Flying S. Land Company v. United States ( 2018 )

Nos. 15-1252L, 15-1253L, 15-1268L
Filed: April 10, 2018
* * * * * * * * * * * * * *
*
JOHN ARNOLD, et al., *
FLYING S. LAND CO., et al., *
*
JOE L. DAWSON, et al., *
* Fifth Amendment Taking; Rails to
Plaintiffs, * Trails; Fee Simple; Easement; Deed
v. * Interpretation; Adjacency; Motion to
* Strike.
UNITED STATES, *
*
Defendant. *
* * * * * * * * * * * * * * *
R. Deryl Edwards, Law Offices of R. Deryl Edwards, Joplin, MO, for plaintiffs in
Arnold, et al. v. United States, Case No. 15-1252L.
Thomas S. Stewart, Stewart, Ward & McCulley, LLC, Kansas City, MO, for
plaintiffs in Flying S. Land Co., et al. v. United States, Case No. 15-1253L. With him was
Elizabeth G. McCulley, Stewart, Ward & McCulley, LLC, Kansas City, MO and Steven
M. Wald and Michael Smith, Stewart, Ward & McCulley, LLC, St. Louis, MO.
Megan S. Largent, Arent Fox, LLP, Clayton, MO, for plaintiffs in Dawson, et al. v.
United States, Case No. 15-1268L. With her was Mark F. Hearne, Lindsay S.C. Brinton,
and Stephen S. Davis, Arent Fox, LLP, Washington, D.C.
Davené D. Walker, Trial Attorney, Natural Resources Section, Environment and
Natural Resources Division, United States Department of Justice, Washington, D.C., for
defendant. With her was Jeffrey H. Wood, Acting Assistant Attorney General,
Environment and Natural Resources Division, Washington, D.C.
OPINION
HORN, J.
In these Rails-to-Trails cases, plaintiffs are landowners in Kansas and Nebraska
who allege that they are entitled to receive just compensation under the Fifth Amendment
to the United States Constitution because the United States government allegedly
effected takings of their reversionary property interests through operation of the National
Trails System Act, 16 U.S.C. § 1241 et seq. (2012) (the Trails Act). Plaintiffs allege that
when the United States Surface Transportation Board (STB) issued a Notice of Interim
Trail Use (NITU) on October 22, 2015, related to the railroad line allegedly adjacent and
near to plaintiffs’ property, defendant preempted plaintiffs’ state-law right to regain full,
unencumbered title to their property. Although plaintiffs’ claims in all three cases relate to
the same railroad line in Harlan County, Nebraska, and Norton, Decatur, and Phillips
Counties, Kansas, plaintiffs filed their takings claims as three separate cases,
represented by three separate counsels of record, in the United States Court of Federal
Claims. The cases, which each include multiple types of plaintiffs, are captioned as John
Arnold, et al. v. United States, No. 15-1252L (Arnold), 1 Flying S. Land Co., et al. v. United
1The plaintiffs in Arnold are as follows: John Arnold and Susan Bolek, B & D Farm, LLC
(B & D Farm), Mark and Shayla Bailey, H. Drake and Karen Gebhard, Cecilia (Griffin)
Hillebrand, Jackson Irrevocable Farm Trust, Lee Martin Revocable Trust, Lee Martin,
Bernice Martin, Harold and Kristelle Mizell, Rodney and Tonda Ross, Robert Strevey,
Ricky Temple, L & S Tubbs Family, L.P. (L & S Tubbs Family), John C. and Joann Tweed
Trusts, Edwin and Phyllis Yeater, Ivan and Cathy Bohl Living Trust, and Morlock
Children’s Trust. Counsel of record for the Arnold plaintiffs is R. Deryl Edwards of the Law
Offices of R. Deryl Edwards.
At the beginning of this litigation, Arnold plaintiffs B & D Farm, LLC, was pursuing a
takings claim for two parcels, parcel numbers 136-14-0-00-00-001-00-0 and 136-14-0-
00-00-002-00-0, as was H. Kent and Diana Euhus Living Trusts, parcel numbers 141-01-
0-30-12-011 and 141-01-0-30-12-012. Similarly, Arnold plaintiffs Royce and Vicky Leitner
were identified in the complaint and alleged that the government effected a temporary
taking of their property interest.
Subsequently, plaintiffs in Arnold voluntarily moved to dismiss the claim for B & D Farm,
LLC parcel number 136-14-0-00-00-001-00-0, as well as the claim for Royce and Vicky
Leitner, on July 12, 2017, which the court granted, without prejudice, on August 16, 2017.
On January 4, 2018, plaintiffs in Arnold voluntarily moved to dismiss the two claims of H.
Kent and Diana Euhus Living Trusts, which the court granted, without prejudice, on
January 10, 2018.
2
States, No. 15-1253L (Flying S. Land Co.), 2 and Joe L. Dawson, et al. v. United States,
No. 15-1268L (Dawson). 3
2 The plaintiffs in Flying S. Land Co. are as follows: Flying S. Land Company, Flying S.
Partnership, Jonathan and Karen Cozad, Dale and Lenora Soderland, William C. and
Bertha G. Rea, Oberlin Concrete Co., Judith E. Nelson, Jerry G. and Connie K. Cox, J &
C Partnership LP, James and Janice Bricker, Clayton and Catherine Cox, Garth Gebhard,
Paul and Tammy Vincent, James Holterman, and Orville & Pauline Holterman Revocable
Trust, Sauvage Gas Service, Inc., Culbertson Farms, LLC, Silverstone & Dake’s Canal,
Inc., Dolores M. Koerperich Revocable Living Trust, c/o Dolores M. Koerperich, Gerry N.
and Theresa M. Tally, Perry and Ila Mae Schelling, Leo and Carolyn Zodrow, Edward
Braun, Cecil and Lavon Wright, GRS Revocable Trust, Craig E. Ingram and Genie L.
Ingram Living Trusts, AG Valley Cooperative, Arnold K. Graham, Gilbert T. Graham,
Gayle Mourin, Joan G. Poulus, and Richard and Robert McChesney. Counsel of record
for the Flying S. Land Co. plaintiffs is Thomas S. Stewart of Stewart, Wald & McCulley
LLC.
At the time the complaint was filed in Flying S. Land Co., the Edna M. Boettger Trust was
identified as a plaintiff in the case, however, at plaintiffs’ request, the court dismissed with
prejudice the claim of the Edna M. Boettger trust on January 24, 2017. Kevin L. Tubbs
Living Trust c/o Kevin L. and Miriam L. Ostmeyer Tubbs also was identified as a plaintiff
in the complaint filed in Flying S. Land Co. On January 12, 2018, plaintiffs in Flying S.
Land Co. moved to voluntarily dismiss the claim of Kevin L. Tubbs Living Trust c/o Kevin
L. Tubbs and Miriam L. Ostmeyer Tubbs, which the court granted, without prejudice, on
February 7, 2018.
Additionally, Flying S. Land Co. plaintiffs have identified plaintiffs Arnold K. Graham,
Gilbert T. Graham, Gayle Mourin, and Joan G. Poulus (Arnold K. Graham, et al.) as the
owners of parcel 074-059-31-0-00-00-001.00-0. Flying S. Land Co. plaintiffs have
identified plaintiff Arnold K. Graham as the sole owner of parcel 074-059-31-0-00-00-
004.00-0.
3 The plaintiffs in Dawson are as follows: Joe L. Dawson, Conrad C. Cox and Mary R.
Cox, trustees of the Conrad C. Cox Trust No. 1 and the Mary R. Cox Trust No. 1, Lloyd
E. and Pamela Y. Edgett, G & M Properties, LP (G & M Properties), Bruce G. Guinn, Jr.,
Duane R. and Darlene McEwen, M. Lee and Angela Juenemann, trustees of the M. Lee
Juenemann Living Trust and Angela Juenemann Living Trust (M. Lee and Angela
Juenemann), Shirley Kats and Derek T. Kats, trustees of the Shirley Kats Revocable Trust
and the Derek Kats Revocable Trust, Rosemary L. Mathes, Duane R. Mathes and
Darlene McEwen, Carol K. Ross and Kay L. Lee, trustees of the Carol K. Ross Trust No.
1 (Carol K. Ross and Kay L. Lee), Linda J. Tomasch, John E. Bremer, David G. Bremer,
and Larry L. and Iris L. Smith, trustees of the Larry L. Smith and Iris L. Smith Revocable
Living Trust. Counsel of record for the Dawson plaintiffs is Meghan S. Largent of Arent
Fox, LLP.
At the time plaintiffs in Dawson initiated Case No. 15-1268L, the complaint identified as
plaintiffs Eric Brown, trustee for the Ackerman Trust, Mark and Kathryn Christensen,
3
FINDINGS OF FACT
The Nebraska, Kansas & Colorado Railway (NKCR) previously operated a railroad
line that extended, in relevant part, approximately 57.31 miles through Harlan County,
Nebraska, and Norton, Decatur, and Phillips Counties in Kansas. Plaintiffs are
landowners in Harlan County, Nebraska, and Norton, Decatur, and Phillips Counties,
Kansas.
On May 14, 2015, NKCR proposed to the STB its intent to abandon 57.31 miles of
the railroad line through Nebraska and Kansas, specifically (1) from milepost 3.35 near
Orleans, Nebraska to milepost 29.84 at Almena, Kansas; (2) from milepost 47.23 at
Reager, Kansas to milepost 78.05 at Oberlin, Kansas; and (3) the Norton Spur in Norton,
Kansas. The railroad formalized its proposed abandonment of these segments on June
12, 2015, when it filed a verified Notice of Exemption with the STB. In its Notice of
Exemption, the NKCR certified that no traffic had been handled over the railroad line
segments for more than two years. The STB issued an abandonment exemption on
August 7, 2015, giving the railroad until August 2016 to consummate abandonment.
Subsequently, on September 2, 2015, Sunflower Rails-to-Trails Conservancy (Sunflower)
filed a statement of willingness to assume financial responsibility over the portion of the
rail line that NKCR sought to abandon. On September 14, 2015, Sunflower filed a request
with the STB for trail use over the railroad segments that NKCR had proposed for
Robert Duane, Leanna Henry, and Stacy A. Lambert, Stephen and Rhonda Mees, and
Christina and Nye Pelton. Plaintiffs moved to voluntarily dismiss these plaintiffs, without
prejudice, on July 28, 2017, and the court granted the motion on August 16, 2017.
Defendant originally disputed whether Dawson plaintiff Rosemary L. Mathes was the sole
owner of parcel 069-132-03-0-00-03-001-00-0-01. On July 20, 2017, Dawson plaintiffs
joined Dawson plaintiffs Duane and Darlene McEwen to Rosemary L. Mathes’ claim in its
Fifth Amended Complaint and also asserted a separate claim by Duane and Darlene
McEwen against defendant. Plaintiffs submitted to the court an affidavit of equitable
interest filed with the Norton County Recorder of Deeds’ Office by Duane and Darlene
McEwen in June 2014, which indicated that the McEwens and Rosemary L. Mathes had
entered into an agreement for the purchase and sale of real estate. The agreement
provided the Rosemary L. Mathes was the fee owner of tract one in parcel 069-132-03-
0-00-03-001-00-0-01, subject to the McEwens’ equitable interest. Additionally, plaintiffs
submitted to the court a joint tenancy warranty deed entered into by Rosemary L. Mathes
and Duane and Darlene McEwen on June 13, 2014. The joint tenancy warranty deed
conveyed to the McEwens fee interest in tract two of parcel 069-132-03-0-00-03-001-00-
0-01. Defendant has not submitted any evidence to the court disputing the interest of
Dawson plaintiffs Rosemary L. Mathes and Duane and Darlene McEwen in parcel 069-
132-03-0-00-03-001-00-0-01 and states “there is also no dispute as to whether the
remaining Plaintiffs owned their properties on the date that the STB issued the NITU” in
its motion for summary judgment filed in Dawson on August 18, 2017. For purposes of
clarity, the court refers to the joined claim of Rosemary L. Mathes and Duane and Darlene
McEwen as “Rosemary L. Mathes” and to the McEwens’ separate claim as “Duane and
Darlene McEwen.”
4
abandonment. NKCR filed a notice on September 24, 2015 that it was willing to negotiate
with Sunflower concerning the rail line.
On October 22, 2015, the STB issued a NITU, which invoked Section 1247(d) of
the Trails Act Amendment of 1983, 16 U.S.C. § 1247(d), and authorized the railroad to
negotiate a trail use agreement with Sunflower. Although the NITU was originally for a
period of 180 days, and initially expired on April 19, 2016, Sunflower requested, and
NKCR did not oppose, an extension of the negotiation period. The STB issued a decision
on April 14, 2016, extending the negotiation period until October 16, 2016. Thereafter,
Sunflower requested, but NKCR opposed, a second extension. The STB did not grant
any further extensions, and the NITU expired on October 16, 2016. On November 17,
2016, the STB issued a decision providing that if NKCR chose to abandon its rail line, it
must file a notice of consummation by December 15, 2016. On December 14, 2016,
NKCR requested an extension of its consummation deadline to March 15, 2017, and the
STB granted NKCR’s request on December 15, 2016. NKCR requested another
extension of its consummation deadline on February 16, 2017, which the STB granted on
March 3, 2017, thereby extending NKCR’s deadline to consummate abandonment of the
rail line to September 11, 2017. On September 11, 2017, the STB granted NKCR’s
request to extend the deadline for NKCR to consummate its abandonment of the rail line
from September 11, 2017 to March 1, 2018. NKCR submitted an additional extension of
time to consummate abandonment on February 23, 2018, and, on February 28, 2018, the
STB granted NKCR an extension of time until March 1, 2019 to consummate
abandonment of the railroad corridor. NKCR and Sunflower have not reached a trail use
agreement, and, as of the date of this opinion, NKCR has not filed a notice of
consummation of abandonment.
The parties in Arnold, Dawson, and Flying S. Land Co. have been unable to reach
stipulations regarding title issues, including fee or easement, as well as issues of
adjacency.
Ownership Disputes
In Flying S. Land Co., the parties dispute ownership with regard to plaintiff United
Methodist Church. Defendant contends that Flying S. Land Co. plaintiff United Methodist
Church has not presented adequate evidence to establish its ownership of the property
at issue on October 22, 2015, the date the NITU was issued. Plaintiffs allege that United
Methodist Church acquired the property at issue upon the death of the previous owner,
Loren Gill Sharp. According to plaintiffs, Isiah Sharp devised the property to his son, Loren
Gill Sharp, and plaintiffs argue that in probate documents submitted to the court, Isiah
Sharp intended to convey the property to Loren Gill Sharp, and, if Loren Gill Sharp did
not have children, then the property would pass to the Methodist Episcopal Church at
Norcatur, Kansas, upon the death of Loren Gill Sharp. Plaintiffs submit that Loren Gill
Sharp died without children on March 8, 1960, and, therefore, title to the property was
conveyed to United Methodist Church. In response, defendant argues that, even if Loren
Gill Sharp died without children, plaintiffs have not established that Flying S. Land Co.
plaintiff United Methodist Church ever acquired title to the property.
5
Adjacency Disputes
The parties have stipulated to many of the adjacency issues. The parties, however,
dispute whether the following plaintiffs’ properties are adjacent to the portion of the
railroad corridor affected by the NITU: Arnold plaintiffs Mark and Shayla Bailey, Harold
and Kristelle Mizell parcel 107-36-0-10-04-001, 4 Rodney and Tonda Ross’ parcel 102-
03-0-00-00-004.00-0 on the south side of the railroad corridor, 5 and Robert Strevey;
Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcel 020-141-01-0-30-20-010.00-
0, 6 James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0, 7 Arnold K. Graham
parcel 074-059-31-0-00-00-004.00-0, 8 J & C Partnership, Garth Gebhard, and
Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-01-002.00-0 and 074-056-24-
4Arnold plaintiffs Harold and Kristelle Mizell own two land parcels at issue in this case,
parcels 107-36-0-10-04-001 and 069-151-01-0-00-00-003-00-0-01. Defendant only
challenges the adjacency of parcel 107-36-0-10-04-001.
5 Arnold plaintiffs Rodney and Tonda Ross own parcels on both the southern and northern
sides of the railroad corridor. Defendant asserts that the Ross parcel 069-101-02-0-00-
00-001-00-0-01 on the north side of the railroad corridor is bisected by a state highway,
but defendant agrees that Ross parcel 069-101-02-0-00-00-001-00-0-01 is adjacent to
the railroad corridor.
6As discussed below, Flying S. Land Co. plaintiffs Gerry and Theresa Tally own two
parcels at issue. Defendant only challenges the adjacency of parcel 020-141-01-0-30-20-
010.00-0.
7 Flying S. Land Co. plaintiffs James and Janice Bricker own three parcels at issue in
Flying S. Land Co., parcel 020-124-18-0-00-09-004.00-0, parcel 020-124-18-0-00-03-
001.00-0, and parcel 020-124-18-0-00-01-001.00-0. The parties only dispute the
adjacency of parcel 020-124-18-0-00-03-001.00-0. The parties have stipulated that parcel
020-124-18-0-00-09-004.00-0 and parcel 020-124-18-0-00-01-001.00-0 are adjacent to
the railroad corridor.
8 Arnold plaintiff Arnold K. Graham owns two parcels at issue in the above-captioned
case, parcel 074-059-31-0-00-00-001.00-0 and parcel 074-059-31-0-00-00-004.00-0.
The parties only dispute the adjacency of parcel 074-059-31-0-00-00-004.00-0. The
parties have stipulated parcel 074-059-31-0-00-00-001.00-0 is adjacent to a portion of the
railroad corridor.
6
0-20-01-001.00-0; 9 and Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel
740-056-13-0-00-00-005.00-0. 10
Kansas State Highway 383
Kansas State Highway 383 (K-383) runs between a segment of the railroad
corridor and the following plaintiffs’ properties: Arnold plaintiffs Rodney and Tonda Ross’
parcel 102-03-0-00-00-004.00-0 on the south side of the railroad corridor; Flying S. Land
Co. plaintiffs Arnold K. Graham parcel 074-059-31-0-00-00-004.00-0, J & C Partnership,
Garth Gebhard, and Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-01-
002.00-0 and 074-056-24-0-20-01-001.00-0; and Dawson plaintiffs Conrad C. and Mary
R. Cox Trusts No. 1 parcel 74-056-130-00-00-005-000. Plaintiffs contend that K-383 is
an easement on these plaintiffs’ properties, so these plaintiffs still own the underlying
servient estate and there are no adjacency issues. Defendant disagrees and argues that
the Kansas Department of Transportation (KDOT) owns the highway land in fee, so these
plaintiffs’ parcels are separated from the railroad right-of-way by the highway such that
they are not adjacent to the railroad.
Based on submissions from the parties, it appears that the Kansas State Highway
Commission acquired the land for a state highway in Phillips County, Kansas, through
condemnation proceedings, however, it is not clear if the land for the state highway
referenced in the records of the condemnation proceedings submitted to the court
became K-383. Excerpts from the condemnation proceeding document are reproduced
below, in pertinent part:
The State Highway Commission of the State of Kansas for its petition alleges:
1. That said State Highway Commission is a body corporate under the laws of
the State of Kansas, with powers to lay out, establish, open, construct,
improve and maintain highways for the State of Kansas.
9 Flying S. Land Co. plaintiff Silverstone & Dake’s Canal, Inc. owns six parcels of land at
issue in Flying S. Land Co., which are identified with different parcel numbers. Because
each parcel implicates different issues, throughout the court’s analysis, the court refers
to the number of the parcel at issue. The parties have stipulated Silverstone & Dake’s
Canal, Inc. parcels 074-056-24-0-20-02-001-00-0, 260014100, 360004300, and
380012500 are adjacent to a portion of the railroad corridor.
10 Dawson plaintiffs Conrad Cox and Mary Cox, Trustees of the Conrad Cox Trust No. 1
and the Mary Cox Trust No. 1, own two parcels at issue, parcels 74-044-180-0-00-00-03-
00-0 and 74-056-130-00-00-005-00-0. The parties only dispute the adjacency of parcel
74-056-130-00-00-005-00-0 to the railroad corridor. In their partial motion to dismiss,
counsel for Dawson plaintiffs indicates that plaintiffs are only moving for partial summary
judgment “for the portion of the Cox Trust property that abuts and underlies the portion of
the railroad right-of-way acquired by the Follett ‘Right of Way’ Deed,” however, plaintiffs
discuss both Cox Trust parcels at length in their briefs. As such, the court addresses
plaintiffs’ arguments with regard to both Cox Trust parcels.
7
2. That said State Highway Commission desires to acquire in the name of the
State of Kansas for the establishment, laying out, opening, construction,
maintenance, improvement and drainage of the State Highway System in
Phillips County, Kansas, certain lots and parcels of land situated in said
county owned and described as follows:
[legal descriptions of lots and sections]
3. That on the ___ day of _____, 193_, the State Highway Commission of
Kansas, in regular session, found that in order to establish, lay out, open,
construct, improve, maintain and drain the State Highway System in Phillips
County, Kansas, it is necessary to acquire for such purposes the lots and
parcels of land above described and ordered that said lots and parcels of
land be acquired by the State Highway Commission for the State of Kansas
by the exercise of the right of eminent domain, as provided by R.S. Supp.
1930, 68-413, as amended by Chapter 246, Laws of Kansas, 1931.
4. That the State Highway Commission of Kansas, under and by virtue of R.S.
Supp. 1930, 68-413, as amended by Chapter 246, Laws of Kansas, 1931,
has the power to acquire in the name of the State of Kansas said lots and
parcels of ground or interests or rights therein by the exercise of the right of
eminent domain in accordance with the provisions of article 1, chapter 26,
of the Revised Statutes of 1923.
WHEREFORE, the State Highway Commission of Kansas
respectfully petitions that the Hon. E.E. Kite, Judge of the District Court of
Phillips County, Kansas, to examine this petition and find that this petitioner
has the power of eminent domain that said lands are necessary to said
petitioner’s lawful corporate purposes in the establishment, laying out,
opening, construction, improving, maintenance and drainage of the State
Highway System of Kansas, and that he appoint three disinterested
householders of Phillips County, Kansas, to view and appraise such lands
and parcels of ground; that such appraisers be ordered to take an oath to
well and truthfully make such appraisal and to report their appraisal of each
tract in writing under oath to said Judge; that said report when so made be
ordered filed with the Clerk of the District Court; that said Judge order that
notice of the filing of this petition be given either personally or by registered
mail to the lienholders of record of said lots and parcels of land, as required
by Chapter 246, Laws of Kansas, 1931, and that when these proceedings
are ended a record of said proceedings be filed with the Register of Deeds
of said County and be recorded in the same manner as other conveyances
of title.
(capitalization in original). The legal descriptions of some of the parcels described in this
condemnation appear to correspond with the legal description of the property owned by
Flying S. Land Co. plaintiffs J & C Partnership and Silverstone & Dake’s Canal, Inc.
8
parcels 074-056-24-0-20-01-002.00-0 and 074-056-24-0-20-01-001.00-0 and Dawson
plaintiffs Conrad C. and Mary R. Cox Trusts No. 1, but it is unclear whether the
condemnation proceedings included the parcels owned by Arnold plaintiffs Rodney and
Tonda Ross’s parcel 102-03-0-00-00-004.00-0 and Flying S. Land Co. plaintiffs Arnold K.
Graham parcel 074-059-31-0-00-00-004.00-0 and Garth Gebhard. Additionally, although
it appears that the condemnation proceedings involved land for a state highway in Phillips
County, Kansas, it is unclear if that state highway was K-383.
A chart created and emailed to defendant’s counsel by an employee of KDOT
identifies the plaintiffs’ parcels that are allegedly separated from the railroad corridor by
K-383. This Kansas Department of Transportation, employee-crafted chart indicates that
it is KDOT’s position that it holds fee title for all but one of the portions of K-383 adjacent
to the plaintiffs’ parcels at issue in these cases. This chart states that KDOT obtained this
part of the state highway right-of-way by deed in 1935 and holds fee simple in these
parcels.
Miscellaneous Adjacency Issues
The parties also have been unable to agree upon miscellaneous adjacency issues
that are distinct from K-383 for the following plaintiffs: Arnold plaintiffs Mark and Shayla
Bailey, Robert Strevey, and Harold and Kristelle Mizell parcel 107-36-0-10-04-001; and
Flying S. Land Co. plaintiffs Gerry and Theresa Tally and James and Janice Bricker.
A road, W. Opelik Street, which is distinct from K-383, appears to run between the
parcel owned by Arnold plaintiffs Mark and Shayla Bailey and the railroad corridor.
Additionally, N. Decatur Street, which is also distinct from K-383, appears to run between
both Arnold plaintiffs Robert Strevey parcel 107-36-0-10-04-002 and Harold and Kristelle
Mizell parcel 107-36-0-10-04-001 and the railroad corridor.
The parties also dispute whether certain parcels belonging to Flying S. Land Co.
plaintiffs Gerry and Theresa Tally and James and Janice Bricker are adjacent to the
railroad corridor. Plaintiffs in Flying S. Land Co. hired an external firm to map these
parcels in relation to the railroad corridor. In reliance on information gathered by this
external firm, plaintiffs argue that Tally parcel 020-141-01-0-30-20-010.00-0 11 is “adjacent
to the railroad corridor for approximately 345 feet. There is no road or parcel in between
the parcel and the corridor on the eastern 345 feet of the parcel. The western portion of
this parcel is blocked by the Church . . . .” In submissions to the court, plaintiffs represent
that, “[t]he County reported that a former street, South Mill Street, was vacated and the
south half of the road sent to the Tally parcel and the north half of the road went to the
Church of Christ parcel.” Plaintiffs rely on a map they allegedly received from the Decatur
County Assessor’s office that appears, albeit blurrily, to state “VACATED STREET” above
11 As noted above, Gerry and Theresa Tally have two claims for two parcels of land. The
parties have stipulated that parcel 020-141-01-0-30-19-005.00-0 is adjacent to the
railroad corridor. The parcel discussed above with adjacency issues is parcel 020-141-
01-0-30-20-010.00-0.
9
the street at issue. (capitalization in original). There is no definitive evidence in the record
that South Mill Street, indeed, was vacated or that the road “went” to the Church of Christ
and Flying S. Land Co. plaintiffs Gerry and Theresa Tally upon being vacated, nor is there
a legal description of what the word “went” means in the submitted document.
With regard to Flying S. Land Co. plaintiffs James and Janice Bricker parcel 020-
124-18-0-00-03-001.00-0, 12 plaintiffs represent that it was separated from the railroad
corridor by a road, South Railroad Street. According to plaintiffs, South Railroad Street
does not appear to be “on the list of vacated streets,” provided by the Recorder of Deeds
in Decatur County, Kansas. Thus, although plaintiffs assert that James and Janice
Bricker’s parcel 020-124-18-0-00-03-001.00-0 is adjacent to the railroad corridor,
plaintiffs recognize that there is a road separating the Bricker parcel from the railroad
corridor.
Conveyances
NKCR acquired the railroad line at issue in these cases from its predecessors-in-
interest, the Burlington, Kansas & Southwestern Railroad Company and the Chicago,
Burlington & Quincy Railroad Company. The railroad, and its predecessors, obtained its
interests in the railroad corridor in five ways: condemnation proceedings, the General
Railroad Right-of-Way Act of 1875, 43 U.S.C. § 934 (1875), private “Right of Way Deeds,”
1950 deeds from the United States, and deeds from the Lincoln Land Company.
In and around 1885, the Burlington, Kansas & Southwestern Railroad Company,
one of NKCR’s predecessors-in-interest, began construction of a railroad line that
traveled through Kansas and Nebraska and acquired land needed to construct the
railroad by condemnation proceedings, the General Railroad Right–of–Way Act of 1875,
private “Right of Way Deeds,” and deeds from the Lincoln Land Company. In 1950, the
Chicago, Burlington & Quincy Railroad Company, which was the successor-in-interest to
the Burlington, Kansas & Southwestern Railroad Company, acquired a portion of the
railroad corridor through deeds entered into by the United States, the railroad company,
Phillips County, Kansas, and Harlan County, Nebraska, to facilitate the construction of
the Harlan County Reservoir and Dam. At the time, part of the railroad line interfered with
the construction of the Harlan County Reservoir and Dam, which was necessary to
address severe flooding in the region, and the Chicago, Burlington & Quincy Railroad
Company entered into an agreement with the United States to construct an alternate
railroad line around the reservoir, through which it obtained the right-of-way to bypass the
reservoir.
The parties have stipulated to the applicable conveyance documents from
plaintiffs’ predecessors-in-interest to the railroad company’s predecessor-in-interest for
all plaintiffs except Flying S. Land Co. plaintiffs Gerry N. and Theresa M. Tally parcels
020-141-01-0-30-20-010.00-0 and 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co.,
12Flying S. Land Co. plaintiffs James and Janice Bricker have three claims for three
parcels of land. The parties have stipulated that parcels 020-124-18-0-00-09-004.00-0
and 020-124-18-0-00-01-001.00-0 are adjacent to the railroad corridor.
10
James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-
001.00-0, and 020-124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-
056-23-0-40-02-002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone &
Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0.
Lincoln Land Company Deeds or Condemnation
The parties dispute the applicable source conveyances from plaintiffs’
predecessors-in-title to the railroad company’s predecessor-in-interest for the following
Flying S. Land Co. plaintiffs: Gerry and Theresa Tally parcels 020-141-01-0-30-20-
010.00-0 and 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co., James and Janice
Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-
124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-
002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s Canal,
Inc. parcel 074-056-24-0-20-01-002.00-0. Plaintiffs contend that the Burlington, Kansas
& Southwestern Railroad Company acquired the railroad corridor over these plaintiffs’
properties through condemnation proceedings in Decatur and Phillips Counties, Kansas.
According to documents submitted by plaintiffs, the Decatur County condemnation was
filed on June 30, 1885, “to lay out a . . . Right of Way for the Burlington, Kansas and
Southwestern Railroad Company . . . .” The Decatur County condemnation includes legal
descriptions of parcels that belonged to Gerry & Theresa Tally parcels 020-141-01-0-30-
20-010.00-0 and 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s predecessor-
in-title. The Phillips County condemnation was filed on June 30, 1885, for “laying off right
of way . . . for the Burlington, Kansas and South Western Rail Road.” The Phillips County
condemnation does not include legal descriptions matching the legal descriptions owned
by Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcels 020-141-01-0-30-20-
010.00-0 and 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co., James and Janice
Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-
124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-
002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s Canal,
Inc. parcel 074-056-24-0-20-01-002.00-0. Defendant, however, contends that the
applicable conveyances for these parcels are a series of deeds in which the Lincoln Land
Company granted the land to the railroad company in fee. Defendant also states that a
valuation chart created by the Interstate Commerce Commission (ICC) in 1917 “clearly
identifies four deeds from the Lincoln Land Company to the railroad as the source
conveyance” for the section of the railroad corridor that is adjacent to Flying S. Land Co.
plaintiffs Gerry and Theresa Tally parcels 020-141-01-0-30-20-010.00-0 and 020-141-01-
0-30-19-005.00-0, Oberlin Concrete Co., James and Janice Bricker parcels 020-124-18-
0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-124-18-0-00-01-001.00-0,
Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth Gebhard, Paul
and Tammy Vincent, and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-
002.00-0.
11
Lincoln Land Co. Deeds
The parties have stipulated that NKCR’s predecessor-in-interest obtained its
interest in the sections of the railroad corridor adjacent to Arnold plaintiffs John Arnold
and Susan Bolek parcel 107-36-0-20-02-009-00-0, Mark and Shayla Bailey parcel 107-
36-0-20-13-005, Harold and Kristelle Mizell parcel 107-36-0-10-04-0001, Robert Strevey,
Edwin and Phyllis Yeater through a Lincoln Land Company deed dated February 27,
1886, which is located at book 4, page 424 (Lincoln Land Company Deed 4-424). The
pertinent portion of Lincoln Land Company Deed 4-424 provides:
The Lincoln Land Company to Burlington Kansas & S W. R. R. Co.
In consideration of the payment of One ($1.00[)], Dollar, The Lincoln Land
Company hereby sells and conveys to The Burlington Kansas and South
Western Railroad Company, all of its, right, title, and interest in and to the
following described real estate in Decatur County, and State of Kansas to
wit: [legal description of lots and sections]
Also conveying to said Railroad Company the right of way for the railroad
One hundred feet in width being fifty (50) feet on each side of the center line
thereof and commencing at the North East end of the tract of land herein
before described and running with said center line to its intersection with the
north line of Section No. Thirty six (36) in Township No. Two (2) South, of
Range No. Twenty six (26) west, of the Sixth Principal Meridian. Also the
right of way as aforesaid, commencing at the South West end of said tract,
and running in a South Westerly direction with said Railroad, to intersect the
west line of said Section No. Thirty six (36), subject to the taxes of the year
– 1885 and thereafter. In Witness Whereof, The President of the Lincoln
Land Company has hereunto set his hand, and affixed the seal of the
Company this 29th day of February, 1886.
The parties also have stipulated that NKCR’s predecessor-in-interest obtained an
easement from Lincoln Land Company Deed 4-424 in the section of the railroad corridor
adjacent to Arnold plaintiffs John Arnold and Susan Bolek parcel 107-36-0-20-02-009-00-
0, Mark and Shayla Bailey parcel 107-36-0-20-13-005, Harold and Kristelle Mizell parcel
107-36-0-10-04-0001, and Robert Strevey.
The parties, however, dispute whether NKCR’s predecessor-in-interest obtained a
fee interest or an easement in the section of the railroad corridor adjacent to Arnold
plaintiffs Edwin and Phyllis Yeater’s parcels. Defendant asserts that only the first granting
clause in Lincoln Land Company Deed 4-424 applies to the land underlying the railroad
corridor adjacent to Arnold plaintiffs Edwin and Phyllis Yeater’s parcels. Defendant
contends that the language in the first granting clause of Lincoln Land Company Deed 4-
424 conveyed a fee simple to NKCR’s predecessor-in-interest because the first granting
clause did not contain any restrictions limiting the conveyance to an easement. Plaintiffs,
12
however, argue that Lincoln Land Company Deed 4-424 only conveyed an easement
because the land was conveyed “for the inadequate consideration of $1.”
Condemnation
According to submissions from the parties, the Burlington, Kansas & Southwestern
Railroad Company, NKCR’s predecessor-in-interest, acquired land needed to construct
the railroad, in part, through condemnation proceedings relevant to the following plaintiffs’
predecessors-in-interest: Arnold plaintiffs Susan Bolek and John Arnold parcel 107-35-0-
00-00-003-00-0, B&D Farm, LLC, 13 and Rodney and Tonda Ross parcel 102-03-0-00-00-
004.00-0; Flying S. Land Co. plaintiffs Dolores M. Koerperich Revocable Living Trust
parcel 020-133-05-0-00-00-004.00-0, Clem Koerperich parcels 020-133-05-0-00-00-
003.00-0 and 020-133-08-0-00-00-004.00-0, William C. and Bertha G. Rea, 14 Leo and
Carolyn Zodrow parcel 020-122-09-0-00-00-001.00-0, 15 Flying S. Land Company parcels
020-123-08-0-00-00-004.00-0, 020-122-04-0-00-00-002.00-0, and 020-121-01-0-00-00-
001.00-0, Flying S. Partnership, Dale and Lenora Soderland, Cecil and Lavon Wright, AG
Valley Cooperative, 16 Clayton and Catherine Cox, and J&C Partnership LP; and Dawson
plaintiffs G & M Properties, LP, 17 Linda J. Tomasch, John E. Bremer, and David G.
Bremer. The parties have stipulated that the Burlington, Kansas & Southwestern Railroad
Company obtained only an easement over the land acquired through condemnation that
is adjacent to the above-identified plaintiffs, pursuant to Kansas state law. 18 See Kan.
Gen. Stat. Ch. 23, § 81 (1868); Kan. Cent. Ry. Co. v. Allen, 22 Kan. 285 (1879).
13 The parties have stipulated that NKCR’s interest in the section of the railroad corridor
adjacent to Arnold plaintiff B&D Farm, LLC was obtained by both condemnation and Right
of Way deed.
14 The parties have stipulated that NKCR’s interest in the section of the railroad corridor
adjacent to Flying S. Land Co. plaintiffs William C. and Bertha G. Rea parcel 020-135-15-
0-00-00-003.00-0 was obtained by both condemnation and the General Right-of-Way Act
of 1875 discussed below.
15 The parties have stipulated that NKCR’s interest in the section of the railroad corridor
adjacent to Flying S. Land Co. plaintiffs Leo and Carolyn Zodrow parcel 020-122-09-0-
00-00-001.00-0 was obtained by both condemnation and the General Right-of-Way Act
of 1875.
16The parties have stipulated that NKCR’s interest in the section of the railroad corridor
adjacent to Flying S. Land Co. plaintiff AG Valley Cooperative parcel 069-151-02-0-00-
00-001.00-0-01 was obtained by both condemnation and Right of Way deed.
17The parties have stipulated that NKCR’s interest in the section of the railroad corridor
adjacent to Dawson plaintiff G & M Properties, LP parcel 069-068-34-0-00-00-003-00-0-
01 was obtained by both condemnation and Right of Way deed.
18In its cross-motion for summary judgment, defendant states that Arnold plaintiffs John
Arnold and Susan Bolek “are the only plaintiffs that have set forth sufficient evidence to
13
General Railroad Right–of–Way Act of 1875
In 1875, the United States Congress passed the General Railroad Right–of–Way
Act of 1875 to provide railroad companies “right[s] of way through the public lands of the
United States . . . .” 43 U.S.C. § 934 (1875). The Burlington, Kansas & Southwestern
Railroad Company acquired land needed to construct the railroad at issue, in part,
through the General Railroad Right–of–Way Act of 1875. The land acquired through the
General Railroad Right–of–Way Act of 1875 includes the following plaintiffs’ properties:
Flying S. Land Co. plaintiffs William C. and Bertha G. Rea, Leo and Carolyn Zodrow, and
GRS Revocable Trust. The parties have stipulated that the railroad company obtained
only an easement over the land acquired by the General Railroad Right–of–Way Act of
1875, pursuant to the United States Supreme Court’s ruling in United States v. Brandt,
which held that the General Railroad Right–of–Way Act of 1875 conveyed to railroads
only an easement. See United States v. Brandt, 134 S. Ct. 1257 (2014).
Right of Way Deeds
Additionally, the Burlington, Kansas & Southwestern Railroad Company acquired
land needed to construct the railroad, in part, through private “Right of Way” deeds
exchanged between the railroad company and the following plaintiffs’ predecessors-in-
title: Arnold plaintiffs B&D Farm, LLC, H. Drake and Karen Gebhard, Cecilia Hillebrand,
Jackson Irrevocable Farm Trust, Lee Martin Revocable Trust, Bernice Martin, Harold and
Kristelle Mizell parcel 069-151-01-0-00-00-003-00-0-01, Rodney and Tonda Ross parcel
069-101-02-0-00-00-001-00-0-01, Ricky Temple, L & S Tubbs Family, L.P., John C.
Tweed Trust and Joann Tweed Trust, Ivan and Cathy Bohl Living Trust, and Morlock
Children’s Trust; Flying S. Land Co. plaintiffs Dolores M. Koerperich Revocable Living
Trust parcel 020-133-05-0-00-00-001.00-0, Sauvage Gas Service, Flying S. Land
Company parcel 020-109-31-0-00-001.00-0, Judith E. Nelson, United Methodist Church,
Jonathan and Karen Cozad, 19 Richard and Robert McChesney, Edward Braun, Arnold K.
Graham, et al., Arnold K. Graham, Jerry G. and Connie K. Cox parcel 074-056-23-0-00-
00-003.00-0, Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-01-001.00-0 and
074-056-24-0-20-02-001.00-0, and Craig E. Ingram Living Trust and Genine L. Ingram
Living Trust; and Dawson plaintiffs Conrad C. and Mary R. Cox, 20 Carol K. Ross and Kay
establish that they have an ownership interest” in the segment of the railroad corridor
acquired by condemnation.
19Defendant originally disputed that Jonathan and Karen Cozad owned parcel 020-107-
25-0-00-00-001-00-0. In its motions for partial summary judgment, plaintiffs submitted to
the court deeds proving Jonathan and Karen Cozad owned parcel 020-107-25-0-00-00-
001-00-0 on the date the NITU was issued. Defendant did not address plaintiffs’ evidence,
nor did defendant submit to the court any evidence disputing plaintiffs’ evidence.
20The parties have stipulated that NKCR’s interest in the section of the railroad corridor
adjacent to Conrad C. and Mary R. Cox parcel 74-044-180-00-00-003-00-0 was obtained
by both Right of Way deed and a 1950 deed discussed below.
14
L. Lee, Shirley Kats Revocable Trust and Derek Kats Revocable Trust, Rosemary L.
Mathes, Duane R. and Darlene McEwen, M. Lee Juenemann and Angela Juenemann, G
& M Properties, LP, Joe L. Dawson, Bruce G. Guinn, Jr., Jason and Travis Dial, Larry L.
and Iris L. Smith, trustees of the Larry L. Smith and Iris L. Smith Revocable Living Trust,
and Lloyd E. and Pamela Y. Edgett. The general language of the deeds was consistent
from deed to deed. Only the specific details such as parcel description, grantor, and
consideration changed from deed to deed, none of which are pertinent to the issues in
this opinion.
In pertinent part, the Right of Way deeds state the following:
Know all men by these presents, that [grantor] of the County of Norton and
State of Kansas in consideration of the sum of Twenty (20) dollars, in hand
paid the receipt whereof is hereby acknowledged, do hereby grant, bargain,
sell and convey unto the Burlington, Kansas & Southwestern Railroad
Company, its successors and assigns, the following described Real Estate
in Norton, County, State of Kansas, to wit:
A Strip of ground 100 feet Wide, it being 50 feet on each side of the center
line of the Railroad of said Company, as located upon the [specific
description of lot and section].
To have & to hold the same with the said Railroad Company its successors
& assigns forever[.] And in addition to the right of way described above, I
hereby grant for myself & my heirs & assigns the right to said Railroad
Company to erect & maintain a snow fence for the term of four months each
& every year after the date of this instrument at any point within one hundred
feet on either or both sides of the centerline of the said Railroad as now
located on the above described land, said terms of four months to begin on
November 15th & end March 15th, each year.
All of the Right of Way deeds were entered into in 1885 or 1886 and ranged in
consideration from $1.00 to $150.00.
1950 Deeds
The Chicago, Burlington & Quincy Railroad Company, one of NKCR’s
predecessors-in-interest, acquired the land needed to reroute part of the railroad right-of-
way around the Harlan County Dam and Reservoir Project through two quitclaim deeds
from the United States in 1950. One of the quitclaim deeds was for land located in Harlan
County, Nebraska, and the other quitclaim deed was for land located in Phillips County,
Kansas. The land the railroad company acquired through the Phillips County, Kansas
deed with the United States includes the following plaintiffs’ properties: Flying S. Land
Co. plaintiffs Culbertson Farms, LLC, Perry and Ila Mae Schelling, James Holterman, and
Orville and Pauline Holterman Revocable Trust and Dawson plaintiffs Conrad C. and
Mary R. Cox. The land the railroad company acquired through the Harlan County,
15
Nebraska deed with the United States relates to Flying S. Land Co. plaintiff Silverstone &
Dake’s Canal, Inc. parcels 260014100, 360004300, 380012500.
The 1950 Phillips County, Kansas deed is reproduced, in pertinent part, below:
THIS DEED, Made this 17th day of November, 1950, by and between the
United States of America, acting by and through the Secretary of the Army,
pursuant to authority contained in Section 2 of the Act of 20 June 1938 (52
Stat. 804, U.S.C.A. 558b) as extended by Section 3 of the Act of 11 August
1939 (53 Stat. 1414, 33 U.S.C.A. 558b-1), party of the First Part and the
Chicago, Burlington & Quincy Railroad Company, a company organized
and existing under the laws of the State of Illinois, of the City of Chicago, in
the State of Illinois, party of the Second Part.
WHEREAS, The United States of America has undertaken the development
of the Harlan County Dam and Reservoir Project in Harlan County,
Nebraska; and
WHEREAS, The Chicago, Burlington and Quincy Railroad Company owned
and operated a branch line and railroad between Republican City,
Nebraska, and Long Island, Kansas, which interfered with the use of the
Dam and Reservoir area by the United States of America; and
WHEREAS, Because of such interference, it became necessary for the
United States of America to construct a railroad above the maximum
Reservoir pool level in lieu of that portion of such branch line within the
area to be inundated; and
WHEREAS, On the first day of August, 1947, an agreement was entered
into by and between the party of the First Part and the party of the Second
Part for the relocation, rearrangement, and alteration of facilities of the party
of the Second Part, which agreement provided further for the exchange of
properties of the party of the First Part and party of the Second Part; NOW
THEREFORE
KNOW ALL MEN BY THESE PRESENTS:
That the party of the First Part, for and in consideration of the covenants
and recitals contained in agreement heretofore referred to and the
exchange of properties as provided for therein does by these presents
remise, release and quitclaim unto the said party of the Second Part, its
successors and assigns, all its right, title and interest in and to the following
described property situated in the County of Phillips and State of Kansas,
to wit:
[specific description of lot and section and description of the metes and
bounds for a series of properties]
16
TO HAVE AND TO HOLD the above described premises unto the party of
the Second Part, its successors and assigns forever, with all appurtenances
thereunto belonging.
SUBJECT to the following reservation: All uranium, thorium, and all other
materials determined pursuant to Section 5(b)(1) of the Atomic Energy Act
of 1945 (60 Stat. 761) to be particularly essential to the production of
fissionable material, contained, in whatever concentration, in deposits in the
lands covered by this instrument are hereby reserved for the use of the
United States, together with the right of the United States through its
authorized agents or representatives at any time to enter upon the land and
prospect for, mine, and remove the same, making just compensation for
any damage or injury occasioned thereby. However, such land may be
used, and any rights otherwise acquired by this disposition may be
exercised, as if no reservation of such materials had been made; except
that, when such use results in the extraction of any such material from the
land in quantities which may not be transferred or delivered without a
license under the Atomic Energy Act of 1946, as it now exists or may
hereafter be amended, such material shall be the property of the United
States Atomic Energy Commission, and the Commission may require
delivery of such material to it by any possessor thereof after such material
has been separated as such from the ores in which it was contained. If the
Commission requires the delivery of such material to it, it shall pay to the
person mining or extracting the same, or to such person as the Commission
determines to be entitled thereto, such sums, including profits, as the
Commission deems fair and reasonable for the discovery, mining,
development, production, extraction, and other services performed with
respect to such material prior to such delivery but such payment shall not
include any amount on account of the value of such material before removal
from its place of deposit in nature. If the Commission does not require the
delivery of such material to it, the reservation hereby made shall be of no
further force or effect.
Acceptance by the Second Party of this conveyance shall not constitute a
waiver of any of its rights under contract No. W-23-028-ang-1560, dated
August 1, 1947, between the parties hereto and all of such rights are
expressly reserved to the Second Party.
IN WITNESS WHEREOF, the party of the First Part has caused these
presents to be executed in its name by the Secretary of the Army and the
Seal of the Department of the Army to be hereunto affixed the day and year
first above written.
(capitalization in original).
17
The Harlan County deed is identical to the Phillips County deed except it includes
the following language after the specific descriptions of the properties being conveyed:
together with all easements appurtenant thereto more particularly described
as follows:
A perpetual easement in connection with the construction, operation, and
maintenance of a railroad including the right to make and maintain drainage
improvements, to borrow and excavate thereon, to remove dirt and other
materials therefrom, and such other uses as may be necessary in
connection with said railroad construction, operation, and maintenance
upon, over, and across the following described lands:
[specific description of lot and section and description of the metes and
bounds for a series of properties]
Procedural History
Plaintiffs in Arnold and Flying S. Land Co. filed their initial complaints against
defendant in the United States Court of Federal Claims on October 26, 2015. 21 Plaintiffs
in Dawson filed their initial complaint against defendant in this court on October 27,
2015. 22 Plaintiffs in Arnold filed their first and final amended complaint on March 18, 2016;
plaintiffs in Flying S. Land Co. filed their third and final amended complaint on January
12, 2017; and plaintiffs in Dawson filed their fifth and final amended complaint on July 20,
2017. 23 The court issued an order on July 7, 2017, instructing plaintiffs each to file their
“partial motions for summary judgment regarding title issues, including fee or easement,
as well as adjacency and the centerline presumption.” 24 Subsequently, the plaintiffs in all
21 Arnold was originally assigned to Judge Braden. On January 12, 2016, Arnold was
reassigned to the undersigned for all further proceedings. Flying S. Land Co. was
originally assigned to the undersigned on October 26, 2015.
22Dawson was originally assigned to Judge Firestone. On November 12, 2015, Dawson
was reassigned to Judge Braden. Dawson was reassigned to the undersigned on January
12, 2016 for all further proceedings.
23 Plaintiffs in Flying S. Land Co. filed their first amended complaint on December 17,
2015 and their second amended complaint on May 20, 2016. Plaintiffs in Dawson filed
their first amended complaint on May 6, 2016, their second amended complaint on August
5, 2016, their third amended complaint on October 26, 2016, and their fourth amended
complaint on February 1, 2017.
24Although defendant initially appeared to indicate that it would dispute the application of
the centerline presumption to plaintiffs in these three cases, in its cross motions for partial
summary judgment, defendant states that “[t]he United States does not dispute that this
[centerline] presumption exists under Kansas and Nebraska law. . . .” As a result, the
parties do not dispute the theory of the centerline presumption in Kansas and Nebraska,
18
three cases filed their motions for partial summary judgment. These motions pertain to
adjacency and title issues, as well as fee or easement issues, as the court instructed.
Defendant responded to each motion and cross-moved for summary judgment in all three
cases. 25 Additionally, the court instructed the parties to file joint transcriptions of the
Lincoln Land Company deeds, as the Lincoln Land Company deeds originally submitted
to the court were illegible. The court also instructed the parties to submit several filings
addressing additional issues found within the parties’ partial motions for summary
judgments. The cross-motions in all three cases are fully briefed.
On November 17, 2017, following the Supreme Court of Kansas’ October 27, 2017
decision in Jenkins v. Chicago Pacific Corp., 403 P.3d 1213 (Kan. 2017), defendant filed
its notice of partial withdrawal of its cross-motion for summary judgment in Arnold, Flying
S. Land Co., and Dawson. In its notice, defendant stated the “Jenkins opinion expounds
upon and clarifies Kansas law regarding the construction of deeds to a railroad company
that have all of the attributes of a fee simple conveyance, but are nonetheless implied
under state law as conveying only an easement,” and that defendant had undertaken a
review of the deeds at issue in these cases. Defendant also indicated that it
“acknowledges that several of the deeds in this action are similar to the deed in Jenkins
that the Kansas Supreme Court ruled should be interpreted to convey only an easement
because the language implied a railroad use.” Accordingly, defendant withdrew its cross-
motions for summary judgment as to the issue of fee ownership of the railroad for the
but dispute whether certain plaintiffs are adjacent to the railroad corridor, such that the
centerline presumption would apply.
25 Plaintiffs in Flying S. Land Co. also moved for partial summary judgment on the issue
of whether NKCR abandoned the railroad corridor under Kansas law. In their motion for
partial summary judgment, Flying S. Land Co. plaintiffs state:
in the event the Court believes Plaintiffs have not sufficiently shown that the
railroad only held an easement for railroad purposes and trail use exceeds
the scope of the easement issue, i.e., in the event the Court believes that
the grant of the railroad’s easement was broad enough to encompass a
recreational trail, Plaintiffs now address the abandonment issue.
Flying S. Land Co. plaintiffs argue that “NKCR clearly abandoned the right-of-way.” As
the court’s analysis will show, the easements held by NKCR were limited to railroad
purposes. The court, therefore, does not address Flying S. Land Co. plaintiffs’ argument
regarding abandonment of the railroad corridor under Kansas law.
Additionally, in their motion for partial summary judgment, Flying S. Land Co. plaintiffs
argue “that the terms of the railroad’s easements were limited to use for railroad purposes,
i.e., authorization for recreational use went beyond the scope of the easement . . . .”
As discussed, the court’s opinion only addresses issues of title and adjacency.
Accordingly, the court does not address Flying S. Land Co. plaintiffs’ partial motion for
summary judgment regarding whether recreational trail use exceeds the scope of the
NKCR’s easements.
19
following plaintiffs: Arnold plaintiffs B&D Farm, LLC parcel 136-14-0-00-00-002-00-0, H.
Drake and Karen Gebhard, Cecilia Hillebrand, Jackson Irrevocable Farm Trust, Lee
Martin Revocable Trust, Bernice Martin, Harold & Kristelle Mizell parcel 069-151-01-0-
00-00-003-00-0-01, Rodney and Tonda Ross 069-101-02-0-00-00-001-00-0-01, Ricky
Temple, L&S Tubbs Family, L.P., John C. Tweed Trust and Joan Tweed Trust, Ivan and
Cathy Bohl Living Trust, and Morlock Children’s Trust, Flying S. Land Co. plaintiffs
Dolores M. Koerperich Revocable Living Trust parcel 020-133-05-0-00-00-001.00-0,
Sauvage Gas Service, Inc., James and Janice Bricker, Flying S Land Co. parcel 020-109-
31-0-00-00-001.00-0, Judith E. Nelson, United Methodist Church, Karen and Jonathan
Cozad, Richard and Robert McChesney, Edward Braun, Arnold K. Graham, et al., Arnold
K. Graham, Jerry G. and Connie K. Cox, Garth Gebhard, Paul and Tammy Vincent,
Silverstone & Dake’s Canal, Inc. parcels 074-056-24-0-20-02-001.00-0 and 074-056-24-
0-20-01-001.00-0, and Craig E. Ingram Living Trust & Genine L. Ingram Living Trust, and
Dawson plaintiffs Conrad C. and Mary C. Cox Trusts No. 1, 26 Carol K. Ross and Kay L.
Lee, Trustees of the Carol K. Ross Trust No. 1, Shirley Kats Revocable Trust and Derek
Kats Revocable Trust, Rosemary L. Mathes, M. Lee Juenemann and Angela Juenemann,
G & M Properties, LP, Joe L. Dawson, Bruce G. Guinn, Jr., Jason and Travis Dial, Larry
L. Smith and Iris L. Smith, Trustees of the Larry L. Smith and Iris L. Smith Revocable
Living Trust; and Lloyd E. and Pamela Y. Edgett. Defendant also submitted to this court
in each case a revised chart regarding title issues, which indicated defendant agreed that
NKCR only possessed an easement in the sections of the railroad corridor adjacent to
the plaintiffs identified in defendant’s November 17, 2017 notice. 27
DISCUSSION
The court considers the parties’ cross-motions for partial summary judgment.
RCFC 56 is similar to Rule 56 of the Federal Rules of Civil Procedure in language and
26 Dawson plaintiff Conrad C. and Mary R. Cox Trusts No. 1 owns two parcels at issue in
this case, parcels 74-044-180-00-00-003-00-0 and 74-056-130-00-00-005-00-0. NKCR’s
predecessor-in-interest acquired its interest in the land underlying the railroad corridor
adjacent to parcel 74-044-180-00-00-003-00-0 partially by private Right of Way deed and
partially by a 1950s deed from the United States. NKCR’s predecessor-in-interest
acquired its interest in the land underlying the railroad corridor adjacent to parcel 74-056-
130-00-00-005-00-0 entirely by private Right of Way deed. Defendant only withdrew its
cross-motion for summary judgment as to the issue of fee ownership for the sections of
the parcels that were obtained by Right of Way deed.
27 Subsequently, on February 23, 2018, defendant submitted a filing to the court that
stated “[a]fter reviewing the prior filings and exhibits, it appears that counsel for the United
States accidentally included Plaintiffs [Paul and Tammy] Vincent’s property in its
November 17, 2017 Notice of Partial Withdrawal of its Cross-Motion for Summary
Judgment.” (capitalization in original). Defendant stated that “the Court should interpret
that this deed [Lincoln Land Company Deed] K-488, which is the applicable source deed
for both Plaintiffs Vincent’s property and Silverstone & Dake’s Canal’s parcel number 074-
056-24-0-20-01-002.00-01, conveyed a fee interest to the railroad.” (capitalization in
original) (footnote omitted).
20
effect. Both rules provide that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” RCFC 56(a) (2017); Fed. R. Civ. P. 56(a) (2017); see
also Alabama v. North Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S.
541, 549 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Adickes
v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d 1279,
1286 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2014); Ladd v. United States,
713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349 (Fed.
Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012);
Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed.
Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620
F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United
States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010),
cert. denied, 564 U.S. 1004 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d
1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375,
1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283
(Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden
v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.
Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.
Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v.
United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315,
317 (2012); Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United
States, 100 Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610
(2011).
A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh’g denied, 361 U.S. 941 (1960).
When reaching a summary judgment determination, the judge’s function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99
21
Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When
the record could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). In such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.
In appropriate cases, summary judgment:
saves the expense and time of a full trial when it is unnecessary. When the
material facts are adequately developed in the motion papers, a full trial is
useless. “Useless” in this context means that more evidence than is already
available in connection with the motion for summary judgment could not
reasonably be expected to change the result.
Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d
890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng’g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).
Summary judgment, however, will not be granted if “the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179
F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451;
Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Grp., Inc.
v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party
produces sufficient evidence to raise a question as to the outcome of the case, then the
motion for summary judgment should be denied. Any doubt over factual issues must be
22
resolved in favor of the party opposing summary judgment, to whom the benefit of all
presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United
States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 562 U.S. 827 (2010);
Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001),
reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.
957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion
declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R.
Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.
at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20
Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-
67; Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807. “However, once a moving
party satisfies its initial burden, mere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 247-48.
The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
party can demonstrate that there is an absence of evidence to support the nonmoving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &
Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown
Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed.
Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741
(Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),
reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en
banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,
1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807; RQ
Squared, LLC v. United States, 119 Fed. Cl. 751, 757-58 (2015), subsequent
determination, 129 Fed. Cl. 742 (2017), aff’d, 708 F. App’x 685 (Fed. Cir. 2018). If the
moving party makes such a showing, the burden shifts to the nonmoving party to
demonstrate that a genuine dispute regarding a material fact exists by presenting
evidence which establishes the existence of an element essential to its case upon which
it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322; see also
Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long
Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Fla. Power & Light Co. v.
United States, 375 F.3d 1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc.,
247 F.3d 1202, 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103,
1108 (Fed. Cir. 2000); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807;
Rasmuson v. United States, 109 Fed. Cl. 267, 271 (2013). However, “a non-movant is
required to provide opposing evidence under Rule 56(e) only if the moving party has
23
provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA,
Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006).
Even if both parties argue in favor of summary judgment and allege an absence of
genuine issues of material fact, the court is not relieved of its responsibility to determine
the appropriateness of summary disposition in a particular case, and it does not follow
that summary judgment should be granted to one side or the other. See Prineville Sawmill
Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts,
L.P. v. United States, 586 F.3d at 968-69; B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d
587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,
1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5 (9th Cir.
2000), cert. denied, 532 U.S. 942 (2001); Bubble Room, Inc. v. United States, 159 F.3d
553, 561 (Fed. Cir. 1998) (“The fact that both the parties have moved for summary
judgment does not mean that the court must grant summary judgment to one party or the
other.”), reh’g denied and en banc suggestion declined (Fed. Cir. 1999); Allstate Ins. Co.
v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey v. Del Labs., Inc., 118 F.3d
1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401
F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083 (1969); Rogers v. United
States, 90 Fed. Cl. 418, 427 (2009), subsequent determination, 93 Fed. Cl. 607 (2010),
aff’d, 814 F.3d 1299 (2015); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387
(2009), aff’d, 615 F.3d 1378, (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir.
2010), cert. denied, 564 U.S. 1004 (2011); St. Christopher Assocs., L.P. v. United States,
75 Fed. Cl. 1, 8 (2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v.
United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion
on its own merits, taking care to draw all reasonable inferences against the party whose
motion is under consideration, or, otherwise stated, in favor of the non-moving party. See
First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g
en banc denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d
1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002);
Oswalt v. United States, 85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v.
United States, 71 Fed. Cl. 114, 119 (2006).
“Questions of law are particularly appropriate for summary judgment.” Oenga v.
United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d
1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]
because no material facts were disputed, many being stipulated, and the only disputed
issues were issues of law. Moreover, on each issue one party or the other is entitled to
judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d
1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law
may be decided on motion for summary judgment.”).
In the above-captioned cases plaintiffs allege that defendant effected a taking
under the Fifth Amendment to the United States Constitution through operation of the
Trails Act. The Takings Clause of the Fifth Amendment to the United States Constitution
24
provides in pertinent part: “nor shall private property be taken for public use without just
compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is
to prevent the government from “‘forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.’” Palazzolo v. Rhode
Island, 533 U.S. 606, 618 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49
(1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528
(2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska
2009); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24, reh’g
denied, 439 U.S. 883 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005); E.
Enters. v. Apfel, 524 U.S. 498, 522 (1998); Pumpelly v. Green Bay & Miss. Canal Co., 80
U.S. (13 Wall.) 166, 179 (1871) (citing to principles which establish that “private property
may be taken for public uses when public necessity or utility requires” and that there is a
“clear principle of natural equity that the individual whose property is thus sacrificed must
be indemnified”); Rose Acre Farm, Inc. v. United States, 559 F.3d 1260, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2009), cert. denied, 559 U.S. 935 (2010); Janowsky v.
United States, 133 F.3d 888, 892 (Fed. Cir. 1998); Res. Invs., Inc. v. United States, 85
Fed. Cl. 447, 469-70 (2009).
“[A] claim for just compensation under the Takings Clause must be brought to the
Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker
Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. at 520 (citing
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984)); see also Acceptance Ins.
Cos. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007); Morris v. United States, 392
F.3d 1372, 1375 (Fed. Cir. 2004) (“Absent an express statutory grant of jurisdiction to the
contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over
takings claims for amounts greater than $10,000.”). The United States Supreme Court
has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within
the jurisdiction of the [United States Court of Federal Claims] to hear and determine.”
Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 12 (1990) (Preseault I) (quoting
United States v. Causby, 328 U.S. 256, 267 (1946)); see also Lion Raisins, Inc. v. United
States, 416 F.3d 1356, 1368 (Fed. Cir. 2005); Narramore v. United States, 960 F.2d 1048,
1052 (Fed. Cir. 1992); Hardy v. United States, 127 Fed. Cl. 1, 7 (2016); Perry v. United
States, 28 Fed. Cl. 82, 84 (1993).
To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that
the government took a private property interest for public use without just compensation.
See Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (stating
that the “‘classic taking’” is one in which the government directly appropriates private
property for its own use (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 324 (2002)), cert. denied, 136 S. Ct. 2461 (2016); Adams v. United
States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S. 811 (2005); Arbelaez
v. United States, 94 Fed. Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed. Cl. 157,
162 (2006). “The issue of whether a taking has occurred is a question of law based on
factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78
(Fed. Cir.), cert. denied, 555 U.S. 1045 (2008). The government must be operating in its
sovereign rather than in its proprietary capacity when it initiates a taking. See St.
Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed. Cir. 2008).
25
The United States Court of Appeals for the Federal Circuit has established a two-
part test to determine whether government actions amount to a taking of private property
under the Fifth Amendment. See Casitas Mun. Water Dist. v. United States, 708 F.3d
1340, 1348 (Fed. Cir. 2013); Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.
Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing M & J Coal
Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert. denied, 516 U.S. 808
(1995)). A court first determines whether a plaintiff possesses a cognizable property
interest in the subject of the alleged takings. See Casitas Mun. Water Dist. v. United
States, 708 F.3d at 1348; Jackson v. United States, 135 Fed. Cl. 436, 444 (2017) (citation
omitted). Then, the court must determine whether the government action is a
“‘compensable taking of that property interest.’” Huntleigh USA Corp v. United States, 525
F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).
To establish a taking, a plaintiff must have a legally cognizable property interest,
such as the right of possession, use, or disposal of the property. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing United States v.
Gen. Motors Corp., 323 U.S. 373 (1945)); Piszel v. United States, 833 F.3d 1366, 1374
(Fed. Cir. 2016), cert. denied, 138 S. Ct. 85 (2017); Rogers v. United States, 814 F.3d
1299, 1303 (Fed. Cir. 2015); Casitas Mun. Water Dist. v. United States, 708 F.3d at 1348;
CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed. Cir. 2010), cert. denied,
563 U.S. 989 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.),
reh’g denied and en banc suggestion denied (Fed. Cir. 2000), cert. denied, 532 U.S. 941
(2001). “‘It is axiomatic that only persons with a valid property interest at the time of the
taking are entitled to compensation.’” Am. Pelagic Fishing Co. v. United States, 379 F.3d
at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001), cert.
denied, 353 U.S. 1077 (2002); and citing Cavin v. United States, 956 F.2d 1131, 1134
(Fed. Cir. 1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a
legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing
Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d
1344, 1352 (Fed. Cir. 2003); and M & J Coal Co. v. United States, 47 F.3d at 1154). The
court does not address the second step “without first identifying a cognizable property
interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed. Cir.) (citing
Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381 and Conti v. United States,
291 F.3d 1334, 1340 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2002), cert. denied, 537
U.S. 1112 (2003)), reh’g denied and reh’g en banc denied (Fed. Cir. 2005); see also
Balagna v. United States, 135 Fed. Cl. 16, 22 (2017), recons. denied, No. 14-21L, 2017
WL 5952123 (Fed. Cl. Dec. 1, 2017). Only if there is to be a next step, “‘after having
identified a valid property interest, the court must determine whether the governmental
action at issue amounted to a compensable taking of that property interest.’” Huntleigh
USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United
States, 379 F.3d at 1372); see also Casitas Mun. Water Dist. v. United States, 708 F.3d
at 1348.
The STB has authority to regulate most railroad lines in the United States. See 49
U.S.C. § 702 (2012). A railroad seeking to abandon any part of its railroad line must either
26
(1) file an application to abandon or (2) file a notice of exemption to abandon the line. See
49 U.S.C. § 10903 (2012); see also 49 C.F.R. § 1152.50 (2017). “If the STB approves a
standard abandonment application or grants an exemption and the railroad ceases
operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and
state law reversionary property interests, if any, take effect.” Caldwell v. United States,
391 F.3d 1226, 1228-29 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6-8), reh’g en
banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005).
“The Trails Act is designed to preserve railroad rights-of-way by converting them
into recreational trails.” Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir.), reh’g
denied, 684 F.3d 1295 (Fed. Cir. 2012). By operation of the Trails Act, the STB may issue
a NITU, “suspending exemption proceedings for 180 days to allow a third party to enter
into an agreement with the railroad to use the right-of-way as a recreational trail.” Barclay
v. United States, 443 F.3d 1368, 1371 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006),
cert. denied, 846 U.S. 1209 (2007). Section 8(d) of the Trails Act, codified at 16 U.S.C. §
1247(d), “allows a railroad to negotiate with a state, municipal, or private group (‘the trail
operator’) to assume financial responsibility for operating the railroad right of way as a
recreational trail.” See Bright v. United States, 603 F.3d 1273, 1275 (Fed. Cir.) (citing
Caldwell v. United States, 391 F.3d at 1229), reh’g and reh’g en banc denied (Fed. Cir.
2010). If the railroad and an authorized trail provider 28 reach an agreement, the NITU
extends indefinitely, and the corridor is railbanked, with interim trail use permitted. See
49 C.F.R. § 1152.29(d)(1)-(2) (2016) (“The NITU will indicate that interim trail use is
subject to future restoration of rail service . . . . Additionally, the NITU will provide that if
the sponsor intends to terminate interim trail use on all or any portion of the right-of-way
covered by the interim trail use agreement, it must send the [STB] a copy of the NITU and
request that it be vacated on a specific date.”); see also Biery v. United States, 753 F.3d
at 1285 (“If the railroad and the [Surface Transportation] Board reach agreement, the land
underlying the railway may be transferred to a trail operator (e.g., state, political
subdivision, or qualified private organization) for interim trail use.” (citing Citizens Against
Rails–to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir. 2001))); Caldwell
v. United States, 57 Fed. Cl. 193, 194 (2003) (“The term railbanking refers to the
‘preservation of railroad corridor for future rail use,’ while making the corridor available for
other activities.” (quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903
n.1 (8th Cir. 1997))), aff’d, 391 F.3d 1226 (Fed. Cir. 2004), reh’g en banc denied (Fed.
Cir.), cert. denied, 546 U.S. 826 (2005).
When the NITU extends indefinitely and the corridor is railbanked, the STB retains
jurisdiction and abandonment of the railroad corridor is blocked. See 16 U.S.C. § 1247(d)
(“[I]n the case of interim use of any established railroad rights-of-way pursuant to
donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if
such interim use is subject to restoration or reconstruction for railroad purposes, such
28 The Trails Act indicates that a trail provider may be “a State, political subdivision, or
qualified private organization [that] 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.” 16 U.S.C. § 1247(d).
27
interim use shall not be treated, for purposes of any law or rule of law, as an abandonment
of the use of such rights-of-way for railroad purposes.”); see also Rasmuson v. United
States, 807 F.3d 1343, 1344 (Fed. Cir. 2015) (“NITUs ‘preserve established railroad
rights-of-way for future reactivation of rail service’ and permit the railroad operator to
cease operation without legally abandoning any ‘rights-of-way for railroad purposes.’”
(quoting 16 U.S.C. § 1247(d))).
As described by the United States Court of Appeals for the Federal Circuit:
Thus, section 8(d) of the Trails Act prevents the operation of state laws that
would otherwise come into effect upon abandonment-property laws that
would “result in extinguishment of easements for railroad purposes and
reversion of rights of way to abutting landowners.” Rail Abandonments-Use
of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591,
1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original
easement granted to the railroad under state property law is not broad
enough to encompass a recreational trail. See Preseault II, 100 F.3d at
1552; see also Toews [v. United States], 376 F.3d at 1376.
Caldwell v. United States, 391 F.3d at 1229; see also Rogers v. United States, 814 F.3d
at 1303 (“As we have previously explained in other rails-to-trails cases, a taking, if any,
occurs when, pursuant to the Trails Act, the STB issues a Notice of Interim Trail Use
(‘NITU’) to suspend the abandonment of the rail line by a railroad and preserve it for future
active railroad use.” (citing Barclay v. United States, 443 F.3d at 1373)); BHL Props., LLC
v. United States, 135 Fed. Cl. 222, 227-28 (2017) (citing Caldwell v. United States, 391
F.3d at 1233).
The Federal Circuit has established a three-part inquiry to determine takings
liability in cases involving the conversion of railroad rights of way for recreational trail use
by means of 16 U.S.C. § 1247(d) of the Trails Act, as follows:
(1) who owned the strips of land involved, specifically did the Railroad . . .
acquire only easements, or did it obtain fee simple estates; (2) if the
Railroad acquired only easements, were the terms of the easements limited
to use for railroad purposes, or did they include future use as public
recreational trails; and (3) even if the grants of the Railroad's easements
were broad enough to encompass recreational trails, had these easements
terminated prior to the alleged taking so that the property owners at that
time held fee simples unencumbered by the easements.
Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (Preseault II). Phrased
differently, the Federal Circuit has also indicated:
the determinative issues for takings liability are (1) who owns the strip of
land involved, specifically, whether the railroad acquired only an easement
or obtained a fee simple estate; (2) if the railroad acquired only an
easement, were the terms of the easement limited to use for railroad
28
purposes, or did they include future use as a public recreational trail (scope
of the easement); and (3) even if the grant of the railroad’s easement was
broad enough to encompass a recreational trail, had this easement
terminated prior to the alleged taking so that the property owner at the time
held a fee simple unencumbered by the easement (abandonment of the
easement).
Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009) (citing
Preseault II, 100 F.3d at 1533).
According to the United States Court of Appeals for the Federal Circuit, “[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
easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010), reh’g and reh’g
en banc denied, 646 F.3d 910 (Fed. Cir. 2011); see also Rogers v. United States, 814
F.3d at 1303; Ellamae Phillips Co. v. United States, 564 F.3d at 1373. “It is the law-created
right to own private property, recognized and enforced by the Constitution, legislation,
and common law, that gives the owner an historically rooted expectation of
compensation.” Preseault II, 100 F.3d at 1540. The United States Court of Appeals for
the Federal Circuit in Preseault II also indicated
that power includes the power to preempt state-created property rights,
including the rights to possession of property when railroad easements
terminate. As Justice O’Connor succinctly pointed out in her concurring
opinion in Preseault I, however, having and exercising the power of
preemption is one thing; being free of the Constitutional obligation to pay
just compensation for the state-created rights thus destroyed is another.
Id. at 1537 (citing Preseault I, 494 U.S. at 22).
To determine the nature of the property interest at issue, the court looks to state
law. See Rogers v. United States, 814 F.3d at 1305 (“We analyze the property rights of
the parties in a rails-to-trails case under the relevant state law.”). The United States Court
of Appeals for the Federal Circuit, interpreting a takings claim for a railroad right-of-way,
stated that, “state law generally creates the property interest in a railroad right-of-way.”
Barclay v. United States, 443 F.3d at 1374 (citing Preseault I, 494 U.S. at 8, 16). In a
footnote on the same page, the United States Court of Appeals for the Federal Circuit
repeated, “[i]n Toews v. United States, 376 F.3d 1371 (Fed. Cir. 2004), we reiterated that
state law controls the basic issue of whether trail use is beyond the scope of the right-of-
way.” Barclay v. United States, 443 F.3d at 1374 n.4. “The nature of the interest conveyed
is determined according to the law of the state where the conveyance occurred. ‘State
law creates and defines the scope of the reversionary or other real property interests
affected by the ICC’s [Interstate Commerce Commission] action pursuant to Section 208
of the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).’” Chevy
Chase Land Co. of Montgomery Cnty. v. United States, 37 Fed. Cl. 545, 565 (1997)
29
(quoting Preseault I, 494 U.S. at 20 (O’Connor, J., concurring) (citing Ruckelshaus v.
Monsanto Co., 467 U.S. at 1001)), aff’d, 230 F.3d 1375 (Fed. Cir. 1999), reh’g and reh’g
en banc denied (Fed. Cir.), cert. denied, 531 U.S. 957 (2000); see also Whispell Foreign
Cars, Inc. v. United States, 97 Fed. Cl. 324, 331 (“Whether an individual has a
compensable private property interest is determined by state law.”), amended after
recons. in part, 100 Fed. Cl. 529 (2011). Moreover, in Ruckelshaus v. Monsanto Co., 467
U.S. at 1001, the Supreme Court stated, “we are mindful of the basic axiom that
‘“[p]roperty interests . . . are not created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.”’” (quoting Webb’s Fabulous Pharmacies, Inc. v.
Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972))) (omission in original). In Oregon ex rel. State Land Board v. Corvallis Sand &
Gravel Co., 429 U.S. 363 (1977), the United States Supreme Court stated that, “[u]nder
our federal system, property ownership is not governed by a general federal law, but
rather by the laws of the several States.” Id. at 378; see also Davies Warehouse Co. v.
Bowles, 321 U.S. 144, 155 (1944) (“The great body of law in this country which controls
acquisition, transmission, and transfer of property, and defines the rights of its owners in
relation to the state or to private parties, is found in the statutes and decisions of the
state.”).
As indicated above, the plaintiffs in Arnold, Flying S. Land Co., and Dawson have
moved for partial summary judgment regarding title issues, including fee or easement, as
well as adjacency and the centerline presumption. Defendant cross-moved for partial
summary judgment in its favor on all of the remaining plaintiffs in each of the three cases.
Plaintiffs in all three cases argue that there are no genuine disputes of material fact on
the issues presented in the cross-motions and that they are entitled to judgment as a
matter of law because they have shown that all plaintiffs owned land adjacent to the
railroad corridor on the date the NITU was issued and that the railroad only held
easements limited to railroad purposes over the relevant portions of the corridor.
Defendant agrees that there are no genuine disputes of material fact, however, it argues
that it is entitled to judgment as a matter of law because each plaintiff has failed to
establish ownership of the land on the date the NITU was issued, adjacency to the railroad
corridor, that the railroad held only an easement for railroad purposes, or ownership of
the servient estate underlying any of the portions of the railroad corridor over which the
railroad held only an easement. In this decision the court is only deciding title issues,
including fee or easement, as well as adjacency and the centerline presumption.
During the briefing period, the parties were ordered to submit brief filings explaining
what impact, if any, the STB’s extensions of time for NKCR to consummate abandonment
has on the claims pending before the court. Plaintiffs in Flying S. Land Co. and Dawson
assert that the STB’s order does not affect plaintiffs’ claims pending before the court and
argue that the government’s taking began with the STB’s issuance of the NITU on October
22, 2015. Defendant asserts that the STB’s granting of NKCR’s request for an extension
of time to consummate abandonment “has no impact on the claims before this court.”
Defendant argues that:
30
Plaintiffs’ takings claims are premised on the STB’s issuance of a NITU and
the operation of the Trails Act. The NITU expired on October 16, 2016, and
no trail use agreement was reached that would trigger the preemptive effect
of the Trails Act. On these facts, the relevant time period for determining
whether the United States is liable for a temporary taking in this case begins
with the issuance of the NITU on October 22, 2015, and ends with the
expiration of that NITU on October 16, 2016.
Plaintiffs in Arnold, however, argue the STB’s extensions of time for NKCR to
consummate abandonment significantly and prejudicially impacted plaintiffs’ pending
claims. Plaintiffs contend the STB’s approval of NKCR’s three requests for an extension
of time to consummate abandonment were not ministerial agency actions, but, rather,
were government actions within the “agency’s exclusive and plenary jurisdictional powers
to regulate railroad abandonments.” According to the Arnold plaintiffs, “[a] necessary and
justifiable consequence of the STB’s orders . . . is the extension of the 5th Amendment
taking of Plaintiffs’ property until March 1, 2018.”29 Plaintiffs in Arnold reason the “5th
Amendment taking is continued” because the “STB’s jurisdiction to issue further NITUs is
retained and Plaintiffs’ reversionary rights are blocked.”
As discussed above, a taking, if any, occurs under the Trails Act when a railroad
right-of-way is converted to interim trail use, thereby blocking reversionary property
interests that, under state law, would otherwise vest in the adjacent landowners from so
vesting. See Caldwell v. United States, 391 F.3d at 1233 (citing Preseault II, 100 F.3d at
1552); see also Ladd v. United States, 630 F.3d at 1019. The STB’s issuance of a NITU
“marks the ‘finite start’ to either temporary or permanent takings claims by halting
abandonment and the vesting of state law reversionary interests when issued.” Caldwell
v. United States, 391 F.3d at 1235; see also Toscano v. United States, 107 Fed. Cl. 179,
184 (2012) (quoting Caldwell v. United States, 391 F.3d at 1228-29). “The issuance of
the NITU is the only government action in the railbanking process that operates to prevent
abandonment of the corridor and to preclude the vesting of state law reversionary
interests in the right-of-way.” Caldwell v. United States, 391 F.3d at 1233-34 (emphasis
in original); see also Ladd v. United States, 630 F.3d at 1023 (“The NITU is the
government action that prevents landowners from possession of their property
unencumbered by the easement.”); Barclay v. United States, 443 F.3d 1368, 1374 (Fed.
Cir. 2006) (“The barrier to reversion is the NITU, not physical ouster from possession.”).
A judge of the United States Court of Federal Claims has stated, “[i]n a rails-to-trails
takings case, the issue is not whether STB jurisdiction continues or whether the railroad
retains a property interest upon the expiration of a NITU, but whether the government has
taken any action that forestalls the vesting of the underlying landowners’ property rights.”
Farmers Co-op Co. v. United States, 100 Fed. Cl. 579, 583 (2011) (citation omitted). Once
the NITU expires, any original railroad purposes easements remain as burdens on the
plaintiffs’ property.
29As noted above, after the plaintiffs had submitted their filing in response to the court’s
September 18, 2017 Order, the STB granted NKCR an extension of time until March 1,
2019 to consummate abandonment of the railroad corridor.
31
The issuance of multiple, non-consecutive NITUs may be treated as a single
temporary taking, even if there was a gap of time between the issuance of the NITUs,
when the subsequently issued NITU serves as an extension of the previously issued
NITU. See Barclay v. United States, 443 F.3d at 1376; Farmers Co-op. Co. v. United
States, 98 Fed. Cl. 797, 807, recons. denied, 100 Fed. Cl. 579 (2011); Biery v. United
States, 99 Fed. Cl. 565, 581 (2011). At least one judge on the United States Court of
Federal has found that a temporary taking ends when a railroad “consummates
abandonment and plaintiffs’ reversionary interests revert to an unencumbered status,” or,
alternatively, “when the Government shows that it has abandoned the taking, leaving no
government claim to jurisdiction or control over the property.” See Ladd v. United States,
110 Fed. Cl. 10, 14 (2013). 30 In Ladd v. United States, a railroad requested “numerous
extensions” of the time in which it needed to consummate abandonment “before finally
allowing the allotted time for abandonment to expire.” Id. The railroad had not filed its
notice of consummation with the STB as of the date the opinion was issued in Ladd v.
United States. Id. The court considered using “the date that the most recent NITU expired”
and “the deadline for filing a Notice of Consummation” to measure the duration of a
temporary taking, but declined to do so because “new NITU’s may be issued after
previous NITU’s expire” and the deadline to consummate abandonment is “usually
extended more than once.” Id. at 13-14. The court stated that damages were to be paid
to the date of the court’s earlier opinion finding the government liable for a temporary
taking, with “leave for plaintiffs to return to this court for updated damages on a per diem
basis. This would continue until the Railroad files a Notice of Abandonment or defendant
shows that it has abandoned the taking.” Id. at 15 n.6.
In the above-captioned cases, the STB’s issuance of a NITU on October 22, 2015
initiated the government’s taking of the plaintiffs’ properties. See Caldwell v. United
States, 391 F.3d at 1235. Following the expiration of the NITU on October 16, 2016,
NKCR and Sunflower had not reached a trail use agreement. At that time, NKCR had the
option of exercising its authority to abandon the railroad corridor and filing a notice of
consummation, filing a request for an extension of time to consummate abandonment, or
retaining the rail line. See 49 C.F.R. § 1152.29(e)(2). Ultimately, as of the date of this
opinion, NKCR filed four requests for extensions of time to consummate abandonment,
all of which the STB granted, and, currently, NKCR has until March 1, 2019 to
consummate its abandonment of the railroad corridor with the STB. The STB’s decision
to grant NKCR’s four requests, however, did not prevent abandonment of the railroad
corridor or preclude the vesting of the property owner’s reversionary rights under state
law. Rather, NKCR’s decision not to consummate abandonment and to request four
extensions of time for the period in which NKCR has been given to consummate
abandonment prevented plaintiffs from receiving their reversionary rights. See Farmers
Co-op Co. v. United States, 100 Fed. Cl. at 583-84. As of the date of the issuance of this
opinion, the duration of the temporary taking at issue in these cases is unclear and may
depend on the actions taken by NKCR and the STB in the future. The duration of the
30The United States Court of Appeals decision in Ladd v. United States, 630 F.3d 1015,
which is discussed above, reversed and remanded to the United States Court of Federal
Claims “for a determination of the compensation owed to the appellants for the taking of
the Southern Stretch and the Northern Stretch of railway line.” Id. at 1025.
32
temporary taking, however, is not material to the court’s resolution of the parties’ cross-
motions for partial summary judgment currently before the court, and, if necessary, the
court will revisit this issue when determining damages.
Motion to Strike
Plaintiffs in Arnold, Flying S. Land Co., and Dawson have moved to strike the
unofficial chart created by a KDOT employee, and the affidavit of Thad Fowler, another
KDOT employee, that defendant attempted to rely on in support its partial motion for
summary judgment in all three cases as inadmissible under RCFC 56(c)(2) and RCFC
56(c)(4). Plaintiffs argue that the chart created by the KDOT employee and the affidavit
of Mr. Fowler are inadmissible because both exhibits contain improper legal conclusions,
contain statements made without personal knowledge by the authors, and lack
foundation. Plaintiffs also object to Mr. Fowler being offered as an expert under Federal
Rule of Evidence (FRE) 702 (2017) and assert his affidavit contains “explicit
contradictions to the parties’ stipulations.” Additionally, plaintiffs in Dawson assert that the
court should strike Mr. Fowler’s affidavit because Mr. “Fowler’s affidavit contains
inadmissible hearsay” and is based upon “unauthenticated documents containing
hearsay.”
In its response to plaintiffs’ motion to strike, defendant does not address whether
the chart created by a KDOT employee is admissible in support of its cross-motions for
partial summary judgment. 31 Defendant, however, argues that Mr. Fowler’s affidavit is
admissible. Defendant asserts that the Fowler “affidavit is not offered to prove that the
state owned the highway in fee; instead, it shows the documents that KDOT relies on to
form the basis of its position regarding title to the highway.” Defendant states that Mr.
Fowler’s “position as the Coordinating Land Surveyor in the Bureau of Right of Way for
KDOT involves the ‘proper interpretation of legal principles as they apply to land
boundaries’” and that he has the “‘knowledge, education, and experience to interpret’” the
documents attached to his affidavit. Defendant asserts Mr. Fowler’s statements are not
legal conclusions and notes that the “[c]ourt can certainly review the records presented
and reach a different legal conclusion.” Additionally, defendant maintains Mr. Fowler’s
position with KDOT provides the proper foundation for Mr. Fowler to attest to his review
of KDOT’s records, and that “Mr. Fowler reviewed records in his employer’s archives,
which are the kind of documents within the purview of his position, so he had personal
knowledge of the contents of the documents.” Defendant also claims that to Mr. Fowler’s
affidavit is not based on hearsay because the documents that Mr. Fowler reviewed “are
either already in the record or are properly presented and may be considered
independently as exceptions to the hearsay rule, because they are records that affect an
interest in property under Federal Rule of Evidence (‘Fed. R. Evid.’) 803(14) and are
ancient documents under Fed. R. Evid. 803(16).” Finally, defendant states that Mr. Fowler
is not being offered as an expert witness under FRE 702 and alleges the affidavit is not
inconsistent with defendant’s prior stipulations.
31The court notes that it appears from the email message included with the chart that the
chart was created for this litigation and was created in 2016.
33
In a motion for summary judgment, a party asserting that a fact is not genuinely
disputed must support its contention by citing to materials in the record, such as affidavits,
depositions, or stipulations, or by showing that the materials cited do not establish the
absence or presence of a genuine dispute of material fact. See RCFC 56(c)(1); see also
King v. United States, 130 Fed. Cl. 476, 492 n.27 (2017); Grand Acadian, Inc. v. United
States, 87 Fed. Cl. 193, 197 (2007). “A party may object that the material cited to support
or dispute a fact cannot be presented in a form that would be admissible in evidence”
under RCFC 56(c)(2). See also King v. United States, 130 Fed. Cl. at 492 n.27. RCFC
56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, present facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” The court will not consider an affidavit supporting or opposing a motion for
summary judgment that contains statements that are legal conclusions, not based on the
affiant’s personal knowledge, or would otherwise be inadmissible as evidence. See
Found. of Human Understanding v. United States, 88 Fed. Cl. 203, 228 n.19 (2009), aff’d,
614 F.3d 1383 (Fed. Cir. 2010), cert. denied, 562 U.S. 1286 (2011); Adarbe v. United
States, 58 Fed. Cl. 707, 712 n.1 (2003); see also Thomas v. United States, 106 Fed. Cl.
467, 476 n.4 (2012) (disregarding an expert witness’ affidavit when the affiant outlined his
opinion as to whether a plaintiff owned a reversionary interest under Tennessee law).
In its cross-motion for partial summary judgment, defendant offers the chart
created by a KDOT employee and the affidavit of Mr. Fowler to support its position that
“fee ownership of the land is in the state” and KDOT’s position that “it owns the pertinent
portion of [K-383] in fee.” The chart created by a KDOT employee identifies parcels that
are adjacent to a portion of K-383, alleges that some of those parcels were acquired by
the state by deed, and purports to state whether KDOT has a fee interest or an easement
in each parcel. The determinations in the chart as to whether KDOT owns the parcels in
fee are unsupported by the source documentation records. The chart does not contain
the deeds that allegedly conveyed the right-of-way for K-383 to KDOT in fee or any other
evidence to support defendant’s or KDOT’s contention that the state of Kansas owns the
parcels in fee. Whether legal conclusions or not, as a result of the absence of supporting
documents, the court does not consider the conclusions or statements contained in the
chart at this time.
Likewise, many of the statements in the affidavit of Mr. Fowler are inadmissible
legal conclusions. In the affidavit, Mr. Fowler, who is not being offered as an expert and
who does not claim to be a lawyer, declares that “as the Coordinating Land Surveyor, I
am responsible for the proper of interpretation of legal principles as they apply to land
boundaries,” and that he has the “knowledge, education, and experience” to interpret the
documents attached to his affidavit. Once again, without explanations of how the attached
documents support his conclusions, which as noted above, Mr. Fowler did not create, Mr.
Fowler states “[t]hat KDOT has a fee simple absolute ownership interest in a portion of”
twenty parcels in Norton County and Phillips County, Kansas. Mr. Fowler’s statements
offered in his affidavit are unsupported legal conclusions, not subject to cross-
examination, and will not be used by the court to resolve the cross-motions for summary
judgment. FRE 701 (2017) permits a lay witness to provide opinion testimony, but only if
34
the testimony is based on relevant facts that the witness perceived, assists the fact finder
in understanding the witness’ testimony or a matter at issue, and is not based on scientific,
technical, or specialized knowledge within the purview of FRE 702. See FRE 701; see
also Authentic Apparel Grp., LLC v. United States, 134 Fed. Cl. 78, 81 (2017) (“If a
witness’s testimony fails to meet any one of the three foundational requirements, it is not
admissible.” (citing FRE 701)); DataMill, Inc. v. United States, 91 Fed. Cl. 722, 736 (2010)
(quoting United States v. Espino, 317 F.3d 788, 797 (8th Cir. 2003) (citations omitted)).
Mr. Fowler’s assertions that KDOT owns portions of twenty parcels in fee do not explain
the circumstances under which K-383 was created because Mr. Fowler does not explain
how the attached documents justify his conclusions nor how the determinations about the
parcels were reached. Defendant may attempt to call Mr. Fowler as a lay witness or expert
witness at a potential trial, but defendant may not rely on Mr. Fowler’s affidavit to support
its cross-motion for summary judgment. See DataMill, Inc. v. United States, 91 Fed. Cl.
at 737-38 (striking a lay witness’ declaration as inadmissible under FRE 701 because the
declaration was not rationally based on the declarant’s perception and did not “aid the
court in determining a fact in issue”); Ryco Constr., Inc. v. United States, 55 Fed. Cl. 184,
196 n.6 (2002) (striking portions of a lay witness’ declaration that contained legal
conclusions). Accordingly, the court has not considered the statements in Mr. Fowler’s
affidavit in resolving the cross-motions for summary judgment currently before the court.
Ownership Disputes
The parties have stipulated that plaintiffs in all three cases owned their properties
at issue in these cases on the date the NITU was issued with the exception of Flying S.
Land Co. plaintiff United Methodist Church. Defendant contends that Flying S. Land Co.
plaintiff United Methodist Church is not the proper claimant in the Flying S. Land Co. case
because plaintiffs have not provided any evidence that United Methodist Church acquired
the property adjacent to the railroad corridor. Plaintiffs respond that, although there is no
formal warranty deed for this parcel, there are probate documents indicating that the land
was to be devised to United Methodist Church by an individual named Isiah Sharp, should
Isiah Sharp’s son, Loren Gill Sharp, die without children. Plaintiffs submitted probate
documents to establish that Isiah Sharp devised the land adjacent to the railroad corridor
to Loren Gill Sharp. The probate documents indicate that, if Loren Gill Sharp should die
without children, then the land devised to him should become the property “of the trustees
of the Methodist Episcopal Church at Norcatur, Kansas . . . .” Although defendant
acknowledges these probate documents, defendant argues that plaintiffs have not
provided any evidence to show that United Methodist Church actually acquired the
property upon the passing of Loren Gill Sharp or that the United Methodist Church of
Norcatur is the successor of the Methodist Episcopal Church at Norcatur. In response,
plaintiffs contend the “United Methodist Episcopal Church [of Norcatur, Kansas] became
the United Methodist Church” and allege the United Methodist Episcopal Church at
Norcatur changed its name to the United Methodist Church. Plaintiffs offer a link to a
website in support of their contentions. 32 The website, however, provides the history of
the “Rust United Methodist Church” in Oberlin, Ohio, and it does not appear to support
32 Grace Hammond et al., Rust United Methodist Church, OBERLIN (Fall 2003),
http://www2.oberlin.edu/external/EOG/AfAmChurches/Rust.htm.
35
plaintiffs’ assertion that the United Methodist Episcopal Church at Norcatur “became” or
changed its name to the United Methodist Church.
Although the court finds the probate documents submitted by plaintiffs to be
probative and helpful towards resolving the ownership issues pertaining to United
Methodist Church, these documents only establish that Isiah Sharp intended to devise
property to his son, Loren Gill Sharp, and that, upon the death of Loren Gill Sharp, that
property would pass to the Methodist Episcopal Church at Norcatur, Kansas. The court
finds, therefore, that there is still a genuine issue of material fact as to whether plaintiff
United Methodist Church is the same as or a successor to the Methodist Episcopal
Church of Norcatur, Kansas. Accordingly, at this time the court denies plaintiffs’ and
defendant’s motions for partial summary judgment regarding ownership with regard to
Flying S. Land Co. plaintiff United Methodist Church, and the issue is deferred to further
proceedings. If plaintiff can provide subsequent documentation as to the remaining
issues, perhaps the parties can resolve the issue by stipulation and should try to do so
Adjacency Disputes
The parties have stipulated that all plaintiffs are adjacent to the railroad corridor
except the following Kansas landowners: Arnold plaintiffs Rodney and Tonda Ross’ parcel
102-03-0-00-00-004.00-0 on the south side of the railroad corridor, Mark and Shayla
Bailey, Robert Strevey, and Harold and Kristelle Mizell parcel 107-36-0-10-04-001; Flying
S. Land Co. plaintiffs Arnold K. Graham parcel 074-059-31-0-00-00-004.00-0, J & C
Partnership, Garth Gebhard, Silverstone & Dake’s Canal Inc. parcels 074-056-24-0-20-
01-002.00-0 and 074-056-24-0-20-01-001.00-0, Gerry and Theresa Tally parcel 020-141-
01-0-30-20-010.00-0, and James and Janice Bricker parcel 020-124-18-0-00-03-001.00-
0; and Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel 740-056-13-0-
00-00-005.00-0. In general terms, plaintiffs and defendant state that, under Kansas law,
adjacency should be interpreted to mean that a parcel abuts, adjoins, or is “next to” the
railroad corridor. 33 Indeed, courts applying the centerline presumption under Kansas law
have indicated that a plaintiff claiming the centerline presumption must own property
abutting the easement. See Gauger v. State, 815 P.2d 501, 506 (Kan. 1991) (“The rule
is thus clear and of long standing that when the owner of real estate conveys land abutting
on a railroad right-of-way, and the owner (grantor) owns the servient estate of the railroad
right-of-way and the railroad the dominant estate for right-of-way purposes, the grantor
passes to the grantee the servient estate, unless the intention not to do so is clearly
indicated.”); Carpenter v. Fager, 361 P.2d 861, 864 (Kan. 1961) (“It is obvious from the
mentioned cases that the highway rule is applicable in a situation where the land abutting
a public easement is conveyed.”); cf. Sebree v. Bd. of Cty. Comm’rs of the Cty. of
Shawnee, 840 P.2d 1125, 1130 (Kan. 1992) (concluding that “‘abut’ means to touch”
when analyzing “the abutting requirement” of a common-law right of access to a public
highway claim).
33The parties have stipulated that all of the plaintiffs’ properties that are located in
Nebraska are adjacent to the railroad corridor.
36
K-383
K-383 runs between the following plaintiffs’ parcels and the railroad right-of-way:
Arnold plaintiffs Rodney and Tonda Ross’ parcel on the south side of the railroad corridor
102-03-0-00-00-004.00-0; Flying S. Land Co. plaintiffs Arnold K. Graham parcel 074-059-
31-0-00-00-004.00-0, J & C Partnership, Garth Gebhard, and Silverstone & Dake’s Canal,
Inc. parcels 074-056-24-0-20-01-002.00-0 and 074-056-24-0-20-01-001.00-0; and
Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel 074-056-13-0-00-00-
005.00-0. Plaintiffs argue, “[s]ince K383 is a state highway, it is deemed to be an
easement under Kansas law and, as a result, the claimants still own to the centerline of
the railroad’s right-of-way.” 34 Plaintiffs submitted to the court condemnation proceedings
for a state highway in Phillips County, Kansas, titled “In the Matter of Condemnation of
Land for State Highway Purposes.” (capitalization in original). Although it appears that the
Kansas State Highway Commission acquired the land for a state highway in Phillips
County, Kansas, through this condemnation proceeding, it is unclear if that state highway
was K-383. Conversely, defendant argues that KDOT owns the highway in fee. In support,
defendant pointed to the stricken unofficial chart discussed above sent from a KDOT
employee to defendant’s counsel via email in support of its position that KDOT owns K-
383 in fee. The chart purports to identify parcels that are adjacent to a portion of the
highway owned in fee that was acquired by deed in 1933 and 1935. As noted above,
defendant does not provide the 1933 or 1935 deeds that allegedly conveyed the right-of-
way for K-383 to KDOT in fee or other evidence to support its contention that KDOT
owned the land in fee. Defendant has submitted to this court several deeds titled “DEED
FOR HIGHWAY PURPOSES,” although, as with the condemnation proceeding submitted
to the court by plaintiff, it is unclear whether the referenced highway was K-383.
(capitalization in original).
If the highway was dedicated at common law, then KDOT holds only an easement
and abutting property owners, the plaintiffs in this case, retain fee interest in the right-of-
way. If the highway, however, was statutorily dedicated, then the fee vests in the public.
The circumstances under which a highway was created determines whether KDOT holds
K-383 right-of-way in fee. See Sw. Bell Tel. Co. v. State Corp. Comm’n of Kan., 664 P.2d
798, 801 (Kan. 1983) (“[F]ee title to public highways in Kansas may or may not be
governmentally owned, depending upon the circumstances which established the
highway.”). “The public obtains a mere easement to the land” laid out or dedicated at
common law, and “[t]he fee in the land never passes to the public, but remains in the
original owner.” Comm’rs of Shawnee Co. v. Beckwith, 10 Kan. 603, 607 (1873). In
Southwestern Bell Telephone Co. v. State Corp. Commission of Kansas, the Supreme
Court of Kansas reaffirmed the statement of law earlier set out in Atchison & N.R. Co. v.
Garside, stating “the fee of a street dedicated under what is now K.S.A. [Kan. Stat. Ann.]
12–406 . . . vest[s] ‘absolutely’ in the county. It has long been established that the fee of
34 Plaintiffs cite to a case in which KDOT obtained an easement over a right-of-way by
condemnation. See Carson v. Kansas City, 506 P.2d 1111 (Kan. 1973). Although this
case is one instance of eminent domain laws being used to condemn a right-of-way and
of providing the state with only an easement, this case does not hold that KDOT acquired
an easement over K-383 under Kansas eminent domain law.
37
a statutorily dedicated street vests in the county . . . .” Sw. Bell Tel. Co. v. State Corp.
Comm’n of Kan., 664 P.2d at 801 (citing Atchison & N.R. Co. v. Garside, 10 Kan. 552,
564-65 (1873)).
Given the evidence in the record, it is unclear whether K-383 was dedicated
statutorily or at common law. The records submitted to the court indicate that there is a
genuine issue of material fact as to whether K-383 was established pursuant to an
easement, or if the State of Kansas owns the land underlying K-383 in fee simple.
Therefore, based on the information currently before the court, the court cannot determine
whether KDOT holds only an easement over the K-383 right-of-way or whether it holds
fee simple interest in the right-of-way.
Additionally, Dawson plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel
074-056-13-0-00-00-005.00-0 argue that the “Cox Trusts own the property underlying
K383 by the plain language of their deed.” The deed to the Cox Trusts No. 1 property
conveys:
An undivided one-half interest in and to all that portion of the Northwest
Quarter (NW/4) lying Southeasterly of the Burlington Railroad right-of-way,
the North Half of the Southwest Quarter (N/2 SW/4), and the Southeast
Quarter of the Southwest Quarter (SE/4 SW/4) South of Burlington Railroad,
all in Section Eighteen (18), Township (1) South, Range Nineteen (19) West
of the 6th P.M., in Phillips County, Kansas; and
An undivided one-half interest in and to all that portion of the Southeast
Quarter (SE/4) lying Southeasterly of the Burlington Railroad right-of-way in
Section Thirteen (13), the Southeast Quarter (SE/4) of Section Three, and
the Northwest Quarter (NW/4) of Section Four (4), all in Township One (1)
South, Range Twenty (20) West of the 6th P.M. in Philips County,
Kansas . . . .
together with all its appurtenances and warrant the title to the same, subject
to all prior mineral reservations, oil and gas leases, rights-of-way,
easements and protective covenants of record, if any.
According to plaintiffs, “the Cox’s Trust’s property includes K383” because K-383 is south
of the railroad corridor. As discussed, the evidence before the court does not demonstrate
whether KDOT holds an easement or a fee interest in K-383. Accordingly, the court denies
both plaintiffs’ and defendant’s motions for summary judgment on the issue of adjacency
for all parcels adjacent to K-383 and defers the issue for further proceedings.
Miscellaneous Adjacency Issues
W. Opelik Street, which is distinct from K-383, appears to lay between the parcel
owned by Arnold plaintiffs Mark and Shayla Bailey and the railroad corridor. N. Decatur
Street, which is also distinct from K-383, appears to lay between both the parcel owned
38
by Arnold plaintiff Robert Strevey and parcel 107-36-0-10-04-001 owned by Arnold
plaintiffs Harold and Kristelle Mizell and the railroad corridor. Plaintiffs allege that these
properties are adjacent to the railroad corridor and that defendant has failed to prove the
existence of these roads, even though the roads are apparent in the maps submitted to
the court by defendant. Plaintiffs further allege that the railroad right-of-way pre-existed
these roads, and the subsequent construction of the roads did not sever plaintiffs’ claim
in the land continuing to the railroad right-of-way. Defendant argues that plaintiffs’
properties are, in fact, separated from the railroad corridor by W. Opelik Street and N.
Decatur Street, and plaintiffs have not provided evidence that these intervening roads are
not intervening and are mere easements.
There is a genuine dispute of material fact and no evidence before the court at this
time as to whether the public holds fee simple interest in or only an easement over these
roads. If the public owned these roads in fee, then these roads keep these plaintiffs’
parcels from being adjacent to the railroad right-of-way. If, however, the public only held
an easement over these plaintiffs’ properties, then plaintiffs own the servient estate in the
road and are adjacent to the railroad right-of-way. Accordingly, the court denies both
plaintiffs’ and defendant’s motions for summary judgment on adjacency regarding Arnold
plaintiffs Mark and Shayla Bailey parcel 107-36-0-20-13-005, Robert Strevey parcel 107-
36-0-10-04-002, and Harold and Kristelle Mizell parcel 107-36-0-10-04-001.
In addition, the parties dispute the adjacency of certain parcels belonging to Flying
S. Land Co. plaintiffs Gerry and Theresa Tally and James and Janice Bricker. 35 Plaintiffs
contend that Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 and
James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0 are adjacent to the
railroad corridor, and defendant contends that these parcels are not adjacent to the
railroad corridor. As discussed above, plaintiffs hired an outside firm to review the
adjacency of these properties to the railroad corridor, and plaintiffs try to rely on the firm’s
findings to argue that Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-
0 is adjacent to the railroad corridor. According to the firm’s findings, Gerry N. and
Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 “is adjacent to the railroad corridor
for approximately 345 feet. There is no road or parcel in between the parcel and the
corridor on the eastern 345 feet of the parcel. The western portion of this parcel is blocked
by the Church of Christ of Oberlin.” Plaintiffs also submit to the court that “[t]he County
reported that a former street, South Mill Street, was vacated and the south half of the road
sent to the Tally parcel and the north half of the road went to the Church of Christ Parcel.”
Plaintiffs have not provided any evidence that South Mill Street was, indeed, vacated or
who retained the property interest in the street upon this alleged vacation.
35 As noted above, defendant contends that neither Gerry and Theresa Tally parcel 020-
141-01-0-30-20-010.00-0 nor James and Janice Bricker parcel 020-124-18-0-00-03-
001.00-0 are adjacent to the railroad corridor, but defendant stipulates to the adjacency
of the claims for Gerry and Theresa Tally parcel 020-141-01-0-30-19-005.00-0 and James
and Janice Bricker parcels 020-124-18-0-00-09-004.00-0 and 020-124-18-0-00-01-
001.00-0.
39
Defendant argues, “[p]laintiffs’ own maps show that the claim . . . for parcel number
020-141-01-0-30-20-010.00-0, is not adjacent to the rail line as a strip of land not owned
by Plaintiffs Tally separates their property from the rail line.” Plaintiffs’ map does, indeed,
show that no portion of Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-
0 abuts the railroad corridor, as there is a strip of unmarked land lying between the portion
of Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 that is not blocked
by the Church of Christ parcel and the railroad corridor. Additionally, plaintiffs’ own maps
show that the railroad corridor lies north of Gerry N. and Theresa M. Tally parcel 020-
141-01-0-30-20-010.00-0. If the road that allegedly lies between Gerry N. and Theresa
M. Tally parcel 020-141-01-0-30-20-010.00-0 and the railroad corridor was vacated and
the north half of the road “went to the Church of Christ parcel,” according to plaintiffs’
maps, Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0 would still not
be adjacent to the railroad corridor because the Church of Christ’s interest in the vacated
road would lie between Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-
010.00-0 and the railroad corridor. Because the parcel is not adjacent to the railroad
corridor, the court grants defendant’s motion for summary judgment on the issue of
adjacency against Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcel 020-141-
01-0-30-20-010.00-0.
With regard to the James and Janice Bricker parcel 020-124-18-0-00-03-001.00-
0, plaintiffs submit that “[a] road, South Railroad Street, is in between this parcel and the
railroad corridor.” Plaintiffs allege that South Railroad Street is a dedicated road that has
not been vacated, although they provide little or no evidence to support these conclusory
allegations. Plaintiffs allege that, “[u]nder Kansas law, roads are easements and, as a
result, the abutting landowners own the underlying fee.”36 Similarly, defendant does not
address the presence of the road and simply alleges that this parcel “is not adjacent to
the rail line on Plaintiffs’ own maps as a strip of land not owned by Plaintiffs Bricker
separates their property from the rail line.” As discussed above, not all Kansas roads are
easements. See Sw. Bell Tel. Co. v. State Corp. Comm’n of Kan., 664 P.2d at 801. If the
road was dedicated at common law, then the public holds only an easement and James
and Janice Bricker retain fee interest in the road right-of-way. See id. If the road was
statutorily dedicated, however, then the fee vests in the public. Id. Given the absence of
evidence in the record, there remains a genuine dispute of material fact as to whether the
road between James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0 and the
railroad corridor was statutorily dedicated or dedicated at common law. Accordingly, the
court denies both plaintiffs’ and defendant’s motions for summary judgment regarding the
James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0.
36Plaintiffs cite to J & S Building Co. v. Columbian Title & Trust Co., 563 P.2d 1086 (Kan.
App. 1977) in support of their argument that “[u]nder Kansas law, roads are
easements . . . .” This citation is not dispositive. Although the decision states, “[a]t
common law the dedication of a street or highway for public use does not operate to divest
the owner of the adjoining land from which the roadway was taken of the fee title,” it does
not indicate that all roads in Kansas are easements. Id. at 1090.
40
Conveyances
As indicated above, the railroad obtained its interest in the railroad corridor in five
ways: condemnation proceedings, the General Railroad Right-of-Way Act of 1875, private
“Right of Way Deeds,” 1950 deeds from the United States, and deeds from the Lincoln
Land Company. The parties have stipulated to the applicable conveyance documents
from plaintiffs’ predecessors-in-interest to the railroad company’s predecessor-in-interest
for all remaining plaintiffs except Flying S. Land Co. plaintiffs Gerry N. and Theresa M.
Tally parcel 020-141-01-0-30-19-005.00-0, Oberlin Concrete Co., James and Janice
Bricker parcels 020-124-18-0-00-09-004.00-0, 020-124-18-0-00-03-001.00-0, and 020-
124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-
002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s Canal,
Inc. parcel 074-056-24-0-20-01-002.00-0. Additionally, although not directly addressed in
their submissions to the court, the parties appear to disagree about the source
conveyance to Flying S. Land Co. plaintiffs Cecil and Lavon Wright and AG Valley
Cooperative. While defendant states in its motion for partial summary judgment that the
NKCR’s predecessor-in-interest obtained its interest in the portion of the railroad corridor
adjacent to Cecil and Lavon Wright and the AG Valley Cooperative by private deed,
plaintiffs assert that the railroad obtained its interest in the railroad corridor adjacent to
these plaintiffs’ properties by condemnation and private deeds.
Lincoln Land Co. Deeds or Condemnation
The parties dispute the applicable source conveyances from plaintiffs’
predecessors-in-title to NKCR’s predecessor-in-interest for the following Flying S. Land
Co. plaintiffs: Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0,37
Oberlin Concrete Co., James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0,
020-124-18-0-00-03-001.00-0, and 020-124-18-0-00-01-001.00-0, Jerry G. and Connie
K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth Gebhard, Paul and Tammy Vincent,
and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0. 38 Plaintiffs
contend that the Burlington, Kansas & Southwestern Railroad Company acquired the
right-of-way over these plaintiffs’ properties through condemnation proceedings in
Decatur and Phillips Counties, Kansas that occurred in 1885. Plaintiffs argue that the
condemnation proceedings only provided NKCR’s predecessor-in-interest with an
easement for railroad purposes. In contrast, defendant contends that the applicable
37The parties also dispute the applicable source conveyance document for Flying S. Land
Co. plaintiff Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-010.00-0. As
discussed, the court has granted defendant’s motion for summary judgment against
Flying S. Land Co. plaintiff Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-20-
010.00-0 because it is not adjacent to the railroad corridor.
38As discussed above, the court has denied both plaintiffs’ and defendant’s motions for
partial summary judgment for Flying S. Land Co. plaintiffs James and Janice Bricker
parcel 020-124-18-0-00-03-001.00-0, Garth Gebhard, and Silverstone & Dake’s Canal,
Inc. parcel 074-056-24-0-20-01-002.00-0 because a genuine issue of material fact exists
as to whether plaintiffs’ properties are adjacent to a portion of the railroad corridor.
41
source conveyances for the railroad’s interest in the land adjacent to Flying S. Land Co.
plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0, Oberlin
Concrete Co., James and Janice Bricker, Jerry G. and Connie K. Cox parcel 074-056-23-
0-40-02-002.00-0, Garth Gebhard, Paul and Tammy Vincent, and Silverstone & Dake’s
Canal, Inc. parcel 074-056-24-0-20-01-002.00-0 are four deeds in which the Lincoln Land
Company granted the land to NKCR’s predecessor-in-interest in fee. Defendant contends
that the applicable source conveyance document for Flying S. Land Co. plaintiffs Gerry
N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.
is the Lincoln Land Company deed located at Book 4, Page 330 (Lincoln Land Company
Deed 4-330), the applicable source conveyance document for James and Janice Bricker
is the Lincoln Land Company deed located at Book 4, Page 426 (Lincoln Land Company
Deed 4-426), the applicable source conveyance document for Jerry G. and Connie K.
Cox parcel 074-056-23-0-40-02-002.00-0 and Garth Gebhard is the Lincoln Land
Company deed located at Book M, Page 242 (Lincoln Land Company Deed M-242), and
the applicable source conveyance document for Paul and Tammy Vincent is the Lincoln
Land Company Deed located at Book K, Page 488 (Lincoln Land Company Deed K-488).
Defendant also asserts that the applicable source conveyance documents for Flying S.
Land Co. plaintiff Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0
are Lincoln Land Company Deed M-242 and Lincoln Land Company Deed K-488.
Defendant alleges that “[a]ssuming that the railroad initially acquired only an easement
by condemnation, in these cases, the railroad subsequently acquired fee title to those
same lands through the Lincoln Land Company deeds.”
In its motion for summary judgment, defendant originally asserted that the grants
in the deeds from the Lincoln Land Company did not contain any restrictions, and NKCR’s
predecessor-in-interest acquired an estate in fee through these conveyance documents.
In its notice of partial withdrawal of its motion for summary judgment, defendant states
that the Lincoln Land Company deeds relevant to Flying S. Land Co. plaintiffs James and
Janice Bricker, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth
Gebhard, and Paul and Tammy Vincent should be interpreted to convey an easement.
Defendant also submitted “a revised chart showing the current status of the disputed title
issues,” which indicated that the NKCR only possessed an easement over the section of
the railroad corridor adjacent to Flying S. Land Co. plaintiffs James and Janice Bricker,
Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-002.00-0, Garth Gebhard, and
Paul and Tammy Vincent. 39 Nevertheless, defendant maintains that the Lincoln Land
Company deeds conveyed a fee interest to NKCR’s predecessor-in-interest in the land
adjacent to Flying S. Land Co. plaintiffs Gerry and Theresa Tally parcel 020-141-01-0-30-
39 Although the parties dispute the applicable source conveyance document for Flying S.
Land Co. plaintiffs James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0 and
020-124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-
002.00-0, and Garth Gebhard, as the court’s analysis below demonstrates, regardless of
whether the applicable source conveyance document was a Lincoln Land Company deed
or condemnation proceedings, the NKCR only obtained an easement in the land adjacent
to Flying S. Land Co. plaintiffs James and Janice Bricker parcels 020-124-18-0-00-09-
004.00-0 and 020-124-18-0-00-01-001.00-0, Jerry G. and Connie K. Cox parcel 074-056-
23-0-40-02-002.00-0, and Garth Gebhard.
42
19-005.00-0, Oberlin Concrete Co., and Silverstone & Dake’s Canal, Inc. parcel 074-056-
24-0-20-01-002.00-0. Additionally, on February 23, 2018, in response to an order issued
by the court, defendant submitted a filing to the court that stated “[a]fter reviewing the
prior filings and exhibits, it appears that counsel for the United States accidentally
included Plaintiffs [Paul and Tammy] Vincent’s property in its November 17, 2017 Notice
of Partial Withdrawal of its Cross-Motion for Summary Judgment.” (capitalization in
original). Defendant also asserted that “the Court should interpret that this deed [Lincoln
Land Company Deed] K-488, which is the applicable source deed for both Plaintiffs
Vincent’s property and Silverstone & Dake’s Canal’s parcel number 074-056-24-0-20-01-
002.00-01, conveyed a fee interest to the railroad.” (capitalization in original) (footnote
omitted).
Decatur County, Kansas Condemnation Proceedings or Lincoln Land Company Deed 4-
430
Plaintiffs assert that the applicable source conveyance document for Flying S.
Land Co. plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0
and Oberlin Concrete Co. is the Decatur County condemnation proceeding. Conversely,
defendant asserts the applicable the source conveyance document for Flying S. Land Co.
plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin
Concrete Co. is Lincoln Land Company Deed 4-330. Defendant correctly notes that a
valuation chart created by the ICC in 1917 identifies Lincoln Land Company Deed 4-330
as the applicable source conveyance document for the Gerry N. and Theresa M. Tally
parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s parcel. Defendant also
states that plaintiffs had previously filed a chart titled “Parcel Legal Descriptions
Comparison to Lincoln Land Co.,” which, according to defendant, “seems to contradict”
plaintiffs’ position on the applicability of Lincoln Land Company Deed 4-330 to Gerry N.
and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s
parcel. In plaintiffs’ “Parcel Legal Descriptions Comparison to Lincoln Land Co.” chart,
plaintiffs state that Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00-0
and Oberlin Concrete Co.’s parcel are “on the south side of the former corridor and
adjacent to the legal description in the Lincoln Land Company deed. The Lincoln Land
Company deeds lots and blocks match with the valuation maps parcel ID numbers, which
matches the maps provided by plaintiffs.” In response, plaintiffs assert that the Lincoln
Land Company Deed 4-330 “does not involve the railroad right-of-way at all and only
applies to surrounding lots.” Plaintiffs also assert that “it is obvious that the
condemnations do apply, even if partially because the Lincoln Land Company deed is for
lots and does not cover the entire condemnation area.”
The purpose of the Decatur County condemnation proceeding, which occurred in
1885, was “to lay out a [illegible] and Right of Way for the Burlington Kansas and
Southwestern Railroad Company in Decatur County Kansas.” (capitalization in original).
Plaintiffs fail to cite to specific portions of the Decatur County condemnation proceeding
to support their position that the Decatur County condemnation proceeding was the
applicable source conveyance document. The Decatur County condemnation
proceeding, however, does appear to include legal descriptions of parcels that belonged
43
to the Gerry N. and Theresa M. Tally’s predecessor-in-title and Oberlin Concrete Co.’s
predecessor-in-title.
As plaintiffs acknowledge in their “Parcel Legal Descriptions Comparison to Lincoln
Land Co.” chart, however, the ICC valuation chart does identify Lincoln Land Company
Deed 4-330 as the applicable source conveyance document for the sections of the
railroad corridor adjacent the Gerry N. and Theresa M. Tally parcel 020-141-01-0-30-19-
005.00-0 and Oberlin Concrete Co.’s parcel. The pertinent portion of Lincoln Land
Company Deed 4-330 provides:
In consideration of the Payment of Seventeen hundred and Fifty (1750)
Dollars. The Lincoln Land Company hereby sells and conveys to The
Burlington Kansas and South Western Railroad Company the following
described Real Estate situated in the County of Decatur and State of
Kansas to wit:
Lot Nos. Eleven (11) and Twelve (12) in Block No. Twelve (12); Lot Nos.
Twenty one (21), Twenty two (22), Twenty three (23), Twenty four (24),
Thirty Five (35) and Thirty-six (36) in Block No. Thirteen (13); Lot Nos.
Thirty three (33), Thirty four (34), Thirty five (35) and Thirty-six (36) in
Block no. Fourteen (14); Lot nos. One (1), Two (2), Six and Seven (7) in
Block no. Twenty one (21); Lot Nos. One (1), Two (2), Three (3), Four (4),
Five (5), Six (6), Seven (7), Eight (8), Eleven (11), Twelve (12), Thirteen
(13), Fifteen (15), Sixteen (16), Seventeen (17) and Eighteen (18) in Block
No. Twenty two (22); Lot nos. One (1), Two (2), Three (3), Nine (9), Ten
(10), Eleven (11), Twelve (12), Thirteen (13) and Fourteen (14) in Block
no. Twenty three (23); Lot nos. One (1), Two (2), Three (3), Four (4), Five
(5), Six (6), Seven (7), Eight (8) and Ten (10) in Block No. Twenty four (24);
Lot Nos. One (1), Two (2), Three (3), Four (4), Five (5), Six (6), Seven (7),
Eight (8), Nine and Ten (10) in Block no. Twenty five (25); Lot nos. One
(1), Three (3) and Five (5) in Block No. Twenty six (26); all in the city of
Oberlin, also the South one hundred (100) feet of commercial place of said
City according to the recorded plat thereof.
Neither party, however, supports their position regarding the applicability of Lincoln Land
Company Deed 4-330 with citation to a map that clearly divides the railroad corridor into
lots and blocks in a manner that is similar to the language used in the granting clause
contained in Lincoln Land Company Deed 4-330. The court, therefore, is unable at this
time to determine from the evidence before the court whether Lincoln Land Company
Deed 4-330 conveyed the entire railroad corridor to NKCR’s predecessor-in-interest, or,
as plaintiff asserts, whether Lincoln Land Company Deed 4-330 only conveyed certain
lots within the railroad corridor to NKCR’s predecessor-in-interest. As a result, there is a
genuine dispute of material fact as to whether the Decatur County condemnation
proceeding or Lincoln Land Company Deed 4-330 is the applicable source conveyance
document for the sections of the railroad corridor adjacent to Gerry N. and Theresa M.
Tally parcel 020-141-01-0-30-19-005.00-0 and Oberlin Concrete Co.’s parcel.
44
Accordingly, the court denies both plaintiffs’ and defendant’s motions for partial summary
judgment for Flying S. Land Co. plaintiffs Gerry N. and Theresa M. Tally parcel 020-141-
01-0-30-19-005.00-0 and Oberlin Concrete Co. parcel 020-141-01-0-30-19-001.00-0.
Phillips County, Kansas Condemnation Proceedings, Lincoln Land Company Deed M-
242, or Lincoln Land Company Deed K-488
Additionally, the parties dispute the applicable source conveyance document for
Flying S. Land Co. plaintiffs Paul and Tammy Vincent and Silverstone & Dake’s Canal,
Inc. parcel 074-056-24-0-20-01-002.00-0. Plaintiffs contend that NKCR’s predecessor-in-
interest acquired its interest in the railroad corridor adjacent to Paul and Tammy Vincent
and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0 through
condemnation proceedings in Phillips County, Kansas. Plaintiffs also assert that the deed
defendant identifies as the applicable source conveyance document, Lincoln Land
Company Deed K-488, “is not actually the applicable deed because the Lincoln Land
Company issued a correcting deed in 1886, Book M, Page 242, which ‘take(s) the place
of’ the deed dated June 30, 1885, located at Book K, Page 488.” Defendant, however,
argues that Lincoln Land Company Deed K-488 is the applicable source conveyance
document for Paul and Tammy Vincent and “for most of claim 27.A [Silverstone & Dake’s
Canal, Inc. parcel 074-056-24-0-20-01-002.00-0]” because the ICC “valuation schedule
does not indicate that one deed replaced the other here.” Defendant also states that it
has “identified a portion of claim 27.A [Silverstone & Dake’s Canal, Inc. parcel 074-056-
24-0-20-01-002.00-0] is closest [sic] to the Lincoln Land Co. deed recorded at Book M,
Page 242, but this property is not adjacent to the railroad corridor because of the
intervening state highway, K-383.” 40 Defendant notes that the ICC valuation chart states
that the “[d]eed [is] not in file” for the section of the railroad corridor adjacent to Silverstone
& Dake’s Canal parcel 074-056-24-0-20-01-002.00-0. Defendant, however, states that
the next four parcels on the ICC valuation chart identify Lincoln Land Company Deed K-
488 as the applicable source conveyance document, which, according to defendant,
“clearly indicates it [Lincoln Land Company Deed K-488] is a different deed than the one
that was corrected.” Defendant also argues that, although the ICC valuation chart states
the Lincoln Land Company Deed M-242 “is correcting and taking the place of a deed
dated June 30, 1885, this reference could easily refer to a different document that was
not recorded.” Additionally, defendant argues that Lincoln Land Company Deed K-488
and Lincoln Land Company Deed M-242 “cover different legal descriptions.”
The Phillips County condemnation proceeding was filed in 1885 for “laying off right
of way . . . for the Burlington, Kansas and South Western Rail Road.” Plaintiffs correctly
note the Phillips County condemnation proceeding appears to condemn land for railroad
40 In its February 23, 2018 filing, defendant states that the “United States notes that
Lincoln Land Company deed M-242 covers approximately one-quarter of the relevant
railroad corridor across Highway [K-]383, which separates this parcel [Silverstone &
Dake’s Canal’s parcel 074-056-24-0-20-01-002.00-0] from the rail line. The other 75% of
the railroad corridor is contained in Lincoln Land Company deed K-488.” (internal
references omitted).
45
purposes beginning in the northeast quarter of Section Six, Township One, Range
Eighteen West through the southwest quarter of Section Thirty-One, Township One,
Range Twenty West. Plaintiffs, once again, fail to cite to specific sections of the Phillips
County condemnation proceeding to support plaintiffs’ claim that the applicable source
conveyance document for Paul and Tammy Vincent and Silverstone & Dake’s Canal, Inc.
parcel 074-056-24-0-20-01-002.00-0 is the Phillips County condemnation proceeding,
which does not appear to include a legal description matching the legal description of
either Paul and Tammy Vincent’s parcel or Silverstone & Dake’s Canal, Inc. parcel 074-
056-24-0-20-01-002.00-0. Consequently, it is unclear whether the Phillips County
condemnation proceeding applies to the section of the railroad corridor adjacent to Flying
S. Land Co. plaintiffs Paul and Tammy Vincent and Silverstone & Dake’s Canal, Inc.
parcel 074-056-24-0-20-01-002.00-0.
Lincoln Company Deed K-488 was executed on June 30, 1885 and conveyed a
tract of land to the Burlington, Kansas & Southwestern Railroad Company “for it use
[sic] as Depot grounds at said town of Long Island,” which included land “[c]ommencing
at a point in the East line of Atchinson Avenue in the town of Long in said [Phillips]
County, extended . . . to a point in the South West 1/4 of the North West 1/4 of section
no. Twenty four (24) in Township No. one (1) South of Range no. Twenty (20)
West . . . .” 41 (capitalization in parties’ original joint transcription). Plaintiffs correctly
state in their “Parcel Legal Descriptions Comparison to Lincoln Land Co.” chart that the
legal description for Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-
002.00-0 “appears to match the boundary legal description listed in” the legal
description of Lincoln Land Company Deed K-488. 42 The legal description contained in
41 The parties’ joint transcription of Lincoln Land Company Deed K-488 provides “In
Witness Whereof the President of the said Lincoln Land Company has herewith set his
hand and affixed the seal of the company this this 30th day of June 1883.” (capitalization
in parties’ original joint transcription). The parties, however, both state in their partial
cross-motions that Lincoln Land Company Deed K-488 was executed on June 30, 1885,
and the ICC valuation chart indicates that Lincoln Land Company Deed K-488 was
executed on June 30, 1885. The copy of Lincoln Land Company Deed K-488 that the
parties submitted to the court, which is largely illegible, appears to state “this 30th day of
June 1885.” Thus, the parties’ joint transcription of Lincoln Land Company Deed K-488
incorrectly provides that Lincoln Land Company Deed K-488 was executed in 1883.
42Plaintiffs state that the legal description of Silverstone & Dake’s Canal, Inc. parcel
074-056-24-0-20-01-002.00-0 is:
East Half of Northwest Quarter (E1/2NW1/4) of Sec. 24, Twp 1 South,
R.20West AND West Half of the Northeast Quarter (W1/2NE1/4) and all that
part of the West Half of the Northwest Quarter (W1/2NW1/4) lying South
and East of the Burlington, Kansas, Southwestern Railroad right-of-way and
depot grounds, except that paart [sic] included in plat and survey of Original
Town of First Addition to Town of Long Island, Kansas, all in Section
46
the granting clause of Lincoln Land Company Deed K-488 also appears to include Paul
and Tammy Vincent’s parcel, as the maps submitted to the court by plaintiffs show that
Paul and Tammy Vincent’s parcel is east of Atchinson Avenue in the direction of
Section 24. 43
The ICC valuation chart, however, also identifies Lincoln Land Company Deed
M-242 as an applicable source conveyance document for a section of the railroad
corridor and indicates that Lincoln Land Company Deed M-242 was “made to correct
error in deed dated 6/30/85 from same Grantor. Deed not in file.” The pertinent portion
of Lincoln Land Company Deed M-242 states:
In consideration of the Payment of One ($1.00) Dollars, the Lincoln Land
Company hereby sells and conveys to the Burlington Kansas and South
Western Railroad Company all of its right, title and interest in and to the
following described real estate situate in Phillips County and State of
Kansas to wit: The right of way one hundred feet wide being fifty feet on
each side of the center line of the B. K. and S.W. R.R. and commencing at
the North East end of the tract of land used by said Railroad Co. as Depot
grounds at the town of Long Island in said county and state, which said tract
was by deed bearing date June 30, 1885 conveyed by the said Land Co. to
said R.R. Co. and from thence running in a North Easterly direction to the
East line of the West half of the North West Quarter of section no. Twenty
four (24) in Township no. One (1) South of Range no. Twenty 20 West of
6th P.M. Also the right of way as aforesaid beginning a the South West end
of the aforesaid Depot grounds and running [illegible] thence in a South
westerly direction to the West line of the South East quarter (SE¼) of
section no. Twenty three (23) in Tp. No. One (1) South of Range no. Twenty
(20) West of the Sixth Principal Meridian.
This deed is made to correct and take the place of a certain other deed
bearing date June 30, 1885 and made by the grantor hereof to the grantee
hereto the intentions of which was to convey the right of way as above
described but in which several errors in describing directions of lines
[illegible] were made. This deed being intended to [illegible] [illegible] said
former deed, subject to the taxes of the year (1885) and thereafter.
(capitalization and alterations in the parties’ original joint transcription).
Twenty-Four (24), Township One (1) South, Range Twenty (20) West of the
6th P.M., Phillips County, Kansas.
(capitalization in original).
43 Plaintiffs state that the legal description of Paul and Tammy Vincent parcel 074-056-
23-0-10-01-001.00-0 is “Northeast Quarter (NE/4) of Section Twenty-three (23),
Township One (1), South, Range Twenty (20), West of the Sixth (6th) P.M. except
irregular tract #2822.” (capitalization in original).
47
Lincoln Land Company Deed M-242 indicates that it was issued to correct errors in
the legal description contained in a deed that executed on June 30, 1885, which is the
date Lincoln Land Company Deed K-488 was executed, between the Lincoln Land
Company and the Burlington, Kansas & Southwestern Railroad Company, who were the
parties that executed Lincoln Land Company Deed K-488. Lincoln Land Company Deed
K-488 conveyed a tract of land to the Burlington, Kansas & Southwestern Railroad
Company “for it [sic] use as Depot grounds . . . .” (capitalization in parties’ original joint
transcription). The pertinent portion of Lincoln Land Company Deed M-242 states that
the Lincoln Land Company is conveying a one-hundred foot wide “right of way” to the
Burlington, Kansas & Southwestern Railroad Company that extends northeast from “the
tract of land used by said Railroad Co. as Depot grounds,” to the “East line of the West
half of the North West Quarter of section no. Twenty four (24) in Township no. One (1)
South of Range no. Twenty 20 West of 6th P.M.” (capitalization in parties’ original joint
transcription). Lincoln Land Company Deed M-242 also conveys a “right of way”
beginning at the “South West end of the aforesaid Depot grounds and running [illegible]
thence in a South westerly direction to the West line of the South East quarter (SE¼) of
section no. Twenty three (23) in Tp. No. One (1) South of Range no. Twenty (20)
West . . . .” (capitalization and alterations in parties’ original joint transcription). Lincoln
Land Company Deed’s M-242 reference to the date that Lincoln Land Company Deed
K-488 was executed on, to the parties that executed Lincoln Land Company Deed K-
488, and to the subject matter conveyed in Lincoln Land Company Deed K-488 indicates
that Lincoln Land Company Deed M-242 was “made to correct” errors in Lincoln Land
Deed K-488’s description of the “right of way[s]” that extend from the depot grounds.
Additionally, the legal descriptions contained in Lincoln Land Company Deed M-242 also
appear to match the legal descriptions of Paul and Tammy Vincent’s parcel and
Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0.
The parties, however, have not established where “the tract of land used by said
Railroad Co. as Depot grounds” ends and where the “right of way[s]” described in Lincoln
Land Company Deed M-242 begin. The maps depicting Paul and Tammy Vincent’s parcel
and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0, which were
submitted to the court by plaintiffs and utilized by defendant, appear to show that there
are several structures near Paul and Tammy Vincent’s parcel and Silverstone & Dake’s
Canal, Inc. parcel 074-056-24-0-20-01-002.00-0 that could have been used as depot
grounds. Some of those structures appear to be adjacent to Paul and Tammy Vincent’s
parcel and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0, but it
is unclear whether any of the structures on the maps submitted to the court are the depot
grounds referenced in Lincoln Land Company Deed M-242. Consequently, there remains
a genuine issue of material fact as to whether the Phillips County condemnation
proceeding, Lincoln Land Company Deed K-488, or Lincoln Land Company Deed M-242
conveyed the land adjacent to Paul and Tammy Vincent’s parcel and Silverstone &
Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0 to NKCR’s predecessor-in-
interest. The court, therefore, denies both plaintiffs’ and defendant’s motions for partial
summary judgment for Flying S. Land Co. Paul and Tammy Vincent parcel 074-056-23-
0-10-01-001.00-0 and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-
002.00-0.
48
Fee or Easement
The parties have stipulated that NKCR’s predecessor-in-interest obtained only an
easement over the portion of the railroad corridor obtained via condemnation proceedings
and the General Railroad Right-of-Way Act of 1875. The parties initially disagreed,
however, as to whether NKCR’s predecessor-in-interest obtained fee interest or an
easement over the portions of the railroad corridor it obtained via private “Right of Way”
deeds, 1950 deeds from the United States, and the deeds from the Lincoln Land
Company. In its notice of partial withdrawal of its cross-motion for summary judgment,
defendant stated that “has determined and acknowledges that several of the deeds in this
action are similar to the deed in Jenkins that the Kansas Supreme Court ruled should be
interpreted to convey only an easement because the language implied a railroad use.”44
Condemnation
The parties have stipulated the following plaintiffs’ properties are adjacent to a
portion of the railroad corridor obtained by condemnation: Arnold plaintiffs John Arnold
and Susan Bolek parcels 107-35-0-00-00-003-00-0, and B & D Farm, LLC parcel 136-14-
0-00-00-002-00-0; Flying S. Land Co. plaintiffs Dolores M. Koerperich Revocable Living
Trust 020-133-05-0-00-00-004.00-0, Clem Koerperich parcels 020-133-05-0-00-00-
003.00-0 and 020-133-08-0-00-00-004.00-0, William C. and Bertha G. Rea parcel 020-
135-15-0-00-00-003.00-0, Leo and Carolyn Zodrow 020-122-09-0-00-00-001.00-0, Flying
S. Land Company parcels 020-123-08-0-00-00-004.00-0, 020-122-04-0-00-00-002.00-0,
and 020-121-01-0-00-00-001.00-0, Flying S. Partnership parcel 020-108-34-0-00-00-
003.00-0, Dale and Lenora Soderland parcel 020-123-08-0-00-00-001.00-0, and Clayton
and Catherine Cox parcel 074-058-27-0-00-00-002.00-0; and Dawson plaintiffs G & M
44 In Jenkins v. Chicago Pacific Corp., the plaintiff sought to quiet title to land that was
located under an abandoned railroad line. See Jenkins v. Chicago Pac. Corp., 403 P.3d
at 1215. The plaintiff asserted her interest in the land derived from a deed executed by a
railroad company in 1886. Id. The Supreme Court of Kansas noted that:
The 1886 deed shows that the grantors conveyed to the railroad company
a strip of land running through a larger collection of parcels the grantors
owned. The deed itself reveals that the company had staked and located
the railway’s proposed route before the conveyance. The deed fixed the
strip’s location on the grantors’ properties as the land on either side of the
centerline. It described those portions of the grantors’ collection of parcels
included in the conveyance as land within a given number of feet of the
centerline—both as the centerline passes through a large tract and as that
swath crossed parts of city lots and those whole city lots through which the
centerline ran.
Id. at 1219. The Supreme Court of Kansas concluded the 1886 deed conveyed an
easement because “the deed reflects the property was conveyed as the right of way for
the grantee’s planned railroad.” Id. at 1220.
49
Properties, LP, Linda J. Tomasch, John E. Bremer, and David G. Bremer parcels 13-209-
000-00-30-00 and 13-516-000-00-00-20-00. The parties also have stipulated that the
railroad held only an easement over the portion of the right-of-way it obtained via
condemnation proceedings in the State of Kansas. 45 Kansas established the right of
condemnation for railroad companies in 1868:
Any duly chartered and organized railway corporation may apply to the
board of county commissioners of any county through which such
corporation proposes to construct its road, to lay off, along the line of such
proposed railroad, as located by such company, a route for such proposed
railroad, not exceeding one hundred feet in width . . . a right of way over
adjacent lands sufficient to enable such company to construct and repair its
roads and stations, and a right to conduct water by aqueducts, and the right
of making proper drains.
Kan. Gen. Stat. Ch. 23, § 81 (1868). In Kansas Central Railway Company v. Allen, the
Supreme Court of Kansas interpreted this statute to limit any easement a railroad
company may obtain via condemnation to railroad purposes, stating:
[T]he perpetual use of the land condemned shall vest in the railroad
company to which it is appropriated for the use of the railroad . . . . Under
the law of 1868 a mere easement is only granted . . . . This includes the
right to employ the land taken for the purposes of constructing, maintaining,
and operating a railroad thereon. Under this right, the company has the free
and perfect use of the surface of the land, so far as necessary for all its
purposes, and the right to use as much above and below the surface as
may be needed.
Kan. Cent. Ry. Co. v. Allen, 22 Kan. 285, 293 (1879); see also Anna F. Nordhus Family
Tr. v. United States, 98 Fed. Cl. 331, 336 (2011) (“Under Kansas law, it is clear that
railroads exercising statutory powers of condemnation acquired easements in the right-
of-way.”).
This statute, as interpreted by the Supreme Court of Kansas in Kansas Central
Railway Company v. Allen, supports the parties’ stipulation that NKCR’s predecessor-in-
interest obtained only an easement over the portion of the railroad corridor obtained by
condemnation because the Supreme Court of Kansas makes clear that “a mere easement
only is granted.” Id. The Supreme Court of Kansas’ interpretation of the statute in Kansas
Central Railway Company v. Allen supports plaintiffs’ contention that the easement was
limited to railroad purposes because it interprets the statute to give a railroad company
“the free and perfect use of . . . the land, so far as necessary for all its purposes . . . .” Id.
(emphasis added).
45 The portion of the railroad corridor the railroad company’s predecessor-in-interest
obtained via condemnation is entirely in the State of Kansas. Accordingly, only Kansas
state law is applicable to determine whether the condemnation conveyed this portion of
the corridor to the railroad company in fee or as an easement.
50
Accordingly, as the parties have stipulated, NKCR’s predecessor-in-interest
obtained only an easement over the portion of the railroad corridor obtained via
condemnation in Kansas. The parties have stipulated the following plaintiffs’ land are
adjacent to a portion of the railroad corridor obtained by condemnation: Arnold plaintiffs
John Arnold and Susan Bolek parcels 107-35-0-00-00-003-00-0, and B & D Farm, LLC
parcel 136-14-0-00-00-002-00-0 46; Flying S. Land Co. plaintiffs Dolores M. Koerperich
Revocable Living Trust 020-133-05-0-00-00-004.00-0, Clem Koerperich parcels 020-133-
05-0-00-00-003.00-0 and 020-133-08-0-00-00-004.00-0, William C. and Bertha G. Rea
parcel 020-135-15-0-00-00-003.00-0, 47 Leo and Carolyn Zodrow 020-122-09-0-00-00-
001.00-0, Flying S. Land Company parcels 020-123-08-0-00-00-004.00-0, 020-122-04-
0-00-00-002.00-0, and 020-121-01-0-00-00-001.00-0, Flying S. Partnership parcel 020-
108-34-0-00-00-003.00-0, Dale and Lenora Soderland parcel 020-123-08-0-00-00-
001.00-0, and Clayton and Catherine Cox parcel 074-058-27-0-00-00-002.00-0; and
Dawson plaintiffs G & M Properties, 48 LP, Linda J. Tomasch, John E. Bremer, and David
G. Bremer parcels 13-209-000-00-30-00 and 13-516-000-00-00-20-00. The court,
therefore, grants Arnold, Flying S. Land Co., and Dawson plaintiffs’ motions for partial
summary judgment regarding title and adjacency for those plaintiffs who owned property
on the date the NITU was issued that was adjacent to a portion of the railroad corridor,
which the parties have stipulated was all of the above named plaintiffs, over which NKCR
holds only an easement limited to railroad purposes. 49 50
General Railroad Right–of–Way Act of 1875
As discussed above, the Burlington, Kansas & Southwestern Railroad Company,
NKCR’s predecessor-in-interest, acquired a portion of the land needed to construct the
railroad corridor via the General Railroad Right–of–Way Act of 1875. The land acquired
46The court only grants partial summary judgment for the portion of B & D Farm, LLC’s
parcel obtained by condemnation. The court analyzes the portion of B & D Farm, LLC’s
parcel obtained by Right of Way deed separately.
47The court only grants partial summary judgment for the portion of William C. and Bertha
G. Rea’s parcel obtained by condemnation. The court analyzes the portion of William C.
and Bertha G. Rea’s parcel obtained through the General Railroad Right–of–Way Act of
1875 separately.
48The court only grants partial summary judgment for the portion of G & M Properties,
LP’s parcel obtained by condemnation. The court analyzes the portion of G & M
Properties, LP’s parcel obtained through the Right of Way deed separately.
49 The court notes that ownership of the land underlying the railroad corridor is only one
of the determinative issues for takings liability under the Trails Act. See Ladd v. United
States, 630 F.3d at 1019.
50 See Preseault II, 100 F.3d at 1537 (concluding plaintiffs owned the land underlying the
railroad corridor when the railroad company only acquired an easement in the railroad
corridor).
51
through the General Railroad Right–of–Way Act of 1875 includes the following Flying S.
Land Co. plaintiffs’ properties: William C. and Bertha G. Rea, Leo and Carolyn Zodrow
parcel 020-136-13-0-00-00-002.1-0, and GRS Revocable Trust.
In United States v. Brandt, the United States Supreme Court held that the United
States Congress only granted railroad companies easements over land obtained via the
General Railroad Right-of-Way Act of 1875. United States v. Brandt, 134 S. Ct. at 1268.
Because the railroad corridor at issue in United States v. Brandt had been abandoned,
the United States Supreme Court did not address the scope of the easement conveyed
by the General Railroad Right-of-Way Act of 1875. 51 Id. at 1266.
Defendant does not dispute that the railroad company’s predecessor-in-interest
obtained only an easement limited to railroad purposes over the portion of the railroad
corridor obtained via the General Railroad Right–of–Way Act of 1875. Accordingly, the
court grants Flying S. Land Co. plaintiffs’ motion for partial summary judgment regarding
title and adjacency for William C. and Bertha G. Rea parcel 020-135-15-0-00-00-003.00-
0, Leo and Carolyn Zodrow parcels 020-136-13-0-00-00-002.01-0 and 020-122-09-0-00-
00-001.00-0, and GRS Revocable Trust parcels 020-113-06-0-00-00-003.00-0, 020-113-
06-0-00-00-002.00-0, and 020-108-33-0-00-00-003.00-0, all of whom owned property on
the date the NITU was issued that is adjacent to a portion of the railroad corridor over
which NKCR holds only an easement limited to railroad purposes. 52
Right of Way Deeds
The railroad obtained its interest in the railroad corridor, in part, via private “Right
of Way” deeds between plaintiffs’ predecessors-in-title and the railroad company’s
predecessor-in-interest. The general language of these Right of Way deeds is consistent
from deed to deed. Only the specifics, such as parcel description, grantor, and
consideration change from deed to deed. All of the deeds are titled “Right of Way Deed;”
all of the deeds convey a “Strip of ground” ranging between 100 to 150 feet in width that
are described in relation to the centerline of the railroad; all of the deeds use the language
“assigns forever;” all of the deeds permit the railroad to construct and maintain a snow
51 Despite the fact that the United States Supreme Court did not address the scope of the
easement conveyed by the 1875 Act in United States v. Brandt, plaintiffs contend that,
“the Supreme Court has already ruled that the 1875 Act of Congress conveyed an
easement . . . limited to railroad purposes only. . . .” Additionally, a judge of the United
States Court of Federal Claims cited United States v. Brandt in a footnote in support of a
statement that “the 1875 Act did not provide or suggest that easements granted to
railroads under that Act would encompass any additional uses beyond railroad purposes.”
Geneva Rock Products, Inc. v. United States, 119 Fed. Cl. 581, 585 n.4 (2015), rev’d in
part on other grounds sub nom., Longnecker v. United States, 2016 WL 9445914 (Fed.
Cir. Nov. 14, 2016).
52 See Preseault II, 100 F.3d at 1537 (concluding plaintiffs owned the land underlying
the railroad corridor when the railroad company only acquired an easement in the
railroad corridor).
52
fence; and all of the deeds describe the conveyance as a “right of way.” Plaintiffs contend
that the railroad company holds only an easement limited to railroad purposes over the
portions of the railroad corridor obtained via these Right of Way deeds. Defendant
originally contended that the railroad company holds fee interest in the portion of the
railroad corridor obtained via these Right of Way deeds. Defendant “acknowledges” in its
notice of partial withdrawal of its cross-motion for summary judgment that almost all of
the Right of Way deeds “should be interpreted to convey only an easement because the
language implied a railroad use.” Defendant, however, asserts that the private Right of
Way deed from A. L. Hicks (Hicks deed), which conveyed to NKCR’s predecessor-in-
interest the land underlying the railroad corridor adjacent to Flying S. Land Co. plaintiff
AG Valley Cooperative, should be interpreted to convey fee simple. Defendant argues
the Hicks deed conveyed fee interest to NKCR’s predecessor-in-interest because the
Hicks deed was executed after the railroad corridor was constructed.
Kansas courts have “uniformly held that railroads do not own fee titles to narrow
strips of land taken as a right-of-way, regardless of whether they are taken by
condemnation or right-of-way deed.” Harvest Queen Mill & Elevator Co. v. Sanders, 370
P.2d 419, 423 (Kan. 1962) (reaffirming the rule established in Abercrombie v. Simmons,
81 P. 208 (Kan. 1905)); see also Jenkins v. Chicago Pac. Corp., 403 P.3d at 1216-17
(“When a railroad company acquires a strip of land for a right of way it generally takes
only an easement. This is the rule whether the strip is acquired by condemnation or
deed.”). To determine whether a deed conveyed land to a railroad as a right-of-way,
Kansas courts first look to the deed itself. Stone v. Haddan, 91 P.3d 1194, 1203-04 (Kan.
2004).
Kansas law holds that, in construing a deed, the first step is to determine whether
the deed is ambiguous. Cent. Natural Res., Inc. v. Davis Operating Co., 201 P.3d 680,
687 (Kan. 2009) (citing Wood River Pipeline Co. v. Willbros Energy Servs. Co., 738 P.2d
866 (Kan. 1987)). In making this determination, Kansas courts apply “the plain, general,
and common meaning of the terms used in the instrument.” Id. (citing Johnson v. Johnson,
645 P.2d 911 (Kan. 1982)). “An instrument is ambiguous when the application of pertinent
rules of interpretation to the whole ‘fails to make certain which one of two or more
meanings is conveyed by the words employed by the parties.’” Id. (quoting Wood v.
Hatcher, 428 P.2d 799 (Kan. 1967)).
If language in the deed is unambiguous, then the court should not look beyond the
four corners of the deed. See Stone v. Haddan, 91 P.3d at 1203. The court should analyze
the deed according to the general rule in Kansas “that deeds purporting to convey to
railroads a strip, piece, parcel, or tract of land which do not describe or refer to its use or
purpose or directly or indirectly limit the estate conveyed are generally construed as
passing an estate in fee.” Id. at 1204. Therefore, when a deed executed by a railroad
company contains express or implied use restrictions, reversionary clauses, or anything
indicating that the land is for a right-of-way, the railroad company receives only an
easement limited to railroad purposes over that property. See id.; see also Jenkins v. Chi.
Pac. Corp., 403 P.3d at 1217 (“[O]ur caselaw consistently holds that when the source of
the railroad company’s interest is a deed, the railroad acquires only an easement if the
53
deed expressly or impliedly conveyed the property for use as a right of way.” (citations
omitted)); Abercrombie v. Simmons, 81 P. at 211.
Plaintiffs claim that NKCR’s predecessor-in-interest obtained only an easement
over the portion of the railroad corridor acquired by the Right of Way deeds. Plaintiffs
argue that “[a]ll of the deeds are form deeds entitled ‘Right-of-way deed’ and contain the
same ‘right-of-way’ language in the body of the deed.” Therefore, according to plaintiffs,
“[a]ll of the deeds at issue clearly refer to and grant a right-of-way for the construction of
the railroad and, under the statutory scheme in Kansas, granted easements to the railroad
for railroad purposes.”
Because the court is able to discern the meaning of the Right of Way deeds from
the plain language of the deeds, the Right of Way deeds are unambiguous. The plain
language of the Right of Way deeds indicates that the parties to these Right of Way deeds
understood the conveyance to be for a railroad right-of-way. Under Kansas law, “[w]hen
a railroad company acquires a strip of land for a right of way it generally takes only an
easement.” Jenkins v. Chi. Pac. Corp., 403 P.3d at 1216-17; see also Abercrombie v.
Simmons, 81 P. at 211. The deeds described the conveyances as a “Strip of ground 100
feet wide it being 50 feet on each side of the center line of the Railroad of said Company.”
In numerous cases, Kansas courts have found that parties to a conveyance contemplated
that the conveyance was for a right-of-way when the conveyance was for a narrow strip
of land described in relation to the centerline of the railroad. See Jenkins v. Chi. Pac.
Corp., 403 P.3d at 1216-17; Harvest Queen Mill & Elevator Co. v. Sanders, 370 P.2d at
423; Abercrombie v. Simmons, 81 P. at 209; Atchison, Topeka & Santa Fe Rwy. Co. v.
Humberg, 675 P.2d 375, 376 (Kan. App. 1984). In Biery v. United States, the United
States Court of Appeals for the Federal Circuit found that, under Kansas law, a deed
intended to convey to a railroad company a right-of-way, in part because the deed
described the tract of land “in relation to the centerline of the railway . . . .” Biery v. United
States, 753 F.3d at 1289. The fact that the Right of Way deeds conveyed narrow strips
of land that were described in relation to the centerline of the railroad weighs significantly
in favor of the court finding that the parties intended the conveyances to be for a right-of-
way.
Additionally, a number of factors considered together lead the court to conclude
that the parties intended the conveyances to be for a right-of-way. As mentioned above,
the deeds conveyed a narrow strip of ground described in relation to the center line of the
railroad. Further, the deeds were labeled “Right of Way” deeds, and the bodies of the
instruments describe the conveyance as a “right of way.” The use of the term “right of
way” in the bodies of the Right of Way deeds at issue in Dawson, Arnold, and Flying S.
Land Co. indicates “that the parties expressly, or at a minimum, impliedly, intended to
convey or confirm an easement,” as was the case in Biery v. United States. See Biery v.
United States, 753 F.3d at 1290. Although the deeds state “assigns forever,” given the
other language in the deeds, this language does not definitively establish that the land
was transferred in fee. See Biery v. United States, 753 F.3d at 1280 (applying Kansas
law and concluding that a deed that said “right-of-way” in the body of the deed conveyed
only an easement to the railroad despite pre-printed language using the words “fee
54
simple”); Jenkins v. Chi. Pac. Corp., 403 P.3d at 1218-19 (determining a deed that
conveyed a strip of land to a railroad company and provided the railroad company was
“To have and to Hold the Same Together with all and singular tenements, hereditaments
and appurtenances Hereunto belonging or in anywise appertaining forever” only
conveyed an easement (capitalization in original); Abercrombie v. Simmons, 81 P. at 210
(“The fact that the deed contains covenants of warranty, or that the right acquired is
designated as a fee, is not necessarily controlling.”); see also Gilman v. Blocks, 235 P.3d
503, 511 (Kan. App. Ct. 2010) (citation omitted) (noting that easements may be granted
in perpetuity).
The court also finds defendant’s argument that the Hicks deed conveyed fee
simple to be unavailing. The Hicks deed provided:
That A. L. Hicks and Effie L. Hicks . . . in consideration of the sum of One
($1.00) Dollars . . . do hereby grant, bargain, sell and convey unto Chicago,
Burlington & Quincy Railroad Company, its successors and assigns, the
following described Real Estate, situated in Norton County, State of Kansas,
to-wit: A strip of land One Hundred Fifty (150) Feet wide on the northerly
side of, and adjoining the northerly side of the present Right of Way of the
Rail of said railroad Company, extending over and across the [legal
descriptions of lots and sections] the northerly line of the present Right of
Way being a line drawn Fifty (50) Feet distant from, parallel to and on the
northerly side of the center line of the railroad of said railroad company, as
the same is now located and constructed over and across the land above
described. To have and to hold the same unto the said railroad company,
its successors and assigns forever. And in addition to the Right of Way
described above, they hereby grant, for themselves, and their heirs and
assign the right to said Railroad Company to erect and maintain a snow
fence for the term of four months, each and every year . . . .
Defendant argues the Hicks deed conveyed fee simple to the railroad and contends the
deed is similar to the deeds analyzed by the Court of Appeals of Kansas in Schoenberger
v. United States, 26 P.3d 700 (Kan. Ct. App. 2000), because the Hicks deed provides that
the railroad corridor had already been constructed and conveys a strip of land on the
northerly side of a preexisting railroad corridor. Conversely, plaintiffs contend the Hicks
deed was a voluntary grant under Kansas law because it granted the railroad a right-of-
way for the consideration of one dollar, which, according to plaintiffs, indicates that
NKCR’s predecessor-in-interest only received an easement limited to railroad purposes.
In Schoenberger v. United States, the Court of Appeals of Kansas found that a
warranty deed executed in 1887 and a warranty deed executed in 1888 conveyed fee
simple to a railroad company. Schoenberger v. United States, 26 P.3d at 701. Although
the Court of Appeals of Kansas did not provide the entire text of 1887 or 1888 deed in its
opinion, the Court of Appeals of Kansas did state that the 1887 deed “provided that for
consideration, the grantor conveyed the described property to ‘Have and to Hold the
Same Together with all and singular the tenements, hereditaments, and appurtenances
55
thereunto belonging or in anywise appertaining forever,” warranted the property “was
‘lawfully seized in [its] own right of an absolute and indefeasible estate,’” and did not
contain a reversionary clause. Id. (emphasis and alteration in original). Similarly, the 1888
deed “provided that for consideration, the grantor conveyed the described property ‘to
have and to hold the same together with all and singular the tenements hereditaments
and appurtenances thereunto belonging or in anywise appertaining forever,’” warranted
the property “was ‘lawfully seized in its own right of an absolute and indefeasible estate
of inheritance in fee simple,’” and did “not contain any expressed use restriction.” Id.
(emphasis in original). The court stated “the lack of any express or implied use restriction
require[d]” the court to concluded the deeds conveyed fee simple. Id.
The Hicks deed, however, does contain implied restrictions. The Hicks deed is
titled as a “RIGHT OF WAY DEED.” (capitalization in original). After describing the land
being conveyed to the Chicago, Burlington & Quincy Railroad Company, the Hicks deed
states “in addition to the Right of Way described above, they hereby grant . . . the right to
the said Railroad Company to erect and maintain a snow fence.” As discussed, the use
of the term “right of way” in the body of a Right of Way deed to describe the land being
conveyed indicates “that the parties expressly, or at a minimum, impliedly, intended to
convey or confirm an easement.” See Biery v. United States, 753 F.3d at 1290. Unlike
the deeds at issue in Schoenberger v. United States, in which the Court of Appeals of
Kansas stated the absence of “any express or implied restrictions require[d]” the court to
find the deeds conveyed easements, the Hicks deed contains at least an implied
restriction. See Schoenberger v. United States, 26 P.3d at 701. The court, therefore, finds
that the Hicks deed only conveyed an easement to NKCR’s predecessor-in-interest the
land underlying the section of the railroad corridor that is adjacent to Flying S. Land Co.
plaintiff AG Valley Cooperative.
Because it appears from the language of all of the Right of Way deeds that the
conveyances in Arnold, Flying S. Land Co., and Dawson were intended as a right-of-way
by both parties, the railroad company obtained only an easement over the portions of the
railroad corridor obtained by Right of Way deeds. Accordingly, the court grants Arnold,
Flying S. Land Co., and Dawson plaintiffs’ motions for partial summary judgment
regarding title and adjacency for the following plaintiffs who owned property on the date
the NITU was issued that is adjacent to a portion of the railroad corridor over which NKCR
holds only an easement limited to railroad purposes. 53 The portions of the right-of-way
obtained by Right of Way deeds pertain to the following plaintiffs’ lands: Arnold plaintiffs
B & D Farms, LLC parcel 136-14-0-00-00-002-00-0, H. Drake and Karen Gebhard parcel
069-101-02-0-00-00-002-02-0-01, Cecilia Hillebrand parcels 069-101-02-0-00-00-002-
01-0-01, 069-101-02-0-00-00-002-03-0-01, and 069-144-17-0-00-00-002-00-0-01,
Jackson Irrevocable Farm Trust parcel 069-30-0-00-00-001-00-0-01, Lee Martin
Revocable Trust parcel 135-15-0-00-00-002, Bernice Martin parcel 121-02-0-00-00-004-
53 See Preseault II, 100 F.3d at 1537 (concluding plaintiffs owned the land underlying the
railroad corridor when the railroad company only acquired an easement in the railroad
corridor).
56
00-0, Harold and Kristelle Mizell parcel 069-151-01-0-00-00-003-00-0-01, 54 Rodney and
Tonda Ross’s parcel 069-101-02-0-00-00-001-00-0-01 on northern side of railroad
corridor, Ricky Temple parcel 069-067-35-0-00-00-002-00-0-01, L & S Tubbs Family
parcel 074-058-28-0-00-00-001-02-0, L.P., John C. Tweed Trust and Joann Tweed Trust
parcel 069-143-07-0-00-00-004-00-0-01, Ivan and Cathy Bohl Living Trust parcel 069-
151-01-0-00-00-002-00-0-01, and Morlock Children’s Trust parcel 069-068-27-0-00-00-
003-00-0-01; Flying S. Land Co. plaintiffs Dolores M. Koerperich Revocable Living Trust
parcel 020-133-05-0-00-00-001.00-0, Sauvage Gas Service parcel 020-136-13-0-00-00-
003.00-0, Flying S. Land Company parcel 020-109-31-0-00-00-001.00-0, Judith E.
Nelson parcel 020-122-03-0-00-00-002.00-0, Jonathan and Karen Cozad parcel 020-
107-25-0-00-00-001.00-0, Cecil and Lavon Wright parcel 069-151-02-0-00-00-002.00-0-
01, 55 AG Valley Cooperative parcel 069-151-02-0-00-00-001.00-0-01, Richard and
Robert McChesney parcel 069-143-07-0-00-00-001.00-0-01, Edward Braun parcel 069-
144-17-0-00-00-002.00-0-01, Arnold K. Graham, et al. parcel 074-059-31-0-00-00-
001.00-0, Jerry G. and Connie K. Cox parcel 074-056-23-0-00-00-003.00-0, Silverstone
& Dake’s Canal, Inc. parcel 074-056-24-0-20-02-001.00-0, and Craig E. Ingram Living
Trust and Genine L. Ingram Living Trust parcel 074-044-18-0-00-00-002.00-0; and
Dawson plaintiffs Conrad C. and Mary R. Cox parcel 74-044-180-00-00-003-00-0, 56 Carol
K. Ross and Kay L. Lee parcel 74-059-310-00-00-003-00-0, Shirley Kats Revocable Trust
and Derek Kats Revocable Trust parcels 069-104-18-0-00-00-003-00-0-01 and 069-104-
19-0-00-00-002-00-0-01, Rosemary L. Mathes parcel 069-132-03-0-00-03-001-00-0-01,
Duane R. and Darlene McEwen parcel 069-132-03-0-00-03-00101-0-01, M. Lee and
Angela Juenemann parcels 069-143-06-0-00-00-002-00-0-01 and 069-143-07-0-00-00-
002-00-0-01, G & M Properties, LP parcel 069-068-34-0-00-00-003-00-0-01, Joe L.
Dawson parcel 069-069-29-0-00-00-003-00-0-01, Bruce G. Guinn, Jr. parcel 13-306-020-
01-01-80-00, Jason and Travis Dial parcels 069-088-34-0-40-32-003-00-0-01 and 069-
088-34-0-40-32-004-00-0-01, Larry L. and Iris L. Smith, trustees of the Larry L. Smith and
Iris L. Smith Revocable Living Trust parcel 069-088-34-0-40-32-002-00-0-01, and Lloyd
E. and Pamela Y. Edgett parcel 069-088-34-0-30-07-004-00-0-01.
54As noted above, Harold and Kristelle Mizell own two land parcels at issue in this case.
The parties dispute the adjacency of parcel 107-36-0-10-04-001, but the parties do not
dispute adjacency for parcel 069-151-01-0-00-00-003-00-0-01. The court grants plaintiffs’
partial motion for summary judgment only with regard to parcel 069-151-01-0-00-00-003-
00-0-01. As discussed above, parcel 107-36-0-10-04-001 remains in dispute as to
adjacency.
55 As noted above, the parties appear to dispute the source conveyance document
pertinent to Cecil and Lavon Wright’s and AG Valley Cooperative’s property. Regardless
of whether the source conveyance to the railroad was through condemnation or a private
Right of Way deed, as the analysis above demonstrates, NKCR held an easement under
either analysis.
56The court only grants partial summary judgment for the portion of Conrad C. and Mary
R. Cox parcel 74-044-180-00-00-003-00-0 obtained by Right of Way deed. The court
analyzes the portion of Conrad C. and Mary R. Cox’s parcel obtained through the 1950
deeds separately.
57
1950 Deeds
The railroad company’s predecessor-in-interest obtained its interest in in sections
of the railroad corridor located in Phillips County, Kansas, and Harlan County, Nebraska,
in part, via 1950 deeds executed by the United States and the railroad company. The
Harlan County, Nebraska, deed reads, “the party of the First Part . . . does by these
presents remise, release and quitclaim unto the said party of the Second Part, its
successors and assigns, all its right, title and interest in and to the following described
property . . . .” After the specific descriptions of the property being conveyed, the Harlan
County deed says, “together with all easements appurtenant thereto more particularly
described as follows: A perpetual easement in connection with the construction, operation
and maintenance of a railroad . . .” and goes on to describe the parcels of land being
conveyed that are subject to that easement. Plaintiffs argue that the 1950 deeds between
the United States and the railroad company’s predecessor-in-interest for land in Harlan
County, Nebraska, “conveyed an easement to the railroad which was limited to railroad
purposes only.” Conversely, defendant argues, “the plain language of the deeds shows
the parties’ intent to convey the entire interest held by the United States to the railroad.”
A Nebraska statute explains the legal approach to deed interpretation in Nebraska:
In the construction of every instrument creating or conveying, or authorizing
or requiring the creation or conveyance of any real estate, or interest
therein, it shall be the duty of the courts of justice to carry into effect the true
intent of the parties, so far as such intent can be collected from the whole
instrument, and so far as such intent is consistent with the rules of law.
Neb. Rev. Stat. § 76-205 (2018); see also Elrod v. Heirs, Devisees, Etc., 55 N.W.2d 673,
674 (Neb. 1952) (“The court in interpreting a conveyance of real estate is by legislative
declaration required to carry into effect the true intent of the parties so far as it can be
ascertained from the whole instrument, if not inconsistent with law.” (citing Neb. Rev. Stat.
§ 76-205 (1943)). “In construing a deed, it is the duty of the courts to carry into effect the
true intent of the parties as far as it can be ascertained from the entire instrument and as
far as that intent is consistent with the rules of law.” Antelope Prod. Co. v. Shriners Hosp.
for Crippled Children, 464 N.W.2d 159, 161 (Neb. 1991) (citations omitted)); see also
Ottaco Acceptance, Inc. v. Larkin, 733 N.W.2d 539, 549 (Neb. 2007) (“In the construction
of a deed, courts will give effect to the intent of the parties.” (citing Anson v. Murphy, 32
N.W.2d 271 (Neb. 1948)); Elton Schmidt & Sons Farm Co. v. Kneib, 507 N.W.2d 305,
307 (Neb. Ct. App. 1993) (citation omitted). The plain language of the Harlan County,
Nebraska, deed makes clear the parties’ intention. The first granting clause in the Harlan
County, Nebraska deed quitclaims, without reservation, the land to the railroad company
and states, “assigns forever.” The deed conveys to the railroad company’s predecessor-
in-interest fee interest in the land conveyed under the first granting clause. The pieces of
property that are not conveyed in fee are conveyed under the second granting clause as
“[a] perpetual easement in connection with the construction, operation, and maintenance
of a railroad . . . .” The plain language of the Harlan County, Nebraska, deed shows that
58
the parties intended to convey the first set of parcels of land in fee and the remaining
parcels of land as easements limited to railroad purposes.
Neither the Nebraska plaintiff in Flying S. Land Co., Silverstone & Dake’s Canal,
Inc. parcels 260014100, 360004300, and 380012500, nor the defendant, has provided
evidence indicating whether the portion of the railroad corridor adjacent to Flying S. Land
Co. plaintiff Silverstone & Dake’s Canal, Inc. parcels 260014100, 360004300, and
380012500 was conveyed to the railroad in fee or easement by the 1950 Harlan County
deed. Flying S. Land Co. plaintiff Silverstone & Dake’s Canal, Inc. has failed to
demonstrate to the court which part of the Harlan County deed is applicable to the portion
of the railroad corridor adjacent to its Nebraska property. Because there is a genuine
dispute of fact regarding whether the portion of the railroad corridor adjacent to Flying S.
Land Co. plaintiff Silverstone & Dake’s Canal, Inc. parcels 260014100, 360004300, and
380012500 was conveyed to the railroad by the 1950 deed in fee or easement, the court
will not grant either plaintiffs’ or defendant’s motions for partial summary judgment on this
issue at this time for the following plaintiff who owned property in Nebraska on the date
of the NITU: Flying S. Land Co. plaintiff Silverstone & Dake’s Canal, Inc. parcels
260014100, 360004300, and 380012500.
The deed between the United States and the railroad company’s predecessor-in-
interest for the property in Phillips County, Kansas, only includes one granting clause,
which states: “the party of the First Part . . . does by these presents remise, release and
quitclaim unto the side party of the Second Part, its successors and assigns, all its right,
title and interest in and to the following described property . . . .” (capitalization in original).
The habendum clause reads, “TO HAVE AND TO HOLD the above described premises
unto the party of the Second Part, its successors and assigns forever, with all
appurtenances thereunto belonging.” No part of the 1950 deed for Phillips County,
Kansas, deed conveys an easement.
As discussed above, under Kansas law the initial step when construing a deed is
to determine whether the deed is ambiguous. Cent. Natural Res., Inc. v. Davis Operating
Co., 201 P.3d at 687 (citing Wood River Pipeline Co. v. Willbros Energy Servs. Co., 738
P.2d 866). Kansas courts apply “the plain, general, and common meaning of the terms
used in the instrument” rule when determining whether a deed is ambiguous. Id. (citing
Johnson v. Johnson, 645 P.2d 911). “An instrument is ambiguous when the application
of pertinent rules of interpretation to the whole ‘fails to make certain which one of two or
more meanings is conveyed by the words employed by the parties.’” Id. (quoting Wood v.
Hatcher, 428 P.2d 799). If the language of a deed is unambiguous, the court will not look
beyond the four corners of the deed. Id.
The plain language of the 1950 Phillips County, Kansas deed makes clear the land
is quitclaimed to the railroad company and states, “assigns forever.” The 1950 Phillips
County, Kansas deed does not contain any restrictions limiting NKCR’s predecessor-in-
interest’s interest in the land to an easement. The 1950 Phillips County, Kansas deed,
therefore, conveyed to NKCR’s predecessor-in-interest fee interest in the land. See Stone
v. Haddan, 91 P.3d at 1204. Accordingly, the court grants defendant’s motion for partial
59
summary judgment to defendant and against the following plaintiffs whose properties are
adjacent to the portion of the railroad corridor the railroad company obtained by the 1950
Phillips County, Kansas, land grant with the United States: Flying S. Land Co. plaintiffs
Culbertson Farms, LLC parcel 074-043-07-0-00-00-005.00-0, Perry and Ila Mae Schelling
parcel 074-043-07-0-00-00-001.00-0, James Holterman parcel 074-043-07-0-00-00-
002.00-0, and Orville and Pauline Holterman Revocable Trust parcel 074-043-06-0-00-
00-002.02-0 because the railroad holds fee interest in that portion of the railroad
corridor. 57
Lincoln Land Company Deeds
Plaintiffs and defendant assert that NKCR only possessed an easement in the land
underlying the section of the railroad corridor adjacent to Flying S. Land Co. plaintiffs
James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0 and 020-124-18-0-00-
01-001.00-0, 58 Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-002.00-0. 59
Defendant alleges that Lincoln Land Company Deed 4-426 conveyed an easement to
NKCR’s predecessor-in-interest in the section of the railroad corridor adjacent to Flying
S. Land Co. plaintiffs James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0
and 020-124-18-0-00-01-001.00-0. Similarly, plaintiffs assert that Lincoln Land Company
Deed 4-426 only conveyed “an easement for railroad purposes under Kansas law
57 Dawson plaintiff Conrad C. and Mary R. Cox, trustees of the Conrad C. and Mary C.
Cox Trust No. 1, own a parcel in Kansas that is adjacent to a portion of the right-of-way
over which the railroad company’s predecessor-in-interest obtained its interest in via
private Right of Way deeds and is adjacent to a portion of the right-of-way that the railroad
company’s predecessor-in-interest obtained its interest in via the 1950 Phillips County,
Kansas, deed with the United States. The court does not grant defendant’s motion for
summary judgment regarding this parcel, parcel 74-044-180-00-00-003-00-0, because
part of the parcel is adjacent to land over which the railroad holds only an easement. It is
important to note for valuation purposes, however, that the railroad did hold fee over the
part of the railroad corridor adjacent to this parcel that was obtained via the 1950 Phillips
County, Kansas, deed with the United States.
58Both plaintiffs and defendant state that NKCR only possessed an easement in the land
underlying the section of the railroad corridor adjacent to James and Janice Bricker parcel
020-124-18-0-00-03-001.00-0. As discussed, the court has denied both plaintiffs’ and
defendant’s motion for partial summary judgment for James and Janice Bricker parcel
020-124-18-0-00-03-001.00-0 because a genuine issue of material fact exists regarding
the adjacency of James and Janice Bricker parcel 020-124-18-0-00-03-001.00-0.
59 As discussed, the parties dispute NKCR’s predecessor-in-interest obtained its interest
in the railroad corridor adjacent to James and Janice Bricker, Jerry G. and Connie K. Cox
parcel 074-056-23-0-40-02-002.00-0, and Paul and Tammy Vincent through Lincoln Land
Company deeds or condemnation. As the court’s analysis demonstrates, regardless of
whether the source conveyance to the railroad was through condemnation or a Lincoln
Land Company deed, the railroad held only an easement.
60
because it specifically grants a right-of-way . . . .” Lincoln Land Company Deed 4-426
describes a strip of land and then conveys
the right of way for said Railroad, being one hundred (100) feet in width, fifty
(50) feet on each [side] of the center line of said Railroad and commencing
at the Southwest end of the tract of ground herein before described and
same being with said center line to its intersection with the west line of north
east Quarter of Section No. eighteen (18) aforesaid . . . .
(alteration in the parties’ original joint transcription). The Lincoln Land Company Deed 4-
426, therefore, conveyed a narrow strip of land measured from the centerline of the
railroad as a “right of way for said railroad . . . .” The language limiting the NKCR’s
predecessor-in-interest’s interest in the narrow strip of land to a “right of way” indicates
that the Lincoln Land Company Deed 4-426 conveyed an easement limited to railroad
purposes in the land underlying the section of the railroad corridor adjacent to Flying S.
Land Co. plaintiffs James and Janice Bricker parcels 020-124-18-0-00-09-004.00-0 and
020-124-18-0-00-01-001.00-0. See Jenkins v. Chi. Pac. Corp., 403 P.3d at 1217 (“[O]ur
caselaw consistently holds that when the source of the railroad company's interest is a
deed, the railroad acquires only an easement if the deed expressly or impliedly conveyed
the property for use as a right of way.” (citations omitted)); Harvest Queen Mill & Elevator
Co. v. Sanders, 370 P.2d at 423.
Additionally, both plaintiffs and defendant allege that Lincoln Land Company Deed
M-242 conveyed an easement to NKCR’s predecessor-interest in the land adjacent to
Flying S. Land Co. plaintiffs Jerry G. and Connie K. Cox parcel 074-056-23-0-40-02-
002.00-0. As discussed, Lincoln Land Company Deed M-242 provides:
In consideration of the Payment of One ($1.00) Dollars, the Lincoln Land
Company hereby sells and conveys to the Burlington Kansas and South
Western Railroad Company all of its right, title and interest in and to the
following described real estate situate in Phillips County and State of
Kansas to wit: The right of way one hundred feet wide being fifty feet on
each side of the center line of the B. K. and S.W. R.R. and commencing at
the North East end of the tract of land used by said Railroad Co. as Depot
grounds at the town of Long Island in said county and state, which said tract
was by deed bearing date June 30, 1885 conveyed by the said Land Co. to
said R.R. Co. and from thence running in a North Easterly direction to the
East line of the West half of the North West Quarter of section no. Twenty
four (24) in Township no. One (1) South of Range no. Twenty 20 West of
6th P.M. Also the right of way as aforesaid beginning a the South West end
of the aforesaid Depot grounds and running [illegible] thence in a South
westerly direction to the West line of the South East quarter (SE¼) of
section no. Twenty three (23) in Tp. No. One (1) South of Range no. Twenty
(20) West of the Sixth Principal Meridian.
61
Lincoln Land Company Deed M-242 conveys two one-hundred feet wide strips of land
which extend in opposite directions from the “tract of land used by said Railroad Co. as
Depot grounds . . . .” (capitalization in parties’ original joint transcription). Each of the one-
hundred feet wide strips of land are referred to as a “right of way.” Accordingly, the plain
language of Lincoln Land Company Deed M-242 limits NKCR’s predecessor-in-interest’s
interest in the land being conveyed to a right of way, which indicates that NKCR’s
predecessor-in-interest only obtained an easement in the land adjacent to Jerry G. and
Connie K. Cox parcel 074-056-23-0-40-02-002.00-0 and Garth Gebhard. See Jenkins v.
Chi. Pac. Corp., 403 P.3d at 1213; Harvest Queen Mill & Elevator Co. v. Sanders, 370
P.2d at 423 (noting that Kansas courts have “uniformly held that railroads do not own fee
titles to narrow strips of land taken as a right-of-way, regardless of whether they are taken
by condemnation or right-of-way deed”).
Therefore, the court grants Flying S. Land Co. plaintiffs’ motions for partial
summary judgment regarding title and adjacency for the following plaintiffs who owned
property on the date the NITU was issued that is adjacent to a portion of the railroad
corridor over which NKCR holds only an easement limited to railroad purposes for the
following plaintiffs: Flying S. Land Co. plaintiffs James and Janice Bricker parcels 020-
124-18-0-00-09-004.00-0 and 020-124-18-0-00-01-001.00-0, and Jerry G. and Connie K.
Cox parcel 074-056-23-0-40-02-002.00-0. 60
Lincoln Land Company Deed 4-424
The parties also dispute whether NKCR held a fee interest or an easement in a
section of the railroad corridor that is adjacent to Arnold plaintiffs Edwin and Phyllis Yeater
parcels 107-36-0-20-12-007 and 107-36-0-20-12-008. The Edwin and Phyllis Yeater
parcels are adjacent to a section of the railroad corridor originally conveyed by the Lincoln
Land Company to the Burlington, Kansas & Southwestern Railroad Company via Lincoln
Land Company Deed 4-424. Plaintiffs contend that Lincoln Land Company Deed 4-424
conveyed an easement to the Burlington, Kansas & Southwestern Railroad Company
because Lincoln Land Company Deed 4-424 conveyed real estate “for the inadequate
consideration of $1,” which, according to plaintiffs, is a “classic example of a ‘voluntary
grant’” of real estate to a railroad company. Plaintiffs do not cite any case law indicating
that the conveyance of property to a railroad company in exchange for one dollar is a
“classic example of a ‘voluntary grant’” of real estate to a railroad company, nor do
plaintiffs cite any case law indicating that a railroad company cannot acquire a fee interest
in land in exchange for one dollar. Plaintiffs also assert that “the deed language conveyed
a ‘right of way’ to parts of an overall right-of-way 100 feet in width, widening to 300 feet
as it entered the city of Norcatur, and reducing to 100 feet as the CB&Q left Norcatur.” In
contrast, defendant contends the NKCR’s predecessor-in-interest obtained a fee interest
in the land underlying the section of the railroad corridor that is adjacent to Arnold plaintiffs
Edwin and Phyllis Yeater parcels 107-36-0-20-12-007 and 107-36-0-20-12-008 because
Lincoln Land Company Deed 4-424 did not contain any restrictions limiting the Burlington,
60 See Preseault II, 100 F.3d at 1537 (concluding plaintiffs owned the land underlying
the railroad corridor when the railroad company only acquired an easement in the
railroad corridor).
62
Kansas & Southwestern Railroad Company’s interest in the railroad corridor to an
easement. Moreover, defendant divides the language of Lincoln Land Company Deed 4-
424 into two granting clauses. Defendant states that the first granting clause in Lincoln
Land Company Deed 4-424 “states ‘the Lincoln Land Company hereby sells and conveys
to the Burlington, Kansas and Southwestern Railroad Company, all of its right, title and
interest in and to the following described real estate in Decatur County’” and then conveys
a large parcel “that is north of the northeast corner of lot one in block three in the town of
Norcatur.” According to defendant, there are no restrictions in the first granting clause
that would limit the conveyance contained in the first granting clause of Lincoln Land
Company Deed 4-424 to an easement. Defendant contends that the “second granting
clause is for a railroad right-of-way for a one-hundred-foot wide strip of land that runs
through the northern portion of Section 36, Township 2 South, Range 26 West.”
Defendant argues that the second granting clause in Lincoln Land Company Deed 4-424
“does not apply to this [the Yeaters’] property.” Additionally, the parties have identified
Lincoln Land Company Deed 4-424 as the applicable source conveyance document for
Arnold plaintiff John Arnold and Susan Bolek parcel 107-36-0-20-02-009-00-0. The
parties, however, have stipulated that the NKCR’s predecessor-in-interest only obtained
an easement in the land underlying the railroad corridor adjacent to Arnold plaintiff John
Arnold and Susan Bolek parcel 107-36-0-20-02-009-00-0.
Lincoln Land Company Deed 4-424 is titled “Quit Claim Deed No 2637.” The
pertinent portion of Lincoln Land Company Deed 4-424 states:
In consideration of the payment of One ($1.00[)], Dollar, The Lincoln Land
Company hereby sells and conveys to The Burlington Kansas and South
Western Railroad Company, all of its, right, title, and interest in and to the
following described real estate in Decatur County, and State of Kansas to
wit: Commencing at a point Thirty five & 85/100 35.85 feet North of the North
East comer of Lot No One (1) in Block no. three (3) in the town of Norcatur
in said County & State, which point is one hundred & fifty (150) feet distant
from the center line of the Burlington, Kansas & South Western Railroad,
measured at right angles there to, and is also. in the west line of Desota
Avenue, said town, produced north; from thence running North one hundred
nineteen & 50/100 (119.50/100) feet, to a point fifty (50) feet, distant at right
angles from the center line aforesaid; thence north 33 ° 11 [minutes] West
One hundred (100) feet; thence west one hundred eighty two & 71/100 (182
71/100) feet to a point one hundred and fifty (150) feet distant from said
center line measured at right angles thereto and as the north side thereof;
thence south 56 ° 49 [minutes] west, parallel with said Railroad Seventeen
hundred eighty one & 69/100 (1781.69) feet; thence South, one hundred
nineteen and 50/100 (119.50) feet, to a point fifty (50) feet, distant, at right
angles from said Railroad center line; thence South 33 ° 11 [minutes] East
one hundred (100) feet, thence East, one hundred eighty two & 71/100
(182.71) feet to a point one hundred & fifty (150) feet, distant from said
center line measured at right angles thereto, & on the south side thereof;
thence north, 56 ° 49 [minutes] East, parallel with said Rail road, Seventeen
63
hundred eighty one & 69/100 feet to the place of begining [sic], The West
line of Desota Avenue being taken as a meridian from which to measure all
angles.
Also conveying to said Railroad Company the right of way for the railroad
One hundred feet in width being fifty (50) feet on each side of the center line
thereof and commencing at the North East end of the tract of land herein
before described and running with said center line to its intersection with the
north line of Section No. Thirty six (36) in Township No. Two (2) South, of
Range No. Twenty six (26) west, of the Sixth Principal Meridian. Also the
right of way as aforesaid, commencing at the South West end of said tract,
and running in a South Westerly direction with said Railroad, to intersect the
west line of said Section No. Thirty six (36), subject to the taxes of the year
– 1885 and thereafter. In Witness Whereof, The President of the Lincoln
Land Company has hereunto set his hand, and affixed the seal of the
Company this 29th day of February, 1886.
(capitalization and first five alterations in the parties’ joint transcription).
Both plaintiffs and defendant, as do the maps submitted by both parties, indicate
that the parcels owned by Arnold plaintiffs Edwin and Phyllis Yeater, parcels 107-36-0-
20-12-007 and 107-36-0-20-12-008, are located in Section 36, Township 2, Range 26,
and are adjacent to the larger, 300 foot wide tract of land conveyed in the first paragraph
of the above-quoted language from Lincoln Land Company Deed 4-424. Arnold plaintiffs
John Arnold and Susan Bolek parcel 107-36-0-20-02-009.00-0 is also located in Section
36, Township 2, Range 26 and is located to the southwest of the parcels owned by Arnold
plaintiffs Edwin and Phyllis Yeater. Arnold plaintiffs John Arnold and Susan Bolek parcel
107-36-0-20-02-009.00-0 is adjacent to the second 100 foot wide strip land of land
described in the second paragraph of the above-quoted language in Lincoln Land
Company Deed 4-424.
The language of Lincoln Land Company Deed 4-424 is clear and unambiguous,
and the court will not look beyond the plain language of Lincoln Land Company Deed 4-
424. See Stone v. Haddan, 91 P.3d at 1203. The first above-quoted paragraph of Lincoln
Land Company Deed 4-424 indicates that the Lincoln Land Company conveyed to the
Burlington, Kansas & Southwestern Railroad Company, in exchange for one dollar, “all of
its, right, title, and interest in and to the following described real estate in Decatur
County . . . .” Lincoln Land Company Deed 4-424 then conveys a long, 300 foot wide tract
of land without indicating the purpose of the 300 foot wide tract of land. In the paragraph
immediately following the conveyance of the three-hundred foot wide tract of land, Lincoln
Land Company Deed 4-424 states that the Lincoln Land Company is “[a]lso conveying”
a one-hundred foot wide “right of way” extending from the north end of the three-hundred
tract of land, as well as a one-hundred foot wide “right of way” extending from the south
end of the three-hundred foot tract of land.
64
The first above-quoted paragraph of Lincoln Land Company Deed 4-424 does not
contain language expressly or impliedly limiting the NKCR’s predecessor-in-interest’s
interest in the 300 foot wide tract of land to an easement. Indeed, the words “right of way”
do not appear until the second above-quoted paragraph of Lincoln Land Company Deed
4-424 when describing the two 100 foot wide strips of land that extend out of the 300 foot
wide tract of land. Although the second above-quoted paragraph of Lincoln Land
Company Deed 4-424 refers to each of the two 100 foot wide strips of land as a “right of
way,” the second above-quoted paragraph of Lincoln Land Company Deed 4-424 does
not refer to the 300 foot wide tract of land a “right of way;” rather, the second above-
quoted paragraph of Lincoln Land Company Deed 4-424 refers to the 300 foot wide tract
of land as “the tract of land herein before described” and “said tract . . . .” Because the
first above-quoted paragraph of Lincoln Land Company Deed 4-424 did not contain any
express or implied restrictions limiting the Burlington, Kansas & Southwestern Railroad
Company’s interest in the land being conveyed, the Burlington, Kansas & Southwestern
Railroad Company, NKCR’s predecessor-in-interest, acquired a fee interest in the land
adjacent to Arnold plaintiffs Edwin and Phyllis Yeater parcels 107-36-0-20-12-007 and
107-36-0-20-12-008. See Stone v. Haddan, 91 P.3d at 1204 (“The general rule is that
deeds purporting to convey to railroads a strip, piece, parcel, or tract of land which do not
describe or refer to its use or purpose or directly or indirectly limit the estate conveyed
are generally construed as passing an estate in fee.”); see also Biery v. United States,
753 F.3d at 1289 (analyzing a deed conveying two tracts of land and determining that the
first tract of land was conveyed as an easement and the second tract of land was
conveyed in fee because “[t]he second tract of land—lots 168 and 170—was conveyed
with no use restrictions, reversionary clause, or anything else limiting its use to a right-of-
way” (citing Stone v. Haddan, 91 P.3d at 1203-04). The court, therefore, grants
defendant’s motion for summary judgment against Arnold plaintiffs Edwin and Phyllis
Yeater parcels 107-36-0-20-12-007 and 107-36-0-20-12-008.
NKCR’s predecessor-in-interest, however, only obtained an easement in the two
100 foot wide strips of land conveyed in the second above-quoted paragraph of Lincoln
Land Company Deed 4-424. Although Lincoln Land Company Deed 4-424 provides that
the Lincoln Land Company is “conveying all of its, right, title, and interest in and to the
following described real estate in Decatur County,” Lincoln Land Company Deed 4-424
refers to each of the two 100 foot wide strips of land as a “right of way.” That the two 100
foot wide strip of land are measured from the center line of the railway and are referred
to as a “right of way” indicates that the parties intended to only convey an easement in
the two 100 foot wide strip of land. See Biery v. United States, 753 F.3d at 1290; Jenkins
v. Chi. Pac. Corp., 403 P.3d at 1217 (citations omitted); Harvest Queen Mill & Elevator
Co. v. Sanders, 370 P.2d at 423. Accordingly, NKCR only possessed an easement in the
100 foot “right of way” adjacent to Arnold plaintiff John Arnold and Susan Bolek parcel
107-36-0-20-02-009-00-0. The court grants Arnold plaintiffs’ motion for partial summary
judgment regarding title and adjacency for the following plaintiffs owned property on the
date the NITU was issued that is adjacent to a portion of the railroad corridor over which
65
NKCR holds only an easement limited to railroad purposes for the following plaintiffs:
John Arnold and Susan Bolek parcel 107-36-0-20-02-009-00-0. 61
CONCLUSION
The court has reviewed the parties’ numerous, and often generalized, arguments
regarding each of the plaintiffs in the above-captioned cases. Although there are multiple,
unresolved title and adjacency issues, in many instances, the court, not the parties, has
identified the problems and the information which remains necessary to resolve the issues
of material fact currently in the record before the court. The outstanding issues should in
many instances, if not all, be amenable to stipulation by the parties, and the parties,
carefully, should review the court’s opinion and confer as to how the remaining issues
can be addressed.
For the foregoing reasons, the court GRANTS, in part, and DENIES, in part,
Arnold, Flying S. Land Co., and Dawson plaintiffs’ motions for partial summary judgment,
and the court GRANTS, in part, and DENIES, in part, defendant’s motions for partial
summary judgment in Arnold, Flying S . Land Co., and Dawson. In addition to the
summary below, the court has attached a chart to this opinion summarizing whether the
court grants, in part, or denies, in part, Arnold, Flying S. Land Co., and Dawson plaintiffs’
and defendant’s motions for partial summary judgment.
The court GRANTS defendant’s motion for partial summary judgment against
Flying S. Land Co. plaintiffs Gerry and Theresa Tally for failure to establish adjacency to
the railroad corridor, with regard to Tally parcel 020-141-01-0-30-020-010.00.
The court GRANTS defendant’s motion for partial summary judgment against
Arnold plaintiffs Edwin and Phyllis Yeater parcels 107-36-0-20-12-007 and 107-36-0-20-
12-008 and Flying S. Land Co. plaintiffs Culbertson Farms, LLC parcel 074-043-07-0-00-
00-005.00-0, Perry and Ila Mae Schelling parcel 074-043-07-0-00-00-001.00-0, James
Holterman parcel 074-043-07-0-00-00-002.00-0, and Orville and Pauline Holterman
Revocable Trust parcel 074-043-06-0-00-00-002.02-0, because the railroad company
holds fee interest in the portion of the railroad corridor adjacent to these plaintiffs’
properties.
The court DENIES at this time Flying S. Land Co. plaintiffs’ partial motion for
summary judgment as it relates to whether recreational trail use exceeds the scope of the
NKCR’s easements and whether NKCR abandoned the railroad corridor under state law.
The court DENIES both plaintiffs’ and defendant’s motions for partial summary
judgment regarding Flying S. Land Co. plaintiff United Methodist Church, parcel 020-108-
34-0-00-00-005.00-0, because a genuine issue of material fact exists regarding
ownership.
61 See Preseault II, 100 F.3d at 1537 (concluding plaintiffs owned the land underlying the
railroad corridor when the railroad company only acquired an easement in the railroad
corridor).
66
The court DENIES both plaintiffs’ and defendant’s motions for partial summary
judgment against the following plaintiffs because there is a genuine dispute of material
fact as to whether these plaintiffs are adjacent to a portion of the railroad corridor: Arnold
plaintiffs Rodney and Tonda Ross parcel 102-03-0-00-00-004.00-0, Mark and Shayla
Bailey parcel 107-36-0-20-13-005, Robert Strevey parcel 000-107-36-0-10-04-002, and
Harold and Kristelle Mizell parcel 107-36-0-10-04-001; Flying S. Land Co. plaintiffs Arnold
K. Graham parcel 074-59-31-0-00-00-004.00-0, James and Janice Bricker parcel 020-
124-18-0-00-03-001.00-0, J & C Partnership parcel 074-058-27-0-00-00-001.00-0, Garth
Gebhard parcel 074-056-23-0-40-07-009.00-0, and Silverstone & Dake’s Canal, Inc.
parcels 074-056-24-0-20-01-002.00-0 and 074-056-24-0-20-01-001.00-0; and Dawson
plaintiffs Conrad C. and Mary R. Cox Trusts No. 1 parcel 740-056-130-00-00-005.00-0.
There is a genuine dispute of material fact regarding the applicable conveyance
from certain Arnold and Flying S. Land Co. plaintiffs’ predecessors-in-interest to the
railroad company. Accordingly, the court DENIES both plaintiffs’ and defendant’s motions
for partial summary judgment for the following plaintiffs: Flying S. Land Co. plaintiffs Gerry
N. and Theresa M. Tally parcel 020-141-01-0-30-19-005.00, Oberlin Concrete Co. parcel
020-141-01-0-30-19-001.00-0, Paul and Tammy Vincent parcel 074-056-23-0-10-01-
001.00-0, and Silverstone & Dake’s Canal, Inc. parcel 074-056-24-0-20-01-002.00-0.
There is a genuine dispute of material fact as to whether the railroad corridor is
adjacent to the following plaintiff’s property, which the railroad obtained by the 1950
Harlan County, Nebraska, deed, was held by the railroad company in fee. Accordingly,
the court DENIES both plaintiffs’ and defendant’s motions for partial summary judgment
for the Flying S. Land Co. plaintiff Silverstone & Dake’s Canal, Inc. parcels 260014100,
360004300, and 380012500.
The court GRANTS plaintiffs’ motions for partial summary judgment that the
following plaintiffs owned land on the date the NITU was issued, that the land is adjacent
to a portion of the railroad corridor affected by the NITU, and that the railroad company
held only an easement limited to railroad purposes over the portion of the railroad corridor
adjacent to these plaintiffs’ properties: Arnold plaintiffs John Arnold and Susan Bolek
parcels 107-35-0-00-00-003-00-0 and 107-36-0-20-02-009-00-0, B&D Farm, LLC parcel
136-14-0-00-00-002-00-0, Rodney and Tonda Ross’s parcel 069-101-02-0-00-00-001-
00-0-01, H. Drake and Karen Gebhard parcel 069-101-02-0-00-00-002-02-0-01, Cecilia
Hillebrand parcels 069-101-02-0-00-00-002-01-0-01, 069-101-02-0-00-00-002-03-0-01,
and 069-144-17-0-00-00-002-00-0-01, Jackson Irrevocable Farm Trust parcel 069-30-0-
00-00-001-00-0-01, Lee Martin Revocable Trust parcel 135-15-0-00-00-002, Bernice
Martin parcel 121-02-0-00-00-004-00-0, Harold and Kristelle Mizell parcel 069-151-01-0-
00-00-003-00-0-01, Ricky Temple parcel 069-067-35-0-00-00-002-00-0-01, L & S Tubbs
Family, L.P. parcel 074-058-28-0-00-00-001-02-0, John C. and Joann Tweed Trusts
parcel 069-143-07-0-00-00-004-00-0-01, Ivan and Cathy Bohl Living Trust parcel 069-
151-01-0-00-00-002-00-0-01, and Morlock Children’s Living Trust parcel 069-068-27-0-
00-00-003-00-0-01; Flying S. Land Co. plaintiffs Dolores M. Koerperich Revocable Living
Trust parcels 020-133-05-0-00-00-001.00-0 and 020-133-05-0-00-00-004.00-0, Clem
67
Koerperich parcels 020-133-05-0-00-00-003.00-0 and 020-133-08-0-00-00-004.00-0,
William C. and Bertha G. Rea parcel 020-135-15-0-00-00-003.00-0, Leo and Carolyn
Zodrow parcels 020-136-13-0-00-00-002.01-0 and 020-122-09-0-00-00-001.00-0,
Sauvage Gas Service parcel 020-136-13-0-00-00-003.00-0, James and Janice Bricker
parcels 020-124-18-0-00-09-004.00-0 and 020-124-18-0-00-01-001.00-0, Flying S. Land
Company parcels 020-123-08-0-00-00-004.00-0, 020-122-04-0-00-00-002.00-0, 020-
121-01-0-00-00-001.00-0, and 020-109-31-0-00-00-001.00-0, Flying S. Partnership
parcel 020-108-34-0-00-00-003.00-0, Dale and Lenora Soderland parcel 020-123-08-0-
00-00-001.00-0, Judith E. Nelson parcel 020-122-03-0-00-00-002.00-0, GRS Revocable
Trust parcels 020-113-06-0-00-00-003.00-0, 020-113-06-0-00-00-002.00-0, and 020-
108-33-0-00-00-003.00-0, Jonathan and Karen Cozad parcel 020-107-25-0-00-00-
001.00-0, Cecil and Lavon Wright parcel 069-151-02-0-00-00-002.00-0-01, AG Valley
Cooperative parcel 069-151-02-0-00-00-001.00-0-01, Richard and Robert McChesney
parcel 069-143-07-0-00-00-001.00-0-01, Edward Braun parcel 069-144-17-0-00-00-
002.00-0-01, Arnold K. Graham, et al. parcel 074-059-31-0-00-00-001.00-0, Clayton and
Catherine Cox parcel 074-058-27-0-00-00-002.00-0, Jerry G. and Connie K. Cox parcel
074-056-23-0-00-00-003.00-0 and 074-056-23-0-40-02-002.00-0, Paul and Tammy
Vincent parcel 074-056-23-0-10-01-001.00-0, Silverstone & Dake’s Canal, Inc. parcel
074-056-24-0-20-02-001.00-0, and Craig E. Ingram and Genie L. Ingram Living Trust
parcel 074-044-18-0-00-00-002.00-0; and Dawson plaintiffs Conrad C. and Mary R. Cox
parcel 74-044-180-00-00-0003-00-0, 62 Carol K. Ross and Kay L. Lee parcel 74-059-310-
00-00-003-00-0, Shirley and Derek Kats Revocable Trusts parcels 069-104-18-0-00-00-
003-00-0-01 and 069-104-19-0-00-00-002-00-0-01, Rosemary L. Mathes, parcel 069-
132-03-0-00-03-001-00-0-01, M. Lee and Angela Juenemann parcels 069-143-06-0-00-
00-002-00-0-01 and 069-143-07-0-00-00-002-00-0-01, G & M Properties, LP parcel 069-
068-34-0-00-00-003-00-0-01, Joe L. Dawson parcel 069-069-29-0-00-00-003-00-0-01,
Linda J. Tomasch, John E. Bremer, and David G. Bremer parcels 13-209-000-00-30-00
and 13-516-000-00-00-20-00, Bruce G. Guinn, Jr. parcel 13-306-020-01-01-80-00, Jason
and Travis Dial parcels 069-088-34-0-40-32-003-00-0-01 and 069-088-34-0-40-32-004-
00-0-01, Larry L. and Iris L. Smith, trustees of the Larry L. Smith and Iris L. Smith
Revocable Living Trust parcel 069-088-34-0-40-32-002-00-0-01, Lloyd E. and Pamela Y.
Edgett parcel 069-088-34-0-30-07-004-00-0-01, and Duane R. and Darlene McEwen
parcel 069-132-03-0-00-03-00101-0-01.
IT IS SO ORDERED.
s/Marian Blank Horn
MARIAN BLANK HORN
Judge
62As noted above, Dawson plaintiffs Conrad C. and Mary R. Cox acquired parcel 74-044-
180-00-00-0003-00-0 through the 1950 U.S. Deed and through a private right-of-way
deed (Follett Deed). The court only grants partial summary judgment in favor of plaintiffs
Conrad C. and Mary R. Cox, trustees of the Conrad Cox Trust No. 1 and the Mary Cox
Trust No. 1, for the portion of the railroad corridor that is adjacent to parcel 74-044-180-
00-00-0003-00-0 and was acquired through the private right-of-way Follett deed.
68
Arnold, et al. v. United States, No. 15-1252L
Claim No. Parcel No. Plaintiff Disposition
1 107-35-0-00-00-003-00-0 Bolek, Susan & Arnold, John The court grants plaintiffs’ motion
for partial summary judgment.
1 107-36-0-20-02-009-00-0 Bolek, Susan & Arnold, John The court grants plaintiffs’ motion
for partial summary judgment.
2 136-14-0-00-00-002-00-0 B&D Farm, LLC The court grants plaintiffs’ motion
for partial summary judgment.
3 107-36-0-20-13-005 Bailey, Mark & Shayla The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
5 069-101-02-0-00-00-002-02-0-01 Gebhard, H. Drake & Karen The court grants plaintiffs’ motion
for partial summary judgment.
6 069-101-02-0-00-00-002-01-0-01 Hillebrand, Cecilia (Griffin) The court grants plaintiffs’ motion
for partial summary judgment.
6 069-101-02-0-00-00-002-03-0-01 Hillebrand, Cecilia (Griffin) The court grants plaintiffs’ motion
for partial summary judgment.
6 069-144-17-0-00-00-002-00-0-01 Hillebrand, Cecilia (Griffin) The court grants plaintiffs’ motion
for partial summary judgment.
7 069-30-0-00-00-001-00-0-01 Jackson Irrevocable Farm Trust The court grants plaintiffs’ motion
for partial summary judgment.
9 135-15-0-00-00-002 Lee Martin Revocable Trust, Lee The court grants plaintiffs’ motion
Martin for partial summary judgment.
10 121-02-0-00-00-004-00-0 Martin, Bernice The court grants plaintiffs’ motion
for partial summary judgment.
11 069-151-01-0-00-00-003-00-0-01 Mizell, Harold & Kristelle The court grants plaintiffs’ motion
for partial summary judgment.
11 107-36-0-10-04-001 Mizell, Harold & Kristelle The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
69
12 069-101-02-0-00-00-001-00-0-01 Ross, Rodney & Tonda The court grants plaintiffs’ motion
for partial summary judgment.
12 102-03-0-00-00-004-00-0-00 Ross, Rodney & Tonda The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
13 107-36-0-10-04-002 Strevey, Robert The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
14 069-067-35-0-00-00-002-00-0-01 Temple, Ricky The court grants plaintiffs’ motion
for partial summary judgment.
15 074-058-28-0-00-00-001-02-0 L & S Tubbs Family, L.P. The court grants plaintiffs’ motion
for partial summary judgment.
16 069-143-07-0-00-00-004-00-0-01 John C. Tweed Trust & Joann The court grants plaintiffs’ motion
Tweed Trust for partial summary judgment.
17 107-36-0-20-12-007 Yeater, Edwin & Phyllis The court grants defendant’s
motion for partial summary
judgment.
17 107-36-0-20-12-008 Yeater, Edwin & Phyllis The court grants defendant’s
motion for partial summary
judgment.
18 069-151-01-0-00-00-002-00-0-01 Ivan & Cathy Bohl Living Trust The court grants plaintiffs’ motion
for partial summary judgment.
19 069-068-27-0-00-00-003-00-0-01 Morlock Children's Trust The court grants plaintiffs’ motion
for partial summary judgment.
70
Flying S. Land Co., et al. v. United States, No. 15-1253L
Claim No. Parcel No. Plaintiff Disposition
1.A 020-141-01-0-30-20-010.00-0 Tally, Gerry & Theresa The court grants defendant’s
motion for partial summary
judgment.
1.B 020-141-01-0-30-19-005.00-0 Tally, Gerry & Theresa The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
2 020-141-01-0-30-19-001.00-0 Oberlin Concrete Co. The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
4.A 020-133-05-0-00-00-001.00-0 Dolores M. Koerperich Revocable The court grants plaintiffs’ motion
Living Trust for partial summary judgment.
4.B 020-133-05-0-00-00-004.00-0 Dolores M. Koerperich Revocable The court grants plaintiffs’ motion
Living Trust for partial summary judgment.
5.A 020-133-05-0-00-00-003.00-0 Koerpich, Clem The court grants plaintiffs’ motion
for partial summary judgment.
5.B 020-133-08-0-00-00-004.00-0 Koerperich, Clem The court grants plaintiffs’ motion
for partial summary judgment.
6 020-135-15-0-00-00-003.00-0 Rea, William C. & Bertha G. The court grants plaintiffs’ motion
for partial summary judgment.
7.A 020-136-13-0-00-00-002.01-0 Zodrow, Leo & Carolyn The court grants plaintiffs’ motion
for partial summary judgment.
7.B 020-122-09-0-00-00-001.00-0 Zodrow, Leo & Carolyn The court grants plaintiffs’ motion
for partial summary judgment.
8 020-136-13-0-00-00-003.00-0 Sauvage Gas Service, Inc. The court grants plaintiffs’ motion
for partial summary judgment.
9.A 020-124-18-0-00-09-004.00-0 Bricker, James & Janice The court grants plaintiffs’ motion
for partial summary judgment.
9.B 020-124-18-0-00-03-001.00-0 Bricker, James & Janice The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
71
9.C 020-124-18-0-00-01-001.00-0 Bricker, James & Janice The court grants plaintiffs’ motion
for partial summary judgment.
10.A 020-123-08-0-00-00-004.00-0 Flying S Land Co. The court grants plaintiffs’ motion
for partial summary judgment.
10.B 020-122-04-0-00-00-002.00-0 Flying S Land Co. The court grants plaintiffs’ motion
for partial summary judgment.
10.C 020-121-01-0-00-00-001.00-0 Flying S Land Co. The court grants plaintiffs’ motion
for partial summary judgment.
10.D 020-109-31-0-00-00-001.00-0 Flying S Land Co. The court grants plaintiffs’ motion
for partial summary judgment.
10..E 020-108-34-0-00-00-003.00-0 Flying S Partnership The court grants plaintiffs’ motion
for partial summary judgment.
11 020-123-08-0-00-00-001.00-0 Soderland, Dale & Lenora The court grants plaintiffs’ motion
for partial summary judgment.
12 020-122-03-0-00-00-002.00-0 Nelson, Judith E. The court grants plaintiffs’ motion
for partial summary judgment.
13.A 020-113-06-0-00-00-003.00-0 GRS Revocable Trust The court grants plaintiffs’ motion
for partial summary judgment.
13.B 020-113-06-0-00-00-002.00-0 GRS Revocable Trust The court grants plaintiffs’ motion
for partial summary judgment.
13.C 020-108-33-0-00-00-003.00-0 GRS Revocable Trust The court grants plaintiffs’ motion
for partial summary judgment.
14 020-108-34-0-00-00-005.00-0 United Methodist Church The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
15 020-107-25-0-00-00-001.00-0 Cozad, Jonathan & Karen The court grants plaintiffs’ motion
for partial summary judgment.
16 069-151-02-0-00-00-002.00-0-01 Wright, Cecil & LaVon The court grants plaintiffs’ motion
for partial summary judgment.
17 069-151-02-0-00-00-001.00-0-01 AG Valley Cooperative The court grants plaintiffs’ motion
for partial summary judgment.
72
18 069-143-07-0-00-00-001.00-0-01 McChesney, Richard & Robert The court grants plaintiffs’ motion
for partial summary judgment.
19 069-144-17-0-00-00-002.00-0-01 Braun, Edward The court grants plaintiffs’ motion
for partial summary judgment.
20.A 074-059-31-0-00-00-001.00-0 Arnold K. Graham, et al. The court grants plaintiffs’ motion
for partial summary judgment.
20.B 074-059-31-0-00-00-004.00-0 Arnold K. Graham The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
22 074-058-27-0-00-00-002.00-0 Cox, Clayton & Catherine The court grants plaintiffs’ motion
for partial summary judgment.
23 074-058-27-0-00-00-001.00-0 J&C Partnership The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
24.A 074-056-23-0-00-00-003.00-0 Cox, Jerry G. & Connie K. The court grants plaintiffs’ motion
for partial summary judgment.
24.B 074-056-23-0-40-02-002.00-0 Cox, Jerry G. & Connie K. The court grants plaintiffs’ motion
for partial summary judgment.
25 074-056-23-0-40-07-009.00-0 Gebhard, Garth The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
26 074-056-23-0-10-01-001.00-0 Vincent, Paul & Tammy The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
27.A 074-056-24-0-20-01-002.00-0 Silverstone & Dake’s Canal, Inc. The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
27.B 074-056-24-0-20-02-001.00-0 Silverstone & Dake’s Canal, Inc. The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
73
27.C 074-056-24-0-20-01-001.00-0 Silverstone & Dake’s Canal, Inc. The court grants plaintiffs’ motion
for partial summary judgment.
27.D 260014100 Silverstone & Dake’s Canal, Inc. The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
27.E 360004300 Silverstone & Dake’s Canal, Inc. The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
27.F 380012500 Silverstone & Dake’s Canal, Inc. The court denies both plaintiffs’
and defendant’s motions for partial
summary judgment.
28 074-044-18-0-00-00-002.00-0 Craig E. Ingram Living Trust & The court grants plaintiffs’ motion
Genine L. Ingram Living Trust for partial summary judgment.
29 074-043-07-0-00-00-005.00-0 Culbertson Farms, LLC The court grants defendant’s
motion for partial summary
judgment.
30 074-043-07-0-00-00-001.00-0 Schelling, Perry & Ila Mae The court grants defendant’s
motion for partial summary
judgment.
31 074-043-07-0-00-00-002.00-0 Holterman, James The court grants defendant’s
motion for partial summary
judgment.
32 074-043-06-0-00-00-002.02-0 Orville & Pauline Holterman The court grants defendant’s
Revocable Trust motion for partial summary
judgment.
74
Dawson, et al. v. United States, No. 15-1268L
Claim No. Parcel No. Plaintiff Disposition
6 74-044-180-00-00-003-00-0 Conrad C. Cox & Mary R. Cox, The court grants plaintiffs’ motion
Trustees of the Conrad C. Cox for partial summary judgment.
Trust No. 1 and the Mary C. Cox
Trust No. 1
6 74-056-130-00-00-005-00-0 Conrad C. Cox & Mary R. Cox, The court denies both plaintiffs’
Trustees of the Conrad C. Cox and defendant’s motions for partial
Trust No. 1 and the Mary C. Cox summary judgment.
Trust No. 1
8 74-059-310-00-00-003-00-0 Carol K. Ross and Kay L. Lee, The court grants plaintiffs’ motion
Trustees of the Carol K. Ross for partial summary judgment.
Trust No. 1
9 069-104-18-0-00-00-003-00-0-01 Shirley Kats Revocable Trust & The court grants plaintiffs’ motion
Derek Kats Revocable Trust for partial summary judgment.
9 069-104-19-0-00-00-002-00-0-01 Shirley Kats Revocable Trust & The court grants plaintiffs’ motion
Derek Kats Revocable Trust for partial summary judgment.
10 069-132-03-0-00-03-001-00-0-01 Mathes, Rosemary L., and The court grants plaintiffs’ motion
McEwen, Duane and Darlene for partial summary judgment.
11 069-143-06-0-00-00-002-00-0-01 M. Lee Juenemann and Angela The court grants plaintiffs’ motion
Juenemann, Trustees of the M. for partial summary judgment.
Lee Juenemann Living Trust and
Angela Juenemann Living Trust
75
11 069-143-07-0-00-00-002-00-0-01 M. Lee Juenemann and Angela The court grants plaintiffs’ motion
Juenemann, Trustees of the M. for partial summary judgment.
Lee Juenemann Living Trust and
Angela Juenemann Living Trust
12 069-068-34-0-00-00-003-00-0-01 G & M Properties, LP The court grants plaintiffs’ motion
for partial summary judgment.
13 069-069-29-0-00-00-003-00-0-01 Dawson, Joe L. The court grants plaintiffs’ motion
for partial summary judgment.
14 13-209-000-00-30-00 Tomasch, Linda J; Bremer, John The court grants plaintiffs’ motion
E.; & Bremer, David G. for partial summary judgment.
14 13-516-000-00-00-20-00 Tomasch, Linda J; Bremer, John The court grants plaintiffs’ motion
E.; & Bremer, David G. for partial summary judgment.
16 13-306-020-01-01-80-00 Guinn, Bruce G. Jr. The court grants plaintiffs’ motion
for partial summary judgment.
17 069-088-34-0-40-32-003-00-0-01 Dial, Jason & Travis The court grants plaintiffs’ motion
for partial summary judgment.
17 069-088-34-0-40-32-004-00-0-01 Dial, Jason & Travis The court grants plaintiffs’ motion
for partial summary judgment.
18 069-088-34-0-40-32-002-00-0-01 Larry L. Smith & Iris L. Smith, The court grants plaintiffs’ motion
Trustees of the Larry L. Smith and for partial summary judgment.
Iris L. Smith Revocable Living
Trust
19 069-088-34-0-30-07-004-00-0-01 Edgett, Lloyd E. & Pamela Y. The court grants plaintiffs’ motion
for partial summary judgment.
069-132-03-0-00-03-00101-0-01 McEwen, Duane and Darlene The court grants plaintiffs’ motion
for partial summary judgment.
76