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Date: 11-21-2017

Case Style:


Case Number: 14-397L, 15-194L

Judge: Mary Ellen Coster Williams

Court: United States Court of Federal Claims

Plaintiff's Attorney: href="https://www.arentfox.com/people/lindsay-brinton" target="_new">


Meghan S. Largent

Defendant's Attorney: John C. Cruden and Stephen Finn, United States Department of Justice Environment & Natural Resources Division, Natural Resources Section, 601 D Street, N.W., Washington, D.C. 20004, for Defendant. Craig Keats and Evelyn Kitay, Surface Transportation Board Office of the General Counsel

Description: In September 1889, the Georgia legislature granted the Eatonton & Machen Railroad Company a charter to “construct, lay out, maintain, equip and operate a line of railroad from the town of Eatonton, in Putnam county, to the town of Machen, in Jasper county, in this State . . . .” Pls.’ Mot. Summ. J. App. C, at C-4. The railroad’s charter incorporated Section 1689(l) of the Georgia Code, stating:
That section 1689(l) of the Code of this State, concerning the acquisition of rightsof-way and other property for the construction of railroads, and setting forth the methods of proceeding to condemn such property in certain cases therein stated, be, and the same is hereby, made a part of this charter and incorporated into the same, and all powers, rights, privileges and franchises set forth and described in said section may be exercised by [the Eatonton & Machen Railroad Company] in the matter therein set forth.
A month later in October 1889, the Georgia legislature passed an Act to change the name of the Eatonton & Machen Railroad Company to the Middle Georgia and Atlantic Railway Company (“MGAR”). Id. at C-11. After receiving its charter, MGAR “assembled its rail system between 1890 and 1894.” Second Am. Compl. Ex. 1, at 17.3 The railroad line between Eatonton and Machen, Georgia opened in 1891, and an extension from Machen to Covington was completed in 1893. Id. To construct this rail line, MGAR obtained property rights from local landowners. MGAR used a standard form, labeled “Right of Way,” for these conveyances, with blank spaces to be filled in by the landowners. Plaintiffs refer to the form as a “Right-of-Way deed,” Defendant refers to it as an “1890-1894 Deed,” and the Court refers to it as the “MGAR form deed.”
In December 1896, the Central of Georgia Railroad Company (“CGA”) purchased MGAR in a foreclosure sale. Id. In 1899, CGA extended the line to Porterdale to serve a textile mill and obtained property rights from local landowners for this construction. CGA used its own preprinted forms for these conveyances, with blank spaces to be filled in by the landowners.

2 This background is derived from the parties’ pleadings and attachments to their motion papers.

3 Exhibit 1 is the “Combined Environmental and Historic Report” that Central of Georgia Railroad Company submitted to the Surface Transportation Board on April 24, 2013.


Southern Railway Company (“SR”) purchased CGA on June 17, 1963. Id. In 1971, SR merged CGA with two other railroad companies, the Savannah Atlanta Railway and the Wrightsville and Tennille Railroad, to form the Central of Georgia Railroad Company. Id. Norfolk Southern Corporation acquired control of SR on June 1, 1982. Id. In 1989, SR leased the former MGAR line to the Great Walton Railroad. This line included the segment at issue. Id. at 18. In December 1990, SR changed its name to Norfolk Southern Railway Company. Id. at 17. In 2010, Norfolk Southern Railway Company and Great Walton Railroad “each obtained regulatory authority to discontinue service over the Newborn-Covington line segment . . . .” Id. at 18. According to Central of Georgia Railroad Company’s Environmental and Historic Report, this line has been inactive since 2010, when rail service was “legally discontinued.” Id. at 15.
The Railroad’s Petition to “Abandon” the Corridor
This case concerns 14.9 miles of rail line between Mileposts E 65.80 near Newborn and E 80.70 near Covington in Newton County, Georgia. Id. at 17. On July 1, 2013, Central of Georgia Railroad Company, as a wholly-owned subsidiary of Norfolk Southern Railway Company, filed “a verified notice of exemption” with the STB “to abandon 14.90 miles of rail line” between milepost E 65.80 and milepost E 80.70. Id. Ex. 2, at 48.
On July 26, 2013, the Newton County Trail Path Foundation filed a request that the STB issue a Public Use Condition and a Certificate or Notice of Interim Trail Use rather than an outright abandonment authorization for this section of rail line. Id. Ex. 3, at 1. In its filing with the STB, the Trail Path Foundation described the location of milepost E 65.80 as “the point of the line’s crossing of Route 229 in Newborn” and that of Milepost 80.70 as “near the intersection of Washington Street, SW, and Turner Lake Road, SW, in Covington.” Id. Ex. 3, at 2.
On August 19, 2013, the STB issued a NITU and Public Use Condition. Id. Ex. 4. The NITU provided a 180-day period for Central of Georgia Railroad Company and the Newton County Trail Path Foundation to negotiate an interim trail use agreement for the use of the line as a trail. Id. Ex. 4, at 2. The NITU also stated that interim trail use/railbanking was subject to “possible future reconstruction and reactivation of the right-of-way for rail service . . . .” Id. at 4. The STB extended the NITU several times in 2015 and 2016. Pls.’ Not. (ECF No. 61); Def.’s Not. (ECF No. 83). The NITU was set to expire on January 30, 2017, but on September 28, 2016, the Central of Georgia Railroad Company and the Trail Path Foundation entered into a Lease Agreement for interim trail use and railbanking for the entire line. Pls.’ Not. Ex. A (ECF No. 95).
On October 14, 2016, CGA, in a letter to the STB, requested that a correction to the NITU be made, explaining that CGA determined that the map attached to its July 1, 2013 Notice of Exemption “did not properly depict the precise location of milepost E-65.80.” Def.’s Not. Ex. A (ECF No. 96). Specifically, CGA stated that the description of milepost E 65.80 as “the point of the Line’s crossing of Route 229 in Newborn, Georgia” was incorrect in that milepost E 65.80 “properly corresponds to a point just east of the Ziegler Road crossing west of downtown Newborn, Newton County, Georgia.” Id.
On November 18, 2016, the STB issued a decision accepting CGA’s and Newton Trail’s revised map and modifying the NITU to correct the reference to milepost E 65.80. Id. Ex. C.


The Landowners4
Plaintiffs claim that they acquired their parcels prior to the STB’s issuance of the NITU on August 19, 2013, and that they owned property abutting and underlying the railroad corridor at the time of the NITU. Plaintiffs claim their property interests in this railway corridor on the basis of 19th century deeds, and Defendant posits that a somewhat different list of 19th century deeds is controlling. The parties agree that the railroad traversed an area of land, referred to as the “Samuel Johnson Condemnation,” without obtaining any deed. Three Plaintiffs own property covered, in whole or in part, by the Samuel Johnson Condemnation.
Summary Judgment Standard
Plaintiffs and Defendant move for summary judgment on the issue of liability. Summary judgment is appropriate where there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute is one that “may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A fact is material if it “might affect the outcome of the suit.” Id. at 248. The moving party bears the burden of establishing the absence of any material fact, and any doubt over factual disputes will be resolved in favor of the nonmoving party. Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Once this burden is met, the onus shifts to the nonmovant to present evidence from which a finder of fact might rule in his favor. If he does so, there is a genuine issue of fact that requires a trial. Liberty Lobby, 477 U.S. at 257.
When considering a motion for summary judgment, a court does not weigh each side’s evidence, but views the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). When opposing parties both move for summary judgment, “the court must evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Mingus Constructors, 812 F.2d at 1391. In adjudicating a motion for summary judgment, “‘the Court may neither make credibility determinations nor weigh the evidence and seek to determine the truth of the matter. Further, summary judgment is inappropriate if the factual record is insufficient to allow the Court to determine the salient legal issues.’” Nacchio v. United States, 115 Fed. Cl. 195, 200 (2014), aff’d in part, rev’d in part on other grounds and remanded, 824 F.3d 1370 (Fed. Cir. 2016) (quoting Mansfield v. United States, 71 Fed. Cl. 687, 693 (2006)). Cross-motions for summary judgment “are not an admission that no material facts remain at issue,” since “the separate summary judgment motions of each party may focus on different legal principles” and rely on different sets

4 On October 16, 2015, the Court consolidated this case with Guenther, et al. v. United States, No. 15-194L. The Guenther plaintiffs are a group of landowners in Newton County, Georgia, whose takings claims arise out of the same August 19, 2013 NITU. However, because the cases were consolidated after the Jackson plaintiffs filed their summary judgment motion, the Guenther plaintiffs’ claims are not the subject of the cross-motions for summary judgment before the Court.


of facts. Massey v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997) (citing United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978)).
Takings Claims and the Trails Act
Congress enacted the Trails Act to preserve shrinking rail trackage by converting unused rights-of-way to recreational trails. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5 (1990) (“Preseault I”); see also 16 U.S.C. § 1241 et seq. (2016). The operation of the Trails Act is subject to the Fifth Amendment to the United States Constitution, which provides that private property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V. Accordingly, when private property interests are taken by the Government pursuant to the Trails Act, the property owners are entitled to just compensation. See Preseault I, 494 U.S. at 13. Because property rights arise under state law, Georgia law governs whether the landowners in this case have a compensable property interest. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984) (citing Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)); Preseault I, 494 U.S. at 20–25 (O’Connor, J., concurring).
In a rails-to-trails case, a taking, if any, occurs when “state law reversionary interests are effectively eliminated in connection with a conversion of a railroad right-of-way to trail use.” Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004). The Trails Act prevents a common law abandonment of the railroad right-of-way from being effected, thus precluding state law reversionary interests from vesting. Id. at 1229. Stated in traditional property law parlance, upon abandonment or termination of a railroad’s easement, “the burden of the easement would simply be extinguished, and the landowner’s property would be held free and clear of any such burden.” Toews v. United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004). By preventing the abandonment and concomitant restoration of a fee simple unburdened by the easement, the Trails Act effects a taking. See Barclay v. United States, 443 F.3d 1368, 1371 (Fed. Cir. 2006).
As the Federal Circuit has explained:
Abandonment is suspended and the reversionary interest is blocked “when the railroad and trail operator communicate to the STB their intention to negotiate a trail use agreement and the agency issues an NITU that operates to preclude abandonment under section 8(d)” of the Trails Act. We concluded that “[t]he issuance of the NITU is the only government action in the railbanking process that operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right of way.” Thus, a Trails Act taking begins and a takings claim accrues, if at all, on issuance of the NITU.
Id. at 1373 (quoting Caldwell, 391 F.3d at 1233-34) (alteration and emphasis in original) (internal citations omitted). If standard abandonment had occurred under 49 U.S.C. § 10903, the railroad, as the owner of the servient estate, would not retain any property interest in the right-of-way, and that property interest would revert to the dominant landowner. Id. at 1371. Thus, the Trails Act, in preventing this reversion, effects a taking. See id. In another sense, the taking occurs when the Government, pursuant to the Trails Act, creates a new easement for a new use over land that was encumbered by an easement limited to railroad purposes. See Preseault v. United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (“Preseault II”) (describing the conversion of a railroad easement to


a recreational trail as “a new easement for [a] new use”). The statutory imposition of this second easement - - which otherwise had not been granted - - is a taking. Id.
Plaintiffs’ Ownership Interests at the Time of the Issuance of the NITU
In any takings case, only persons with valid property interests at the time of the taking are entitled to compensation. Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001). A claimant must prove ownership in the property right that was allegedly taken when the claim accrued. United States v. Dow, 357 U.S. 17, 20-21 (1958). The Federal Circuit has made clear that “[i]t is plaintiffs’ burden to establish cognizable property interests for purposes of their takings . . . claims.” Klamath Irrigation Dist. v. United States, 635 F.3d 505, 519 n.12 (Fed. Cir. 2011) (internal citations omitted).
Each of the 47 Plaintiffs claims at least one property interest in land abutting and underlying the railway, and some Plaintiffs allege multiple property interests. Throughout their briefing, Plaintiffs and Defendant used different numbering systems to identify Plaintiffs’ claims for individual parcels. For ease of reference, the Court adopts Plaintiffs’ numbering system as used in the parties’ spreadsheet. Pls.’ Not. Ex. 1 (ECF No. 67). Plaintiffs and their respective claims are listed in Appendix A.
Defendant disputes the claimed location of eight of Plaintiffs’ parcels, arguing that those parcels are not adjacent to and underlying the railroad corridor. Def.’s Mot. Summ J. 34-36. The owners of these eight parcels are Louise Sanford, Gloria J. Jackson, Betty Walton, GA Building Authority, Leonard D. and Argie Hardeman, Randall and Katheryn Smith, Miller Property and Renovation, LLC, and Greyland Real Estate Investments Inc.5
Plaintiff Walton’s Property is Located Outside the Boundaries of the NITU
In supplemental briefing, Plaintiffs conceded that Plaintiff Betty Walton does not own property within the scope of the NITU. Pls.’ Resp. Ex. 1 (ECF No. 67); Joint Resp. App. A, at 21 (ECF No. 109). Plaintiffs propose voluntary dismissal without prejudice as to this claim, but Defendant asks for summary judgment. Joint Resp. App. A, at 21 (ECF No. 109). To establish a taking, a plaintiff must first “identif[y] a cognizable Fifth Amendment property interest that is asserted to be the subject of the taking.” Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1348 (Fed. Cir. 2013). Because Plaintiff Walton by her own admission does not possess a cognizable property interest in land allegedly taken, entry of judgment in Defendant’s favor is warranted, not a voluntary dismissal that might permit this Plaintiff to again raise such claim. See Barlow v. United States, 123 Fed. Cl. 186, 199-200 (2015) (granting defendant summary judgment where plaintiffs provided no conveying instruments to show ownership in the subject parcels at the time the NITU was issued); Thomas v. United States, 106 Fed. Cl. 467, 477 (2012) (granting defendant summary judgment where plaintiffs did not own parcels adjacent to the rail corridor).

5 In an order dated August 30, 2017, this Court denied the parties’ cross-motions for summary judgment as to Plaintiffs Hardeman, Jackson, GA Building Authority, and Sanford in conjunction with ruling on Plaintiffs’ motion to strike deposition testimony. Order 7 (ECF No. 131). The Court found that factual issues remained and that the record required further development on whether these Plaintiffs had suffered a temporary taking. Id.


As such, the Court grants summary judgment in favor of Defendant on the claim of Betty Walton (Claim No. 274).
Parcels That May Not Underlie or Abut the Railway Corridor
The Property of Randall and Katheryn P. Smith
Plaintiffs assert that the parcel owned by the Smith Plaintiffs (Claim No. 155) abuts both the railroad corridor and East End Road, which Plaintiffs argue “is within the right-of-way.” Pls.’ Resp. 5 (ECF No. 67). Plaintiffs provide the following map in support of their claim and represent that the shaded area marked “155” is the Smiths’ parcel:

The parties’ maps depict conflicting locations of the Smiths’ property vis-à-vis the railway corridor. Whether any portion of the Smith Plaintiffs’ parcel No. 155 abuts and underlies the railway corridor and whether East End Road is within the railroad corridor cannot be resolved on the basis of this record. The Court requires evidence on the preparation and interpretation of these conflicting maps. In the event East End Road is determined to be located within the railroad corridor, facts addressing the legal import of this road on Plaintiffs’ property rights may also be necessary to determine liability.


The Property of Miller Property and Renovation
Plaintiffs argue that the parcel owned by Plaintiff Miller Property and Renovation (“Miller”), Claim No. 60, abuts the railroad corridor “at the intersection of the right-of-way with Mill Street,” giving rise to a taking. Pls.’ Resp. 2 (ECF No. 67). Plaintiffs rely on the following map of the Miller property in relation to the right of way and represent that the rectangular area marked “60” is the Miller parcel:

Defendant argues that to the extent that this parcel touches the rail corridor, the “only potential property underlying the rail corridor extending from the parcel would fall under a street crossing [Mill Street] that is claimed by possessory title, i.e., adverse possession.” Def.’s Resp. 6 (ECF No. 74). Defendant states that this crossing was claimed by possession over 100 years ago


and still is used as a public road today. Id.; see also Ga. Code Ann. § 44-5-160 (2017) (“Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by law.”); Ga. Code Ann. § 44-5-163 (“Possession of real property in conformance with the requirements of Code Section 44-5-161 for a period of 20 years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170.”).6 Defendant also asserts that if any portion of the parcel abuts the corridor beyond Mill Street, it would be governed by the Butler deed, which conveyed a fee. Def.’s Resp. App. A, at 2 (ECF No. 74).
Defendant provides the following map in support of its claim and identifies the Miller Property and Renovation parcel as “Miller Prop & Renovation:”

The parties further dispute whether Mill Street, labelled as such on Defendant’s map, is within the railroad corridor. Pls.’ Resp. 2 (ECF No. 67); Def.’s Resp. 6 (ECF No. 74). The original deed transferring ownership to Miller Property and Renovation describes the location of the property as:
Beginning at a point on the southwesterly side of South Mill Street 100 feet southwesterly, as measured along the southwesterly side of South Mill Street from the corner formed by the intersection of the southwesterly side of South Mill Street and the southwesterly right of way of Thompson Avenue.


Second Am. Compl. Ex. 43. The deed does not reference any railway or railroad corridor. See id. Rather, the deed states on a single line in a standalone paragraph without context: “Subject to all easements and restrictions of record if any.” Id.
Whether any portion of the Miller Plaintiff’s parcel (Claim No. 60) abuts and underlies the railway corridor and whether Mill Street is within the railroad corridor, are genuine issues of material fact that preclude entry of summary judgment for either party. Again, the Court requires evidence on the preparation and interpretation of the maps.
The Property of Greyland Real Estate Investments, Inc.
Claim No. 39
Although the parties agree that only a corner of this .21 acre parcel touches the railroad corridor, they do not agree which deed applies to this parcel. Joint Resp. App. A, at 4 (ECF No. 109). Plaintiffs assert that the Wright deed applies and rely on the following map with the circled portion depicting Greyland’s parcel:

COMPANY, a corporation, of said State, the following property: A strip of land situate in the 462nd District of Newton County, Georgia, Thirty feet wide, the same being Fifteen feet on each side the centre line of said Railroad, for a right of way of said Railroad, or for any other use, in the discretion of said Company, and more particularly described as follows:
Along the line of recent survey made by said Middle Georgia and Atlantic Rail Way Co.
The Consideration of this Deed is the sum of Ten Dollars paid by said Company to the undersigned before the execution of these presents.
To Have and to Hold the described land, with its members and appurtenances unto the said Middle Georgia & Atlantic Railway Company, its successors and assigns, forever. And the said R.F. Wright will forever warrant and defend the title hereby conveyed to the said Railroad Company against any and every person whatsoever.
In Witness Whereof, the said R.F. Wright has hereunto set his hand and affixed his seal, and delivered these presents, this the Ninth day of April 1890.
Joint Not. Transcribed Conveyances Ex. 2, at 52.
The Simms deed, dated April 9, 1890, contains the following language:
This Indenture Witnesseth: That the undersigned Mrs. S.J. Simms has bargained, sold, and conveyed to the MIDDLE GEORGIA & ATLANTIC RAILWAY COMPANY, a corporation, of said State, the following property: A strip of land situate in the City of Covington District of Newton County, for a right of way of said Railroad, or for any other use, in the discretion of said Company, and more particularly described as follows:
Through my town lot as now laid out and graded & of sufficient width to make and maintain said Railroad in good & safe condition.
The Consideration of this Deed is the sum of One Dollars [sic] paid by said Company to the undersigned before the execution of these presents.
To Have and to Hold the said described land, with its members and appurtenances unto the said Middle Georgia & Atlantic Railway Company, its successors and assigns, forever. And the said S.J. Simms will forever warrant and defend the title hereby conveyed to the said Railroad Company against any and every person whatsoever.
In Witness Whereof, the said S.J. Simms has hereunto set her hand and affixed her seal, and delivered these presents, this 22nd day of August 1892.
Id. at 54 (emphasis added).
On October 16, 2015, this Court ordered Plaintiffs to clarify the record as to Greyland’s claim. The Court stated:


To determine liability with respect to Plaintiff Greyland Real Estate and Investments Inc., the Court must determine whether Plaintiff has alleged a property interest in a parcel that abuts the railroad right-of-way. The record is unclear as to which parcels Plaintiff Greyland Real Estate claims were the subject of a taking. Plaintiff provided the Court with a deed for one parcel, three maps, each mapping the location of a different parcel, generated by the Newton County Assessor’s Office online, and one Newton County Ad Valorem Tax Notice. Each of these five attachments appears to describe a different parcel. In addition, Plaintiffs attach in their reply brief, without explanation, a deed for a parcel that may correspond to one of the three Newton County Assessor’s Office maps. Plaintiffs shall clarify which parcel(s) are at issue and correlate the deeds with such parcel(s).
Order 2 (Oct. 16, 2015) (ECF No. 63) (internal citations omitted).
In response, Plaintiffs submitted the Rutland deed, dated April 5, 2002, and stated:
Greyland Real Estate and Investments, Inc. (Greyland) has three parcels that abut and underlie the right-of-way. They are depicted on Exhibit 1 to the Declaration of J. Brannon as parcels with the map identification numbers 39, 41, and 43. All three parcels abut and underlie the portion of the right-of-way conveyed to the railroad by the R. Wright Deed (Book X, Page 388).
Pls.’ Resp. 2 (ECF No. 67). Exhibit 1 to the Declaration of J. Brannon depicts the claims of all 47 Plaintiffs in this litigation. This single-page exhibit contains a large map on the left side of the page showing the entire portion of the rail corridor that is the subject of this litigation marked with the parcels belonging to each Plaintiff. On the right side of the page, there are four smaller maps showing close-ups of four different segments of the rail corridor. Greyland’s parcel, Claim No. 39, is circled in the image below, which is insert A from Exhibit 1 to the Declaration of J. Brannon.

Outcome: Plaintiffs’ Motion for Partial Summary Judgment is GRANTED, and Defendant’s Motion for Partial Summary Judgment is DENIED on the claims of Plaintiffs

Plaintiff's Experts:

Defendant's Experts:


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