Appendix — Chevy Chase Land Co. v. United States, 121 S. Ct. 380 (2000) (No. 00-31)

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APPENDIX |

Federal Circuit Opinion :

(Dec. 17, 1999; as modified Mar. 27, 2000) ..........ccceccsee. | |

Maryland Court of Appeals Opinion

Me, RRR RR ACo priser Bo PRIA SO ON ONES eae 8

ESRI EDN CO HIER NC MERE 87

Federal Circuit Certification Order (Aug. 18, 1998)........... 105

Court of Federal Claims Opinion

(Mar. 10, 1997; as modified Mar. 19, 1997)................ 110

Federal Circuit Order Modifying Opinion

ON Seg i ihitensniniinhi niatrisisnttentiseiticedemcbiieinsiccessoses 224

Federal Circuit Order Denying Petition for Rehearing

SOP RN Gs iy UD sti itnictnsntnniciaessecsaivasasdssecodssissices 225

Pare A I hts ual di deaiiidichainnaeseniecisissaseeabeiasuscnaes 227

NOTE: Pursuant to Fed. Cir, R. 47.6, this

disposition is not citable as precedent. It is a public

record. The disposition will appear in tables

published periodically.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

97-5079, 97-5083

THE CHEVY CHASE LAND COMPANY OF

MONTGOMERY COUNTY, MARYLAND,

Plaintiff-Appellant,

and

COLUMBIA COUNTRY CLUB,

Plaintiff- .ppellant,

v.

UNITED STATES,

Defendant-Appellee,

and

MONTGOMERY COUNTY,

Defendant-Appellee.

DECIDED: December 17, 1999

[As modified March 27, 2000]

Before MAYER, Chief Judge, NEWMAN and

CLEVENGER, Circuit Judges.

CLEVENGER, Circuit Judge.

Chevy Chase Land Company of Montgomery County,

Maryland ("Land Company") and Columbia Country Club

("Country Club") appeal from the March 19, 1997, decision

of the United States Court of Federal Claims. Chevy Chase

Land Co. wf? ntgo land v. Unit

States, 37 Fed. Cl. 545 (1997) ("Chevy Chase I"). That

decision granted summary judgment to the United States on

the claims of the Land Company and the Country Club that

their property had been taken without compensation in

violation of the Fifth Amendment to the U.S. Constitution, as

a result of actions taken pursuant to federal legislation known

as the Rails-to-Trails Act, Pub. L. No. 98-11, Title II, 97

Stat. 42, 48 (codified at 16 U.S.C. § 1247(d) (1994)). We

affirm.

I

The land in question in this case is a certain strip that was

conveyed by the Land Company to the Metropolitan

Southern Railroad in 1911. As a result of further

conveyances in 1988, Montgomery County, Maryland,

claimed title to the strip and proceeded to place a recreational

trail thereon. In the Court of Federal Claims, the parties

disputed whether the 1911 conveyance was one of an

easement or one in fee simple absolute. The court concluded,

as a matter of Maryland state law, that the initial conveyance

was one in fee simple absolute, with the result that the Land

Company parted with all nght, title, claim or interest in the

strip. See Chevy Chase I, 37 Fed. Cl. at 575. The railroad

was thus free to do as it wished with the strip, and the Land

Company's takings claim failed for want of a taken property

interest. The court concluded that if the original conveyance

had been an easement, then as a matter of state law the

easement was one of limited scope that would not permit its

— Eo ee a

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3

current recreational trail use. See id. at 586-87. Holding that

the requisite acts of abandonment, under state law, had

occurred before the conveyance to Montgomery County, see

id. at 575-76, the court opined that under our decision in

Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996),

the Land Company would be entitled to compensation for an

unlawful taking--assuming of [*3] course that the original

conveyance to the railroad had been an easement of limited

scope.

The Country Club also claimed entitlement to

compensation for an unlawful taking. It argued that fee

simple absolute ownership of the strip inured to it through

the state law doctrines of adverse possession or lost deed. In

the alternative, the Country Club argued that it had acquired

easements on the strip pursuant to several state law theories,

including estoppel, prescription, implication, necessity, and

lost deed. As a matter of state law, the court rejected each of

the Country Club's contentions. Judgment in favor of the

United States was entered, and this appeal ensued. We have

jurisdiction to proceed under 28 U.S.C. § 1295(a)(3) (1994).

II

We heard oral argument on these appeals in June of

1998. After briefing and during oral argument, it became

clear that complex issues of state law might determine the

outcome of the appeals. In particular, the Land Company

argued that the Court of Federal Claims had erred in not

construing the 1911 conveyance to be one of easement. The

United States and Montgomery County disagreed, and also

argued that the scope of the original conveyance, if an

easement, was of sufficient breadth to accommodate the

current recreational trail use, thus frustrating the takings

claims.

4

In its briefs and oral argument, the Country Club

abandoned the state law arguments it had made in the Court

of Federal Claims to support its takings claim. Instead, it

proffered in this court a new theory of state law, under which

it contended that it had obtained fee simple absolute to the

strip of land. Having bought land on each side of the strip

from the Land Company (to build a golf course), the Country

Club [*4] argued here that under Maryland law it had

acquired fee simple absolute from each side of the strip to its

center line.

We certified to the Court of Appeals of Maryland,

pursuant to Md. Code Ann., Cts. & Jud. Proc. §§ 12-601-606

(1997), several questions for decision by the highest court of

Maryland. The certified questions were: (1) Under Maryland

law, did the 1911 deed convey an interest in fee simple

absolute or an easement? (2) If the deed conveyed an

easement, is the easement subject to any limitations as a

matter of law? and (3) If the deed conveyed an easement, has

the easement been abandoned as a matter of law since its

conveyance, and, if so, when? See Chevy Chase Land Co. of

Montgomery County, Maryland v. United States, 158 F.3d

574, 575-76 (Fed. Cir. 1998) ("Chevy Chase II")

(Certification Order).

Because the Country Club waived the state law

arguments it had presented to the Court of Federal Claims,

we did not certify those issues. We also did not certify the

new state law theory offered to us by the Country Club. We

were aware that the Country Club could seek to participate in

the Maryland proceedings, and that the Court of Appeals was

authorized under its statutes to broaden our certification,

should it wish, to include the state law issues raised by the

Country Club.

oO

5

Il

On July 29, 1999, the Court of Appeals of Maryland

answered the certified questions in a lengthy opinion, from

which one member of the court dissented in part.

The court unanimously held that the 1911 conveyance

was an easement, and held that the terms of the original

conveyance were sufficiently broad to embrace its use as a ~

recreational trail. See Chevy Chase Land Co. of Montgomery

County, Maryland v._[*5] United States, Misc. No. 24, slip

op. at 83 (Md. July 29, 1999) ("Chevy Chase III"). Citing its

law, the court held that since the easement is not limited in

scope to railroad purposes, and embraces the current trail

use, "a party alleging abandonment must show more than an

intent to abandon railroad service." Id. at 51. No such

showing had been made, because all of the facts pointing to a

state law abandonment concerned actions by the railroad

indicating an intent to cease rail use of the easement.

The court declined to exercise its discretion to rephrase

the certified questions to entertain the Country Club's

argument that it had obtained fee simple absolute to the land

in question.

IV

This court concluded in Preseault that:

[E]ven if an easement rather than fee title is the nature of

the property interest held by the railroad at the time of the

conversion to a public trail, if the terms of the easement

when first granted are broad enough under then-existing

state law to encompass trail use, the servient estate holder

- would not be in a position to complain about the use of

the easement for a permitted purpose.

100 F.3d at 1552.

6

The current posture of this case is as follows. The Court

of Appeals’ answers to the certified questions, which we

accept, state that the current recreational trail use of the

easement is a permissible use, no acts of abandonment of that

use being shown. Consequently, as we stated in Preseault,

the servient estate holder, here the Land Company, cannot

show a property interest that has been impermissibly taken.

We do not consider the Country Club's new state law

argument, see Jay v. Secre f Heal Human

998 F.2d 979, 983, n.4 (Fed. Cir. 1993), and thus the

Country Club lacks grounds to support its takings claim.

[*6] We note that the Court of Appeals of Maryland, in

an alternative discussion, opined as to the circumstances that

would exist if the easement in question had not been of

sufficient scope to support the current recreational trail use.

See Chevy Chase III at 52-82. A majority of the court

concluded that the activities of the railroad, Montgomery

County and the United States, in conversion of the easement

pursuant to the Rails-to-Trails Act, did not work an

abandonment of the easement, assuming it had been an

easement for rail use only. See id. at 82. On that point, a

member of the court dissented, arguing that such a view of

the conversion process is inconsistent with the holding of

Preseault, in which we expressly held that the easement in

question was not of sufficient scope to support recreational

trail use, and that the facts in that case demonstrated that the

Preseaults had suffered an uncompensated taking of their

property. See Chevy Chase II] at 12-13 (Cathell, J.

dissenting).

We reach our decision on these appeals, as to the Land

Company, on the state law ground that the original easement

authorizes the current recreational trail use. We express no

view on the disagreement in the Court of Appeals of

Maryland as to the alternative reasoning; it will be time

7

enough for us to resolve that disagreement when it comes

before us in a dispositive posture.

Because we have discarded the grounds on which the

appellants could assert a property interest taken in violation

of the Fifth Amendment, we affirm the judgment from which

the appeals are taken.

COSTS

No costs.

8

U.S. Court of Appeals for the Federal Circuit

Case # 97-5079, -5083

IN THE COURT OF APPEALS OF MARYLAND

Misc. No. 24

September Term, 1998

CHEVY CHASE LAND COMPANY et al.

~

V.

UNITED STATES et al.

Bell, C. J.

Eldridge

Rodowsky

Chasanow

Raker

Wilner

Cathell

JJ.

Opinion by Chasanow, J.

Cathell, J., Dissents

Filed: July 29, 1999

9

[**1] This case comes to us by a certified order pursuant

to Maryland Code (1974, 1998 Repl. Vol.), Courts &

Judicial Proceedings Article, §§ 12-603 to 12-609 from the

United States Court of Appeals for the Federal Circuit. That

court seeks our resolution of the parties’ state law property

disputes so that it may determine whether an uncompensated

taking of private property has occurred in violation of the

Fifth Amendment of the United States Constitution.' The

questions pertain to a right-of-way in Montgomery County —

called the “Georgetown Branch” that was granted to a

railroad in 1911 and that has been converted for use as a

hiker/biker trail under the federal “Rails-to-Trails” Act (the

Act).

Specifically, the case requires that we construe a 1911

deed from appellant Chevy Chase Land Company of

Montgomery County (CCLC or the land company) to the

Metropolitan Southern Railroad Company (MSRC or the

railroad),? which is a predecessor in interest to the

right-of-way now owned by appellee Montgomery County

(the County). Additional parties to this appeal include

appellant Chevy Chase Country Club (Country Club), which

claims an interest in the right-of-way for which it should be

compensated, and appellee the United States, which along

with the County was named as a defendant in this takings

claim. The certified questions are as follows:

'The Fifth Amendment of the United States Constitution states in

pertinent part: “nor shall private property be taken for public use, without

just compensation”.

The Metropolitan Southem Railroad Company (MSRC) was a

subsidiary of the B&O Railroad, which later became a subsidiary of the

CSX Corporation. Unless otherwise indicated, for purposes of this

opinion we shall refer to the MSRC, B&O, or CSX simply as the

“railroad.”

10

1. Under Maryland law, did the 1911 deed convey

[**2] an interest in fee simple absolute or an

easement?

2. If the deed conveyed an easement, is the easement

subject to any limitations as a matter of law?

3. If the deed conveyed an easement, has the easement

been abandoned as a matter of law since its

conveyance and, if so, when?

We examine each of the certified questions, in seriatim.

Addressing the first question in Part II, we conclude that

the 1911 deed granting a “right-of-way” to the railroad

conveyed an easement. The use of the “right-of-way”

language provides a strong indication that the parties

intended to convey an easement as opposed to an estate in

fee simple absolute. We find nothing in the deed to indicate

that anything more than a right of passage was intended,

particularly in light of the deed’s separate grant “in fee

simple” of other land upon which a passenger station was to

be located. Our conclusion is confirmed by the

circumstances of the conveyance, including the 20-year

existence of the railway and the nominal consideration paid

by the railroad for the right-of-way. Moreover, the

conveyance of the nght-of-way in fee simple would not have

furthered any purpose of the railway not served by its

conveyance as an easement and could adversely affect the

public’s interest in the best use of the land. See Part II.B.,

infra.

Regarding the second certified question, we conclude in

Part III that use of the right-of-way as a recreational trail falls

within the scope of the easement. The language of the deed

includes no express limitations on the use of the

right-of-way; rather, it indicates through its use of terms such

as “free” and “perpetual” that the parties contemplated

11

general [**3] use of the land as a way of passage through

Montgomery County. In light of our decisions holding that

easements for public highways are subject to reasonable

changes in mode of transportation and the railroad’s status as

a highly regulated public service corporation, recreational

trail use of a general use right-of-way is within the legally

anticipated scope of the 1911 deed. Finally, the use of the

right-of-way as a trail poses no unreasonable burden on the

underlying fee simple estate, as it is self-evident that bikers

and walkers inflict less of a burden on a right-of-way than a

freight railroad.

In Part IV we explain why, as a matter of law, the

railroad did not abandon its easement prior to assigning it to

Montgomery County in 1988. To the extent that the

appellants’ arguments regarding abandonment hinge on their

contention that the scope of the easement is limited to

railroad purposes, our holding in Part III also disposes of this

issue. Even if appellants’ abandonment arguments are not

contingent upon a more limited scope, there is insufficient

evidence for appellants to meet their burden of proving

abandonment. When determining whether there is an

abandonment, the fact that the easement is regulated by

federal railroad law is a circumstance that may be relevant to

the intent to abandon. The railroad’s actions in conformance

with federal law cannot supply the decisive and unequivocal

act necessary to prove that it abandoned its state law property

interest. This is particularly the case when the railroad’s

actions were entirely consistent with an intent to sell the

right-of-way and when a finding otherwise would mean that

the railroad intended to violate federal law, exposing itself to

criminal and civil liability, when [**4] no evidence would

Support the finding of such an intent. Finally, appellants

presented no other evidence that would be sufficient to

support a finding of abandonment.

ost stir lei

12

I. BACKGROUND

A. Factual Background

The stipulated facts show the following. The property

alleged to have been taken and for which the appellants seek

compensation is a strip of land approximately one mile long

and 100-feet wide, spanning some 12 acres in Montgomery

County, Maryland, that lie on either side and across

Connecticut Avenue in Chevy Chase. The mile-long stretch

is a segment of an approximately 6.4 mile former railroad

line in Montgomery County known as the Georgetown

Branch, which runs from Silver Spring southwesterly into

the District of Columbia.

The land company was founded in 1890 in part to

develop the residential area now known as Chevy Chase and

it then owned all the land relevant to this case. In 1891, the

land company and the railroad entered into an agreement

whereby the land company would convey the “nght-of-way”

over the mile-long stretch of land and a second parcel “for

the purposes of a passenger and freight depot.” As part of

the agreement, the railroad agreed to erect a passenger station

on the second parcel to cost not less than $4,000 (or it would

contribute $4,000 toward the land company’s construction of

the station), to build the tracks to Connecticut Avenue on or

before August 31, 1891, and to charge the land company half

[**5] rates on freight delivered over the line. The railroad

missed the August 31, 1891, deadline, but built that portion

of the line in 1892, while the rest of the line was not

completed until 1910; it never built the passenger and freight

station nor did it pay the $4,000 toward the land-company’s

construction of the station. In 1909, the Country Club

bought more than 125 acres of land from the land company

primarily for use as a golf course. The deed conveyed the

property in two separate parcels described by metes and

13

bounds with one parcel on each side of the railroad’s

right-of-way.

In 1911, after the railroad line had been constructed and

in operation for 19 years, the land company executed a deed

conveying to the railroad, “its successors and assigns, a free

and perpetual right of way” over the land referred to in the

1891 agreement. The deed also conveyed, in “fee simple,”

the parcel of land on which the depot was to have been built.

The railroad paid $4,000 for the conveyance, and the deed

stated that the 1891 agreement was “mutually abrogated,

canceled and set aside, and the [railroad] is hereby released

and discharged from the obligation ... of erecting a passenger

station to cost not less than Four Thousand (4,000) Dollars.”

See Part II.C.1.

The railroad used the right-of-way for shipping freight

continuously from 1892 until 1985, when damage to a bridge

on the right-of-way prevented its use. Between 1969 and

1985, however, traffic over the line had decreased by over

90%. In 1983, in conformance with federal law, the railroad

posted a notice on the Georgetown Branch that it would be

the subject of an abandonment application before the

Interstate Commerce Commission (ICC). [**6] A series of

internal corporate decisions were made by the railroad in

1984 and 1985 to abandon service over the Georgetown

Branch. On April 9, 1986, the railroad applied to the ICC for

authorization to abandon rail service on the line, as required

by federal regulation. See 49 U.S.C. § 10903 (1988);? 49

C.F.R. §§ 1152.20-22; and Part IV.A.2. The ICC issued a

tentative decision on February 25, 1988, permitting

. In this opinion, we shall cite to federal laws and regulations

existing in 1988, when the Interstate Commerce Commission (ICC)

issued its order and when the right-of-way was conveyed to Montgomery

County.

14

abandonment on condition that the railroad continue to

maintain the right-of-way in order to facilitate the possible

acquisition of the right-of-way for public use pursuant to the

Rails-to-Trails Act, which is codified at 16 U.S.C. §

1247(d)(1988)(see footnote 3).

After the ICC’s tentative decision, Montgomery County

began discussions with the railroad about acquiring the

right-of-way for a light-rail system as well as a hiker/biker

path pursuant to the Rails-to-Trails Act. On December 12,

1988, the ICC approved the purchase and transfer of use of

the right-of-way to Montgomery County. Four days later the

railroad conveyed the entire Georgetown Branch to

Montgomery County by quitclaim deed for the County’s

payment of $10 million. As described in more detail in Part

IV.A.2., as a result of the ICC’s actions pursuant to the Act,

regulatory abandonment of the railroad right-of-way was

delayed indefinitely.

We will provide more facts as we examine each of the

certified questions. Additional facts are also available in the

opinion of the federal trial court, Chevy Chase Land Co. of

[**7] Montgomery v. U. S., 37 Fed. Cl. 545 (1997).

B. Summary of Arguments and Case History

The plaintiffs/appellants assert that the 1911 deed

conveyed an easement. They further argue that the proposed

use of the easement as a hiker/biker trail is beyond its scope,

which they contend is limited to railroad uses. Alternatively,

they contend that the easement was abandoned prior to the

railroad’s conveyance of the quitclaim deed to the County.

Accordingly, appellants conclude that a reversion of the

easement occurred and that they own the right-of-way

unencumbered by any other interest. Thus, they are seeking

compensation in federal court for the “taking” of their

15

interest in the right-of-way by Montgomery County under

the Rails-to-Trails Act.

Defendants/appellees Montgomery County and the

United States, on the other hand, argue that the 1911 deed

conveyed to the railroad an interest in the right-of-way in fee

simple absolute and therefore the appellants have had no

interest in the property since 1911. Alternatively, should the

deed be found to have conveyed an easement, they contend

that the use of the right-of-way as a hiker/biker trail pursuant

to federal law is within the scope of the easement and that

the railroad never abandoned the easement. Accordingly,

they conclude that no taking occurred. We are concerned

only with the state law property issues and not with the

takings claim itself.

The United States Court of Federal Claims (CFC), where

appellants filed their takings [**8] claim, found in favor of

Montgomery County and the United States. Chevy Chase

Land Co. of Montgomery, supra. The CFC concluded that

the 1911 deed conveyed a fee simple absolute and granted

summary judgment in favor of appellees. Chevy Chase Land

Co. of Montgomery, 37 Fed. Cl. at 565-75. Although that

conclusion disposed of the case, the CFC went on, in dicta,

to conclude that if it was an easement that was conveyed, the

easement was abandoned by the railroad prior to its

conveyance to the County. Chevy Chase Land Co. of

Montgomery, 37 Fed. Cl. at 575-80. Also in dicta, the CFC

stated that the language of the 1911 deed did not limit the

scope of the easement to railroad purposes (thereby implying

that the use as a hiker/biker trail would not cause a reversion)

but that if the deed were limited to railroad purposes, the

proposed use would be beyond the scope of the easement,

thereby causing a reversion giving rise to a takings claim.

Chevy Chase Land Co. of Montgomery, 37 Fed. Cl. at

585-87. The land company and the Country Club appealed

16

to the United States Court of Appeals for the Federal Circuit,

which certified the state law property questions to this court.

II. THE RAILROAD’S PROPERTY INTEREST

The first question asks whether the 1911 deed conveyed

an interest in fee simple absolute or an easement. The

question requires that we construe the 1911 deed between the

land company and the railroad. We begin with a summary of

the principles involved in construing a deed. We then

consider how the courts of this State and other states have

[**9] construed the phrase “right-of-way.” We then apply

those principles to the deed conveyed by the land company

to the railroad.

A. Basic Principles of Deed Interpretation

In construing a deed, we apply the principles of contract

interpretation. Buckler v. Davis Sand, Etc., Corp., 221 Md.

532, 537, 158 A.2d 319, 322 (1960). These principles

require consideration of ““the character of the contract, its

purpose, and the facts and circumstances of the parties at the

time of execution,” Calomiris v. Woods, 353 Md. 425, 436,

727 A.2d 358, 363 (1999)(quoting Pacific Indem. v.

Interstate Fire & Cas., 302 Md. 383, 388, 488 A.2d 486, 488

(1985)). At least initially, the construction of a deed is a

legal question for the court, and on appeal, it is subject to de

novo review. Calomiris, 353 Md. at 433-35, 727 A.2d at

362-63. “‘It is a cardinal rule in the construction of deeds

that ‘the intention of the parties, to be ascertained from the

whole contents of the instrument, must prevail unless it

violates some principle of law.’”” D. C. Transit Systems v.

S.R.C., 259 Md. 675, 686, 270 A.2d 793, 798-99 (1970)(D.C.

Transit I)(quoting Marden v. Leimbach, 115 Md. 206, 210,

80 A. 958, 959 (1911)). Thus, we must consider the deed as a

whole, viewing its language in light of the facts and

ee eee

17

circumstances of the transaction at issue as well as the

governing law at the time of conveyance.

B. Right-of-Way

[**10] In railroad parlance, “the term ‘right of way’ has

two meanings: in one sense it is ‘the strip of land upon

which the track is laid’; in the other sense it is ‘the legal right

to use such strip,’ and in this sense it usually means the right

of way easement.” Ma. & Pa. RR. Co. v. Mer.-Safe, Etc.,

Co., 224 Md. 34, 36-37 n.1, 166 A.2d 247, 248 nl

(1960)(quoting Quinn v. Pere Marquette Ry. Co., 239 N.W.

376, 379 (1931)). See also Joy v. City of St. Louis, 138 U.S.

1, 44, 11 S.Ct. 243, 256, 34 L.Ed. 843, 857 (1891)(“[T]he

term ‘right of way’ ... sometimes is used to describe a right

belonging to a party, a right of passage over any tract; and it

is also used to describe that strip of land which railroad

companies take upon which to construct their road-bed.”).

Cf. Philip A. Danielson, The Real Property Interest Created

In a Railroad Upon Acquisition of Its “Right of Way,” 27

ROCKY Mtn. L. REV. 73, 74 (1954)(noting the two meanings

and stating that “[iJn law [right of way] is synonymous with

‘easement’ — a legal concept”).

Nevertheless, it has generally been held by courts of this

and other states that “deeds which in the granting clause

convey a ‘right of way’ are held to convey an easement

only.” Deed to Railroad Company as Conveying Fee or

Easement, Annotation, 6 A.L.R.3d 973, § 3, at 977 (1966);

The Real Property Interest Created In a Railroad Upon

Acquisition of Its “Right of Way,” 27 ROCKY MTN. L. REV.

at 84 (“[I]f the conveyance is of a ‘right of way,’ or of land

‘for a right of way,’ the courts tend to find an

easement’ (emphasis in original; footnote omitted). As

explained in Professor Elliott’s 1907 treatise on railroad law:

18

““Right of way,’ in its strict meaning, is ‘the nght

of passage over another man’s ground;’ and in its

legal and generally [**11] accepted meaning, in

reference to a railway, it is a mere easement in the

lands of others, obtained by lawful condemnation to

public use or by purchase. It would be using the term

in an unusual sense, by applying it to an absolute

purchase of the fee-simple of lands to be used for a

railway or any other kind of way.”

2 ELLIOTT ON RAILROADS § 1158, at 628 n.77 (3d. ed.

1907)(quoting Williams vs. Western Union Railway

Company, 5 N.W. 482, 484 (Wis. 1880)). See also Richfield

Oil Corp. v. Railroad Co., 179 Md. 560, 572, 20 A.2d 581,

587 (1941); D.C. Transit I, 259 Md. at 688, 270 A.2d at 799

(both quoting ELLIOTT ON RAILROADS).

Maryland courts have often construed deeds of “rights-

of-way” to railroads as easements or have used the terms

“easement” and “right-of-way” synonymously. See, e.g.,

D.C. Transit I, 259 Md. at 689, 270 A.2d at 800 (“The

addition of the language for ‘a nght of way’ in the habendum

clause ... makes clear the intent of the parties to grant an

easement....”"(emphasis in original); Richfield Oil Corp., 179

Md. at 572, 20 A.2d at 587-88 (quoting 2 ELLIOTT ON

RAILROADS § 1158, at 627-28 (3d ed. 1907)(““Where the

intention to convey a fee does not appear, as in case of the

conveyance of a “right of way” for the railroad through

certain lands, the company takes an easement only.””);

Greenwalt v. McCardell, 178 Md. 132, 136, 12 A.2d 522,

524 (1940)(“Where a right of way is established by

reservation, the land remains the property of the owner of the

servient estate, and he is entitled to use it for any purpose

that does not interfere with the easement.”)(emphasis added);

Miceli v. Foley, 83 Md. App. 541, 570, 575 A.2d 1249, 1264

(1990)(“Absent an express intention to convey a fee, a grant

19

of a right of way to arailroad [**12] is generally considered

to be an easement.”). Our cases are consistent with those of

other jurisdictions.‘

The general rule that the terms “right-of-way” and

“easement” are synonymous came about because the rule is

consistent with the likely intent of the parties to a deed when

the term “right-of-way” is used. As we observed in Green

Tr. v. Eldridge, 230 Md. 441, 448, 187 A.2d 674, 678

* See, e.g., City of Port Isabel v. Missouri Pacific. R. Co., 729

S.W.2d 939 (Tex. Ct. App. 1987)(holding that deed to railroad “in fee

simple” of “the right of way” conveyed an easement only); Hartman v. J.

& A. Development Co., 672 S.W.2d 364 (Mo. Ct. App. 1984)(holding

that a deed of a right-of-way conveyed an easement rather than a fee

because use of term right-of-way and road are almost “conclusive

indications” that the interest conveyed is an easement); Fischer v.

Trentmann, 672 S.W.2d 139 (Mo. Ct. App. 1984)(similar holding);

Pollnow v. State Dept. of Natural Resources, 276 N.W.2d 738, 744 (Wis.

1979)(quoting Williams vs. Western Union Railway Company, 5 N.W.

482, 484 (Wis. 1880)(“‘Right of way,’ in its strict meaning, is ‘the right

of passage over another man’s ground,’ and in its legal and generally

accepted meaning, in reference to a railway, it is a mere easement in the

lands of others, obtained by lawful condemnation to public use, or by

purchase.”)(emphasis supplied); Veach v. Culp, 599 P.2d 526 (Wash.

1979)(use of language “right-of-way” is conclusive of intent to convey

easement); Hutson v. Agricultural Ditch & Reservoir Co., 723 P.2d 736

(Colo. 1986){holding that condemnation decree of right-of-way

constituted an easement because an easement would accomplish purpose

of decree); Missouri-Kansas-Texas Railroad Company v. Freer, 321

S.W.2d 731, 736 (Mo. Ct. App. 1958)(“Conveyances of right of way are

held to create easements only.”\(foomote omitted); see also

RESTATEMENT (THIRD) OF PROPERTY § 2.2, “Intent to Create a

Servitude” cmt. g (Tentative Draft No. 1, 1989)(“The fact that the

grantee is a railroad may also tend to indicate that the instrument should

be construed to convey an easement only. The narrowness of the parcel,

the consideration paid, and the frequency with which railroad uses have

been abandoned often lead to the conclusion that the grantor, as a

reasonable person dealing with a railroad, intended to grant no more than

an easement for the right of way, retaining ownership of the land.”).

20

(1963): “The fact that the word ‘easement’ was not used to

designate the property interest passing is not of particular

significance, since use of the phrase ‘right of way’ is

generally understood to mean that only an easement is being

granted.” See also [**13] Pub. Serv. Commn. v. Gas Etc.

Corp., 162 Md. 298, 312, 159 A. 758, 763 (1932)(quoting

Bosley v. Susquehanna Canal, 3 Bland 63, 67 (1830)(““A

right of way, whether public or private, is essentially

different from a fee simple right to the land itself over which

the way passes. A right of way is nothing more than a

special and limited right of use....’”’).

Furthermore, policy considerations support interpreting

the conveyance of a “right-of-way” to a railroad as an

easement where the intent to convey an estate in fee is not

clearly expressed. A great number of railroad corridors have

been abandoned in recent years. See Preseault v. ICC, 494

US. 1, 5, 110 S.Ct. 914, 918, 108 L.Ed.2d 1, 10

(1990)(observing that the nation’s railway system has lost

about 130,000 miles of track since 1920 and noting that

“experts predict that 3,000 miles will be abandoned every

year through the end of this century”)(footnote omitted).

Whether a right-of-way is construed as an estate in fee

simple or an easement has significant implications for the

utility of the land upon abandonment. If the deed of a right-

of-way is construed as an estate in fee simple, the railroad

will retain the right-of-way even after it is no longer used for

any transit purposes — effectively severing otherwise

contiguous pieces of property, and for no useful purpose. As

the Indiana Supreme Court has explained:

“Public policy does not favor the conveyance of

strips of land by simple titles to railroad companies

for right-of-way purposes, either by deed or

condemnation. This policy is based upon the fact that

the alienation of such strips or belts of land from and

21

across the primary or parent bodies of the land from

which they are severed[] is obviously not necessary to

the purpose for which such conveyances are made

after abandonment of the intended uses as expressed

in the conveyance, and that [**14] thereafter such

severance generally operates adversely to the normal

and best use of all the property involved.”

Ross, Inc. v. Legler, 199 N.E.2d 346, 348 (Ind. 1964). See

also The Real Property Interest Created In a Railroad Upon

Acquisition of Its “Right of Way,” 27 ROCKY MTN. L. REV.

at 74 (observing that construing a right of Way as an

easement “seems socially more desirable, since it helps clear

titles and prevents long narrow strips of agricultural land

from being separated from the adjoining farms, with

attendant waste and inconvenience.”). We have previously

recognized that the construction of a right-of-way as a fee

simple would not further any significant interest that is not

served by construction as an easement. See D.C Transit I,

259 Md. at 688, 270 A.2d at 800 (construing a deed to a

railroad as an easement in part because it would not serve

any useful purpose to convey “a strip of land 80 feet wide”

as an estate in fee); Ma. & Pa. RR. Co., 224 Md. at 37, 166

A.2d at 249 (following the “general rule ... that a railroad

company acquires only an easement in a right of way by

prescription .... [because] the nature of the user by the

railroad requires no more than an easement in the right of

way”). See also Daugherty v. Helena & Northwestern Ry.,

252 S.W.2d 546 (Ark. 1952)(holding that a deed conveying a

strip of land for a right-of-way created an easement rather

than a fee primarily because the parcel would be useful for

little else because of its shape); Hartman v. J. & A.

Development Co., 672 S.W.2d 364 (Mo. Ct. App.

1984)(recognizing that long narrow strips of land serve little

or no function other than for easements or rights-of-way).

22

This is not to say that a deed conveying a “right of way”

to a railroad cannot convey [**15] an estate in fee simple.

It is well settled that a deed to a railroad, even though it

characterizes the grant as conveying a nght-of-way, may

convey an estate in fee simple. See Hodges v. Owings, 178

Md. 300, 303, 13 A.2d 338, 339 (1940)(observing that the

railroad’s charter authorized it to take an estate in fee).

However, when a deed conveying a right-of-way fails to

express a clear intent to convey a different interest in land, a

presumption arises that an easement was intended. “The

logical rule ... is that where the deed is ambiguous and the

granting clause is not specific, references to the interest

being conveyed as a right-of-way gives rise to a presumption

that an easement was intended. ” Danaya C. Wright, Private

Rights and Public Ways: Property Disputes and

Rails-to-Trails in Indiana, 30 IND. L. REV. 723, 740 (1997).

See also Miceli, 83 Md. App. at 571, 575 A.2d at 1265 (“As

there is insufficient evidence to rebut the presumption that a

condemning railroad takes an easement, we hold that the

railroad did not acquire a fee simple absolute in the property

at issue.”’) : :

C. Application to the 1911 Deed

1.

The deed in question was executed on March 22, 1911,

and recorded on April 4, 1911. In pertinent part, the granting

clause of the deed states:

“{T}he said party of the first part [the land

company] for and in consideration of the sum of

FOUR THOUSAND (4,000) DOLLARS, to it paid by

the said party of the second part, does hereby grant

and convey unto the said party of the second part [the

railroad], its successors and assigns, a free and

perpetual right of way, one hundred (100) feet wide,

23

over the land and [**16] premises hereinafter

designated as ‘Parcel A’ and does hereby grant and

convey unto the said party of the second part [the

railroad], its successors and assigns, in fee simple, the

land and premises, hereinafter designated as ‘Parcel

B’....” (Emphasis added).

The deed then provides a metes and bounds description of

Parcel A, the “right-of-way,” and Parcel B, the land granted

in “fee simple.” Parcel A is summarized as “being a strip of

land fifty (50) feet wide on each side of the center line of the

Metropolitan Southern Railroad through the land of [t]he

Chevy Chase Land Company...” (Emphasis added). The

granting clause pertaining to Parcel A is made subject to an

“existing right of way for highway and other purposes over

what is known as Connecticut Avenue Extended.”

The deed’s warranty clause states:

“AND the said party hereto of the first part

hereby covenants to warrant specially the property

hereby conveyed, and to execute such further

assurances of said land as may be requisite.”

Finally, the deed provides that

“in consideration of the execution and delivery of

this Deed, and of the payment of the consideration

herein expressed, the ... agreement entered into on

[April 21, 1891] ... is mutually abrogated, canceled

and set aside, and [MSRC] is hereby released and

discharged from the obligation set forth in said

contract, of erecting a passenger station to cost not

less than Four Thousand (4,000) Dollars, or of

contributing the sum of Four Thousand (4,000)

Dollars toward the erection by ... [CCLC] of a

passenger station on the hereinbefore described parcel

of land designated as Parcel “B”; and the said

24

[MSRC], as is evidenced by its acceptance of this

conveyance, hereby releases [CCLC] from any

obligation ... to erect or cause to be erected the

passenger station aforesaid.”

[**17] As the cases just reviewed demonstrate, and as

appellees and the CFC acknowledge, we have consistently

construed conveyances of nights-of-way to railroads as

easements and not estates in fee simple. The use of the term

“right of way,” however, does not ipso facto create an

easement; rather the language of the deed must be viewed as

a whole in the context of the entire transaction. As explained

next, we believe that the express language of the deed in

light of the circumstances makes sufficiently clear the

intention of the land company and the railroad to create an

easement. See Desch v. Knox, 253 Md. 307, 310-11, 252

A.2d 815, 817 (1969)(holding deed conveyed “right-of-way”

based on the language of the deed); Fedder v. Component

Struct. Corp., 23 Md. App. 375, 380, 329 A.2d 56, 60

(1974)(holding that the “intention of the parties [to convey

an easement was] crystal clear” when deed conveyed a

“right-of-way” and “[w]hen the simple language of the

contract is considered in the surrounding circumstances.” We

first examine the language of the deed itself and only then

turn to the circumstances of the conveyance.

2.

Initially, we note what is obvious about the deed. The

granting clause does not state that a piece of land is being

conveyed nor does it provide any indication that an estate in

fee simple was intended to be conveyed. The language “free

and perpetual” sheds no light on whether a nonpossessory or

possessory interest is being conveyed, since an estate in fee

or an easement may be “free and perpetual.” See Md. Code

(1974, 1996 Repl. Vol.), Real [**18] Property Art., § 4-105

(“[E]very grant or reservation of an easement passes or

25

reserves an easement in perpetuity.”). Rather, the granting

clause of the deed directly conveys a “right of way.” The

appellees therefore have a high hurdle to overcome in order

to demonstrate that the term right-of-way was used “in [the]

unusual sense ... [of] an absolute purchase of the fee-simple

of lands....” 2 ELLIOTT ON RAILROADS § 1158, at 628 n.77

(3d ed. 1907)(quoting Williams, 5 N.W. at 484).

That hurdle is elevated upon further examination and a

contrasting of the deed’s dual granting clauses. The two

granting clauses each declare the land company’s intent to

“hereby grant and convey.” First, the land company

conveyed “a free and perpetual right of way, one hundred

(100) feet wide, over the land and premises hereinafter

designated as ‘Parcel A.”” Second, the land company

conveyed to MSRC “in fee simple, the land and premises,

hereinafter designated as ‘Parcel B.”” Appellees contend that

because each clause contains the word “grant” the land

company intended to pass an estate in fee simple even

though the first clause grants a “right of way” while the

second clause conveys the “land and premises” in “fee

simple.” The CFC concluded that the use of the term “fee

simple” in reference to Parcel B merely referenced duration

of the estate conveyed and not the estate itself. Chevy Chase

Land Co. of Montgomery, 37 Fed. Cl. at 571. Relying in part

on extrinsic evidence, the CFC concluded that the language

“fee simple” in reference to Parcel B was synonymous with

the term “perpetual” in reference to Parcel A and thus both

granting clauses conveyed estates in fee. Jd.

[**19] We believe that the CFC’s and appellees’

construction of the deed is overly strained. If the land

company intended to convey estates in fee over both parcels,

it would have been unnecessary to include two separate

granting clauses. Moreover, given that two granting clauses

were used, if they had intended to convey the same interest,

26

we believe the author of the deed would have used the same

language. Neither the CFC nor appellees explain why

different language was used if the intent was to convey the

same interest in both parcels. To hold that both Parcel A and

Parcel B conveyed estates in fee would be to ignore what we

believe is self-evident from the deed: that the parties

intended to convey different interests, one for the “right of

way” designated as Parcel A and the other for “the land and

premises” in “fee simple” and designated as Parcel B. If the

intent was to convey Parcel A as an estate in fee, no drafting

hurdles would have prevented making such intent explicit.

Cf. United States v. 1.44 Acres of Land, Etc., Montgomery

_ County, Md. 304 F. Supp. 1063, 1071 (D. Mad.

1969)(applying Maryland law)(“{A] legal draftsman ...

would not use such [night-of-way] language to convey a fee

title to a railroad.”).

Appellees further attempt to bootstrap the description of

Parcel A as a “parcel of land” into the granting clause to

show that an estate in fee of the right-of-way was intended to

be conveyed. As noted above, the description of Parcel A is

found in a separate paragraph of the deed, which summarizes

Parcel A as a “parcel of land ... being a strip of land fifty (50)

feet wide on each side of the center line of the Metropolitan

Southern Railroad through the land of [t]he Chevy Chase

Land Company.”

[**20] We disagree as to the implications of the

language “parcel of land” in the description of “Parcel A” in

the deed. The language is used in the portion of the deed

establishing the /ocation of the right-of-way, not the interest

granted. Language used in a descriptive clause is less

important than the language of the granting clause in

denoting what interest in land is conveyed by a deed. See

Marden, 115 Md. at 209, 80 A. at 959 (observing that, when

determining the interest conveyed by a deed, in the case of

27

conflict the granting clause generally prevails over the

habendum clause). Indeed, the granting clause for Parcel B

explicitly stated that what was being conveyed was “the land

and premises” while the disputed grant was of a “right of

way ... over the land and premises.” (Emphasis added).

Furthermore, as discussed next, in previous cases we have

construed language similar to the “parcel of land” language

upon which appellees rely. In these cases the deed language

was found not in a descriptive clause but in the granting

clause itself, and we nevertheless found that the deed

conveyed an easement in lieu of the reference to the interest

as a “right-of-way.”

In Green, the deed was entitled a “Right of Way Deed.”

230 Md. at 447-48, 187 A.2d at 677. The granting clause

conveyed in fee simple ““‘the free and uninterrupted use,

liberty and privilege of, and passageway in and along a

certain right of way....”” Despite the reference to the grant in

“fee simple,” we concluded based on the entire instrument

and the circumstances of the transaction that the deed granted

an easement only, “with the fee remaining in the original

grantor, his heirs and assigns.” Green, 230 Md. at 448, 187

A.2d [**21] at 677.

Another example is East Wash. Railway v. Brooke, 244

Md. 287, 223 A.2d 599 (1966). In that case, the granting

clause of the deed conveyed a “‘strip of land for a right of

way through said lands.’” Brooke, 244 Md. at 293, 223 A.2d

at 603 (emphasis added). A description of the strip of land

summarized it as being ““land sixty feet in width ... as now

located and used for raiiroad purposes.’”” Brooke, 244 Md.

at 294, 223 A.2d at 603 (emphasis in original). Even though

the granting clause conveyed a “strip of land” (which seems

synonymous with “parcel of land”), we concluded that “Tilt

is plain that the conveyance was of an easement for railway

purposes and use only.” Jd.

28

A final example is D.C. Transit I, supra. In that case, the

deed we interpreted “‘grant[ed] and convey[ed] ... all the

piece or parcel of land’” described in the deed. D.C. Transit

I, 259 Md. at 679, 270 A.2d at 795. The habendum clause

stated as follows:

“To have and hold the same unto and to the use of ... [the

railroad company] for a right of way and such other

purposes as said Railway Company is authorized under

its act of incorporation ... and the General Incorporation

Law of this State to acquire, dispose of or deal in real

estate.’”” (Emphasis in original.)

D.C. Transit I, 259 Md. at 680, 270 A.2d at 795. The

granting clause thus conveyed “all the piece or parcel of

land” (emphasis added) with the only reference to the “right-

of-way” being in the habendum and not the granting clause.

Moreover, the deed explicitly stated that the right-of-way

could be used for purposes for which the railroad company

was authorized under the law, and the deed itself noted that

such authorization included the acquisition and [**22]

disposal of real estate. Nevertheless, we concluded based on

the deed language and the circumstances that the parties

intended to convey an easement only. We observed that the

statute authorizing the railroad to acquire and dispose of real

estate was for the purpose of “laying out town sites, erecting

buildings and opening and working quarries” and “a strip of

land 80 feet wide is hardly a town site .... [and] is an unlikely

place for the erection of buildings of consequence.” D.C.

Transit I, 259 Md. at 688, 270 A.2d at 800. Moreover, we

observed that the use of the term “right of way” in the

habendum clause was “obviously intended to have some

meaning [and] makes clear the intent of the parties to grant

an easement.” D.C. Transit I, 259 Md. at 689, 270 A.2d at

800.

29

That the deed in this case conveys an easement and not

an estate in fee follows, a fortiori, from Green, Brooke, and

D.C. Transit I. Unlike Green, in the instant case there is no

express language suggesting that the right-of-way was

conveyed in “fee simple” (even though Parcel B was

conveyed “in fee simple"). Furthermore, we do not see any

legally significant difference between the “strip of land” in

Brooke and the “parcel of land” in this case, and, unlike the

instant case where the express grant was of a “right of way,”

the grant in Brooke was expressly of a “strip of land.”

Therefore, the deed in Brooke provided a much stronger

reason under appellees’ analysis to conclude that an estate in

fee simple was conveyed rather than a servitude. We

nevertheless found it “plain” in Brooke that the grant

conveyed an easement only.

Finally, that the 1911 deed conveyed an easement seems

compelled by our holding [**23] in D.C. Transit I, where

the granting clause conveyed “all the piece or parcel of land”

and the only reference to a right-of-way was in the deed’s

habendum clause. The deed in the instant case contains

nearly identical language as in D.C. Transit J (“right of way”

and “parcel of land”), but it more clearly indicates an

casement was granted than D.C. Transit J since the granting

clause directly conveys a right-of-way and the only reference

to a “parcel of land” is in the descriptive clause — the

opposite locations in which the phrases were used in the deed

at issue in D.C. Transit I. Therefore we find unconvincing

appellees’ creative attempt to argue that, given the definition

of Parcel A as a “parcel of land” in the descriptive clause, the

“right of way” in the granting clause refers not to the legal

right to use the land but rather to the strip of land itself.

*

The circumstances and positions of the parties to the

1911 deed confirm that the deed conveyed an easement and

30

not an interest in fee simple absolute. Both the CFC and

appellees emphasize the lack of conditional language in the

1911 deed restricting the uses of the right-of-way or setting

forth its purposes. Chevy Chase Land Co. of Montgomery,

37 Fed. Cl. at 569 (emphasizing “the outright grant of the

right-of-way and the absence of purpose limitations”). They

argue that the lack of conditional language in the 1911 deed

is what distinguishes the term “right-of-way” in that deed

from the rights of way in the numerous Maryland cases that

were construed to be easements. For example, the CFC

stated [**24] that “[t]he 1911 deed does not even refer to

the word ‘railroad,’ let alone restrict the use of the land to

railroad purposes.” Chevy Chase Land Co. of Montgomery,

37 Fed. Cl. at 571. Turning to evidence extrinsic to the deed,

the CFC supported its conclusion by quoting from other

deeds executed by the land company to railroad companies

that conveyed easements which contained purpose language.

Chevy Chase Land Co. of Montgomery, 37 Fed. Cl. at 570.

For example, the court quotes from a deed stating that the

“right-of-way” is subject to the railroad “construct[ing] and

complet[ing] and commenc[ing] regular operat[ions] within

nine months” and another deed conveying a “right of way for

the purpose of constructing and operating the railroad.” Jd.

While the CFC and appellees correctly point out that

there are no purpose limitations in the 1911 deed, they

entirely overlook the fact that the railway for which the

conveyance was executed had already been built and was in

operation for nearly 20 years prior to the 1911 conveyance.

Thus, unlike the right-of-way deeds examined in our prior

cases, and unlike the land company’s deeds to other

railroads, the 1911 deed did not convey an undeveloped

railroad corridor but rather a railway that had been in

existence for quite some time. As a result, there was little

need to state in the deed the purposes for which the

31

right-of-way was conveyed. Regardless, contrary to the

intimations of appellees and the CFC, our prior cases have

never stated that a right-of-way deed must include purpose

language. Rather, we have looked to the circumstances and

positions of the parties. In this case, the fact that both parties

to the deed were well aware that the right-of-way was to be

[**25] used for a freight and passenger railroad that had

been in operation for many years overcomes any need for

limiting language in the deed itself for purposes of creating

an easement as opposed to an estate in fée simple absolute.

Furthermore, construing the deed to convey an easement

is consistent with the 1891 agreement between the land

company and the railroad. That agreement was made “in

contemplat[ion of] the construction of a line of road ... to

traverse the property” of the land company. It further

explained the land company’s intention “to donate and

convey to the said railroad company a right of way 100 feet

wide.”* The 1891 agreement also required the railroad to

* In pertinent part, the 1891 agreement between the railroad and the

land company stated:

“the said Chevy Chase Land Company in consideration of the

agreement of the said railroad company hereinafter set forth, agrees

to donate and convey to the said railroad company a right of way 100

feet wide....

[a metes and bounds description] ***

the above described parcel being a strip of land fifty feet wide on

each side of the centre line of the [MSRC] through the lands of [the

land company].

And the said Land Company ... further agrees to donate and convey

to the said Railroad Company for the purposes of a passenger and

freight depot, and uses incident thereto, including side tracking, the

following described parcel of land [a metes and bounds

description].”

32

construct a passenger and freight depot on the tract of land

that in the 1911 deed was denoted as “Parcel B,” or, if the

railroad did not construct the depot, the agreement [**26]

provided that it would contribute $4,000 toward the cost of

the land company’s construction of the depot. The

agreement was never recorded. After the agreement, the

railroad constructed the railway but it never built the

passenger and freight depot on Parcel B. The CFC

concluded that “it is fairly clear that [the 1891 agreement]

contemplated the conveyance of an easement.” Chevy Chase

Land Co. of Montgomery, 37 Fed. Cl. at 572.

Despite its conclusion that the 1891 agreement

contemplated an easement, the CFC considered extrinsic

evidence to conclude that the 1911 deed conveyed an interest

in fee simple absolute. The CFC relied on a 1910 letter from

a land company official referencing the conveyance to occur

in the next year. The letter stated that

““the arrangement was that the Baltimore and Ohio

Railroad Company pay to the Chevy Chase Land

Company Four Thousand Dollars in cash, and in

consideration of this payment, have conveyed to it, all the

property covered by its right of way contract with the

Land Company, entered into some years ago.”

(Emphasis added).

Chevy Chase Land Co. of Montgomery, 37 Fed. Cl. at 572.

The CFC concluded that the letter “indicates” that the 1911

conveyance was to involve estates in land and not an

easement. Jd.

Even assuming, arguendo, that this letter was properly

used to construe the interest that was conveyed in the deed,

we fail to see the letter’s significance in determining whether

the right-of-way in the 1911 deed conveyed an estate or an

easement. The use of the language in the letter “all the

33

property” is no more convincing as to intent to convey in fee

simple than appellees’ arguments rejected earlier relating to

the description of the right-of- [**27] way as a “parcel of

land.” As we see it, the letter has less significance than the

language in the deed describing Parcel A as a “parcel of

land.” The letter’s statement of intent to “convey[] all the

property covered by its right of way contract” can be

interpreted as an intent to convey an easement just as

convincingly as it may be interpreted to show an intent to

convey an estate in fee simple absolute.

Appellees contend that the 1891 agreement should not be

considered because it was “mutually abrogated, canceled and

set aside” in the 1911 deed. Indeed, as discussed above, we

need not turn to the 1891 agreement to reach our conclusion

that an easement was conveyed in the 1911 deed. However,

the abrogation language of the 1911 deed was “in

consideration of the execution and delivery” of the new deed.

Thus, it is relevant to the 1911 deed since it supplied

consideration for the transaction. Moreover, the relevant

portion of the deed states in full that the 1891 agreement is

“mutually abrogated, canceled and set aside, and [MSRC]

is hereby released and discharged from the obligation set

forth in said contract, of erecting a passenger station to

cost not less than Four Thousand (4,000) Dollars, or of

contributing the sum of Four Thousand (4,000) Dollars

toward the erection by ... [CCLC] of a passenger station

[on Parcel B]; and [MSRC], as is evidenced by its

acceptance of this conveyance, hereby releases [CCLC]

from any obligation ... to erect or cause to be erected the

passenger station aforesaid.” (Emphasis added).

Thus, the 1891 agreement was abrogated only when the

1911 deed was properly executed and delivered, and that

abrogation was linked in express contractual terms to the

primary outstanding obligation of the 1891 agreement — to

34

either spend $4,000 on a [**28] passenger depot or pay

$4,000 to MSRC for its own construction of a passenger

depot.

This leads to an additional factor that courts consider in

determining whether a fee simple estate or an easement is

granted by a deed conveying a “right-of-way” — the amount

of consideration paid for the deed. Deed to Railroad

Company as Conveying Fee or Easement,” Annotation, 6

A.L.R.3d 973, § 3, at 1038 (1966)(“A factor which might be

considered relevant in determining whether a deed to a

railroad company should be construed as conveying a fee or

easement is the amount of the consideration shown to have

been paid by the company for the conveyance in question.”).

“The fact that the consideration paid was less than the value

of a fee simple estate in the land, weighs strongly in favor of

finding that they intended an easement.” RESTATEMENT

(THIRD) OF PROPERTY § 2.2, “Intent to Create a Servitude”

cmt. g (Tentative Draft No. 1, 1989). We applied this

principle in Hodges, supra, where we found that a deed to a

railroad conveyed an easement. We noted that “([t]he

purpose of the grantee was the building of a railroad, in

which the grantor was willing to co-operate with the grantee

by a gift of this piece of right of way.” Hodges, 178 Md. at

304, 13 A.2d at 340 (emphasis added). See also Tamalpais

Land & Water Co. v. Northwestern Pac. R. Co., 167 P.2d

825, 830 (Cal. Dist. Ct. App. 1946)(“[T]he fact that no

monetary consideration, or only nominal monetary

consideration was paid for the grant is a factor of

considerable importance indicating that the grant conveys an

easement and not a limited fee.””); Weeks v. Missouri Pacific

Railroad Company, 505 S.W.2d 33, 37-38 (Mo.

1974)(finding that deed conveyed an easement interest based

in part [**29] on evidence that defendant paid no

consideration for the grant).

35

Appellees argue unconvincingly that the $4,000 the

railroad paid to the land company was for an estate in fee

simple of the land occupied by the right-of-way and not for

release from the obligation in the 1891 agreement to expend

or pay that amount for the construction of a passenger depot.

They go on to contend that the $4,000 for Parcels A and B

was more than nominal consideration, which they argue

demonstrates that the deed conveyed an estate in fee simple.

The CFC apparently accepted appellees’ arguments, finding

“more than nominal consideration,” but it went on to

conclude that the “consideration tendered does not militate in

either direction.” Chevy Chase Land Co. of Montgomery, 37

Fed. Cl. at 573-74. We disagree that the consideration was

more than nominal and believe the lack of more than

nominal consideration further militates toward construing the

deed to convey an easement.

We must look no further than the deed itself to see that

the consideration paid was nominal. The granting clause

States that the property conveyed by the land company was

“in consideration of FOUR THOUSAND (4,000)

DOLLARS.” As noted above, the deed provides that “in

consideration of the execution and delivery of this Deed,” the

land company would release MSRC from its contractual

obligation to pay $4,000 for the construction or the land

company’s construction of a passenger depot. Thus, the

railroad paid $4,000 for release of a $4,000 contractual

obligation and the conveyances of Parcel A and Parcel B,

which were promised to be conveyed in the agreement of

1891. In lieu of its outstanding $4,000 contractual

obligation, the consideration the railroad paid for the [**30]

Property was clearly nominal, which Supports our

interpretation of the deed as conveying an easement. In sum,

we do not believe, as the appellees intimate and the CFC

apparently accepted, that it was sheer coincidence that the

36

$4,000 the railroad paid for the 1911 deed was of the same

amount as the railroad’s outstanding $4,000 contractual

obligation.

Finally, we are unconvinced by appellees’ arguments that

the Maryland statute in effect in 1911 suggests that the deed

conveyed a fee simple estate. That statute declares that

“(t]he word ‘grant,’ the phrase ‘bargain and sell,’ in a

deed, or any other words purporting to transfer the whole

estate of the grantor shall be construed to pass to the

grantee the whole interest and estate of the grantor in the

lands therein mentioned, unless there be limitations or

reservations showing, by implication or otherwise, a

different intent.”

Md. Code (1904), Art. 21, § 12. Appellees contend that the

statute applies because of the use of the term “grant” in the

1911 deed. As described above, the limitations in the 1911

deed are inherent in the grant of a right-of-way to a railroad

company. Thus, “there [are] limitations or reservations

showing, by implication or otherwise, a different intent” than

to convey the whole estate of the grantor. Jd. Our previous

cases construing deeds to railroad companies containing the

term “grant” nevertheless have concluded that the

instruments conveyed easements and not estates in fee,

notwithstanding the statute relied on by appellees. See

Brooke, 244 Md. at 293, 223 A.2d at 603 (noting Article 21’s

“principle that the word ‘grant’ must be construed to pass all

of the grantor’s interest unless there are indications

otherwise” but concluding nevertheless that deed to railroad

using term “grant” conveyed an easement); Richfield Oil

Corp., supra (refusing to apply statute to deed using [**31]

term “grant” to convey a “right of way”); Hodges, 178 Md.

at 303-04, 13 A.2d at 339-40 (refusing to apply the statute

when deed used term “grant” but language showed that

grantor “gave the [railroad] a right of way,” which conveyed

37

an easement); Ross v. McGee, 98 Md. 389, 394, 56 A. 1128,

1130 (1904)(holding that the statute “was never intended to

apply to ... the granting of an easement”).

4.

In conclusion, the use of the term “tight-of-way” in the

deed provides a strong indication that the railroad and the

land company intended the 1911 deed to convey an

easement. Our cases and the cases from other states

consistently have construed deeds to railroads of

“rights-of-way” as conveying easements and not estates in

fee simple absolute. The language of the deed at issue in this

case provides no reason to deviate from our previous cases.

This is especially the case in light of the dual granting

clauses of Parcel A, conveying a “right of way” and Parcel

B, conveying the parcel “in fee simple.” Finally, the

circumstances of the deed confirm the conclusion that the

deed conveyed an easement only. In particular, the fact that

the railway had already been built and was in operation

obviated any need for limiting language in the deed to

indicate that less than a fee simple was being conveyed, and

the nominal consideration given the land company by the

railroad is a factor more consistent with the conveyance of an

easement than an estate in fee simple absolute.°

* We decline to entertain the Country Club’s contention that it is the

owner in fee simple absolute of a portion of the right-of-way that bisects

two parcels of land conveyed to the Country Club by the land company

in 1909. The Country Club did not argue before the United States Court

of Federal Claims (CFC) that it owned in fee simple the segment now

claimed. Rather, it contended that it had ownership “[p]ursuant to the

doctrine of adverse possession, or alternatively, lost deed.” Chevy Chase

Land Co. of Montgomery v. U. S., 37 Fed. Cl. 545, 587 (1997). It made

no claim of ownership in the right-of-way by virtue of the 1909 deed, as

it does here. See Chevy Chase Land Co. of Montgomery, 37 Fed. Cl. at

587-88. The Country Club first made the argument that the 1909 deed

conveyed to it the segment of the right-of-way in fee simple absolute to

38

[**32] Il. THE SCOPE OF THE EASEMENT _~ -

Since we have determined that the 1911 deed granted an

easement, we must now consider the second certified

question regarding the scope of the easement. We initially

determine whether the express language of the deed limits

the available uses of the right-of-way. After that

determination, we consider the extent to which Maryland

common law on railroad easements: imposes any implied

limits on use of the right-of-way that would [**33] prevent

the right-of-way in the instant case from being used for a

hiker/biker trail. This part then concludes with an

examination of whether the use of the right-of-way for a

hiker/biker trail unreasonably increases the burden of the

easement on the servient estates.

the Federal Circuit Court of Appeals; however, under its rules, that court

will not entertain arguments not raised below. See Jay v. Secretary of

DHHS, 998 F.2d 979, 983 n.4 (Fed Cir. 1993). Therefore, even if we

were to entertain the Club’s contention, that court nevertheless properly

may refuse to consider that aspect of our decision in resolving the

ultimate question of whether an unconstitutional taking occurred.

Moreover, the certified questions to this Court do not seek an

interpretation of the 1909 deed to the Country Club.

Furthermore, even if we were to entertain the Country Club’s

contention, the Country Club would face a difficult if not insurmountable

hurdle in attempting to overcome the fact that the deed under which it

claims title contains a metes and bounds description of the land that does

not include any portions of the right-of-way at issue here. Even if we

agreed with its contention, the Country Club’s claim would ultimately be

unsuccessful because our conclusions in Parts II and IV that the trail use

is within the scope of the easement which has not been abandoned.

We therefore decline to exercise our discretion under Maryland

Code (1974, 1998 Repl. Vol.), Courts & Judicial Proceedings Article, §

12-604, to rephrase the certified question to entertain the Country Club’s

argument that the 1909 deed conveyed to it a portion of the right-of-way

in fee simple absolute.

39

A. Interpretation of the 1911 Deed

Appellants contend that the proposed interim use of the

right-of-way as a hiker/biker trail is beyond the scope of the

casement. Instead of the language of the deed, appellants

emphasize the circumstances at the time of the original

agreement between the railroad and the land company in

1891, contending that the “evidence is clear” that the land

company intended that the easement was for purposes of

freight railroad only. The land company cites the Brooke and

D.C. Transit I decisions as support for its view that when a

right-of-way is conveyed to a railroad, it is ipso facto

restricted to railroad uses. Appellees, on the other hand,

emphasize the deed itself, which contains no express

limitations on the right-of-way conveyed. They contend that

the easement was for a right-of-way to be used for general

transportation purposes and that its use as a recreational trail

is consistent with those purposes and imposes no additional

burden on the servient estates.

We agree with appellees that the primary consideration in

construing the scope of an express easement is the language

of the grant. “[T]Jhe extent of the rights [of an easement

acquired by express grant] must necessarily depend upon a

Proper construction of the conveyance or that part of it by

which the easement was created.” Parker v. T & C Dev.

[**34] Corp., 281 Md. 704, 709, 381 A.2d 679, 682

(1978)(quoting Buckler, 221 Md. at 537, 158 A.2d at 322).

See also Reid v. Washington Gas Lt. Co., 232 Md. 545, 549,

194 A.2d 636, 638 (1963)(stating that the “scope of the

easement is to be determined from the language of the

grant”); 4 POWELL ON REAL PROPERTY § 34.12[2], at 34-178

(1998 Supp.)(observing that courts interpreting easements

conveyed by express grant “stress the primary control

exercised by the language of the creating conveyance”

(footnote omitted)).

40

No language in the deed in the instant case suggests that

the right-of-way was limited to railroad purposes only (and

much less so to freight railroad purposes, as the land

company contends). The deed conveyed a “free and

perpetual right of way.” The use of the terms “free” and

“perpetual” provide a clear indication that few, if any,

conditions were intended to be placed on the railroad’s use of

the right-of-way. “[F]ree” is defined as “[nJot [being] subject

to [the] legal constraint of another.” BLACK’s LAW

DICTIONARY 663 (6th ed. 1990). The use of the term

“perpetual” clearly indicates that the easement was intended

to be of indefinite duration and, particularly when combined

with the term “free,” suggests that the use of the easement

was to be dynamic, ie, adaptable to the evolving

circumstances and transit needs of those intended to benefit

from the right-of-way — in particular the general public

whom the land company was attempting to attract to the

areas served by the railroad. The language making the

easement transferable to “successors and assigns” further

supports a broad construction of the deed language.

Unlike many of the grants of easements that we have

addressed in the past, the deed [**35] in the instant case

does not suggest any limit on the use of the right-of-way. It

is clear that a right of passage was granted, and, as noted

above in Part II.C.3, the circumstances clearly indicate that

the original instrumentality was a railroad. But nowhere in

the granting clause or elsewhere in the deed does the

language suggest that a railroad was the only instrumentality

for use of the perpetual right-of-way. For example, nowhere

does language “for railroad purposes” appear, and there are

no other express limitations on the use of the right-of-way.

Cf. Brooke, 244 Md. at 294, 223 A.2d at 603 (concluding

that deed language “for railroad purposes” limits scope of

right-of-way). Even if we consider the 1891 agreement to

41

convey the right-of-way to the railroad, that agreement

includes no express limitations; it states only that the

agreement was made “in contemplatlion of] the construction

of a line of road ... to traverse the property” of the land

company. As the Minnesota Supreme Court observed in

addressing the scope of an easement granted to a railroad:

“[NJone of the deeds expressly limit the easement to

railroad purposes, provide that the interest conveyed

terminates if use for railroad Purposes ceases, or provide

that the easement would exist only for so long as the

right-of-way was used for railroad purposes. While the

grantors were undoubtedly aware that a railroad would be

constructed on the land, none of the deeds limit the use to

railroad purposes.”

State by Wash. Wildlife Preservation y. State, 329 N.W.2d

543, 546 (Minn.), cert. denied 463 U.S. 1209, 103 S.Ct.

3540, 77 L.Ed.2d 1390 (1983). In sum, it seems

undisputable that the deed Sweeps broadly by conveying an

interest that is “free and perpetual” and making [**36] it

freely transferable to “successors and assigns.”

While the deed presents no express limitations on the use

of the right-of-way, that does not end our analysis. Keeping

in mind the broad language in the grant, we must determine

whether the appellees have the right to substitute, at least for

the interim, the use of the right-of-way as a recreational trail

for the previous use of the right-of-way as a railroad corridor.

We must consider whether the use of the right-of-way as a

hiker/biker trail is of the same quality of use as anticipated in

the original grant and whether it imposes any unreasonable

new burdens on the dominant tenement. Before analyzing

those questions, we note that because of the broad language

of the grant any doubts about its use will be resolved in favor

of the grantee, i.e., the railroad:

42

“If the grant contains no limitations, the court will

attempt to discern what the parties would have reasonably

expected, and will usually be generous in its

interpretation. The language of the easement can grant to

the easement holder a good deal of discretion in the use

of the easement or limit the use very narrowly; if the

grant is not clear, the court will interpret the scope of the

easement in favor of ‘free and untrammeled use of the

land.”” (Footnotes and citations omitted).

7 THOMPSON ON REAL PROPERTY § 60.04(a), at 451 (Thomas

ed.1994). See also Washington Gas Lt. Co., 232 Md. at 549,

194 A.2d at 638 (“[T]he scope of the easement is to be

determined from the language of the grant and any doubtful

language must be resolved in favor of the grantee.”).’

? We disagree with the land company that our decisions in East

Wash. Railway v. Brooke, 244 Md. 287, 223 A.2d 599 (1966), D. C

Transit Systems v. S. R. C., 259 Md. 675 270 A.2d 793 (1970\D.C.

Transit J) and D. C. Transit v. State Rds. Comm'n, 265 Md. 622, 290

A.2d 807 (1972\D.C. Transit IJ), that hold that the conveyance of a

“right of way” to a railroad automatically indicates that the easement is

restricted to railroad purposes only. In Brooke, in quoting the granting

clause we emphasized (by use of italics) the language “for railroad

purposes.” 244 Md. at 294, 223 A.2d at 603. The deed in the instant

case includes no such limiting language. Moreover, the issue decided in

that case was not related to the scope of the easement, but whether a fee

simple or an easement had been conveyed. In D.C. Transit / and D.C.

Transit II the scope of the casement was not at issue. Rather, D.C.

Transit I raised the issue of whether a grant to a railroad conveyed a fee

simple or easement in the land, and D.C. Transit I] involved whether the

easement had been abandoned. While there is some language observing

that the use of the easement was for a railroad, whether the use was so

limited was not raised. Regardless, the deed in issue in the D.C. Transit

cases expressly limited the easement to the purposes of the railroad’s

charter. We therefore disagree with the land company as to the

applicability of these cases.

43

[**37] B. Public Transit Use of the Right-of-Way

We have long accepted the view that railroads are public

service corporations. Whalen vs. Balto. & Ohio R. Co., 108

Md. 11, 21, 69 A. 390, 393 (1908). See also Ma. & Pa. RR.

Co., 224 Md. at 39, 166 A.2d at 250 (referring to a railroad

as a “quasi-public corporation”); Read v. Montgomery

County, 101 Md. App. 62, 68, 643 A.2d 476, 479 (observing

that railroads operating the Georgetown Branch “function[]

to promote the public welfare”), cert. denied, 336 Md. 301,

648 A.2d 203 (1994). In Whalen, we accepted the notion

that a railroad is “‘obliged to use its powers and privileges

for the benefit of the public, and in aid of the public good.’”

108 Md. at 21, 69 A. at 393 (quoting the appellant’s brief).

Indeed, as the CFC acknowledged, the statutes in place at the

time of the conveyance did not restrict railroad corporations

to conducting rail service only. See Chevy Chase Land Co.

of Montgomery, 37 Fed. Cl. at 585-86. For example,

Maryland law empowered the legislature to “regulate,

modify or change the control, use and estate of any rail road

[**38] constructed by such corporation, in such manner as it

may deem equitable towards the said corporation and

mecessary to the accommodation of the public travel or use

of the said rail road or rail roads.” Md. Code (1860),

Corporations Art., § 71 (emphasis added). See also Chapter

231 § 1 of the Act of 1882 (authorizing railroad to engage in

telegraph business); Ch. 279 of the Acts of 1880 (railroad

authorized to operate other railroads and works facilitating

commerce). Because the public nature of the railroad

busimess was obvious at the time of the 1911 deed, we must

assume that the land company knew that its grant was subject

to reasonable accommodations for the public use and that, if

it wanted to limit the uses of the right-of-way to rail use

only, it would have included appropriate limiting language in

its deed.

44

We have long considered a railroad line as analogous to a

public highway. Whalen, 108 Md. at 21, 69 A. at 393 (“A

railroad is in many essential respects a public highway, and

the rules of law applicable to one are generally applicable to

the other.”); Hessey v. Capital Transit Co., 193 Md. 265,

272, 66 A.2d 787, 790 (1949)(observing that “a railroad

company, organized and conducted for private corporate

profit, ... devot[es] its property to the use of the public”).

Just like highways, railroad lines are subject to public use as

is evidenced by their common carrier obligations. And

railroads historically have had the power of eminent domain,

a power reserved only to the government and those the

government has annointed. Thus, our cases interpreting the

scope of public highways provide a solid framework upon

which to construe the grant of a general use “right-of-way”

[**39] to a railroad.

Our highway cases have construed easements for public

highways as including within their scope changing means of

transportation. In Water Co. vs. Dubreuil, 105 Md. 424, 66

A. 439 (1907), we explained that

“we have been governed by the fact that such [electric

railway] uses, of both streets and rural highways, were

only new modes of travel and transportation, and the

right, originally acquired, to use them was not simply for

the then existing modes, but for all such as might arise in

the ordinary course of improvement. It could therefore be

presumed that such improved modes of travel and

transportation were within the contemplation of the

parties...”

105 Md. at 431, 66 A. at 441. About a decade earlier, in

Poole vs. Falls Road Ry. Co., 88 Md. 533, 41 A. 1069

(1898), we noted that the purpose of a highway easement is

for “passing and repassing” and only when a use is “not

incident to such right of passage” does it create an additional

45

servitude. 88 Md. at 537, 41 A. at 1071. We therefore

concluded that the

“test ... of what is a new use would seem to be found not

necessarily in the nature of the structure nor in the

number of the tracks but in the use itself; whether it is

promotive of the objects and purposes for which the

easement in the public was acquired.”

Id. See also 5 RESTATEMENT OF PROPERTY § 484 (1944)(“In

ascertaining ... whether additional or different uses of the

servient tenement required by changes in the character of the

use of the dominant tenement are permitted, the interpreter is

warranted in assuming that the parties to the conveyance

contemplated a normal development of the use of the

dominant [**40] tenement.”).

The early decisions of this state adhere to the view that

the purpose for which the public easement was acquired is

the overriding factor in the analysis rather than the mode or

instrumentality of use. In Peddicord v. B,C & EM R.R.

Co., 34 Md. 463 (1871), we held that a right-of-way

conveyed to a tumpike company could be used for a horse

railway for passengers even though “it was not actually

contemplated by any of the parties to the acquisition and

grant.” 34 Md. at 480-81. We recognized that the turnpike

company had a perpetual easement over the highway, lasting

“forever,” and we observed that its conversion to a horse

railway was an appropriate improvement “consistent with its

character and purpose as a public highway.” Jd. Further, we

concluded that the conversion to horse railway did not cause

an additional burden on the land or operate to impair the

incidental rights of the dominant tenement. Jd. See also

Hodges v. Balto. Union P. Ry. Co., 58 Md. 603, 619

(1882)(similarly holding that a “horse railway is but one of

the legitimate contingencies within the objects and purposes

for which the street was dedicated to the public”). In Koch v.

OSI NAINA OSS ts sa tome nee nae emcee cmon eit

46

North Ave. R. R. Co., 75 Md. 222, 23 A. 463 (1892) and

Green v. City & Suburban R.R. Co., 78 Md. 294, 28 A. 626

(1894), we extended the holdings in Hodges and Peddicord

to electric railways, concluding that electricity was a normal

development consistent with the purpose of public travel.

See also Lonaconing Ry. Co. vs. Consol. Coal Co., 95 Md.

630, 53 A. 420 (1902)(holding that the owner of the fee of a

country road was not entitled to an injunction to prevent the

building of an electric railway in the county [**41] because

it was not an additional servitude). |

In this regard, the law in Maryland is consistent with the

law of other jurisdictions that recognize the public attributes

of railroad lines. As the West Virginia Supreme Court of

Appeals has observed, ‘

“railroads are not viewed strictly as private corporations

since they are publicly regulated common carriers.

‘* Essentially, a railroad is a highway dedicated to the

public use. This dedication imports to the railroad the

status of a quasi-public corporation. Eckington &

Soldier’s Home R. Co. v. McDevitt, 191 U.S. 103, 24

S.Ct. 36, 48 L.Ed. 112 (1903); United States v.

Trans-Missouri Freight Asscc., 166 U.S. 290, 17 S.Ct.

540, 41 L.Ed. 1007 (1897). As such, the rights and duties

of a railroad are in most instances determined-by constant

consultation with the public interest.”

Marthens v. B & O Railroad Co, 289 S.E.2d 706, 711 (W.

Va. 1982). See also State by Wash. Wildlife Preservation,

329 N.W.2d at 546 (quoting Marhens); Lawson v. State, 730

P.2d 1308, 1311 (Wash. 1986)(‘TR]ailroads must hold their

property in trust for the public ise.”); id. (“A railroad is a

public highway, created for public purposes.”); Faus v. City

of Los Angeles, 431 P.2d 849, 86 (Cal. 1967)(holding that

right of way “primarily intended to provide public

47

transportation” that was initially used for electric railroad

could be converted to motor bus transportation).

C. Compatibility of Trail Use with Prior Uses |

As discussed above, the Starting point for determining

whether the current use of the Georgetown Branch as a

hiker/biker trail is compatible with its prior use is the deed

itself. [**42] The phrase “right-of-way” as used in the

context of the grant is a “right belonging to a party to pass

over land of another.” BLACK’s LAW DICTIONARY 1326 (6th

ed. 1990). Since the deed contains no limits on the use of the

right-of-way, we apply the rule that “[a] grant in general

terms of an easement of way will ordinarily be construed as

creating a general right of way capable of use in connection

with the dominant tenement for all reasonable purposes.” 3

HERBERT THORNDIKE TIFFANY, THE LAW OF REAL PROPERTY

§ 803, at 322 (3d ed. 1939)(footnote Omitted).

We believe it indisputable that use of the right-of-way as

a trail is consistent with its essential nature relating to the

“pass[ing] over land of another” and is a reasonable use of a

general right of way. Accordingly, the scope of the

right-of-way in the instant case encompasses use as a

hiker/biker trail. It follows from our cases that the fact that a

recreational trail may not have been actually contemplated

by the parties when the deed was conveyed in 1911 is not

outcome determinative. Rather, we assume that the parties

anticipated that the use of the right-of-way would conform

over time to the reasonable demands of the public. Just like

the highway easement in Peddicord lasted “forever,” the

deed in this case was made “perpetual,” and although use as

a hiker/biker trail “was not actually contemplated by any of

the parties to the acquisition and grant, ... it may be said to

have been within the legal contemplation of all that it was to

be used for all purposes by which the object of its creation,

as a public highway, could be promoted.” Peddicord, 34

\

rect

48

Md. at 480-81. In other words, the use of the right-of-way as

a public trail was legally [**43] contemplated by the parties

to the 1911 deed and is of the same nature as the public

railway in existence for some 90 years, i.e., the use involves

the passage over land consistent with the needs of the public.

The 1891 contract and 1911 deed both clearly anticipated

that the right-of-way would be put to use for public

transportation, as evidenced by the plans to build a

“passenger station” (the 1911 deed) or a “freight and

passenger depot” (the 1891 agreement).

Use of the right-of-way as a hiker/biker trail constitutes a

change in instrumentality consistent with the essential

purpose anticipated at the time of the original grant in 1911

— passage through Silver Spring, Chevy Chase, and

Bethesda. The primary change is one of instrumentality

from railcars to bikes and walking, and our highway cases

make clear that changes in mode of use are presumed to be

within the contemplation of the parties. Indeed, the state

legislature has seen fit to define “highway” as including

“bicycle and walking paths.” Md. Code (1977, 1993 Repl.

Vol., 1998 Supp.), Transportation Art., § 8-101(i)(1). See

also the cases cited in Part III.B., supra, and Washington Gas

Lt. Co., 232 Md. at 551, 194 A.2d at 639 (holding that the

replacement of an existing pipe to a larger pipe was within

the scope of the easement because the change “involved

merely an alteration of the instrumentality of the

easement”)(emphasis in original); Tong v. Feldman, 152 Md.

398, 136 A. 822 (1927)(similar holding). As the South

Dakota Supreme Court stated, “the Railroad has transferred

the right-of-way to the State for use as a public highway.

Hikers, bikers, skiers, and snowmobilers will use the

right-of-way, and, as such, the right-of-way will [**44]

continue to be used as a public highway compatible and

consistent with its prior use as a public railway.” Barney v.

a5

Burlington Northern R. Co., 490 N.W.2d 726, 732 (S.D.

1992), cert. denied sub nom. Kaubisch v. South Dakota, 507

U.S. 914, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993).

D. The Reasonableness of the Burden

We must next consider whetheruse of the right-of-way

as a hiker/biker trail unreasonably increases the burden on

the underlying fee simple estates. It is “the generally

accepted rule that since an easement is a restriction upon the

rights of the servient Property owner, no alteration can be

made by the owner of the dominant estate which would

increase such restriction except by mutual consent of both

parties.” Washington Gas Lt. Co., 232 Md. at 548-49, 194

A.2d at 638. See also W. Arlington L. Co. v. Flannery, 115

Md. 274, 279, 80 A. 965, 967 (1911)(“[BJecause an

easement is a restriction upon the rights of property of the

owner of the servient estate ... no alteration can be made by

the owner of the dominant estate, which would be to increase

such restriction.”). As we explained in Washington Gas Lt.

Co., the test used to determine whether the restriction on the

servient estate, i.e., the burden imposed, is

“whether the change is so substantial as to result in the

creation and substitution of a different servitude from that

which previously existed. In other words, if the alteration

is merely one of quality and not substance there will be

no resulting surcharge to the servient estate.” (Citation

Omitted).

[**45] Washington Gas Lt. Co., 232 Md. at 549, 194 A.2d at

638.

It is self-evident that the use of the right-of-way as a

transportation corridor for walking, biking, and other

transportation purposes, including its possible use in the

future for light rail, imposes no new burdens on the servient

tenements and does not result in the “substitution of a

50

different servitude from that which previously existed.” Jd.

The use to which the County proposes to use the

right-of-way is reasonable and consistent with a grant of a

right-of-way “in general terms.” See 3 HERBERT THORNDIKE

TIFFANY, THE LAW OF REAL PROPERTY § 803, at 322 (3d ed.

1939). Indeed, “[rJjecreational trail use of the land is

compatible and consistent with its prior use as a rail line, and

imposes no greater burden on the servient estates.” State by

Wash. Wildlife Preservation, 329 N.W.2d at 547.

In comparison to our public highway cases that have

permitted a change in use from a highway to a horse or an

electric railway, the change of use proposed in the instant

case is considerably less burdensome. That use of the right-

of-way by bikers and walkers poses less of a burden than the

use required by a freight train is obvious. Bikers and

walkers, even in large groups, simply cannot be said to be

more burdensome than locomotive engines pulling truck-

sized railroad cars through the corridor. “The legitimate

burden presented by frequent, loud, and even dangerous,

railroad use far outstrips any burden presented by foot or

bicycle traffic.” Lawson, 730 P.2d at 1320 (Utter, J.,

dissenting). See also Barney, 490 N.W.2d at 733 (observing

that conversion from railway to recreational trail poses “[n]jo

greater burden ... on the servient estate.”) Moreover, the

conversion from a railway to a trail [**46] is consistent with

the general rule of property law that easements are

non-exclusive. Wagner v. Doehring, 315 Md. 97, 104, 553

A.2d 684, 687 (1989)(“[T]he holder of a right-of-way does

not ordinarily have exclusive use of the way.”). On the other

hand, an easement held by a railroad tends to exclude use of

the easement by the owner of the servient tenement. See,

e.g., State v. Preseault, 652 A.2d 1001, 1003 (Vt.

1994)(“[Tjhe holder of a railroad easement enjoys the right

to the exclusive occupancy of the land, and has the right to

51.

exclude all concurrent Occupancy in any mode and for any

purpose.”); State ex rel. Fogle v. Richley, 378 N.E.2d 472,

475 (1978)(“There can be no greater burden upon property

than that which results from [a railroad’s] appropriation of a

right to exclusive use.”); Missouri-Kansas-Texas Railroad

Company v. Freer, 321 S.W.2d 731, 737 (Mo. Ct. App.

1958)(“[S]omewhat as a matter of public policy, the holder

of a railway right of way easement can ... exclude the owner

of the servient tenement.”)(footnote omitted). Thus, the

change in use in this case actually decreases the burden on

the servient tenement because, inter alia, the shift is from an

exclusive to a non-exclusive use. In this case, the owners of

the underlying fee estates with property abutting the

Georgetown Branch have access to a corridor to which they

did not have access prior to conversion to a trail. See also

Marc A. Sennewald, The Nexus of Federal and State Law in

Railroad Abandonments, 51 VAND. L. REV. 1399, 1411

(1998)(observing that railroad right-of-ways are “exclusive

use easement|s]” and that “railroad easements are among the

most burdensome of easements, especially as compared to

easements used for interim recreational trails”); Charles H.

[**47] Montange, Conserving Rail Corridors, 9 TEMP

ENVTL. L. & TECH. J. 139, 158 (1991)(contending that the

shift in use “from a burdensome form of public highway —

rail — into a less burdensome form — trail” is “de

minimis” footnote omitted).

The fact that the right-of-way may be used for

recreational as well as transportation purposes has no bearing

on our analysis, since the “recreation” involved — biking

and hiking — consists of the enjoyment one may have in

transporting oneself. See WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 2430 (Unabridged _ed.,

1986)(defining “transportation” as involving “travel from

one place to another”). Indeed, that hiking and biking may

52

be recreational in addition to fulfilling transportation needs is

not all that different from the enjoyment that some derive

from driving a car or even riding a train; the enjoyment that

some derive from those activities does not detract from their

essential character as transportation-related. Indeed, by the

very nature of the right-of-way — a confined, narrow strip of

land — the “recreational” se is limited to those uses

involving transportation itself, including biking, running,

and walking, each of which involves moving from one place

to another. Cf D.C. Transit I, 259 Md. at 688, 270 A.2d at

800 (observing that the useful purpose of “a strip of land 80

feet wide” is limited); Ma. & Pa. RR., 224 Md. at 36-37, 166

A.2d at 248-50 (making a similar observation).

E. Conclusion

The right-of-way in the instant case is affected by the

public interest. That railroad [**48] companies are in the

nature public service corporations has been a constant theme

of statutory and case law, and we have recognized the public

nature of such easements in our jurisprudence regarding the

scope of public easements well before the conveyance of the

deed in the instant case. See Part III.B., supra. The public

policies have been evidenced by the comprehensive federal

regulatory scheme that governs many aspects of the railroad

business (see Part IV. A.2, infra), by a railroad’s status as a

common carrier, and by state regulation, even at the time the

right-of-way was deeded to the railroad in this case. See

generally Bensen vs. Public Service Comm., 141 Md. 398,

118 A. 852 (1922).

Federal and state laws explicitly recognize the value to

the general public of railroad rights-of-way. The federal

Rails-to-Trails Act, which serves as the impetus for this

lawsuit, is an obvious example of the perceived public value

of railroad corridors. See 16 U.S.C. § 1247(d); Preseault,

494 US. at 18, 110 S.Ct. at 925, 108 L.Ed.2d at 17 (quoting

53

H.R. REP. ‘No. 98-28, at 8 (1983)(upholding the Act as a

legitimate exercise of congressional power and observing

that “Congress intended ‘to preserve established railroad

rights-of-way for future reactivation of rail service, to protect

rail transportation corridors, and to encourage energy

efficient transportation use”). The Maryland legislature has

also recognized the public value of railroad rights-of-way.

See Md. Code (1974, 1997 Repl. Vol.) Natural Resources

Art., § 5-1010(a)(2)(“Abandoned railroad corridor property

is a unique source of land corridors that are, in many cases,

suitable for recreational trails.”); Md. Code (1977, 1993

Repl. Vol.), Transportation Art., § 7-901 (authorizing the

State to acquire railroad [**49] corridor property). Thus, our

holding furthers, rather than frustrates, legitimate state and

federal policy interests.

Our conclusion here also is consistent with the decisions

of courts in other states that have held that trail use falls

within the scope of the right-of-way conveyed to the railroad.

As the Supreme Court observed in Preseault, some rights of

way “are held as easements that do not even as a matter of

State law revert upon interim use as nature trails.” 494 U.S.

at 16, 110 S.Ct. at 924, 108 L.Ed.2d at 16 (citation omitted).

For example, in State by Wash. Wildlife Preservation, supra,

the Minnesota Supreme Court construed a grant of a

right-of-way to a railroad that included no express

limitations. The court concluded that “[ujse of the

right-of-way as a recreational trail is consistent with the

purpose for which the easement was Originally acquired,

public travel, and it imposes no additional burden on the

servient estates.” 329 N.W.2d at 545. See also Barney, 490

N.W.2d at 732-33 (similar holding).

A different outcome was reached by the Supreme Court

of Washington in Lawson, supra. That court held that a

right-of-way conveyed to a railroad reverted to the fee

54

owners when it was conveyed to the local government for

use as a recreational trail. The Lawson court’s decision,

however, turned on its acceptance of the deeds at issue as

being expressly limited to “railroad purposes only.” 730

P.2d at 1312. That court stated: “[W]e hold that a change in

use from ‘rails to trails’ constitutes abandonment of an

easement which was granted for railroad purposes only.”

Lawson, 730 P.2d at 1313 (emphasis added). While [**50]

appellants allege that the right-of-way in the instant case was

for railroad purposes only, as discussed above, the language

of the deed simply provides no support for its contention.

The deed in this case is similar to the deed construed in State

by Wash. Wildlife Preservation, supra, and therefore that

case provides the more persuasive authority.

In sum, the deed in this case conveyed the general use of

a right-of-way. The grantee railroad is obligated under

statutory and common law to operate and use its assets for

the furtherance of the general public welfare. This obligation

runs to its rail corridors, which, in effect, are public |

highways that must conform in their use to new modes of

transportation so long as they are reasonable and are no more

burdensome to the servient estate. Finally, the conversion of

a railway used for freight to a footpath is consistent and

compatible with the prior railway use. As the Minnesota

Supreme Court stated:

“The right-of-way is still being used as a right-of-way for

transportation even though abandoned as a railroad

right-of- way. Recreational trail use of the land is

compatible and consistent with its prior use as a rail line,

and imposes no greater burden on the servient estates.

The use is a public use, which is consistent with the

purpose for which the easement was originally acquired.

State and federal statutes encouraging the conversion of

55

railroad rights-of-way to recreation trails also support our

holding.”

State by Wash. Wildlife Preservation, 329 N.W.2d at 547.

7 IV. ABANDONMENT

The final issue we address is the certified question

regarding whether the railroad’s [**51] easement has been

abandoned. We initially observe that appellants’ arguments

on abandonment appear to be predicated on their contention

that the scope of the easement was for railroad purposes.

The Country Club contends, for example, that various facts

show “that the Railroad was not going to be using this

property for railroad purposes again.” (Emphasis added).

Along the same lines, the land company contends that the

railroad “had no intent to continue railroad use.” (Emphasis

added). These arguments of the appellants in part reflect the

overlapping nature of the questions of scope and

abandonment. As we stated in Peck v. Baltimore County,

286 Md. 368, 410 A.2d 7 (1979):

“The use to which the County proposes to put the land in

question is relevant to whether it has an intention to

abandon. If it were to be found that the contemplated use

were within the scope of the easement this could be

evidence of a lack of intention to abandon. If the

contemplated use were not within the scope of the

easement, then unless it be found that some other

permitted use is being made, it is possible that an

intention to abandon might be found, although if the

contemplated use is found not to be within the scope of

the easement this would not necessarily establish an

intention to abandon.” (Emphasis in original).

286 Md. at 377-78, 410 A.2d at 11.

56

As Peck suggests, in the instant case if the scope of the

easement were limited to railroad purposes, then an intent to

abandon railroad use could indicate an intent to abandon the

easement. However, the converse is also true. If the

easement is not limited in its scope to railroad purposes,

then, in order for there to be an abandonment, the party

alleging abandonment must show more than an intent to

abandon railroad service. In Ma. & Pa. RR. [**52] Co., we

addressed whether an easement held by a railroad had been

abandoned and explained:

“The general rule is that the right and title to a mere

easement in land acquired by a quasi-public corporation,

either by purchase, condemnation or prescription, for a

public purpose is dependent upon the continued use of the

property for that purpose, and when such public use is

abandoned the right to hold the land ceases, and the

property reverts to its original owner or his successors in

title.” (Emphasis in original and added).

224 Md. at 39, 166 A.2d at 250.

Since we have held that the scope of the easement

permits use of the right-of-way as a trail, the facts indicating

that the railroad did not intend to resume rail service prove

unhelpful to appellants’ abandonment arguments. We held

-. in Part II that the trail use, in the words of Ma. & Pa. RR.

Co., is a “continued use of the property for th{e] purpose” for

which it was conveyed, i.e., transit uses. Jd. To the extent

that appellants’ abandonment arguments rest on their

contention that the scope of the easement is limited to

railroad purposes, they fail to meet their burden of proving

abandonment.

Nevertheless, we will assume, arguendo, that appellants’

allegations that the right-of-way has been abandoned does

not hinge upon the issue of the scope of the easement. We

57

therefore begin with an examination of Maryland law on

easement abandonment and a description of the federal

regulatory scheme, which is crucial to an understanding of

the various actions the railroad took in the years immediately

preceding its [**53] conveyance to the County.

A. State Law “Abandonment” Versus

Regulatory “Abandonment”

# :

In Vogler v. Geiss, 51 Md. 407 (1879), our predecessors

set forth the standard by which to measure whether an

easement has been abandoned. In that case, we said:

“It is now very well settled, by authorities of the highest

character, that a party entitled to a right of way or other

mere easement in the land of another may abandon and

extinguish such right by acts in pais, and without deed or

other writing. The act or acts relied on, however, to

effect such result, must be of a decisive character; and

while a mere declaration of an intention to abandon will

not alone be sufficient, the question, whether the act of

the party entitled to the easement amounts to an

abandonment or not, depends upon the intention with

which it was done, and that is a subject for the

consideration of the jury. A cesser of the use, coupled

with any act clearly indicative of an intention to abandon

the right, would have the same effect as an express

release of the easement, without any reference whatever

to time.” (Emphasis in original and citations omitted).

Vogler, 51 Md. at 410. See also D. C. Transit v. State Rds.

Comm'n, 265 Md. 622, 627, 290 A.2d 807, 810 (1972)(D.C.

Transit I1)(“The rule of Vogler has been approved and

followed.”); Brooke, supra; 1.44 Acres of Land, 304 F. Supp.

at 1069 (quoting Vogler).

58

Since there is rarely direct evidence of an intent to

abandon, the question of abandonment hinges upon the

manifestations (or lack thereof) of an intent to abandon, and

“the issue in most cases is reduced to the question of what

factors or circumstances are [**54] sufficient to justify an

inference that there existed an intent to abandon.” What

constitutes abandonment of a railroad right of way, 95

A.L.R.2d 468, § 2, at 470 (1964). No single factor is usually

sufficient to establish the inference of abandonment. Jd.

Rather, Vogler and its progeny make clear that non-use alone

is insufficient to show an intent to abandon; there must be an

act or a combination of acts that unequivocally demonstrate

an intention to abandon. See Shuggars v. Brake, 248 Md. 38,

46, 234 A.2d 752, 758 (1967)(“An easement may not be lost

unless there is some act clearly and unequivocally indicating

an intention to abandon it, and mere non-user is not

enough.”); Cooper v. Sanford Land Co., 224 Md. 263, 266,

167 A.2d 602, 604 (1961)(“[T]wo elements are necessary to

show an abandonment, namely, an intention to abandon, and

an overt act, or an omission to act, by which such intention is

carnied into effect.”); Ma. & Pa. RR. Co., 224 Md. at 40, 166

A.2d at 250 (“[T]he law is well settled that the intent to

abandon may be shown by the acts of a party indicating such

an intention.”); Klein v. Dove, 205 Md. 285, 295, 107 A.2d

82, 87 (1954), citing Lichtenberg v. Sachs, 200 Md. 145,

156, 88 A.2d 450, 455 (“Mere non-user of a right of way is

not necessarily an abandonment of it.”); Knotts v. Summit

Park Co., 146 Md. 234, 240, 126 A. 280, 282

(1924)(“[W]here a right of way is acquired by grant, as in

this case, it cannot be lost by mere non-user, for however

long a time, unless such non-user is accompanied by some

act indicating clearly and unequivocally an intention of the

grantee to abandon it.”); Green v. Pennsylvania R. Co., 141

Md. 128, 132, 118 A. 127, 128 (1922)(“Intention is an

- essential element of abandonment.”); Canton Co. vs. Balto.

Sea ch abad, acai feats PAR OM FEM ERTY

ere en aaa

:

& S

3

59

& Ohio [**55] R. Co., 99 Md. 202, 218, 57 A. 637, 638-39

(1904)(observing that nonuse “will not per se operate as

abandonment, unless there is some decided and unequivocal

act of the owner inconsistent with the continued existence of

the easement’); Glenn v. Davis, 35 Md. 208, 217

(1872)(“Unquestionably, the law is well settled that an

easement may be abandoned by the acts of a party indicating

such an intention.”).*

Finally, while the determination turns on the acts of the

holder of the easement indicating an intention to abandon, it

is well-settled that “the burden of proving abandonment rests

on the one who asserts or relies on it.” Ma. & Pa. RR. Co.,

224 Mad. at 40, 166 A.2d at 250. See also D. C. Transit I,

259 Md. at 691, 270 A.2d at 801; Ayres v. Hellen, 235 Md.

258, 261, 201 A.2d 509, 510 (1964); Klein, 205 Md. at 295,

107 A.2d at 87.

* An easement obtained through prescriptive use, however, may be

abandoned through non-use alone, if the non-use lasts the prescriptive

period. See Browne v. M. E. Church, 37 Md. 108, 119 (1872)(“[Since]

the right ... had been acquired ... by adverse user, for twenty years[,] its

non-user for a like space of time, would extinguish any right they

acquired ... because such cesser to use the road, would afford legitimate

presumption of a release of the right.” (Emphasis in original.)); Wright

vs. Freeman, 5 H. & J. 467, 476-77 (1823)(“adversary user of a right of a

way over the lands of another for twenty years, shall be a sufficient

foundation to presume that the right originated in grant, it must follow,

upon every principle, that the non-user of the right may be

extinguished”); Cherry v. Stein, 11 Md. 1, 21-22 (1858)(discussing

holding in Wright vs. Freeman, supra, that “the adversary user of a right

of way over the lands of another for twenty years, would be a sufficient

foundation to presume, that the right originated in a grant; and

consequently, for the purpose of quieting possession, it must follow that

twenty years of non-user of the right would extinguish it, by creating a

presumption of its release.”).

60

In several of our previous cases, we have upheld findings

that an easement has been abandoned, concluding that the

necessary unequivocal acts were present. For example, in

[**56] Stewart vs. May, 119 Md. 10, 85 A. 957 (1912), we

affirmed a finding that an easement had been abandoned

when no use had been made of it for “at least twelve years”

and, among other factors, the holder of the easement “had

built over the [easement] in such way as to make it

impossible for them to enjoy [it].” 119 Md. at 19, 85 A. at

960. In Cityco Realty Co. v. Phila., B. & W. R. Co., 158 Md.

221, 148 A. 441 (1930), we concluded that an easement had

been abandoned in an action brought to compel the railroad

to construct and maintain a farm crossing that had not been

used for more than 20 years before the acquisition of land by

the plaintiff and where the land had been conveyed without

reservation. And in Hagerstown & F. Rwy. Co. vs. Grove,

141 Md. 143, 118 A. 167 (1922), we upheld a finding of

abandonment after a railroad had removed its tracks from the

right-of-way four years after it was constructed and after it

had begun using another route.

In deciding the certified question, we therefore must

decide whether there has been a sufficiently “decided and

unequivocal act of the owner inconsistent with the continued

existence of the easement.” Canton, 99 Md. at 218, 57 A. at

639. Before examining the facts to see if any one of them or

taken together they are sufficiently decisive to support a

finding of abandonment, it is necessary to review the federal

regulatory scheme under which the railroad operates.

2.

Interstate rail carriers have long been subject to

comprehensive federal regulation as [**57] common

carriers. See Chicago, R. I. & P. R. Co. v. Hardwick

Farmers Elev. Co., 226 U.S. 426, 433-35, 33 S.Ct. 174, 174-

75, 57 L.Ed. 284, 286-87 (1913). Under the Interstate

61

Commerce Act, the ICC’ oversees the common carrier

obligations of freight railroads operating in interstate

commerce. See 49 U.S.C. § 11101(a)(requiring railroads

subject to ICC. jurisdiction to “provide ... service on

reasonable request”). Furthermore, railroads subject to ICC

jurisdiction may construct or acquire new railroad lines only

if the ICC finds that public convenience and necessity

require or permit their acquisition or construction. 49 U.S.C.

§ 10901. Federal law also controls a railroad’s abandonment

of its railroad lines or the discontinuation of rail service over

any part of its lines. 49 U.S.C. § 10903 (requiring a railroad

to obtain a certificate- of abandonment or discontinuance

prior to taking either action). Permission for abandonment or

discontinuation also depends upon an ICC finding of “public

convenience and necessity.” 49 U.S.C. § 10903 (a)(2). The

ICC must deny the abandonment application if it “fails to

find public convenience and necessity.” 49 U.S.C. §

10903(b)(1)(B). In making a finding of public convenience

and necessity, the ICC must consider “whether the

abandonment or discontinuance will have a serious, adverse

impact on rural and community development.” 49 U.S.C. §

10903(a)(2). The Supreme Court has concluded that the

“public convenience and necessity” standard involves a

balancing test:

[**58]“The benefit to [the railroad] of the abandonment

{should be balanced] against the inconvenience and loss

to [the public]. Conversely, the benefits to particular

communities and commerce of continued operation must

° On January 1, 1996, the ICC ceased to exist and its duties were

transferred to the Surface Transportation Board (STB), in the Department

of Transportation. Act of Dec. 29, 1995, Pub. L. No. 104-88, 1995 -

U.S.C.C.A.N. (109 Stat.) 803. Since the “ICC Termination Act of 1995"

had not taken effect at the times relevant to this decision, we shall refer

only to the ICC, although the ICC’s powers now reside with the STB.

62

be weighed against the burden thereby imposed upon

other commerce.... Whatever the precise nature of these

conflicting needs, the determination is made upon a

balancing of the respective interests.... In that balancing,

the fact of demonstrated prejudice to interstate commerce

and the absence of earnings adequate to afford reasonable

compensation are, of course, relevant and may often be

controlling. But the [A]ct does not make issuance of the

[abandonment] certificate dependent upon a specific

finding to that effect.”

Colorado v. United States, 271 U.S. 153, 168-69, 46 S.Ct.

452, 456, 70 L.Ed. 878, 885-86 (1926). When the ICC

issues an order finding that public convenience and necessity

allow a carrier to abandon a line, that order is permissive, not

compulsory, and the railroad may choose not to exercise its

permission to abandon. See Consolidated Rail Corp. v.

Surface Transp. Bd., 93 F.3d 793, 797-99 (D.C. Cir. 1996).

Moreover, until abandonment has been consummated, the

ICC “may at any time on its own initiative” reconsider its

grant of permission to abandon if it finds “material error,

new evidence, or substantially changed circumstances.” 49

U.S.C. § 10327(g)(1).

Congress enacted the Rails-to-Trails Act in 1983 against

this background of federal regulation over the abandonment

of railroad rights-of-way. 16 U.S.C. § 1247(d). The

Rails-to-Trails Act amended the National Trails System Act

by adding to it subsection (d), which in essence provides a

third option for railroads in lieu of an application to either

abandon the line or discontinue service. That section

provides in pertinent part:

{**59]“{I}n furtherance of the national policy to preserve

established railroad rights-of-way for future reactivation

of rail service ... in the case of interim use of any

_ established railroad rights-of-way ... such interim use

63

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. If a State, political subdivision, or

qualified private organization is prepared to assume full

responsibility for management of such rights-of-way and

for any legal liability arising out of such transfer or use,

and for the payment of any and all taxes that may be

levied or assessed against such rights-of-way, then the

Commission shall impose such terms and conditions as a

requirement of any transfer or conveyance for interim use

in a manner consistent with this chapter, and shall not

permit abandonment or discontinuance inconsistent or

disruptive of such use.””"°

The Act was the “culmination of congressional efforts to

preserve shrinking rail trackage by converting unused

rights-of-way to recreational trails.” Preseault, 494 U.S. at

5, 110 S.Ct. at 918, 108 L.Ed.2d at 9. “Congress apparently

believed that every line is a potentially valuable national

asset that merits preservation even if no future rail use for it

is currently foreseeable.” Preseault, 494 U.S. at 19, 110

S.Ct. at 926, 108 L.Ed.2d at 18-19. The statute provides a

means by which railroads can escape from the economic

burden of maintaining unprofitable railroad lines without

loss of the right-of-way, while using those [**60]

'° The Fifth Amendment takings claim arises out of the 16 U.S.C. §

1247(d) language declaring that “interim use of any established railroad

rights-of-way ... 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.” In Preseault v. ICC, 494 U.S. 1, 16-17, 110 S.Ct. 914, 924,

108 L.Ed.2d 1, 17 (1990), the Supreme Court held that, if the interim

trail use agreement results in a taking of a state property interest, the

owner of the taken property has a claim under the Tucker Act, 28 U.S.C.

§ 1491(a)(1)(1994, Supp. II 1996). It is the Tucker Act claim that the

appellants are pursuing in this case.

64

rights-of-way for the public benefit in the interim. Potential

interim trail use is considered prior to abandonment of rail

lines, and if an agreement for interim trail use is

consummated, abandonment is foregone.

The rails-to-trails provisions are triggered only when the

railroad files an application with the ICC proposing to

abandon the line. See 49 C.F.R. § 1152.29 (requiring the

entity interested in acquiring the right-of-way to participate

when the rail line is “proposed to be abandoned”); Birt v.

Surface Transp. Bd., 90 F.3d 580, 581-82 (D.C. Cir.

1996)(observing that § 1247(d) may come into play when “a

railroad seek[s] to abandon a line’’). If the ICC finds the Act

applicable, it will delay the effective date of the

abandonment order pending negotiations between the

proposed trail sponsor and the railroad. 49 C.F.R. §

1152.29(c). The ICC issues a Certificate of Interim Trail

Use or Abandonment (CITU)" allowing the railroad to

negotiate an agreement with the public or private

organization willing to assume responsibility for the

right-of-way. The certificate may be issued only when the

circumstances are otherwise such that “the public

convenience and necessity ... permit abandonment.” 49

CFR. § 1152.29(b)(1)ii)(B).

If an agreement on trail use is reached with a state or

local government or private group, § 1247(d) treats the

interim trail use as a discontinuance of service, in which ICC

jurisdiction is preserved over the right-of-way, rather than an

abandonment that would [**61] terminate ICC jurisdiction

'' More accurately, the ICC will issue either a Notice of Interim

Trail Use (NITU) or a Certificate of Interim Trail Use or Abandonment

(CITU), depending on the nature of the abandonment proceedings; the

difference is not relevant for our purposes since their effect is the same.

In the instant case, the ICC issued a CITU.

65 —

and cause any right-of-way held as an easement to revert to

the owner of the underlying estate in fee simple. According

to federal regulations, the issuance of the CITU “[pjermit(s]

the railroad to discontinue service, cancel tariffs, and salvage

track and material consistent with interim trail use and rail

banking.” 49 C.F.R. § 1152.29(c)(1). Furthermore, “[tJhe

CITU will indicate that interim trail use is subject to future

restoration of rail service.” 49 C.F.R. § 1152.29(c)(2). In

several cases, the ICC has ordered that service be restored

over rail lines that had previously been converted to trails

under 16 U.S.C. § 1247(d). See Norfolk and Western

Railway Company — Abandonment between St. Marys and

Minster in Auglaize County, OH, 9 1.C.C.2d 1015, 1017

(1993); Missouri Pacific Railroad Company —

Abandonment Exemption — in St. Louis County, MO, Dkt.

No. AB-3 (Sub-No. 98X)(Surface Trans. Bd., April 18,

1997); Iowa Power, Inc. — Construction Exemption —

Council Bluffs, IA, 8 1.C.C.2d 858 (1990). Thus, during the

interim the rail corridor is held in a national “rail bank,” over

which federal regulators retain jurisdiction for the possibility

of future rail use.

In addition to the need to comply with federal laws and

regulations governing the cessation of railroad service and

the potential abandonment of railroad property, Maryland

law governs a railroad’s disposition of railroad corridor

property that has been abandoned pursuant to the ICC

process. Md. Code (1977, 1993 Repl. Vol.), Transportation

Art., § 7-901. Section 7-901 covers “any railroad property

owned or maintained by a railroad company ... [that] is or

was subject to the Interstate Commerce Commission’s _

abandonment [**62] process.” Section 7-901(c) requires a

railroad to notify the state of its intent to dispose of a

corridor. That provision states in pertinent part:

66

“(c) Notice of sale or disposition — Required. — If a

railroad company intends to sell or otherwise dispose of

any railroad corridor property that is located in this State

and for which the company has received permission from

the Interstate Commerce Commission or other

governmental agency with jurisdiction in the matter to

abandon transportation services, the company shall

notify the Secretary and the Administration of its intent to

sell or otherwise dispose of the property.” (Emphasis in

original and added).

The notification provisions of § 7-901 are intended to

facilitate the state’s acquisition of abandoned railroad

property. See § 7-901(b)(authorizing acquisition of railroad

corridor property). See also Md. Code (1974, 1997 Repl:

Vol.), Natural Resources Art., § 5-1010 (declaring Maryland

policy of preserving railroad corridors for trail use and

authorizing the Department of Natural Resources to acquire

rail corridors).

While we have never had to address whether notification

under § 7-901 is required when federal regulators certify a

rails-to-trails agreement (as opposed to authorizing

abandonment of the line), it would appear that the section is

inapplicable when a CITU is issued since a CITU is issued in

lieu of approval of abandonment. This interpretation of state

law is consistent with the ICC’s “exclusive and plenary”

jurisdiction over railroads up until the time when the ICC

approves of abandonment. See Chicago & N. W. Tr. Co. v.

Kalo Brick & Tile, 450 U.S. 311, 321, 101 S.Ct. 1124, 1132,

67 L.Ed.2d 258, 267 (1981). See also Preseault, 494 U.S. at

8, 110 S.Ct. at 920, 108 L.Ed.2d at 11. The notification

[**63] requirement is effective only after “the company has

received permission ... to abandon transportation services.”

Md. Code (1977, 1993 Repl. Vol.), Transportation Art., §

7-901(c). Presumably, this is because when the ICC

—

67

approves an abandonment petition, “as a general proposition

ICC jurisdiction terminates.” Preseault, 494 U.S. at 6 n.3,

110 S.Ct. at 918 n.3, 108 L.Ed.2d at 10 n.3. See also 54 Fed.

Reg. 8011-12 (1989). In other words, the Maryland statute

comes into play only when a railroad disposes of railroad

corridor property for which federal regulatory jurisdiction

has ceased; since ICC regulation continues after a CITU is

issued, § 7-901 would not be applicable under a rails-to-trails

agreement pursuant to 16 U.S.C. § 1247(d).

B. The Railroad’s Pursuit of Regulatory Abandonment

Turning to the instant case, we first note that the facts

alleged to support appellants’ contentions that the easement

conveyed by the 1911 deed has been abandoned relate

largely to actions taken by the railroad pursuant to the federal

regulatory scheme. The appellants emphasize that the

railroad’s intent to abandon the Georgetown Branch is

demonstrated by the following: the 90% decline in traffic

over the years 1969 to 1985; the posting of notices in 1983

declaring that an abandonment application would be filed

with the ICC within three years; the discontinuation of

service in 1985 due to the need for major repairs on the

trestle over Rock Creek after a storm; the B&O Executive

Committee’s vote to “abandon or discontinue service” over

the Georgetown Branch in 1985; and the filing of the

application [**64] for abandonment and discontinuance of

service on April 9, 1986.

The land company concludes on the basis of these facts

that

“(t]he undisputed evidence ... shows that [the railroad]

publicly stated its intention to abandon the Georgetown

Branch in 1983, that an internal decision to proceed with

abandonment was made in 1984, that the use of the right

of way was, in fact, terminated on May 10, 1985 and that

68

[the railroad’s] directors formally adopted a resolution of

abandonment on July 22, 1985, more than three years

before ... agree[ing] to give Montgomery County a

quitclaim deed.”

The land company concludes that abandonment occurred

in 1985 when service was discontinued because of the need

for major bridge repairs. The Country Club argues that the

easement “for railroad purposes” was abandoned by Apmil

1986 when the railroad filed its ICC application and that

“abandonment certainly did not occur any later than the

February 1988 order of the ICC approving the

abandonment.” Appellants apparently concede that if the

railroad had not been abandoned for purposes of state law by

February 1988 (when the ICC authorized abandonment but

stayed the effect of its authorization), then the right-of-way

was not abandoned under Maryland law when the railroad

conveyed the quitclaim deed to Montgomery County in

December 1998.

The appellants’ arguments oversimplify the nature of the

railroads’ actions. Outside of the decline in use of the line

and the decision to forego repairs on the bridge over Rock

Creek, which we discuss further below, the acts alleged to

support a finding of abandonment of the state law property

interest relate primarily to the railroad’s plans to undertake

an abandonment proceeding before the ICC. In regard to

these facts, the issue seems to be [**65] largely one of

nomenclature, i.e., whether the term “abandonment” in the

context of an ICC proceeding can be used synonymously

with the state law concept of “abandonment” of an easement.

We believe that appellants unnecessarily confuse the state

law question by relying on actions taken by the railroads to

comply with regulatory “abandonment” under federal law.

As we explain next, the railroad’s actions in pursuing

regulatory “abandonment” before the ICC are consistent with

69

an intent to retain its state law property interests; in fact, the

railroad’s actions are mandated under federal law in order for

the railroad to take any action to reduce or eliminate, even

temporarily, its common carrier obligations. As a result, the

facts alleged by appellants to evidence the railroad’s intent to

abandon the right-of-way prove unhelpful in determining the

question of whether the right-of-way was abandoned.

1.

Appellants acknowledge that the state law question of

abandonment is distinct from ICC action on abandonment.

The land company argues, however, that actions taken

pursuant to the federal regulatory regime establish the

necessary intent to abandon under state law. For example,

the notices posted in 1983 that the line would be the subject

of an abandonment proceeding, the internal decisions of the

committees of the railroad companies to pursue abandonment

in 1984 and 1985, and the filing of the application for

abandonment in 1986 are alleged to constitute evidence of

abandonment.

Each of these actions, however, is a prerequisite for a

railroad wishing to sell its [**66] interests in a right-of-way

or to participate in a rails-to-trails agreement pursuant to 16

U.S.C. § 1247(d). Federal regulations require a railroad to

post a notice on the line informing readers that the line is

anticipated to be the subject of an ICC regulatory

proceeding. See 49 C.F.R. § 1152.20(a)(3). The corporate

resolutions are necessary internal decision-making steps for

pursuing regulatory abandonment, and a railroad obviously

cannot obtain approval for discontinuance of service or

abandonment without filing an application with federal

regulators.

Even if we were to conclude that the word “abandon” in

the regulatory context could be synonymous with state law

70

abandonment of an easement, the railroad’s application to the

ICC made clear that the “[a]pplicants seek to abandon and

discontinue service” over the Georgetown Branch, not their

interest in the land. (Emphasis added). The application

repeatedly refers to the “proposed abandonment,” and it

noted that “various public bodies may be interested in

acquiring the subject properties for public purposes or uses.”

As the federal appeals court for the D.C. Circuit recently

observed, “[t]he word ‘abandon’ has a precise meaning in

this regulatory scheme.” NARPO v. STB, 158 F.3d 135, 137

n.l (D.C. Cir. 1998). See also Cristofani v. Board of

Education, 98 Md. App. 90, 92 n.1, 632 A.2d 447, 448 n.1

(1993)(observing that “abandonment” is a concept in other

areas of law beyond the easement context); Vieux v. East Bay

Regional Park Dist., 906 F.2d 1330, 1339 (9th Cir.)(noting

the permissive nature of ICC abandonment approval, which

“is only a determination that ... cessation of service would

not hinder ICC’s purposes. It is not a [**67] determination

that the railroad has abandoned its lines”), cert. denied, 498

U.S. 967, 111 S.Ct. 430, 112 L-.Ed.2d 414 (1990).

The railroad’s statements and actions are entirely

consistent with an intention to sell the right-of-way and to

pursue a rails-to-trails agreement pursuant to 16 U.S.C. §

1247(d).* An intention to sell the right-of-way is

'? Furthermore, the application for regulatory abandonment should

be read in the context of the statutory language requiring a railroad

intending a sale pursuant to a rails-to-trails agreement to carry the burden

of showing that abandonment is consistent with the public convenience

and necessity standard. 49 U.S.C. § 10904(d)(1)(“[T]he burden is on the

person applying for the certificate [of abandonment or discontinuance] to

prove that the present or future public convenience and necessity require

or permit the abandonment or discontinuance.”) Thus, in an apparent

effort to meet the burden, the railroad explained that the line “could not

be operated profitably by B&O even in the event that rehabilitation were

performed.” As noted in the main text, to read into the railroad’s effort

to meet its burden under federal regulatory law an intent to abandon its

71

inconsistent with an intent to abandon the property interest.

Vieux, 906 F.2d at 1341. Moreover, regulatory abandonment

was never even consummated since a trail use agreement was

reached. Indeed, the corridor cannot have been abandoned

under federal law because the trail use is only interim, and

federal regulators may require the restoration of rail service.

49 C.F.R. § 1152.29(c)(2). See Part IV.A.2.

Of course, it is not an impossibility for a railroad to

abandon its state law property interest when a trail-use

agreement is pursued. But the decisive act required to carry

the abandonment proponent’s burden of proof cannot be

supplied by acts entirely consistent with the federal

regulatory scheme, which precludes such abandonment.

Furthermore, if [**68] abandonment of the state-law

property interest occurs when a trail use agreement is being

pursued in compliance with federal law, that abandonment

would occur without the federal regulatory approval which,

as discussed next, could result in civil and criminal liability.

ye

Appellants’ contention that the right-of-way was

abandoned prior to the consummation of the agreement with

Montgomery County would require us to conclude that the

railroad intended to disobey rather than comply with various

provisions of federal and state law. In other words, if it had

the intent to abandon its state law property interests prior to

ICC action, the railroad would have to also have intended to

violate several provisions of federal law, subjecting itself to

various criminal and civil sanctions. See 49 U.S.C. §§

11901, 11906." As one court explained, “because of the

state law property interest in the right-of-way would create an

irreconcilable dilemma for any railroad wishing to pursue an agreement

under 16 U.S.C. § 1247(d).

3 49 U.S.C. § 11901 provides in pertinent part:

72

importance of uninterrupted rail [**69] transportation

service in the nation’s economy, Congress has expressed a

clear intent, even to the point of criminal sanctions, that

abandonments without prior ICC approval are not tolerated.”

1.C.C. v. Baltimore and Annapolis Railroad Company, 398

F. Supp. 454, 464 (D. Md. 1975), aff'd 537 F.2d 77 (4th

Cir.), cert. denied sub nom Alco Gravure, Inc. v. Baltimore

and Annapolis Railroad Company, 429 U.S. 859, 97 S.Ct.

159, 50 L.Ed.2d 136 (1976). See also Kalo Brick & Tile,

450 U.S. at 319, 101 S.Ct. at 1131, 67 L.Ed.2d at 266

(recognizing authority of the ICC “to pass on _ the

reasonableness of a carrier’s temporary suspension of its

service and, if necessary, to order it resumed”); Ethan Allen,

Inc. v. Maine Cent. R. Co., 431 F. Supp. 740, 744-45 (D. Vt.

“(a) Except as otherwise provided in this section, a common carrier

providing transportation subject to the jurisdiction of the Interstate

Commerce Commission ... an officer or agent of that carrier or a receiver,

trustee, lessee, or agent of one of them, knowingly violating an order of

the Commission under this subtitle is liable to the United States

Government for a civil penalty of $5,000 for each violation. Liability

under this subsection is incurred for each distinct violation. A separate

violation occurs for each day the violation continues.”

49 U.S.C. § 11914 provides in pertinent part:

“(a) When another criminal penalty is not provided under this

chapter, a common carrier providing transportation subject to the

jurisdiction of the Interstate Commerce Commission under subchapter I

of chapter 105 of this title, and when that carrier is a corporation, a

director or officer of the corporation, or a receiver, trustee, lessee, or

person acting for or employed by the corporation that, alone or with

another person, willfully violates this subtitle or an order prescribed

under this subtitle, shall be fined not more than $5,000. However, if the

violation is for discrimination in rates charged for transportation, the

person may be imprisoned for not more than 2 years in addition to being

fined under this subsection. A separate violation occurs each day a

violation of section 11321(a) or 11342 of this title continues.”

73

1977)(holding that a railroad could be liable to a shipper for

unauthorized abandonment).

The per se ban on abandonment without regulatory

approval facilitates other aspects of the federal regulatory

regime. Under 49 U.S.C. § 10905, a railroad may not

abandon its line immediately on the date which the ICC

determines that public convenience and necessity permit

abandonment. Rather, abandonment is delayed by at least

ten days after [**70] notice of the abandonment order is

published in the Federal Register to allow any “financially

responsible person” to “offer to pay the carrier a subsidy or

offer to purchase the line.” 49 U.S.C. § 10905(c)-(d).'* Ifa

'* 49 U.S.C. § 10905 provides in pertinent part:

“(c) When the Commission finds under section 10903 of this title

that the public convenience and necessity require or permit abandonment

or discontinuance of a particular railroad line, it shall, concurrently with

service of the decision upon the parties, publish the finding in the Federal

Register. Within 10 days following the publication, any person may offer

to pay the carrier a subsidy or offer to purchase the line. Such offer shall

be filed concurrently with the Commission...

(d) If, within 15 days after the publication required in subsection (c)

of this section, the Commission finds that —

(1) a fimancially responsible person (including a government

authority) has offered financial assistance to enable the rail transportation

to be continued over that part of the railroad line to be abandoned or over

which all rail transportation is to be discontinued; and

(2) it is likely that that assistance would be equal to —

(A) the difference between the revenues attributable to that part of

the railroad line and the avoidable cost of providing rail freight

transportation on the line, plus a reasonable return on the value of the

line; or

(B) the acquisition cost of that part of the railroad line; the

Commission shall postpone the issuance of a certificate authorizing

abandonment or discontinuance in accordance with subsections (e) and

(f) of this section.

74

financially responsible person makes an offer, [**71]

issuance of the ICC certificate is further delayed 30 days,

allowing the railroad and the offeror to negotiate the terms of

the purchase or subsidy. 49 U.S.C. § 10905(e). If they are

unable to agree on terms, either the railroad or offeror may

ask the Commission to establish the terms and conditions of

the sale or subsidy. 49 U.S.C. § 10905(e)-(f). See Hayfield

N. R. Co. v. Chicago & N. W. Tr. Co., 467 U.S. 622, 629-30,

104 S.Ct. 2610, 2615-16, 81 L.Ed.2d 527, 534-35 (1984).

In the instant case, after the ICC authorized the railroad

to abandon the Georgetown Branch, Laurel Sand & Gravel

(LSG) filed an offer of financial assistance under 49 U.S.C. §

10905: The Commission found LSG to be “financially

responsible” and directed the railroad to negotiate a subsidy

or sale of the line to LSG. These negotiations took

precedence over the proposed rails-to-trails conversion being

discussed at that time with the [(**72] County. See Rail

Abandonments — Use of Rights-of-Way as Trails, 2 1.C.C.2d

591, 608 (1986). The negotiations lasted more than six

months but ultimately proved unsuccessful; LSG

(e) If the carrier and a person offering financial assistance enter into

an agreement which will provide continued rail service, the Commission

shall postpone the issuance of the certificate for so long as the agreement,

or an extension or modification of the agreement, is in effect. If the

carrier and a person offering to purchase a line enter into an agreement

which will provide continued rail service, the Commission shall approve

the transaction and dismiss the application for abandonment or

discontinuance. If the carrier and a financially responsible person

(including a government authority) fail to agree on the amount or terms

of the subsidy or purchase, either party may, within 30 days after the

offer is made, request that the Commission establish the conditions and

amount of compensation. If no agreement is reached within 30 days after

the offer is made and neither party requests that the Commission establish -

the conditions and amount of compensation during that same period, the

Commission shall immediately issue a certificate authorizing the

abandonment or discontinuance.”

75

subsequently withdrew its offer of financial assistance.

Under the theory proposed by appellants, however, the

negotiations between the railroad and LSG would have been

essentially meaningless, since prior to the start of

negotiations with LSG the railroad would have had already

abandoned its right-of-way; under appellants’ theory, had an

agreement been reached, LSG would have either been a

trespasser over the abandoned right-of-way or it would have

had to reacquire the right-of-way from the land company.

In addition to the requirement of entertaining offers of

financial assistance, the railroad was subject to the ICC’s

broad authority to place conditions on _ regulatory

abandonment. See 49 U.S.C. § 10903 (b)(1)(A)(ii)(granting

the ICC the power to approve abandonment “with

modifications ... [and] conditions that the Commission finds

are required by public convenience and necessity”)(emphasis

added). Under 49 U.S.C. § 10906, the Commission must

make a determination of “whether the rail properties that are _

involved in the proposed abandonment or discontinuance are

suitable for use for public purposes, including highways,

other forms of mass transportation, conservation, energy

production or transmission, or recreation.” Should the

Commission find the rail properties suitable for public

purposes, “the properties may be sold, leased, exchanged, or

otherwise disposed of only under conditions provided in the

order of the Commission.” Id. (emphasis added). Again, if

the railroad had abandoned its property interests before the

ICC acted pursuant to [**73] its abandonment application, it

would have been impossible for the railroad to comply with

any conditions imposed on the abandonment without being

deemed a trespasser on the right-of-way. Moreover, the

conclusion that the easement had been abandoned prior to the

conveyance of the quitclaim deed — thereby leaving the

railroad with no interest in the right-of-way — would appear

76

to contravene the spirit of the Maryland law authorizing

acquisition of the right-of-way. See Part IV.A.2, supra.

We do not lightly presume, as appellants do, that a

person, or in this case a railroad company, acted contrary to

explicit legal requirements. “Where an individual proposes

to engage in what is otherwise a lawful venture, the

presumption is that he will conduct his activities in a proper

manner.” Leatherbury v. Gaylord Fuel Corp., 276 Md. 367,

377, 347 A.2d 826, 832 (1975). This is particularly the case

where, as here, criminal sanctions may be involved. No

evidence in this case would support a finding that the

railroad violated or intended to violate the law, and we could

not uphold a finding that it took action that would be

tantamount to a federal crime and that would expose it to

civil liability without substantial evidence that it intended to

do so, evidence which is not present here. See also Md.

Securities v. U.S. Securities, 122 Md. App. 574, 588, 716

A.2d 290, 297 (1998)(stating presumption that administrative

officers “act[] regularly and in a lawful manner”); Valentine

v. On Target, 112 Md. App. 679, 692, 686 A.2d 636, 642

(1996)(purchasers of firearms presumed to have made

purchase for legitimate purposes), aff'd, 353 Md. 544, 727

A.2d 947 (1999). The stipulated facts all indicate that the

railroad was making every effort to comply [**74] with the

law. Yet, a finding that the railroad had abandoned its state

law property interest in the right-of-way would be

tantamount to a finding that the railroad intended to violate

the law, thereby exposing itself to criminal and civil

sanctions. This we decline to do.

LF

If we were to accept the appellants’ efforts to use the

railroad’s acts taken in pursuit of federal regulatory approval

for “abandonment” as the decisive acts necessary to

demonstrate an intent to abandon an easement under state

77

law, it would create an irreconcilable dilemma for railroads .

wishing to pursue rails-to-trails agreements or otherwise

dispose of their property interests in right-of-ways. The

railroad could not pursue a rails-to-trails agreement without

filing an application for regulatory abandonment at the ICC,

but the actions taken to pursue such an application, and the

application itself, would constitute evidence of abandonment

for state law purposes, thereby causing it to risk undermining

the rails-to-trails agreement. This would create a Hobson’s

choice for the railroad that must apply for regulatory

abandonment under federal law as the necessary first step to

obtaining a CITU, while that application itself would

constitute evidence of an intent to abandon in terms of state

law (thereby undermining the CITU effort by making it more

costly). Such a holding would completely frustrate state and

federal policies intended to promote the preservation of rail

corridors and their conversion to trail use. We conclude

therefore that the actions of the railroad taken to comply with

the federal regulatory regime [**75] cannot, as a matter of

state law, supply the unequivocal act or acts that evidence the

intent to abandon an easement interest in land.

C. The Insufficiency of Any Other Potential

Evidence of Abandonment

We must next determine whether the remaining actions

of the railroad alleged to constitute abandonment supply

sufficient evidence to support a finding of an intent to

abandon the easement. Those acts include the railroad’s

decisions to forego bridge repairs in 1984 and the subsequent

discontinuance of use of the line after a storm caused major

damage to the bridge in 1985. Even assuming that the

forbearance of repairs combined with the nonuse of the

right-of-way constitute more than evidence of mere nonuse,

we conclude that they are insufficient to meet appellants’

78

initial burden of proving a clear and unequivocal act that is

necessary to support a finding of an intent to abandon.

Our conclusion is dictated by our previous cases

concerning abandonment of an easement by a railroad. In

Canton, supra, for example, we affirmed a finding that a

railroad right-of-way had not been abandoned when the

circumstances much more strongly supported a finding of

abandonment than the instant case. The appellant, the

Canton Company, was the owner of land over which a

right-of-way had been taken in a condemnation proceeding

brought by the B&O in 1885 and for which it was paid

$20,000. The railroad took possession of the land and laid

track, but it never connected the track with its other tracks,

and in 1898 it removed the tracks although they never “ha[d]

been employed [**76] for any substantial use.” Canton, 99

Md. at 214, 57 A. at 637. In addition, the railroad used other

connections instead of going through the condemned land.

One of the alternative routes was achieved through a

contract, entered into in 1890 and to last 999 years, which

required it to ship over that line “all its traffic of every kind

passing through the city of Baltimore.” Canton, 99 Md. at

220, 57 A. at 640. Primarily on the basis of these facts,

Canton brought an action in ejectment claiming that the

railroad had abandoned the strip of land condemned. We

affirmed the circuit court’s ruling that the easement had not

been abandoned, observing that nonuse of an easement will

not per se operate as abandonment “unless there is some

decided and unequivocal act of the owner inconsistent with

the continued existence of the easement, or unless the nonuse

has been for a considerable period....” Canton, 99 Md. at

218, 57 A. at 639. We rejected the contention that the

contract for use of an alternative line, requiring “all ... traffic

of every kind” to go over that line, was sufficient evidence of

abandonment. Canton, 99 Md. at 220-21, 57 A. at 640.

79

Unlike Canton, in the instant case, the evidence is

undisputed that the railroad actually used the right-of-way

for some 90 years until 1985, when the need for major bridge

repairs made continued use unfeasible. It is also undisputed

that about the time the railroad began taking steps toward

obtaining permission from the ICC for regulatory

abandonment, a management committee of the railroad had

agreed te pursue negotiations with Montgomery County for

transfer of the right-of-way. In Canton, the railroad made an

affirmative decision to remove tracks on land condemned for

a right-of-way — tracks which [**77] had never really been

used — and to enter a contract whereby “all” of its traffic

would go over another line for 999 years; nevertheless, we

held that the facts failed to supply the decisive act necessary

to show an intent to abandon. In the instant case, there is

much less evidence of an unequivocal and decisive act

evidencing an intent to abandon the property interest in the

right-of-way. The use of the right-of-way ended altogether

only because of the deterioration of a bridge (due to a severe

weather storm) while at approximately the same time the

railroad undertook action to adhere to federal regulations to

end service over the line and to negotiate the sale of its

assignable interest in the right-of-way pursuant to the

Rails-to-Trails Act. The decision to take up tracks and enter

a long-term contract for another route in Canton provided

stronger evidence of an intent to abandon than the decision to

forego repairs in the instant case — particularly when that

decision is consistent with the contemplated new transit use

of the corridor. If anything, the railroad’s actions in this case

evidence a clear intent not to abandon but to sell to the

County its interest in the right-of-way consistent with the

requirements of federal regulation. As one court observed in

a similar context, “[clonveyance of property and

abandonment of property are not consistent actions.” Vieux,

906 F.2d at 1341.

80

Furthermore, a railroad’s participation in a rails-to-trails

program implies that it-does not intend to fully abandon the

line, but rather to retain the right-of-way while permitting

interim trail use. Birt, 90 F.3d at 587; KCT Railway

Corporation — Abandonment Exemption — In Franklin,

Anderson, and Allen Counties, KS, 7 1.C.C.2d 1035, 1036

[**78] (1991) (observing that railroad’s interest in

negotiating trail agreement is “inconsistent with clear intent

to consummate the abandonment and implies that KCT may

be interested in preserving the right-of-way for-the future

restoration of rail service”). The facts of this case closely

resemble those in Birt. In that case, the landowner, Birt,

argued that the railroad had abandoned its property interest in

the right-of-way prior to the consummation of a rails-to-trails

agreement, thus depriving the ICC of jurisdiction over the

rail corridor. --In reviewing a decision of the ICC that

abandonment had not occurred, the court explained:

“The Commission has listed several concrete actions

which may indicate an intent to abandon: cessation of

operations cancellation of tariffs, salvage of the track and

track materials, and relinquishment of control over the

right-of-way. These factors,- however, are equally

consistent with temporary cessation of operations

(‘discontinuance’), which permits a_ ,rails-to-trails

conversion but does not effect a permanent abandonment.

Thus, to determine whether the railroad’s conduct is

abandonment or mere discontinuance, we must often look

to additional behavior which signifies one or the other....”

(Citations omitted).

Birt, 90 F.3d at 585-86. The court also rejected Birt’s

contention that abandonment occurred as a result of two

letters written by the railroad which explicitly conceded that

the right-of-way “was abandoned.” Birt, 90 F.3d at 586.

Fewer facts in the instant case are available for reaching a

81

conclusion that the right-of-way was abandoned than in Birt.

Appellants have produced no letter from the railroad

declaring that the right-of-way has been abandoned.'*

That the right-of-way could not have been abandoned is

further evidenced by the [**79] federal requirement that

when a right-of-way is converted to trail use under 16 U.S.C.

§1247(d), regulatory abandonment is foregone and the ICC’s

approval is expressly made “subject to the future restoration

of rail service.” 49 C.F.R. § 1152.29(c)(2)(requiring the

CITU to state that “interim trail use is subject to future

restoration of rail service”); id. at (c)(3)(stating that if a

railroad seeks to reinstitute service over the right-of-way, and

federal regulators grant permission to do so, “the CITU will

be vacated accordingly.” As the ICC has stated,

“By consenting to the issuance of a CITU/NITU, a carrier

agrees to forgo consummating the authorized or

exempted abandonment. As a consequence, its common

carrier obligation does not terminate. Instead, the

abandoning carrier retains a residual common carrier

obligation and transfers the right-of-way to the trail user,

subject to the stipulation that the rail corridor remain

available for the reinstitution of rail service. A carrier’s

decision to agree to a CITU/NITU ‘is totally voluntary

and, as far as the Commission is concerned, may be

withdrawn at any time the abandoning carrier wishes to

reinstitute rail operations over the right-of-way.”

(Emphasis added.)

'S During the course of litigation, however, appellees produced a

letter written by the railroad in 1988 expressly stating that the right-of-

way had not been abandoned.

82

Norfolk & Western Railway Company — Abandonment

between St. Marys and Minster in Auglaize County, OH, 9

I.C.C.2d 1015, 1018 (1993).

Thus, upon the consummation of a rails-to-trails

agreement, the right-of-way is placed in a national

“railbank,” and, at a later date, federal regulators may permit

removal of the corridor from the railbank in order to

reactivate service. That service may be reactivated on the

right-of-way supports our conclusion that the nght-of-way

has not been abandoned, for [**80] it would be difficult, if

not virtually impossible, to reactivate service on an

abandoned line."® :

Our decision avoids frustrating the federal and state

public policies of promoting the conversion of railroad

rights-of-way for other transportation and recreational uses.

Were we to hold otherwise, it would be hard to imagine a

situation in which a railroad pursuing a rails-to-trails

agreement would not have abandoned its property interest,

since there must be some point at which a railroad comports

itself differently in anticipation of a rails-to-trails agreement

than if it were to continue to operate the line. Conversely, if

we were to hold that the failure to repair the bridge over

Rock Creek were sufficient to carry appellants’ burden of

proving an intent to abandon, we would create an incentive

for a railroad to make futile expenditures in order to avoid

being found to have abandoned its property interest under

state law as it complies with the mandates of federal law.

We do not intend to intimate that a railroad may never

_ abandon an easement under Maryland law prior to federal

'© Since the right-of-way was expressly made transferable to

“successors and assigns,” whether service would be reactivated by the

railroad, the County, or a future successor in interest has no bearing on

our conclusion.

83

regulatory approval of abandonment; rather, we merely hold

that under the circumstances of this case, where the actions

supporting the alleged abandonment coincide in time and in

function with the railroad’s efforts to comply with federal

law and where there is no suggestion or reason to conclude

that the railroad intended to not comply with federal law, as a

matter of Maryland law, the facts are not sufficient to meet

the burden of showing that abandonment occurred prior to

the railroad’s conveyance [**81] of the quitclaim deed to

the County. While the question of abandonment of an

easement is to be decided as a matter of Maryland property

law, the question should not be resolved in a vacuum in

which the federal regulatory scheme is ignored."’

'7 Indeed, the CFC implicitly recognized the illogic of ignoring the

comprehensive regulation scheme in determining the state law question

of abandonment of an easement. In finding that the easement had been

abandoned when the ICC issued its order of February 25, 1988, the court

discussed at length an early decision of this court, Benson v. Public

Service Comm., 141 Md. 398, 118 A. 852 (1922), relating to state

regulatory approval of abandonment of rail service. Benson involved a

suit by citizens against the Maryland Public Service Commission (PSC)

contesting the agency’s authorization of abandonment of the railroad

line. In that case, we upheld the PSC’s abandonment order based on its

uneconomical operation, declaring that “the only safe criterion [for

evaluating whether to abandon service] ... is ... the measure of which is

the ability of the [railroad] from its earnings to meet its operating

expenses and fixed charges.” Benson, 141 Md. at 404, 118 A. at 854.

The CFC concluded that the PSC standard is not as rigorous as the ICC’s

“public convenience” standard and, since the February 1988 ICC order

concluded that abandonment was appropriate and conditioned

abandonment only for inquiry into a Rails-to-Trails agreement, that the

order “provided ... the rough equivalent of the PSC abandonment

authorization.” Chevy Chase Land Co. of Montgomery, 37 Fed. Cl. at

580.

We agree with the CFC that the regulatory scheme under which the

railroad operated is relevant to whether it intended to abandon the right-

of-way, but we disagree with its reading of Benson. Benson did not

involve a question of whether an easement had been abandoned, but

84

[**82] Finally, we note that our conclusion that the

evidence is insufficient to show that the railroad intended to

abandon the right-of-way is consistent with the obvious

economic interests of the railroad. The railroad had a “free

and perpetual” interest in the portions of the right-of-way at

issue in this case; it would have been irrational for the

railroad to abandon the right-of-way without attempting to

recover some value from its interest in the land. As the

stipulated facts demonstrate, the railroad did in fact pursue a

course of action whereby it recovered value through the sale

of the corridor to the County. As explained above, that

course of action was necessarily lengthy and somewhat

arduous because of the scheme of federal regulation under

which it was operating. The railroad had to pursue that

process, however, in order to derive any economic value out

of its right-of-way.

In sum, we hold that when a railroad takes actions

pursuant to federal regulation that are wholly consistent with

an intent to retain the property interest, in this case in order

rather whether the state agency had properly approved abandonment of

service. See Part IV.B.1, supra (distinguishing between regulatory

abandonment and the state law property concept of abandonment). We

upheld an order of the PSC permitting a railroad to abandon service on a

portion of its line based on a statute giving it the power “to approve or

disapprove of the abandonment or discontinuance ... by any common

carrier, railroad corporation, or street railroad corporation of the exercise

of the franchise or right conferred upon it by its charter.” Benson, 141

Md. 401, 118 A. at 853. The issue in the case concerned the validity of

the PSC’s order regarding the ceasing of service; we did not discuss nor

did the case involve any property law issues such as casement

abandonment. Therefore even if we were to agree with the CFC that the

February 1988 order of the ICC was the “rough equivalent of the PSC

abandonment authorization,” our agreement would have no bearing on

the issue here related to abandonment of the railroad’s property law

interest in the right-of-way.

85

to pursue an interim trail use agreement, those actions alone

cannot supply the decisive and unequivocal act evidencing

an intent to abandon. It follows that in the instant case,

where the appellants have not pointed to any other actions

sufficient to carry their burden of proving an act sufficiently

evidencing an intent, to abandon, the right-of-way was not

abandoned prior to the railroad’s conveyance of the

nght-of-way to Montgomery County.

V. CONCLUSION

The first certified question asks whether the 1911 deed to

the railroad from the land [**83] company conveyed a fee

simple absolute or an easement. We have held that it

conveyed an easement. The plain text of the ins

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