Albright v. United States ( 2020 )

Case: 19-2078 Document: 130 Page: 1 Filed: 12/01/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GARY E. ALBRIGHT, ET AL.,
Plaintiffs-Appellants
CLAUDE J. ALLBRITTON, ET AL.,
Plaintiffs
v.
UNITED STATES,
Defendant-Appellee
-------------------------------------------
PERRY LOVERIDGE, ET AL.,
Plaintiffs
NEAL ABRAHAMSON, ET AL.,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
-------------------------------------------
GARY E. ALBRIGHT, ET AL.,
Plaintiffs
DANIEL EARL HIGGINS, III, MICHAEL J. OPOKA,
Case: 19-2078 Document: 130 Page: 2 Filed: 12/01/2020
2 ALBRIGHT v. UNITED STATES
ZELDA L. OPOKA,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2019-2078, 2019-2080, 2019-2090, 2019-2316
______________________
Appeals from the United States Court of Federal
Claims in Nos. 1:16-cv-00912-NBF, 1:16-cv-01565-NBF,
1:18-cv-00375-NBF, Senior Judge Nancy B. Firestone.
______________________
Decided: December 1, 2020
______________________
THOMAS SCOTT STEWART, Stewart Wald & McCulley,
LLC, Kansas City, MO, argued for all plaintiffs-appellants.
Plaintiffs-appellants Neal Abrahamson, Randy Anderson,
Judy Anderson, Braukman Loving Trust, Hannelore
Drugg, James Haley, Deslee Kahrs, Donna Kahrs, Won
Wha Kim, Jeong Ho Kim, Terry Kline, Debbie Kline, Mas-
cott, LLC, Terry S. McCamman, Cheryl A. McCamman,
Sharon Newman, Cheryl D. Runnels Trust, Barbara L.
Thompson Revocable Living Trust, William E. Waibel Liv-
ing Trust and Pamela A. Waibel Living Trust, Diane Wal-
ters, Richard Young, Advance Resorts of America, Inc.,
William Appleton, Jacqueline Appleton, Berrie Beach,
LLC, Maureen Berrie-Lawson, Angelina Best, Brecht Fam-
ily Trust, Neil Brown, Randall S. Burbach Trust, Douglas
Burrows, Chastain Family Limited Partnership, Gary L.
Dowen, Mary E. Dowen, Scott Ford, Rosalie Gehlen, Len-
hart A. Gienger Trust, Rick Hass, Barbara Hass, Cheri
Heath-Rickert, James Henriksen, David Hirschfield,
Case: 19-2078 Document: 130 Page: 3 Filed: 12/01/2020
ALBRIGHT v. UNITED STATES 3
Roberta J. Hoffard Revocable Living Trust, Claudia Jame-
son, Darleen Johnson, Betsy A. King Revocable Trust, Wil-
liam Neuman, Ruffo Family Revocable Living Trust,
Patricia Shotwell, Kevin Thomas, Carol Thomas, Shirley
M. Thomas Revocable Living Trust, Zapp Family Revoca-
ble Living Trust, Paul D. Ancheta, Donald Aten, Linda
Aten, Brummund Family Revocable Living Trust, David
William Bruneau Trust, Kim Kristina Bruneau Trust,
Daniel Stokes, Judith Stokes, Franklin Byrnes, Alice
Yetka, Mark Escriva, Maryann Escriva, Falconer Family
Trust, Farmington Hubbard Adams Enterprises, LLC, Ei-
leen George, Martha Lynn Trost Gray, James Harper,
Georgia Gettman, Stephan Jones, Teresa Jones, Ronald
Koch, Julie Koch, LOLA OTT IV, LLC, Ebben McCarty,
James McDonald, Sally McDonald, Synthia McIver, Zhim-
ing Mei, Oregon Conference of the Methodist Church, Ore-
gon-Idaho Annual Conference of the United Methodist
Church, Oregon Writers Colony, Inc., Ardyce K. Osborn
Revocable Living Trust, Rockaway Sandwood Ltd., Michael
Sabin, Jerry Schlegel, Van's Camp LLC, Fred Wale, An-
drea Lynn Wallace, Mary Judith Upright Living Trust also
represented by ELIZABETH MCCULLEY; MICHAEL JAMES
SMITH, STEVEN WALD, St. Louis, MO.
JAMES H. HULME, Arent Fox LLP, Washington, DC, for
plaintiffs-appellants Edward J. Bates, Judith A. Bates,
Todd A. Bridge, Rebecca A. Bridge, Sherry D. Crocker,
Howard N. Dietrich, Sr., Bradley C. Donohue, Erickson Re-
alty, Ltd., Joseph A. Evers, Beverly J. Evers, Evers Family
Farms, Inc., Roderick Michael Gordon Living Trust, Daniel
Earl Higgins, III, Jason Hitz, Christy Hitz, Mark Beer,
Carol Beer, JC Purinton Group, LLC, Dmitri Kosten, Kurt
Langeberg, Linda Langeberg, Lardner Family Revocable
Trust, M& GT Land Management LLC, James E.
McConnell, Rita J. McConnell, Michael J. Opoka, Zelda L.
Opoka, Lyal T. Purinton, Sandra K. Purinton, Barbara
Reimers Family Trust, Schwietert Enterprises II, LLC,
Brady A. Smith, Patrick Toews, Dominique Toews, Upper
Case: 19-2078 Document: 130 Page: 4 Filed: 12/01/2020
4 ALBRIGHT v. UNITED STATES
Crust Real Estate, LLC, Eric P. Williams, Karen J. Wil-
liams, Charles Winders, James P. Calpin Trust, Carla C.
Albright, Gary E. Albright. Also represented by DONALD
B. MITCHELL, JR.
MEGHAN S. LARGENT, LewisRice, St. Louis, MO, for
plaintiffs-appellants Carole J. Bellisario, Martha Bush,
George W. DeGeer, Tracy J. Keegan, David L. Hubbell,
Gregory K. Hulbert Trust, Jamieson Land and Timber,
LLC, Gail M. Kessinger, James A. Kliewer, Susan M.
Kliewer, Little Family Trust, James C. Miller, Diane
Foeller Miller, Daniel Mathias Foeller, Thomas Charles
Foeller, Thomas J. Rinck and Sandra Gift Trust, Switzer
Family Trust, Steven Michael Van Doren, Linda Ann Van
Doren, Willa Worley, Richard John Vidler, Jr., Arlene
Frances Wolever Trust. Also represented by LINDSAY
BRINTON.
ANNA KATSELAS, Environment and Natural Resources
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee. Also represented
by JEFFREY B. CLARK, ERIC GRANT.
MARK F. HEARNE, II, True North Law Group, LLC, St.
Louis, MO, for amicus curiae National Association of Re-
versionary Property Owners. Also represented by STEPHEN
S. DAVIS.
______________________
Before PROST, Chief Judge, LINN and TARANTO, Circuit
Judges.
PROST, Chief Judge.
These consolidated appeals stem from a “rails-to-trails”
conversion in Oregon. The Court of Federal Claims deter-
mined that the twenty-six deeds at issue each conveyed fee
simple title, not an easement, from Appellants’
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ALBRIGHT v. UNITED STATES 5
predecessors-in-interest to the railroad. 1 See generally
Loveridge v. United States, No. 16-912L, 2019 WL 495578(Fed. Cl. Feb. 8, 2019) (“Reconsideration”); Loveridge v.
United States, 139 Fed. Cl. 122 (2018) (“Decision”). For
that reason, the Court of Federal Claims concluded that
Appellants have no compensable property interest in the
land to which the deeds pertain. Appellants appealed. We
affirm.
I
The United States Surface and Transportation Board
(“STB”) has regulatory authority over rail carriers who
wish to discontinue or abandon any part of their railroad
line. 49 U.S.C. §§ 10501(b), 10903. Discontinuance “allows
a railroad to cease operating a line for an indefinite period
while preserving the rail corridor for possible reactivation
of service in the future.” Preseault v. Interstate Commerce
Comm’n, 494 U.S. 1, 4 n.3 (1990) (“Preseault I”). Abandon-
ment “removes the line from the national rail system and
1 Like the parties, we identify the deeds by the gran-
tor’s name or, if the grantor executed more than one deed,
by both the grantor’s name and the book and leading page
number. The deeds at issue on appeal are Beals 18/40
(J.A. 20, 1219); Bryden (J.A. 24, 1234); Burgholzer 83/99
(J.A. 26, 1238); Cummings (J.A. 35, 1263); DuBois 24/40
(J.A. 41, 1281); Friday (J.A. 44, 1296); Galvani (J.A. 45,
1300); Gattrell (J.A. 46, 1302); Goodwin (J.A. 50, 1310);
Hagen (J.A. 51, 1312); Jeffries (J.A. 63, 1357); Rinck
(J.A. 88, 1438); Rupp (J.A. 92, 1446); Slattery (J.A. 96,
1462); Smith (J.A. 97, 4871); Stowell (J.A. 100, 1473);
Thayer 11/355 (J.A. 103, 1478); Watt 12/343 (J.A. 112,
1478); Watt 12/344 (J.A. 113, 1502); Watt 12/345 (J.A. 114,
1504); Westinghouse 85/39 (J.A. 117, 1504); Wheeler Lum-
ber 16/3 (J.A. 119, 2133); Wheeler Lumber 16/5 (J.A. 120,
4773); Wilson 75/244 (J.A. 122, 1524); Woodbury 16/481
(J.A. 123, 4864); and Woodbury 23/399 (J.A. 124, 4829).
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6 ALBRIGHT v. UNITED STATES
terminates the railroad’s common carrier obligation for the
line.” Chi. Coating Co., LLC v. United States, 892 F.3d
1164, 1166 (Fed. Cir. 2018). A railroad seeking to abandon
any part of its railroad line must either file a standard
abandonment application under 49 U.S.C. § 10903 or seek
an exemption under 49 U.S.C. § 10502. See Caldwell v.
United States, 391 F.3d 1226, 1228 & n.3 (Fed. Cir. 2004).
A provision of the National Trails System Act Amend-
ments of 1983, Pub. L. No. 98-11, sec. 208(1), 97 Stat. 42,
48 (codified as amended at 16 U.S.C. § 1247(d)), provides
an alternative to abandonment called “railbanking,” which
preserves the possibility of future use of the land for rail-
road purposes but permits a trail sponsor to both take re-
sponsibility for the land and convert it in the interim to a
recreational trail. Preseault I, 494 U.S. at 6–7; Chi. Coat-
ing, 892 F.3d at 1167. To initiate this process, a prospec-
tive trail sponsor must first notify the STB of its interest to
repurpose the land to interim trail use. Preseault I,
494 U.S. at 7 n.5; Chi. Coating, 892 F.3d at 1167 & n.3. If
the railroad agrees to negotiate an interim trail use/rail-
banking agreement with the prospective trail sponsor, the
STB issues a Certificate of Interim Trail Use (“CITU”) or,
in the case of exemption proceedings, a Notice of Interim
Trail Use (“NITU”). See 49 C.F.R. § 1152.29(c)–(d);
Caquelin v. United States, 959 F.3d 1360, 1363 (Fed. Cir.
2020); Chi. Coating, 892 F.3d at 1167. The CITU or NITU
provides the parties with a period of time to negotiate a
trail use agreement. See 49 C.F.R. § 1152.29. If the parties
reach an agreement, upon notifying the STB, the corridor
is railbanked, and the trail sponsor may convert the rail
segment to a trail. See Preseault I, 494 U.S. at 7.
Turning now to this case, on May 26, 2016, the Port of
Tillamook Bay Railroad (“POTB”) filed an exemption notice
with the STB to abandon the portion of its rail line located
between milepost 775.1 (near Banks, Oregon) and milepost
856.08 (near Tillamook, Oregon). On June 7, 2016, the
Salmonberry Trail Intergovernmental Agency (“STIA”)
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ALBRIGHT v. UNITED STATES 7
asked the STB to issue a NITU for the segment. The STB
issued the NITU on July 26, 2016, after POTB expressed
its willingness to negotiate with STIA for interim trail use
and railbanking. STIA and POTB ultimately reached an
interim trail use agreement and notified the STB of the
agreement on October 23, 2017.
Shortly after the NITU issued, Plaintiffs-Appellants
filed the underlying action in the Court of Federal Claims,
alleging that the conversion of the land to interim trail use
amounted to a Fifth Amendment taking. One hundred
thirty-two deeds were initially at issue in the case.
Twenty-six deeds remain at issue in this appeal. Appel-
lants contend that “their predecessors-in-interest granted
only easements to the railroad which terminated when the
railroad became dormant” and, as a result, “conversion of
the rail corridor gave rise to a” compensable Fifth Amend-
ment taking. See Decision, 139 Fed. Cl. at 127. In re-
sponse, the government argued that there was no
compensable taking because the deeds at issue “conveyed
the property within the rail corridor to the railroads in fee
simple absolute.” Id. The Court of Federal Claims agreed
with the government, concluding on partial summary judg-
ment that the twenty-six deeds at issue conveyed fee sim-
ple title to the railroad and that, therefore, no Fifth
Amendment taking occurred.
Appellants appealed. We have jurisdiction under
28 U.S.C. § 1295(a)(3).
II
We review de novo the decision of the Court of Federal
Claims on summary judgment. Cienega Gardens v. United
States, 331 F.3d 1319, 1328 (Fed. Cir. 2003); see also Chi.
Coating, 892 F.3d at 1169. “Summary judgment is appro-
priate where there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a mat-
ter of law.” Arko Exec. Servs., Inc. v. United States,
553 F.3d 1375, 1378 (Fed. Cir. 2009) (citing Anderson v.
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8 ALBRIGHT v. UNITED STATES
Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)); see also R.
Ct. Fed. Cl. 56(a).
The Fifth Amendment of the Constitution provides
that “private property [shall not] be taken for public use,
without just compensation.” U.S. CONST. amend. V, cl. 4.
Here, the only issue on appeal is whether the twenty-six
deeds at issue conveyed to the railroad an estate in fee sim-
ple absolute or an easement. If the deeds conveyed only an
easement, then the Appellants might have a valid takings
claim. See Preseault v. United States, 100 F.3d 1525, 1533
(Fed. Cir. 1996) (en banc) (“Preseault II”); see also Chi.
Coating, 892 F.3d at 1170; Ellamae Phillips Co. v. United
States, 564 F.3d 1367, 1373 (Fed. Cir. 2009). But if the
railroad “obtained fee simple title to the land over which it
was to operate, and that title inures, as it would, to its suc-
cessors, the [Appellants] would have no right or interest in
those parcels and could have no claim related to those par-
cels for a taking.” Preseault II, 100 F.3d at 1533; see also
Chi. Coating, 892 F.3d at 1170; Ellamae Phillips, 564 F.3d
at 1373. To determine the nature of the conveyance, we
apply Oregon law as it is “the law of the state where the
property interest[s] arise[].” Chi. Coating, 892 F.3d
at 1170.
For the reasons below, we agree with the Court of Fed-
eral Claims that each of the twenty-six deeds conveyed fee
simple title to the railroad and, accordingly, Appellants
have no compensable Fifth Amendment takings claim re-
lating to these deeds.
A
Under Oregon law, “[w]hether an instrument conveys
ownership of land or only an easement depends upon the
intention of the parties.” 2 Bouche v. Wagner, 293 P.2d 203,
2 The parties dispute whether, under Oregon law, it
is presumed that the parties intended to convey a fee
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ALBRIGHT v. UNITED STATES 9
208 (Or. 1956) (internal quotation marks omitted); see also
Bernards v. Link, 248 P.2d 341, 344 (Or. 1952).
In Wason v. Pilz, a case that did not involve a railroad
deed, the Oregon Supreme Court considered a deed convey-
ing a parcel of land for road purposes. 48 P. 701, 701–02
(Or. 1897). The court concluded that because the convey-
ance granted land only for limited purposes, the language
of the conveyance was “indicative of an easement only” and
was “controlling as the measure of the estate granted.” Id.In Bernards, the Oregon Supreme Court held that the
railroad deed at issue granted an easement, not a fee sim-
ple estate, and stated:
It will be observed from the deed that (1) it was en-
titled “Right of Way Deed”; (2) a conveyance of the
strip was made “for use as a right of way”; (3) the
consideration was only $1 [i.e., the consideration
was nominal]; (4) the conveyance was subject to a
condition subsequent which revested all title in the
grantors in the event the stipulated condition oc-
curred; (5) the grantees were required to construct
for the use of the grantors a cattle crossing; (6) the
description included the phrase “over and across
and out of the land of the grantors”; (7) the phrase-
ology employed repeatedly the term “strip of land”;
[and] (8) the grantee was required to “build and
keep in repair a good and substantial fence along
each side of the strip.”
Bernards, 248 P.2d at 343–44. Although “[v]arious tests
ha[d] been suggested by the commentators for facilitating
simple estate unless the intent to pass a lesser estate was
expressly stated or necessarily implied. We need not de-
cide this issue to resolve the case, as we conclude that the
deeds at issue convey a fee simple estate even if there is no
presumption that they did so.
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10 ALBRIGHT v. UNITED STATES
a determination whether a deed like the one before [the
court] grants an easement or conveys the fee,” the court
“deem[ed] it unnecessary to set forth . . . a review of the
many authorities cited by the parties” because “the [Wa-
son] decision is determinative of the issues under consider-
ation.” Id. at 343–44. In particular, like the deed in Wason,
the deed in Bernards similarly conveyed land only for a
limited purpose: specifically, the deed “convey[ed] . . . for
its use as a right of way for a railroad, a strip of land.” Id.
at 342 (emphasis added.
The Oregon Supreme Court considered another rail-
road deed in Bouche but this time concluded that the deed
conveyed fee simple title. 293 P.2d at 210. As in Bernards,
the court stressed the importance of what the deed pur-
ports to convey. Specifically, the court explained:
A study of the cited cases suggests that the courts
have little difficulty, where a railroad company is
the grantee, in declaring that the instrument cre-
ates only an easement whenever the grant is a use
to be made of the property, usually, but not invari-
ably, described as for use as a right of way in the
grant.
On the other hand, . . . [c]onveyances to railroads,
which purport to grant and convey a strip, piece,
parcel, or tract of land, and which do not contain
additional language relating to the use or purpose
to which the land is to be put or in other ways cut-
ting down or limiting, directly or indirectly, the es-
tate conveyed, are usually construed as passing an
estate in fee.
Id. at 209 (internal quotation marks omitted).
The court further remarked that courts had “ex-
press[ed] a divergence of opinion when the conveyance
merely has a reference to the use or purpose to which the
land is to be put, and which is contained in either the
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ALBRIGHT v. UNITED STATES 11
granting or habendum clause, and, except for the reference,
would uniformly be construed as passing title in fee.” Id.
The court explained that the “confusion . . . arises for the
most part in the failure to distinguish the twofold meaning
of the words ‘right of way.’” Id. Specifically, the term right
of way is “sometimes 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.” Id. (quoting Joy
v. City of St. Louis, 138 U.S. 1, 44 (1891) (emphasis omit-
ted)).
In considering the 1921 deed at issue in the case, the
court concluded that “it was the intention of the parties
that the fee in the land should pass,” reasoning:
The conveyance is not entitled (1) a “right of way
deed”; (2) the granting clause conveys land, not a
right; (3) the consideration was substantial ($650);
(4) there is no reverter provided for; (5) the words
“over and across the lands of the grantors” do not
appear; and (6) the land conveyed is described with
precision.
Id. at 206, 209–10. The court explained further that “[t]he
only indication that the parties may have intended an ease-
ment should pass is the incidental reference to a ‘right of
way’ in the covenant following the granting and habendum
clause,” but that term “could have referred to either the
right of passage or to the land itself,” and there was noth-
ing in the deed that limited the use the grantee might make
of the land. Id. at 209.
The court also concluded that the 1919 deed at issue
“conveyed the fee simple title to the land involved,” reason-
ing:
[The deed] contained no mention of a right of way;
it described the subject of the grant as “a strip of
land,” not as a “right,” and there was no statement
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12 ALBRIGHT v. UNITED STATES
of the purposes for which it was granted; it de-
scribed the land conveyed with a relatively high de-
gree of precision; and the habendum clause is of the
type usually employed to convey a fee simple title.
Id. at 206–07, 210.
B
We conclude that each of the twenty-six deeds con-
veyed fee simple title, not merely an easement, and we thus
affirm the decision of the Court of Federal Claims.
Importantly, the granting clauses of all twenty-six
deeds at issue purport to convey land—not an easement,
not a right of way, and not property for specified purposes.
Seventeen of the deeds provide, with at most minor and
immaterial grammatical differences: “[The grantors] bar-
gain, sell, grant, convey, and confirm” to the railroad com-
pany “and to its successors and assigns forever, all of the
following described real property . . . to wit: a strip of land
. . . .” (emphasis added). 3 Four deeds provide, again with
at most minor and immaterial grammatical differences:
“[The grantors] grant, bargain and sell, convey[,] and con-
firm . . . all that certain lot, piece, parcel and tract of land
. . . .” (emphasis added). 4 Four more deeds provide, yet
again with at most minor immaterial grammatical differ-
ences: “[The grantors] bargain, sell, grant, convey[,] and
confirm . . . a strip of land . . . .” (emphasis added). 5 And
3 These deeds are Beals 18/40, Burgholzer 83/99,
Cummings, DuBois 24/40, Goodwin, Jeffries, Rinck, Slat-
tery, Smith, Thayer 11/355, Watt 12/343, Watt 12/344,
Watt 12/345, Westinghouse 85/39, Wheeler Lumber 16/3,
Wheeler Lumber 16/5, and Wilson 75/244.
4 These deeds are Friday, Galvani, Hagen, and Stow-
ell.
5 These deeds are Gattrell, Rupp, Woodbury 16/481,
and Woodbury 23/399.
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ALBRIGHT v. UNITED STATES 13
the remaining deed—Bryden—provides: “[The grantors]
grant, bargain, sell and convey . . . all of the following
bounded and described real property . . . a strip of land
. . . .” (emphasis added).
Although four of the deeds—Bryden, Friday, Smith,
and Stowell—include the word “right of way,” the deeds do
so only in their descriptions of the property conveyed and
only to describe the land itself, not to describe what was
being conveyed. Reconsideration, 2019 WL 495578,
at *51–52, 56–57; see Bouche, 293 P.2d at 209 (discussing
the “twofold meaning” of right of way).
In addition, although seven deeds—DuBois, Gattrell,
Goodwin, Rinck, Slattery, Wheeler Lumber 16/3, and
Wheeler Lumber 16/5—further indicate that the right to
operate a railroad is conveyed, this language is clearly em-
ployed merely to confirm that the conveyance includes that
right, not to limit the interest conveyed to that right. E.g.,
J.A. 50–51, 1310 (providing that “real property” is con-
veyed to the railroad “and to its successors and assigns for-
ever[,] . . . together with the appurtenances[,] tenements[,]
and hereditaments thereunto belonging or in anywise ap-
pertaining, together also with the right to maintain and op-
erate a railroad thereover” (emphasis added)); J.A. 120–
121, 4773 (providing that “real property” is conveyed to the
railroad “and to its successors and assigns forever . . .
[t]ogether with the appurtenances, tenements[,] and here-
ditaments thereunto belonging or in anywise appertain-
ing[,] . . . grantors confirming also to the grantee, its
successors and assigns, the right to build, maintain and op-
erate a line of railway thereover” (emphasis added)).
In addition, none of the deeds provide for a reverter or
otherwise contain language limiting the use that the
grantee could make of the land. To the contrary, each of
the deeds purport to convey land to the grantee and “to its
successors and assigns forever.” And twenty-five of the
twenty-six deeds specify that the land is conveyed with all
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14 ALBRIGHT v. UNITED STATES
appurtenances, tenements and hereditaments. The deeds
at issue are thus much more akin to the 1921 deed in
Bouche than to the deed in Bernards. Compare Bouche,
293 P.2d at 209 (concluding that the 1921 deed conveyed a
fee simple in part because “there [was] no reverter provided
for”), with Bernards, 248 P.2d at 342 (deed at issue provid-
ing that “should [the grantee] fail so to build such railroad,
this grant shall become null and void, and the title to said
strip so conveyed shall revert to said grantors and their
successors in interest”).
In sum, like the granting clause at issue in Bouche, the
granting clauses in all the deeds at issue here plainly pur-
port to convey real property. And the deeds state that the
property is conveyed to the grantee and its successors and
assigns “forever.” The granting clauses do not purport to
convey an easement, a right of way, or something else that
would indicate an intent to convey an easement, such as
property for specific purposes like the deed at issue in Ber-
nards. Nor do the deeds provide for reverter or otherwise
limit the uses the grantee can make of the land. These ob-
servations strongly support the conclusion that the deeds
transferred fee simple absolute title to the land. See
Bouche, 293 P.2d at 209–10; Bernards, 248 P.2d at 342–44.
Nothing points us to a different conclusion. Appellants
argue that the deeds’ use of the phrase “strip of land” evi-
dences that the deeds conveyed only an easement. Appel-
lants rely on Bernards’s “observation” that the deed at
issue, which the court construed as conveying an easement,
“employed repeatedly the term ‘strip of land.’” Bernards,
248 P.2d at 343.
Appellants’ argument is unpersuasive. For starters,
the Bouche court stated that “[c]onveyances to railroads,
which purport to grant and convey a strip . . . of land” and
do not otherwise limit the estate conveyed “are usually con-
strued as passing an estate in fee.” Bouche, 293 P.2d
at 209. The Bouche court also specifically concluded that
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ALBRIGHT v. UNITED STATES 15
the 1919 deed at issue conveyed fee simple title in part be-
cause “it described the subject of the grant as ‘a strip of
land,’ not as a ‘right.’” Id. at 210. Accordingly, although
the deeds describe the land conveyed as a strip, that fact,
standing alone, does not evidence that the parties to the
deed intended to convey only an easement.
Even assuming Appellants are correct that Bernards
attached significance to the deeds’ use of the term “strip of
land,” Bouche appears to have reduced or eliminated such
significance. And it is not at all clear that Bernards did
attach great significance to the term, considering Bernards
merely observed that the deed included the term but oth-
erwise rested heavily on Wason—which did not relate to
the significance of the term strip of land—in reaching its
decision. See Bernards, 248 P.2d at 343–44. Furthermore,
at most Bernards attached significance to “repeated[]” use
of the term strip of land, but here the deeds use the term
infrequently: most use the term only once to describe the
land being conveyed, and the deeds that more often use the
term do so only because they describe more than one strip
of land.
Appellants further point to a number of Oregon Su-
preme Court cases stating that it is against public policy to
have numerous strips of land all held separately in fee sim-
ple absolute. See, e.g., Cross v. Talbot, 254 P. 827, 828
(Or. 1927). This argument is also unpersuasive. Our deci-
sion relies on the relevant Oregon case law, including Ber-
nards and Bouche. Appellants have failed to persuade us
that Bernards and Bouche are not good law or otherwise do
not already account for this public policy, particularly con-
sidering that the Oregon Supreme Court announced this
public policy long before Bernards and Bouche. Further-
more, we note that it is beyond question that, under Oregon
law, railroads sometimes obtained fee simple title to strips
of land used for their rail lines. See, e.g., Bouche, 293 P.2d
203. This is such a case.
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16 ALBRIGHT v. UNITED STATES
In addition, Appellants contend that the deeds do not
describe the land with precision, which favors finding that
the deeds convey an easement. This argument falls short
because each of the deeds describes the land conveyed with
at least some precision. In particular, each deed identifies
the boundaries of the strip of land conveyed in reference to
the centerline of the railroad that had been surveyed and
located before executing the deeds. Under such circum-
stances, it can hardly be said that the deeds failed to ade-
quately specify the boundaries of the land conveyed. See,
e.g., Restatement (First) of Property § 471 (1944) (observ-
ing that “a conveyance creating an estate” can describe the
land conveyed “in any of many different ways,” including
“by reference to an area to be located by survey with refer-
ence to a known point or points”).
Appellants also highlight that many of the deeds use
the term “through” or “across,” which they contend is simi-
lar to the Bernards deed’s usage of “over and across and out
of the land of the grantors.” Bernards, 248 P.2d at 342–43.
We are not convinced. The deed in Bernards used that
phrase in the granting clause to describe what was con-
veyed, and the usage suggested that the deed conveyed not
a possessory interest in the property itself but rather a
nonpossessory right of way over and across the land. See
id. In contrast, here the deeds do not use “through” and
“across” to limit what was conveyed by the deed. Rather,
the deeds use the terms only in the description of the prop-
erty conveyed and merely to communicate that the railroad
had been located through certain property.
Furthermore, Appellants argue that, for many of the
deeds, the stated consideration was nominal, which Appel-
lants contend evidences that the parties intended to convey
only an easement. Under these circumstances, reciting
nominal consideration is insufficient to overcome the other
factors supporting a determination that the deeds convey
an estate in fee simple absolute. We also note that, on at
least one occasion, an Oregon appellate court gave little
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ALBRIGHT v. UNITED STATES 17
weight to a pre-1967 deed’s recitation of nominal consider-
ation of $1 on the basis that “[i]t was not until 1967 that
the legislature” began “requiring that conveyances state
true and actual consideration,” and there was “no evidence
that one dollar was the true consideration.” Realvest Corp.
v. Lane Cnty., 100 P.3d 1109, 1118 & n.6 (Or. Ct. App.
2004). Likewise, the deeds at issue here were all executed
prior to 1967, and there is no evidence that the recited con-
sideration is the true consideration.
Finally, Appellants contend that we should construe
the deeds as passing an easement because each deed spe-
cifically states that the railroad had already surveyed and
located a railway across the grantor’s land prior to execut-
ing the deed. Appellants rely on our decision in Preseault
II. There, we interpreted Vermont law as providing that
where a railroad company’s survey and location of the rail-
way precedes the execution of a written instrument, the
survey and location, not the subsequent written instru-
ment, “is the operative determinant.” Preseault II,
100 F.3d at 1536–37. We explained that railroads in Ver-
mont had eminent domain power to acquire easements in
land necessary to operate rail lines. Id. We reasoned that
where a railroad company surveys and locates its right of
way prior to any written agreement, such action evidences
the company’s intent to acquire only an easement pursuant
to its eminent domain authority, and any subsequent writ-
ten conveyance “retain[s] [that] eminent domain flavor.”
Id.Appellants’ reliance on Preseault II is unpersuasive.
Preseault II applied Vermont law, not Oregon law, and we
are unaware of any authority in Oregon that supports Ap-
pellants’ position. To the contrary, the 1921 deed con-
strued in Bouche plainly indicated that it was executed
after the railroad was “located and established,” and the
Bouche court gave no significance whatsoever to that.
Bouche, 206 Or. at 206, 209. We do not accept Appellants’
invitation to depart from Bouche.
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18 ALBRIGHT v. UNITED STATES
Furthermore, even the Supreme Court of Vermont has
not interpreted Preseault II to support Appellants’ position.
In Old Railroad Bed, LLV v. Marcus, the Supreme Court
of Vermont explained that “[t]o the extent that . . . Pre-
seault [II] holds that a location survey automatically con-
verts a subsequent fee-simple conveyance into an
easement, we know of no law in Vermont or elsewhere to
support such a claim.” 196 Vt. 74, 79 (2014). Indeed, a lo-
cation survey does not “preclude[] a railroad from subse-
quently purchasing, or the landowner from subsequently
conveying, a deeded fee-simple interest.” Id. at 81. For at
least these reasons, we do not read Preseault II as broadly
as Appellants, and even if we did, Preseault II would nev-
ertheless not justify departing from Bouche and Bernards.
In short, we conclude that the twenty-six deeds at issue
here each conveyed an estate in fee simple absolute, not an
easement, to the railroad company. Importantly, each of
the deeds purports to convey land, not an easement, right
of way, or property for specified purposes. In addition, the
deeds purport to convey the land forever and do not provide
for reverter or otherwise restrict the use the grantee could
make of the land. Even though some of the deeds recite
only nominal consideration and the deeds were executed
after the railroad was surveyed and located, on balance and
under these circumstances, we conclude that the parties
conveyed estates in fee simple absolute to the railroad com-
pany. 6
6 We further note that even if we were to conclude,
for one or more deeds, that there was irreconcilably con-
flicting language between the granting clause and other
parts of the deed, the granting clause—which purports to
convey land, not a right of way or property for specified
purposes—would control. Palmateer v. Reid, 254 P. 359,
361 (Or. 1927); see also First Nat’l Bank of Or. v. Townsend,
555 P.2d 477, 478 (Or. Ct. App. 1976) (“There is also
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ALBRIGHT v. UNITED STATES 19
III
We have considered Appellants’ remaining arguments
but find them unpersuasive. For the foregoing reasons, we
affirm the decision of the Court of Federal Claims.
AFFIRMED
authority for the more technical proposition that if the in-
tent of the parties cannot be discerned from the deed and
there is, as here, an irreconcilable conflict between the
granting clause and other parts of the deed, the estate con-
veyed in the granting clause will prevail.”).