Behrens v. United States ( 2023 )

Case: 22-1277 Document: 57 Page: 1 Filed: 02/13/2023
United States Court of Appeals
for the Federal Circuit
______________________
DAVID H. BEHRENS, ARLINE M. BEHRENS, ET
AL.
Plaintiffs
MARK W. HEINTZ, HELEN M. HEINTZ, ET AL.
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2022-1277
______________________
Appeal from the United States Court of Federal Claims
in No. 1:15-cv-00421-PEC, Judge Patricia E. Campbell-
Smith.
______________________
Decided: February 13, 2023
______________________
THOMAS SCOTT STEWART, Stewart Wald & McCulley,
LLC, Kansas City, MO, argued for plaintiffs-appellants.
Also represented by ELIZABETH MCCULLEY, REED RIPLEY.
JOHN LUTHER SMELTZER, Appellate Section, Environ-
ment & Natural Resources Division, United States Depart-
ment of Justice, Washington, DC, argued for defendant-
appellee. Also represented by TODD KIM, ERIKA KRANZ,
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2 BEHRENS v. US
WILLIAM B. LAZARUS.
MARK F. HEARNE, II, True North Law Group, LLC, St.
Louis, MO, for amicus curiae James W. Ely, Jr. Also rep-
resented by STEPHEN S. DAVIS.
MEGHAN S. LARGENT, Lewis Rice LLC, St. Louis MO,
for amicus curiae Missouri Farm Bureau Federation. Also
represented by MICHAEL ARMSTRONG, LINDSAY BRINTON.
______________________
Before DYK, TARANTO, and HUGHES, Circuit Judges.
DYK, Circuit Judge.
Appellants are property owners seeking compensation
for an alleged taking pursuant to the National Trails Sys-
tem Act (“Trails Act”), Pub. L. No. 90-543, 82 Stat. 919
(1968) (codified as amended at 16 U.S.C. §§ 1241–51). The
issuance of a Notice of Interim Trail Use (“NITU”) allowing
interim trail use and railbanking constitutes a Fifth
Amendment taking if the railroad had been granted an
easement, interim trail use and railbanking were beyond
the scope of the easement, and the NITU caused a delay in
termination of the easement. The Court of Federal Claims
(“Claims Court”) found that the property interests at issue
were easements, but that interim trail use was within the
scope of the easements. We hold that the Claims Court
erred in interpreting Missouri law and in concluding that
interim trail use was within the scope of the easements.
We also hold that railbanking is not within the scope of the
easements. There being no causation dispute, the NITU
issuance constituted a taking. We reverse and remand.
BACKGROUND
I
When a railroad wishes to relinquish responsibility
over a railroad corridor, it must seek permission to
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BEHRENS v. US 3
abandon the corridor. 49 U.S.C. § 10903; see also id.§ 10502 (authorizing exemptions). Under the Trails Act,
before abandonment is consummated, other entities can in-
tervene to railbank the corridor, that is, preserve it for fu-
ture railroad use. 16 U.S.C. § 1247(d); see also 49 C.F.R.
§ 1152.29(a). The railbanking intervention process, as au-
thorized by § 1247(d), allows a railroad to negotiate with
the intervening entity, which would then assume financial
and managerial responsibility for the corridor by operating
it as a recreational trail. See Preseault v. Interstate Com.
Comm’n, 494 U.S. 1, 6–7 (1990) (“Preseault I”).
Before the potential trail operator can begin negotia-
tions with the railroad, it must file a railbanking petition.
See 49 C.F.R. § 1152.29(a). The potential trail operator
must state its “willingness to assume full responsibility for[
m]anaging the right-of-way; [a]ny legal liability arising out
of the transfer or use of the right-of-way . . . ; and [t]he pay-
ment of any and all taxes . . . [on] the right-of-way.” Id.§ 1152.29(a)(2) (subsection numbers omitted). The opera-
tor must also acknowledge that the land will remain “sub-
ject to possible future reconstruction and reactivation of
the right-of-way for rail service.” Id. § 1152.29(a)(3).
If the railbanking petition meets [certain] criteria,
and the railroad agrees to negotiate with the peti-
tioner and . . . communicates [that agreement] to
the [Surface Transportation Board (“STB”)] within
ten days of the filing of the trail use petition, the
STB will issue a [NITU]. This NITU permits the
railroad to discontinue service, cancel tariffs, and
salvage track and other equipment, “consistent
with interim trail use and rail banking” without
consummating an abandonment and the NITU ex-
tends indefinitely to permit interim trail use once
an “agreement” is reached between the railroad
and the trail operator.
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4 BEHRENS v. US
Caldwell v. United States, 391 F.3d 1226, 1230 (Fed. Cir.
2004) (quoting 49 C.F.R. § 1152.29(d)(1)) (citing 49 C.F.R.
§ 1152.29(b)(2), (d)). The Trails Act authorizes the suspen-
sion of abandonment, providing “if such interim [trail] use
is subject to restoration or reconstruction for railroad pur-
poses, such use shall not be treated, for purposes of any law
or rule of law, as an abandonment of the use of such rights-
of-way for railroad purposes.” § 1247(d).
It is now well-settled that the issuance of a NITU under
the Trails Act may result in a taking of property owned by
the original grantor of the easement. The Supreme Court
noted in Preseault I that:
[The] language [of § 1247(d)] gives rise to a takings
question in the typical rails-to-trails case because
many railroads do not own their rights-of-way out-
right but rather hold them under easements or
similar property interests. While the terms of
these easements and applicable state law vary, fre-
quently the easements provide that the property
reverts to the abutting landowner upon abandon-
ment of rail operations. State law generally gov-
erns the disposition of reversionary interests . . . .
By deeming interim trail use to be like discontinu-
ance rather than abandonment, Congress pre-
vented property interests from reverting under
state law[.]
Preseault I, 494 U.S. at 8 (citations omitted). In general,
“[a] Fifth Amendment taking occurs if the original ease-
ment granted to the railroad under state property law is
not broad enough to encompass a recreational trail.” Cald-
well, 391 F.3d at 1229 (citations omitted). As we discussed
in Preseault v. United States, if the “establishment [of a
public recreational trail] [can]not be justified under the
terms and within the scope of the existing easements[,] . . .
[t]he taking of possession of . . . lands . . . for use as a public
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BEHRENS v. US 5
trail [is] in effect a taking of a new easement for that new
use, for which . . . landowners are entitled to compensa-
tion.” 100 F.3d 1525, 1550 (Fed. Cir. 1996) (“Preseault II”)
(en banc) (plurality opinion). A taking effectuated by the
NITU occurs at the time that, had there been no NITU, the
easement would have terminated under state law. See
Caquelin v. United States, 959 F.3d 1360, 1363, 1370–73
(Fed. Cir. 2020).
Over the past thirty years, following our decision in
Preseault II, we have considered a variety of cases alleging
Fifth Amendment takings in this rails-to-trails context.
See, e.g., Hardy v. United States, 965 F.3d 1338 (Fed. Cir.
2020); Ladd v. United States, 630 F.3d 1015 (Fed. Cir.
2010); Hash v. United States, 403 F.3d 1308 (Fed. Cir.
2005); Toews v. United States, 376 F.3d 1371 (Fed. Cir.
2004). These cases depend on state law and the facts of the
particular land grants.
II
This appeal concerns a 144.3-mile corridor (“Corridor”)
utilized by the St. Louis, Kansas City, and Chicago Rail-
road Company (“Railroad Company”) beginning in the
early 1900s for the operation of a railroad. The necessary
easements were acquired through a mix of condemnations
and land grants from property owners. At issue in this ap-
peal are nineteen source deeds conveying easements as to
properties located along the Corridor. These easements
were granted to the Railroad Company between January
1901 and April 1902, each for the consideration of one dol-
lar. Plaintiff-appellants are the owners of these underlying
properties and are collectively referred to as Behrens.
Eighteen of the deeds did not state a limitation of the grant
to use for railroad purposes. One deed (the “Second Back-
ues Deed”), which may or may not be the subject of a tak-
ings claim, see note 10, infra, specified that the land is
“conveyed to said Railroad company for the purpose of side
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6 BEHRENS v. US
tracks, station houses, ware houses, stock yards, and for
such uses as are necessary in the operation of said Rail-
road.” J.A. 2335.
These easements were passed on to different railroads
throughout the years. Most recently, the easements were
conveyed to the Missouri Central Railroad Company which
then leased the operating rights to Central Midland Rail-
way Company. Missouri Central Railroad and Central
Midland Railway wished to discontinue service on and
abandon the railway and filed a verified notice of exemp-
tion that, if granted, would allow the railroads to consum-
mate abandonment.
On December 16, 2014, the Missouri Department of
Natural Resources filed a timely request to intervene in the
abandonment proceeding, seeking to utilize the easements
for interim trail use on the Corridor. On February 26,
2015, the STB issued a NITU for the corridor. On Decem-
ber 20, 2019, the Missouri Central Railroad and the Natu-
ral Resources Department jointly notified the STB that
they had executed a trail use agreement in accordance with
the NITU and STB regulations.
III
Plaintiffs filed takings claims on April 27, 2015, in the
Claims Court. 1 Plaintiffs moved for summary judgment on
liability, asserting that the railroad originally acquired
mere easements, pursuant to Missouri law; that the rail-
road’s easements were limited to railroad purposes; and
that the conversion of the easements for a public recrea-
tional trail was beyond the scope of easements, and thus
constituted a taking. The government then cross-moved
for summary judgment on the ground that the deeds
1 This case also involved other properties that are
not at issue in this appeal.
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BEHRENS v. US 7
granted an easement broad enough to allow for interim
trail use and railbanking.
The Claims Court held that the property rights ac-
quired by the railroad here on appeal were easements but
that the government was not liable for a taking as to those
parcels because the easements allowed interim trail use.
Addressing a Missouri statute that is central to this case,
the Claims Court “decline[d] to apply the presumption”
“that any conveyance of an easement to a railroad made by
voluntary grant . . . is statutorily limited in scope to rail-
road purposes only.” J.A. 5–6 (citation omitted).
Plaintiffs filed a motion for reconsideration. The
Claims Court set aside the grant of summary judgment in
favor of the government because “imprecise language [in
the original opinion] implie[d] that the easements [were]
‘unlimited’” and noted that “it must . . . more carefully de-
fine the scope of the . . . easements” in further proceedings.
J.A. 22. After further proceedings regarding the scope of
the easements, the Claims Court again held that the gov-
ernment was not liable for a taking because the easements,
while not unlimited, were nonetheless broad enough to al-
low interim trail use. The Claims Court so held because “it
would violate the primacy of the grantor’s intent to find
that the deeds—which otherwise appear to convey a fee in-
terest—should be artificially limited to plaintiffs’ definition
of railroad purposes simply because Missouri law construes
conveyances for nominal consideration to be easements.”
J.A. 40. The Claims Court also concluded that “the broad
granting language and habendum clauses in the deeds at
issue are convincing evidence that the grantors intended
unrestricted conveyances.” J.A. 39.
In the course of proceedings in the Claims Court, plain-
tiffs also filed various motions for summary judgment on
the alternative ground that the government was liable for
a taking because the Missouri Central Railroad abandoned
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8 BEHRENS v. US
the easement prior to the NITU. The Claims Court found
various procedural shortcomings with these motions and
never decided the issue of abandonment, ultimately hold-
ing that an abandonment claim was forfeited because
plaintiffs failed to timely raise the issue in a summary
judgment motion.
After the deadline for filing summary judgment mo-
tions had passed, the parties jointly moved for an entry of
judgment under Rule 54(b) of the Rules of the Court of Fed-
eral Claims on the easements here on appeal. 2 The Claims
Court granted the motion. Plaintiffs timely appealed. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3). We
review the grant of summary judgment de novo. Ladd, 630
F.3d at 1019.
DISCUSSION
As described above, “[i]t is settled law that a Fifth
Amendment taking occurs in Rails-to-Trails cases when
government action destroys state-defined property rights
by converting a railway easement to a recreational trail, if
trail use is outside the scope of the original railway ease-
ment.” Ladd, 630 F.3d at 1019 (citing Ellamae Phillips Co.
v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009)). The
language of the deed and state law govern the scope of the
easement. See Preseault II, 100 F.3d at 1533.
Under Preseault II, the first step in determining if
there was a taking is to determine if a railroad had ob-
tained easements or fee simple estates. See id. In this
case, it is undisputed that the Missouri Central Railroad
had easements and not fee simple interests. See Gov’t’s
2 The Rule 54(b) motion was necessary because other
parcels of land remained in the case before the Claims
Court.
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BEHRENS v. US 9
Br. 33. A Missouri statute that has been in effect since
1855 gives railroads the power:
[t]o take and hold such voluntary grants of real es-
tate and other property as shall be made to it to aid
in the construction, maintenance and accommoda-
tion of its railroads; but the real estate received by
voluntary grant shall be held and used for the pur-
pose of such grant only . . . .
Mo. Rev. Stat. § 1035 (1899), now § 388.210(2). Under Mis-
souri law, a conveyance of property to a railroad for nomi-
nal consideration is treated as a voluntary grant, and one
dollar is nominal consideration. Brown v. Weare, 152
S.W.2d 649, 653–54 (Mo. 1941). Each grant in this case
was to a railroad and for one dollar. These conveyances
were thus voluntary grants. Voluntary grants to railroads
are easements even if they are formally worded as grants
of fee simple estates. Id. at 654; see also Boyles v. Mo.
Friends of Wabash Trace Nature Trail, Inc., 981 S.W.2d
644, 648 (Mo. Ct. App. 1998) (“Where the acquisition is for
right-of-way only, however, whether by condemnation, vol-
untary grant, or conveyance in fee upon valuable consider-
ation, the railroad takes only an easement over the land
and not the fee.” (citations omitted)). Therefore, as the
Claims Court held, each grant was an easement, and the
government does not argue otherwise.
The second step is determining the scope of the ease-
ments. See Preseault II, 100 F.3d at 1533. The government
seeks to defend the Claims Court decision arguing that the
statute does not define the scope of the easements and that
under Missouri common law, the court must give effect to
the intention of the grantor. “It is well settled in [Missouri]
that the rule to be observed in the construction of deeds is
to ascertain the intention of the grantor, and to give effect
to such intention, unless it conflicts with some positive rule
of law.” St. Louis Union Tr. Co. v. Clarke, 178 S.W.2d 359,
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10 BEHRENS v. US
363 (Mo. 1944) (en banc). Under Missouri law, an ease-
ment is “a right to use the land for particular purposes.”
Barfield v. Sho-Me Power Elec. Coop., 852 F.3d 795, 799
(8th Cir. 2017) (citation omitted) (quoting St. Charles Cnty.
v. Laclede Gas Co., 356 S.W.3d 137, 139 (Mo. 2011) (en
banc)). In the case of eighteen of the nineteen deeds at is-
sue, the deeds themselves contain no language stating a
limitation of the grant to specified purposes. It follows, ar-
gues the government, that the Claims Court correctly
found that the easements granted to the railroad were
broad in scope and covered trail use. The plaintiffs here
disagree as to the appropriate construction of the deeds un-
der common law. We need not resolve this dispute because
we conclude that the Missouri statutory provision,
§ 388.210(2) explicitly limits the scope of the easements to
railroad purposes.
The Missouri statute states that a voluntary grant
“shall be held and used for the purpose of such grant only.”
Mo. Rev. St. § 388.210(2). The statute defines the purpose
of such voluntary grants as “to aid in the construction,
maintenance and accommodation of its railroads.” Id. The
Missouri Supreme Court has construed this language to
mean that such grants are for “all railroad purposes.”
Brown, 152 S.W.2d at 653 (stating that this statutory pro-
vision “includes all railroad purposes”); see also id. at 654
(“The statute makes no distinction according to the exact
railroad purpose for which the land is to be used but in ef-
fect requires only that the land be used for railroad pur-
poses.”). “[The] easement ceases to exist when the land is
no longer used for railroad purposes.” G.M. Morris Boat
Co. v. Bishop, 631 S.W.2d 84, 87 (Mo. Ct. App. 1982) (citing
Coates & Hopkins Realty Co. v. Kan. City Terminal Ry. Co.,
43 S.W.2d 817, 821–22 (Mo. 1931) (en banc)). Therefore,
by statute, railroad purposes are the only allowable pur-
poses of the granted easements and define the scope of the
easements.
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BEHRENS v. US 11
We must then determine whether trail use and rail-
banking are within the scope of the easements, i.e.,
whether (1) trail use and (2) railbanking are railroad pur-
poses. In Missouri, trail use, the first of these uses, is not
a railroad purpose. Boyles is a leading Missouri case on the
scope of railroad easements. 981 S.W.2d 644. A Missouri
constitutional provision states that properties taken by the
railroad by condemnation are taken “for railroad pur-
poses.” Id. at 648 (quoting Mo. Const. art. I, § 26). In
Boyles, a railroad acquired an easement through condem-
nation. Id. at 646. The railroad thereafter conveyed the
contested railroad corridor easement via a quit claim deed
to an organization that undertook to turn the corridor into
a trail. Id. at 647. The original owners filed a petition to
quiet title on the basis that the easement had ceased to ex-
ist because it did not extend to trail use. Id. at 647–48. In
interpreting the constitutional provision, the court con-
cluded that trail use “do[es] not fall within the commonly
understood meaning of ‘railroad purposes.’” Id. at 649. 3
We have similarly and consistently held that trail use
is not a railroad purpose under other states’ laws. See, e.g.,
Presault II, 100 F.3d at 1541–44 (applying Vermont law);
Toews, 376 F.3d at 1376 (applying California law and stat-
ing that “it appears beyond cavil that use of these ease-
ments for a recreational trail—for walking, hiking, biking,
picnicking, frisbee playing, with newly-added tarmac
3 See also Eureka Real Est. & Inv. v. S. Real Est. &
Fin. Co., 200 S.W.2d 328, 332 (Mo. 1947) (finding that an
easement granted to a railroad did not allow the construc-
tion of a power line that had no connection to the railway);
St. Louis, I.M. & S. Ry. Co. v. Cape Girardeau Bell Tel. Co.,
114 S.W. 586, 587–88 (Mo. Ct. App. 1908) (finding that es-
tablishing a telephone line for public use was beyond the
scope of an easement granted to a railroad because the pub-
lic telephone line was not a railroad purpose).
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12 BEHRENS v. US
pavement, park benches, occasional billboards, and fences
to enclose the trailway—is not the same use made by a rail-
road, involving tracks, depots, and the running of trains”).
The government argues, however, that the Trails Act
has an alternative purpose—railbanking, the preservation
of the right-of-way for possible future railroad use—and
that the easements under the statute are broad enough to
cover railbanking. The Trails Act provides that trails cre-
ated under the Act must be “subject to restoration or recon-
struction for railroad purposes.” 16 U.S.C. § 1247(d).
Under Missouri law, establishing a nature trail for the
purpose of keeping the corridor intact for future rail service
is not considered a railroad purpose if there is no evidence
that such future use is realistic. In Boyles, the court re-
jected the argument that “because one of the purposes of
the trail is to keep the existing corridor intact for transpor-
tation needs that may occur in the future, such as reac-
tivated rail service, [the easement’s] proposed use [as a
trail] is for railroad purposes.” 4 Boyles, 981 S.W.2d at 649.
The Boyles court found that this argument “ha[d] no merit”
because “[t]he undisputed evidence, including the removal
of the bridges, ties, and rail by [the railroad company],
showed that no such [future railroad] use is realistic.” Id.at 649–50. The court also noted that “[t]he proposed devel-
opment of a hiking, biking, cross-country skiing, and na-
ture trail is completely unrelated to the operation of a
railway and consistent only with an intent to wholly and
permanently cease railway operations.” Id. at 650 (citation
omitted).
Thus, in Missouri, trail use with the purported but
speculative purpose of preserving the right-of-way for
4 Boyles did not concern a taking under the Trails
Act. See Boyles, 981 S.W.2d at 646–48.
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BEHRENS v. US 13
future railroad use does not fall within the scope of an ease-
ment granted for railroad purposes. Here, there is no evi-
dence that future rail use is realistic. The railroad ceased
running trains over the Corridor decades ago, and rails and
ties have been removed. There is no evidence of a plan for
future railroad use. The mere preservation of a tract of
land for possible future rail use under Boyles is not a rail-
road purpose. 5
The government argues that Boyles should not control
here because it concerned rights acquired by condemna-
tion, not voluntary grant. The government argues that
“there is no basis for construing the [voluntary grant] stat-
ute narrowly as limiting voluntary grants to railroads to
railroad purposes alone.” Gov’t’s Br. 36. The government
notes that the language in the two provisions, the constitu-
tional provision at issue in Boyles and the statute at issue
here, is different 6 and urges that the easements acquired
5 The government argues that “nonuse [of the corri-
dor by the railroad] alone will not cause an extinguishment
of the easement,” Gov’t’s Br. 46, and that nonuse by the
railroad is not sufficient to show that “interim trail use is
beyond the scope of a railroad easement that has been
properly preserved.” Gov’t’s Br. 47. However, the facts of
this case show much more than nonuse. The Missouri Cen-
tral Railroad started abandonment proceedings and thus
specifically disclaimed all interests in the corridor.
6 The constitutional provision governing land taken
by railroads via condemnation reads: “The fee of land
taken for railroad purposes without consent of the owner
thereof shall remain in such owner subject to the use for
which it is taken.” Mo. Const. art. I, § 26 (emphasis added).
As explained in Boyles, this provision states that “railroad
purposes” are the “use for which [the land] is taken.”
Boyles, 981 S.W.2d at 648–49.
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14 BEHRENS v. US
by voluntary grant should have a broader scope than those
acquired by condemnation. Specifically, the government
contends that “accommodation,” which appears in the vol-
untary grant statute but not the condemnation provision,
should be construed to mean something like “benefit,”
which would go beyond use for strictly railroad purposes
and cover easements that benefit the railroad more
broadly. 7 The government argues that the railroad is ben-
efited by preservation for future railroad use.
We do not agree. The Missouri Supreme Court has sug-
gested that “accommodation” means “operation.” See
Brown, 152 S.W.2d at 653. 8 This appears to confirm that
The voluntary grant statute gives railroads the power
“[t]o take and hold such voluntary grants of real estate and
other property as shall be made to it to aid in the construc-
tion, maintenance and accommodation of its railroads; but
the real estate received by voluntary grant shall be held
and used for the purpose of such grant only.” Mo. Rev. Stat.
§ 388.210(2) (1949) (emphasis added).
7 The government notes that, “[a]round the time of
grants in this case, ‘accommodation’ was defined in legal
dictionaries as a ‘convenience, favor, or benefit’ or ‘an ar-
rangement or engagement made as a favor to another, not
upon a consideration received.’” Gov’t’s Br. 34–35 (quoting
Overland Auto Co. v. Winters, 210 S.W. 1, 4 (Mo. 1919) (ref-
erencing contemporaneous definitions from Anderson’s
Law Dictionary and Black’s Law Dictionary)).
8 In Brown, the court stated that “[b]y statute a rail-
road has the power ‘to take and hold such voluntary grants
of real estate and other property as shall be made to it to
aid in the construction, maintenance and accommodation
[operation?] of its railroads; but the real estate received by
voluntary grant shall be held and used for the purpose of
such grant only.’” Brown, 152 S.W.2d at 653 (alteration in
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BEHRENS v. US 15
the benefit must be to current or planned railroad opera-
tions rather than to some speculative future use. The Mis-
souri voluntary grant statute was not designed to grant
easements to railroads going beyond current or planned
railroad operations and the use of the term “accommoda-
tion” does not suggest otherwise. An overly broad reading
of the voluntary grant statute would indeed be contrary to
the legislative purpose behind the statute. As the Missouri
Supreme Court stated in Brown, “the legislature intended
positively to interfere in the dealings of a railroad company
with the landowners and to protect the latter if the railroad
was never constructed, and also if the railroad company
abandoned land acquired for its use.” Id. at 654. In any
event, the accommodation provision is designed to benefit
the railroad that owned the easement, not the benefit some
future unidentified entity that might receive the easement
in the future.
We note that we have held that under Vermont law the
preservation of a tract of land for future rail use under the
Trails Act does not transform interim trail use into a rail-
road purpose. See Preseault II, 100 F.3d at 1550. In Pre-
seault II, a plurality concluded that if the creation of a
public recreational trail “could not be justified under the
terms and within the scope of the existing easements . . .
the taking of possession of the lands . . . for use as a public
trail was in effect a taking of a new easement for that new
use, for which the landowners are entitled to compensa-
tion.” Id.; see also Preseault II, 100 F.3d at 1554 (Rader, J.,
concurring) (“The vague notion that the State may at some
time in the future return the property to the use for which
it was originally granted, does not override its present use
of that property inconsistent with the easement.”).
original) (quoting Mo. Rev. Stat. § 5128 (1939) (currently
located at Mo. Ann. Stat. § 388.210 (West 2022))).
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16 BEHRENS v. US
CONCLUSION
In sum, the easements granted to the railroad were not
broad enough to encompass interim trail use or railbank-
ing, and thus Fifth Amendment takings have occurred. We
reverse the Claims Court and remand this case for further
proceedings consistent with this opinion. 9 We do not reach
the abandonment question, though we note that Behren’s
failure to timely move for summary judgment cannot
properly be viewed as a forfeiture of the abandonment the-
ory which should have remained an issue in this case.
9 Some of the deeds include additional grants beyond
the primary grant to the railroad, which is a grant of a “cen-
ter 100-foot portion of rail corridor.” J.A. 14. For example,
one deed granted, with no express limitations to the scope,
a right-of-way for “[a] strip of land one hundred (100) feet
wide, having a uniform width of fifty (50) feet on each side
of the center line of the railroad” (the primary grant).
J.A. 2320. It also granted, “for the purpose of cuttings and
embankments necessary for the proper construction and
security of said railroad across the tracts of land described
aforesaid,” an easement “[o]ne hundred (100) feet on each
side of and adjacent to the aforesaid described right of way”
(a non-primary grant), as well as “the right of entry across
adjacent land of the undersigned for the purposes of con-
struction of said railroad” (a non-primary grant). Id. Both
parties appear to agree that primary grants are the only
source of the takings claims, presumably because the other
easements were not used for trails.
There is one possible exception. This exception is the
second Backues deed, which does not include a primary
grant. We leave the issue of whether a taking occurred
with regard to the second Backues deed to the Claims
Court to determine on remand.
Case: 22-1277 Document: 57 Page: 17 Filed: 02/13/2023
BEHRENS v. US 17
Given our holding as to the scope of the easement, the
abandonment claim is, however, moot.
REVERSED AND REMANDED
COSTS
Costs to Appellants.