Marietta v. CSX Transportation

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 98-8436 11/29/99
________________________ THOMAS K. KAHN
D. C. Docket No. 1:96-CV-3509-MHS CLERK
CITY OF MARIETTA,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 29, 1999)
Before EDMONDSON, COX and MARCUS, Circuit Judges.
COX, Circuit Judge:
CSX Transportation, Inc. (CSX) runs a railroad that passes through Marietta,
Georgia. When CSX closed two pedestrian grade crossings in Marietta without
warning, the City of Marietta sued. The district court granted CSX summary
judgment, and Marietta appeals. Because CSX leases the railroad from the State of
Georgia, we raised sua sponte the issue of whether Georgia is an indispensable party
under Fed. R. Civ. P. 19. We conclude that the action may proceed without Georgia,
and we certify a core, dispositive issue of Georgia law to the Georgia Supreme Court.
I. Background
Marietta, a municipal corporation organized under Georgia law, received its
first charter in 1834. What Marietta’s street plan looked like at the time, and how
streets came to belong to the City, is something of a mystery on this record: A few
years after Georgia’s legislature voted to withdraw from the United States, the United
States government sent soldiers to burn the Cobb County courthouse (among other
structures), and Georgia was unable to prevent it. Many early property records went
up in smoke, through no fault of the City’s.
The State of Georgia built its first railroad not long after the State first chartered
Marietta. Established by the State in 1836, the Western & Atlantic (W&A) line
stretches from Atlanta to Chattanooga; it was complete in Cobb County and Marietta
2
by 1846. Although Georgia stopped operating the railroad in 1870, leasing it instead
to private corporations, Georgia has never relinquished ownership.
The summary judgment record of post-General Sherman documents shows that
at least since the end of the 19th century, there have been two crossings over the
W&A in downtown Marietta called Depot and Dobbs Streets. They appear as full-
blown streets on post-Reconstruction Sanborn insurance maps; a state survey of the
railroad from a hundred years ago notes the streets’ existence; and 1920s
schoolchildren used the streets on their way to classes and to fetch ice from the ice
station on Dobbs Street. More recently, the streets have served as access between
parking areas on one side of the tracks and businesses on the other. In 1978, the
Downtown Marietta Development Authority, which is not affiliated with the City,
entered license agreements with the Louisville and Nashville Railroad Company (L
& N), CSX’s predecessor in interest, to build and maintain the crossing at Depot
Street. The next year, the L & N asked the City to close Dobbs Street to motor traffic,
which the City did in exchange for a promise to construct a pedestrian crossing at
Dobbs Street and to remove sidetracks at another crossing. In the mid-1990s, the City
planned downtown landscaping and disabled-access improvements that relied in part
on the continued availability of these crossings.
3
The streets’ history came to an end in 1996. That year CSX built a second
mainline track on the W&A line. To accommodate construction, CSX temporarily
closed several grade crossings in the old downtown area of Marietta. When
construction was completed, CSX restored five grade crossings,1 but left chain-link
fence across the two pedestrian crossings at Depot and Dobbs Streets. CSX concluded
that these two crossings presented increased hazards with the addition of the second
mainline track.
CSX did not discuss with Marietta its decision to close the crossings, nor did
it provide written notice to Marietta before erecting the barricades. In October 1996,
Marietta adopted a resolution officially opposing the closure of Depot and Dobbs
Streets. Marietta made repeated demands to CSX to reopen the crossings.
Marietta’s position relies in part on its charter. The most recent charter, enacted
in 1977, confers on Marietta the authority “[t]o lay out, open, extend, widen, narrow,
establish or change the grade of, abandon, or close, construct, pave, curb, gutter, adorn
with shade trees, otherwise improve, maintain, repair, clean, prevent erosion of, and
light, streets, roads, alleys, sidewalks, walkways, and other public ways.” (R.4-34-Ex.
1
CSX restored the five grade crossings at Waverly Way, Whitlock Avenue, Mill
Street, Polk Street, and Kennesaw Avenue.
4
3 § 2.16(21) (emphasis added).)2 Marietta’s charter also grants it the power “[t]o
regulate and control public streets, roads, alleys, sidewalks, walkways and other public
ways; and to prevent the blocking of streets, roads, alleys, sidewalks, walkways, and
other public ways, and railroad crossings.” (Id. § 2.16(22)(emphasis added).)
CSX, on the other hand, claims a right to close the crossings under its current
lease agreement with the State. The lease gives CSX the right to remove unlawful
encumbrances:
Lessee may remove and cause to be discontinued, as permitted by law,
any or all encroachments and other adverse uses and occupancies in and
upon the right-of-way or upon other properties of the Western and
Atlantic Railroad, or any part thereof, whether maintained under claim
of lawful right or otherwise. The Lessee in its own name and behalf[]
may undertake to remove and cause the discontinuance of such
encroachments, uses and occupancies, acting therein in its own name.
(R.1-4-Unnumbered Ex. at 34.)
Marietta and CSX were unable to agree whether Dobbs and Depot Streets were
unlawful encumbrances over the rails or public ways appropriately under Marietta’s
control. Marietta then sued.
2
If a municipality wishes to close a road, it must comply with the statutory procedures
set forth in O.C.G.A. § 32-7-2.
5
Marietta’s complaint, first filed in Cobb County Superior Court and later
removed by CSX on diversity grounds, contains six substantive claims:3 (1) that the
City had a prescriptive easement to the Dobbs and Depot Street crossings (Count I);
(2) that Marietta and the railroad dispute whether Dobbs and Depot Streets are
“public” roads, and the court should declare that they are; (3) that CSX’s closure of
the crossings is a public nuisance, subject to abatement (Count III); (4) that CSX has
been negligent as a matter of law for failing to comply with O.C.G.A. § 32-6-190,
which requires railroads to maintain grade crossings for safe public passage, and § 32-
6-191, which requires railroads to bear the expense of repairing grade crossings after
addition of new tracks (Count IV); (5) that CSX violated O.C.G.A. § 46-8-103, which
prohibits railroads from appropriating public highways, bridges, and ferries (Count
V); and (6) that CSX owes Marietta attorney fees because CSX has been stubbornly
litigious.
Following discovery, both parties moved for summary judgment. The district
court initially granted Marietta’s motion and denied CSX’s. The district court
concluded that Marietta’s rights under its charter were superior to CSX’s lease rights
because Marietta’s rights preceded CSX’s, and because CSX’s lease explicitly leaves
3
One of the separately numbered “counts” (VI) is simply a request for injunctive
relief, presumably on the basis of the five substantive counts, and another (VIII) seeks punitive
damages.
6
prior inconsistent statutes undisturbed.4 The court also concluded that “when viewed
in the context of other state statutes regarding closure of roads, it is clear that the
Georgia legislature did not intend to authorize CSXT’s unilateral closure of municipal
roads.” (R.5-51 at 6.) Finally, the district court concluded that public policy supports
Marietta’s position, because ruling in favor of CSX would allow it to close, on a
whim, any of the many municipal streets that it crosses.
The same day that the district court issued this order, Georgia filed a brief as
amicus curiae. CSX then moved the court to reconsider its decision in light of the
State’s brief. The court did so and concluded that the State intended for street
crossings (particularly Depot and Dobbs Streets) to constitute “encumbrances” under
CSX’s lease and that the State had therefore conveyed to CSX the power to close the
crossings unilaterally. The court accordingly vacated its first order and granted CSX’s
motion for summary judgment. Marietta appeals.
Marietta attacks the district court’s judgment on both procedural and
substantive grounds. Procedurally, Marietta complains that the district court should
not have permitted Georgia to file so late an amicus brief, and then rely on that brief
4
The lease provides: “It is expressly agreed that this Lease is made subject to the
aforesaid Acts and Resolutions of the General Assembly of Georgia, and the Official Code of
Georgia Annotated, authorizing the making of this Lease and that if any of the terms or conditions
in this Lease are found to be deficient or in conflict or inconsistent with any of the terms or
provisions of them in such event their terms and provisions of shall govern and control, and all other
terms, conditions and provisions of this Lease shall continue in full force and effect the same as if
such statutory terms and provisions had been expressed herein.” (R.1-4-Unnumbered Ex. art. 16.)
7
— which had no supporting evidence — to reverse its earlier decision without
additional briefing. Because we believe this to be within the discretion of the district
court, we affirm without further discussion its decision to handle the amicus brief this
way.
We can deal with the first of Marietta’s two substantive challenges with equal
dispatch. Marietta contends that the district court was right the first time: the lease is
explicitly subject to Marietta’s charter. Having read the charter and the lease (which
explicitly yields ground only to the acts and resolutions authorizing the making of the
lease), we are confident that the district court correctly decided to revisit its initial
decision on this issue. Of the issues that Marietta raises, therefore, there remains
before us only Marietta’s contention that the district court should have accepted its
primary argument for judgment in its favor: that Dobbs and Depot Streets are
indisputably dedicated public ways beyond the control of CSX. We consider this
issue de novo because we are reviewing a grant of summary judgment. See Ross v.
Clayton County, Ga., 173 F.3d 1305, 1307 (11th Cir. 1999).
Because of the potential danger to federal subject-matter jurisdiction,5 this court
has sua sponte injected another issue in the case: whether Georgia is an indispensable
party to this action under Fed. R. Civ. P. 19. (If Georgia were joined, diversity would
5
See Jett v. Zink, 362 F.2d 723, 726 (5th Cir. 1966); see also Liddy v. Urbanek, 707
F.2d 1222, 1223 n.2 (11th Cir. 1983) (absence of an indispensable party, whose presence would
defeat diversity jurisdiction, may be raised for the first time on appeal).
8
disappear because the state is not a citizen. See University of S. Ala. v. American
Tobacco Co., 168 F.3d 405, 412 (11th Cir. 1999).) The parties, along with Georgia
as an amicus curiae, have filed supplemental briefs addressing this question. Because
this issue gnaws at our jurisdiction, we address it before reaching the merits of
Marietta’s appeal.
II. Discussion
A. Georgia’s Indispensability
Rule 19 provides a two-part test for determining whether an action should
proceed in a nonparty’s absence. The first question is whether complete relief can be
afforded in the present procedural posture, or whether the nonparty’s absence will
impede either the nonparty’s protection of an interest at stake or subject parties to a
risk of inconsistent obligations. See Fed. R. Civ. P. 19(a)(1)-(2). Only if we can
answer this threshold question “yes,” and if the nonparty cannot be joined (say for
jurisdictional reasons), do we go to step two. See Temple v. Synthes Corp., Ltd., 498
U.S. 5, 8, 111 S. Ct. 315, 316 (1990). Step two asks us to determine, “in equity and
good conscience,” whether the action should go forward as cast. See Fed. R. Civ. P.
19(b). The Rule provides us four factors to consider. See id.; see also Laker Airways,
Inc. v. British Airways, PLC, 182 F.3d 843, 848 (11th Cir. 1999). The Supreme Court
has instructed us in this step-two analysis to eschew formalism in favor of flexible
9
practicality. See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102,
118-19, 88 S. Ct. 733, 742-43 (1968).
A question common to both steps of the analysis here is whether Georgia would
likely be bound by a judgment declaring Dobbs and Depot Streets to be public and
enjoining CSX to remove the barriers on those passageways. Because the matters at
issue here primarily concern property law, which is principally a state domain, and the
federal courts would not have diversity jurisdiction over an action with Georgia as a
party, we expect that any future litigation over Depot and Dobbs Streets would be in
Georgia courts. Georgia courts apply Georgia’s law of judgments to res judicata and
collateral estoppel questions, even when the prior judgment is federal. See, e.g.,
Chilivis v. Dasher, 225 S.E.2d 32, 35 (Ga. 1976); Hardy v. Georgia Baptist Health
Care Sys., ___ S.E.2d ___, 239 Ga. App. 596, ___ (1999); Willis v. National
Mortgage Co., 509 S.E.2d 403, 405 (Ga. Ct. App. 1998).
In Georgia, “[c]ollateral estoppel precludes the re-adjudication of an issue that
has previously been litigated and adjudicated on the merits in another action between
the same parties or their privies.” Waldroup v. Greene County Hosp. Auth., 463
S.E.2d 5, 7 (Ga. 1995). “Privies are in law so connected with a party to the judgment
as to have such an identity of interest that the party to the judgment represented the
same legal right.” Brewer v. Schacht, 509 S.E.2d 378, 381 (Ga. Ct. App. 1999). At
first blush, one might think that a tenant has stepped into the owner’s shoes, and may
10
thus bind the owner, when the tenant defends a prescriptive easement and declaratory
judgment action like this one on the grounds that his usufruct, which is coextensive
with the landlord’s estate, is superior to the plaintiff’s claimed interest. But the
Georgia Supreme Court has held to the contrary: When a third party sues a tenant on
a claim challenging the tenant’s right to possession, and the tenant asserts a right
identical to the landlord’s, the judgment between the third party and the tenant does
not bind the landlord. See Mathews v. Brown, 219 S.E.2d 701, 703 (Ga. 1975). What
that is likely to mean here is that any favorable judgment Marietta secures against
CSX will not later preclude Georgia from asserting a right, as fee-simple owner of the
railroad’s right of way, to close the same streets.
Even though any judgment here will not likely bind Georgia, for two reasons
the first step of Rule 19 analysis may well be satisfied, and Georgia may thus be a
necessary party to this action. First, the district court in this action cannot afford
complete relief to Marietta, in a temporal sense: even if Marietta succeeds in having
CSX remove the barriers on Dobbs and Depot Streets, a future tenant (or the State
itself) could re-erect the barriers without fear of contempt. A possibility thus lingers
that this action’s end will not end the story. Second, Georgia has practical interests
at stake here. Whether or not Georgia is bound by the judgment in this action, when
we adjudicate CSX’s rights we may be adjudicating Georgia’s because Georgia has
11
conveyed to CSX its power to remove encumbrances. Even a nonbinding adjudication
casts doubt on Georgia’s right to remove the encumbrance in question. Cf. Schutten
v. Shell Oil Co., 421 F.2d 869, 874 (5th Cir. 1970) (potential creation of a mere cloud
on title is sufficient prejudice to make a party’s joinder desirable). If for these
reasons Georgia is a necessary party, the next question is whether this action can
proceed without it.
With the aid of Rule 19’s four factors, we can conclude “in equity and good
conscience” here that this action may continue without Georgia. Fed. R. Civ. P. 19(b).
Rule 19(b) asks first how prejudicial a judgment without Georgia will be to Georgia,
Marietta and CSX. Georgia, as we have discussed, will not be bound by the judgment
in this action, so this litigation will not permanently deprive Georgia of any interest.
Nor would Georgia be subject, as far as we can tell, to any resulting liability. The
lease provides no warranty that the W&A right of way is free of lawful encumbrances.
Finally, we reject Georgia’s argument that it will be severely prejudiced if Marietta
wins, because the City will have judicially bypassed the legislative route prescribed
by state law for municipalities to seek access to state property. Maybe so, but the
issue here is whether the public has acquired the right to cross the W&A at Dobbs and
Depot Streets, under Georgia law; if Marietta wins under Georgia law, it means that
Georgia law permits just this kind of bypass, and Georgia has suffered no cognizable
12
prejudice. From these points, we conclude that prejudice to Georgia is limited to the
practical matters we noted above that give Georgia an interest to begin with. Those
weigh light on Rule 19’s scales because of the lack of any obvious and immediate
consequences to the State.
With Georgia out of the picture, Marietta too will find this litigation to be less
than perfect, but the deficiencies are minor. If Marietta procures a judgment requiring
CSX to remove the chain-link fences from the Dobbs and Depot Street crossings, that
judgment will bind only CSX. Because the lease explicitly reserves to Georgia the
nonexclusive right to sue to free the W&A of adverse uses, the State itself could at
some time in the future theoretically have Depot and Dobbs Streets closed. But there
is no suggestion in the record or the briefs that Georgia would do such a thing.
Moreover, Marietta’s failure to seek to join the State from the outset suggests that
Marietta is not concerned with such an eventuality.
Finally, there is CSX. Georgia argues that CSX faces the risk of conflicting
obligations: if a court order forces it to remove the chain-link from Depot and Dobbs
Streets, it will then violate the lease by breaching its “duty to clear obstructions to the
operation of the railroad.” (Ga.’s Supp. Br. at 6.) The lease’s language does not
support this assertion. The cite that Georgia provides is to CSX’s right to remove
obstructions: “Lessee may remove and cause to be discontinued, as permitted by law,
any or all encroachments . . . .” (R.1-4-Unnumbered Ex. art. 14.) Obviously, that
13
CSX “may” remove encroachments does not mean that it must. Georgia also asserts
that CSX will be liable to the State for permitting the creation of a new crossing. The
problem here is that Dobbs and Depot Streets were undisputedly open to pedestrian
traffic in 1986, when Georgia and CSX entered the present lease. So it is hard to see
how CSX’s loss in this litigation would improperly open a “new” crossing. Having
reviewed these assertions of prejudice, we are persuaded that the possibility of
prejudice alone to any interested person here is small enough that the first factor of
Rule 19 does not weigh heavily against proceeding without Georgia.
On the other hand, the second and third elements — whether a court may reduce
prejudice with a well-crafted judgment, and whether such a judgment would be
adequate —point strongly toward proceeding with the present action. What Marietta
wants, as we read the complaint, is for CSX to take down its chain-link fences and not
put them back up.6 A judgment ordering CSX to do that would not implicate any of
Georgia’s asserted interests except in the abstract sense that along the way Georgia’s
right to exclude the public from Dobbs and Depot Streets would have been
adjudicated, even if not bindingly. Cf. Kentucky v. Garner, 896 S.W.2d 10, 13-15
(Ky. 1995) (applying Kentucky’s Rule 19 to determine that the United States was not
an indispensable party to an action to remove gates, erected by a licensee, from
6
Puzzlingly, Marietta insists in its supplemental briefing that it seeks merely notice
and a hearing before Dobbs and Depot Streets are closed for good. The complaint contains no such
claim, however, and Marietta cites no Georgia cases suggesting that any of the present state-law
causes of action carry such due-process rights as a remedy.
14
blocking claimed easements across U.S. property). The expected judgment would
thus minimally implicate Georgia’s interests. It would, furthermore, satisfy Marietta’s
immediate need to have pedestrian access across the tracks.
The final factor (whether Marietta would have an adequate remedy elsewhere)
is perhaps the most important factor here, and it compels going forward. While
Marietta could certainly litigate this claim in the Georgia courts — as it sought to do
before CSX removed the action — federal proceedings have now progressed, at
CSX’s instance and without timely intervention from Georgia, from discovery through
final judgment. Marietta’s quest for the simple injunctive relief it wants has so far
taken more than three years, and if the action must be remanded to state court and
Georgia joined (assuming it does not have sovereign immunity), we can expect further
delays. Thus, while the parties’ arguments give us no reason to question the adequacy
of a state-court proceeding in a strict legal sense, the delay of sending litigation that
is so advanced to another forum counsels going forward. Cf. Provident Tradesmans
Bank & Trust Co., 390 U.S. at 111, 88 S. Ct. at 739 (court of appeals addressing Rule
19 issue for the first time on appeal must take into account the action’s degree of
progression in this forum).
Three of Rule 19’s factors thus point toward proceeding without Georgia; the
first factor weighs only lightly in favor of dismissal. We thus conclude that Georgia
is not an indispensable party to this action.
15
B. The Merits
This court may certify questions of state law to the state’s highest court if there
is an unsettled question of state law that is dispositive of an issue in the appeal. See,
e.g., SCI Liquidating Corp. v. Hartford Fire Ins. Co., 181 F.3d 1210, 1219 (11th Cir.
1999). Our review of Marietta’s argument that the public has acquired a right to use
Depot and Dobbs Streets persuades us that certification is appropriate.
Whether or not Marietta is entitled to relief in this action turns on whether
Dobbs and Depot Streets are “public roads” under Georgia law. Counts I and II,
which seek a declaration that the disputed streets have been dedicated to public use,
raise this question directly. Count III, for nuisance, presents the issue because
blocking a road is an abatable nuisance only when the road is public. See Savannah,
Fla. & W. Ry. Co. v. Gill, 45 S.E. 623, 625 (Ga. 1903); Henderson v. Ezzard, 44
S.E.2d 397, 399 (Ga. Ct. App. 1947). The Georgia statutory claims in Marietta’s other
counts likewise rest on whether the streets are public roads: §§ 32-6-190 and 32-6-
191 impose a maintenance duty on railroads only where the “track or tracks cross a
public road.” O.C.G.A. § 32-6-190. Similarly, § 46-8-103 prohibits railroads only
from appropriating “public highways.” O.C.G.A. § 46-8-103 (emphasis added).
Whether Dobbs and Depot Streets could have come under Marietta’s control
is not a settled question under Georgia law with our present undisputed facts.
Marietta concedes that it has no documentary proof of dedication of Dobbs and Depot
16
Streets to public use, such as a deed.7 If Dobbs and Depot Streets have become
public, and thus under Marietta’s control pursuant to Marietta’s charter, it is by
longstanding public use. It is there that Georgia law is unclear.
CSX argues that no amount of public use could ever have made the streets
public because in Georgia no prescriptive easement may be obtained against the State,
which owns the W&A railroad. CSX’s best support for this argument is a telegraphic
1881 Georgia Supreme Court opinion that, among its three paragraphs stating rules,
announces that
[n]o prescription runs against the state; and this is true of the state’s title
to the Western and Atlantic railroad as well as the balance of the public
domain, and it does not matter whether the road was for the time being
in the hands of the state’s own officers, or of her tenants or lessees.
Glaze v. Western & A.R.R., 67 Ga. 761, 761 (Ga. 1881). This is obviously strong
authority in CSX’s favor, but it does not completely resolve the question because of
obliquely contrary cases that followed.
First, we can infer from Glaze’s other two paragraphs that the plaintiff there
was seeking to assert a private right to cross the W&A at a certain point. The issue
was thus not presented whether the public may, after a period of undisturbed use of
a passageway, come to hold some right to cross the W&A. And the distinction may
matter. Georgia explains the development of a public access right in part by an
7
Marietta does point to its charter, which gives it control over public roads within its
corporate limits, but the charter argument of course begs the question whether Dobbs and Depot
Streets are in fact public.
17
“implied dedication” theory: after a period of years, we presume an antecedent grant
to the public of a right of access. See McCoy v. Central Ry., 62 S.E. 297, 298 (Ga.
1908); see also Chandler v. Robinson, 506 S.E.2d 121, 122-23 (Ga. 1998) (stating
elements of implied dedication to public use); see generally Lines v. Georgia, 264
S.E.2d 891, 895-96 (Ga. 1980). This theory is distinguished from that of prescription,
which is that by not expelling the public the property owner has lost the right to
exclude by a species of laches. See McCoy, 62 S.E. at 298. In Georgia, prescription
may not run against government landholders, such as the State or municipalities. See
Grand Lodge, Indep. Order of Odd Fellows v. City of Thomasville, 172 S.E.2d 612,
615-16 (Ga. 1970). But that leaves open the possibility that the State may be
presumed to have dedicated a public passage.
Two cases from earlier in this century concerning the W&A imply that this
could indeed have happened here. The first case arose after a train operated by the
Louisville & Nashville Railroad Company, CSX’s predecessor lessee, ran over a man
in Cobb County. Without comment on the sovereign ownership of the railway, the
court concluded that the testimony in the case was sufficient to show that the road in
question had become public by extended public use; thus, the railroad had a duty to
observe Georgia’s “blowpost statute,” which required trains to sound a whistle 400
yards before a public road. See Louisville & N.R. Co. v. Hames, 68 S.E. 805, 806 (Ga.
1910). Similarly, the second action arose from a train accident in which a train on the
18
W&A failed to observe the blowpost statute, and the issue again presented itself
whether the plaintiff’s decedent was crossing at a public road. As in our case, there
was no evidence of express dedication, and the railroad argued that only an act of the
General Assembly could make the road public because “prescription cannot run
against the state.” Western & A.R.R. v. Gray, 157 S.E. 482, 488 (Ga. 1931). The
Georgia Supreme Court rejected this argument by relying on still-extant statutes that
put the W&A on par with other railroads before the law.8 The court syllabized its
holding thus: “This legislation is of itself a dedication of either a public road or a
private way over any portion of the right of way of the Western & Atlantic Railroad
which may be shown by evidence to have been accepted for use as a public road . . .
.” Id. at 482. These cases cast doubt on the 1881 opinion in Graves and on CSX’s
argument against prescription.
8
The two statutes provide:
The state occupies the same relation to the railroad, as owner,that
any company or corporation does to its railroad; and the obligations of
the state to the public concerning the railroad, and of the public to the
railroad, are the same as govern the other railroads of this state, so far as
is consistent with the sovereign attributes of this state and the laws of
force for its conduct.
O.C.G.A. § 50-16-101.
All the public road laws and penal laws touching the railroads of
this state, whether to obligate or protect, apply to the state railroad unless
specially excepted or some other provision is prescribed in lieu of some
one or more thereof.
O.C.G.A. § 50-16-102.
19
This case, which has important policy implications, thus turns on a question of
unsettled Georgia law. We therefore respectfully certify the following question to the
Supreme Court of Georgia:
Can the public acquire a right against the State of Georgia, and hence
against its lessee CSX, to use the crossings at Depot and Dobbs Streets,
such that the streets may not be closed without Marietta’s consent?
We of course do not intend our phrasing of the question to restrict the Georgia
Supreme Court’s consideration of any other state-law problems posed by this case, or
to dictate the form of the analysis or response. To assist the court in its consideration
of the case, the entire record and the briefs of the parties and amici curiae will
accompany this certification.
III. Conclusion
For the foregoing reasons, we conclude that Georgia’s absence does not prevent
this action from proceeding, and that the merits turn on an unsettled question of
Georgia law. We therefore certify a question to the Supreme Court of Georgia.
QUESTION CERTIFIED.
20