1880s, prior to the execution of the 1904 Reeves Quit Claim Deed. For example, on May 13, 1887, the Seattle Daily Post-Intelligencer reported that SLS & E was “forging ahead” with construction, and that “[t]he work on all sections under contract is progressing rapidly....” Seattle Daily Post-Intelligencer, May 13, 1887. Again on July 3, 1887, the Seattle Daily Post-Intel-ligencer reported that “[njothing has been more active than the extension of railroad operations. The Seattle Lake Shore and Eastern Company has been particularly energetic. ... The operations of the company in town have been progressing steadily during the past three months, and are rapidly assuming great magnitude.” Seattle Daily Post-Intelligencer, July 3, 1887. After acquiring the rights of way in the SLS & E Deeds, the SLS & E constructed the railway, and subsequently operated a railroad. Moreover, the parties have stipulated that the railway was “constructed by the Seattle, *439 Lake Shore & Eastern Railway Co. (the ‘SLS & E’) from May 1887 through March 1888.”
As pointed out by plaintiffs, “[a]s indicated within the [1904 Reeves Quit Claim] deed itself, the context in 1904 was that the railroad tracks were already constructed and in operation. Under that factual circumstance, the intent of providing a right of way was clearly for the purpose of allowing continued operation of the existing railroad. Under the language of the deed, no other purpose is stated or implied.” (emphasis in original). Indeed, the 1904 Reeves Quit Claim Deed itself specifically refers to “the Seattle, Lake Shore & Eastern Railway, now the Northern Pacific Railway” railroad track, and states “the intention being to convey herein a right of way fifty feet on each side of said track.” Moreover, as stipulated by the parties, by 1904 the SLS & E had already been through receivership. As argued by plaintiffs, “where an easement is conveyed to a railroad, the railroad use is itself the limited and specific purpose.” Furthermore, no other purpose is even hinted at in the 1904 Reeves Quit Claim Deed. In Roeder Co. v. Burlington Northern, Inc., 716 P.2d 855 , the State of Washington Supreme Court stated:
The conveyance of a right of way to a railroad may be in fee simple or only an easement. Where only an easement for a right of way is concerned, and its use for such purpose ceases, the land is discharged of the burden of the easement and the right to possession reverts to the original landowner or to that landowner’s successors in interest; the right to possession does not go to grantees and successors in interest of the railroad company.
Id. at 859 (footnotes omitted).
Although plaintiffs acknowledge that the Swan ease does not directly address the scope of a railroad right of way easement, they direct the court’s attention to the language in Swan which states: “It is very clear from what subsequently happened that it was the intention of the grantee to acquire the two strips of land in order that a logging railroad might be constructed thereon over which to haul timber logged from his lands, and for no other purpose.” Swan v. O’Leary, 225 P.2d at 201 . The plaintiffs suggest that both the SLS & E Deeds and “also the 1904 Reeves deed, were followed by the subsequent conduct that the right of way was in fact used for operating the railroad. No other use was ever made. Accordingly, the subsequent conduct, as in Swan v. O’Leary, makes it ‘very clear’ that the intention was for operating a railroad, ‘and for no other purpose.’ ” In the ease under consideration by this court, the purpose of the easement in the 1904 Reeves Quit Claim Deed was stated as “the intention being to convey herein a right of way fifty feet on each side of said track,” which was limited by the grantors to railroad use only. Any use other than railroad use would exceed the scope of the easement. Therefore, in the above captioned consolidated case, by converting the railway to a public recreational trail, the scope of the easement for the 1904 Reeves Quit Claim Deed was exceeded.
Scope of the Prescriptive Easement
As with the interpretation of the SLS & E Deeds and the 1904 Reeves Quit Claim Deed, Washington law controls to determine the scope of the easement for SLS & E’s prescriptive easement. Under Washington law, “[a] prescriptive easement presents a mixed question of law and fact.” Imrie v. Kelley, 160 Wash.App. 1 , 250 P.3d 1045, 1048 (2010), amended on recons. (Wash.Ct.App.), review denied, 171 Wash.2d 1029 , 257 P.3d 662 (2011); see also Petersen v. Port of Seattle, 94 Wash.2d 479 , 618 P.2d 67, 71 (1980); Lee v. Lozier, 88 Wash.App. 176 , 945 P.2d 214, 217 (1997) (“Whether the elements of a prescriptive easement are met is a mixed question of fact and law.”). The State of Washington Court of Appeals has stated:
The requirements to establish a prescriptive easement are the same as those to establish adverse possession. The claimant must prove use of the servient land that is: (1) open and notorious; (2) over a uniform route; (3) continuous and uninterrupted for 10 years; (4) adverse to the owner of the land sought to be subjected; and (5) with the knowledge of such owner at a time when he was able in law to assert and enforce his rights. Washington employs an objective test for adversity. *440 When the claimant uses the property as the true owner would, under a claim of right, disregarding the claims of others, and asking no permission for such use, the use is adverse. Adversity may be inferred from the actions of the claimant and the owner. Under the doctrines of both prescriptive easement and adverse possession, a use is not adverse if it is permissive. Permission can be express or implied.
Kunkel v. Fisher, 106 Wash.App. 599 , 23 P.3d 1128, 1130 , review denied, 145 Wash.2d 1010 , 37 P.3d 290 (Wash.2001) (footnotes omitted); see also Mountaineers v. Wymer, 56 Wash.2d 721 , 355 P.2d 341, 342 (1960) (quoting Northwest Cities Gas Co. v. Western Fuel Co., 13 Wash.2d 75 , 123 P.2d 771, 776 (1942)) (“ ‘To establish a prescriptive right of way over the land of another person, the claimant of such right must prove that his use of the other’s land has been open, notorious, continuous, uninterrupted, over a uniform route, adverse to the owner of the land sought to be subjected, and with the knowledge of such owner at a time when he was able in law to assert and enforce his rights.’ ”); Imrie v. Kelley, 250 P.3d at 1048 ; Drake v. Smersh, 122 Wash.App. 147 , 89 P.3d 726, 729 , as amended (Wash.Ct.App.2004).
Under Washington law, prescriptive rights “are not favored in the law, since they necessarily work corresponding losses or forfeitures of the rights of other persons.” Northwest Cities Gas Co. v. Western Fuel Co., 123 P.2d at 776 ; see also Imrie v. Kelley, 250 P.3d at 1048 (“Prescriptive rights are not favored by the law.”); 810 Props. v. Jump, 141 Wash.App. 688 , 170 P.3d 1209, 1216 (2007). Moreover, “[t]he burden of proving a prescriptive right rests upon the one who is to be benefited by the establishment of such right.” Northwest Cities Gas Co. v. Western Fuel Co., 123 P.2d at 776 ; see also Anderson v. Secret Harbor Farms, 47 Wash.2d 490 , 288 P.2d 252, 254-55 (1955); Imrie v. Kelley, 250 P.3d at 1048 ; 810 Props. v. Jump, 170 P.3d at 1216 .
The parties have stipulated that “the SLS & E acquired an easement by adverse possession/prescriptive easement in Government Lot 2, Section 7, Township 24 North, Range 6 East, W.M.,” and that “after the SLS & E acquired an easement in the right-of-way by adverse possession/prescriptive easement, certain successors-in-interest to the patentee conveyed by deed an interest in sections of the right-of-way in Government Lot 2, Section 7, Township 24 North, Range 6 East, W.M.” The parties further stipulated that “based upon information currently available, it appears that at least some Plaintiffs in Morel and Brown are suceessors-in-interest to landowners who retained a fee interest in the right-of-way subject to, or burdened by, the railroad’s easement acquired by adverse possession/prescriptive easement.”
The State of Washington Supreme Court, quoting from the Corpus Juris Secundum on Easements, has indicated that “‘[w]here an easement is acquired by prescription, the extent of the right is fixed and determined by the user in which it originated, or, as it is sometimes expressed, by the claim of the party using the easement and the acquiescence of the owner of the servient tenement.’ ” Northwest Cities Gas Co. v. Western Fuel Co., 17 Wash.2d 482 , 135 P.2d 867, 868-69 (1943) (quoting 28 C.J.S., Easements § 74, p. 751); 34 see also Lee v. Lozier, 945 P.2d at 220 (citing Northwest Cities Gas Co. v. Western Fuel Co., 135 P.2d at 868 -69 and Restatement of Property § 477, at 2992 (1944)) (“The extent of the rights acquired through prescriptive use is determined by the uses [sic] 35 through which the right originated.”); Mahon v. Haas, 2 Wash.App. 560 , 468 P.2d 713, 716 (1970) (“The extent of any prescriptive rights based upon such adverse possession is fixed and determined by the *441 user in which it originated, and prescriptive rights once acquired cannot be terminated or abridged at the will of the owner of the servient estate.”).
The State of Washington Supreme Court also has written that “[t]here is a marked distinction between the extent of an easement acquired under a claim of right and the scope of one acquired under color of title. When one seeks to acquire an easement by prescription under a claim of right, user and possession govern the extent of the easement acquired. It is established only to the extent necessary to accomplish the purpose for which the easement is claimed.” Yakima Valley Canal Co. v. Walker, 76 Wash.2d 90 , 455 P.2d 372, 374 (1969); see also Lee v. Lozier, 945 P.2d at 220 (“The easement acquired extends only to the uses necessary to accomplish the purpose for which the easement was claimed.”). The State of Washington Supreme Court continued, “[o]n the other hand, however, where one’s occupancy or adverse user is under color of title that is a matter of public record, possession or user of a portion is regarded as coextensive with the entire tract described in the instrument under which possession is claimed.” Yakima Valley Canal Co. v. Walker, 455 P.2d at 374 (citing Omaha & Republican Valley Ry. Co. v. Rickards, 38 Neb. 847 , 57 N.W. 739 (1894)). Under Washington law, “[c]olor of title ‘means that the adverse claimant holds or traces back to a title document, usually a deed, that appears on its face to convey good title, but that, for some reason that does not appear on its face, did not convey title.’” Campbell v. Reed, 134 Wash.App. 349 , 139 P.3d 419, 423 (2006) (quoting William B. Stoebuck & John W. Weaver, 17 Washington Practice, Real Estate: Property Law § 8.20, at 542 (2004)), review denied, 160 Wash.2d 1023 , 163 P.3d 794 (2007).
The parties have stipulated that “[n]o deed conveying legal title in the right-of-way to the SLS & E being found,” the SLS & E’s prescriptive easement is based on a claim of right. Therefore, SLS & E’s prescriptive easement extends only to the uses necessary to accomplish the purpose for which the easement was claimed. See Yakima Valley Canal Co. v. Walker, 455 P.2d at 375 ; see also Lee v. Lozier, 945 P.2d at 220 . The defendant notes in. its cross-motion for partial summary judgment, that “[n]o agreement was reached, however, regarding the scope of that easement.” Defendant argues that “[b]ecause, under Washington law, the easement acquired by the railroad was for a right-of-way for a public highway, trail use falls well within the scope of that easement.” By contrast, plaintiffs argue that “[t]he scope of the prescriptive right of way easement does not encompass trail use.”
Both parties rely heavily on Lee v. Lozier, 945 P.2d 214 , to support their respective positions that the scope of the prescriptive easement either did, or did not, encompass trail use. At issue in Lee v. Lozier was access to a community dock in a sub-division on Lake Washington, for which a group of neighbors had agreed to share the building cost. The owner into whose property a portion of docket extended had agreed to let the other neighbors access the dock, and claimed in a letter that he would never deny the other neighbors access to the dock that crossed his property line. He promised to file the letter against his title, although he never recorded the easement. Id. at 216 . As noted by the Lozier court, “[i]n the years following the completion of the dock, the neighbors used it for various activities including fishing, sailing, waterskiing, strolling, picnicking, temporarily tying up boats to unload goods and passengers, and mooring boats. During the warm summer months, the neighbors also used the dock for sunbathing and swimming.” Id. Subsequently,, the owner conveyed his interest in the lot to Lozier, who denied the neighbors use of the dock. In response, the neighbors sued, Requesting an order establishing that they had acquired a prescriptive easement to use the portions of the dock that extended onto the property. Id. at 216-17 . The trial court entered an order which provided that, “[t]he recreational uses permitted under this easement shall include, without limitation, waterskiing, swimming, fishing, strolling, sunbathing, picnicking, and the temporary moorage of boats as permitted by the covenants and bylaws of the Homeowners’ Association on the outer *442 (western) portion of the ‘T-shaped’ end of the dock.” Id. at 220 .
On appeal, the State of Washington Court of Appeals reviewed the trial court’s grant of a prescriptive easement and upheld the trial court’s finding that the use of the property was adverse and that the use was continuous and uninterrupted. Id. at 219-20 . After concluding that the neighbors had acquired a prescriptive easement, the State of Washington Court of Appeals addressed the scope of the prescriptive easement. The Lozier court indicated that “[i]n ascertaining whether a particular use is permissible under a prescriptive easement the court should compare that use with the uses leading to the prescriptive easement in regard to: (a) their physical character, (b) their purpose, and (c) the relative burden caused by them upon the servient tenement.” Id. (citing Restatement (First) of Property § 478 at 2994 (1944)). Quoting the Restatement (First) of Property, the Lozier court noted that:
“No use can be justified under a prescriptive easement unless it can fairly be regarded as within the range of the privileges asserted by the adverse user and acquiesced in by the owner of the servient tenement. Yet, no use can ever be exactly duplicated. If any practically useful easement is ever to arise by prescription, the use permitted under it must vary in some degree from the use by which it was created. Hence, the use under which a prescriptive interest arises determines the general outlines rather than the minute details of the interest.”
Lee v. Lozier, 945 P.2d at 220 (quoting Restatement (First) of Property § 477 comment. b (1944)) (emphasis added by Lozier court). The Lozier court continued, “[h]ere, the physical character of the uses that led to the creation of the prescriptive easement in this case is very similar to the character of the uses permitted by the trial court’s order: all are activities that take place on a dock. The purpose of the uses is the same: recreation.” Id. The court disagreed with the argument that the prescriptive easement would lead to an increased or overburdening use of the dock, concluding that the prescriptive easement granted no additional rights than the subdivision neighbors believed they already enjoyed. See id. Therefore, the

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6663157. Public record. Not legal advice.