           In the United States Court of Federal Claims
                                           No. 17-668L
                                      (Filed: April 10, 2020)

***************************************
GEORGE ANDERSON et al.,               *
                                      *               RCFC 56; Cross-Motions for Summary
                  Plaintiffs,         *               Judgment on Liability; Fifth Amendment
                                      *               Taking Claim; Rails-to-Trails; Texas Law;
v.                                    *               Deed Interpretation; Fee Simple Versus
                                      *               Easement; Defeasible Fee; Unavailability or
THE UNITED STATES,                    *               Lack of Conveyance Instrument; Intervening
                                      *               Parcels; Intervening Road
                  Defendant.          *
***************************************

J. Robert Sears, St. Louis, MO, for plaintiffs.

Lucinda J. Bach, United States Department of Justice, Washington, DC, for defendant.

                                    OPINION AND ORDER

SWEENEY, Chief Judge

        Plaintiffs in this Rails-to-Trails case allege that they own real property adjacent to a
railroad line in McLennan County, Texas. They contend that the United States violated the
Takings Clause of the Fifth Amendment to the United States Constitution by authorizing the
conversion of the railroad line into a recreational trail pursuant to the National Trail Systems Act
(“Trails Act”), thus acquiring their property by inverse condemnation. The parties filed cross-
motions for summary judgment on the issue of liability in which the central dispute is whether
plaintiffs possess a property interest in the railroad line. For the reasons articulated below, the
court denies plaintiffs’ motion for summary judgment and grants in part and denies in part
defendant’s cross-motion for summary judgment.

                                       I. BACKGROUND

                             A. Statutory and Regulatory Context

        During the last century, the United States began to experience a sharp reduction in rail
trackage. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5 (1990) (“Preseault I”). To
remedy this problem, Congress enacted a number of statutes, including the Trails Act, 16 U.S.C.
§§ 1241-1251 (2012). The Trails Act, as amended, provides for the preservation of “established
railroad rights-of-way for future reactivation of rail service” by authorizing the interim use of
such rights-of-way as recreational and historical trails. Id. § 1247(d). This process is referred to
as “railbanking,” and is overseen by the Surface Transportation Board (“Board”), id., the federal
agency with the exclusive jurisdiction to regulate “the construction, acquisition, operation,
abandonment, or discontinuance” of most railroad lines in the United States, 49 U.S.C.
§ 10501(b) (2012).

        Before railbanking can occur, the railroad company must seek to abandon its line, either
by initiating abandonment proceedings with the Board pursuant to 49 U.S.C. § 10903, or by
requesting that the Board exempt it from such proceedings pursuant to 49 U.S.C. § 10502.
While considering the railroad company’s abandonment application or exemption request, the
Board will entertain protests and comments from interested third parties. 49 C.F.R. §§ 1152.25,
1152.29(a) (2015). Of particular relevance in this case, interested third parties may submit
requests for the interim use of the railroad line as a trail pursuant to 16 U.S.C. § 1247(d). Id.

         If an interested third party submits a trail-use request to the Board that satisfies the
requirements of 16 U.S.C. § 1247(d), the Board makes the necessary findings pursuant to 49
U.S.C. § 10502(a) or 49 U.S.C. § 10903(d), and the railroad company agrees to negotiate a trail-
use agreement, the Board will issue one of two documents: if the railroad company initiated
abandonment proceedings, the Board will issue a Certificate of Interim Trail Use or
Abandonment, and if the railroad company sought an exemption, the Board will issue a Notice of
Interim Trail Use or Abandonment (“NITU”). 49 C.F.R. § 1152.29(b)-(d). The effect of both
documents is the same: to “permit the railroad to discontinue service, cancel any applicable
tariffs, and salvage track and materials, consistent with interim trail use and rail banking . . . ;
and permit the railroad to fully abandon the line if no agreement is reached 180 days after it is
issued, subject to appropriate conditions . . . .” Id. § 1152.29(d)(1); accord id. § 1152.29(c)(1).
The Board will entertain requests to extend the 180-day deadline to enable further negotiations.
If the railroad company and the interested third party execute a trail-use agreement, then
abandonment of the railroad line is stayed for the duration of the agreement. Id. § 1152.29(c)-
(d); 16 U.S.C. § 1247(d). If no trail-use agreement is executed, the railroad company is
permitted to fully abandon the line. 49 C.F.R. § 1152.29(c)-(d). To exercise its abandonment
authority, the railroad company must “file a notice of consummation with the Board to signify
that it has . . . fully abandoned the line” within one year of “the service date of the decision
permitting the abandonment . . . .” Id. § 1152.29(e)(2). In the absence of a timely filed notice of
consummation, the railroad company’s authority to abandon the line automatically expires. Id.

        If efforts to execute a trail-use agreement are unsuccessful and the railroad company
notifies the Board that it has fully abandoned the line, the Board is divested of jurisdiction over
the line and ownership of the property encompassing or underlying the line is determined under
state law. Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed. Cir. 2004).

                                       B. Factual History

        Plaintiffs are twenty-four landowners who own real property purportedly adjacent to a
railroad line in McLennan County, Texas situated between milepost 2.31 and milepost 4.76 near
Waco, Texas. 1 See Pls.’ Ex. A at 25-26. The line was acquired, for the most part, in 1902 by


       1
         The court derives the facts in this decision from the exhibits attached to plaintiffs’
motion for summary judgment and supporting briefs (“Pls.’ Ex.”) and the exhibits attached to
                                                -2-
Texas Central Railroad Company (“Texas Central”), Pls.’ Ex. E, a predecessor to the current
owner of the line, Union Pacific Railroad Company (“Union Pacific”), 2 Pls.’ Ex. A at 25. Texas
Central acquired the right of way through various means, Pls.’ Ex. E, including, as relevant here,
a declaration of trust, id., a court-ordered condemnation, Pls.’ Ex. H, and four deeds––the
Falkner deed, the George deed, the Brown deed, and the Davis deed, see Pls.’ Exs. I-L. Texas
Central constructed its railroad in 1905. Def.’s Ex. 1 at 4.

       In 1967, the railroad line was “reclassified . . . and viewed as an unregulated switching
spur” after a long segment of the right of way situated north of the line was abandoned. Id.

        On December 15, 2015, Union Pacific filed a Notice of Exemption with the Board,
indicating that it intended to abandon the 2.45-mile-long railroad line on or after February 3,
2016. Pls.’ Ex. A at 25-29. In the Notice of Exemption, Union Pacific stated that “no local or
overhead traffic had moved over the Line for at least two years” and that it intended “to salvage
the limited amount of track material on the Line and transfer the right of way to the City of
Waco, Texas for a utility corridor and possibly for trail use.” Id. at 26.

       On February 2, 2016, the City of Waco filed a late request with the Board for the
issuance of a NITU, Pls.’ Ex. B, and the Board issued a NITU for the railroad line on February
17, 2016, with an effective date of February 18, 2016, Pls.’ Ex. C. 3 The City signed an
agreement with Union Pacific to assume responsibility for the abandoned line on August 10,
2016. Pls.’ Ex. D at 67. Five days later, Union Pacific filed a Joint Notice of Interim Trail
Use/Rail Banking Agreement with the Board. Id. at 63.

        In the meantime, on August 4, 2016, Union Pacific executed a “Deed Without Warranty,”
conveying its rights in the “strip or tract of land” described therein to the City of Waco. Pls.’ Ex.
U. In the deed, Union Pacific included a reddendum clause reserving the mineral rights for the
land and added a covenant that the property must not be used for residential, lodging,
educational, or child-care facilities. Id. at 1-2. The deed provided that Union Pacific expressly
disclaimed any warranty and indicated that any warranties were waived by the City. Id. at 2.




defendant’s cross-motion for summary judgment and supporting briefs (“Def.’s Ex.”). For
simplicity, the court has removed the “AND” prefix and leading zeros from the page numbers
that include them. Unless otherwise stated, the facts are undisputed.
       2
         Texas Central “was acquired by the Missouri-Kansas-Texas Railroad (MKT) by
merger” and Union Pacific “is the successor in interest by merger to the MKT.” Pls.’ Ex. A at
25.
       3
          In their briefs and supporting material, the parties accurately state that the Board issued
the NITU on February 17, 2016. However, the Board indicated that the NITU was effective on
the date of service, Pls.’ Ex. C at 62, and the service date was February 18, 2016, id. at 60.

                                                 -3-
                                     C. Procedural History

        On May 22, 2017, plaintiffs filed a complaint—amended on February 13, 2019—
asserting a Fifth Amendment taking. Plaintiffs allege that the railroad line at issue was operated
upon land granted by deeds conveying only an easement, and that the abandonment of that line
would have unburdened plaintiffs’ property but for the operation of the Trails Act. Plaintiffs
assert that they owned property abutting the line on the date of the alleged taking and that
issuance of the NITU prevented the extinguishment of the railroad company’s easement,
resulting in a taking under the Fifth Amendment for which compensation is due. Plaintiffs
request fair market value for their taken property, including severance and delay damages,
interest, and attorney’s fees and costs.

        After the conclusion of fact discovery, plaintiffs filed a motion for summary judgment on
the issue of liability, arguing that they have established that Union Pacific held only an easement
in the railroad line, which would have reverted to them, as adjacent property owners, but for the
issuance of the NITU. Defendant cross-moved for partial summary judgment on liability,
contending that Union Pacific owns the land underlying the line in fee simple and therefore the
issuance of the NITU could not have resulted in a taking of the property interest alleged by
plaintiffs. Defendant further contends that the parcels owned by certain plaintiffs do not abut the
line and, with respect to certain parcels, that plaintiffs have failed to produce evidence of a
conveyance to Texas Central. The parties each filed reply briefs and then, at the court’s request,
supplemental briefs regarding the nature of the interest conveyed to Texas Central by one of the
deeds at issue. On April 8, 2020, the court granted the parties’ request to cancel oral argument
and issue a decision based on their written submissions.

                                 II. STANDARD OF REVIEW

        The parties cross-move for summary judgment on the issue of liability pursuant to Rule
56 of the Rules of the United States Court of Federal Claims (“RCFC”). Summary judgment is
appropriate when there is no genuine issue of material fact and the moving party is entitled to a
judgment as a matter of law. RCFC 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if it “may reasonably be
resolved in favor of either party.” Id. at 250.

        The moving party bears the initial burden of demonstrating the absence of any genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. The nonmoving party then bears the
burden of showing that there are genuine issues of material fact for trial. Id. at 324. Both parties
may carry their burden by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials” or by “showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” RCFC 56(c)(1).




                                                -4-
        The court must view the inferences to be drawn from the underlying facts in the light
most favorable to the nonmoving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). However, the court must not weigh the evidence or make findings of fact.
See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370,
1376 (Fed. Cir. 2002) (“On summary judgment, the question is not the ‘weight’ of the evidence,
but instead the presence of a genuine issue of material fact . . . .”), abrogated on other grounds by
Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc); Ford Motor Co.
v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); Mansfield v. United States, 71 Fed. Cl.
687, 693 (2006) (“[T]he 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.”). Entry of summary judgment is mandated against a party who fails to establish “an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp., 477 U.S. at 322. However, if neither party satisfies this burden on the
filing of cross-motions for summary judgment, then the court must deny both motions. See First
Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003) (“When both parties
move for summary judgment, the court must evaluate each motion on its own merits, resolving
reasonable inferences against the party whose motion is under consideration.”); Bubble Room,
Inc. v. United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have
moved for summary judgment does not mean that the court must grant summary judgment to one
party or the other.”).

                                        III. DISCUSSION

                       A. Fifth Amendment Takings and the Trails Act

          The Takings Clause of the Fifth Amendment prohibits the taking of private property “for
public use, without just compensation.” U.S. Const. Amend. V. 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); accord Klamath Irrigation Dist. v. United States, 635 F.3d 505, 520 n.12 (Fed. Cir. 2011)
(“It is plaintiffs’ burden to establish cognizable property interests for purposes of their takings
. . . claims.”). To demonstrate a cognizable property interest in a Trails Act case, a plaintiff must
establish ownership in land adjacent to the railroad line described in the NITU and that
ownership in that land can be traced to the railroad company’s acquisition. Brooks v. United
States, 138 Fed. Cl. 371, 377 (2018). A plaintiff must also establish that the railroad company
acquired an easement for railroad purposes that continued to exist at the time of the alleged
taking. Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009); Preseault v.
United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (en banc) (“Preseault II”). Specifically, the
“determinative issues” are:

       (1) who owns the strip of land involved, specifically, whether the railroad
       acquired only an easement or obtained a fee simple estate; (2) if the railroad

                                                -5-
       acquired only an easement, were the terms of the easement limited to use for
       railroad purposes, or did they include future use as a public recreational trail
       (scope of the easement); and (3) even if the grant of the railroad’s easement was
       broad enough to encompass a recreational trail, had this easement terminated prior
       to the alleged taking so that the property owner at the time held a fee simple
       unencumbered by the easement (abandonment of the easement).

Ellamae Phillips Co., 564 F.3d at 1373 (citing Preseault II, 100 F.3d at 1533). In general, state
law governs the determination of the property interest acquired by the railroad company. See
Preseault I, 494 U.S. at 8 (“State law generally governs the disposition of reversionary interests
. . . .”); Preseault II, 100 F.3d at 1534 (“The question of what estates in property were created by
these turn-of-the-century transfers to the Railroad requires a close examination of the conveying
instruments, read in light of the common law and statutes of [the state] then in effect.”).
Moreover, the acquisition of property rights is governed by the law in effect at the time the rights
were acquired. See Hash v. United States, 403 F.3d 1308, 1315 (Fed. Cir. 2005); Preseault II,
100 F.3d at 1534.

        “[I]f the court concludes that a cognizable property interest exists, it determines whether
the government’s action amounted to a compensable taking of that interest.” Casitas Mun. Water
Dist., 708 F.3d at 1348. In Trails Act cases, a taking occurs 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); accord id. at 1023 (“A taking occurs when state law reversionary property
interests are blocked.”). It is well settled that the Board’s issuance of “[t]he NITU is the
government action that prevents the landowners from possession of their property unencumbered
by the easement.” Id. at 1023; accord Barclay v. United States, 443 F.3d 1368, 1374 (Fed. Cir.
2006); Caldwell, 391 F.3d at 1233-34.

                                          B. Texas Law

        Plaintiffs assert that Texas Central acquired the right of way at issue through
condemnation, deed, and prescription, and that the acquisitions relevant here were accomplished
by one of four deeds or through prescription. To determine the property interests conveyed to
Texas Central, the court must examine the acquisitions considering the law in Texas at the time
of their execution (deeds) or occurrence (prescription). 4


       4
          For civil cases in Texas, the court with final appellate jurisdiction is the Supreme Court
of Texas (“Texas Supreme Court”), which entertains appeals from fourteen regional courts of
appeals. See Tex. Gov’t Code Ann. §§ 22.001(c), 22.201(a) (West 2019). The courts of appeals,
in turn, hear appeals from the district and county-level courts within their geographic regions.
Id. § 22.220(a). Decisions from one court of appeals do not bind its sister courts of appeals. See
Tex. R. App. Proc. 56.1(a)(2) (indicating that the Texas Supreme Court may grant review of a
decision if “there is a conflict between the courts of appeals on an important point of law”);
Mitchell v. John Wiesner, Inc., 923 S.W.2d 262, 264 (Tex. App. 1996) (remarking that “[t]he
opinions of a sister court of appeals are not precedent that bind other courts of appeals”).

                                                -6-
                                      1. Deed Construction

        Under Texas law, a court “may construe a deed as a matter of law only if it is
unambiguous.” ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 874 (Tex. 2018); accord
Luckel v. White, 819 S.W.2d 459, 461 (Tex. 1991). Determining whether a deed is ambiguous
“is a question of law that must be decided by examining it as a whole in light of the
circumstances present when it was executed.” Morrison v. Robinson, 226 S.W.3d 472, 475
(Tex. App. 2006). A deed “is ambiguous when its meaning is uncertain and doubtful or is
reasonably susceptible to more than one interpretation.” ConocoPhillips Co., 547 S.W.3d at 874.
In such circumstances, an issue of fact exists regarding the parties’ intent, foreclosing summary
judgment. Id.; Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983).

        Only if the court determines that a deed is unambiguous can it proceed to construe the
deed “to ascertain the intent of the parties from all of the language within the four corners of the
deed.” Wenske v. Ealy, 521 S.W.3d 791, 794 (Tex. 2017). “Even if different parts of the deed
appear contradictory or inconsistent, the court must strive to harmonize all of the parts,
construing the instrument to give effect to all of its provisions.” Luckel, 819 S.W.2d at 461. If
the parties’ intent can be ascertained, it prevails over arbitrary or “mechanical rules of
construction, such as giving priority to certain clauses over others, or requiring the use of so-
called ‘magic words.’” Wenske, 521 S.W.3d at 794; accord Luckel, 819 S.W.2d at 463 (“[T]he
labels we have given the clauses of ‘granting,’ ‘warranty,’ ‘habendum’ and ‘future lease’ are not
controlling, and we should give effect to the substance of unambiguous provisions.” 5).
However, “if deed provisions irreconcilably conflict,” a court will “apply one provision to the
exclusion of another.” Averyt v. Grande, Inc., 717 S.W.2d 891, 893 (Tex. 1986); see also
Veltmann v. Damon, 701 S.W.2d 247, 247-48 (Tex. 1985) (per curiam) (“It is well-settled that
when there is an irreconcilable conflict between clauses of a deed, the granting clause prevails

       5
          A deed traditionally consists of several parts. At common law, “[t]he premises, which
included the granting clause, the naming of the grantor and grantee, the expression of
consideration, and a description of the land conveyed, were looked to to supply the grantor,
grantee, the consideration, the operative words or words of grant and the description . . . .”
Harris v. Strawbridge, 330 S.W.2d 911, 915 (Tex. Civ. App. 1959). Within the premises, the
granting clause contains “[t]he words that transfer an interest in a deed,” Granting Clause,
Black’s Law Dictionary (11th ed. 2019), and is usually followed by the “description,” which
formally details the boundaries of the land subject to the deed, Legal Description, Black’s Law
Dictionary, supra. Following the premises is the habendum clause, which “serve[s] to define the
estate granted.” Harris, 330 S.W.2d at 915. “The introductory words to the clause are ordinarily
to have and to hold.” Habendum Clause, Black’s Law Dictionary, supra; see also 4 Tiffany Real
Property § 966 n.14 (3d ed. 2018) (“Ordinarily, the ‘habendum clause’ relates to the quantum of
the estate, while the premises and the granting clause designate the grantee and the thing
granted.”). The deed may also include a reddendum clause, which reserves rights to the grantor.
Dale A. Whitman et al., Law of Property 706 (4th ed. 2019). A deed often concludes with a
warranty of title, which is “[a] warranty that the seller or assignor of property has title to that
property, that the transfer is rightful, and that there are no liens or other encumbrances beyond
those that the buyer or assignee is aware of at the time of contracting.” Warranty, Black’s Law
Dictionary, supra.

                                                 -7-
over all other provisions.”); Waters v. Ellis, 312 S.W.2d 231, 234 (Tex. 1958) (“It is a
recognized rule of construction that where there is a ‘necessary repugnance’ of clauses in a
conveyance, the granting clause prevails over the other provisions of the deed.”); Moore v. City
of Waco, 20 S.W. 61, 63 (Tex. 1892) (observing that the habendum clause may be rejected if it is
repugnant to the other clauses of the deed).

        In Texas, railroad companies may, by deed, acquire land for the operation and
maintenance of their railroads in fee simple or as an easement. See 1895 Tex. Rev. Civ. Stat.
arts. 4478-4479; Brightwell v. Int’l-Great N. R.R. Co., 49 S.W.2d 437, 438 (Tex. 1932). In
determining whether a deed conveys a fee simple or an easement, Texas courts examine the use
and placement of the phrase “right of way.” In Calcasieu Lumber Co. v. Harris, the Texas
Supreme Court recognized that “the words ‘right of way’ have become descriptive of the land
over which a railway runs, to the extent to which the easement extends,” but observed that, more
generally, “[t]he words ‘right of way,’ if not defined, are expressive of the very nature of the
right ordinarily held by railway companies in the lands over which their roads run; a right to use
the land only for railway purposes; an easement.” 13 S.W. 453, 455 (Tex. 1890). Subsequently,
in Right of Way Oil Co. v. Gladys City Oil, Gas & Manufacturing Co., the Texas Supreme Court
remarked that “[a]ll authorities agree that the grant of a ‘right of way’ confers only an easement
in the land,” but that “land to be used as a right of way may be conveyed in fee; therefore the
character of the title conveyed must be determined by the words used and the attending facts and
circumstances.” 157 S.W. 737, 739 (Tex. 1913). Texas courts applied the holdings of Calcasieu
Lumber and Right of Way Oil Co. over the ensuing decades, and the rule that emerged was
described in 1952 by the Texas Supreme Court in Texas Electric Railway Co. v. Neale:

       [A] deed which by the terms of the granting clause grants, sells and conveys to the
       grantee a “right of way” in or over a tract of land conveys only an easement; and
       . . . a deed which in the granting clause grants, sells and conveys a tract or strip of
       land conveys the title in fee, even though in a subsequent clause or paragraph of
       the deed the land conveyed is referred to as a right of way.

252 S.W.2d 451, 453 (Tex. 1952) (citation omitted). The Texas Supreme Court further
explained that a “declaration in a deed of the purpose for which land is conveyed or the use to be
made of it does not impose a condition upon the title granted; nor does it operate to limit the
grant to a mere easement.” Id. at 456; accord id. at 454.

        If a court determines that a deed conveys an easement, that easement’s scope is narrowly
construed. See Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 701 (Tex. 2002) (holding
that while “the manner, frequency, and intensity of an easement’s use may change over time to
accommodate technological development[,] . . . such changes must fall within the purposes for
which the easement was created, as determined by the grant’s terms”); see also id. (“[I]f a
particular purpose is not provided for in the grant, a use pursuing that purpose is not allowed.”).
This policy is intended to prevent easements from “effectively becom[ing] possessory, rather
than nonpossessory, land interests.” Id. at 702.




                                                -8-
                                          2. Prescription

        In Texas, an easement can also be obtained through prescription. Prescription, like
adverse possession, “permit[s] acquisition of property rights through the passage of time, if
certain conditions are met, but prescription is applied to servitudes while adverse possession is
applied to possessory estates.” Restatement (Third) of Prop.: Servitudes § 2.17 cmt. a (Am. Law
Inst. 2000); see also id. (“To acquire an interest by adverse possession, the claimant must
maintain exclusive possession of the claimed property during the statutory period. To acquire a
servitude, however, the claimant is only required to use the property during the prescriptive
period.”).

        A railroad company can acquire property rights through prescription. Int’l-Great N. R.R.
Co. v. John T. Brady Corp., 283 S.W. 484, 487-88 (Tex. Comm’n App. 1926, judgm’t adopted).
Indeed, “in the absence of any testimony on the subject, it cannot be assumed that the [railroad
company] acquired from the owner of the fee any other rights except those which the law entitled
it to demand from the owner of the fee,” Phillips v. Tex. & Pac. Ry. Co., 296 S.W. 877, 880
(Tex. Comm’n App. 1927, holding approved), and railroad companies are entitled by law to
demand only an easement from fee owners, see 1895 Tex. Rev. Civ. Stat. art. 4473 (“The right of
way . . . to be secured to any railroad company . . . , in the manner provided by law, shall not be
so construed as to include the fee simple estate in lands . . . .”); accord 1911 Tex. Rev. Civ. Stat.
art. 6532. An easement acquired through prescription is generally limited to the land that was
used for the operation and maintenance of the railroad. See Int’l-Great N. R.R. Co., 283 S.W. at
488 (“In the absence of anything to designate the exact extent of the boundaries of the right of
way claimed [through prescription], it must be confined to the roadbed proper, and such adjacent
land as has been used and enjoyed by the railway company, in connection with the roadbed, for
the purpose of operating its railway.” (quoting Tex. & Pac. Ry. Co. v. Gaines, 27 S.W. 266, 267
(Tex. Civ. App. 1894))); accord District of Columbia v. Robinson, 180 U.S. 92, 100 (1901)
(“Relying for right of way on use, the right could not extend beyond the use.”), cited in 31A Tex.
Jur. 3d Easements & Licenses in Real Property § 43 (2020); see also 1895 Tex. Rev. Civ. Stat.
arts. 4425 (providing that a railroad company had “the right to lay out its road not exceeding two
hundred feet in width, and to construct the same”), 4445 (allowing railroad companies to obtain
land by condemnation “for the purposes of its incorporation or the transaction of its business, for
its depots, station buildings, machine and repair shops, or for the right of way, or any other
lawful purpose connected with or necessary to the building, operating or running its road”); cf.
Allen v. Keeling, 613 S.W.2d 253, 254-55 (Tex. 1981) (“When a road is established by
prescription, the right is not limited to the beaten path used, but includes sufficient land, where
reasonably available, for drainage ditches, repairs, and the convenience of the traveling public.”).
“To obtain a prescriptive easement,” a railroad company “must use someone else’s land in a
manner that is open, notorious, continuous, exclusive, and adverse for the requisite period of
time.” Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979). By statute, the requisite time period
is ten years. 1895 Tex. Rev. Civ. Stat. art. 3343; accord 1925 Tex. Rev. Civ. Stat. art. 5510;
1911 Tex. Rev. Civ. Stat. art. 5675; Phillips, 296 S.W. at 880.




                                                 -9-
                        C. Interest Acquired by Texas Central by Deed

        With respect to most of their claims, plaintiffs assert that Texas Central acquired an
easement for its line by deed. Pls.’ Mem. Supp. 13-14. Plaintiffs’ claims implicate four such
deeds––the Falkner deed, the Brown deed, the George deed, and the Davis deed. Id. Plaintiffs
contend that these deeds conveyed only an easement because (1) they convey a “right of way”
and (2) there would be no reason to convey the right to “take and use” all of the stone, timber,
earth, and other material from the land if a fee was being conveyed. Id. at 14. Defendant
counters that plaintiffs’ claims fail because the railroad company owned the land underlying the
railroad line in fee simple. Def.’s Mem. Supp. 7-12. Defendant contends that under Texas law,
courts look to the granting clause of a deed to determine the estate it conveys, and if the granting
clause states that it conveys a “tract, parcel, or strip of land,” then the deed transfers a fee simple
interest in the land. Id. at 8-9 (quoting Ybanez v. United States, 98 Fed. Cl. 659, 666 (2011)).
Defendant argues that because each of the deeds at issue state that they convey a “piece or
parcel” of land, they “clearly establish[] that the Railroad acquired fee simple ownership of the
corridor.” Id. at 9. Defendant further argues that because the deeds do not mention “right-of-
way” in the granting clause, but only in subsequent clauses, such usage does not “limit or change
the conveyance of a fee simple estate.” Id. at 10-11.

        In their reply, plaintiffs urge a holistic reading of the deeds that gives meaning to all of
their provisions regardless of where key terms might appear. Pls.’ Reply 2-5. In doing so, they
contend that each deed’s granting clause is divided into two parts, with the description of the
land situated in between. Id. Defendant rejects this argument, Def.’s Reply 2-3, as well as
plaintiffs’ contention that the conveyance of stone, timber, earth, and other material is evidence
that the deeds convey easements, id. at 6-8.

                                       1. The Falkner Deed

       The court first addresses the interest acquired by Texas Central through the Falkner deed,
which relates to the claims of George Anderson; Michael and Regina Holleman; Teresa Mays;
Lester McDowell (parcel 180695); 6 Tanya Renee Rigsby, n/k/a Tanya Graves; and David Smith.
That deed provides: 7

               That we C. Falkner and wife Emma J. Falkner of the County of McLennan
       State of Texas for and in consideration of Three Thousand Five Hundred
       ($3500.00) Dollars to us in hand paid by The Texas Central Railroad Company a

       6
          In their amended complaint, plaintiffs allege that Mr. McDowell owns three parcels
adjacent to the railroad line. Only one of those parcels (parcel 180695) is affected by the Falkner
deed. The other two parcels (parcels 180704 and 180705) are affected by the Brown deed, as are
the three additional parcels identified by plaintiffs in their proposed findings of uncontroverted
fact and attached claims book (parcels 161808, 161809, and 172002). With respect to the latter
three parcels, the court, of course, cannot rule on claims not actually pled.
       7
         The court has italicized the description of the land for ease of reference to the
surrounding provisions.

                                                 -10-
corporation of the County of _____ and State of Texas the receipt of which is
hereby acknowledged _____ have granted, bargained, sold and conveyed by these
presents do grant, bargain, sell and convey unto the said Texas Central Railroad
Company all that piece or parcel of land, situate, lying and being in the County of
McLennan, State of Texas, and described as follows: Being a strip of land 75 feet
in width lying immediately west and adjacent to the right of way of the Houston &
Texas Central Railroad Company, as the same is now located and established
through East Waco and more particularly described as follows: Beginning at the
intersection of the east line of Chamberlain Street in said East Waco with the west
line of the right of way of the Houston & Texas Central Railroad as the same is
now located in East Waco which point is opposite station No __ of the survey line
of the Texas Central Railroad from Ross to Waco as now located and established.
Thence in a northwesterly direction along the east line of Chamberlain Street to a
point where said east line would intersect a line 75 feet from and parallel to the
west line of the right of way of said Houston & Texas Central Railroad for corner
of this. Thence in a northerly direction on a line 75 feet from and parallel to said
west line of the right of way of said H&TC Ry passing over and upon the
following blocks viz Blocks 20, 22, 21 and 23 of the Davis addition to East Waco
to Davis Street on the north side of said Block 23 and passing said Davis Street
and entering the south line of our home place on the Tomas de la Vega survey at
point where a line 75 feet from and parallel to the west line of the right of way of
said H&TC Ry would intersect our said south line and continuing in a northerly
direction 75 feet from and parallel to said west line of right of way of said H&TC
Ry over and across our said home place to the north line thereof at station No 94
of the survey of the Texas Central Railroad from Ross to Waco as the same is now
located. Thence in a northeasterly direction along our said north line to its point
of intersection with the west line of the right of way of said H&TC Ry Thence in a
southerly direction along said west line of right of way of the H&TC Ry over and
across our said home place and over and across the blocks above named in the
Davis addition to East Waco to the point of intersection of said west line of right
of way of the H&TC Ry with the east line of Chamberlain Street the place of
beginning. This conveyance is made to the Texas Central Railroad Company for
a right of way over and upon which the said railroad company is to construct and
operate and maintain its said railroad as the same is now located and established
over and upon the above described tracts of land. And the right to take and use all
stone earth and other material existing or that may be found within the right of
way is hereby granted. It is understood and agreed that the said Falkner hereby
secures the right to remove all trees and wood from said land provided the same is
removed therefrom on or before 29th day of March 1902: and that the said
Falkner shall also remove all houses and other improvements upon said land
provided the same are removed prior to April 9th 1902. Said Texas Central RR
Co agrees to build a hog proof fence on the west line of right of way hereby
granted and have permission to use the wire belonging to said Falkner now strung
on the west line of the H&T C Ry Co’s fence at said place. It is further agreed
and understood that the consideration above named is received and accepted as
payment for the above right of way and also in full settlement of all damages

                                       -11-
        resulting to the said Falkner by reason of the proper construction operation and
        maintenance of said Texas Central Railroad on and over said land. It is further
        covenanted that if the land herein conveyed shall be permanently abandoned for
        railroad purposes and cease to be used for right of way as such then the same shall
        revert to the grantors herein.

               To Have and to Hold the above described premises, together with all and
        singular the rights and appurtenances thereto in anywise belonging unto the said
        Texas Central Railroad Company its successors and assigns forever; and we do
        hereby bind ourselves and our heirs, executors and administrators to warrant and
        forever defend all and singular the said premises unto the said Texas Central
        Railroad Company its successor and assigns, against every person whomsoever
        lawfully claiming or to claim the same or any part thereof.

Pls.’ Ex. I.

       To determine the intent of the parties, the court begins by examining the deed’s granting
clause. That clause reflects that the Falkners agreed to “grant, bargain, sell and convey unto the
said Texas Central Railroad Company all that piece or parcel of land” thereafter described. Id.
Neither the phrase “right of way” nor any other language suggesting an easement appears in the
clause. Thus, the granting clause reflects a fee simple conveyance.

       Plaintiffs, however, contend that this deed conveys an easement based upon the two
sentences that appear immediately after the description of the land:

        This conveyance is made to the Texas Central Railroad Company for a right of
        way over and upon which the said railroad company is to construct and operate
        and maintain its said railroad as the same is now located and established over and
        upon the above described tracts of land. And the right to take and use all stone
        earth and other material existing or that may be found within the right of way is
        hereby granted.

Id. They advance two interrelated arguments in support of their contention. First, they argue
that under the holistic approach to construing deeds favored in Texas, the language that follows
the description of the land evinces a clear intent to convey an easement, both due to the use of
the phrase “right of way” and to the redundancy of granting a right to take and use certain
material from the land if a fee conveyance was intended. Second, they argue that the granting
clause does not end at the beginning of the description of the land, but continues afterwards to
include the quoted language.

        Plaintiffs’ arguments are not persuasive. As an initial matter, plaintiffs cite no authority
for the proposition that a granting clause can be interrupted by the description of the land. More
importantly, the language they quote does not reflect an intent to convey an easement. The first
sentence merely describes the purpose for which the land would be used, and therefore does not
limit the title granted. See Neale, 252 S.W.2d at 456. Further, a clear statement in a deed’s
granting clause is not altered by subsequent references to the land as a “right of way.” See id. at

                                                -12-
453. This rule, which is premised on there being a lack of ambiguity in a deed’s granting clause,
has not been disturbed by the Texas Supreme Court since its articulation, even with the
subsequent focus on determining the intent of the parties by examining the four corners of the
deed. See BNSF Ry. Co. v. Chevron Midcontinent, L.P., 528 S.W.3d 124, 135 (Tex. App. 2017)
(“[W]hile Neale’s clause-driven analysis is in tension with the current four-corners approach
espoused by Luckel, we, as other courts, will apply the precepts handed down by Neale.”);
accord id. at 132 n.7. And, although the second sentence of the language relied upon by
plaintiffs may be redundant, it can also be read to clarify that Texas Central was entitled only to
material that existed within the strip of land, rather than to material from land not conveyed.
Regardless, under Neale, it cannot be construed to alter the unambiguous language in the
granting clause. Accord id. at 133 n.8 (“Under Neale, the unambiguous granting clause would
knock out any contradictory language repugnant to that conveyance, which would mean reading
the natural resource right allocation as being a redundancy.”). In short, the Falkner deed can be
read harmoniously to convey a fee simple rather than an easement.

        There is, however, one additional clause in the Falkner deed that deserves attention to
ascertain whether plaintiffs retained any interest in the land conveyed by the deed that would
have been disturbed by the issuance of the NITU: “It is further covenanted that if the land herein
conveyed shall be permanently abandoned for railroad purposes and cease to be used for right of
way as such then the same shall revert to the grantors herein.” On its face, the clause appears to
indicate that the fee simple estate granted by the deed is a defeasible fee. 8

       Texas recognizes defeasible fee conveyances, such as the fee simple subject to condition
subsequent and the fee simple determinable.

               A fee simple determinable is an estate that automatically terminates on the
       happening of a stated event and goes back to the grantor. The standard language
       used to create a fee simple determinable is “for so long as”, “while”, “during”, or
       “until”. The grantor does not have to expressly retain a possibility of reverter. It
       arises automatically in the grantor as a consequence of his conveying a “so long
       as” estate, with its built-in time limitation. . . .

               A fee simple subject to condition subsequent is created when the grantor
       retains the power to terminate the estate of the grantee upon the happening of a

       8
          Plaintiffs assert that this clause is merely another way to state that the easement granted
by the deed will be extinguished when it is no longer being used for the purpose created. Pls.’
Supplemental Br. 4. If the deed created a railroad purposes easement, such a clause would be
redundant. Moreover, the language used in the clause has been construed to create a
reversionary interest for the grantor of a fee estate. See, e.g., Stevens v. Galveston, Harrisburg &
San Antonio Ry. Co., 212 S.W. 639, 644 (Tex. Comm’n App. 1919, judgm’t adopted)
(construing, in a deed conveying a fee simple, the clause “if said premises shall cease wholly to
be used for the purposes herein contained, they shall revert to the grantors or their successors” as
setting forth a condition subsequent); see also Rogers v. United States, 107 Fed. Cl. 387, 398
(2012) (“It is well recognized that a fee estate may be limited by a proviso that the estate shall
expire upon a specified occurrence.”), aff’d, 814 F.3d 1299 (Fed. Cir. 2015).

                                                -13-
       specified event. Upon the happening of the event, the estate continues until the
       grantor exercises her power of termination. Words such as “upon condition that”,
       “provided that”, “but if”, and “if it happens that” are the standard language used
       to create a fee simple subject to condition subsequent. In order to create a fee
       simple subject to condition subsequent it is necessary to raise expressly the right
       of entry in the grantor; this retained interest does not automatically arise as in the
       case of a fee simple determinable. 9

Crowell v. Tex. A & M Univ. Sys., No. 05-94-01510-CV, 1995 WL 316833, at *5 (Tex. App.
May 25, 1995) (footnote added) (citations omitted). See generally Howard R. Williams,
Restrictions on the Use of Land: Conditions Subsequent and Determinable Fees, 27 Tex. L. Rev.
158 (1948). A mere statement of the purpose for which the land being conveyed will be used is
insufficient to create either a fee simple determinable or a fee simple subject to condition
subsequent; an instrument that includes nothing more than such a statement conveys a fee simple
absolute. Id. In addition, “when there is doubt from the entire language of the instrument”
regarding whether the instrument conveys a fee simple determinable or a fee simple subject to
condition subsequent,

       the doubt must be resolved in favor of the latter as being in a sense less onerous
       upon the grantee in that, under such a construction, the estate does not terminate
       automatically with the occurrence of the stated contingency, but only after re-
       entry or its equivalent is made by the grantor.

Lawyers Tr. Co. v. City of Houston, 359 S.W.2d 887, 890 (Tex. 1962); accord Couch v. S.
Methodist Univ., 10 S.W.2d 973, 974 (Tex. Comm’n App. 1928) (“The universal rule of
construction of deeds, where there is uncertainty, is to adopt that construction most favorable to
the grantee, for the grantor selects his own language, and the policy of the law frowns upon
forfeitures, conditions, and limitations, and favors the utmost freedom of titles.”). However,
conditions subsequent are also disfavored,

       and the promise or obligation of the grantee will be construed as a covenant
       unless an intention to create a conditional estate is clearly and unequivocally
       revealed by the language of the instrument. In cases where the intention is
       doubtful, the stipulation is treated as a covenant rather than a condition
       subsequent with the right to defeat the conveyance.

Hearne v. Bradshaw, 312 S.W.2d 948, 951 (Tex. 1958); see also Chi., Tex. & Mexican Cent. Ry.
Co. v. Titterington, 19 S.W. 472, 472 (Tex. 1892) (“[P]romises or obligations of the railway
company referred to in the deed are in the nature of covenants, not conditions, and therefore the
plaintiffs . . . could not reclaim the land itself on account of the nonperformance of the covenants

       9
          The future interests retained by the grantor conveying a fee simple determinable (a
possibility of reverter) and a fee simple subject to condition subsequent (a right of reentry) are
reversions. El Dorado Land Co., L.P. v. City of McKinney, 395 S.W.3d 798, 803 (Tex. 2013);
Restatement (Third) of Prop.: Wills and Donative Transfers § 25.2 & cmts. a-b (Am. Law Inst.
2011).

                                                -14-
or promises by the grantee, but would be required to sue for the damages arising from the breach
of the contract.”).

        Under Texas law, the clause in the Falkner deed describes a fee simple subject to
condition subsequent. The plain language of the clause is ambiguous: It begins with the word
“if,” which usually signals a condition subsequent, but concludes with language more closely
aligned with the possibility of reverter. Because such ambiguities are resolved most favorably to
the grantee, the clause must be construed as setting forth a condition subsequent. This
construction is appropriate even in the absence of language providing for an express right of
reentry upon the breach of the condition. See, e.g., Stevens, 212 S.W. at 644 (construing the
clause “if said premises shall cease wholly to be used for the purposes herein contained, they
shall revert to the grantors or their successors” and the clause “so long as the said land shall be
used as a railroad right of way and if not so used shall revert to the grantors herein” as setting
forth conditions subsequent); Jeffery v. Graham, 61 Tex. 481, 482 (1884) (construing the clause
“in case of any violation of said last mentioned considerations, then this deed shall be null and
void, and said premises shall absolutely revert to said [grantor]” as setting forth a condition
subsequent).

       Furthermore, the clause in the Falkner deed reserved the benefit of the condition
subsequent solely to the Falkners, and not to their heirs or assigns. 10 See Daggett v. City of Ft.

       10
            Precedent from the early 1900s suggests that only a grantor could benefit from a
condition subsequent and exercise the right of reentry, at least before the condition was breached.
See, e.g., Stevens, 212 S.W. at 644; McBride v. Farmers’ & Merchants’ Gin Co., 152 S.W. 1135,
1136 (Tex. Civ. App. 1913). However, more recent precedent from the Texas Supreme Court
indicates that the right of reentry is “freely assignable like other property interests.” El Dorado
Land Co., 395 S.W.3d at 803.

         Furthermore, the court was unable to locate, and the parties did not identify, any
precedent holding that subsequent purchasers of adjacent lots (even adjacent lots originally
owned by a grantor who reserved a right of reentry) obtain the right of reentry upon the breach of
a condition. Cf. Maddox v. Adair, 66 S.W. 811, 813-14 (Tex. Civ. App. 1901) (explaining that a
grantor who conditioned the sale of a lot on the establishment and maintenance of a school on
that lot to increase the value of his adjacent land could not recover the lot for breach of that
condition after he sold the adjacent land because he no longer had a financial interest in the
continued maintenance of a school on the lot). The sole decision cited by plaintiffs in support of
such a proposition, Escondido Services, LLC v. VKM Holdings, LP, 321 S.W.3d 102 (Tex. App.
2010), is unavailing. That decision concerns the application of the strip and gore doctrine to a
mineral estate reserved by the grantor in a deed conveying the surface estate to the State of Texas
for use as a public highway. Id. at 103. Although plaintiffs attempt to analogize the reserved
mineral estate to the reversionary interest at issue here, Pls.’ Supplemental Br. 5-6, nothing in the
appellate court’s ruling suggests that the two scenarios are analogous. Indeed, Texas Central and
its successors in interest held a fee simple interest in the strip of land (unlike the State of Texas
in Escondido Services, which held no interest in the mineral estate at issue), and permitting an
adjoining landowner to obtain title to that land through the application of the strip and gore
doctrine would improperly usurp the fee owner’s valid legal title in the land.

                                                -15-
Worth, 177 S.W. 222, 223 (Tex. Civ. App. 1915) (“[U]nless the heir is named, he cannot re-
enter, though the condition is breached; the estate does not inure to his benefit.”). But see Watts
v. City of Houston, 196 S.W.2d 553, 555 (Tex. Civ. App. 1946) (suggesting, in dicta, that a will
bequeathing the residue of an estate could pass a right of reentry to the testator’s heirs).
Accordingly, if the Falkners did not attempt to reenter the land during their lifetimes, the fee
simple estate acquired by Texas Central ripened into a fee simple absolute. There is no evidence
in the record before the court that the Falkners exercised their right of reentry, that the Falkners
devised their right of reentry to their heirs (to the extent they were permitted to do so), or that
Texas Central or its successors in interest permanently abandoned the railroad line during the
Falkners’ lifetimes. Indeed, that Union Pacific deeded the land to the City of Waco in August
2016 suggests that a right of reentry had not been exercised. Consequently, Union Pacific held
title to the land conveyed by the Falkner deed in fee simple absolute, foreclosing the claims of
the plaintiffs proceeding under that deed. The court therefore dismisses those claims. 11

                                2. The Brown and George Deeds

        The court turns next to the Brown and George deeds, which relate to the claims of
Audrey Bables; the Estate of Justo and Clara Beltran; Adele Mary Gadlin; Sherry and Ralph
David Holloman; Eunice Jackson; Robert Moore King and Doris J. King, Lester McDowell
(parcels 180704 and 180705); 12 Maria Rosa Mendoza; Junior Morgan; Gina Gail Mosely; Eric J.
Powers; W.S. Spearman; Lydia C. Weaver; and Charles E. and Apala D. Wilson. These two
deeds contain substantially similar language. The court therefore examines the deeds together.

       The Brown deed provides: 13

               That we E. K. Brown and Mary T. Brown wife of said E. K. Brown of the
       County of McLennan State of Texas for and in consideration of Four Hundred
       and Fifty Nine ($459.00) Dollars to us in hand paid by The Texas Central
       Railroad Company a corporation of the County of McLennan and State of _____
       the receipt of which is hereby acknowledged _____ have granted, bargained, sold
       and conveyed, and by these presents do grant, bargain, sell and convey unto the
       said Texas Central Railroad Company all that piece or parcel of land, situate,
       lying and being in the County of McLennan, State of Texas, and described as
       follows: Being a part of the Tomas de La Vega Grant beginning at a point where
       the west line of the right of way of the Houston & Texas Central Railway
       Company running from Waco to Ross intersects the south line of our farm and
       tract of land on which we reside for corner: thence northward along the west line
       of the right of way of said H&TC Ry Co to the north line of our said tract of land

       11
            Because the court concludes that the Falkner deed conveyed a fee simple that ripened
into a fee simple absolute, it need not address the parties’ dispute regarding the effect of an
intervening road on the claim of Michael and Regina Holleman.
       12
            See supra note 6.
       13
            See supra note 7.

                                                -16-
       a distance of about 3559 feet for corner: thence in a westerly direction along the
       north line of our said tract of land to a point where a line perpendicular to the
       said west line of the right of way would intersect said north line at 75 feet: thence
       in a southerly direction 75 feet from and parallel to said west line of the right of
       way of said H&TC Ry Co to the south line of our tract of land for corner: thence
       along our south line in an easterly direction to the place of beginning, the same
       being a strip of land 75 ft in width immediately adjoining the west line of the right
       of way of said H&TC Ry Co and extending from station No 93 plus 92.5 feet of
       the survey line of said Texas Central Railroad Company from Waco to Ross is
       now located and established to station No 129 plus 51.6 on said survey line and
       containing about six and 10/100 acres of land. This conveyance is made to the
       said Texas Central Railroad Company for a right of way over and upon which the
       said Railroad Company is to construct operate and maintain its said railroad as the
       same is now located and established over and upon the above described tract of
       land and the right to take and use all timber earth stone and other material
       existing, or that may be found within the right of way, is hereby granted.

               It is further agreed and understood that the said Texas Central Railroad
       Company shall construct and provide two gate crossings over said railway track at
       points opposite to the two crossings now maintained over said H&TC Railway
       Company’s tract of land.

              To Have and to Hold the above described premises, together with all and
       singular the rights and appurtenances thereto in anywise belonging unto the said
       Texas Central Railroad Company its successors and assigns forever; and we do
       hereby bind ourselves our heirs, executors and administrators to warrant and
       forever defend all and singular the said premises unto the said Texas Central
       Railroad Company its successor and assigns, against every person whomsoever
       lawfully claiming or to claim the same or any part thereof.

Pls.’ Ex. J. The George deed provides: 14

               That we C. J. George and wife F. H. George wife of said C. J. George of
       the County of McLennan State of Texas for and in consideration of Four Hundred
       and sixty one and 40/100 dollars ($461.40) to us in hand paid by The Texas
       Central Railroad Company a corporation of the County of _____ and State of
       Texas the receipt of which is hereby acknowledged _____ have granted,
       bargained, sold and conveyed, and by these presents do grant, bargain, sell and
       convey unto the said Texas Central Railroad Company all that piece or parcel of
       land, situate, lying and being in the County of McLennan, State of Texas, and
       described as follows: Being a part of the Tomas de la Vega Grant beginning at a
       point where the west line of the right of way of the Houston & Texas Central
       Railroad Company running from Waco to Ross intersects the south line of our
       farm and tract of land on which we reside for corner: thence northward along

       14
            See supra note 7.

                                               -17-
       west line of the right of way of said Houston & Texas Central Railroad Co to the
       north line of our said tract of land a distance of about 3,573 feet 4 inches for
       corner: thence in a westerly direction along the north line of our said tract of
       land to a point where a line perpendicular to the said west line of the right of way
       would intersect said west line at 75 feet: thence in a southerly direction 75 feet
       from and parallel to said west line of the right of way of said H&TC RR Co to the
       south line of our tract of land for corner: thence along our south line in an
       easterly direction to the place of beginning the same being a strip of land 75 feet
       in width immediately adjoining the west line of the right of way of said H&TC RR
       Co and extending from station No 129 plus 51 feet 6 inches of the survey line of
       said Texas Central Railroad Company from Waco to Ross as now located and
       established to station No 165 plus 25 feet on said survey line containing about
       6.152 acres of land. This conveyance is made to the said Texas Central Railroad
       Company for right of way over and upon which the said railroad company is to
       construct operate and maintain its said railroad as the same is now located and
       established over and upon the above described tract of land and the right to take
       and use all timber earth stone and other material existing or that may be found
       within the right of way is hereby granted.

              To Have and to Hold the above described premises, together with all and
       singular the rights and appurtenances thereto in anywise belonging unto the said
       Texas Central Railroad Company its successors and assigns forever; and we do
       hereby bind ourselves our heirs, executors and administrators to warrant and
       forever defend all and singular the said premises unto the said Texas Central
       Railroad Company its successor and assigns, against every person whomsoever
       lawfully claiming or to claim the same or any part thereof.

Pls.’ Ex. K.

        A review of the Brown and George deeds reflects that like the Falkner deed, the granting
clauses convey a “piece or parcel of land”; the language following the description of the land
indicates that the land is being conveyed for the construction, operation, and maintenance of a
railroad; and that language is followed by a clause granting Texas Central the right to take and
use all material from the land conveyed. Pls.’ Exs. J-K. Therefore, under the analysis set forth
above, the Brown and George deeds conveyed a fee simple estate in the identified strips of land
to Texas Central. Further, because neither deed includes limiting or conditional language
creating a defeasible fee, Texas Central obtained a fee simple absolute. Accordingly, the court
dismisses the claims of the plaintiffs relying on the Brown and George deeds. 15




       15
           Because the court concludes that the Brown and George deeds conveyed a fee simple
absolute, it need not address the parties’ dispute regarding whether some of the plaintiffs relying
on these deeds owned land adjacent to the railroad line through adverse possession.

                                               -18-
                                        3. The Davis Deed

        The final deed at issue, the Davis deed, Pls.’ Ex. L, affects only the claim of Javier and
Valentina Sanchez, see Pls.’ Mem. Supp. 6-8. The parties agree that these plaintiffs do not have
a property interest in the land underlying the railroad line because their parcel is not adjacent to
the line. See Def.’s Mem. Supp. 13-14; Pls.’ Reply 9 n.3. The court therefore dismisses the
claims of these plaintiffs.

             D. Interest Purportedly Acquired by Texas Central by Prescription

        The court next turns to the claims of the plaintiffs––Christopher Donal Estes et ux. (“the
Esteses”), Dinna Annetta Patton and Michael Patton (“the Pattons”), Lovie Lee Stanley, and
Katie G. Wright––who allege that they own land adjacent to an easement acquired by Texas
Central through prescription. See Pls.’ Mem. Supp. 6-8, 12. Specifically, plaintiffs contend that
Texas Central did not obtain record title to the land that it used to construct these segments of its
railroad and that therefore, under Texas law, the only property interest it could acquire in this
land was a prescriptive easement for railroad purposes. Id. at 12. They further contend, without
providing any supporting evidence, that Texas Central and its successors in interest operated the
railroad over the affected parcels for more than 110 years. 16 See id. Defendant objects to
plaintiffs’ invocation of prescription, arguing that because plaintiffs have not produced
documentation of Texas Central’s property interests for these segments of the railroad line, they
“have not satisfied their burden of proving that the Railroad acquired only an easement in the
corresponding segment of the corridor.” Def.’s Reply 13. It also asserts that Union Pacific’s
representation that it owned the line in fee suggests that Texas Central acquired the relevant
property in fee. 17 Def.’s Mem. Supp. 16.

                                       1. Plaintiffs’ Parcels

        The Esteses, the Pattons, Ms. Stanley, and Ms. Wright own parcels that were originally
platted in the early 1890s, before Texas Central began to acquire land for its railroad line (but
after the establishment of a right of way by the Houston and Texas Central Railway Company).
Ms. Wright’s and Ms. Stanley’s parcels were part of the Ashburn Addition of the City of Waco,
see Pls.’ Ex. M at 347, 378 (modern property records), as depicted on a plat recorded on October
14, 1890, Pls.’ Ex. S at 5-6 (plat of the Ashburn Addition). Ms. Wright owns lot 1 of block 11
and Ms. Stanley’s parcel comprises lots 9 and 10 of block 8. Pls.’ Ex. M at 347, 378. The

       16
           Plaintiffs rely on Union Pacific’s representation that no traffic had passed over the
railroad line in the two years prior to its Notice of Exemption, but do not supply any evidence
regarding when railroad operations actually ceased on the line.
       17
            Defendant relies on Union Pacific’s representation in its August 6, 2014
Environmental and Historical Report that its “real property interest in the Line consists entirely
of fee title ownership.” Def.’s Ex. 1 at 4. However, defendant fails to mention that Union
Pacific later represented, in its December 15, 2015 Notice of Exemption, that “[t]he Line
proposed for abandonment is approximately sixty percent (60%) non-reversionary property and
approximately forty percent (40%) reversionary property.” Pls.’ Ex. A at 27.

                                                -19-
In sum, portions of lots 11-14 of block 17 of the Davis Addition separate the Pattons’ parcel
from the line, and lots 6 and 7 of block 17 of the Davis Addition, along with portions of lots 4
and 5 of block 12 of the Ashburn Addition, separate the Esteses’ parcel from the line.

                   2. The Parcels Purportedly Acquired by Texas Central

        The diagrams above depict the parcels purportedly acquired by Texas Central to construct
and operate a railroad after the recording of the plats of the Ashburn Addition and the Davis
Addition. The parcels are described in a valuation schedule and depicted on an associated
valuation map prepared by Texas Central for the Interstate Commerce Commission on June 30,
1918. 20 See generally Pls.’ Ex. E at 71-73; Pls.’ Ex. F at 3. The valuation schedule identifies,

boundaries on the parties’ map diverge from these lines for some parcels (for example, the
parties ignore the northeastern boundary of parcel 19). The discrepancy is most evident when
comparing the square footage of parcels 23 and 24. According to the valuation schedule, parcel
23 is 9000 square feet and parcel 24 is only 3625 square feet. Pls.’ Ex. E at 72. However, on the
parties’ map, parcel 24 appears to be roughly twice the size as parcel 23. Because of these
errors, the court did not rely on the map included in Tab 7.
       20
            On March 1, 1913, Congress enacted a statute, commonly referred to as the Valuation
Act, requiring the Interstate Commerce Commission to “investigate, ascertain, and report the
value of all the property owned or used by every common carrier subject to” the Act’s
provisions, including “the original cost of all lands, rights of way, and terminals owned or used
for the purposes of a common carrier,” as well as “the amount and value of any . . . grant of right
of way” and “the grants of land to any such common carrier.” Act of March 1, 1913, ch. 92, 37
Stat. 701, 701-02. To implement the requirements of the Act, the Interstate Commerce
Commission issued a series of orders in which it directed railroad companies to provide the
necessary information on prescribed forms (valuation schedules) and standardized maps
(valuation maps). See, e.g., Interstate Commerce Comm’n, Specifications for Maps and Profiles
(Jan. 12, 1914) (commonly referred to as the “Map Order,” and subsequently revised by
Valuation Order No. 5, dated November 21, 1914, and Valuation Order No. 6, dated November
21, 1914); Interstate Commerce Comm’n, Orders, Instructions and Forms Pertaining to
Schedules of Land (Nov. 21, 1914) (commonly referred to as Valuation Order No. 7 and
modified with supplemental instructions dated November 1, 1916). These orders, as amended,
were subsequently codified in parts 151 and 152 of title 49 of the 1938 edition of the Code of
Federal Regulations (the year of the Code’s inception). Pursuant to the orders—in particular the
instructions for preparing the valuation schedule set forth in Valuation Order No. 7, railroad
company custodians were required to maintain files containing “each instrument conveying title
to or interest in each parcel of land . . . .” Valuation Order No. 7 at 5. The supplemental
instructions for preparing valuation schedules provided that (1) “[i]n the absence of deeds to
lands owned,” the railroad company should refer to “county, parish, or other properly
authenticated records” to provide the required information; (2) for any parcels held by the
railroad company through adverse possession, an “adverse possession” notation should be
included in the “Remarks” column of the valuation schedule; and (3) for any parcels used but not
owned by the railroad company, a “not owned” notation should be included in the “Remarks”
column of the valuation schedule. Supplemental Instructions ¶¶ 2-4.

                                               -22-
among other information, the parcel numbers, the kind and date of the conveyance instrument,
the grantor, the size of the parcel, the consideration paid for the parcel, and the date the parcel
was dedicated to public use. See generally Pls.’ Ex. E.

        For five of the parcels, the instrument was identified as a “Decla[ration] of Trust” dated
February 9, 1903, and the grantor was identified as “R.M. Cox.” 21 Id. at 71-72. For one of the
parcels, no instrument was identified, but the grantor was identified as “Mrs. H.I. Sharer.” Id. at
72. And for two of the parcels, no instrument or grantor were identified. Id. at 72-73. None of
these parcels had any information listed in the columns describing the book, page, and date of
recording. Id. at 71-73. The relevant information is summarized in the table below: 22




       21
            The parties sharply disagree regarding the nature of the declaration of trust identified
in the valuation schedule. Plaintiffs assert that the “declaration of trust is not a conveyance
instrument,” but “is a document or oral statement indicating a property is being held for the
benefit of another person,” and that “R.M. Cox was not a landowner selling land to the railroad,
he was an agent of the railroad itself.” Pls.’ Reply 8. In support of the latter contention,
plaintiffs rely on three historical documents: (1) a page from The Railroad Age and
Northwestern Railroader, dated October 7, 1898, indicating that “R.M. Cox, who [had] been
connected with the Texas Central for a number of years, [was] appointed superintendent of
transportation of that road, with headquarters at Waco, Tex.”; (2) an excerpt from the Sixteenth
Annual Report of the Texas Central Railroad Co., dated 1908, reflecting that R.M. Cox was
Texas Central’s superintendent; and (3) a page from The Official Railway Equipment Register,
circa January 1912, indicating that R.M. Cox was Texas Central’s general manager in charge of
claims. Pls.’ Ex. T. Plaintiffs argue that because R.M. Cox worked for Texas Central, he could
not have conveyed land to Texas Central. Pls.’ Reply 8-9.

        Defendant asserts that the declaration of trust could provide useful information because it
might shed light on the nature of the deeds underlying the purported trust, Def.’s Reply 13, and
because trustees “may convey, transfer, or encumber the title of the property,” id. (quoting Tex.
Prop. Code Ann. § 101.001 (West 2019)). Additionally, defendant argues that plaintiffs’
assertion that R.M. Cox was an agent of the railroad is “inadmissible speculation” and, at any
rate, plaintiffs proffer no “R.M. Cox Declaration of Trust” from which the court could determine
the nature of R.M. Cox’s relationship to the railroad or what property rights were conveyed to or
from the purported trust. Id. Ultimately, the court need not address the parties’ contentions
regarding the declaration of trust because the parties’ cross-motions for summary judgment can
be resolved on other grounds.
       22
          In addition to the information in the table, the valuation schedule reflects that for
parcels 14, 16, 19, 21, and 23, collectively, the consideration was “4120.96 and 1645.84 Notes
assumed,” and for parcel 20, the consideration was “125.00.” Pls.’ Ex. E at 71-72. No
consideration was identified for parcels 24 and 29. Id. at 72-73.

                                                -23-
                                                                                    Date of
                                       Date of                          Area
         Parcel       Kind of                                                     Dedication
                                       Instru-          Grantor         (Sq.
          No.       Instrument                                                     to Public
                                        ment                            Ft.)
                                                                                      Use
            14     Decla. of Trust    2-9-1903    R.M. Cox              13913      2-9-1903
            16     Decla. of Trust    2-9-1903    R.M. Cox               9100      2-9-1903
            19     Decla. of Trust    2-9-1903    R.M. Cox              12700      2-9-1903
            20                                    Mrs. H.I. Sharer       7295
            21     Decla. of Trust    2-9-1903    R.M. Cox              13250      2-9-1903
            23     Decla. of Trust    2-9-1903    R.M. Cox               9000      2-9-1903
            24                                                           3625
            29                                                            900

Id.

        In sum, when the valuation schedule and valuation map are read in conjunction with the
recorded plats of the Ashburn and Davis Additions and modern property records, it appears that
the Pattons’ parcel is separated from the railroad line by parcel 29, a portion of parcel 24, and a
portion of parcel 23; the Esteses’ parcel is separated from the line by parcel 21, a portion of
parcel 20, 23 and a portion of parcel 19; Ms. Stanley’s parcel is separated from the line by
Ashburn Street and a portion of parcel 14; and Ms. Wright’s parcel is separated from the line by
Ashburn Street and a portion of parcel 16.

  3. Effect of Plaintiffs’ Failure to Produce any Instruments Conveying Parcels 14, 16, 19,
                                      20, 21, 23, 24, and 29

        There is no dispute that Union Pacific received whatever property interest Texas Central
held in the railroad line, and that this interest has been in possession of either Union Pacific or its
predecessors in interest from the early 1900s until the execution of the trail-use agreement.
However, the nature of the property interest acquired by Texas Central in parcels 14, 16, 19, 20,
21, 23, 24, and 29 is unknown because plaintiffs have not produced an instrument conveying an
interest in those parcels to Texas Central. Nor have plaintiffs produced any evidence, such as an
affidavit reflecting that a title search did not reveal the conveyance to Texas Central, to support
their contention that any instrument conveying the land underlying the railroad line to Texas
Central has been lost. Rather, the record before the court includes only circumstantial evidence
regarding how Texas Central obtained the property at issue—mainly, the information included in
the valuation schedule. 24

       23
          It is unclear from the valuation map whether parcel 20 extends to the western
boundary of lot 5 (represented by the solid line on the diagram) or the eastern boundary of lot 4
(represented by the dashed line on the diagram). For the purpose of the court’s analysis, the
precise boundary is irrelevant.
       24
            As noted above, defendant relies on Union Pacific’s representation that it owned the
railroad line in fee as evidence that Texas Central acquired the relevant parcels in fee. Def.’s
Mem. Supp. 15-16. However, the representation upon which defendant relies is countered by
                                                 -24-
        Plaintiffs’ failure to produce direct evidence of a conveyance to Texas Central is not fatal
to the claims of the Pattons, the Esteses, Ms. Stanley, and Ms. Wright. “A deed or other
instrument may be proved by circumstances or presumptive evidence, and the tendency of the
courts is to extend rather than limit the rule.” Miller v. Fleming, 233 S.W.2d 571, 575 (Tex.
1950). Moreover, “in the matter of ancient transactions, the parties thereto being dead and no
direct evidence available, the authorities draw no distinction between proof of deed by
circumstantial evidence and proof of circumstances from which the execution of the ancient
instrument may be presumed[.]” Price v. Humble Oil & Ref. Co., 152 S.W.2d 804, 810 (Tex.
Civ. App. 1941). Indeed, it is “well established that a conveyance of land may be established by
circumstantial evidence.” Adams v. Slattery, 295 S.W.2d 859, 868 (Tex. 1956); see also Fair v.
Arp Club Lake, Inc., 437 S.W.3d 619, 626 (Tex. App. 2014) (“The doctrine of presumed lost
deed or grant, which is also referred to as title by circumstantial evidence, has been described as
a common law form of adverse possession. The purpose is to settle titles where the land was
understood to belong to one who does not have a complete record title, but has claimed the land
a long time.” (citation omitted)). Furthermore, circumstantial evidence may be used to establish
a prescriptive easement. See Schultz v. Shatto, 237 S.W.2d 609, 614 (Tex. 1951) (citing Ladies’
Benevolent Soc. of Beaumont v. Magnolia Cemetery Co., 288 S.W. 812, 815 (Tex. Comm’n
App. 1926)).

        Consequently, for plaintiffs to establish that Texas Central acquired an easement in the
railroad line without producing an instrument reflecting a conveyance to Texas Central, they
would need to establish that any such instrument had been lost and then demonstrate that Texas
Central and/or its successors in interest operated a railroad “in a manner that [was] open,
notorious, continuous, exclusive, and adverse for the requisite period of time.” Brooks, 578
S.W.2d at 673. Aside from the suggestion that one of Texas Central’s successors in interest
“reclassified” the line in 1967 and “viewed [it] as an unregulated switching spur,” Def.’s Ex. 1 at
4, the record before the court is devoid of evidence regarding the use of the line after Texas
Central constructed the railroad in 1905. Determining the existence of a prescriptive easement is
a fact-based inquiry. See Swilley v. McCain, 374 S.W.2d 871, 876 (Tex. 1964) (“In Texas the
presumption of a grant which arises from long possession and enjoyment of property coupled
with other corroborating circumstances is one of fact, and as a general rule the trier of fact must
determine whether the inference of a grant or conveyance is warranted by the evidence.”). In the
absence of evidence regarding the usage of the line that would support plaintiffs’ assertion of a
prescriptive easement, it would be inappropriate to determine the existence of a prescriptive
easement as a matter of law.

      4. Plaintiffs’ Parcels Must Be Adjacent to any Easement Held by Union Pacific

        Of course, even if plaintiffs establish that Texas Central acquired an easement through
prescription, they must also establish that the parcels owned by the Pattons, the Esteses, Ms.
Wright, and Ms. Stanley are adjacent to the railroad line. Brooks, 578 S.W.2d at 674. Indeed, if
a parcel does not abut the line, then it necessarily follows that the owner of that parcel would

Union Pacific’s later representation that it only owned a nonreversionary interest in 60% of the
line. Moreover, Union Pacific’s unsupported representations are themselves circumstantial.

                                                -25-
have no property interest in the land underlying the line. Cf. State v. Fuller, 407 S.W.2d 215,
218 (Tex. 1966) (“It is well settled that a deed to land abutting on a railroad right-of-way
conveys title to the center of the right-of-way unless the contrary intention is expressed in the
instrument.” (citing decisions dating back to 1932)). Defendant argues that even if Union Pacific
held an easement over the relevant segments of the line prior to executing the trail-use
agreement, these plaintiffs’ parcels are not adjacent to the line because they are cut off by
intervening parcels and, for the parcels owned by Ms. Stanley and Ms. Wright, an intervening
road. Def.’s Mem. Supp. 16-19; Def.’s Reply 13-15. Plaintiffs respond that the intervening
parcels are part of Union Pacific’s easement that were conveyed to the City of Waco to be used
as a recreational trail and that the intervening road is an easement that runs across Ms. Stanley’s
and Ms. Wright’s parcels. Pls.’ Reply 14-15. The court addresses the effects of the intervening
parcels and intervening roads in turn.

                                a. Effect of Intervening Parcels

        As noted above, Texas Central constructed its railroad across lots that were depicted on
recorded plats for the Ashburn Addition and the Davis Addition. According to the relevant
portions of the valuation schedule and associated map, Texas Central claimed an interest in land
situated between the railroad it constructed and plaintiffs’ parcels, as follows:

         Intervening Portion of Lot(s) on        Intervening Portion of        Affected
                   Recorded Plats                 Railroad Co. Parcel         Plaintiff(s)
        Ashburn Addition
        Lot 4 and part of lot 5 of block 7      Part of parcel 14           Ms. Stanley
        Part of lot 1 of block 10               Part of parcel 16           Ms. Wright
        Part of lot 4 of block 12               Part of parcel 19           The Esteses
        Part of lot 5 of block 12               Part of parcel 20           The Esteses
        Davis Addition
        Lots 6 and 7 of block 17                Parcel 21                   The Esteses
        Parts of lots 13 and 14 of block 17     Part of parcel 23           The Pattons
        Part of lot 12 of block 17              Part of parcel 24           The Pattons
        Part of lot 11 of block 17              Parcel 29                   The Pattons

The question is whether these intervening parcels cut off any interest that the Pattons, the
Esteses, Ms. Stanley, and Ms. Wright might have in the land underlying the railroad line.

        In contending that the intervening parcels are part of the railroad purposes easement,
plaintiffs overlook what it means to acquire an easement through prescription (the doctrine they
invoke). Acquisition of a prescriptive easement is dependent on the actual use of the land at
issue. See Robinson, 180 U.S. at 100; Brooks, 578 S.W.2d at 673. Thus, a railroad company
can only acquire a prescriptive easement over land it uses for the purposes of operating and
maintaining its railroad. 25 Accordingly, the boundaries of the parcels purportedly acquired by


       25
           Under early twentieth-century Texas law, a railroad company could, by condemnation,
obtain an easement 200 feet in width “to lay out its road” and easements to construct the
                                                -26-
Texas Central in the early 1900s do not necessarily provide the boundaries of the prescriptive
easement. Instead, to prove that their parcels are adjacent to the easement, plaintiffs must
demonstrate that Texas Central and/or its successors in interest used the full extent of the
intervening parcels for railroad purposes for the prescriptive period.

        Plaintiffs have not made the necessary showing. The record before the court lacks any
evidence regarding the usage of parcels 16, 19, 20, 21, 23, 24, or 29 during the prescriptive
period (presumably, the ten years after Texas Central began operating its railroad). Additionally,
although Union Pacific purported to convey these parcels to the City of Waco in conjunction
with their trail-use agreement, see Pls.’ Ex. U at 5, the conveyance was made without any
warranty regarding the interest held by Union Pacific, and therefore cannot establish that Union
Pacific held a railroad purposes easement over those parcels through prescription. Accordingly,
the court will not grant summary judgment to either party regarding whether these intervening
parcels cut off the railroad line from the parcels owned by the Pattons, the Esteses, and Ms.
Wright. 26

       With respect the remaining parcel––parcel 14––the record before the court includes some
evidence of its use. According to the relevant portion of the valuation schedule, Texas Central
acquired a property interest in parcel 14 on February 9, 1903––the date of the declaration of trust
and the date the parcel was dedicated to public use. Pls.’ Ex. E at 71; Pls.’ Ex. F at 3. The
associated valuation map depicts two buildings on the intervening portion of parcel 14: a factory
and a broom factory. Pls.’ Ex. F at 3. Modern property records maintained by the McLennan
County Appraisal District and the City of Waco indicate that the current owner of parcel 14 (now
known as parcel 161862) is the City of Waco, doing business as “Waco Broom & Mop Factory
(formerly).” See Def.’s Mem. Supp. 17 n.5; Def.’s Ex. 4. 27 Further, the maps in these modern
records depict two, unlabeled buildings on the intervening portion of parcel 14. See supra note
27. Thus, it appears that from at least June 30, 1918, when Texas Central prepared the valuation
map, to some time closer to the present, the intervening portion of parcel 14 was not used for the

facilities necessary for railroad operations. 1895 Tex. Rev. Civ. Stat. arts. 4425, 4445; accord
1925 Tex. Rev. Civ. Stat. arts. 6319, 6336; 1911 Tex. Rev. Civ. Stat. arts. 6484, 6504.
       26
            The court recognizes that plaintiffs have the burden of establishing the elements of
prescription and therefore it could grant defendant’s cross-motion for summary judgment due to
plaintiffs’ failure to satisfy their burden. However, the court is reluctant to declare that there are
no genuine issues of material fact when the record is devoid of any evidence to support a claim
and it appears that such evidence could be produced.
       27
           Defendant indicates in its memorandum that the relevant property records are
maintained by the McLennan County Appraisal District and the City of Waco, and describes the
information it obtained from those sources in its exhibit. The data can be accessed at the
following websites: McLennan CAD Property Search, https://propaccess.trueautomation.com/
clientdb/?cid=20 (last visited Apr. 9, 2020); City of Waco GIS Service, https://www.arcgis.
com/apps/webappviewer/index.html?id=ecd0c145c0934ab1bd97ee8ef34b8cd0 (last visited Apr.
9, 2020); and McLennan CAD Map Search, https://propaccess.trueautomation.com/mapSearch/
?cid=20 (last visited Apr. 9, 2020).

                                                 -27-
purposes of operating and maintaining a railroad. Indeed, the evidence suggests that the fee
owner of the intervening portion of parcel 14 (either Texas Central or the landowner who
conveyed an easement in parcel 14 to Texas Central) conveyed the fee estate to the owners of the
factories. Accordingly, plaintiffs cannot establish that Ms. Stanley’s parcel is adjacent to the
railroad line. Therefore, the court must grant summary judgment to defendant with respect to
Ms. Stanley’s claim. 28

                                 b. Effect of Intervening Roads

        In addition to being separated from the railroad line by intervening parcels, Ms. Stanley’s
and Ms. Wright’s parcels are separated from the line by Ashburn Street, which was included on
the plat for Ashburn Addition recorded on October 14, 1890. 29 See Pls.’ Ex. S at 5-6. Plaintiffs
suggest that Ashburn Street was dedicated to public use with the recording of the plat, see Pls.’
Mem. Supp. 17 n.3, 30 and argue that fee ownership of the adjoining parcels extends across the
road to the center of the railroad line, id. at 17.

       “Texas law recognizes two types of dedication of roads”: dedications under a statute or
ordinance and common law dedications. Jezek v. City of Midland, 605 S.W.2d 544, 548 (Tex.
1980).

       Common law dedications can be either express or implied. In both instances,
       there must be an appropriation of land by the owner to public uses, in one case by
       express manifestation of such purpose and in the other, by some act or course of
       conduct from which the law will imply such an intent. A common law dedication
       of realty to the public does not have to be shown by a deed. It is evidence of a
       landowner’s intention to dedicate if he permits the public to use his land as a
       highway.

Id. at 548-49 (citation omitted); accord Ramthun v. Halfman, 58 Tex. 551, 553 (1883)
(recognizing the existence of common law dedications in Texas); cf. McLennan County v.
Taylor, 96 S.W.2d 997, 998 (Tex. Civ. App. 1936) (“When J. W. Taylor filed the plat of the J.
W. Taylor addition to the city of Waco, subdividing the property into lots and blocks and
showing streets thereon, this constituted an offer on his part to dedicate such streets to the public

       28
            The court further notes that the record does not include any instruments conveying an
interest in the intervening parcels at issue to Ms. Stanley, the Pattons, the Esteses, or Ms. Wright.
Nor does it contain any evidence that these plaintiffs obtained an interest in the intervening
parcels through adverse possession.
       29
          Because Ms. Stanley’s and Ms. Wright’s parcels are separated from the railroad line
by both intervening parcels and intervening roads, the holding in Ybanez, 98 Fed. Cl. at 668,
which concerns only the presence of an intervening road, id. at 664, is inapplicable here.
       30
           Although plaintiffs do not specifically mention Ashburn Street, their reference to roads
dedicated in the plat for the Ashburn Addition suggests their intent to include Ashburn Street in
their contention.

                                                -28-
use. When he thereafter executed deeds conveying lots with reference to said recorded plat, his
offer to dedicate, in so far as he was concerned, became irrevocable, and the organized
representative of the public, in this case McLennan county, acquired the right to take possession
of the streets shown on the plat when public necessity demanded that they be opened.”). “When
a street is dedicated to the public, the governmental entity taking control of the street ordinarily
acquires only an easement that it holds in trust for public benefit.” State v. NICO-WF1, L.L.C.,
384 S.W.3d 818, 821 (Tex. 2012) (citing Humble Oil & Ref. Co. v. Blankenburg, 235 S.W.2d
891, 893 (Tex. 1951)). Indeed, “a conveyance of lands bounded on a public highway carries
with it the fee to the center of the road as part and parcel of the grant” and adjacent landowners
“have the exclusive right to the soil [up to the center of the road], subject to the right of passage
in the public.” Mitchell v. Bass, 26 Tex. 372, 380 (1862).

        Thus, if the parcels situated between Ashburn Street and the railroad line (the intervening
portions of parcels 14 and 16) were held in fee simple by an individual or entity who was not a
predecessor in interest to Ms. Stanley or Ms. Wright, then that individual or entity (or a
successor in interest) would own to the center of Ashburn Street, cutting off any interest Ms.
Stanley or Ms. Wright would have in the line. Because the uncontroverted evidence in the
record suggests that an individual or entity other than Ms. Stanley owns the fee simple interest in
the intervening portion of parcel 14, Ms. Stanley’s fee ownership extends only to the centerline
of Ashburn Street. In contrast, the record lacks any evidence regarding the fee ownership of the
intervening portion of parcel 16, rendering it impossible to determine the extent of Ms. Wright’s
fee ownership. Consequently, the court reiterates its grant of summary judgment for defendant
with respect to Ms. Stanley’s claim and its denial of summary judgment to either party on Ms.
Wright’s claim.

                                       IV. CONCLUSION

        For the reasons stated above, the court DENIES plaintiffs’ motion for summary
judgment in its entirety, DENIES defendant’s cross-motion for summary judgment with respect
to the claims of Christopher Donal Estes et ux.; Dinna Annetta Patton and Michael Patton; and
Katie G. Wright; and GRANTS defendant’s cross-motion for summary judgment with respect to
the claims of the remaining plaintiffs. Accordingly, the claims of the following plaintiffs are
DISMISSED: George Anderson; Audrey Bables; the Estate of Justo and Clara Beltran; Adele
Mary Gadlin; Michael and Regina Holleman; Sherry Diane Brandon Holloman and Ralph David
Holloman; Eunice Jackson; Robert Moore King and Doris J. King; Teresa Mays; Lester
McDowell; Maria Rosa Mendoza; Junior Morgan; Gina Gail Mosely; Eric J. Powers; Tanya
Renee Rigsby, n/k/a Tanya Graves; Javier Sanchez and Valentina Sanchez; David Smith; W.S.
Spearman; Lovie Lee Stanley; Lydia C. Weaver; and Charles E. Wilson and Apala D. Wilson.




                                                -29-
       By no later than Monday, May 11, 2020, the parties shall file a joint status report
suggesting a schedule for further proceedings regarding the claims of the Esteses, the Pattons,
and Ms. Wright.

       IT IS SO ORDERED.

                                                      s/ Margaret M. Sweeney
                                                      MARGARET M. SWEENEY
                                                      Chief Judge




                                               -30-
