            In the United States Court of Federal Claims
                                           No. 17-1600L
                                        Filed: April 2, 2019

                                                )
 ANSLEY WALK CONDOMINIUM                        )
 ASSOCIATION, INC., et al,                      )
                                                )
                        Plaintiffs,             )
                                                )
 v.                                             )
                                                )
 THE UNITED STATES,                             )
                                                )
                        Defendant.              )
                                                )

Steven M. Wald, Stewart Wald & McCulley, LLC, St. Louis, MO, for plaintiffs.

Elizabeth R. McGurk, U.S. Department of Justice, Civil Division, Washington, DC, for
defendant.

                                      OPINION AND ORDER

SMITH, Senior Judge

        This case is before the Court on plaintiffs’ Partial Motion for Summary Judgment. See
Plaintiffs’ Motion for Partial Summary Judgment on Liability (hereinafter “Pls.’ MSJ”).
Plaintiffs, Ansley Walk Condominium Association, Inc., and Mr. Nelson Goetz, seek just
compensation and other relief under the Takings Clause of the Fifth Amendment of the United
States Constitution. Id. at 1. Plaintiffs allege that the United States Surface Transportation
Board’s (“STB”) conversion of an area of rail line into a recreational trail, pursuant to the
National Trails System Act (“Trails Act”), “effected a taking of plaintiffs’ property” pursuant the
Fifth Amendment. Pls.’ MSJ at 5 (citing 16 U.S.C. § 1247). For the reasons set forth below, the
Court grants Plaintiffs’ Motion.

I.     Background

        The land in dispute is a segment of a former rail line in Atlanta, Georgia, commonly
known as the Decatur Street Belt (“Belt”). Plaintiffs’ Exhibit (hereinafter “Pls.’ Ex.”) A at 4;
Pls.’ Ex. D at 30. In 1869, the Georgia Air Line Railway Company (“Georgia Air”) acquired the
land in dispute in order to install a rail line. See Pls.’ Ex. H-1; Pls.’ Ex. H-2. The land in dispute
was used by a variety of rail companies over the next 150 years. See Defense Exhibit
(hereinafter “Def.’s Ex.”) A at 28-29.
        On March 27, 2017, the Norfolk Southern Corporation (“Norfolk Southern”), the then-
user of the rail line, filed its intent to abandon rail service over .68 miles of the Belt with the
STB. Pls.’ Ex. A at 2. On September 28, 2017, the STB issued a Notice of Interim Trail Use
(“NITU”) for the land in dispute. Pls.’ Ex. C at 1. On October 17, 2017, Norfolk Southern and
the Atlanta Beltline, Inc. (“ABI”), a “non-profit corporation and instrumentality of the City of
Atlanta,” filed a trail use agreement with the STB. Pls.’ Ex. B at 2. At the time the NITU was
issued, plaintiffs owned or leased property that abutted the land in dispute. See Stipulations
Regarding Title Matters (hereinafter “Joint Stipulation”) at 2.

        Plaintiffs filed their original Complaint on October 25, 2017, their First Amended
Complaint on January 24, 2018, and their Second Amended Complaint on May 14, 2018. See
generally Complaint; First Amended Complaint; Second Amended Complaint. On September
14, 2018, plaintiffs filed their Motion for Partial Summary Judgment on Liability, and Plaintiffs’
Memorandum in Support of Their Motion for Partial Summary Judgment on Liability. See
generally Pls.’ MSJ; Plaintiffs’ Memorandum in Support of Their Motion for Partial Summary
Judgment on Liability (hereinafter “Pls.’ MSJ Memo.”). On October 12, 2018, defendant filed
its Response to Plaintiffs’ Motion for Partial Summary Judgment on Liability, and Cross-Motion
for Summary Judgment, and Memorandum in Support. See generally Defendant’s Response to
plaintiffs’ Motion for Partial Summary Judgment on Liability, and Cross-Motion for Summary
Judgment (hereinafter “Def.’s Cross MSJ”).

        On October 29, 2018, plaintiffs filed their Response to the defendant’s Cross-Motion for
Partial Summary Judgment on Liability and Reply in Support of Plaintiffs’ Motion for Partial
Summary Judgment on Liability. See generally Plaintiffs’ Response to the Defendant’s
Cross-Motion for Partial Summary Judgment on Liability and Reply in Support of Plaintiffs’
Motion for Partial Summary Judgment on Liability (hereinafter “Pls.’ Resp.”). On November
27, 2018, defendant filed its Reply to Plaintiffs’ Response to Defendant’s Cross-Motion for
Summary Judgment on Liability. See generally Defendant’s Reply to Plaintiffs’ Response to
Defendant’s Cross-Motion for Summary Judgment on Liability (hereinafter “Def.’s Reply”).
Both motions are fully briefed and ripe for review.

   II.     Standard of Review

        This Court’s jurisdictional grant is found primarily in the Tucker Act, which provides the
Court of Federal Claims the power “to render any judgment upon any claim against the United
States founded either upon the Constitution, or any Act of Congress or any regulation of an
executive department, or upon any express or implied contract with the United States . . . in cases
not sounding in tort.” 28 U.S.C. § 1491(a)(1). Although the Tucker Act explicitly waives the
sovereign immunity of the United States against such claims, it “does not create any substantive
right enforceable against the United States for money damages.” United States v. Testan, 424
U.S. 392, 398 (1976). Rather, in order to fall within the scope of the Tucker Act, “a plaintiff
must identify a separate source of substantive law that creates the right to money damages.”
Fisher v. United States, 402 F.3d 1167, 1172 (Fed. Cir. 2005) (en banc in relevant part).

       Summary judgment is appropriate when the evidence indicates that there is “no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”

                                                -2-
Rules of the Court of Federal Claims (“RCFC”) 56(c); 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,” and a fact is “material” if it might significantly alter the outcome of the case under
the governing law. Anderson, 477 U.S. at 248, 250. In determining the propriety of summary
judgment, a court will not make credibility determinations and will draw all inferences in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587–88 (1986).

   III.    Discussion

           A. Standing

        Defendant argues that plaintiffs, Ansley Walk Condominium Association, Inc., Ansley-
Monroe Villa Condominium Association, Inc., (“Associations”) and Mr. Goetz, lack standing to
pursue their claims. See Def.’s Cross MSJ at 31, 34. Defendant states that the Associations lack
an interest in the property in dispute, as the Associations themselves do not technically own the
property abutting the rail line, but rather, the individual condominium unit owners do. Def.’s
Cross MSJ at 34–35. The defendant also argues that, absent an express waiver by the United
States, the Associations cannot bring the action in this Court. Id. at 36 (citing Lane v. Pena, 518
U.S. 187, 192 (1996)). Finally, defendant posits that Mr. Goetz, as a long-term lease holder,
lacks standing because he lacks an ownership interest in the property in dispute. Id. at 31.

       The Court is not persuaded by these arguments. The Associations are both organized
pursuant to the Georgia Condominium Act (“GCA”). See Pls.’ Ex. at 257, 360; see also Ga.
Code Ann. § 44-3-70. The GCA grants condominium associations “standing to . . . represent in,
or defend, in its own name, litigation . . . concerning claims or other matters relating to any
portions of the units or common elements which the association has the responsibility to
administer, repair, or maintain.” Ga. Code Ann. § 44-3-106(h). The GCA further states that,
“such capacity, power, and standing shall not be waived, abridged, modified, or removed by any
provision of any contract or document, including the condominium instruments, that were
recorded, entered into, or established prior” to the adoption of the statute. Id. Under the GCA,
“common elements” are defined as “all portions of the condominium other than the units.” Id. §
44-3-71(4).

       Aside from this explicit statutory grant, the Associations are representatives of people
who own the property in dispute, as per their bylaws. Pls.’ Ex. E at 256–262, 360-415. It would
be counter-intuitive to require each individual unit owner to sue for their percentage of the
common space property right, as the government suggests, rather than allow the condominium
associations to represent the rights of all the condominium owners by suing on their behalf. See
Def.’s Cross MSJ at 36. If the condominium associations sued on their own behalf, rather than
on behalf of the owners as a whole, then the government’s standing argument would seem more
compelling. However, it seems clear to the Court that the associations’ claims are for the sole




                                                -3-
benefit of the owners. Given the Association’s statutory grant and representative capacity,
defendant’s argument is unpersuasive.

         The Court further finds that Mr. Goetz, as a long-term lease holder of property adjacent
to the land in dispute, has standing. See Pls.’ Ex. A at 153–157. Georgia law holds that
landowners’ real property rights extend to the centerline of an abandoned railroad line. Fambro
v. Davis, 348 S.E.2d 882, 884 (Ga. 1986) (citing Marietta Chair Co. v. Henderson, 49 S.E. 312
(Ga. 1904); Calvary Independent Baptist Church v. City of Rome, 66 S.E.2d 726 (Ga. 1951)).
While state law defines property rights, this Court follows federal precedent on issues involving
standing. The U.S. Supreme Court has found leaseholders may bring suits under the Takings
Clause when the United States has temporarily deprived them of a portion of their property
interest in the lease. United States v. General Motors, 323 U.S. 373 (1945).

        The Court sees no reason to question the wisdom of such precedent, nor its reasonable
application, which has held that, in matters of standing, long-term lease holders should be treated
no differently than fee owners when the United States temporarily deprives them of a portion of
their property interest. In keeping with that precedent, the Court finds that long-term lease
holders who own property adjacent to abandoned railroad lines should be afforded the same
centerline assumption as fee owners. As Mr. Goetz holds a valid long-term lease under Georgia
law and his Takings claim concerns a temporary taking of a portion of his leasehold property
interest, the Court finds that he has standing to pursue his 5th Amendment Takings claim.

           B. The Trails Act

        The purpose of the Trails Act is to convert unused railroad rights-of-way into recreational
trails. Barclay v. United States, 443 F.3d 1368, 1371 (Fed. Cir. 2006). A plaintiff can assert a
Fifth Amendment takings claim “when government action destroys state-defined property rights
by converting a railway easement to a recreational trail, if trail use is outside the scope of the
original railway easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010).
Moreover, the STB is charged with regulating the construction, operation, and abandonment of
railroad lines in the United States. Chic. & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S.
311, 311–12 (1981); Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004).
Importantly, the STB must grant a railroad approval to discontinue or abandon an area of
railroad. Nat’l Ass’n of Reversionary Prop. Owners v. Surface Transp. Bd., 158 F.3d 135, 137
(D.C. Cir. 1998).

         A railroad may terminate active rail service in several ways, including using a process
known as “railbanking.” Caldwell v. United States, 57 Fed. Cl. 193, 194 (2003), aff’d, 391 F.3d
1226 (Fed. Cir. 2004) (internal quotations omitted). Railbanking is a form of discontinuance, but
the rail company’s right-of-way is said to be “banked until such time as railroad service is
restored.” Id.. Unlike standard discontinuance, railbanking allows a third party to accept full
responsibility of the railroad corridor, allowing interim trail use until active rail service is
restored.

        To utilize the railbanking process, the railroad files either an application to abandon or, as
in the case at bar, a request for an exemption. Caldwell, 391 F.3d at 1229; Pls.’ Ex. A at 2.

                                                -4-
Once the STB approves the request for exemption, a local, state, or private party (“trail
operator”) submits a proposal to assume financial and operational control of the rail line area.
Caldwell, 391 F.3d at 1230. Federal regulations require the trail operator’s proposal to include
an assumption of responsibility for the right-of-way and an acknowledgment that trail use is
subject to the “possible future reconstruction and reactivation of the right-of-way for rail
service.” 49 C.F.R. § 1152.29(a)(1)–(3).

       After the trail operator submits a proposal for the new operation, and the STB accepts the
proposal, the STB then issues a NITU, which indefinitely stays the abandonment process,
authorizes trail use, and “retains jurisdiction for possible future railroad use” with the STB.
Caldwell, 391 F.3d at 1230; see also Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267
F.3d 1144, 1150 (D.C. Cir. 2001). Issuance of the NITU operates as the catalyst for a Takings
Claim under the Trails Act. Barclay, 443 F.3d at 1373 (quoting Caldwell, 391 F.3d at 1233–34).
As the Federal Circuit has explained,

       [a]bandonment 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. (internal citations omitted) (emphasis in original).

         The Court begins its analysis by first determining the property interest in the deed or
deeds in question. Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (en banc).
In this case, the Court must determine whether the deed from Jerome Bearse to Georgia Air
(“Bearse Deed”) and the deed from James M. Liddell to Georgia Air (“Liddell Deed”) conveyed
fee or an easement to the railroad company. See Pls.’ Ex. H-1, H-2. If the deeds conveyed
easements, the Court then must ascertain whether the scope of those easements was broad
enough to include recreational trail usage. Id. The Court must then discern whether, even if the
easements were broad enough to include recreational usage, the railroad’s easements terminated
prior to the issuance of the NITU, such that the property owners “held fee simples unencumbered
by the easements.” Id. Finally, the Court must determine whether the United States’ action
“amounted to a compensable taking” of plaintiffs’ alleged interest in the property at issue.
Casitas Mun. Water Dist. v. United States, 708 F.3d 1340, 1348 (Fed. Cir. 2013).

                   a. Georgia Standard of Review

         Before determining whether the STB violated plaintiffs’ Fifth Amendment rights upon
execution of the NITU, in accordance with the Rails to Trails law, the Court must determine
what interest, if any, plaintiffs have in the property in dispute. As state law defines property
rights, the Court applies Georgia law to the Bearse and Liddell deeds. See Hardy v. United
States (Hardy I), 127 Fed. Cl. 1, 8 (2016) (citing Preseault, 100 F.3d at 1533). Specifically, the

                                                 -5-
Court must first ascertain whether the Bearse and Liddell deeds conveyed property to the railroad
in fee or conveyed “merely an easement.” Id. (citing Askew v. Spence, 79 S.E.2d 531, 531 (Ga.
1954)).

        Georgia precedent requires the Court to examine each instrument as a whole. See Barber
v. Southern Ry. Co, 274 S.E.2d 336 (Ga. 1981); Jackson v. Rogers, 54 S.E.2d 132 (Ga. 1949);
Jackson v. Sorrells, 92 S.E.2d 513 (Ga. 1956); Latham Homes Sanitation, Inc. v. CSX Transp.,
Inc., 538 S.E.2d 107, 108 (2000). These factors include “the recital in the deed, the contract, the
subject-matter, the object, purpose, and nature of the restriction or limitations, if any, or the
absence of such, and the attendant facts and circumstances of the parties at the time of the
making of the conveyance.” Latham Homes Sanitation, 538 S.E.2d at 108 (citing Jackson v.
Rogers, 54 S.E.2d at 132).

        While no single factor is dispositive, inclusion of specific language in a deed can “carry
significant weight” in determining whether the instrument conveyed fee or an easement. Hardy
I, 127 Fed. Cl. at 9; see also Jackson v. Rogers, 54 S.E.2d at 132; Sorrells, 92 S.E.2d at 513;
Askew, 79 S.E.2d at 531. The nature of plaintiffs’ interest in the property in dispute is controlled
by the deeds, and courts must determine whether the instruments either “convey the title of the
lands therein referred, [or] to merely an easement for railroad purposes.” Askew, 79 S.E.2d at
531. At a foundational level, Georgia property law presumes fee, though the inclusion of the
phrase “forever in fee simple” does not end the Court’s inquiry. Jackson v. Rogers, 54 S.E.2d at
136. The inclusion of warranty language suggests a conveyance in fee, and substantial
consideration also points toward conveyance in fee. Id. at 136; Johnson v. Valdosta, Moultrie &
W. R.R. Co., 150 S.E. 845, 847 (Ga. 1929).

         Meanwhile, nominal consideration suggests an easement. Jackson v. Rogers, 54 S.E.2d
at 134; Askew, 79 S.E.2d at 532. A deed that grants a railroad a “right of way” also indicates
intent to convey an easement. Jackson v. Crutchfield, 191 S.E. 468, 470 (Ga. 1937). Similarly, a
deed that qualifies the conveyance as “for railroad purposes” points toward an easement. Askew,
79 S.E.2d at 532. The reservation of rights, such as cultivation rights, further indicates intent of
easement. See Crutchfield, 191 S.E. at 470; Sorrells, 92 S.E.2d at 514; see also Hardy v. United
States (Hardy II), 129 Fed. Cl. 513, 516 (2016). Moreover, Georgia state code mandates that, if
“a corporation or person shall cease using the property taken for the purpose of conducting their
business, said property shall revert to the person from whom taken.” Hardy I, 127 Fed. Cl. at 8
(citing Ga. Code Ann. § 5233 (1910)). Lastly, Georgia common law seeks to avoid “long,
narrow strips of land owned by people other than the adjacent land-owner,” which would include
rail lines. Descendants of Bulloch, Bussey & Co. v. Fowler, 475 S.E.2d 587, 589 (Ga. 1996).

                   b. The Bearse Deed

       After careful consideration, the Court finds that the Bearse deed conveyed an easement to
Georgia Air. The Bearse deed reads in relevant part:

       In consideration of the benefit and advantage to me accruing by the
       construction…of the Georgia Air Line Rail Road as well as the receipt of Two
       hundred dollars to me paid. I have this day bargained and sold and do hereby

                                                -6-
       transfer and Convey unto the Georgia Air Line Rail Road Company and its
       successors and assigns all the land contained within one hundred feet in width on
       each side of the Track [o]r Roadway (measuring from the center) of any portion
       of the lot of land hereinafter described through which said Rail Road may be
       constructed run and operated the land hereby conveyed being cut off and a portion
       of land lots number [] in the 17th… of one originally Henry now Fulton County
       Ga and Jerome Bearse reserves the privilege of cultivating the Company right of
       way up to the tract on either side the same being the place whereon said Bearse
       now lives.

       To have and to hold said tract or parcel of land unto said Georgia Air Line Rail
       Road Company for Rail Road purposes for ever in fee simple

       Witness my hand and seal this 29th day of April AD 1869 Signed sealed and
       delivered

Pls.’ Ex. H-1.

        Georgia case law begins with the presumption of a transfer in fee. Jackson v. Rogers, 54
S.E.2d at 136. Certain aspects of the Bearse instrument strengthen this presumption of fee. Mr.
Bearse received non-nominal consideration of $200. See generally Pls.’ Ex. H-1. The phrase to
“its successors and assigns,” is indicative of intent to convey fee. Pls.’ Ex. H-1; see Rogers v.
Pitchford, 184 S.E. 623, 624 (Ga. 1936). The habendum clause states, “for ever in fee simple.”
See Pls.’ Ex. H-1. These aspects suggest that the Bearse deed is similar to the Rogers deed,
which the Georgia Supreme Court ruled it conveyed property in fee. See Jackson v. Rogers, 54
S.E.2d at 138.

         While these factors may appear to weigh in favor of conveyance in fee, such a reading
fails to accurately capture the full meaning of the deed and would ignore Georgia precedent and
federal interpretation.1 Though substantial consideration suggests conveyance in fee, the very

1
        In an exhibit attached to its Response and Cross-Motion for Summary Judgment,
defendant provided the hearing transcript for a Georgia District Court case, which dealt with, in
whole or in part, the property at issue in plaintiffs’ Complaint. Def.’s Ex. F. According to the
defendant, that court found that the Bearse deed conveyed fee. Id. However, such a finding
seems to contradict decades of Georgia Supreme Court precedent, which repeatedly held that a
determination of whether a deed conveys fee or an easement centers on the “particularly [sic]
facts and circumstances” of each case, but with certain language or phrases weighing heavily on
the analysis. Askew, 79 S.E.2d at 532; Sorrells, 92 S.E.2d at 514; Barber 274 S.E.2d at 337.
Moreover, while Georgia law defines property rights, state court decisions generally have no
precedential value in this Court, so Georgia law is, at best, merely persuasive in a Fifth
Amendment Takings analysis. See Hage v. U.S., 51 Fed. Cl. 570, 575 (2002) (denying stay in a
Fifth Amendment takings case pending determination of state water rights). Finally, the Georgia
District Court case concerned alleged “encroachments” by private landowners on property
owned in part by ABI; it was not a Takings claim that centered on the nature and usage of a
                                              -7-
nature of railroad easements—invasive, noisy, and potentially perpetual operations—readily
explains why a grantor might require a non-nominal fee in exchange for such an easement. See
New Mexico v. U.S. Trust Co., 172 U.S. 171, 183 (1898) (describing the characteristics of
railroad easements); see also Duggan v. Dennard, 156 S.E. 315, 316 (Ga. 1930) (describing the
disruption of railroad operations on a grantor’s property). Additionally, the mere inclusion of the
terminology “in fee simple” does not necessarily indicate a conveyance of fee. Atlanta, B. & A.
Ry. Co. v. Coffee Cty., 110 S.E. 214, 215 (Ga. 1921).

        Several aspects of the Bearse deed suggest the instrument conveyed an easement. First,
the instrument describes the “Company right of way,” which Georgia property law generally
interprets as conveyance of an easement. Crutchfield, 191 S.E. at 470. The Bearse deed also
specifies that the railroad received the parcel “for rail road purposes.” Pls.’ Ex. H-1. This
language is also contained in the deed at issue in Askew v. Spence, where the Georgia Supreme
Court found the instrument conveyed an easement. 79 S.E.2d at 532. While not determinative,
such language indicates intent by Mr. Bearse to limit the scope of the deed and the behavior of
Georgia Air, and weighs in favor of finding the deed as an easement.

        Additionally, the Bearse deed contained no warranty clause, the absence of which the
Georgia Supreme Court considers a factor leading to interpretation as an easement. Askew, 79
S.E.2d at 532; see also Crutchfield, 191 S.E. at 470. The description of the land conveyed in the
Bearse deed is also generalized, with the transferred land listed merely as “a portion of land lots
number [blank] . . . of one originally Henry now Fulton County Ga.” Pls.’ Ex. H-1 (alteration in
original). This generalized nature of the land conveyed is further illustrated in the phrase “any
portion of the lot of land hereinafter described, which said Rail Road may be constructed, run
and operated.” Id. (emphasis added). The Court fails to see how a conveyance of fee, which
necessarily relates to unique, specific real property, could be executed in such vague,
conditional, and undefined terms. The two concepts seem oppositional.

       Furthermore, the Bearse deed retains the rights of cultivation. See Pls.’ Ex. H-1. The
Georgia Supreme Court has noted that the presence of such retention language suggests an
easement, and implies that such a holding is well-settled in Georgia. Sorrells, 92 S.E.2d at 514.
This Court has previously held that in deed disputes construed under Georgia law, the “particular
terminology” of cultivation retention “typically indicates an easement.” Hardy II, 129 Fed. Cl. at
516.

        While the Bearse deed uses the word “privilege” instead of “right” when describing the
cultivation retained, the Court finds no legally significant difference between the two words in
the context of this deed. The effect of such retention is the same, regardless of either word used.
Indeed, it seems incongruous to the Court that a granting party would convey fee title to a rail

recreational trail. See Def’s Ex. F at 27. In light of the limited usefulness of the Georgia District
Court case, the distinguishability from the Case at bar, and the fact that such a ruling seems to
directly contradict the holdings of the state’s highest court, this Court deems it unhelpful as a
tool in the analysis of the claims currently before it.



                                                -8-
company while retaining the substantial and invasive ability to exploit the railroad’s property for
the seller’s own benefit, particularly given the non-nominal consideration contained in the
Bearse deed.

        Finally, the Court is mindful of the so-called “Stripes and Gorges” doctrine, adopted by
Georgia courts, which discourages conveyance of fee that results in long, narrow areas of land.
Hardy I, 127 Fed. Cl. at 10 (citing Fambro, 348 S.E.2d at 884 (quoting Johnson v. Arnold, 18
S.E. 370 (Ga. 1893))). From a policy perspective, this doctrine seeks to preserve land that is
more economically appealing, thereby promoting, rather than inhibiting market forces. The
Court is persuaded that such a policy is applicable here, as the Bearse deed specifically notes that
the “land conveyed being cut off.” Pls.’ Ex. H-1. Taken together, the language of the deed in
question, Georgia property law, and well-established precedent persuade the Court that the
Bearse deed conveyed an easement to Georgia Air.

                   c. The Liddell Deed

       The Court also finds that the Liddell deed conveyed an easement. The Liddell deed is
substantively similar to the Bearse deed, but distinct enough to merit separate analysis. See
generally Pls.’ Ex. H-1; Pls.’ Ex. H-2. The Liddell deed reads in relevant part:

       In consideration of the benefit and advantage to me accruing by the construction
       of the Georgia Air Line Railroad as well as the receipt of Three hundred and
       eighty five [sic] dollars of the to me in hand paid. I have this day bargained and
       sold and do hereby transfer and Convey unto the Georgia Air Line Railroad
       Company and its successors and assigns all the land contained within One
       Hundred feet in width on each side of the track or Roadway (measuring from the
       center) of any portion of the Land hereinafter described through which said Rail
       Road may be constructed, run and operated. The land hereby conveyed being cutt
       [sic] off and a portion of land lot number Fifty Six in the 17th…of originally
       Henry now Fulton County Ga In being the amount awarded by N.M. Robinson
       J.W. Craig and R.M. Head appraisers of it is now agreed that J.M. Liddell is to
       have the privilege of cultivating said right of way but that his is not to hold the
       said Railroad responsible for any injury done to the growing crop by accident or
       [adverse] on the said Two hundred feet of right of way.
       To have and to hold said tract or parcel of land unto said Georgia Air Line
       Railroad Company for Rail Road purposes forever in fee simple.
       Witness my land and seal this 17th day of Sep. AD 1869.
Pls.’ Ex. H-2.

       As with the Bearse deed, well-established Georgia property law begins with the
presumption that the Liddell deed conveyed fee. Jackson v. Rogers, 54 S.E.2d at 136.
Furthermore, the Liddell deed contained substantial consideration of $385 dollars, more than the
Bearse deed. See generally Pls.’ Ex. H-1; Pls.’ Ex. H-2. The phrase to “its successors and

                                               -9-
assigns” appears in the Liddell deed, which is indicative of intent to convey a fee. Pls.’ Ex. H-2;
see also Pitchford, 184 S.E. at 624. The habendum clause states, “forever in fee simple,” which
on its face points toward a conveyance of fee. Pls.’ Ex. H-2.

        Weighing these factors against the totality of the circumstances, the Court finds the
Liddell deed conveyed an easement to Georgia Air. As in the Bearse deed, substantial
consideration suggests conveyance of fee in the Liddell deed. See Pls.’ Ex. H-2. However, as
with the Bearse deed, the nature of railroad easements readily explains why a grantor might
require a non-nominal fee in exchange for an easement. See U.S. Trust Co., 172 U.S. at 183
(describing the characteristics of railroad easements); see also Duggan, 156 S.E. at 316
(describing the disruption of railroad operations on a grantor’s property). As this Court has
previously iterated, the mere inclusion of the terminology “in fee simple” does not necessarily
indicate a conveyance of fee. Coffee Cty., 110 S.E. at 215.

        As with the Bearse deed, multiple aspects of the Liddell deed suggest the instrument
conveyed an easement to the railroad. The Liddell deed describes the “said right of way,” which
the Georgia Supreme Court has held suggests intent to convey an easement. Crutchfield, 191
S.E. at 470. The habendum clause of the Liddell deed specifies that land was conveyed “for rail
road purposes,” which also weighs towards an easement under Georgia property law. Askew, 79
S.E.2d at 532. These phrases demonstrate Mr. Liddell’s intent to limit the scope of the deed and
the behavior of Georgia Air.

         Additionally, the description of the land conveyed in the Liddell deed is generalized, with
the transferred land described merely as “a portion of land lot number Fifty Six [sic]. . . of
originally Henry now Fulton County Ga.” See Pls.’ Ex. H-2. This, like in the Bearse deed is
further illustrated by the phrase “any portion of the Land hereinafter described through which
said Rail Road may be constructed, run and operated.” Id. (emphasis added). Again, the Court
fails to see how a conveyance of fee, which necessarily relates to unique, specific real property,
could be executed in such vague, conditional, and undefined terms.

        Several additional factors weigh heavily in favor of finding that the Liddell deed
conveyed an easement. The Liddell deed contained no warranty clause, which the Georgia
Supreme Court has previously indicated weighs in favor of interpreting the conveyance as an
easement. Askew, 79 S.E.2d at 532; see also Crutchfield, 191 S.E. at 470. Furthermore, and
unlike the Bearse deed, the Liddell deed did contain a limited waiver clause, for “any injury done
to the growing crop” caused by the railroad to Mr. Liddell’s crops within “the two-hundred feet
of right of way.” See Pls.’ Ex. H-2. This language suggests an established relationship between
the grantor and the railroad, whereby Mr. Liddell was able to continue to use the land
surrounding the railroad for his own benefit, with the railroad extracting protection against
possible harm to Mr. Liddell’s potential interest.

        Moreover, the Liddell deed retains the rights of cultivation. The retention of such a right
generally suggests an easement. Hardy II, 129 Fed. Cl. at 516. Finally, the Court is again
cognizant of the “Stripes and Gorges” doctrine, discussed earlier, which discourages conveyance
of fee that results in long, narrow areas of land. Hardy I, 127 Fed. Cl. at 10 (citing Fambro, 348
S.E.2d at 884 (quoting Johnson, 18 S.E. at 370)). As with the Bearse deed, taken together, the

                                               - 10 -
totality of circumstances surrounding the Liddell deed necessarily result in a determination that
the Liddell deed conveyed an easement to Georgia Air.

                   d. Scope of Easements

        Having determined that the Bearse and Liddell deeds conveyed easements to Georgia
Air, the Court now turns to whether the easements were either broad enough to encompass the
recreational trail use established by the NITU or limited to railroad uses only. See Preseault, 100
F.3d at 1533. As state law defines property rights, the Court looks to Georgia state precedent
when determining how to interpret facial deed language. The Georgia Supreme Court has held
that easements for “the purpose of running, erecting, and establishing theron [sic] a railroad track
or tracks” were limited for railroad purposes only. Crutchfield, 191 S.E. at 470–471. Georgia
state precedent also holds that the uses of an easement are limited to the reasonable requirements
of the deed. Georgia Power Co. v. Leonard, 1 S.E.2d 579, 581 (Ga. 1939).

        Georgia state law comports with Federal Circuit precedent, which has held that
recreational trail usage and commercial railroad usage are categorically different. Toews v.
United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004). Furthermore, the Federal Circuit has
repeatedly held that recreational trail usage exceeds the scope of deeds limited to railroad
purposes. See Rhutasel v. United States, 105 Fed. Cl. 220, 228 (2012); Jackson v. United States,
135 Fed. Cl. 436 (2017); Buford v. United States, 103 Fed. Cl. 522, 533 (2012); Hardy I, 127
Fed. Cl. at 21.

       Analyzing the facial language of both the Bearse and Liddell deeds in accordance with
Georgia state law and Federal Circuit precedent, the Court is persuaded that the easements
conveyed in the instruments are limited to railroad purposes only. Both deeds describe the land
conveyed as a “right of way,” and both deeds declare the instrument is intended “for Rail Road
purposes.” Pls.’ Ex. H-1; Pls.’ Ex. H-2. Moreover, in keeping with Federal Circuit precedent,
the Court finds that the recreational usage, initiated by the NITU, exceeds the scope of the
easement. Having found that recreational usage violates the scope of those easements, the Court
need only determine whether the railroad’s easements reverted to the landowners prior to the
issuance of the NITU.

                   e. Effect of the NITU

        As the Bearse and Liddell deeds conveyed easements to Georgia Air for railroad
purposes only, Georgia Air’s successor, Norfolk Southern, cannot hold more than the easement
conveyed to its predecessor. Since conveyance, the record indicates that the various railroad
companies using the rail line, including the most recent operator, Norfolk Southern, continuously
used the easement for railroad purposes. Def.’s Ex. A at 28-29. As such, it can be inferred that
the easement did not revert to the landowners, but rather, remained with Norfolk Southern who
used the land within the scope of said easement until the parcel was converted into a trail.

       When the STB issued the NITU in accordance with the Trails Act, the NITU severed
Norfolk Southern’s claim to the land, as the recreational usage created by the NITU fell outside
the scope of the easements. It is a well-established principle of property law that easements run

                                               - 11 -
with the land. See generally Coggeshall Develpoment Corp. v. U.S., 23 Cl. Ct. 739 (1991);
Public Utility Dist. No 1 of Ferry County, Wash v. U.S., 20 Cl. Ct. 696 (1990); Board of County
Sup’rs of Prince William County, Va v. U.S., 23 Cl. Ct. 205 (1991). As such, upon the NITU
severance, all rights reverted to the successors of the original grantors in the Bearse and Liddell
deeds. Among those successors are the plaintiffs in this matter. Joint Stipulation at 2.

        Plaintiffs, as the rightful successors to the land abutting the railroad, retain the rights to
the property in dispute. Therefore, the STB’s conversion of the rail line into a recreational trail,
violated the terms of the deed and scope of the easement, which constitutes a Fifth Amendment
taking of the plaintiffs’ land. The United States is liable for the taking, and the plaintiffs are
owed just compensation.

   IV.     Conclusion

       For the reasons set forth above, plaintiffs’ MOTION for Partial Summary Judgment is
GRANTED. Defendant’s CROSS-MOTION for Partial Summary Judgment is DENIED. A
telephonic status conference will be scheduled in the coming weeks to discuss any further
procedural matters.

         IT IS SO ORDERED.


                                                     s/   Loren A. Smith
                                                    Loren A. Smith,
                                                    Senior Judge




                                                - 12 -
