DocketNumber： Misc. No. 24, Sept. Term, 1998
Judges： Sean H. Donahue
Filed Date： 7/29/1999
Status： Precedential
Modified Date： 11/10/2024
This case comes to us by a certified order pursuant to Maryland Code (1974, 1998 RepLVol.), Courts & Judicial Proceedings Article, §§ 12-603 to 12-609 from the United States Court of Appeals for the Federal Circuit. That court seeks our resolution of the parties’ state law property disputes so that it may determine whether an uncompensated taking of private property has occurred in violation of the Fifth Amendment of the United States Constitution.
Specifically, the case requires that we construe a 1911 deed from appellant Chevy Chase Land Company of Montgomery County (CCLC or the land company) to the Metropolitan Southern Railroad Company (MSRC or the railroad),
1. Under Maryland law, did the 1911 deed convey an interest in fee simple absolute or an easement?
2. If the deed conveyed an easement, is the easement subject to any limitations as a matter of law?
*118 3. If the deed conveyed an easement, has the easement been abandoned as a matter of law since its conveyance and, if so, when?
We examine each of the certified questions, in seriatim.
Addressing the first question in Part II, we conclude that the 1911 deed granting a “right-of-way” to the railroad conveyed an easement. The use of the “right-of-way” language provides a strong indication that the parties intended to convey an easement as opposed to an estate in fee simple absolute. We find nothing in the deed to indicate that anything more than a right of passage was intended, particularly in light of the deed’s separate grant “in fee simple” of other land upon which a passenger station was to be located. Our conclusion is confirmed by the circumstances of the conveyance, including the 20-year existence of the railway and the nominal consideration paid by the railroad for the right-of-way. Moreover, the conveyance of the right-of-way in fee simple would not have furthered any purpose of the railway not served by its conveyance as an easement and could adversely affect the public’s interest in the best use of the land. See Part H.B., infra.
Regarding the second certified question, we conclude in Part III that use of the right-of-way as a recreational trail falls within the scope of the easement. The language of the deed includes no express limitations on the use of the right-of-way; rather, it indicates through its use of terms such as “free” and “perpetual” that the parties contemplated general use of the land as a way of passage through Montgomery County. In light of our decisions holding that easements for public highways are subject to reasonable changes in mode of transportation and the railroad’s status as a highly regulated public service corporation, recreational trail use of a general use right-of-way is within the legally anticipated scope of the 1911 deed. Finally, the use of the right-of-way as a trail poses no unreasonable burden on the underlying fee simple estate, as it is self-evident that bikers and walkers inflict less of a burden on a right-of-way than a freight railroad.
I. BACKGROUND
A. Factual Background
The stipulated facts show the following. The property alleged to have been taken and for which the appellants seek compensation is a strip of land approximately one mile long and 100-feet wide, spanning some 12 acres in Montgomery County, Maryland, that lie on either side and across Connecticut Avenue in Chevy Chase. The mile-long stretch is a segment of an approximately 6.4 mile former railroad line in Montgomery County known as the Georgetown Branch, which runs from Silver Spring southwesterly into the District of Columbia.
The land company was founded in 1890 in part to develop the residential area now known as Chevy Chase and it then
In 1911, after the railroad line had been constructed and in operation for 19 years, the land company executed a deed conveying to the railroad, “its successors and assigns, a free and perpetual right of way” over the land referred to in the 1891 agreement. The deed also conveyed, in “fee simple,” the parcel of land on which the depot was to have been built. The railroad paid $4,000 for the conveyance, and the deed stated that the 1891 agreement was “mutually abrogated, canceled and set aside, and the [railroad] is hereby released and discharged from the obligation ... of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars.” See Part II.C.l.
The railroad used the right-of-way for shipping freight continuously from 1892 until 1985, when damage to a bridge on the right-of-way prevented its use. Between 1969 and 1985, however, traffic over the line had decreased by over 90%. In 1983, in conformance with federal law, the railroad posted a notice on the Georgetown Branch that it would be the
After the ICC’s tentative decision, Montgomery County began discussions with the railroad about acquiring the right-of-way for a light-rail system as well as a hiker/biker path pursuant to the Rails-to-Trails Act. On December 12, 1988, the ICC approved the purchase and transfer of use of the right-of-way to Montgomery County. Four days later the railroad conveyed the entire Georgetown Branch to Montgomery County by quitclaim deed for the County’s payment of $10 million. As described in more detail in Part IV.A.2., as a result of the ICC’s actions pursuant to the Act, regulatory abandonment of the railroad right-of-way was delayed indefinitely.
We will provide more facts as we examine each of the certified questions. Additional facts are also available in the opinion of the federal trial court, Chevy Chase Land Co. of Montgomery v. U.S., 37 Fed.Cl. 545 (1997).
B. Summary of Arguments and Case History
The plaintiffs/appellants assert that the 1911 deed conveyed an easement. They further argue that the proposed use of the easement as a hiker/biker trail is beyond its scope,
Defendants/appellees Montgomery County and the United States, on the other hand, argue that the 1911 deed conveyed to the railroad an interest in the right-of-way in fee simple absolute and therefore the appellants have had no interest in the property since 1911. Alternatively, should the deed be found to have conveyed an easement, they contend that the use of the right-of-way as a hiker/biker trail pursuant to federal law is within the scope of the easement and that the railroad never abandoned the easement. Accordingly, they conclude that no taking occurred. We are concerned only with the state law property issues and not with the takings claim itself.
The United States Court of Federal Claims (CFC), where appellants filed their takings claim, found in favor of Montgomery County and the United States. Chevy Chase Land Co. of Montgomery, supra. The CFC concluded that the 1911 deed conveyed a fee simple absolute and granted summary judgment in favor of appellees. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 565-75. Although that conclusion disposed of the case, the CFC went on, in dicta, to conclude that if it was an easement that was conveyed, the easement was abandoned by the railroad prior to its conveyance to the County. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 575-80. Also in dicta, the CFC stated that the language of the 1911 deed did not limit the scope of the easement to railroad purposes (thereby implying that the use as a hiker/biker trail would not cause a reversion) but that if the deed were limited to railroad purposes, the proposed use would be beyond the scope of the easement, thereby causing a reversion
II. THE RAILROAD’S PROPERTY INTEREST
The first question asks whether the 1911 deed conveyed an interest in fee simple absolute or an easement. The question requires that we construe the 1911 deed between the land company and the railroad. We begin with a summary of the principles involved in construing a deed. We then consider how the courts of this State and other states have construed the phrase “right-of-way.” We then apply those principles to the deed conveyed by the land company to the railroad.
A. Basic Principles of Deed Interpretation
In construing a deed, we apply the principles of contract interpretation. Buckler v. Davis Sand, Etc., Corp., 221 Md. 532, 537, 158 A.2d 319, 322 (1960). These principles require consideration of “ ‘the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution,’ ” Calomiris v. Woods, 353 Md. 425, 436, 727 A.2d 358, 363 (1999)(quoting Pacific Indem. v. Interstate Fire & Cas., 302 Md. 383, 388, 488 A.2d 486, 488 (1985)). At least initially, the construction of a deed is a legal question for the court, and on appeal, it is subject to de novo review. Calomiris, 353 Md. at 433-35, 727 A.2d at 362-63. “It is a cardinal rule in the construction of deeds that ‘the intention of the parties, to be ascertained from the whole contents of the instrument, must prevail unless it violates some principle of law.’ ” D.C. Transit Systems v. S.R.C., 259 Md. 675, 686, 270 A.2d 793, 798-99 (1970)(D.C. Transit /)(quoting Marden v. Leimbach, 115 Md. 206, 210, 80 A. 958, 959 (1911)). Thus, we must consider the deed as a whole, viewing its language in light of the facts and circumstances of the transaction at issue as well as the governing law at the time of conveyance.
In railroad parlance, “the term ‘right of way’ has two meanings: in one sense it is ‘the strip of land upon which the track is laid’; in the other sense it is ‘the legal right to use such strip,’ and in this sense it usually means the right of way easement.” Ma. & Pa. RR. Co. v. Mer.-Safe, Etc., Co., 224 Md. 34, 36-37 n. 1, 166 A.2d 247, 248 n. 1 (1960)(quoting Quinn v. Pere Marquette Ry. Co., 256 Mich. 143, 239 N.W. 376, 379 (1931)). See also Joy v. City of St. Louis, 138 U.S. 1, 44, 11 S.Ct. 243, 256, 34 L.Ed. 843, 857 (1891)(“[T]he term ‘right of way’ ... sometimes is used to describe a right belonging to a party, a right of passage over any tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their road-bed.”). Cf. Philip A. Danielson, The Real Property Interest Created In a Railroad Upon Acquisition of Its “Right of Way, ” 27 Rocky Mtn. L.Rev. 73, 74 (1954)(noting the two meanings and stating that “[i]n law [right of way] is synonymous with ‘easement’—a legal concept”).
Nevertheless, it has generally been held by courts of this and other states that “deeds which in the granting clause convey a ‘right of way’ are held to convey an easement only.” Deed to Railroad Company as Conveying Fee or Easement, Annotation, 6 A.L.R.3d 973, § 3, at 977 (1966); The Real Property Interest Created In a Railroad Upon Acquisition of Its “Right of Way, ” 27 Rocky Mtn. L.Rev. at 84 (“[I]f the conveyance is of a ‘right of way,’ or of land ‘for a right of way,’ the courts tend to find an easement ”)(emphasis in original; footnote omitted). As explained in Professor Elliott’s 1907 treatise on railroad law:
“ ‘Right of way,’ in its strict meaning, is ‘the right of passage over another man’s ground;’ and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase. It would be using the term in an unusual sense, by applying it to an absolute*125 purchase of the fee-simple of lands to be used for a railway or any other kind of way.”
2 Elliott on Railroads § 1158, at 628 n. 77 (3d. ed,1907)(quoting Williams v. Western Union Railway Company, 50 Wis. 71, 5 N.W. 482, 484 (1880)). See also Richfield Oil Corp. v. Chesapeake & Curtis Bay Railroad Co., 179 Md. 560, 572, 20 A.2d 581, 587 (1941); D.C. Transit I, 259 Md. at 688, 270 A.2d at 799 (both quoting Elliott on Railroads).
Maryland courts have often construed deeds of “rights-of-way” to railroads as easements or have used the terms “easement” and “right-of-way” synonymously. See, e.g., D.C. Transit I, 259 Md. at 689, 270 A.2d at 800 (“The addition of the language for ‘a right of way’ in the habendum clause ... makes clear the intent of the parties to grant an easement ----”)(emphasis in original); Richfield Oil Corp., 179 Md. at 572, 20 A.2d at 587-88 (quoting 2 Elliott on Railroads § 1158, at 627-28 (3d ed. 1907))(“ Where the intention to convey a fee does not appear, as in case of the conveyance of a “right of way” for the railroad through certain lands, the company takes an easement only.’ ”); Greenwalt v. McCardell, 178 Md. 132, 136, 12 A.2d 522, 524 (1940)(“Where a right of way is established by reservation, the land remains the property of the owner of the servient estate, and he is entitled to use it for any purpose that does not interfere with the easemewf.”)(emphasis added); Miceli v. Foley, 83 Md.App. 541, 570, 575 A.2d 1249, 1264 (1990)(“Absent an express intention to convey a fee, a grant of a right of way to a railroad is generally considered to be an easement.”). Our eases are consistent with those of other jurisdictions.
Furthermore, policy considerations support interpreting the conveyance of a “right-of-way” to a railroad as an easement where the intent to convey an estate in fee is not clearly expressed. A great number of railroad corridors have been abandoned in recent years. See Preseault v. ICC, 494 U.S. 1, 5, 110 S.Ct. 914, 918, 108 L.Ed.2d 1, 10 (1990)(observing that the nation’s railway system has lost about 130,000 miles of
“Public policy does not favor the conveyance of strips of land by simple titles to railroad companies for right-of-way purposes, either by deed or condemnation. This policy is based upon the fact that the alienation of such strips or belts of land from and across the primary or parent bodies of the land from which they are severed[ ] is obviously not necessary to the purpose for which such conveyances are made after abandonment of the intended uses as expressed in the conveyance, and that thereafter such severance generally operates adversely to the normal and best use of all the property involved.”
Ross, Inc. v. Legler, 245 Ind. 655, 199 N.E.2d 346, 348 (1964). See also The Real Property Interest Created In a Railroad Upon Acquisition of Its “Right of Way, ”27 Rocky Mtn. L.Rev. at 74 (observing that construing a right of way as an easement “seems socially more desirable, since it helps clear titles and prevents long narrow strips of agricultural land from being separated from the adjoining farms, with attendant waste and inconvenience.”). We have previously recognized that the construction of a right-of-way as a fee simple would not further any significant interest that is not served by construction as an easement. See D.C. Transit I, 259 Md. at 688, 270 A.2d at 800 (construing a deed to a railroad as an easement in part because it would not serve any useful purpose to convey “a strip of land 80 feet wide” as an estate in fee); Ma. & Pa. RR. Co., 224 Md. at 37, 166 A.2d at 249 (following the “general rule ... that a railroad company acquires only an easement in a right of way by prescription .... [because] the nature of the
This is not to say that a deed conveying a “right of way” to a railroad cannot convey an estate in fee simple. It is well settled that a deed to a railroad, even though it characterizes the grant as conveying a right-of-way, may convey an estate in fee simple. See Hodges v. Owings, 178 Md. 300, 303, 13 A.2d 338, 339 (1940)(observing that the railroad’s charter authorized it to take an estate in fee). However, when a deed conveying a right-of-way fails to express a clear intent to convey a different interest in land, a presumption arises that an easement was intended. “The logical rule ... is that where the deed is ambiguous and the granting clause is not specific, references to the interest being conveyed as a right-of-way gives rise to a presumption that an easement was intended.” Danaya C. Wright, Private Rights and Public Ways: Property Disputes and Rails-to-Trails in Indiana, 30 Ind. L.Rev. 723, 740 (1997). See also Miceli, 83 Md.App. at 571, 575 A.2d at 1265 (“As there is insufficient evidence to rebut the presumption that a condemning railroad takes an easement, we hold that the railroad did not acquire a fee simple absolute in the property at issue.”)
C. Application to the 1911 Deed
1.
The deed in question was executed on March 22, 1911, and recorded on April 4, 1911. In pertinent part, the granting clause of the deed states:
“[T]he said party of the first part [the land company] for and in consideration of the sum of FOUR THOUSAND*129 (4,000) DOLLARS, to it paid by the said party of the second part, does hereby grant and convey unto the said party of the second part [the railroad], its successors and assigns, a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as ‘Parcel A’ and does hereby grant and convey unto the said party of the second part [the railroad], its successors and assigns, in fee simple, the land and premises, hereinafter designated as Parcel B’.... ” (Emphasis added).
The deed then provides a metes and bounds description of Parcel A, the “right-of-way,” and Parcel B, the land granted in “fee simple.” Parcel A is summarized as “being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of [t]he Chevy Chase Land Company.. .. ” (Emphasis added). The granting clause pertaining to Parcel A is made subject to an “existing right of way for highway and other purposes over what is known as Connecticut Avenue Extended.”
The deed’s warranty clause states:
“AND the said party hereto of the first part hereby covenants to warrant specially the property hereby conveyed, and to execute such further assurances of said land as may be requisite.”
Finally, the deed provides that
“in consideration of the execution and delivery of this Deed, and of the payment of the consideration herein expressed, the ... agreement entered into on [April 21, 1891] ... is mutually abrogated, canceled and set aside, and [MSRC] is hereby released and discharged from the obligation set forth in said contract, of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars, or of contributing the sum of Four Thousand (4,000) Dollars toward the erection by ... [CCLC] of a passenger station on the hereinbefore described parcel of land designated as Parcel “B”; and the said [MSRC], as is evidenced by its acceptance of this conveyance, hereby releases [CCLC] from any obli*130 gation ... to erect or cause to be erected the passenger station aforesaid.”
As the cases just reviewed demonstrate, and as appellees and the CFC acknowledge, we have consistently construed conveyances of rights-of-way to railroads as easements and not estates in fee simple. The use of the term “right of way,” however, does not ipso facto create an easement; rather the language of the deed must be viewed as a whole in the context of the entire transaction. As explained next, we believe that the express language of the deed in light of the circumstances makes sufficiently clear the intention of the land company and the railroad to create an easement. See Desch v. Knox, 253 Md. 307, 310-11, 252 A.2d 815, 817 (1969)(holding deed conveyed “right-of-way” based on the language of the deed); Fedder v. Component Struct. Corp., 23 Md.App. 375, 380, 329 A.2d 56, 60 (1974)(holding that the “intention of the parties [to convey an easement was] crystal clear” when deed conveyed a “right-of-way” and “[w]hen the simple language of the contract is considered in the surrounding circumstances.”) We first examine the language of the deed itself and only then turn to the circumstances of the conveyance.
2.
Initially, we note what is obvious about the deed. The granting clause does not state that a piece of land is being conveyed nor does it provide any indication that an estate in fee simple was intended to be conveyed. The language “free and perpetual” sheds no light on whether a nonpossessory or possessory interest is being conveyed, since an estate in fee or an easement may be “free and perpetual.” See Md.Code (1974, 1996 Repl.Vol.), Real Property Art., § 4-105 (“[E]very grant or reservation of an easement passes or reserves an easement in perpetuity.”). Rather, the granting clause of the deed directly conveys a “right of way.” The appellees therefore have a high hurdle to overcome in order to demonstrate that the term right-of-way was used “in [the] unusual sense ... [ofj an absolute purchase of the fee-simple of lands.... ”
That hurdle is elevated upon further examination and a contrasting of the deed’s dual granting clauses. The two granting clauses each declare the land company’s intent to “hereby grant and convey.” First, the land company conveyed “a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as ‘Parcel A.’ ” Second, the land company conveyed to MSRC “in fee simple, the land and premises, hereinafter designated as ‘Parcel B.’ ” Appellees contend that because each clause contains the word “grant” the land company intended to pass an estate in fee simple even though the first clause grants a “right of way” while the second clause conveys the “land and premises” in “fee simple.” The CFC concluded that the use of the term “fee simple” in reference to Parcel B merely referenced duration of the estate conveyed and not the estate itself. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 571. Relying in part on extrinsic evidence, the CFC concluded that the language “fee simple” in reference to Parcel B was synonymous with the term “perpetual” in reference to Parcel A and thus both granting clauses conveyed estates in fee. Id.
We believe that the CFC’s and appellees’ construction of the deed is overly strained. If the land company intended to convey estates in fee over both parcels, it would have been unnecessary to include two separate granting clauses. Moreover, given that two granting clauses were used, if they had intended to convey the same interest, we believe the author of the deed would have used the same language. Neither the CFC nor appellees explain why different language was used if the intent was to convey the same interest in both parcels. To hold that both Parcel A and Parcel B conveyed estates in fee would be to ignore what we believe is self-evident from the deed: that the parties intended to convey different interests, one for the “right of way” designated as Parcel A and the other for “the land and premises” in “fee simple” and designated as Parcel B. If the intent was to convey Parcel A as an estate in fee, no drafting hurdles would have prevented mak
Appellees further attempt to bootstrap the description of Parcel A as a “parcel of land” into the granting clause to show that an estate in fee of the right-of-way was intended to be conveyed. As noted above, the description of Parcel A is found in a separate paragraph of the deed, which summarizes Parcel A as a “parcel of land ... being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of [t]he Chevy Chase Land Company.”
We disagree as to the implications of the language “parcel of land” in the description of “Parcel A” in the deed. The language is used in the portion of the deed establishing the location of the right-of-way, not the interest granted. Language used in a descriptive clause is less important than the language of the granting clause in denoting what interest in land is conveyed by a deed. See Marden, 115 Md. at 209, 80 A. at 959 (observing that, when determining the interest conveyed by a deed, in the case of conflict the granting clause generally prevails over the habendum clause). Indeed, the granting clause for Parcel B explicitly stated that what was being conveyed was “the land and premises” while the disputed grant was of a “right of way ... over the land and premises.” (Emphasis added). Furthermore, as discussed next, in previous eases we have construed language similar to the “parcel of land” language upon which appellees rely. In these cases the deed language was found not in a descriptive clause but in the granting clause itself, and we nevertheless found that the deed conveyed an easement in lieu of the reference to! the interest as a “right-of-way.”
In Green, the deed was entitled a “Right of Way Deed.” 230 Md. at 447-48, 187 A.2d at 677. The granting clause conveyed in fee simple “‘the free and uninterrupted use,
Another example is East Wash. Railway v. Brooke, 244 Md. 287, 223 A.2d 599 (1966). In that case, the granting clause of the deed conveyed a “ ‘strip of land for a right of way through said lands.’” Brooke, 244 Md. at 293, 223 A.2d at 603 (emphasis added). A description of the strip of land summarized it as being “ ‘land sixty feet in width ... as now located and used for railroad purposes.’ ” Brooke, 244 Md. at 294, 223 A.2d at 603 (emphasis in original). Even though the granting clause conveyed a “strip of land” (which seems synonymous with “parcel of land”), we concluded that “[i]t is plain that the conveyance was of an easement for railway purposes and use only.” Id.
A final example is D.G. Transit I, supra. In that case, the deed we interpreted “ ‘grant[ed] and convey[ed] ... all the piece or parcel of land’ ” described in the deed. D.G. Transit I, 259 Md. at 679, 270 A.2d at 795. The habendum clause stated as follows:
“ ‘To have and hold the same unto and to the use of ... [the railroad company] for a right of way and such other purposes as said Railway Company is authorized under its act of incorporation ... and the General Incorporation Law of this State to acquire, dispose of or deal in real estate.’” (Emphasis in original.)
D.G. Transit I, 259 Md. at 680, 270 A.2d at 795. The granting clause thus conveyed “all the piece or parcel of land” (emphasis added) with the only reference to the “right-of-way” being in the habendum and not the granting clause. Moreover, the deed explicitly stated that the right-of-way could be used for purposes for which the railroad company was authorized under the law, and the deed itself noted that such authorization
That the deed in this case conveys an easement and not an estate in fee follows, a fortiori, from G-reen, Brooke, and D.C. Transit I. Unlike Green, in the instant case there is no express language suggesting that the right-of-way was conveyed in “fee simple” (even though Parcel B was conveyed “in fee simple”). Furthermore, we do not see any legally significant difference between the “strip of land” in Brooke and the “parcel of land” in this case, and, unlike the instant case where the express grant was of a “right of way,” the grant in Brooke was expressly of a “strip of land.” Therefore, the deed in Brooke provided a much stronger reason under appellees’ analysis to conclude that an estate in fee simple was conveyed rather than a servitude. We nevertheless found it “plain” in Brooke that the grant conveyed an easement only.
Finally, that the 1911 deed conveyed an easement seems compelled by our holding in D.C. Transit I, where the granting clause conveyed “all the piece or parcel of land” and the only reference to a right-of-way was in the deed’s habendum clause. The deed in the instant case contains nearly identical language as in D.C. Transit I (“right of way” and “parcel of land”), but it more clearly indicates an easement was granted than D.C. Transit I since the granting clause directly conveys a right-of-way and the only reference to a “parcel of land” is in the descriptive clause—the opposite locations in which the
3.
The circumstances and positions of the parties to the 1911 deed confirm that the deed conveyed an easement and not an interest in fee simple absolute. Both the CFC and appellees emphasize the lack of conditional language in the 1911 deed restricting the uses of the right-of-way or setting forth its purposes. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 569 (emphasizing “the outright grant of the right-of-way and the absence of purpose limitations”). They argue that the lack of conditional language in the 1911 deed is what distinguishes the term “right-of-way” in that deed from the rights of way in the numerous Maryland cases that were construed to be easements. For example, the CFC stated that “[t]he 1911 deed does not even refer to the word ‘railroad,’ let alone restrict the use of the land to railroad purposes.” Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 571. Turning to evidence extrinsic to the deed, the CFC supported its conclusion by quoting from other deeds executed by the land company to railroad companies that conveyed easements which contained purpose language. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 570. For example, the court quotes from a deed stating that the “right-of-way” is subject to the railroad “construct[ing] and completing] and commencing] regular operations] within nine months” and another deed conveying a “right of way for the purpose of constructing and operating the railroad.” Id.
While the CFC and appellees correctly point out that there are no purpose limitations in the 1911 deed, they entirely overlook the fact that the railway for which the conveyance was executed had already been built and was in operation for nearly 20 years prior to the 1911 conveyance. Thus, unlike
Furthermore, construing the deed to convey an easement is consistent with the 1891 agreement between the land company and the railroad. That agreement was made “in contemplation of] the construction of a line of road ... to traverse the property” of the land company. It further explained the land company’s intention “to donate and convey to the said railroad company a right of way 100 feet wide.”
Despite its conclusion that the 1891 agreement contemplated an easement, the CFC considered extrinsic evidence to conclude that the 1911 deed conveyed an interest in fee simple absolute. The CFC relied on a 1910 letter from a land company official referencing the conveyance to occur in the next year. The letter stated that
“ ‘the arrangement was that the Baltimore and Ohio Railroad Company pay to the Chevy Chase Land Company Four Thousand Dollars in cash, and in consideration of this payment, have conveyed to it, all the property covered by its right of way contract with the Land Company, entered into some years ago.’ ” (Emphasis added).
Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 572. The CFC concluded that the letter “indicates” that the 1911 conveyance was to involve estates in land and not an easement. Id.
Even assuming, arguendo, that this letter was properly used to construe the interest that was conveyed in the deed, we fail to see the letter’s significance in determining whether the right-of-way in the 1911 deed conveyed an estate or an easement. The use of the language in the letter “all the property” is no more convincing as to intent to convey in fee simple than appellees’ arguments rejected earlier relating to the description of the right-of-way as a “parcel of land.” As we see it, the letter has less significance than the language in the deed describing Parcel A as a “parcel of land.” The letter’s statement of intent to “convey[] all the property covered by its right of way contract” can be interpreted as an intent to convey an easement just as convincingly as it may be
Appellees contend that the 1891 agreement should not be considered because it was “mutually abrogated, canceled and set aside” in the 1911 deed. Indeed, as discussed above, we need not turn to the 1891 agreement to reach our conclusion that an easement was conveyed in the 1911 deed. However, the abrogation language of the 1911 deed was “in consideration of the execution and delivery” of the new deed. Thus, it is relevant to the 1911 deed since it supplied consideration for the transaction. Moreover, the relevant portion of the deed states in full that the 1891 agreement is
“mutually abrogated, canceled and set aside, and [MSRC] is hereby released and discharged from the obligation set forth in said contract, of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars, or of contributing the sum of Four Thousand (4,000) Dollars toward the erection by ... [CCLC] of a passenger station [on Parcel B]; and [MSRC], as is evidenced by its acceptance of this conveyance, hereby releases [CCLC] from any obligation ... to erect or cause to be erected the passenger station aforesaid.” (Emphasis added).
Thus, the 1891 agreement was abrogated only when the 1911 deed was properly executed and delivered, and that abrogation was linked in express contractual terms to the primary outstanding obligation of the 1891 agreement—to either spend $4,000 on a passenger depot or pay $4,000 to MSRC for its own construction of a passenger depot.
This leads to an additional factor that courts consider in determining whether a fee simple estate or an easement is granted by a deed conveying a “right-of-way”—the amount of consideration paid for the deed. “Deed to Railroad Company as Conveying Fee or Easement,” Annotation, 6 A.L.R.3d 973, § 3, at 1038 (1966)(“A factor which might be considered relevant in determining whether a deed to a railroad company should be construed as conveying a fee or easement is the amount of the consideration shown to have been paid by the
Appellees argue unconvincingly that the $4,000 the railroad paid to the land company was for an estate in fee simple of the land occupied by the right-of-way and not for release from the obligation in the 1891 agreement to expend or pay that amount for the construction of a passenger depot. They go on to contend that the $4,000 for Parcels A and B was more than nominal consideration, which they argue demonstrates that the deed conveyed an estate in fee simple. The CFC apparently accepted appellees’ arguments, finding “more than nominal consideration,” but it went on to conclude that the “consideration tendered does not militate in either direction.” Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 573-74. We disagree that the consideration was more than nominal and believe the lack of more than nominal consideration further militates toward construing the deed to convey an easement.
We must look no further than the deed itself to see that the consideration paid was nominal. The granting clause states
Finally, we are unconvinced by appellees’ arguments that the Maryland statute in effect in 1911 suggests that the deed conveyed a fee simple estate. That statute declares that
“[t]he word ‘grant,’ the phrase ‘bargain and sell,’ in a deed, or any other words purporting to transfer the whole estate of the grantor shall be construed to pass to the grantee the whole interest and estate of the grantor in the lands therein mentioned, unless there be limitations or reservations showing, by implication or otherwise, a different intent.”
Md.Code (1904), Art. 21, § 12. Appellees contend that the statute applies because of the use of the term “grant” in the 1911 deed. As described above, the limitations in the 1911 deed are inherent in the grant of a right-of-way to a railroad company. Thus, “there [are] limitations or reservations showing, by implication or otherwise, a different intent” than to convey the whole estate of the grantor. Id. Our previous cases construing deeds to railroad companies containing the term “grant” nevertheless have concluded that the instruments conveyed easements and not estates in fee, notwithstanding the statute relied on by appellees. See Brooke, 244 Md. at 293, 223 A.2d at 603 (noting Article 21’s “principle that
4.
In conclusion, the use of the term “right-of-way” in the deed provides a strong indication that the railroad and the land company intended the 1911 deed to convey an easement. Our cases and the cases from other states consistently have construed deeds to railroads of “rights-of-way” as conveying easements and not estates in fee simple absolute. The language of the deed at issue in this case provides no reason to deviate from our previous cases. This is especially the case in light of the dual granting clauses of Parcel A, conveying a “right of way” and Parcel B, conveying the parcel “in fee simple.” Finally, the circumstances of the deed confirm the conclusion that the deed conveyed an easement only. In particular, the fact that the railway had already been built and was in operation obviated any need for limiting language in the deed to indicate that less than a fee simple was being conveyed, and the nominal consideration given the land company by the railroad is a factor more consistent with the conveyance of an easement than an estate in fee simple absolute.
Since we have determined that the 1911 deed granted an easement, we must now consider the second certified question regarding the scope of the easement. We initially determine whether the express language of the deed limits the available uses of the right-of-way. After that determination, we consider the extent to which Maryland common law on railroad easements imposes any implied limits on use of the right-of-way that would prevent the right-of-way in the instant case from being used for a hiker/biker trail. This part then concludes with an examination of whether the use of the right-of-way for a hiker/biker trail unreasonably increases the burden of the easement on the servient estates.
Appellants contend that the proposed interim use of the right-of-way as a hiker/biker trail is beyond the scope of the easement. Instead of the language of the deed, appellants emphasize the circumstances at the time of the original agreement between the railroad and the land company in 1891, contending that the “evidence is clear” that the land company intended that the easement was for purposes of freight railroad only. The land company cites the Brooke and D.C. Transit I decisions as support for its view that when a right-of-way is conveyed to a railroad, it is ipso facto restricted to railroad uses. Appellees, on the other hand, emphasize the deed itself, which contains no express limitations on the right-of-way conveyed. They contend that the easement was for a right-of-way to be used for general transportation purposes and that its use as a recreational trail is consistent with those purposes and imposes no additional burden on the servient estates.
We agree with appellees that the primary consideration in construing the scope of an express easement is the language of the grant. “[T]he extent of the rights [of an easement acquired by express grant] must necessarily depend upon a proper construction of the conveyance or that part of it by which the easement was created.” Parker v. T & C Dev. Corp., 281 Md. 704, 709, 381 A.2d 679, 682 (1978)(quoting Buckler, 221 Md. at 537, 158 A.2d at 322). See also Reid v. Washington Gas Lt. Co., 232 Md. 545, 549, 194 A.2d 636, 638 (1963)(stating that the “scope of the easement is to be determined from the language of the grant”); 4 Powell on Real Property § 34.12[2], at 34-178 (1998 Supp.)(observing that courts interpreting easements conveyed by express grant “stress the primary control exercised by the language of the creating conveyance” (footnote omitted)).
No language in the deed in the instant case suggests that the right-of-way was limited to railroad purposes only (and much less so to freight railroad purposes, as the land company contends). The deed conveyed a “free and perpetual right of
Unlike many of the grants of easements that we have addressed in the past, the deed in the instant case does not suggest any limit on the use of the right-of-way. It is clear that a right of passage was granted, and, as noted above in Part II.C.3, the circumstances clearly indicate that the original instrumentality was a railroad. But nowhere in the granting clause or. elsewhere in the deed does the language suggest that a railroad was the only instrumentality for use of the perpetual right-of-way. For example, nowhere does language “for railroad purposes” appear, and there are no other express limitations on the use of the right-of-way. Cf. Brooke, 244 Md. at 294, 223 A.2d at 603 (concluding that deed language “for railroad purposes ” limits scope of right-of-way). Even if we consider the 1891 agreement to convey the right-of-way to the railroad, that agreement includes no express limitations; it states only that the agreement was made “in contemplation of] the construction of a line of road ... to traverse the property” of the land company. As the Minnesota Supreme Court observed in addressing the scope of an easement granted to a railroad:
“[N]one of the deeds expressly limit the easement to railroad purposes, provide that the interest conveyed terminates if use for railroad purposes ceases, or provide that the*145 easement would exist only for so long as the right-of-way was used for railroad purposes. While the grantors were undoubtedly aware that a railroad would be constructed on the land, none of the deeds limit the use to railroad purposes.”
State by Wash. Wildlife Preservation v. State, 329 N.W.2d 543, 546 (Minn.), cert. denied 463 U.S. 1209, 103 S.Ct. 3540, 77 L.Ed.2d 1390 (1983). In sum, it seems undisputable that the deed sweeps broadly by conveying an interest that is “free and perpetual” and making it freely transferable to “successors and assigns.”
While the deed presents no express limitations on the use of the right-of-way, that does not end our analysis. Keeping in mind the broad language in the grant, we must determine whether the appellees have the right to substitute, at least for the interim, the use of the right-of-way as a recreational trail for the previous use of the right-of-way as a railroad corridor. We must consider whether the use of the right-of-way as a hiker/biker trail is of the same quality of use as anticipated in the original grant and whether it imposes any unreasonable new burdens on the dominant tenement. Before analyzing those questions, we note that because of the broad language of the grant any doubts about its use will be resolved in favor of the grantee, i.e., the railroad:
“If the grant contains no limitations, the court will attempt to discern what the parties would have reasonably expected, and will usually be generous in its interpretation. The language of the easement can grant to the easement holder a good deal of discretion in the use of the easement or limit the use very narrowly; if the grant is not clear, the court will interpret the scope of the easement in favor of ‘free and untrammeled use of the land.’” (Footnotes and citations omitted).
7 Thompson on Real Property § 60.04(a), at 451 (Thomas ed.1994). See also Washington Gas Lt. Co., 232 Md. at 549, 194 A.2d at 638 (“[T]he scope of the easement is to be
B. Public Transit Use of the Right-of-Way
We have long accepted the view that railroads are public service corporations. Whalen v. Balto. & Ohio R. Co., 108 Md. 11, 21, 69 A. 390, 393 (1908). See also Ma. & Pa. RR. Co., 224 Md. at 39, 166 A.2d at 250 (referring to a railroad as a “qwcm-public corporation”); Read v. Montgomery County, 101 Md.App. 62, 68, 643 A.2d 476, 479 (observing that railroads operating the Georgetown Branch “function[ ] to promote the public welfare”), cert. denied, 336 Md. 301, 648 A.2d 203 (1994). In Whalen, we accepted the notion that a railroad is “ ‘obliged to use its powers and privileges for the benefit of the public, and in aid of the public good.’ ” 108 Md. at 21, 69 A. at 393 (quoting the appellant’s brief). Indeed, as the CFG acknowledged, the statutes in place at the time of the conveyance did not restrict railroad corporations to conducting rail service only. See Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 585-86. For example, Maryland law empowered the legislature to “regulate, modify or change the control, use
We have long considered a railroad line as analogous to a public highway. Whalen, 108 Md. at 21, 69 A. at 393 (“A railroad is in many essential respects a public highway, and the rules of law applicable to one are generally applicable to the other.”); Hessey v. Capital Transit Co., 193 Md. 265, 272, 66 A.2d 787, 790 (1949)(observing that “a railroad company, organized and conducted for private corporate profit, ... devot[es] its property to the use of the public”). Just like highways, railroad lines are subject to public use as is evidenced by their common carrier obligations. And railroads historically have had the power of eminent domain, a power reserved only to the government and those the government has annointed. Thus, our cases interpreting the scope of public highways provide a solid framework upon which to construe the grant of a general use “right-of-way” to a railroad.
Our highway cases have construed easements for public highways as including within their scope changing means of transportation. In Baltimore County Water & Electric Co. v. Dubreuil, 105 Md. 424, 66 A. 439 (1907), we explained that
“we have been governed by the fact that such [electric railway] uses, of both streets and rural highways, were only new modes of travel and transportation, and the right,*148 originally acquired, to use them was not simply for the then existing modes, but for all such as might arise in the ordinary course of improvement. It could therefore be presumed that such improved modes of travel and transportation were within the contemplation of the parties.... ”
105 Md. at 431, 66 A. at 441. About a decade earlier, in Poole v. Falls Road Electric Ry. Co., 88 Md. 533, 41 A. 1069 (1898), we noted that the purpose of a highway easement is for “passing and repassing” and only when a use is “not incident to such right of passage” does it create an additional servitude. 88 Md. at 537, 41 A. at 1071. We therefore concluded that the
“test ... of what is a new use would seem to be found not necessarily in the nature of the structure nor in the number of the tracks but in the use itself; whether it is promotive of the objects and purposes for which the easement in the public was acquired.”
Id. See also 5 Restatement op Property § 484 (1944)(“In ascertaining ... whether additional or different uses of the servient tenement required by changes in the character of the use of the dominant tenement are permitted, the interpreter is warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.”).
The early decisions of this state adhere to the view that the purpose for which the public easement was acquired is the overriding factor in the analysis rather than the mode or instrumentality of use. In Peddicord v. B., C. & E.M.R.R. Co., 34 Md. 463 (1871), we held that a right-of-way conveyed to a turnpike company could be used for a horse railway for passengers even though “it was not actually contemplated by any of the parties to the acquisition and grant.” 34 Md. at 480-81. We recognized that the turnpike company had a perpetual easement over the highway, lasting “forever,” and we observed that its conversion to a horse railway was an appropriate improvement “consistent with its character and purpose as a public highway.” Id. Further, we concluded
In this regard, the law in Maryland is consistent with the law of other jurisdictions that recognize the public attributes of railroad lines. As the West Virginia Supreme Court of Appeals has observed,
“railroads are not viewed strictly as private corporations since they are publicly regulated common carriers. Essentially, a railroad is a highway dedicated to the public use. This dedication imports to the railroad the status of a quasi-public corporation. Eckington & Soldier’s [Soldiers’] Home R. Co. v. McDevitt, 191 U.S. 103, 24 S.Ct. 36, 48 L.Ed. 112 (1903); United States v. Trans-Missouri Freight Assoc., 166 U.S. 290, 17 S.Ct. 540, 41 L.Ed. 1007 (1897). As such, the rights and duties of a railroad are in most instances determined by constant consultation with the public interest.”
Marthens v. B & O Railroad Co., 170 W.Va. 33, 289 S.E.2d 706, 711 (1982). See also State by Wash. Wildlife Preservation, 329 N.W.2d at 546 (quoting Marthens); Lawson v. State, 107 Wash.2d 444, 730 P.2d 1308, 1311 (1986)(“[R]ailroads must hold their property in trust for the public use.”); id. (“A railroad is a public highway, created for public purposes.”);
C. Compatibility of Trail Use with Prior Uses
As discussed above, the starting point for determining whether the current use of the Georgetown Branch as a hiker/biker trail is compatible with its prior use is the deed itself. The phrase “right-of-way” as used in the context of the grant is a “right belonging to a party to pass over land of another.” Black’s Law Dictionary 1326 (6th ed.1990). Since the deed contains no limits on the use of the right-of-way, we apply the rule that “[a] grant in general terms of an easement of way will ordinarily be construed as creating a general right of way capable of use in connection with the dominant tenement for all reasonable purposes.” 3 Herbert Thorndike Tiffany, The Law of Real Property § 803, at 322 (3d ed.l939)(footnote omitted).
We believe it indisputable that use of the right-of-way as a trail is consistent with its essential nature relating to the “passing] over land of another” and is a reasonable use of a general right of way. Accordingly, the scope of the right-of-way in the instant case encompasses use as a hiker/biker trail. It follows from our cases that the fact that a recreational trail may not have been actually contemplated by the parties when the deed was conveyed in 1911 is not outcome determinative. Rather, we assume that the parties anticipated that the use of the right-of-way would conform over time to the reasonable demands of the public. Just like the highway easement in Peddicord lasted “forever,” the deed in this case was made “perpetual,” and although use as a hiker/biker trail “was not actually contemplated by any of the parties to the acquisition and grant, ... it may be said to have been within the legal contemplation of all that it was to be used for all purposes by which the object of its creation, as a public highway, could be promoted.” Peddicord, 34 Md. at 480-81. In other words,
Use of the right-of-way as a hiker/biker trail constitutes a change in instrumentality consistent with the essential purpose anticipated at the time of the original grant in 1911— passage through Silver Spring, Chevy Chase, and Bethesda. The primary change is one of instrumentality from railcars to bikes and walking, and our highway cases make clear that changes in mode of use are presumed to be -within the contemplation of the parties. Indeed, the state legislature has seen fit to define “highway” as including “bicycle and walking paths.” Md.Code (1977, 1993 RepLVoL, 1998 Supp.), Transportation Art., § 8—101(i)(l). See also the cases cited in Part III.B., supra, and Washington Gas Lt. Co., 232 Md. at 551, 194 A.2d at 839 (holding that the replacement of an existing pipe to a larger pipe was within the scope of the easement because the change “involved merely an alteration of the instrumentality of the easement”)(emphasis in original); Tong v. Feldman, 152 Md. 398, 136 A. 822 (1927)(similar holding). As the South Dakota Supreme Court stated, “the Railroad has transferred the right-of-way to the State for use as a public highway. Hikers, bikers, skiers, and snowmobilers will use the right-of-way, and, as such, the right-of-way will continue to be used as a public highway compatible and consistent with its prior use as a public railway.” Barney v. Burlington Northern R. Co., 490 N.W.2d 726, 732 (S.D.1992), cert. denied sub nom. Kaubisch v. South Dakota, 507 U.S. 914, 113 S.Ct. 1265, 122 L.Ed.2d 661 (1993).
D. The Reasonableness of the Burden
We must next consider whether use of the right-of-way as a hiker/biker trail unreasonably increases the bur
“whether the change is so substantial as to result in the creation and substitution of a different servitude from that which previously existed. In other words, if the alteration is merely one of quality and not substance there will be no resulting surcharge to the servient estate.” (Citation omitted).
Washington Gas Lt. Co., 232 Md. at 549,194 A.2d at 638.
It is self-evident that the use of the right-of-way as a transportation corridor for walking, biking, and other transportation purposes, including its possible use in the future for light rail, imposes no new burdens on the servient tenements and does not result in the “substitution of a different servitude from that which previously existed.” Id. The use to which the County proposes to use the right-of-way is reasonable and consistent with a grant of a right-of-way “in general terms.” See 3 Herbert Thorndike Tiffany, The Law of Real Property § 803, at 322 (3d ed.1939). Indeed, “[recreational trail use of the land is compatible and consistent with its prior use as a rail line, and imposes no greater burden on the servient estates.” State by Wash. Wildlife Preservation, 329 N.W.2d at 547.
In comparison to our public highway cases that have permitted a change in use from a highway to a horse or an electric
The fact that the right-of-way may be used for recreational as well as transportation purposes has no bearing on our analysis, since the “recreation” involved—biking and hiking— consists of the enjoyment one may have in transporting oneself. See Webster’s Third New International Dictionary 2430 (Unabridged ed., 1986)(defining “transportation” as involving “travel from one place to another”). Indeed, that hiking and biking may be recreational in addition to fulfilling transportation needs is not all that different from the enjoyment that some derive from driving a car or even riding a train; the enjoyment that some derive from those activities does not detract from their essential character as transportation-related. Indeed, by the very nature of the right-of-way— a confined, narrow strip of land—the “recreational” use is limited to those uses involving transportation itself, including biking, running, and walking, each of which involves moving from one place to another. Cf D.C. Transit I, 259 Md. at 688, 270 A.2d at 800 (observing that the useful purpose of “a strip of land 80 feet wide” is limited); Ma. & Pa. RR., 224 Md. at 36-37, 166 A.2d at 248-50 (making a similar observation).
E. Conclusion
The right-of-way in the instant case is affected by the public interest. That railroad companies are in the nature public service corporations has been a constant theme of statutory and case law, and we have recognized the public nature of such easements in our jurisprudence regarding the scope of public easements well before the conveyance of the deed in the instant case. See Part III.B., supra. The public policies have
Federal and state laws explicitly recognize the value to the general public of railroad rights-of-way. The federal Rails-to~Trails Act, which serves as the impetus for this lawsuit, is an obvious example of the perceived public value of railroad corridors. See 16 U.S.C. § 1247(d); Preseault, 494 U.S. at 18, 130 S.Ct. at 925,108 L.Ed.2d at 17 (quoting H.R. Rep. No. 98-28, at 8 (1983) U.S.Code Cong. & Admin. News 1983 at 112, 119)(upholding the Act as a legitimate exercise of congressional power and observing that “Congress intended ‘to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use’ ”). The Maryland legislature has also recognized the public value of railroad rights-of-way. See Md.Code (1974, 1997 Repl.Vol.) Natural Resources Art., § 5-1010(a)(2)(“Abandoned railroad corridor property is a unique source of land corridors that are, in many cases, suitable for recreational trails.”); Md.Code (1977, 1993 RepLVol.), Transportation Art., § 7-901 (authorizing the state to acquire railroad corridor property). Thus, our holding furthers, rather than frustrates, legitimate state and federal policy interests.
Our conclusion here also is consistent with the decisions of courts in other states that have held that trail use falls within the scope of the right-of-way conveyed to the railroad. As the Supreme Court observed in Preseault, some rights of way “are held as easements that do not even as a matter of state law revert upon interim use as nature trails.” 494 U.S. at 16, 110 S.Ct. at 924, 108 L.Ed.2d at 16 (citation omitted). For example, in State by Wash. Wildlife Preservation, supra, the Minnesota Supreme Court construed a giant of a right-of-way to a railroad that included no express limitations. The court
A different outcome was reached by the Supreme Court of Washington in Lawson, swpra. That court held that a right-of-way conveyed to a railroad reverted to the fee owners when it was conveyed to the local government for use as a recreational trail. The Lawson court’s decision, however, turned on its acceptance of the deeds at issue as being expressly limited to “railroad purposes only.” 730 P.2d at 1312. That court stated: “[W]e hold that a change in use from ‘rails to trails’ constitutes abandonment of an easement which was granted for railroad purposes only.” Lawson, 730 P.2d at 1313 (emphasis added). While appellants allege that the right-of-way in the instant case was for railroad purposes only, as discussed above, the language of the deed simply provides no support for its contention. The deed in this case is similar to the deed construed in State by Wash. Wildlife Preservation, supra, and therefore that case provides the more persuasive authority.
In sum, the deed in this case conveyed the general use of a right-of-way. The grantee railroad is obligated under statutory and common law to operate and use its assets for the furtherance of the general public welfare. This obligation runs to its rail corridors, which, in effect, are public highways that must conform in their use to new modes of transportation so long as they are reasonable and are no more burdensome to the servient estate. Finally, the conversion of a railway used for freight to a footpath is consistent and compatible with the prior railway use. As the Minnesota Supreme Court stated:
“The right-of-way is still being used as a right-of-way for transportation even though abandoned as a railroad right-of-way. Recreational trail use of the land is compatible and consistent with its prior use as a rail line, and imposes no greater burden on the servient estates. The use is a public use, which is consistent with the purpose for which the easement was originally acquired. State and federal stat*157 utes encouraging the conversion of railroad rights-of-way to recreation trails also support our holding.”
State by Wash. Wildlife Preservation, 329 N.W.2d at 547.
IV. ABANDONMENT
The final issue we address is the certified question regarding whether the railroad’s easement has been abandoned. We initially observe that appellants’ arguments on abandonment appear to be predicated on their contention that the scope of the easement was for railroad purposes. The Country Club contends, for example, that various facts show “that the Railroad was not going to be using this property for railroad purposes again.” (Emphasis added). .Along the same lines, the land company contends that the railroad “had no intent to continue railroad use.” (Emphasis added). These arguments of the appellants in part reflect the overlapping nature of the questions of scope and abandonment. As we stated in Peck v. Baltimore County, 286 Md. 368, 410 A.2d 7 (1979):
“The use to which the County proposes to put the land in question is relevant to whether it has an intention to abandon. If it were to be found that the contemplated use were within the scope of the easement this could be evidence of a lack of intention to abandon. If the contemplated use were not within the scope of the easement, then unless it be found that some other permitted use is being made, it is possible that an intention to abandon might be found, although if the contemplated use is found not to be within the scope of the easement this would not necessarily establish an intention to abandon.” (Emphasis in original).
286 Md. at 377-78, 410 A.2d at 11.
As Peck suggests, in the instant case if the scope of the easement were limited to railroad purposes, then an intent to abandon railroad use could indicate an intent to abandon the easement. However, the converse is also true. If the easement is not limited in its scope to railroad purposes, then, in order for there to be an abandonment, the party alleging abandonment must show more than an intent to abandon
“The general rule is that the right and title to a mere easement in land acquired by a quasi-public corporation, either by purchase, condemnation or prescription, for a public purpose is dependent upon the continued use of the property for that purpose, and when such .public use is abandoned the right to hold the land ceases, and the property reverts to its original owner or his successors in title.” (Emphasis in original and added).
224 Md. at 39,166 A.2d at 250.
Since we have held that the scope of the easement permits use of the right-of-way as a trail, the facts indicating that the railroad did not intend to resume rail service prove unhelpful to appellants’ abandonment arguments. We held in Part III that the trail use, in the words of Ma. & Pa. RR. Co., is a “continued use of the property for th[e] purpose” for which it was conveyed, i.e., transit uses. Id. To the extent that appellants’ abandonment arguments rest on their contention that the scope of the easement is limited to railroad purposes, they fail to meet their burden of proving abandonment.
Nevertheless, we will assume, arguendo, that appellants’ allegations that the right-of-way has been abandoned does not hinge upon the issue of the scope of the easement. We therefore begin with an examination of Maryland law on easement abandonment and a description of the federal regulatory scheme, which is crucial to an understanding of the various actions the railroad took in the years immediately preceding its conveyance to the County.
A. State Law “Abandonment” Versus Regulatory “Abandonment”
1.
In Vogler v. Geiss, 51 Md. 407 (1879), our predecessors set forth the standard by which to measure whether an easement has been abandoned. In that case, we said:
*159 “It is now very well settled, by authorities of the highest character, that a party entitled to a right of way or other mere easement in the land of another may abandon and extinguish such right by acts in pais, and without deed or other writing. The act or acts relied on, however, to effect such result, must be of a decisive character; and while a mere declaration of an intention to abandon will not alone be sufficient, the question, whether the act of the party entitled to the easement amounts to an abandonment or not, depends upon the intention with which it was done, and that is a subject for the consideration of the jury. A cesser of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference whatever to time.” (Emphasis in original and citations omitted).
Vogler, 51 Md. at 410. See also D.C. Transit v. State Rds. Comm'n, 265 Md. 622, 627, 290 A.2d 807, 810 (1972)(D.C. Transit //)(“The rule of Vogler has been approved and followed.”); Brooke, supra; 1.44 Acres of Land, 804 F.Supp. at 1069 (quoting Vogler).
Since there is rarely direct evidence of an intent to abandon, the question of abandonment hinges upon the manifestations (or lack thereof) of an intent to abandon, and “the issue in most cases is reduced to the question of what factors or circumstances are sufficient to justify an inference that there existed an intent to abandon.” What constitutes abandonment of a railroad right of way, 95 A.L.R.2d 468, § 2, at 470 (1964). No single factor is usually sufficient to establish the inference of abandonment. Id. Rather, Vogler and its progeny make clear that non-use alone is insufficient to show an intent to abandon; there must be an act or a combination of acts that unequivocally demonstrate an intention to abandon. See Shuggars v. Brake, 248 Md. 38, 46, 234 A.2d 752, 758 (1967)(“An easement may not be lost unless there is some act clearly and unequivocally indicating an intention to abandon it, and mere non-user is not enough.”); Cooper v. Sanford Land Co., 224 Md. 263, 266, 167 A.2d 602, 604 (1961)(“[T]wo ele
In several of our previous cases, we have upheld findings that an easement has been abandoned, concluding that the necessary unequivocal acts were present. For example, in Stewart v. May, 119 Md. 10, 85 A. 957 (1912), we affirmed a finding that an easement had been abandoned when no use had been made of it for “at least twelve years” and, among other factors, the holder of the easement “had built over the [easement] in such way as to make it impossible for them to enjoy [it].” 119 Md. at 19, 85 A. at 960. In Cityco Realty Co. v. Phila., B. & W.R. Co., 158 Md. 221, 148 A. 441 (1930), we concluded that an easement had been abandoned in an action brought to compel the railroad to construct and maintain a farm crossing that had not been used for more than 20 years before the acquisition of land by the plaintiff and where the land had been conveyed without reservation. And in Hagerstown & F. Rwy. Co. v. Grove, 141 Md. 143, 118 A. 167 (1922), we upheld a finding of abandonment after a railroad had removed its tracks from the right-of-way four years after it was constructed and after it had begun using another route.
In deciding the certified question, we therefore must decide whether there has been a sufficiently “decided and unequivocal act of the owner inconsistent with the continued existence of the easement.” Canton, 99 Md. at 218, 57 A. at 639. Before examining the facts to see if any one of them or taken together they are sufficiently decisive to support a
2.
Interstate rail carriers have long been subject to comprehensive federal regulation as common carriers. See Chicago, R.I. & P.R. Co. v. Hardwick Farmers Elev. Co., 226 U.S. 426, 433-35, 33 S.Ct. 174, 174-75, 57 L.Ed. 284, 286-87 (1913). Under the Interstate Commerce Act, the ICC
*163 “The benefit to [the railroad] of the abandonment [should be balanced] against the inconvenience and loss to [the public]. Conversely, the benefits to particular communities and commerce of continued operation must be weighed against the burden thereby imposed upon other commerce.... Whatever the precise nature of these conflicting needs, the determination is made upon a balancing of the respective interests.... In that balancing, the fact of demonstrated prejudice to interstate commerce and the absence of earnings adequate to afford reasonable compensation are, of course, relevant and may often be controlling. But the [A]ct does not make issuance of the [abandonment] certificate dependent upon a specific finding to that effect.”
Colorado v. United States, 271 U.S. 153, 168-69, 46 S.Ct. 452, 456, 70 L.Ed. 878, 885-86 (1926). When the ICC issues an order finding that public convenience and necessity allow a carrier to abandon a line, that order is permissive, not compulsory, and the railroad may choose not to exercise its permission to abandon. See Consolidated Rail Corp. v. Surface Transp. Bd., 93 F.3d 793, 797-99 (D.C.Cir.1996). Moreover, until abandonment has been consummated, the ICC “may at any time on its own initiative” reconsider its grant of permission to abandon if it finds “material error, new evidence, or substantially changed circumstances.” 49 U.S.C. § 10327(g)(1).
Congress enacted the Rails-to-Trails Act in 1983 against this background of federal regulation over the abandonment of railroad rights-of-way. 16 U.S.C. § 1247(d). The Rails-to-Trails Act amended the National Trails System Act by adding to it subsection (d), which in essence provides a third option for railroads in lieu of an application to either abandon the line or discontinue service. That section provides in pertinent part:
“[I]n furtherance of the national policy to preserve established railroad rights-of-way for future reactivation of rail service ... in the case of interim use of any established railroad rights-of-way ... such interim use shall not be treated, for purposes of any law or rule of law, as an*164 abandonment of the use of such rights-of-way for railroad purposes. If a State, political subdivision, or qualified private organization is prepared to assume full responsibility for management of such rights-of-way and for any legal liability arising out of such transfer or use, and for the payment of any and all taxes that may be levied or assessed against such rights-of-way, then the Commission shall impose such terms and conditions as a requirement of any transfer or conveyance for interim use in a manner consistent with this chapter, and shall not permit abandonment or discontinuance inconsistent or disruptive of such use.”10
The Act was the “culmination of congressional efforts to preserve shrinking rail trackage by converting unused rights-of-way to recreational trails.” Preseault, 494 U.S. at 5, 110 S.Ct. at 918, 108 L.Ed.2d at 9. “Congress apparently believed that every line is a potentially valuable national asset that merits preservation even if no future rail use for it is currently foreseeable.” Preseault, 494 U.S. at 19, 110 S.Ct. at 926, 108 L.Ed.2d at 18-19. The statute provides a means by which railroads can escape from the economic burden of maintaining unprofitable railroad lines without loss of the right-of-way, while using those rights-of-way for the public benefit in the interim. Potential interim trail use is considered prior to abandonment of rail lines, and if an agreement for interim trail use is consummated, abandonment is foregone.
The rails-to-trails provisions are triggered only when the railroad files an application with the ICC proposing to abandon the line. See 49 C.F.R. § 1152.29 (requiring the entity interested in acquiring the right-of-way to participate when
If an agreement on trail use is reached with a state or local government or private group, § 1247(d) treats the interim trail use as a discontinuance of service, in which ICC jurisdiction is preserved over the right-of-way, rather than an abandonment that would terminate ICC jurisdiction and cause any right-of-way held as an easement to revert to the owner of the underlying estate in fee simple. According to federal regulations, the issuance of the CITU “[p]ermit[s] the railroad to discontinue service, cancel tariffs, and salvage track and material consistent with interim trail use and rail banking.” 49 C.F.R. § 1152.29(c)(1). Furthermore, “[t]he CITU will indicate that interim trail use is subject to future restoration of rail service.” 49 C.F.R. § 1152.29(c)(2). In several cases, the ICC has ordered that service be restored over rail lines that had previously been converted to trails under 16 U.S.C. § 1247(d). See Norfolk and, Western Railway Company— Abandonment between St. Marys and Minster in Auglaize County, OH, 9 I.C.C.2d 1015, 1017 (1998); Missouri Pacific Railroad Company—Abandonment Exemption—in St. Louis
In addition to the need to comply with federal laws and regulations governing the cessation of railroad service and the potential abandonment of railroad property, Maryland law governs a railroad’s disposition of railroad corridor property that has been abandoned pursuant to the ICC process. Md. Code (1977, 1993 RepLVol.), Transportation Art., § 7-901. Section 7-901 covers “any railroad property owned or maintained by a railroad company ... [that] is or was subject to the Interstate Commerce Commission’s abandonment process.” Section 7-901(c) requires a railroad to notify the state of its intent to dispose of a corridor. That provision states in pertinent part:
“(c) Notice of sale or disposition—Required.—If a railroad company intends to sell or otherwise dispose of any railroad corridor property that is located in this State and for which the company has received permission from the Interstate Commerce Commission or other governmental agency with jurisdiction in the matter to abandon transportation services, the company shall notify the Secretary and the Administration of its intent to sell or otherwise dispose of the property.” (Emphasis in original and added).
The notification provisions of § 7-901 are intended to facilitate the state’s acquisition of abandoned railroad property. See § 7-901(b)(authorizing acquisition of railroad corridor property). See also Md.Code (1974, 1997 RepLVol.), Natural Resources Art., § 5-1010 (declaring Maryland policy of preserving railroad corridors for trail use and authorizing the Department of Natural Resources to acquire rail corridors).
While we have never had to address whether notification under § 7-901 is required when federal regulators certify a rails-to-trails agreement (as opposed to authorizing abandon
B. The Railroad’s Pursuit of Regulatory Abandonment
Turning to the instant case, we first note that the facts alleged to support appellants’ contentions that the easement conveyed by the 1911 deed has been abandoned relate largely to actions taken by the railroad pursuant to the federal regulatory scheme. The appellants emphasize that the railroad’s intent to abandon the Georgetown Branch is demonstrated by the following: the 90% decline in traffic over the years 1969 to 1985; the posting of notices in 1983 declaring that an abandonment application would be filed with the ICC within three years; the discontinuation of service in 1985 due to the need for major repairs on the trestle over Rock Creek after a storm; the B & O Executive Committee’s vote to “abandon or discontinue service” over the Georgetown Branch
The land company concludes on the basis of these facts that “[t]he undisputed evidence ... shows that [the railroad] publicly stated its intention to abandon the Georgetown Branch in 1988, that an internal decision to proceed with abandonment was made in 1984, that the use of the right of way was, in fact, terminated on May 10, 1985 and that [the railroad’s] directors formally adopted a resolution of abandonment on July 22, 1985, more than three years before ... agreeing] to give Montgomery County a quitclaim deed.”
The land company concludes that abandonment occurred in 1985 when service was discontinued because of the need for major bridge repairs. The Country Club argues that the easement “for railroad purposes” was abandoned by April 1986 when the railroad filed its ICC application and that “abandonment certainly did not occur any later than the February 1988 order of the ICC approving the abandonment.” Appellants apparently concede that if the railroad had not been abandoned for purposes of state law by February 1988 (when the ICC authorized abandonment but stayed the effect of its authorization), then the right-of-way was not abandoned under Maryland law when the railroad conveyed the quitclaim deed to Montgomery County in December 1998.
The appellants’ arguments oversimplify the nature of the railroads’ actions. Outside of the decline in use of the line and the decision to forego repairs on the bridge over Rock Creek, which we discuss further below, the acts alleged to support a finding of abandonment of the state law property interest relate primarily to the railroad’s plans to undertake an abandonment proceeding before the ICC. In regard to these facts, the issue seems to be largely one of nomenclature, ie., whether the term “abandonment” in the context of an ICC proceeding can be used synonymously with the state law concept of “abandonment” of an easement. We believe that appellants unnecessarily confuse the state law question by relying on actions taken by the railroads to comply with regulatory
1.
Appellants acknowledge that the state law question of abandonment is distinct from ICC action on abandonment. The land company argues, however, that actions taken pursuant to the federal regulatory regime establish the necessary intent to abandon under state law. For example, the notices posted in 1983 that the line would be the subject of an abandonment proceeding, the internal decisions of the committees of the railroad companies to pursue abandonment in 1984 and 1985, and the filing of the application for abandonment in 1986 are alleged to constitute evidence of abandonment.
Each of these actions, however, is a prerequisite for a railroad wishing to sell its interests in a right-of-way or to participate in a rails-to-trails agreement pursuant to 16 U.S.C. § 1247(d). Federal regulations require a railroad to post a notice on the line informing readers that the line is anticipated to be the subject of an ICC regulatory proceeding. See 49 C.F.R. § 1152.20(a)(3). The corporate resolutions are necessary internal decision-making steps for pursuing regulatory abandonment, and a railroad obviously cannot obtain approval for discontinuance of service or abandonment without filing an application with federal regulators.
Even if we were to conclude that the word “abandon” in the regulatory context could be synonymous with state law abandonment of an easement, the railroad’s application to the ICC made clear that the “[ajpplicants seek to abandon and discontinue service ” over the Georgetown Branch, not their interest
The railroad’s statements and actions are entirely consistent with an intention to sell the right-of-way and to pursue a rails-to-trails agreement pursuant to 16 U.S.C. § 1247(d).
Of course, it is not an impossibility for a railroad to abandon its state law property interest when a trail-use agreement is pursued. But the decisive act required to carry the abandonment proponent’s burden of proof cannot be supplied by acts entirely consistent with the federal regulatory scheme, which precludes such abandonment. Furthermore, if abandonment of the state-law property interest occurs when a trail use agreement is being pursued in compliance with federal law, that abandonment would occur without the federal regulatory approval which, as discussed next, could result in civil and criminal liability.
2.
Appellants’ contention that the right-of-way was abandoned prior to the consummation of the agreement with Montgomery County would require us to conclude that the railroad intended to disobey rather than comply with various provisions of federal and state law. In other words, if it had the intent to abandon its state law property interests prior to ICC action, the railroad would have to also have intended to violate several provisions of federal law, subjecting itself to various criminal and civil sanctions. See 49 U.S.C. §§ 11901, 11906.
The per se ban on abandonment without regulatory approval facilitates other aspects of the federal regulatory regime. Under 49 U.S.C. § 10905, a railroad may not abandon its line immediately on the date which the ICC determines that public convenience and necessity permit abandonment. Rather, abandonment is delayed by at least ten days after notice of the abandonment order is published in the Federal Register to allow any “financially responsible person” to “offer to pay the carrier a subsidy or offer to purchase the line.” 49 U.S.C. § 10905(c)-(d).
In the instant case, after the ICC authorized the railroad to abandon the Georgetown Branch, Laurel Sand & Gravel
In addition to the requirement of entertaining offers of financial assistance, the railroad was subject to the ICC’s broad authority to place conditions on regulatory abandonment. See 49 U.S.C. § 10903(b)(l)(A)(ii)(granting the ICC the power to approve abandonment “with modifications ... [and] conditions that the Commission finds are required by public convenience and necessity”)(emphasis added). Under 49 U.S.C. § 10906, the Commission must make a determination of “whether the rail properties that are involved in the proposed abandonment or discontinuance are suitable for use for public purposes, including highways, other forms of mass transportation, conservation, energy production or transmission, or recreation.” Should the Commission find the rail properties suitable for public purposes, “the properties may be sold, leased, exchanged, or otherwise disposed of only under conditions provided in the order of the Commission.” Id. (emphasis added). Again, if the railroad had abandoned its property interests before the ICC acted pursuant to its abandonment application, it would have been impossible for the railroad to comply with any conditions imposed on the abandonment without being deemed a trespasser on the right-of-
We do not lightly presume, as appellants do, that a person, or in this case a railroad company, acted contrary to explicit legal requirements. “Where an individual proposes to engage in what is otherwise a lawful venture, the presumption is that he will conduct his activities in a proper manner.” Leatherbury v. Gaylord Fuel Corp., 276 Md. 367, 377, 347 A.2d 826, 832 (1975). This is particularly the case where, as here, criminal sanctions may be involved. No evidence in this case would support a finding that the railroad violated or intended to violate the law, and we could not uphold a finding that it took action that would be tantamount to a federal crime and that would expose it to civil liability without substantial evidence that it intended to do so, evidence which is not present here. See also Md. Securities v. U.S. Securities, 122 Md.App. 574, 588, 716 A.2d 290, 297 (1998)(stating presumption that administrative officers “act[] regularly and in a lawful manner”); Valentine v. On Target, 112 Md.App. 679, 692, 686 A.2d 636, 642 (1996)(purchasers of firearms presumed to have made purchase for legitimate purposes), aff'd, 353 Md. 544, 727 A.2d 947 (1999). The stipulated facts all indicate that the railroad was making every effort to comply with the law. Yet, a finding that the railroad had abandoned its state law property interest in the right-of-way would be tantamount to a finding that the railroad intended to violate the law, thereby exposing itself to criminal and civil sanctions. This we decline to do.
3.
If we were to accept the appellants’ efforts to use the railroad’s acts taken in pursuit of federal regulatory approval for “abandonment” as the decisive acts necessary to demonstrate an intent to abandon an easement under state law, it
C. The Insufficiency of Any Other Potential Evidence of Abandonment
We must next determine whether the remaining actions of the railroad alleged to constitute abandonment supply sufficient evidence to support a finding of an intent to abandon the easement. Those acts include the railroad’s decisions to fore-go bridge repairs in 1984 and the subsequent discontinuance of use of the line after a storm caused major damage to the bridge in 1985. Even assuming that the forbearance of repairs combined with the nonuse of the right-of-way constitute more than evidence of mere nonuse, we conclude that they are insufficient to meet appellants’ initial burden of proving a clear and unequivocal act that is necessary to support a finding of an intent to abandon.
Our conclusion is dictated by our previous cases concerning abandonment of an easement by a railroad. In Canton,
Unlike Canton, in the instant case, the evidence is undisputed that the railroad actually used the right-of-way for some 90 years until 1985, when the need for major bridge repairs made continued use unfeasible. It is also undisputed that about the time the railroad began taking steps toward obtaining permission from the ICC for regulatory abandonment, a management committee of the railroad had agreed to pursue negotiations with Montgomery County for transfer of the right-of-way. In Canton, the railroad made an affirmative decision to remove
Furthermore, a railroad’s participation in a rails-to-trails program implies that it does not intend to fully abandon the line, but rather to retain the right-of-way while permitting interim trail use. Birt, 90 F.3d at 587; KCT Railway Corporation—Abandonment Exemption—In Franklin, Anderson, and Allen Counties, KS, 7 I.C.C.2d 1035, 1036 (1991)(observ-ing that railroad’s interest in negotiating trail agreement is “inconsistent with clear intent to consummate the abandonment and implies that KCT may be interested in preserving the right-of-way for the future restoration of rail service”). The facts of this case closely resemble those in Birt. In that case, the landowner, Birt, argued that the railroad had abandoned its property interest in the right-of-way prior to the
“The Commission has listed several concrete actions which may indicate an intent to abandon: cessation of operations cancellation of tariffs, salvage of the track and track materials, and relinquishment of control over the right-of-way. These factors, however, are equally consistent with temporary cessation of operations (‘discontinuance’), which permits a rails-to-trails conversion but does not effect a permanent abandonment. Thus, to determine whether the railroad’s conduct is abandonment or mere discontinuance, we must often look to additional behavior which signifies one or the other.... ” (Citations omitted).
Birt, 90 F.3d at 585-86. The court also rejected Birt’s contention that abandonment occurred as a result of two letters written by the railroad which explicitly conceded that the right-of-way “was abandoned.” Birt, 90 F.3d at 586. Fewer facts in the instant case are available for reaching a conclusion that the right-of-way was abandoned than in Birt. Appellants have produced no letter from the railroad declaring that the right-of-way has been abandoned.
That the right-of-way could not have been abandoned is further evidenced by the federal requirement that when a right-of-way is converted to trail use under 16 U.S.C. § 1247(d), regulatory abandonment is foregone and the ICC’s approval is expressly made “subject to the future restoration of rail service.” 49 C.F.R. § 1152.29(e)(2)(requiring the CITU to state that “interim trail use is subject to future restoration of rail service”); id. at (c)(3)(stating that if a railroad seeks to reinstitute service over the right-of-way, and federal regulators grant permission to do so, “the CITU will be vacated accordingly.” As the ICC has stated,
*180 “By consenting to the issuance of a CITU/NITU, a carrier agrees to forgo consummating the authorized or exempted abandonment. As a consequence, its common carrier obligation does not terminate. Instead, the abandoning carrier retains a residual common earner obligation and transfers the right-of-way to the trail user, subject to the stipulation that the rail corridor remain available for the reinstitution of rail service. A carrier’s decision to agree to a CITU/ NITU is totally voluntary and, as far as the Commission is concerned, may be withdrawn at any time the abandoning carrier wishes to reinstitute rail operations over the right-of-way.” (Emphasis added.))
Norfolk & Western Railway Company—Abandonment between St. Marys and Minster in Auglaize County, OH, 9 I.C.C.2d 1015,1018 (1993).
Thus, upon the consummation of a rails-to-trails agreement, the right-of-way is placed in a national “railbank,” and, at a later date, federal regulators may permit removal of the corridor from the railbank in order to reactivate service. That service may be reactivated on the right-of-way supports our conclusion that the right-of-way has not been abandoned, for it would be difficult, if not virtually impossible, to reactivate service on an abandoned line.
Our decision avoids frustrating the federal and state public policies of promoting the conversion of railroad rights-of-way for other transportation and recreational uses. Were we to hold otherwise, it would be hard to imagine a situation in which a railroad pursuing a rails-to-trails agreement would not have abandoned its property interest, since there must be some point at which a railroad comports itself differently in anticipation of a rails-to-trails agreement than if it were to continue to operate the line. Conversely, if we were to hold that the failure to repair the bridge over Rock Creek were
We do not intend to intimate that a railroad may never abandon an easement under Maryland law prior to federal regulatory approval of abandonment; rather, we merely hold that under the circumstances of this case, where the actions supporting the alleged abandonment coincide in time and in function with the railroad’s efforts to comply with federal law and where there is no suggestion or reason to conclude that the railroad intended to not comply with federal law, as a matter of Maryland law, the facts are not sufficient to meet the burden of showing that abandonment occurred prior to the railroad’s conveyance of the quitclaim deed to the County. While the question of abandonment of an easement is to be decided as a matter of Maryland property law, the question should not be resolved in a vacuum in which the federal regulatory scheme is ignored.
In sum, we hold that when a railroad takes actions pursuant to federal regulation that are wholly consistent with an intent to retain the property interest, in this case in order to pursue an interim trail use agreement, those actions alone cannot supply the decisive and unequivocal act evidencing an intent to abandon. It follows that in the instant case, where the appellants have not pointed to any other actions sufficient
V. CONCLUSION
The first certified question asks whether the 1911 deed to the railroad from the land company conveyed a fee simple absolute or an easement. We have held that it conveyed an easement. The plain text of the instrument states that a right-of-way was conveyed and there is no indication that anything more than a right of passage was intended, particularly in light of the deed’s separate conveyance in fee simple of the land on which a passenger station was to be located. This conclusion is confirmed by the circumstances of the conveyance, including the existing railway and the nominal consideration given by the railroad in light of its contractual obligations.
Second, we addressed whether the use of the right-of-way as a hiker/biker trail is within the scope of the easement. Based on the absence of limitations on use of the right-of-way in the language of the deed, we concluded that the use is within the legally anticipated scope of the 1911 deed, in light of the railroad’s status as a highly regulated public service corporation. The deed anticipated a means of transit over the right-of-way, and the trail use is consistent with what was anticipated. Moreover, the use of the right-of-way as a trail poses no unreasonable burden on the servient estate; indeed, the use is less burdensome than freight railroad use.
The third certified question asked us to examine whether the railroad had abandoned its state law property interest in the easement. The resolution of the abandonment question required that we assess the federal regulatory framework covering railroad “abandonment,” which is distinct from the property law concept of abandonment of an easement. We concluded that appellants failed to meet their burden of alleging a sufficiently decisive and unequivocal act evidencing an
CERTIFIED QUESTIONS ANSWERED AS HEREIN SET FORTH. COSTS IN THIS COURT TO BE EVENLY DIVIDED.
. The Fifth Amendment of the United States Constitution states in pertinent part: “nor shall private property be taken for public use, without just compensation”.
. The Metropolitan Southern Railroad Company (MSRC) was a subsidiary of the B & O Railroad, which later became a subsidiary of the CSX Corporation. Unless otherwise indicated, for purposes of this opinion we shall refer to the MSRC, B & O, or CSX simply as the “railroad.”
. In this opinion, we shall cite 10 federal laws and regulations existing in 1988, when the Interstate Commerce Commission (ICC) issued its order and when the right-of-way was conveyed to Monlgomery County.
. See, e.g., City of Pori Isabel v. Missouri Pacific. R. Co., 729 S.W.2d 939 (Tex.Ct.App.1987)(holding that deed to railroad "in fee simple” of "the right of way” conveyed an easement only); Hartman v. J. & A. Development Co., 672 S.W.2d 364 (Mo.Ct.App.1984)(hoIding that a deed of a right-of-way conveyed an easement rather ihan a fee because use of term right-of-way and road are almost "conclusive indications” that the interest conveyed is an easement); Fischer v. Trentmann, 672 S.W.2d 139 (Mo.Ct.App.1984)(similar holding); Pollnow v. State Dept. of Natural Resources, 88 Wis.2d 350, 276 N.W.2d 738, 744 (1979)(quoting Williams v. Western Union Railway Company, 50 Wis. 71, 5 N.W. 482,
. In pertinent part, the 1891 agreement between the railroad and the land company stated:
“the said Chevy Chase Land Company in consideration of the agreement of the said railroad company hereinafter set forth, agrees to donate and convey to the said railroad company a right of way 100 feet wide....
[a metes and bounds description] * * *
the above described parcel being a strip of land fifty feet wide on each side of the centre line of the [MSRC] through the lands of [the land company].
And the said Land Company ... further agrees to donate and convey to the said Railroad Company for the purposes of a passenger and freight depot, and uses incident thereto, including side tracking, the following described parcel of land [a metes and bounds description].”
. We decline to entertain the Country Club’s contention that it is the owner in fee simple absolute of a portion of the right-of-way that bisects two parcels of land conveyed to the Country Club by the land company in 1909. The Country Club did not argue before the United States Court of Federal Claims (CFC) that it owned in fee simple the segment now claimed. Rather, it contended that it had ownership ”[p]ursuant
Furthermore, even if we were to entertain the Country Club’s contention, the Country Club would face a difficult if not insurmountable hurdle in attempting to overcome the fact that the deed under which it claims title contains a metes and bounds description of the land that does not include any portions of the right-of-way at issue here. Even if we agreed with its contention, the Country Club’s claim would ultimately be unsuccessful because our conclusions in Parts III and IV that the trail use is within the scope of the easement which has not been abandoned.
We therefore decline to exercise our discretion under Maryland Code (1974, 1998 Repl.Vol.), Courts & Judicial Proceedings Article, § 12-604, to rephrase the certified question to entertain the Country Club's argument that the 1909 deed conveyed to it a portion of the right-of-way in fee simple absolute.
. We disagree with the land company that our decisions in East Wash. Railway v. Brooke, 244 Md. 287, 223 A.2d 599 (1966), D.C. Transit Systems v. S.R. C., 259 Md. 675, 270 A.2d 793 (1970)(D.C. Transit I) and D.C. Transit v. State Rds. Comm'n, 265 Md. 622, 290 A.2d 807 (1972)(Z>.C. Transit II), that hold that the conveyance of a "right of way” to a railroad automatically indicates that the easement is restricted to railroad purposes only. In Brooke, in quoting the granting clause we emphasized (by use of italics) the language "for railroad purposes.” 244 Md. at 294, 223 A.2d at 603. The deed in the instant case includes no such limiting language. Moreover, the issue decided in that case was not related to the scope of the easement, but whether a fee simple or an easement had been conveyed. In D.C. Transit I and D.C. Transit II the scope of the easement was not at issue. Rather, D.C. Transit I raised the issue of whether a grant to a railroad conveyed a fee simple or easement in the land, and D.C. Transit II involved whether the easement had been abandoned. While there is some language observing that the use of the easement was for a railroad, whether the use was so limited was not raised. Regardless, the deed in issue in the D.C. Transit cases expressly limited the easement to the purposes of the railroad’s charter. We therefore disagree with the land company as to the applicability of these cases.
. An easement obtained through prescriptive use, however, may be abandoned through non-use alone, if the non-use lasts the prescriptive period. See Browne v. M.E. Church, 37 Md. 108, 119 (1872)("[Since] the right ... had been acquired ... by adverse user, for twenty years[,] its non-user for a like space of time, would extinguish any right they acquired ... because such cesser to use the road, would afford legitimate presumption of a release of the right.” (Emphasis in original.)); Wright v. Freeman, 5 H. & J. 467, 476-77 (1823)("adversaiy user of a right of a way over the lands of another for twenty years, shall be a sufficient foundation to presume that the right originated in grant, it must follow, upon every principle, that the non-user of the right may be extinguished”); Cherry v. Stein, 11 Md. 1, 21-22 (1858)(discussing holding in Wright v. Freeman, supra, that "the adversary user of a right of way over the lands of another for twenty years, would be a sufficient foundation to presume, that the right originated in a grant; and consequently, for the purpose of quieting possession, it must follow that
. On January 1, 1996, the ICC ceased to exist and its duties were transferred to the Surface Transportation Board (STB), in the Department of Transportation. Act of Dec. 29, 1995, Pub.L. No. 104-88, 1995 U.S.C.C.A.N. (109 Stat.) 803. Since the ‘‘ICC Termination Act of 1995” had not taken effect at the times relevant to this decision, we shall refer only to the ICC, although the ICC’s powers now reside with the STB.
. The Fifth Amendment takings claim arises out of the 16 U.S.C. § 1247(d) language declaring that "interim use of any established railroad rights-of-way ... shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes." In Preseault v. ICC, 494 U.S. 1, 16-17, 110 S.Ct. 914, 924, 108 L.Ed.2d 1, 17 (1990), the Supreme Court held that, if the interim trail use agreement results in a taking of a state property interest, the owner of the taken property has a claim under the Tucker Act, 28 U.S.C. § 1491(a)(l)(1994, Supp. II 1996). It is the Tucker Act claim that the appellants are pursuing in this case.
. More accurately, the ICC will issue either a Notice of Interim Trail Use (NITU) or a Certificate of Interim Trail Use or Abandonment (CITU), depending on the nature of the abandonment proceedings; the difference is not relevant for our purposes since their effect is the same. In the instant case, the ICC issued a CITU.
. Furthermore, the application for regulatory abandonment should be read in the context of the statutory language requiring a railroad intending a sale pursuant to a rails-to-trails agreement to carry the burden of showing that abandonment is consistent with the public convenience and necessity standard. 49 U.S.C. § 10904(d)(l)("[T]he burden is on the person applying for the certificate [of abandonment or discontinuance] to prove that the present or future public convenience and necessity require or permit the abandonment or discontinuance.”) Thus, in an apparent effort to meet the burden, the railroad explained that the line "could not be operated profitably by B & O even in the event that rehabilitation were performed.” As noted in the main text, to read into the railroad’s effort to meet its burden under federal regulatory law an intent to abandon its state law property interest in the right-of-way would create an irreconcilable dilemma for any railroad wishing to pursue an agreement under 16 U.S.C. § 1247(d).
. 49 U S.C. § 11901 provides in pertinent part:
"(a) Except as otherwise provided in this section, a common carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission ... an officer or agent of that carrier or a receiver, trustee, lessee, or agent of one of them, knowingly violating an order of the Commission under this subtide is liable to the United States Government for a civil penalty of $5,000 for each violation. Liability under this subsection is incurred for each distinct violation. A separate violation occurs for each day the violation continues.”
49 U.S.C. § 11914 provides in pertinent part:
“(a) When another criminal penalty is not provided under this chapter, a common carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of this title, and when that carrier is a corporation, a director or officer of the corporation, or a receiver, trustee, lessee, or*172 person acting for or employed by the corporation that, alone or with another person, willfully violates this subtitle or an order prescribed under this subtitle, shall be fined not more than $5,000. However, if the violation is for discrimination in rates charged for transportation, the person may be imprisoned for not more than 2 years in addition to being fined under this subsection. A separate violation occurs each day a violation of section 11321(a) or 11342 of this title continues.”
. 49 U.S.C. § 10905 provides in pertinent part:
"(c) When the Commission finds under section 10903 of this title that the public convenience and necessity require or permit abandonment or discontinuance of a particular railroad line, it shall, concurrently with service of the decision upon the parties, publish the finding in*173 the Federal Register. Within 10 days following the publication, any person may offer to pay the carrier a subsidy or offer to purchase the line. Such offer shall be filed concurrently with the Commission....
(d) If, within 15 days after the publication required in subsection (c) of this section, the Commission finds that—
(1) a financially responsible person (including a government authority) has offered financial assistance to enable the rail transportation to be continued over that part of the railroad line to be abandoned or over which all rail transportation is to be discontinued; and
(2) it is likely that that assistance would be equal to—
(A) the difference between the revenues attributable to that part of the railroad line and the avoidable cost of providing rail freight transportation on the line, plus a reasonable return on the value of the !ine; or
(B) the acquisition cost of that part of the railroad line;
the Commission shall postpone the issuance of a certificate authorizing abandonment or discontinuance in accordance with subsections
(e) and (f) of this section.
(e) If the carrier and a person offering financial assistance enter into an agreement which will provide continued rail service, the Commission shall postpone the issuance of the certificate for so long as the agreement, or an extension or modification of the agreement, is in effect. If (he carrier and a person offering to purchase a line enter into an agreement which will provide continued rail service, the Commission shall approve the transaction and dismiss the application for abandonment or discontinuance. If the carrier and a financially responsible person (including a government authority) fail to agree on the amount or terms of the subsidy or purchase, either party may, within 30 days after the offer is made, request, that the Commission establish the conditions and amount of compensation. If no agreement is reached within 30 days after the offer is made and neither party requests that the Commission establish the conditions and amount of compensation during that same period, the Commission shall immediately issue a certificate authorizing the abandonment or discontinuance.”
. During the course of litigation, however, appellees produced a letter written by the railroad in 1988 expressly stating that the right-of-way had not been abandoned.
. Since the right-of-way was expressly made transferable to "successors and assigns,” whether service would be reactivated by the railroad, the County, or a future successor in interest has no bearing on our conclusion.
. Indeed, the CFC implicitly recognized the illogic of ignoring the comprehensive regulation scheme in determining the state law question of abandonment of an easement. In finding that the easement had been abandoned when the ICC issued its order of February 25, 1988, the court discussed at length an early decision of this court, Benson v. Public Service Comm., 141 Md. 398, 118 A. 852 (1922), relating to state regulatory approval of abandonment of rail service. Benson involved a suit by citizens against the Maryland Public Service Commission (PSC) contesting the agency's authorization of abandonment of the railroad line. In that case, we upheld the PSC’s abandonment order based on its uneconomical operation, declaring that “the only safe criterion [for evaluating whether to abandon service] ... is ... the measure of which is the ability of the [railroad] from its earnings to meet its operating expenses and fixed charges.” Benson, 141 Md. at 404, 118 A. at 854. The CFC concluded that the PSC standard is not as rigorous as the ICC’s "public convenience” standard and, since the Februaiy 1988 ICC order concluded that abandonment was appropriate and conditioned abandonment only for inquity into a Rails-lo-Trails agreement, that the order "provided ... the rough equivalent of the PSC abandonment authorization.” Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 580.