  Nos. 03-785L, 04-1456L, 04-1459L, 04-1463L, 04-1465L, 04-1467L, 04-1469L, 04-
                           1471L, 04-1472L, 04-1473L
                               Filed: April 16, 2019

  * * * * * * * * * * * * * *
                                             *
  WARREN S. BERES, et al.,                   *
                                             *       Motion to Dismiss; Motion to Strike;
                        Plaintiffs,          *       Cross-Motions for Partial Summary
  v.                                         *       Judgment; Rails to Trails; Fifth
                                             *       Amendment Taking; Subject Matter
  UNITED STATES,                             *       Jurisdiction; Deed Interpretation;
                                             *       Plat     Interpretation;   Adverse
                        Defendant.           *       Possession; Preemption; RCFC
  * * * * * * * * * * * * * *                *       56(d).


       Cecilia Fex, Ackerson Kauffman Fex, P.C., Washington, D.C., for plaintiffs in D.
Mike Collins, et al. v. United States, Case No. 04-1472L; and Reid Brown, et al. v. United
States, Case No. 04-1473L.

       Richard M. Stephens, Stephens & Klinge LLP, Bellevue, WA, for plaintiffs in
Warren S. Beres v. United States, Case No. 03-785L; Clifford F. Schroeder, et al. v.
United States, Case No. 04-1456L; Clarence A. Peterson, et al. v. United States, Case
No. 04-1459L; Raymond Spencer, et al. v. United States, Case No. 04-1463L; Robert C.
Nelson, et al. v. United States, Case No. 04-1465L; and Eugene Morel, et al. v. United
States, Case No. 04-1467L.

      Tanya C. Nesbitt, Trial Attorney, Natural Resources Section, Environmental and
Natural Resources Division, United States Department of Justice, Washington, D.C., for
defendant. With her was Jeffrey H. Wood, Acting Assistant Attorney General,
Environment and Natural Resources Division.

                                       OPINION

HORN, J.

        At issue in the court’s Opinion is whether ten plaintiffs have an interest in the land
underlying the railroad corridor at issue in D. Mike Collins, et al. v. United States, No. 04-
1472L (Collins), Robert G. Nelson, et al. v. United States, No. 04-1465L (Nelson),
Clarence A. Peterson, et al. v. United States, No. 04-1459L (Peterson), Raymond
Spencer, et al. v. United States, No. 04-1463L (Spencer), and Clifford F. Schroeder, et
al. v. United States, No. 04-1456L (Schroeder). The plaintiffs in the specifically-named,
consolidated cases allege that the United States effected a taking without just
compensation along a 12.45-mile railroad line (the railroad corridor) near the eastern
shore of Lake Sammamish in King County, Washington, when the Surface Transportation
Board issued a Notice of Interim Trail Use (NITU) on September 18, 1998.

        The ten specifically-named plaintiffs1 whose interests are addressed in this
Opinion are Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and
Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson
plaintiff Donna Marie Raab Matrinez,2 Collins plaintiffs D. Michael and Vanessa Collins,
Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs Robert and Beth
Nelson and the Estate of William F. Hughes.3

      The cases were consolidated for case-management purposes under the lead case,
Warren S. Beres v. United States, Case No. 03-785L (Beres). The court previously has
issued multiple Opinions in the specifically-named cases. See Beres v. United States,
104 Fed. Cl. 408, 412 (2012) (discussing Opinions issued in the above-captioned cases)
(Beres V). In Beres V, an Opinion in which the court addressed “the scope of the rights
of way in these multifaceted takings cases, involving numerous plaintiffs, multiple

1 The parties’ filings with the court have referred to sets of married plaintiffs as one
plaintiff, and, in this Opinion, the court likewise refers to sets of married plaintiffs as one
plaintiff.
2 Documents submitted to the court throughout the course of this litigation have referred
to Donna Marie Raab Matrinez as both “Donna Marie Raab Matrinez” and “Donna Marie
Raab Martinez.” Plaintiffs submitted to the court an affidavit signed by Donna Marie Raab
Matrinez, in which Ms. Raab Matrinez signs her last name as “Raab Matrinez,” and both
parties’ cross-motions for partial summary judgment use the last name “Raab Matrinez.”
The court, therefore, will refer to that plaintiff as Donna Marie Raab Matrinez.
3 In defendant’s motion for partial summary judgment, defendant originally moved for
partial summary judgment against Paul and Joanne Spears, plaintiffs in Estate of Pearl
Welch, No. 04-1471L (Welch), as well as against Brian and Mary Conway, Scott and
Sandra DeMers, and Foster and Lemoine Radford, who are plaintiffs in Waverly Hills Club
v. United States, No. 04-1473L (Waverly Hills Club). In defendant’s reply, defendant
states:

       The parties have reached a settlement in principal of the remaining claims
       in Estate of Welch, No. 04-1471L and Waverly Hills Club, No. 04-1474L,
       and dispositive title issues are not present in the remaining three actions:
       Beres v. United States, No. 03-785L (Fed. Cl.); Brown v. United States,
       No. 04-1473L (Fed. Cl.) [(Brown)]; and Morel v. United States, No. 04-1467
       (Fed. Cl.) [(Morel)].

On June 12, 2018, pursuant to the parties’ June 8, 2018 joint stipulations of dismissal, the
court dismissed, with prejudice, the claims of Welch plaintiff Paul and Joanne Spears and
Waverly Hills Club plaintiffs Brian and Mary Conway, Scott and Sandra DeMers, and
Foster and Lemoine Radford, whose claims initially were addressed in defendant’s motion
for partial summary judgment.
                                              2
statutory land grants, different deed types, a prescriptive easement and subsequent
conveyances over a more than one hundred year time period,” the court explained:

       One opinion denied defendant’s motion for summary judgment regarding
       the interpretation of the General Railroad Right of Way Act of 1875, 18 Stat.
       482, 43 U.S.C. § 934 et seq. (repealed in 1976), (the 1875 Act), and its
       effect on plaintiffs Warren and Vicki Beres. See Beres v. United States, 64
       Fed. Cl. 403 (2005) [(Beres I)]. This court also issued an Order forwarding
       the plaintiffs’ request for certification on relevant questions of state law to
       the State of Washington Supreme Court, which the State of Washington
       Supreme Court summarily denied. See Schroeder v. United States, 66 Fed.
       Cl. 508 (2005) [(Beres II)]. Subsequently, this court issued an opinion,
       addressing issues of collateral estoppel regarding former plaintiffs Gerald
       L. and Kathryn B. Ray and a number of other plaintiffs in the above
       captioned consolidated cases. See Beres, et al. v. United States, 92 Fed.
       Cl. 737 (2010) [(Beres III)]. Finally, this court issued an opinion addressing
       the question of fee versus easement for a number of the deeds which
       conveyed rights of way to the railroads. See Beres, et al. v. United States,
       97 Fed. Cl. 757 (2011) [(Beres IV)].

Beres V, 104 Fed. Cl. at 412 (footnote omitted). The facts in the Opinions discussed
above are incorporated into this Opinion, and certain facts relevant to the court’s analysis
are repeated below. Following the numerous previous Opinions issued by this court on a
variety of issues and numerous attempts by the parties at settlement negotiations, the
parties have filed cross-motions for partial summary judgment, as well as a motion to
dismiss and a motion to strike, addressed below in this Opinion.

                                   FINDINGS OF FACT

         The following specific facts which bear on the issues currently before the court are
summarized below. In 1998, the Burlington Northern and Santa Fe Railway (Burlington
Northern), a successor-in-interest to the Seattle, Lake Shore and Eastern Railway
Company, sought an exemption to abandon the railroad corridor from the Surface
Transportation Board (STB). Beres V, 104 Fed. Cl. at 417 (citation omitted). On May 13,
1998, the STB granted Burlington Northern an exemption to abandon the railroad corridor.
Id. (citation omitted). On September 16, 1998, the STB authorized The Land Conservancy
of Seattle and King County (TLC) to assume financial responsibility for Burlington
Northern’s right-of-way pursuant to the National Trails System Act, 16 U.S.C. § 1241 et
seq. (1994) (the Trails Act). Beres V, 104 Fed. Cl. at 417 (citation omitted). On September
18, 1998, the STB authorized the issuance of a NITU permitting King County and TLC to
establish a public recreational trail over the railroad right-of-way, pursuant to 16 U.S.C. §
1247(d) (1994), and, subsequently, King County reached an agreement with Burlington
Northern for use of the railroad right-of-way for trail purposes. Beres V, 104 Fed. Cl. at
417. On September 29, 1998, counsel for the TLC indicated to the STB that the parties
had reached a railbanking agreement related to Burlington Northern’s railroad corridor
pursuant to the NITU. Id.


                                             3
       Lake Sammamish is located to the west of the parcels owned by the ten plaintiffs
whose interest in the land underlying the railroad corridor currently is at issue in this
Opinion. The railroad corridor is to the east of all ten of the plaintiffs’ parcels, and the East
Lake Sammamish Parkway is to the east of the railroad corridor. The ten plaintiffs’
parcels, therefore, lie between Lake Sammamish and the railroad corridor.

Spencer, Schroeder, and Peterson Plaintiffs

       The parties dispute whether the metes and bounds in the deeds conveying land to
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff
Donna Marie Raab Matrinez rebut the centerline presumption under Washington State
law. The parties also dispute whether Spencer plaintiffs Raymond and Lael Spencer,
John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and
Kathy Schroeder, and Peterson plaintiff Donna Marie Raab Matrinez have an interest in
the land underlying the railroad corridor.

        The deeds conveying parcels of land to Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway all contain references
to tracts of land on an unrecorded plat map of a subdivision of land created by Willis J.
Connell, as indicated in the text of those plaintiffs’ deeds quoted below.4 The pertinent
portion of the deed conveying parcel number 173870-0035 to Spencer plaintiffs Raymond
and Lael Spencer states:

       That portion of Government Lot 2[5] in Section 32, Township 25 North,
       Range 6 East, in King County, Washington, described as follows:

       Beginning at the intersection of a line of said Government Lot 2 with the
       southwesterly line of the Northern Pacific Railway right-of-way; thence north
       38 degrees 00 minutes 00 seconds east along said right-of-way line 313.29
       feet to the true point of beginning; thence continuing north 38 degrees 00
       minutes 00 seconds east along said right-of-way line 75.00 feet; thence
       north 52 degrees 00 minutes 00 seconds west 230 feet more or less to the
       westerly line of said Government Lot 2; thence southwesterly along said
       westerly line to a point which bears north 52 degrees 00 minutes 00
4Unlike the deeds conveying land to Spencer plaintiffs Raymond and Lael Spencer, John
and Carolyn Rossi, and Reid and Susan Brockway, the deeds conveying land to
Schroeder plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff Donna Marie
Raab Matrinez do not contain references to the unrecorded plat map of a subdivision
created by Willis J. Connell.
5 When a section of land “contains or borders upon a body of water, which interrupts the
normal quarter-section measurements [of land], all or part of the section may be divided
into irregular portions called ‘government lots.’” See 18 W ILLIAM B. STOEBUCK & JOHN W.
WEAVER, WASHINGTON PRACTICE SERIES: REAL ESTATE § 13.2 (2d ed. 2004 & Supp. 2018).
                                               4
       seconds west from the true point of beginning; thence south 52 degrees 00
       minutes 00 seconds east 230 feet more or less to the point of beginning;

       (ALSO KNOWN AS Tract 8 and the northeasterly 25 feet of Tract 7,
       Connell’s Subdivision of Government Lot 2, according to the unrecorded
       plat thereof.)

(capitalization in original). The pertinent portion of the deed conveying parcel number
173870-0130 to Spencer plaintiffs John and Carolyn Rossi states:

       That portion of Government Lot 2, Section 32, Township 25 North, Range
       6 East, W.M., in King County, Washington, described as follows:

       Beginning at the intersection of the southerly line of said Government Lot
       with the westerly line of the right-of-way of the Northern Pacific Railway
       Company and running thence northerly along said westerly line 1238.29
       feet to the true point of beginning; thence northerly along said westerly line
       62 feet; thence North 52° 00’ 00” West 43 feet; thence northeasterly at right
       angles 13 feet; thence North 52° 00’ 00” West to the westerly line of said
       Government Lot; thence southerly along said westerly line to a point from
       which the true point of beginning bears South 52° 00’ 00” east; thence South
       52° 00’ 00” East 210 feet, more or less, to the true point of beginning.

       Together with second class shorelands adjoining.

       (Also known as Tract 26 and a portion of Tract 27, Willis J. Connell’s
       Subdivision, according to the unrecorded plat thereof; together with second
       class shorelands adjoining.)

(capitalization in original). Similarly, the pertinent portion of the deed conveying parcel
number 173870-0080 to Spencer plaintiffs Reid and Susan Brockway states:

       BEGINNING AT THE INTERSECTION OF THE SOUTH LINE OF
       GOVERNMENT LOT 2, SECTION 32, TOWNSHIP 25 NORTH, RANGE 6
       EAST, W.M., IN KING COUNTY, WASHINGTON, WITH THE WESTERLY
       LINE OF THE NORTHERN PACIFIC RAILWAY RIGHT OF WAY; THENCE
       ALONG SAID RIGHT OF WAY LINE NORTH 38°00’ EAST 738.29 FEET
       TO THE TRUE PLACE OF BEGINNING; THENCE NORTH 38°00’ EAST
       75 FEET; THENCE NORTH 52°00’ WEST 225 FEET, MORE OR LESS,
       TO THE WESTERLY LINE OF SAID GOVERNMENT LOT 2; THENCE
       SOUTHWESTERLY ALONG SAID LOT LINE TO A POINT WHICH BEARS
       NORTH 52°00’ WEST FROM THE TRUE PLACE OF BEGINNING;
       THENCE SOUTH 52°00’ EAST 220 FEET, MORE OR LESS, TO THE
       PLACE OF BEGINNING.




                                             5
       (BEING KNOWN AS TRACT 16 AND THE SOUTH HALF OF TRACT 17,
       WILLIS J. CONNELL’S SUB-DIVISION, ACCORDING TO THE
       UNRECORDED PLAT THEREOF; SUBJECT TO A ROADWAY OVER
       THE SOUTHEASTERLY 15 FEET THEREOF; TOGETHER WITH
       SECOND CLASS SHORE LANDS RUNNING THEREON.)

(capitalization in original).

        The Spencer plaintiffs state, and the plat maps submitted to the court indicate, that
Willis J. Connell created the subdivision in March 1927.6 The 1927 plat map created by
Willis J. Connell is titled “Connell’s Sub. Of Gov Lot 2” and indicates that the subdivision
is located in Section 32, Township 25 North, Range 6 East, and contains thirty-one tracts
of land. The thirty-one tracts are numbered sequentially and are all bordered by
Sammamish Lake to the west. The plat map indicates that thirty-one parcels are not all
the same size, and that the western border runs along the sinuosities of Lake
Sammamish. For example, on the plat map of Willis J. Connell’s subdivision, the distance
between Lake Sammamish and the eastern border of Tract 26, a tract identified in the
deed conveying land to Spencer plaintiffs John and Carolyn Rossi, is listed as 175 feet
wide, while the distance between Lake Sammamish and the eastern border of Tract 16,
a tract identified in the deed conveying land to Spencer plaintiffs Reid and Susan
Brockway, is listed as 225 feet wide. The distance between Lake Sammamish and the
eastern border of Tract 8, a tract identified in the deed conveying land to Spencer plaintiffs
Raymond and Cael Spencer, is listed as 250 feet wide.

       To the east of the eastern border of all of the thirty-one parcels is a dotted line,
above which is written “NOR. PAC. RY.” (capitalization in original). To the east of that
dotted line is another line, above which is written “R. of Way Limit,” and to the east of line
6 Plaintiffs submitted to the court two plat maps of the subdivision created by Willis J.
Connell in 1927, the first of which plaintiffs labeled “Connell’s Plat Map ver. 1” and the
second of which plaintiffs labeled “Connell’s Plat Map ver. 2.” The plat map labeled
“Connell’s Plat Map ver. 1” is a large copy of a plat map of the subdivision created by
Willis J. Connell in 1927. The plat map labeled “Connell’s Plat Map ver. 2” appears to be
a smaller, photo-copied, black-and-white copy, sometimes very difficult to read, of the
subdivision created by Willis J. Connell in 1927. Plaintiffs’ cross-motion for partial
summary judgment indicates that the plat map labeled “Connell’s Plat Map ver. 1” and
the plat map labeled “Connell’s Plat Map ver. 2” both were created in March 1927. The
two plat maps are substantially the same, with the same number of tracts, which appear
to have the same dimensions. There do not appear to be any significant differences
between the plat map labeled “Connell’s Plat Map ver. 1” and the plat map labeled
“Connell’s Plat Map ver. 2.” The two versions of the plat map, however, do contain some
minor differences, although the minor differences do not impact the court’s analysis in this
Opinion. The court’s analysis in this Opinion discusses the plat map labeled “Connell’s
Plat Map ver. 1,” and the court’s analysis will note any differences between the plat map
labeled “Connell’s Plat Map ver. 1” and the plat map labeled “Connell’s Plat Map ver. 2”
when relevant.


                                              6
labeled “R. of Way Limit” is yet another line, above which is written “County Road
Margin.”7 (capitalization in original). The number “50.’” is written between the eastern
edge of the parcels and the dotted line labeled “NOR. PAC. RY.,” as well as between the
dotted line labeled “NOR. PAC. RY.” and the line labeled “R. of Way Limit.” (capitalization
in original).

        Based on the record before the court, it appears that Willis J. Connell died shortly
after creating the 1927 unrecorded plat map. A probate document concerning the estate
of Willis J. Connell, which is dated January 30, 1928, lists as inventory: “That portion of
Government Lot 2, Section 32, Township 25, North, Range 6 E. W. M., lying West of the
Northern Pacific Railroad right of way, together with the shore lands of the second class
fronting thereon, less the north ten feet previously conveyed.” The probate document
concerning the estate of Willis J. Connell does not explicitly mention the land underlying
the railroad corridor.

       Unlike the deeds conveying parcels of land to Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, the deeds conveying
parcels to Schroeder plaintiffs Clifford and Kathy Schroeder and to Peterson plaintiff
Donna Marie Raab Matrinez do not contain references to the unrecorded plat map of the
subdivision created by Willis J. Connell. The pertinent portion of the deed conveying
parcel number 322506-9144 to Schroeder plaintiffs Clifford and Kathy Schroeder states:

       Beginning at a point which is 229.36 feet east and 834.91 feet north of the
       southwest corner of said Government Lot 4 and running southwesterly 66
       feet along the northwesterly margin of the Northern Pacific Railroad right of
       way to the point of beginning; thence north 70° 28’ 04” west to the shore of
       Lake Sammamish; thence southwesterly along said shoreline to a line
       which is parallel to an 250 feet southwesterly of said initial course of north
       70° 28’ 04” west; thence south 70° 28’ 04” east along said parallel line to
       the northwesterly margin of the Northern Pacific Railroad right of way;
       thence northerly along said margin to the point of beginning. EXCEPT the
       northeasterly 100 feet thereof.

(capitalization in original). The pertinent portion of the deed conveying parcel number
322506-9241 to Peterson plaintiff Donna Marie Raab Matrinez states:

       That portion of government lot 3 and the northeast quarter of the southwest
       quarter of section 32, township 25 north, range 6 east, W.M., in king [sic]
       County, Washington, described as follows:

       Beginning at the intersection of the westerly line of the Northern Pacific
       Railway Company’s right-of-way with the east-west center line of said
       section; thence south 38°05’37” west 282.99 feet; thence north 51°54’23”
7The plat map labeled “Connell’s Plat Map ver. 2” contains the words “Redmond Issaquah
Road” above the line marked as “County Road Margin” in the plat map labeled “Connell’s
Plat Map ver. 1.” (capitalization in original).
                                             7
       west 190 feet, more or less, to the westerly line of said government lot;
       thence northeasterly along said lot line to the northwest corner thereof;
       thence easterly along said lot line to the point of beginning . . . .

The “Shorelands” Conveyances and Collins plaintiffs D. Michael and Vanessa
Collins, Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs
Robert and Beth Nelson and the Estate of William F. Hughes

         The parties have referred to five plaintiffs as the plaintiffs with the “shorelands”
issue. The five plaintiffs whose deeds reference second-class shorelands are Collins
plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam
Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F.
Hughes. Nelson plaintiff the Estate of William F. Hughes claims to own two parcels, the
first of which is parcel number 202506-9071 and is located in Government Lot 1. Nelson
plaintiff the Estate of William F. Hughes’ second parcel is parcel number 202506-9085
and is located in Government Lot 2. The parcels alleged to be owned by Collins plaintiffs
D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam Freedman and
Nelson plaintiffs Robert and Beth Nelson all are located in Government Lot 2.

        According to defendant, “[u]nder Washington law, second-class shorelands are
‘shores of a navigable lake or river belonging to the state, not subject to tidal flow, lying
between the line of ordinary high water and the line of navigability, and more than two
miles from the corporate limits of any city.’” (emphasis in original) (quoting W ASH. REV.
CODE § 79.105.060 (2017)).8 Defendant also states that, “[i]n sum, under [Washington]
state law, ‘second-class shorelands’ are defined as lands underwater.” Plaintiffs state that
second-class shorelands “would ordinarily mean they are underwater and adjacent to so-
called ‘uplands,’[9] i.e., dry ground. See, e.g., Albee v. Town of Yarrow Point, 445 P.2d
340, 343 (Wash. 1968). But that is not the case here.” (footnote omitted). The land
underneath a body of water is considered to be the “‘bed,’” which is defined as “the land
under the water beyond the ‘shorelands,’ on tidal water also called the ‘tidelands’ or the

8The current version of the Revised Code of Washington defines first-class shorelands
as:

       [S]hores of a navigable lake or river belonging to the state, not subject to
       tidal flow, lying between the line of ordinary high water and the line of
       navigability, or inner harbor line where established and within or in front of
       the corporate limits of any city or within two miles of either side.

See W ASH. REV. CODE § 79.105.060 (2019).
9 The State of Washington Supreme Court has indicated that uplands are dry land
abutting navigable water. See Davidson v. State, 802 P.2d 1374, 1376 (Wash. 1991) (en
banc) (“When plaintiffs purchased their property in 1961, they believed they were
purchasing all of the uplands (dry land bordering the lake) and abutting shorelands
(submerged land out to the State-owned harbor area) encompassing the marina
improvements.”).
                                             8
‘beach.’ In general, then, shorelands lie between uplands and beds.” See 18 W ILLIAM B.
STOEBUCK & JOHN W. WEAVER, W ASHINGTON PRACTICE SERIES: REAL ESTATE § 13.5 (2d ed.
2004 & Supp. 2018).

         According to plaintiffs, the “story of these properties begins in the late 19th
century.” On June 13, 1887, Alfred Palmberg executed a deed conveying a 100-foot wide
strip of land to the Seattle, Lake Shore and Eastern Railway Company, on which the
railroad corridor was subsequently constructed.10 The June 13, 1887 deed provided that
“[a]ll riparian and water front rights on Lake Samamish [sic] are hereby expressly
reserved.” In Beres IV, the undersigned determined that the June 13, 1887 deed only
conveyed an easement to the Seattle, Lake Shore and Eastern Railway Company. See
Beres IV, 97 Fed. Cl. at 781-92. According to plaintiffs and defendant, as of June 13,
1887, Alfred Palmberg had not yet acquired second-class shorelands from Washington
State.

      On March 30, 1893, Alfred Palmberg executed a deed conveying a parcel of land
in Government Lot 2 and Government Lot 3 to Alonzo C. Stares in exchange for $60.00.
The pertinent portion of the March 30, 1893 deed stated:

       Beginning at a point on the line between lots 2 and 3 in section 20 Tp. 25 N
       R. 6 E. W.M. 569 64/100 feet south of the NW corner of said lot 3 thence
       west in said lot 2 two hundred and twenty one and 58/100 (221 58/100) feet
       thence southwesterly along a line drawn at right angels [sic] to the center
       line of the Seattle Lake Shore and Eastern Railway Company fifteen and
       3/10 feet to the easterly margin of the right of way of said Railway Company
       thence southeasterly along said right of way two hundred forty and 4/10
       (240 4/10) feet thence east eighty seven (87) feet to the line between said
       lots 2 and 3 thence east in said lot 3 fifty five (55 25/100) feet thence north
       two hundred (200) feet thence west fifty five and 25/100 (55 25/100) feet to
       the place of beginning containing 1 one acre Together with all riparian rights
       as reserved from Seattle Lake Shore and Eastern Railway Company
       fronting upon and appurtenant to the land hereinbefore described.

(the A. Stares tract). According to plaintiffs and defendant, in 1908, Alfred Palmberg died,
and his wife, Bertha Palmberg, inherited Alfred Palmberg’s property. On September 29,
1914, Bertha Palmberg and King County executed a quitclaim deed conveying to King
County a sixty-foot-wide strip of land in Governments Lots 1 and 2 “lying easterly of and
adjacent to the right of the Northern Pacific Ry.” in exchange for $200.00. Following the


10 The Seattle, Lake Shore and Eastern Railway Company subsequently was acquired
by the Seattle and International Railroad, which subsequently was acquired by the
Northern Pacific Railway Company. See Beres V, 104 Fed. Cl. at 416. In 1970, the
following railway companies merged to form the Burlington Northern Railroad: Northern
Pacific Railway Company; the Great Northern Railway; the Chicago, Burlington and
Quincy Railroad; the Spokane, Portland and Seattle Railway; and other wholly-owned
subsidiaries. Id.
                                             9
legal description of the strip of land being conveyed appeared the words “Right-of-way
Issaquah Redmond Road.”

        Bertha Palmberg appears to have died in 1918. Bertha Palmberg’s probate
document listed the following six individuals as children of Bertha Palmberg: Maude
Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, Bert Stares, and Alfred W.
Palmberg, who the parties indicate is the son of Alfred Palmberg and Bertha Palmberg.
Bertha Palmberg’s probate document listed four different parcels, each of which is located
in either Government Lot 1, 2, or 3 and is described as extending to the eastern line of
the railroad corridor. Bertha Palmberg’s probate documents indicated that each of the six
children listed above were to receive an undivided one-sixth interest in the properties
described in the probate document, as well as an undivided one-sixth interest in any other
real or personal property belonging to Bertha Palmberg. According to a title report dated
November 15, 1946, which is discussed below, it appears that Maude Palmberg, Annie
Stangroom, and Alfred W. Palmberg were the children of both Alfred Palmberg and
Bertha Palmberg. Bessie Zengel, Gertie Gorman,11 and Bert Stares appear to be children
of Bertha Palmberg, but appear to have a father other than Alfred Palmberg.

        In 1928, after Bertha Palmberg’s estate had been probated, Alfred W. Palmberg
applied to purchase second-class shorelands adjacent to Government Lot 2 from the
State of Washington. Plaintiffs have submitted to the court a report “on title,” which was
completed by the Lawyers & Realtors Title Insurance Company on July 19, 1928, and
was marked as “ENTERED” by the “Commissioner Pub. Lands Office.” (capitalization in
original). The July 19, 1928 title report states that “we have examined the records” and
“find” that Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, Alfred W.
Palmberg, and Bert Stares are tenants in common for “[a]ll of Government Lot 2, EXCEPT
portion described as Parcel ‘A’ and except railroad right of way and except County roads.”
(capitalization in original). Parcel A is defined in the July 19, 1928 title report, and the
legal description of Parcel A appears to match the legal description of the A. Stares tract,
which, as discussed above, was conveyed by Alfred Palmberg, the father of Alfred W.
Palmberg, to Alonzo C. Stares in 1893. The July 19, 1928 title report further states that
the “records do not disclose the location of the railroad right of way with reference to the
meander line[12] or the high water line, however, the deed to the railroad company of the
right of way expressly reserves all riparian and water front rights on Lake Sammamish.”

11The documents submitted to the court refer to what appears to be a single individual
as both Gertie Gorman and Gertie Gorman Hughes. The parties have not established
when Gertie Gorman became Gertie Gorman Hughes. The court uses Gertie Gorman
when the relevant document states Gertie Gorman, and the court uses Gertie Gorman
Hughes when the relevant document states Gertie Gorman Hughes.
12   In 1920, the State of Washington Supreme Court stated:

         By the United States government system of surveys, a meander line is run
         when a water course or other body of water is the external boundary of the
         adjacent land. The line showing the place of the water course of other body
         of water and its course, sinuousities [sic], and distance, is called a ‘meander
                                               10
        On August 3, 1928, Edward C. Dohm, a “State Field Engineer,” submitted a report
to the State of Washington Commissioner of Public Lands regarding Alfred W. Palmberg’s
application to purchase second-class shorelands. Edward Dohm’s report states:

       Sir — I herewith submit the following report on App. No. 8732 by Alfred
       Palmberg (A. Palmberg) to purchase shore lands of the second class in
       front of parts of lot 2, section 20, township 25 north, range 6 east, on the
       east side of Lake Sammamish, in King County.

       The applicant claims to be the owner of the abutting upland and states that
       there are no improvements on the shore lands.

       In proof of ownership has submitted the certificate of title dated July 19,
       1928, from Lawyers & Realtors Title Insurance Company, showing that
       Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, A.
       Palmberg and Bert Stares are holders as tenants in common and as their
       separate estates a certain tract of upland located in said lot 2.

       This application, together with App. No. 8710 covering the balance of the
       frontage bordering on said lot 2 have been given considerable study owing
       to the peculiar descriptions which have been used in describing the upland
       tracts. We have secured 3 maps from the Northern Pacific Railway
       Company and a plat from the Engineer of King County. These plats show
       the railway right of way and the county road right of way mentioned in the
       descriptions and also show that the line of high water is located outside of
       the west line of the Northern Pacific right of way, and also outside the
       government meander line.

       line.’ The general rule adopted by both federal and state courts is that
       meander lines are not run as boundaries of the fractional tracts thus
       surveyed, but for the purpose of defining the sinuousities [sic] of the banks
       of the streams and other bodies of water and as a means of ascertaining
       the acreage of such body of land subject to sale and which is to be paid for
       by the purchaser. It has therefore generally been held both by federal and
       state courts that such meander lines are for the purpose of showing the
       border lines of the streams, but that the water courses themselves
       constitute the real boundaries.

Rue v. Oregon & W.R. Co., 186 P. 1074, 1077 (Wash. 1920) (citations omitted); see also
WILLIAM B. STOEBUCK & JOHN W. W EAVER, 18 WASHINGTON PRACTICE SERIES: REAL ESTATE
§ 13.5 (2d ed. 2004 & Supp. 2018) (“‘Meander lines’ are straight-line segments, run by
surveyors, that approximately follow the sinuosities of the edge of a body of water. They
are run in straight-line segments because it would be difficult, if not practically impossible,
for a surveyor to measure and describe the irregular edge of a body of water. . . . A
meander line is not the boundary of uplands that border on a body of water; the actual
shore of the body of water is the boundary.” (footnote omitted)).
                                              11
       From our study of the records, the following description is submitted:

          All shore lands of the second class owned by the State of
          Washington, situate in front of, adjacent to or abutting upon the
          following described uplands:

          In front of all of lot 2, section 20, township 25 north, range 6 east W.
          M., except the following described tract:

          [legal description appearing to match the legal description of the A.
          Stares tract]

          The above portion of said lot 2, not thus excepted. [sic] have a
          frontage of 15.81 lineal chains, more or less, measured along
          government meander line.

(emphasis in original).

       The State of Washington appears to have approved Alfred W. Palmberg’s
application to purchase the second-class shorelands, and Alfred W. Palmberg appears
to then have made installment payments to the State of Washington in exchange for the
second-class shorelands. On February 27, 1940, the State of Washington and Alfred W.
Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, and Bert
Stares, the six heirs of Bertha Palmberg, executed a deed, in which the State of
Washington, in exchange for compensation of $395.25, conveyed:

       All shore lands of the second class, owned by the State of Washington,
       situate in front of, adjacent to or abutting upon the following described
       uplands:

       In front of all of lot 2, section 20, township 25 north, range 6 east, W.M.,
       except the following described tract:

       [legal description appearing to match the legal description of the A. Stares
       tract]

       The above portions of said lot 2, not thus excepted, have a frontage of 15.81
       lineal chains, more or less, measured along the government meander line.


       According to plaintiffs’ cross-motion for partial summary judgment in this court, “[i]n
1945—and this is where the ‘shorelands’ misnomer showed up in Plaintiffs’ chain of title—
one of the heirs, Bert Stares (Bertha’s son from another marriage, hence the different last
name), filed a partition action in order to split the remaining Palmberg property between
the six heirs.” Plaintiffs submitted a complaint to this court dated June 22, 1945, which


                                             12
was filed in the Superior Court of the State of Washington for King County and listed Bert
Stares and Gertie Gorman Hughes as plaintiffs. In subsequent documents filed with the
Superior Court of the State of Washington for King County, Gertie Gorman Hughes is
listed as a defendant, without explanation as to why Gertie Gorman Hughes originally
was listed as a plaintiff on the June 22, 1945 complaint. The June 22, 1945 complaint lists
“MAUDE PALMBERG, ANNIE STANGROON [sic], MRS AUTHUR HARRIS, Formerly
EILEEN STANGROON, BESSIE ZENGEL, Deceased and her heirs, and ALFRED [W.]
PALMBERG, Deceased and his heirs” as defendants. (capitalization in original). The
court notes that the complaint appears to incorrectly list Annie Stangroom as Annie
Stangroon. The parties have not indicated who “MRS AUTHUR HARRIS, Formerly
EILEEN STANGROON,” is or her role in the partition action, although, the November 15,
1946 title report, which is discussed below, states that Eileen Stangroon does not have
an interest in the land at issue in the partition action. (capitalization in original).

       The June 22, 1945 complaint filed in Washington State court stated that “all of the
parties herein are joint owners of the following described property in King County,
Washington.” The June 22, 1945 complaint then provided:

      Those portions of Government Lots 1, 2 and 3 of Section 20, Township 25
      North, Range 6 E.W.M., Described as follows:

      PARCEL “A”
      Beginning at a point on the North line of said Government Lot 1, 630 feet
      East of the Northwest corner thereof; then South 900 feet; thence
      Southwesterly, at right angles to the right-of-way of the Northern Pacific
      Railway Company (formerly the Seattle and International Railway) to the
      Northeasterly line of said right-of-way; thence Southeasterly, along said
      Northeasterly line to the South line of said Government Lot 1; thence East,
      along said South line to the Southeast corner thereof; thence North, along
      the East line thereof, to the Northeast corner thereof; thence West, along
      the North line, to the point of beginning, EXCEPT County Road.

      PARCEL “B”
      Beginning at the Northeast corner of said Government Lot 2; thence South,
      along the East line thereof, 569.04 feet; thence 221.58 feet; thence
      Southwesterly, at right angles, to the right-of-way of the Northern Pacific
      Railway Company (formerly the Seattle and International Railway), 15.3
      feet, to the Northeasterly line of said right-of-way; thence Northwesterly,
      along said Northeasterly line, to the North line of said Government Lot 2;
      thence East, along said North line, to the point of beginning, TOGETHER
      WITH second class shore lands adjoining, EXCEPT County Road.

      PARCEL “C”
      Beginning at the Southeast corner of said Government Lot 2; thence North,
      along the East line thereof, 110 feet; thence West 87 feet to the
      Northeasterly line of the right-of-way of the Northern Pacific Railway


                                            13
         Company (formerly the Seattle and International Railway); thence
         Southeasterly, along said Northeasterly line, to the point of beginning,
         TOGETHER WITH second class shore lands adjoining, EXCEPT County
         Road.

(capitalization in original). The June 22, 1945 complaint requested that the Superior Court
of the State of Washington for King County partition the interests of the parties listed in
the complaint.

         On April 14, 1948, Gertie Gorman Hughes, who, at that time, was listed as a
defendant, filed with the Superior Court of the State of Washington for King County a
document titled “BILL OF PARTICULARS,” attached to which was a copy of a title report
dated November 19, 1946. (capitalization in original). The attached November 19, 1946
title report described three separate parcels in Government Lots 1 and 2. The legal
description of the first parcel appears to match the legal description of Parcel A in the
June 22, 1945 complaint and states that title was vested in the heirs of Alfred Palmberg
and Bertha Palmberg, except for Maude Palmberg. The November 19, 1946 title report
indicates that Bert Stares acquired the interest of Maude Palmberg in the parcel with a
legal description appearing to match the legal description in Parcel A by quitclaim deed
dated June 7, 1945. The legal description of the second parcel in the November 19, 1946
title report appears to match the legal description of Parcel B in the June 22, 1945
complaint, but further states that the second parcel was “EXCEPT portion if any, in said
railroad right of way.”13 (capitalization in original). According to the November 19, 1946
title report, title to the second parcel, “EXCEPT the second class shorelands,” was vested
in S. L. Stangroom and Annie Stangroom.14 (capitalization in original). The legal
description of the third parcel in the title report appears to match the legal description of
Parcel C in the June 22, 1945 complaint, but further states that the third parcel was
“EXCEPT County Road; TOGETHER with second class shore lands adjoining, EXCEPT
portion if any, in said railroad right of way.” The November 19, 1946 title report stated that
title to the third parcel was vested in an individual, H. N. Coury, “EXCEPT the second
class shore lands,” and indicated that title to the second-class shorelands was not vested
in H. N. Coury. According to the November 19, 1946 title report, the second-class
shorelands in the second and third parcels were vested in undivided one-sixth interests
in the heirs of Alfred W. Palmberg, the heirs of Bessie Zengel, Maude Palmberg, Annie
Stangroom, Gertie Gorman Hughes, and Bert Stares.15 The November 19, 1946 title
report suggested that the Superior Court lacked jurisdiction over the land owned by H. N.
Coury.


13 As noted above, in the June 22, 1945 complaint, Parcel B was described as being
“TOGETHER WITH second class shore lands adjoining, EXCEPT County Road.”
(capitalization in original).
14   S.L. Stangroom and Annie Stangroom appear to have been spouses.
15The November 19, 1946 title report indicated that Alfred W. Palmberg and Bessie
Zengel were deceased at the time the title report was published.
                                             14
      According to the Superior Court of the State of Washington for King County’s
January 21, 1949 Findings of Fact and Conclusions of Law, a trial in the partition action
was held in September 1948. The Superior Court’s Findings of Fact and Conclusions of
Law describes three parcels, which are labeled as Parcel A, Parcel B, and Parcel C. The
Findings of Fact and Conclusions of Law described the three parcels as:

      In the County of King, State of Washington, those portions of Government
      Lots 1 and 2 of Section 20, Township 25 North, Range 6 E.W.M. described
      as follows:

      PARCEL A:

      Beginning at a point on the north line of Government Lot 1, 630 feet east of
      the northwest corner thereof; thence South 900 feet; thence southwesterly
      at right angles to the right-of-way of the Northern Pacific Railway Company
      (formerly the Seattle and International Railway) to the northeasterly line of
      said right-of-way; thence southeasterly along said northeasterly line to the
      south line of said Government Lot 1; thence east along said south line to
      the southeast corner thereof; thence north along the east line thereof to the
      northeast corner thereof; thence west along the north line to point of
      beginning; thence west along the north line to point of beginning; EXCEPT
      County Road;

      PARCEL B:

      Beginning at the northeast corner of said Government Lot 2; thence south,
      along the east line thereof 569.64 feet; thence west 221.58 feet; thence
      southwesterly at right angles to the right-of-way of the Northern Pacific
      Railway Company (formerly the Seattle and International Railway) 15.3 feet
      to the northeasterly line of said right-of-way; thence northwesterly along
      said northeasterly line to the north line of said Government Lot 2; thence
      east along said North line to the point of beginning; EXCEPT County Road;
      TOGETHER with second class shore lands adjoining, EXCEPT portion if
      any, in said railroad right of way.

      PARCEL C:

      The second class shorelands adjoining that certain parcel of land
      particularly described as “Beginning at the Southeast corner of said
      Government Lot 2; thence North, along the East line thereof, 110 feet;
      thence West 87 feet to the Northeasterly line of the right of way of the
      Northern Pacific Railway Company (formerly the Seattle and International
      Railway); thence Southeasterly, along said Northeasterly line, to the point
      of beginning, EXCEPT County Road.” [illegible] any, in said [illegible] right
      of way.



                                           15
(strike-through and capitalization in original).

       The Superior Court of the State of Washington for King County found that “title to
Parcel B, exclusive of second class shorelands,” was acquired by S. L. Stangroom and
Annie Stangroom. According to the Superior Court’s Findings of Fact and Conclusions of
Law, S.L. Stangroom and Annie Stangroom acquired Parcel B, excluding the second-
class shorelands, “beneficially and not as redemption subject to claims of other heirs of
the decedent Alfred Palmberg and Bertha Palmberg.” The Superior Court’s Findings of
Fact and Conclusions of Law indicate that S. L. Stangroom and Annie Stangroom
acquired Parcel B, excluding the second-class shorelands, after the State of Washington
foreclosed on that portion of Parcel B when Bert Stares failed to pay taxes on the property
described in Parcel B, excluding the property described as second-class shorelands.
Regarding the remaining property that had not been “beneficially” acquired by the
Stangrooms, which the Superior Court of the State of Washington for King County
described as Parcel A, “PARCEL B SHORELANDS,” and Parcel C, the Superior Court
determined that “partition in kind cannot be awarded without prejudice to the right of the
parties hereto.” (capitalization in original). The Superior Court of the State of Washington
for King County concluded that “partition in the proceeds of sale can be had without
prejudicing the rights of the parties hereto,” and the Superior Court appointed Charles W.
Bovee as “referee to perform the duties imposed on referees in partition suits, including
the matter of sale of the property involved being partitioned.”

         According to a document titled “REFEREE’S RETURN OF SALE,” which was
dated May 14, 1949, the referee, Charles W. Bovee, held an auction of “Parcel (a),”
“Parcel (b),” and “Parcel (c)” on April 30, 1949.16 (capitalization in original). The Referee’s
Return of Sale does not appear to contain legal descriptions of Parcel (a), Parcel (b), or
Parcel (c), but it appears that the legal descriptions contained Charles W. Bovee’s “Parcel
(a),” “Parcel (b),” and “Parcel (c)” corresponded with the legal descriptions of Parcel A,
Parcel B, and Parcel C in the Superior Court’s Findings of Fact and Conclusions of Law,
which the Superior Court of the State of Washington for King County ordered Charles W.
Bovee to partition.17 Mr. Bovee indicated in the Referee’s Return of Sale that Parcel (a)
was sold to J.J. Simpson for $7,500.00 and “Parcels (b) and (c) in combination” were sold
to J.A. Earley for $6,600.00. On May 20, 1949, the Superior Court of the State of
Washington for King County issued an order confirming Mr. Bovee’s sale and directing
that title to Parcel (a) be vested in J.J. Simpson and that title to Parcels (b) and (c) be
16Although the Superior Court of the State of Washington for King County’s January 21,
1949 Findings of Fact and Conclusions of Law refers to the relevant parcels as “PARCEL
A,” “PARCEL B,” and “PARCEL C,” Charles Bovee’s May 14, 1949 Referee’s Return of
Sale document refers to the relevant parcels as “Parcel (a),” “Parcel (b),” and “Parcel (c).”
(capitalization in original).
17As discussed above, the Superior Court of the State of Washington for King County
determined that title to the land described in Parcel B lying east of the railroad corridor
was vested in S. L. Stangroom and Annie Stangroom and was not subject to partition.
Parcel (b) in Mr. Bovee’s sale, therefore, only included the second-class shorelands
“adjoining” Parcel B.
                                              16
vested in J.A. Earley. As indicated in the Superior Court of Washington’s January 21,
1949 Findings of Fact and Conclusions of Law, Parcel (a) contained land, but not second-
class shorelands, in Government Lot 1, while Parcels (b) and (c) contained “second class
shore lands” in Government Lot 2.

Government Lot 1

       On June 8, 1949, Charles W. Bovee, as the court-appointed referee of the partition
action, executed a deed conveying land in Government Lot 1 to J.J. Simpson for
$7,500.00. Specifically, the June 8, 1949 deed stated:

       That portion of Government Lot 1, Section 20, Township 25 North, Range
       6, E. W. M., King County, Washington, described as follows: Beginning at a
       point on the north line of Government Lot 1, 630 feet east of the northwest
       corner thereof; thence south 900 feet; thence southwesterly at right angles
       to the right of way of Northern Pacific Railway Company (formerly Seattle
       and International Railway) to the northeasterly line of the said right of way;
       thence southeasterly along said northeasterly line to the south line of said
       Government Lot 1; thence east along said south line to the southeast corner
       thereof; thence north along the east line thereof to the northeast corner
       thereof; thence west along the north line to point of beginning; EXCEPT
       County Road.

(capitalization in original). Subsequently, on July 1, 1949, J.J. Simpson and Gertie
Gorman Hughes executed a real estate contract, in which J.J. Simpson exchanged land
with a legal description appearing to match the legal description provided in the June 8,
1949 deed quoted above for $7,500.00. A statutory warranty deed conveying the land
described in the June 8, 1949 real estate contract to Gertie Gorman Hughes was recorded
on November 23, 1962.

        According to plaintiffs, after executing the July 1, 1949 real estate contract with J.J.
Simpson, Gertie Gorman Hughes then “sought to purchase the adjoining shorelands from
the State.” A July 28, 1950 document titled “AFFIDAVIT OF ACTUAL OWNERSHIP and
WAIVER OF PREFERENCE RIGHT” signed by Gertie Gorman Hughes and J.J. Simpson
states that J.J. Simpson is the legal and record owner of the property described in the
June 8, 1949 deed quoted above. (capitalization in original). The July 28, 1950 document
also states that J.J. Simpson contracted to sell the land described in the June 8, 1949
deed to Gertie Gorman Hughes via the July 1, 1949 real estate contract, and that J.J.
Simpson “desires to and does waive his preference right to purchase the shore lands in
front of the above-described land, in favor of Gertie Gorman Hughes, who is the applicant
to purchase the same.”

       On July 30, 1951, the Department of Public Lands for the State of Washington
issued an order conveying second-class shorelands to Gertie Gorman Hughes for
“$50.00 per lineal chain or a total value of $202.00.” The July 30, 1951 order described
the second-class shorelands as:


                                              17
       The shore lands of the second class, owned by the State of Washington,
       situate in front of, adjacent to or abutting upon that portion of Lot 1, Section
       20, Township 25 North, Range 6 East, W.M., lying southeasterly of a line
       running S 45° 35’ W from a point in said Lot 1 which is East 630 feet and
       South 900 feet from the northwest corner thereof, with a frontage of 4.04
       lineal chains, more or less.

The July 30, 1951 order stated that Gertie Gorman Hughes had “purchased the abutting
uplands,” and that “by virtue of such upland ownership the said Gertie Gorman Hughes
is entitled to the preference right to purchase shore lands abutting upon her upland.”

        On April 11, 1956, Gertie Gorman Hughes conveyed land in Government Lot 1,
which was described as bordering “the northeasterly margin of the Issaquah-Redmond
County Road with the south line” of Government Lot 1, to William F. Hughes. On June
14, 1966, Gertie Gorman Hughes executed a deed conveying land in Government Lot 1
to William F. Hughes and Betty Mary Hughes. The legal description of the land in the
June 14, 1966 deed had a substantially similar legal description to the legal description
of the land contained in the June 8, 1949 real estate contract between Gertie Gorman
Hughes and J.J. Simpson. The June 14, 1966 deed further stated that the conveyance
was “LESS” an area of land to the east of “the Issaquah-Redmond County Road” and that
the conveyance was

       TOGETHER WITH the second class shorelands conveyed to the above
       named grantor from the State of Washington by deed dated September 19,
       1951, and recorded in Volume 3098 of Deeds at Page 491 under King
       County Auditor’s Receiving No. 4185298.

(capitalization in original).

       On March 8, 1978, Gertie Gorman Hughes executed a deed with William John
Hughes and Peggy Anne Hughes. The March 8, 1978 deed conveyed appearing to match
the land described in the June 14, 1966 deed following the word “LESS” and described
as being east of “the Issaquah-Redmond County Road.” (capitalization in original). In
1987, William F. Hughes and Betty Mary Hughes executed a deed conveying a strip of
land in Government Lot 1 to William John Hughes and Peggy Anne Hughes. In 1988, the
Hughes family appears to have implemented a lot line adjustment in Government Lot 1.
On May 26, 1989, William F. Hughes and Betty Mary Hughes executed a deed with the
Kao Family Partnership. In the May 26, 1989 deed, William F. Hughes and Betty Mary
Hughes appear to only convey lands lying to the east of the County Road, and do not
appear to convey the second-class shorelands to the west of the County Road. According
to plaintiffs’ cross-motion for partial summary judgment, “[t]he Hugheses received and
retained all lands in the partition action in Government Lot 1 except for the part later
deeded east of the right of way.”




                                             18
Government Lot 2

        Following the Superior Court of the State of Washington for King County’s
confirmation of the sale of Parcels (b) and (c) to J.A. Earley on May 20, 1949 by Charles
W. Bovee, the court-appointed referee, Mr. Bovee and J.A. Earley executed a deed for
$6,600.00 on June 8, 1949. The June 8, 1949 deed described the land being conveyed
as follows:

      Those portions of Government Lot 2, Section 20, Township 25 North, Range
      6 E. W. M., King County, Washington, described as follows:

      The second class shore lands adjoining the following described property:
      Beginning at the northeast corner of said Government Lot 2; thence south
      along east line thereof 569.64 feet; thence west 221.58 feet; thence
      southwesterly at right angles to right of way of the Northern Pacific Railway
      Company (formerly the Seattle and International Railway) 15.3 feet to the
      northeasterly line of said right of way; thence northwesterly along said
      northeasterly line to the north line of said Government Lot 2; thence east
      along said north line to the point of beginning; EXCEPT County Road;
      EXCEPT portion if any, in said railroad right of way;

      The second class shore lands adjoining that certain parcel of land
      particularly described as: Beginning at the southeast corner of said
      Government Lot 2; thence north, along the east line thereof, 110 feet;
      thence west 87 feet to the northeasterly line of the right of way of the
      Northern Pacific Railway Company (formerly the Seattle and International
      Railway); thence southeasterly, along said northeasterly line, to the point of
      beginning, EXCEPT County Road. EXCEPT portion, if any, in said railroad
      right of way.

(capitalization in original). On August 11, 1949, Charles W. Bovee filed a petition for a
corrected deed for J.A. Earley in the Superior Court of the State of Washington for King
County, in which Mr. Bovee stated that the legal description in June 8, 1949 deed was
“ambiguous.” On August 12, 1949, the Superior Court of the State of Washington for King
County issued an Order instructing Charles W. Bovee to issue a corrected deed to J.A.
Earley.

       Charles W. Bovee executed a corrective deed dated August 11, 1949 to J.A.
Earley. The August 11, 1949 contained the following legal description of the land being
conveyed to J.A. Earley:

      All shore lands of the second class formerly owned by the State of
      Washington situated in front of, adjacent to or abutting upon government lot
      2, section 20, township 25 north, range 6 east, W. M., except the shore
      lands in front of the following described tract:


                                           19
       [legal description appearing to match the legal description of the A. Stares
       tract]

       The portions of said government lot 2, not thus excepted, have a frontage
       of 15.81 lineal chains, more or less, measured along the government
       meander line.

       The shorelands hereby conveyed are all the shore lands of the second class
       conveyed by that certain deed from the State of Washington to Alfred
       Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie
       Gorman and Bert States by deed dated February 27, 1940 . . . .

       Nelson plaintiff the Estate of William F. Hughes, parcel number 202506-9085,
Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and Pam
Freedman and Nelson plaintiffs Robert and Beth Nelson assert that they all “trace their
ownership of the right of way back to Earley, who purchased the ‘second class
shorelands’ – i.e., the shorelands, uplands, and right of way – in the partition action.” In
each of the deeds conveying land to Nelson plaintiff the Estate of William F. Hughes,
parcel number 202506-9085, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, and Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson,
the land being conveyed is described as second-class shorelands “adjacent to,”
“abutting,” or “adjoining” Government Lot 2.

Adverse Possession

         According to all ten plaintiffs, “in the unlikely event their title failed to convey
ownership underlying the railroad right of way, then the circumstances show they are
entitled to partial summary judgment on the alternative basis that they or their
predecessors adversely possessed the right of way.” The ten plaintiffs each assert that
“evidence shows that under Washington State law they (or their predecessors) satisfied
the elements of adverse possession to the subject properties on or before September 18,
1998,” prior to the issuance of the NITU, and, therefore, obtained an interest in the land
underlying the railroad corridor through adverse possession. Defendant, however,
contends that the plaintiffs “cannot adversely possess the reversionary interest in the
right-of-way.” Defendant has not yet conducted discovery into whether plaintiffs have
adversely possessed the land underlying the railroad corridor. Defendant contends that,
“[i]f the Court allows Plaintiffs’ adverse possession claims to proceed, the United States
requests that the Court deny Plaintiffs’ cross-motion for partial summary judgment
pursuant to RCFC [Rules of the United States Court of Federal Claims] 56(d) in order to
allow the United States adequate time to discover facts necessary to its defense” because
the “current posture of the litigation is such that the parties have not engaged in intensive
factual or expert discovery on the issue of adverse possession.”




                                             20
Procedural History

       Defendant filed a motion for partial summary judgment, in which defendant argues
that Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff
Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and
the Estate of William F. Hughes do not own the land underlying the railroad corridor.
Regarding plaintiffs’ alternative argument that they obtained an interest in the land
underlying the railroad corridor through adverse possession, defendant asserts that
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff
Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and
the Estate of William F. Hughes cannot adversely possess the land underlying the railroad
corridor because plaintiffs’ adverse possession claims are preempted by the I.C.C.
Termination Act of 1995 (the ICCTA). Defendant also argues that, under Washington
State law, plaintiffs cannot adversely possess a reversionary interest.

        Plaintiffs filed a single, combined cross-motion for partial summary judgment, in
which Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff
Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and
the Estate of William F. Hughes each assert that they own the land underlying the railroad
corridor in fee through their respective deeds. Alternatively, Spencer plaintiffs Raymond
and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder
plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez,
Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam
Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F.
Hughes argue that, if they do not own the land underlying the railroad corridor based on
their deeds, “then plaintiffs or their predecessors adversely possessed the fee title subject
to the railroad easements before September 18, 1998.” According to plaintiffs’ cross-
motion, the ICCTA does not preempt their alternative adverse possession claims, nor
does Washington State law bar their alternative adverse possession claims. Plaintiffs
attached to their cross-motion for partial summary judgment a declaration signed by Jerry
Broadus, who states that he is “a retired licensed land surveyor and inactive (retired)
attorney in Washington State,” a declaration signed by Vicki E. Orrico, who states that
she is “a lawyer licensed to practice law in the State of Washington,” and a declaration
signed by Charles A. Klinge, who states that he has “been an attorney since 1990 and
admitted to practice in the State of Washington since 1996.”

       Subsequently, defendant filed a motion to strike the declarations signed by Mr.
Broadus, Ms. Orrico, and Mr. Klinge. In defendant’s motion to strike, defendant argues
that the court should strike the declarations signed by Mr. Broadus, Ms. Orrico, and Mr.
Klinge because ownership of the land underlying the railroad corridor is a legal question


                                             21
not suitable for expert testimony. Defendant also asserts that plaintiffs violated Rule
26(a)(2) (2018) of the Rules of the United States Court of Federal Claims (RCFC) by
failing to disclose Mr. Broadus, Ms. Orrico, and Mr. Klinge as experts, and that Mr.
Broadus, Ms. Orrico, and Mr. Klinge are not qualified to provide expert testimony.
Plaintiffs filed an opposition to defendant’s motion to strike, in which plaintiffs argue that
“[d]efendant confuses expert statements that are offered to assist the Court in
understanding the evidence with inadmissible legal conclusions.” Plaintiffs contend that,
“[w]ith no trial scheduled, the declarations do not violate RCFC 26(a)(2),” and that Mr.
Broadus, Ms. Orrico, and Mr. Klinge are qualified as expert witnesses. According to
plaintiffs, striking the declarations signed by Mr. Broadus, Ms. Orrico, and Mr. Klinge is
“not an appropriate remedy if any remedy is needed.”

        In a footnote in defendant’s motion for partial summary judgment, defendant had
stated that the “United States renews its objection that this Court does not have
jurisdiction to entertain Plaintiffs’ adverse possession claims because they must be
adjudicated in a Washington state proceeding before they can be asserted against the
United States in a takings case.” Defendant’s cross-motion presumably referred to
defendant’s opposition to plaintiffs’ March 17, 2017 motion requesting that the court issue
“an order affirming this Court has jurisdiction to determine whether the land taken by the
United States had been adversely possessed by certain plaintiffs prior to the taking,”
which the court had denied as premature. After receiving the parties’ filings discussed
above, the court issued an Order directing defendant to update and restate its challenge
to this court’s jurisdiction over plaintiffs’ alternative claims involving adverse possession.

        Thereafter, defendant filed a motion to dismiss plaintiffs’ claims of acquiring an
interest in the land underlying the railroad corridor through adverse possession pursuant
to RCFC 12(b)(1) (2018) and 12(b)(6) (2018). Defendant argues that the court lacks
jurisdiction over plaintiffs’ adverse possession claims because the claims “are between
private parties and cannot be definitively resolved by this Court.” According to defendant,
“[e]ven if the Court were to find that it has subject matter jurisdiction over Plaintiffs’
adverse possession claims, these claims should still be dismissed under RCFC 12(b)(6)
because the facts Plaintiffs have alleged do not entitle them to a legal remedy.” Plaintiffs
filed an opposition to defendant’s motion to dismiss, in which plaintiffs argued that this
court does have jurisdiction over plaintiffs’ adverse possession claims, to which defendant
filed a reply.

                                       DISCUSSION

       “Subject-matter jurisdiction may be challenged at any time by the parties or by the
court sua sponte.” Folden v. United States, 379 F.3d 1344, 1354 (Fed. Cir. 2004) (citing
Fanning, Phillips & Molnar v. West, 160 F.3d 717, 720 (Fed. Cir. 1998)), reh’g and reh’g
en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1127 (2005); see also Int’l Elec.
Tech. Corp. v. Hughes Aircraft Co., 476 F.3d 1329, 1330 (Fed. Cir. 2007). The Tucker
Act, 28 U.S.C. § 1491 (2018), grants jurisdiction to this court as follows:




                                             22
       The United States Court of Federal Claims shall have jurisdiction to render
       judgment upon any claim against the United States founded either upon the
       Constitution, or any Act of Congress or any regulation of an executive
       department, or upon any express or implied contract with the United States,
       or for liquidated or unliquidated damages in cases not sounding in tort.

28 U.S.C. § 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United States
(1) founded on an express or implied contract with the United States, (2) seeking a refund
from a prior payment made to the government, or (3) based on federal constitutional,
statutory, or regulatory law mandating compensation by the federal government for
damages sustained. See United States v. Navajo Nation, 556 U.S. 287, 289-90 (2009);
see also United States v. Mitchell, 463 U.S. 206, 216 (1983); Alvarado Hosp., LLC v.
Price, 868 F.3d 983, 991 (Fed. Cir. 2017); Greenlee Cnty., Ariz. v. United States, 487
F.3d 871, 875 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2007), cert. denied,
552 U.S. 1142 (2008); Palmer v. United States, 168 F.3d 1310, 1314 (Fed. Cir. 1999).
“Not every claim invoking the Constitution, a federal statute, or a regulation is cognizable
under the Tucker Act. The claim must be one for money damages against the United
States . . . .” United States v. Mitchell, 463 U.S. at 216; see also United States v. White
Mountain Apache Tribe, 537 U.S. 465, 472 (2003); N.Y. & Presbyterian Hosp. v. United
States, 881 F.3d 877, 881 (Fed. Cir. 2018); Smith v. United States, 709 F.3d 1114, 1116
(Fed. Cir.), cert. denied, 571 U.S. 945 (2013); RadioShack Corp. v. United States, 566
F.3d 1358, 1360 (Fed. Cir. 2009); Rick’s Mushroom Serv., Inc. v. United States, 521 F.3d
1338, 1343 (Fed. Cir. 2008) (“[P]laintiff must . . . identify a substantive source of law that
creates the right to recovery of money damages against the United States.”); Golden v.
United States, 118 Fed. Cl. 764, 768 (2014). In Ontario Power Generation, Inc. v. United
States, the United States Court of Appeals for the Federal Circuit identified three types of
monetary claims for which jurisdiction is lodged in the United States Court of Federal
Claims. The Ontario Power Generation, Inc. court wrote:

       The underlying monetary claims are of three types. . . . First, claims alleging
       the existence of a contract between the plaintiff and the government fall
       within the Tucker Act’s waiver. . . . Second, the Tucker Act’s waiver
       encompasses claims where “the plaintiff has paid money over to the
       Government, directly or in effect, and seeks return of all or part of that sum.”
       Eastport S.S. [Corp. v. United States, 178 Ct. Cl. 599, 605-06,] 372 F.2d
       [1002,] 1007-08 [(1967)] (describing illegal exaction claims as claims “in
       which ‘the Government has the citizen’s money in its pocket’” (quoting
       Clapp v. United States, 127 Ct. Cl. 505, 117 F. Supp. 576, 580 (1954)) . . . .
       Third, the Court of Federal Claims has jurisdiction over those claims where
       “money has not been paid but the plaintiff asserts that he is nevertheless
       entitled to a payment from the treasury.” Eastport S.S., 372 F.2d at 1007.
       Claims in this third category, where no payment has been made to the
       government, either directly or in effect, require that the “particular provision
       of law relied upon grants the claimant, expressly or by implication, a right to
       be paid a certain sum.” Id.; see also [United States v. ]Testan, 424 U.S.


                                             23
       [392,] 401-02 [1976] (“Where the United States is the defendant and the
       plaintiff is not suing for money improperly exacted or retained, the basis of
       the federal claim-whether it be the Constitution, a statute, or a regulation-
       does not create a cause of action for money damages unless, as the Court
       of Claims has stated, that basis ‘in itself . . . can fairly be interpreted as
       mandating compensation by the Federal Government for the damage
       sustained.’” (quoting Eastport S.S., 372 F.2d at 1009)). This category is
       commonly referred to as claims brought under a “money-mandating”
       statute.

Ont. Power Generation, Inc. v. United States, 369 F.3d 1298, 1301 (Fed. Cir. 2004); see
also Samish Indian Nation v. United States, 419 F.3d 1355, 1364 (Fed. Cir. 2005); Twp.
of Saddle Brook v. United States, 104 Fed. Cl. 101, 106 (2012).

       To prove that a statute or regulation is money-mandating, a plaintiff must
demonstrate that an independent source of substantive law relied upon “‘can fairly be
interpreted as mandating compensation by the Federal Government.’” United States v.
Navajo Nation, 556 U.S. at 290 (quoting United States v. Testan, 424 U.S. at 400); see
also United States v. White Mountain Apache Tribe, 537 U.S. at 472; United States v.
Mitchell, 463 U.S. at 217; Blueport Co., LLC v. United States, 533 F.3d 1374, 1383 (Fed.
Cir. 2008), cert. denied, 555 U.S. 1153 (2009). The source of law granting monetary relief
must be distinct from the Tucker Act itself. See United States v. Navajo Nation, 556 U.S.
at 290 (The Tucker Act does not create “substantive rights; [it is simply a] jurisdictional
provision[] that operate[s] to waive sovereign immunity for claims premised on other
sources of law (e.g., statutes or contracts).”). “‘If the statute is not money-mandating, the
Court of Federal Claims lacks jurisdiction, and the dismissal should be for lack of subject
matter jurisdiction.’” Jan’s Helicopter Serv., Inc. v. Fed. Aviation Admin., 525 F.3d 1299,
1308 (Fed. Cir. 2008) (quoting Greenlee Cnty., Ariz. v. United States, 487 F.3d at 876);
see also N.Y. & Presbyterian Hosp. v. United States, 881 F.3d at 881; Fisher v. United
States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (noting that the absence of a money-
mandating source is “fatal to the court’s jurisdiction under the Tucker Act”); Price v. United
States, 133 Fed. Cl. 128, 130 (2017); Peoples v. United States, 87 Fed. Cl. 553, 565-66
(2009).

        When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the complaint
are true and must draw all reasonable inferences in the non-movant’s favor. See Erickson
v. Pardus, 551 U.S. 87, 94 (2007) (“[W]hen ruling on a defendant’s motion to dismiss, a
judge must accept as true all of the factual allegations contained in the complaint.” (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007) (citing Swierkiewicz v. Sorema
N. A., 534 U.S. 506, 508 n.1 (2002)))); see also Frankel v. United States, 842 F.3d 1246,
1249 (Fed. Cir. 2016) (“In deciding a motion to dismiss, a court is required to accept as
true all factual allegations pleaded.” (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)));
Fid. & Guar. Ins. Underwriters, Inc. v. United States, 805 F.3d 1082, 1084 (Fed. Cir.
2015); Trusted Integration, Inc. v. United States, 659 F.3d 1159, 1163 (Fed. Cir. 2011).



                                             24
        “Determination of jurisdiction starts with the complaint, which must be well-pleaded
in that it must state the necessary elements of the plaintiff’s claim, independent of any
defense that may be interposed.” Holley v. United States, 124 F.3d 1462, 1465 (Fed. Cir.)
(citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1 (1983)), reh’g
denied (Fed. Cir. 1997); see also Klamath Tribe Claims Comm. v. United States, 97 Fed.
Cl. 203, 208 (2011); Gonzalez-McCaulley Inv. Grp., Inc. v. United States, 93 Fed. Cl. 710,
713 (2010). A plaintiff need only state in the complaint “a short and plain statement of the
grounds for the court’s jurisdiction,” and “a short and plain statement of the claim showing
that the pleader is entitled to relief.” RCFC 8(a)(1), (2) (2018); Fed. R. Civ. P. 8(a)(1), (2)
(2019); see also Ashcroft v. Iqbal, 556 U.S. at 677-78 (citing Bell Atl. Corp. v. Twombly,
550 U.S. at 555-57, 570). To properly state a claim for relief, “[c]onclusory allegations of
law and unwarranted inferences of fact do not suffice to support a claim.” Bradley v.
Chiron Corp., 136 F.3d 1317, 1322 (Fed. Cir. 1998); see also McZeal v. Sprint Nextel
Corp., 501 F.3d 1354, 1363 n.9 (Fed. Cir. 2007) (Dyk, J., concurring in part, dissenting in
part) (quoting C. W RIGHT AND A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1286 (3d
ed. 2004)); Briscoe v. LaHue, 663 F.2d 713, 723 (7th Cir. 1981) (“[C]onclusory allegations
unsupported by any factual assertions will not withstand a motion to dismiss.”), aff’d, 460
U.S. 325 (1983). “A plaintiff’s factual allegations must ‘raise a right to relief above the
speculative level’ and cross ‘the line from conceivable to plausible.’” Three S Consulting
v. United States, 104 Fed. Cl. 510, 523 (2012) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. at 555), aff’d, 562 F. App’x 964 (Fed. Cir.), reh’g denied (Fed. Cir. 2014). As stated
in Ashcroft v. Iqbal, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ 550 U.S. at 555. Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Ashcroft v. Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 555).

         In the specifically-named cases, plaintiffs allege that defendant effected a taking
under the Fifth Amendment to the United States Constitution through the operation of the
Trails Act. The Takings Clause of the Fifth Amendment to the United States Constitution
provides in pertinent part: “nor shall private property be taken for public use without just
compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is
to prevent the government from “‘forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.’” Palazzolo v. Rhode
Island, 533 U.S. 606, 618 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49
(1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528
(2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska
2009); see also Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104, 123-24, reh’g
denied, 439 U.S. 883 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005); E.
Enters. v. Apfel, 524 U.S. 498, 522 (1998); Pumpelly v. Green Bay & Miss. Canal Co., 80
U.S. (13 Wall.) 166, 179 (1871) (citing to principles which establish that “private property
may be taken for public uses when public necessity or utility requires” and that there is a
“clear principle of natural equity that the individual whose property is thus sacrificed must
be indemnified”); Rose Acre Farm, Inc. v. United States, 559 F.3d 1260, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2009), cert. denied, 559 U.S. 935 (2010); Janowsky v.
United States, 133 F.3d 888, 892 (Fed. Cir. 1998); Res. Invs., Inc. v. United States, 85
Fed. Cl. 447, 469-70 (2009).


                                              25
       “[A] claim for just compensation under the Takings Clause must be brought to the
Court of Federal Claims in the first instance, unless Congress has withdrawn the Tucker
Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel, 524 U.S. at 520 (citing
Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984)); see also Acceptance Ins.
Cos. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007); Morris v. United States, 392
F.3d 1372, 1375 (Fed. Cir. 2004) (“Absent an express statutory grant of jurisdiction to the
contrary, the Tucker Act provides the Court of Federal Claims exclusive jurisdiction over
takings claims for amounts greater than $10,000.”). The United States Supreme Court
has declared: “If there is a taking, the claim is ‘founded upon the Constitution’ and within
the jurisdiction of the [United States Court of Federal Claims] to hear and determine.”
Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 12 (1990) (Preseault I) (quoting
United States v. Causby, 328 U.S. 256, 267 (1946)); see also Lion Raisins, Inc. v. United
States, 416 F.3d 1356, 1368 (Fed. Cir. 2005); Narramore v. United States, 960 F.2d 1048,
1052 (Fed. Cir. 1992); Perry v. United States, 28 Fed. Cl. 82, 84 (1993).

        To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that
the government took a private property interest for public use without just compensation.
See Dimare Fresh, Inc. v. United States, 808 F.3d 1301, 1306 (Fed. Cir. 2015) (stating
that the “‘classic taking’” is one in which the government directly appropriates private
property for its own use (quoting Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning
Agency, 535 U.S. 302, 324 (2002)), cert. denied, 136 S. Ct. 2461 (2016); Adams v. United
States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546 U.S. 811 (2005); Arbelaez
v. United States, 94 Fed. Cl. 753, 762 (2010); Gahagan v. United States, 72 Fed. Cl. 157,
162 (2006). “The issue of whether a taking has occurred is a question of law based on
factual underpinnings.” Huntleigh USA Corp. v. United States, 525 F.3d 1370, 1377-78
(Fed. Cir.), cert. denied, 555 U.S. 1045 (2008). The government must be operating in its
sovereign rather than in its proprietary capacity when it initiates a taking. See St.
Christopher Assocs., L.P. v. United States, 511 F.3d 1376, 1385 (Fed. Cir. 2008).

       The United States Court of Appeals for the Federal Circuit has established a two-
part test to determine whether government actions amount to a taking of private property
under the Fifth Amendment. See Casitas Mun. Water Dist. v. United States, 708 F.3d
1340, 1348 (Fed. Cir. 2013); Klamath Irr. Dist. v. United States, 635 F.3d 505, 511 (Fed.
Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing M & J Coal
Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert. denied, 516 U.S. 808
(1995)). A court first determines whether a plaintiff possesses a cognizable property
interest in the subject of the alleged takings. See Casitas Mun. Water Dist. v. United
States, 708 F.3d at 1348; Jackson v. United States, 135 Fed. Cl. 436, 444 (2017) (citation
omitted). Then, the court must determine whether the government action is a
“‘compensable taking of that property interest.’” Huntleigh USA Corp v. United States, 525
F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d at 1372).

      To establish a taking, a plaintiff must have a legally cognizable property interest,
such as the right of possession, use, or disposal of the property. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing United States v.


                                              26
Gen. Motors Corp., 323 U.S. 373 (1945)); Piszel v. United States, 833 F.3d 1366, 1374
(Fed. Cir. 2016), cert. denied, 138 S. Ct. 85 (2017); Rogers v. United States, 814 F.3d
1299, 1303 (Fed. Cir. 2015); Casitas Mun. Water Dist. v. United States, 708 F.3d at 1348;
CRV Enters., Inc. v. United States, 626 F.3d 1241, 1249 (Fed. Cir. 2010), cert. denied,
563 U.S. 989 (2011); Karuk Tribe of Cal. v. Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.),
reh’g denied and en banc suggestion denied (Fed. Cir. 2000), cert. denied, 532 U.S. 941
(2001). “‘It is axiomatic that only persons with a valid property interest at the time of the
taking are entitled to compensation.’” Am. Pelagic Fishing Co. v. United States, 379 F.3d
at 1372 (quoting Wyatt v. United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001), cert.
denied, 353 U.S. 1077 (2002); and citing Cavin v. United States, 956 F.2d 1131, 1134
(Fed. Cir. 1992)). Therefore, “[i]f the claimant fails to demonstrate the existence of a
legally cognizable property interest, the courts [sic] task is at an end.” Am. Pelagic Fishing
Co. v. United States, 379 F.3d at 1372 (citing Maritrans Inc. v. United States, 342 F.3d
1344, 1352 (Fed. Cir. 2003); and M & J Coal Co. v. United States, 47 F.3d at 1154). The
court does not address the second step “without first identifying a cognizable property
interest.” Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206, 1213 (Fed. Cir.) (citing
Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1381; and Conti v. United States,
291 F.3d 1334, 1340 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2002), cert. denied, 537
U.S. 1112 (2003)), reh’g denied and reh’g en banc denied (Fed. Cir. 2005); see also
Balagna v. United States, 135 Fed. Cl. 16, 22 (2017), recons. denied, No. 14-21L, 2017
WL 5952123 (Fed. Cl. Dec. 1, 2017). Only if there is to be a next step, “‘after having
identified a valid property interest, the court must determine whether the governmental
action at issue amounted to a compensable taking of that property interest.’” Huntleigh
USA Corp. v. United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United
States, 379 F.3d at 1372); see also Casitas Mun. Water Dist. v. United States, 708 F.3d
at 1348.

          The STB has authority to regulate most railroad lines in the United States. See 49
U.S.C. § 702 (2018). A railroad seeking to abandon any part of its railroad line must either
(1) file an application to abandon or (2) file a notice of exemption to abandon the line. See
49 U.S.C. § 10903 (2018); see also 49 C.F.R. § 1152.50 (2018). “If the STB approves a
standard abandonment application or grants an exemption and the railroad ceases
operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and
state law reversionary property interests, if any, take effect.” Caldwell v. United States,
391 F.3d 1226, 1228-29 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6-8), reh’g en
banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005).

        “The Trails Act is designed to preserve railroad rights-of-way by converting them
into recreational trails.” Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir.), reh’g
denied, 684 F.3d 1295 (Fed. Cir. 2012). By operation of the Trails Act, the STB may issue
a NITU, “suspending exemption proceedings for 180 days to allow a third party to enter
into an agreement with the railroad to use the right-of-way as a recreational trail.” Barclay
v. United States, 443 F.3d 1368, 1371 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006),
cert. denied, 846 U.S. 1209 (2007). Section 8(d) of the Trails Act, codified at 16 U.S.C.
§ 1247(d), “allows a railroad to negotiate with a state, municipal, or private group (‘the
trail operator’) to assume financial responsibility for operating the railroad right of way as


                                             27
a recreational trail.” See Bright v. United States, 603 F.3d 1273, 1275 (Fed. Cir.) (citing
Caldwell v. United States, 391 F.3d at 1229), reh’g and reh’g en banc denied (Fed. Cir.
2010). If the railroad and an authorized trail provider18 reach an agreement, the NITU
extends indefinitely, and the corridor is railbanked, with interim trail use permitted. See
49 C.F.R. § 1152.29(d)(1)-(2) (2018) (“The NITU will indicate that interim trail use is
subject to future restoration of rail service . . . . Additionally, the NITU will provide that if
the sponsor intends to terminate interim trail use on all or any portion of the right-of-way
covered by the interim trail use agreement, it must send the [STB] a copy of the NITU and
request that it be vacated on a specific date.”); see also Biery v. United States, 753 F.3d
1279, 1285 (Fed. Cir.) (“If the railroad and the [Surface Transportation] Board reach
agreement, the land underlying the railway may be transferred to a trail operator (e.g.,
state, political subdivision, or qualified private organization) for interim trail use.” (citing
Citizens Against Rails–to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir.
2001))), reh’g and reh’g en banc denied (Fed. Cir. 2014); Caldwell v. United States, 57
Fed. Cl. 193, 194 (2003) (“The term railbanking refers to the ‘preservation of railroad
corridor for future rail use,’ while making the corridor available for other activities.”
(quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903 n.1 (8th Cir.
1997))), aff’d, 391 F.3d 1226 (Fed. Cir. 2004), reh’g en banc denied (Fed. Cir.), cert.
denied, 546 U.S. 826 (2005).

        When the NITU extends indefinitely and the corridor is railbanked, the STB retains
jurisdiction and abandonment of the railroad corridor is blocked. See 16 U.S.C. § 1247(d)
(“[I]n the case of interim use of any established railroad rights-of-way pursuant to
donation, transfer, lease, sale, or otherwise in a manner consistent with this chapter, if
such interim use is subject to restoration or reconstruction for railroad purposes, such
interim use shall not be treated, for purposes of any law or rule of law, as an abandonment
of the use of such rights-of-way for railroad purposes.”); see also Rasmuson v. United
States, 807 F.3d 1343, 1344 (Fed. Cir. 2015) (“NITUs ‘preserve established railroad
rights-of-way for future reactivation of rail service’ and permit the railroad operator to
cease operation without legally abandoning any ‘rights-of-way for railroad purposes.’”
(quoting 16 U.S.C. § 1247(d))).

       As described by the United States Court of Appeals for the Federal Circuit:

       Thus, section 8(d) of the Trails Act prevents the operation of state laws that
       would otherwise come into effect upon abandonment-property laws that
       would “result in extinguishment of easements for railroad purposes and
       reversion of rights of way to abutting landowners.” Rail Abandonments-Use
       of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591,
       1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original
       easement granted to the railroad under state property law is not broad
18 The Trails Act indicates that a trail provider may be “a State, political subdivision, or
qualified private organization [that] is prepared to assume full responsibility for
management of such rights-of-way and for any legal liability arising out of such transfer
or use, and for the payment of any and all taxes that may be levied or assessed against
such rights-of-way.” 16 U.S.C. § 1247(d).
                                               28
       enough to encompass a recreational trail. See Preseault II, 100 F.3d at
       1552; see also Toews [v. United States], 376 F.3d [1371,] at 1376 [(Fed.
       Cir.), reh’g denied (Fed. Cir. 2004)].

Caldwell v. United States, 391 F.3d at 1229; see also Rogers v. United States, 814 F.3d
at 1303 (“As we have previously explained in other rails-to-trails cases, a taking, if any,
occurs when, pursuant to the Trails Act, the STB issues a Notice of Interim Trail Use
(‘NITU’) to suspend the abandonment of the rail line by a railroad and preserve it for future
active railroad use.” (citing Barclay v. United States, 443 F.3d at 1373)); Burnett v. United
States, 139 Fed. Cl. 797, 804 (2018) (“A Fifth Amendment takings occurs in rails-to-trails
cases when the government, through the issuance of a CITU [Certificate of Interim Trail
Use] or NITU, destroys an individual’s state law reversionary interest in property
underlying a railroad right-of-way.” (citing Ladd v. United States, 630 F.3d at 1023-24));
BHL Props., LLC v. United States, 135 Fed. Cl. 222, 227-28 (2017) (citing Caldwell v.
United States, 391 F.3d at 1233).

         The Federal Circuit has established a three-part inquiry to determine takings
liability in cases involving the conversion of railroad rights of way for recreational trail use
by means of 16 U.S.C. § 1247(d) of the Trails Act, as follows:

       (1) who owned the strips of land involved, specifically did the Railroad . . .
       acquire only easements, or did it obtain fee simple estates; (2) if the
       Railroad acquired only easements, were the terms of the easements limited
       to use for railroad purposes, or did they include future use as public
       recreational trails; and (3) even if the grants of the Railroad’s easements
       were broad enough to encompass recreational trails, had these easements
       terminated prior to the alleged taking so that the property owners at that
       time held fee simples unencumbered by the easements.

Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (Preseault II). Phrased
differently, the Federal Circuit has also indicated:

       the determinative issues for takings liability 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 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. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009) (citing
Preseault II, 100 F.3d at 1533); see also Chi. Coating Co., LLC v. United States, 892 F.3d
1169, 1170 (Fed. Cir. 2018) (citing Ellamae Phillips Co. v. United States, 564 F.3d at


                                              29
1373); Butler v. United States, 139 Fed. Cl. 617, 622 (2018) (quoting Ellamae Phillips Co.
v. United States, 564 F.3d at 1373).

        According to the United States Court of Appeals for the Federal Circuit, “[i]t is
settled law that a Fifth Amendment taking occurs in Rails-to-Trails cases 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), reh’g and reh’g
en banc denied, 646 F.3d 910 (Fed. Cir. 2011); see also Rogers v. United States, 814
F.3d at 1303; Ellamae Phillips Co. v. United States, 564 F.3d at 1373. “It is the law-created
right to own private property, recognized and enforced by the Constitution, legislation,
and common law, that gives the owner an historically rooted expectation of
compensation.” Preseault II, 100 F.3d at 1540. The United States Court of Appeals for
the Federal Circuit in Preseault II also indicated

       that power includes the power to preempt state-created property rights,
       including the rights to possession of property when railroad easements
       terminate. As Justice O’Connor succinctly pointed out in her concurring
       opinion in Preseault I, however, having and exercising the power of
       preemption is one thing; being free of the Constitutional obligation to pay
       just compensation for the state-created rights thus destroyed is another.

Id. at 1537 (citing Preseault I, 494 U.S. at 22).

        To determine the nature of the property interest at issue, the court looks to state
law. See Rogers v. United States, 814 F.3d at 1305 (“We analyze the property rights of
the parties in a rails-to-trails case under the relevant state law.”); see also Chi. Coating
Co., LLC v. United States, 892 F.3d at 1170 (citing Bd. of Regents v. Roth, 408 U.S. 564,
577 (1972)). The United States Court of Appeals for the Federal Circuit, interpreting a
takings claim for a railroad right-of-way, stated that, “state law generally creates the
property interest in a railroad right-of-way.” Barclay v. United States, 443 F.3d at 1374
(citing Preseault I, 494 U.S. at 8, 16). In a footnote on the same page, the United States
Court of Appeals for the Federal Circuit repeated, “[i]n Toews v. United States, 376 F.3d
1371 (Fed. Cir. 2004), we reiterated that state law controls the basic issue of whether trail
use is beyond the scope of the right-of-way.” Barclay v. United States, 443 F.3d at 1374
n.4.

       The nature of the interest conveyed is determined according to the law of
       the state where the conveyance occurred. ‘State law creates and defines
       the scope of the reversionary or other real property interests affected by the
       ICC’s [Interstate Commerce Commission] action pursuant to Section 208 of
       the National Trails System Act Amendments of 1983, 16 U.S.C. § 1247(d).’”

Chevy Chase Land Co. of Montgomery Cty. v. United States, 37 Fed. Cl. 545, 565 (1997)
(quoting Preseault I, 494 U.S. at 20) (O’Connor, J., concurring) (citing Ruckelshaus v.
Monsanto Co., 467 U.S. at 1001)), aff’d, 230 F.3d 1375 (Fed. Cir. 1999), reh’g and reh’g


                                             30
en banc denied (Fed. Cir.), cert. denied, 531 U.S. 957 (2000); see also Whispell Foreign
Cars, Inc. v. United States, 97 Fed. Cl. 324, 331 (“Whether an individual has a
compensable private property interest is determined by state law.”), amended after
recons. in part, 100 Fed. Cl. 529 (2011). Moreover, in Ruckelshaus v. Monsanto Co., 467
U.S. at 1001, the Supreme Court stated, “we are mindful of the basic axiom that
‘“[p]roperty interests . . . are not created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or understandings that stem from an
independent source such as state law.”’” (omission in original) (quoting Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of Regents v. Roth,
408 U.S. at 577)). In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co.,
429 U.S. 363 (1977), the United States Supreme Court stated that, “[u]nder our federal
system, property ownership is not governed by a general federal law, but rather by the
laws of the several States.” Id. at 378; see also Davies Warehouse Co. v. Bowles, 321
U.S. 144, 155 (1944) (“The great body of law in this country which controls acquisition,
transmission, and transfer of property, and defines the rights of its owners in relation to
the state or to private parties, is found in the statutes and decisions of the state.”). The
parties do not dispute that Washington State law applies to the specifically-named cases.

       In the specifically-named cases, all ten plaintiffs assert that plaintiffs are entitled to
compensation because plaintiffs own the land underlying the railroad corridor “by way of
their deeds.” Alternatively, all ten plaintiffs allege that they acquired title to the land
underlying the railroad corridor through adverse possession. Defendant asserts that this
court lacks jurisdiction over plaintiffs’ claims based on plaintiffs’ alternative adverse
possession theory because the claims are “inchoate claim[s]” and involve “unresolved
claims between private parties,” namely the plaintiffs and unidentified third-parties who
allegedly own fee interest in the land underlying the railroad corridor. According to
defendant, the court lacks jurisdiction to resolve such questions involving third parties
because the Tucker Act only provides this court with jurisdiction to resolve claims against
the United States. Defendant argues that, in United States v. Sherwood, 312 U.S. 584
(1941), the United States Supreme Court “found that a Tucker Act claim must be
dismissed if ‘maintenance against private parties is prerequisite to prosecution of the suit
against the United States . . . .’” (omission in original) (quoting United States v. Sherwood,
312 U.S. at 588). In its motion to dismiss, defendant notes that “there may be little case
law on this specific issue.”

        Plaintiffs assert that “Plaintiffs could find no case directly on point—likely none exist
because the [defendant’s jurisdictional] argument seems so far-fetched.” All of the
plaintiffs, however, argue that it is the court’s “task” to determine whether plaintiffs
acquired interests in the land underlying the railroad corridor through adverse possession,
as plaintiffs, alternatively, have alleged. Plaintiffs assert that, under Washington State
law, “once the requisite elements of adverse possession are met title is perfected and the
land belongs to the adverse possessor regardless of any judicial proceeding.” (emphasis
in original). Moreover, plaintiffs contend that the court “routinely adjudicates” whether a
plaintiff has a compensable interest in a takings case. Plaintiffs argue:




                                               31
       [W]hen construing a deed or other documents in a Trails Act takings case
       and consequently deciding whether or not the plaintiff was a bona fide
       owner on the date of take, the Court will have reviewed evidence and
       necessarily decided that other successors in interest to the original owner
       of the right of way—i.e., absent third parties—did or did not own the right of
       way. And more specifically to this point, a plaintiff in this Court need not first
       file a quiet title action in a state court to have a state court confirm title as
       between other, potential third-party owners of the property underlying a
       railroad easement before the plaintiff can file a takings case in this Court or
       before this Court can rule on the merits of ownership.

All ten plaintiffs also contend that their “claims are against the United States for taking
their property interests that were vested in them as of September 1998—they are not
making any claim against a purported absent third party because the title vested in them
either by deeds or via adverse possession long ago.” (emphasis in original). According to
plaintiffs, defendant misconstrues United States v. Sherwood, 312 U.S. 584, because, in
the specifically-named cases, “there is no requirement that there first be a quiet title suit
brought elsewhere in a state court to perfect or vest title in Plaintiffs.”

        In United States v. Sherwood, Jacob Sherwood had recovered a judgment in a
New York State court against Frederick Kaiser in the amount of $5,567.22. United States
v. Sherwood, 312 U.S. at 585. The New York State court’s order “authorized” Jacob
Sherwood “to bring suit against the Government to recover for breach of its contract with
Kaiser for the construction of a post office building.” See id. Subsequently, Jacob
Sherwood filed a lawsuit against the United States and Frederick Kaiser in the United
States District Court for the Eastern District of New York. See id. In discussing the Tucker
Act jurisdiction of the United States Court of Claims, a predecessor court to this court, the
United States Supreme Court stated that the Court of Claims’ jurisdiction

       is confined to the rendition of money judgments in suits brought for that relief
       against the United States . . . and if the relief sought is against others than
       the United States the suit as to them must be ignored as beyond the
       jurisdiction of the court. . . . [O]r if its maintenance against private parties is
       prerequisite to prosecution of the suit against the United States the suit must
       be dismissed.

Id. at 588 (citations omitted). The United States Supreme Court stated that the lawsuit
filed by Jacob Sherwood could not have been “maintained in the Court of Claims because
that court is without jurisdiction of any suit brought against private parties and because
adjudication of the right or capacity of respondent [Jacob Sherwood] to proceed with the
suit upon the contract of the judgment debtor [Frederick Kaiser] with the United States is
prerequisite to any recovery upon the Government contract.” Id.

      The cases before this court, however, differ from the circumstances in Sherwood,
because, under Washington State law, plaintiffs did not, prior to filing suit in this court,
need to bring actions against third-parties in order to have obtained interests in the land


                                               32
underlying the railroad corridor through adverse possession. The State of Washington
Supreme Court has stated:

       The doctrine of adverse possession permits a party to acquire legal title to
       another’s land by possessing the property for at least 10 years in a manner
       that is “(1) open and notorious, (2) actual and uninterrupted, (3) exclusive,
       and (4) hostile.” ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 757, 774 P.2d
       6 (1989) (citing Chaplin v. Sanders, 100 Wash. 2d 853, 857, 676 P.2d 431
       (1984)). Title vests automatically in the adverse possessor if all the
       elements are fulfilled throughout the statutory period. El Cerrito, Inc. v.
       Ryndak, 60 Wash. 2d 847, 855, 376 P.2d 528 (1962) (“When real property
       has been held by adverse possession for 10 years, such possession ripens
       into an original title.”).

Gorman v. City of Woodinville, 283 P.3d 1082, 1083 (Wash. 2012) (en banc); see also
Ofuasia v. Smurr, 392 P.3d 1148, 1157 (Wash. Ct. App. 2017) (“[T]itle automatically vests
in an adverse possession claimant when the requirements of adverse possession have
been satisfied for 10 years.” (citing Gorman v. City of Woodinville, 283 P.3d at 1083)).
Thus, “[w]hen a person adversely possesses real property for 10 years, such possession
ripens into an original title.” Nickell v. Southview Homeowners Ass’n, 271 P.3d 973, 978
(Wash. Ct. App.) (citing El Cerrito, Inc. v. Ryndak, 376 P.2d at 532), review denied, 282
P.3d 96 (Wash. 2012); see also Smale v. Noretep, 208 P.3d 1180, 1182 (Wash. Ct. App.
2009) (“If the Smales adversely possessed the portion of the disputed property that
originally fell within their fence line, their possession ripened into original title after 10
years of possession.” (citing El Cerrito, Inc. v. Ryndak, 376 P.2d at 532)). The filing of a
quiet title action in a Washington State court is not a “prerequisite” to obtaining title
through adverse possession under Washington State law. See Gorman v. City of
Woodinville, 283 P.3d at 1085; see also Ofuasia v. Smurr, 392 P.3d at 1157 (stating that
a “new title holder need not file suit to perfect” an interest in land obtained through adverse
possession (citing Gorman v. City of Woodinville, 283 P.3d at 1085)); Halverson v. City
of Bellevue, 704 P.2d 1232, 1234 (Wash. Ct. App. 1985) (stating that Washington State
law “is clear that title is acquired by adverse possession upon passage of the 10-year
period,” not when a quiet title action is filed, and that a “quiet title action merely confirm[s]
that title to the land had passed” (citations omitted)).

        In the specifically-named cases, the ten plaintiffs did not need to file lawsuits
against private parties in order to establish ownership interests in the land underlying the
railroad corridor through adverse possession. Under Washington State law, if plaintiffs
had satisfied the elements for adverse possession by September 18, 1998, when the
NITU was issued in the specifically-named cases, plaintiffs could have had vested
interests in the land underlying the railroad corridor when the alleged taking occurred.
Washington State law does not require that the plaintiffs in these cases maintain a quiet
title action in Washington State court in order to acquire or confirm their interests in the
land underlying the railroad corridor, as title in the allegedly adversely possessed land
automatically would vest by operation of law when all of the requisite elements for adverse
possession were satisfied, which plaintiffs contend occurred prior to the issuance of the


                                               33
September 18, 1998 NITU. Plaintiffs’ claims in the specifically-named cases generally
also differ from a quiet title action, which plaintiffs could have filed in Washington State
court or federal district court against the alleged third parties. In this court, none of the
plaintiffs currently addressed in this Opinion have requested, as they could have done in
Washington State court or in federal district court, that, based on plaintiffs’ adverse
possession claims, the court independently “confirm[]” that title has passed to the
plaintiffs. See Gorman v. City of Woodinville, 283 P.3d at 1084 (internal quotation marks
and citation omitted). Nor are any of the plaintiffs seeking to “obtain paper title in the form
of a court judgment that he has acquired title.” See 17 W ILLIAM B. STOEBUCK & JOHN W.
WEAVER, W ASHINGTON PRACTICE SERIES: REAL ESTATE § 8.6 (2d ed. 2004 & Supp. 2018).19
Rather, plaintiffs seek to establish as an alternative theory that the actions of the United
States resulted in a taking of their property in violation of the Fifth Amendment to the
United States Constitution.

        Moreover, plaintiffs’ claims in the specifically-named cases are against the United
States, not “unidentified third parties who are not before the Court,” as defendant argues.
None of plaintiffs’ claims seek remedies from the alleged third parties not before the court.
The ten plaintiffs in the specifically-named cases allege that the United States effected a
taking without just compensation along the railroad corridor, when the Surface
Transportation Board issued a NITU on September 18, 1998, and that plaintiffs had
acquired, prior to September 18, 1998, interests in the land underlying the railroad either
through their deeds or through adverse possession. In order to assess the validity of the
plaintiffs’ takings claims, the court must determine whether each of the plaintiffs had an
interest in the property allegedly taken by the government. See Casitas Mun. Water Dist.
v. United States, 708 F.3d at 1348 (stating that, “[f]irst, the court determines whether the
claimant has identified a cognizable Fifth Amendment property interest that is asserted to
be the subject of the taking”). Plaintiffs’ alleged takings claims may involve considering
whether plaintiffs had satisfied the elements of adverse possession under Washington
State law as of September 18, 1998, but consideration of such evidence does not alter
the nature of plaintiffs’ claims, which seek to acquire compensation for an alleged taking
by the government. Indeed, in a situation involving a title dispute in a takings claim
between a plaintiff and the United States, the United States Court of Claims stated:

       If plaintiff had brought suit to be restored possession of her land, perhaps
       the issue would be different and 28 U.S.C. 2409a might require this suit be
       brought in the district court. But this is not a suit for possession. It is a just
       compensation action and thereby within the historical jurisdiction of the
       court. To hold otherwise would allow defendant in its answer to determine
       the situs of an action by alleging governmental ownership. This we decline
       to do.

19The State of Washington Supreme Court has referred to William B. Stoebuck as a “well
regarded commentator.” See Presbytery of Seattle v. King Cty., 787 P.2d 907, 913
(Wash.) (en banc), cert. denied, 498 U.S. 911 (1990); see also Bain v. Metro. Mortg. Grp.,
Inc., 285 P.3d 34, 40 (Wash. 2012) (en banc) (discussing the statements of “learned
commentators William Stoebuck and John Weaver”).


                                              34
Bourgeois v. United States, 212 Ct. Cl. 32, 35 n.1, 545 F.2d 727, 729 n.1 (Ct. Cl. 1976);
see also Katzin v. United States, 908 F.3d 1350, 1366 (Fed. Cir. 2018) (Newman, J.,
dissenting) (“When title is disputed as to property purportedly taken, and the remedy
sought is just compensation, the Court of Federal Claims has authority to decide title.”).
Thus, because plaintiffs’ claims do not require the filing of a quiet title suit under
Washington State law in order to establish their interest in the land, and because all of
the plaintiffs assert takings claims against the United States for monetary compensation,
this court concludes it does have jurisdiction to address plaintiffs’ alternative claims of
acquiring interests also through adverse possession. The court, therefore, denies
defendant’s motion to dismiss under RCFC 12(b)(1) based on defendant’s position
regarding plaintiffs’ alternative adverse possession theory.

        Although the parties have not cited, and there does not appear to be case law
directly addressing the court’s jurisdiction over the specific type of adverse possession
claims presented in this case and discussed above, the court notes that, in determining
whether the ten plaintiffs acquired an interest in the land underlying the railroad corridor
through the deeds in their chains of title, the court will be required to analyze deeds
between plaintiffs and third-parties not currently before the court, as well as deeds
between plaintiffs’ predecessors-in-title and judicial proceedings involving the land at
issue in the specifically-named cases. The court notes that members of this court routinely
have examined chains of title, which involve numerous transactions involving interests in
land executed by third parties not before the court, to determine whether plaintiffs possess
a valid interest in land allegedly taken by the government. See, e.g., the undersigned’s
decision in Lucier, et al. v. United States, 138 Fed. Cl. 423, 464-66, recons. denied, 138
Fed. Cl. 793 (2018).

        Additionally, in defendant’s motion to dismiss, defendant briefly argues, “[i]n each
complaint, Plaintiffs alleged that they had obtained their property interest by a deed,” and
that, “[e]ven if the Court were to find that it has subject matter jurisdiction over Plaintiffs’
adverse possession claims, these claims should still be dismissed under RCFC 12(b)(6)
because the facts Plaintiffs have alleged do not entitle them to a legal remedy.” According
to plaintiffs, however, “[e]ach complaint alleges that Plaintiffs possess property interests
and are silent as to the method of acquiring the interest,” and that plaintiffs are not
required to allege in the complaints “the method by which ownership was obtained.” In
the complaints of Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi,
and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder,
Peterson plaintiff Donna Marie Raab Matrinez, Collins plaintiffs D. Michael and Vanessa
Collins, Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs Robert and
Beth Nelson and the Estate of William F. Hughes, each plaintiff simply “claims” an
“interest” in the “real property” which plaintiffs allege has been taken by the government.
None of the plaintiffs’ complaints assert acquisition of a property interest in the land
underlying the railroad corridor solely through a deed, but, rather, assert that the plaintiffs
did have an interest in the land underlying the railroad corridor as of the date of the alleged
taking by the government. The complaints plausibly allege that each plaintiff had an



                                              35
interest in the land allegedly taken by the government, and the court denies defendant’s
motion to dismiss pursuant to RCFC 12(b)(6).

        The parties also have crossed-moved for partial summary judgment. RCFC 56
(2018) is similar to Rule 56 of the Federal Rules of Civil Procedure in language and effect.
Both rules provide that “[t]he court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” RCFC 56(a); Fed. R. Civ. P. 56(a) (2018); see also Alabama
v. North Carolina, 560 U.S. 330, 344 (2010); Hunt v. Cromartie, 526 U.S. 541, 549 (1999);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970); Biery v. United States, 753 F.3d at 1286; Ladd v. United
States, 713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons, P.C., 680 F.3d 1341, 1349
(Fed. Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1309-10 (Fed. Cir. 2012);
Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc., 674 F.3d 1365, 1372 (Fed.
Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu Ltd. v. Netgear Inc., 620
F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010); Consol. Coal Co. v. United
States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2010),
cert. denied, 564 U.S. 1004 (2011); 1st Home Liquidating Trust v. United States, 581 F.3d
1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v. United States, 553 F.3d 1375,
1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1283
(Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d 1329 (Fed. Cir. 2009); Moden
v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g and reh’g en banc denied (Fed.
Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States, 379 F.3d 1363, 1370-71 (Fed.
Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139 (2005); Mata v.
United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v. United States, 104 Fed. Cl. 315,
317 (2012); Arranaga v. United States, 103 Fed. Cl. 465, 467-68 (2012); Cohen v. United
States, 100 Fed. Cl. 461, 469 (2011); Boensel v. United States, 99 Fed. Cl. 607, 610
(2011).

        A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh’g denied, 361 U.S. 941 (1960).

      When reaching a summary judgment determination, the judge’s function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United


                                            36
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.”); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99
Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When
the record could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). In such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.

       In appropriate cases, summary judgment:

       saves the expense and time of a full trial when it is unnecessary. When the
       material facts are adequately developed in the motion papers, a full trial is
       useless. “Useless” in this context means that more evidence than is already
       available in connection with the motion for summary judgment could not
       reasonably be expected to change the result.

Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)) (citation omitted), vacated on other
grounds, 970 F.2d 890 (Fed. Cir. 1992); see also Vivid Techs., Inc. v. Am. Sci. & Eng’g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).

         Summary judgment, however, will not be granted if “the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Premier Office Complex of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed.
Cir. 2019); Chi. Coating Co., LLC v. United States, 892 F.3d at 1169; Long Island Sav.
Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g and reh’g en banc
denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly & Co. v. Barr Labs.,
Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2001), cert.


                                               37
denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179 F.3d 1350, 1353 (Fed.
Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451; Stephan v. United
States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Grp., Inc. v. United States,
101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party produces sufficient
evidence to raise a question as to the outcome of the case, then the motion for summary
judgment should be denied. Any doubt over factual issues must be resolved in favor of
the party opposing summary judgment, to whom the benefit of all presumptions and
inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United States, 588 F.3d
1369, 1371 (Fed. Cir. 2009), cert. denied, 562 U.S. 827 (2010); Dethmers Mfg. Co. v.
Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001), reh’g and reh’g en banc
denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S. 957 (2003); Monon Corp.
v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v. Fedders Corp., 145 F.3d 1461,
1463 (Fed. Cir.), reh’g denied and en banc suggestion declined (Fed. Cir. 1998); see also
Am. Pelagic Co. v. United States, 379 F.3d at 1371 (citing Helifix Ltd. v. Blok-Lok, Ltd.,
208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R. Hodges Trust v. United States, 111
Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl. at 611 (“‘The evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.’”
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255) (citing Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas Mun. Water Dist. v. United States,
543 F.3d at 1283; and Lathan Co. Inc. v. United States, 20 Cl. Ct. 122, 125 (1990))); see
also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-67; Vivid Techs., Inc. v. Am.
Sci. & Eng’g, Inc., 200 F.3d at 807. “However, once a moving party satisfies its initial
burden, mere allegations of a genuine issue of material fact without supporting evidence
will not prevent entry of summary judgment.” Republic Sav. Bank, F.S.B. v. United States,
584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
at 247-48.

       The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
party can demonstrate that there is an absence of evidence to support the nonmoving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also FastShip,
LLC v. United States, 892 F.3d 1298, 1307 (Fed. Cir. 2018); Riley & Ephriam Constr. Co.
v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown Operations Int’l Ltd. v.
Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed. Cir. 2002); Trilogy
Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741 (Fed. Cir.) (quoting
Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994), reh’g denied and en
banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en banc suggestion
declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565, 1569 (Fed. Cir.
1997); Vivid Techs., Inc. v. Am. Sci. & Eng’g, Inc., 200 F.3d at 807; RQ Squared, LLC v.
United States, 119 Fed. Cl. 751, 757-58 (2015), subsequent determination, 129 Fed. Cl.
742 (2017), aff’d, 708 F. App’x 685 (Fed. Cir. 2018). If the moving party makes such a
showing, the burden shifts to the nonmoving party to demonstrate that a genuine dispute
regarding a material fact exists by presenting evidence which establishes the existence
of an element essential to its case upon which it bears the burden of proof. See Celotex
Corp. v. Catrett, 477 U.S. at 322; see also Wavetronix LLC v. EIS Elec. Integrated Sys.,


                                            38
573 F.3d 1343, 1354 (Fed. Cir. 2009); Long Island Sav. Bank, FSB v. United States, 503
F.3d at 1244; Fla. Power & Light Co. v. United States, 375 F.3d 1119, 1124 (Fed. Cir.
2004); Schoell v. Regal Marine Indus., Inc., 247 F.3d 1202, 1207 (Fed. Cir. 2001); Am.
Airlines, Inc. v. United States, 204 F.3d 1103, 1108 (Fed. Cir. 2000); Vivid Techs., Inc. v.
Am. Sci. & Eng’g, Inc., 200 F.3d at 807; Rasmuson v. United States, 109 Fed. Cl. 267,
271 (2013). However, “a non-movant is required to provide opposing evidence under Rule
56(e) only if the moving party has provided evidence sufficient, if unopposed, to prevail
as a matter of law.” Saab Cars USA, Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir.
2006).

        Even if both parties argue in favor of summary judgment and allege an absence of
genuine issues of material fact, the court is not relieved of its responsibility to determine
the appropriateness of summary disposition in a particular case, and it does not follow
that summary judgment should be granted to one side or the other. See Prineville Sawmill
Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts,
L.P. v. United States, 586 F.3d at 968-69; B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d
587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138,
1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d 1030, 1037 n.5 (9th Cir.
2000), cert. denied, 532 U.S. 942 (2001); 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.”), reh’g denied and en banc suggestion declined (Fed. Cir. 1999); Allstate Ins. Co.
v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey v. Del Labs., Inc., 118 F.3d
1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H. Overmyer Leasing Co., 401
F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083 (1969); Rogers v. United
States, 90 Fed. Cl. 418, 427 (2009), subsequent determination, 93 Fed. Cl. 607 (2010),
aff’d, 814 F.3d 1299 (2015); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387
(2009), aff’d, 615 F.3d 1378 (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir.
2010), cert. denied, 564 U.S. 1004 (2011); St. Christopher Assocs., L.P. v. United States,
75 Fed. Cl. 1, 8 (2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v.
United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion
on its own merits, taking care to draw all reasonable inferences against the party whose
motion is under consideration, or, otherwise stated, in favor of the non-moving party. See
First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g
en banc denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d
1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338-39 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002);
Oswalt v. United States, 85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v.
United States, 71 Fed. Cl. 114, 119 (2006).

      “Questions of law are particularly appropriate for summary judgment.” Oenga v.
United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d
1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]
because no material facts were disputed, many being stipulated, and the only disputed
issues were issues of law. Moreover, on each issue one party or the other is entitled to


                                             39
judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d
1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law
may be decided on motion for summary judgment.”).

Motion to Strike

        In the specifically-named cases, the parties dispute whether the court should strike
the declarations signed by Jerry Broadus, Vicki Orrico, and Charles Klinge, which were
submitted to the court by plaintiffs. In the declaration signed by Jerry Broadus, Mr.
Broadus states that he is a retired land surveyor and attorney who was retained by
Richard Stephens, counsel of record for the Nelson, Peterson, Schroeder, and Spencer
plaintiffs. Jerry Broadus states that Richard Stephens “has asked me to review the
property descriptions on three Statutory Warranty Deeds” relevant to Spencer plaintiffs
Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway. In
the declaration signed by Vicki Orrico, Ms. Orrico states that she is an attorney who
“investigated the chain of title” and “the right of way adjacent” to the parcels owned by
Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam
Freedman. In the declaration signed by Charles Klinge, Mr. Klinge states that he is an
attorney at Stephens & Klinge LLP, the law firm at which counsel of record for the Nelson,
Peterson, Schroeder, and Spencer plaintiffs, Richard Stephens, is a partner,20 making
him an odd, and potentially conflicted, choice as the declarant. Mr. Klinge states that his
declaration “addresses the chain of title for” Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs
Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez, and Nelson
plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes. Plaintiffs also
attached a multitude of documents pertaining to the plaintiffs’ chains of title to the
declarations signed by Mr. Klinge, Mr. Broadus, and Ms. Orrico.

         In defendant’s motion to strike, defendant argues that the declaration signed by
Charles Klinge offers inadmissible legal opinion because Mr. Klinge “opines on the chain
[sic] of titles for the Spencer, Rossi, Brockway, Matrinez, Schroeder, Nelson, and Hughes
properties” and “draws conclusions based on what he believes the documents to show.”
Defendant contends that the court should strike the declaration signed by Jerry Broadus
because Mr. Broadus offers inadmissible legal opinion by opining on whether the metes
and bounds in certain plaintiffs’ deeds “precisely or carefully define the parcels.”
According to defendant, the declaration signed by Vicki Orrico offers inadmissible legal
opinion because Ms. Orrico “forms legal conclusions based on the deeds, legal
description and boundary line agreements for the Freedman, Barrett and Collins
Plaintiffs.” Defendant also contends that the declarations signed by Mr. Klinge, Mr.




20 According to Stephens & Klinge LLP’s website, Stephens & Klinge LLP only consists
of two attorneys, Mr. Stephens and Mr. Klinge. See Attorneys, STEPHENS & KLINGE LLP
(last visited Apr. 16, 2019), https://www.gskonline.com/attorneys.

                                            40
Broadus, and Ms. Orrico violate RCFC 26(a)(2) (2018)21 because “none of the attorney-
declarants were identified as expert witness under RCFC 26(a)(2),” and “Plaintiffs failed
to provide the substantive information required in an expert report.” According to
defendant, the court should strike the declarations because Mr. Klinge, Mr. Broadus, and
Ms. Orrico are not qualified as expert witnesses on deed interpretation, and the three
declarations do not meet the requirements of RCFC 56(c)(4) because the declarations
are not based on personal knowledge. Alternatively, “the United States requests that the
Court require Plaintiffs to file expert reports, grant the United States the opportunity to
depose Plaintiffs’ experts, and provide time to obtain its own experts.”

        In its motion to strike and reply in support of that motion, defendant has not moved
to strike the exhibits to the declarations signed by Mr. Klinge, Mr. Broadus, and Ms. Orrico.
In plaintiffs’ opposition to defendant’s motion to strike, plaintiffs state that defendant “has
agreed informally with Plaintiffs that even if the Court were to strike all the testimony, the
exhibits that are attached to the declarations should not be stricken,” a statement which
defendant has not disputed. Plaintiffs, however, argue:

       [A]s statements offered to assist with determining the intent of the parties,
       or to explain how boundaries are determined or referred to in Washington
       by the title and survey professionals, or even to opine on whether parties to
       historical documents used language which evinced their intent to include or
       exclude the right of way, the declarants’ statements are not impermissible
       “legal opinions” as Defendant argues.

According to plaintiffs, plaintiffs’ alleged failure to disclose Mr. Klinge, Mr. Broadus, and
Ms. Orrico as expert witnesses prior to filing plaintiffs’ cross-motion for partial summary
judgment did not violate RCFC 26(a)(2) by allegedly failing to timely disclose the expert
witnesses because RCFC 26(a)(2) is not implicated, as, according to plaintiffs, there is
“no trial is scheduled and no deadline has passed to trigger the requirements under RCFC
26(a)(2).” Plaintiffs also argue that Mr. Klinge, Mr. Broadus, and Ms. Orrico are qualified
expert witnesses, and that the declarations signed by Mr. Klinge, Mr. Broadus, and Ms.
Orrico are based on personal knowledge because Mr. Klinge, Mr. Broadus, and Ms.
Orrico reviewed the documents relevant to the transactions discussed in the declarations.
Additionally, plaintiffs cite Katzin v. United States, 120 Fed. Cl. 199 (2015), and argue
that “Katzin teaches an opinion is not objectionable just because it embraces an ultimate
issue.”

        RCFC 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose
a motion [for summary judgment] must be made on personal knowledge, present facts
that would be admissible in evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” RCFC 56(c)(4). The court will not consider a declaration
purporting to support a motion for summary judgment if the declaration contains
statements that are legal conclusions, not based on the declarant’s personal knowledge,
21RCFC 26(a)(2)(A) states that “a party must disclose to the other parties the identity of
any witness it may use at trial to present evidence under Federal Rule of Evidence 702,
703, or 705.” See RCFC 26(a)(2)(A).
                                              41
or would otherwise be inadmissible as evidence. See Found. of Human Understanding v.
United States, 88 Fed. Cl. 203, 228 n.19 (2009), aff’d, 614 F.3d 1383 (Fed. Cir. 2010);
see also Adarbe v. United States, 58 Fed. Cl. 707, 712 n.1 (2003).

        Rule 702 (2019) of the Federal Rules of Evidence (FRE)22 governs the admissibility
of testimony by expert witnesses. FRE 702 states:

       A witness who is qualified[23] as an expert by knowledge, skill, experience,
       training, or education may testify in the form of an opinion or otherwise if:

          (a) the expert’s scientific, technical, or other specialized knowledge
              will help the trier of fact to understand the evidence or to
              determine a fact in issue;

          (b) the testimony is based on sufficient facts or data;

          (c) the testimony is the product of reliable principles and methods;
              and

          (d) the expert has reliably applied the principles and methods to the
              facts of the case.

FRE 702. Under FRE 702, the court must, as an initial matter, determine whether the
expert testimony being offered will assist the trier of fact to understand evidence or
determine facts in issue. See Stobie Creek Invs., LLC v. United States, 81 Fed. Cl. 358,
360 (2008) (citing FRE 702). “Expert testimony that testifies about what the law is or
directs the finder of fact how to apply law to facts does not ‘assist the trier of fact to
understand the evidence or to determine a fact in issue’ within the contemplation of Fed.
R. Evid. 702.” Id. “In general, federal courts have found expert testimony on issues of law,
either giving a legal conclusion or discussing the legal implications of evidence, to be

22 The proceedings of the United States Court of Federal Claims “shall be in accordance
with such rules of practice and procedure (other than the rules of evidence) as the Court
of Federal Claims may prescribe and in accordance with the Federal Rules of Evidence.”
28 U.S.C. § 2503 (2018).
23 “Determinations as to the qualification of experts and the admissibility of their testimony,
including an evaluation of whether the opinion is reliable and relevant, are generally within
the discretion of a trial judge, and are reviewed for an abuse of discretion, only overturned
if manifestly erroneous.” Piscopo v. Sec’y of Health & Human Servs., 66 Fed. Cl. 49, 53
(2005) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)); see also
Hitkansut LLC v. United States, 127 Fed. Cl. 101, 107 (2016) (stating that a trial judge is
responsible for determining “whether an expert witness is qualified or whether his or her
opinions constitute admissible evidence” (citing Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 592 (1993))).



                                              42
inadmissible.” Sparton Corp. v. United States, 77 Fed. Cl. 1, 7 (2007) (citations omitted);
see also Katzin v. United States, 120 Fed. Cl. at 211 (“Expert testimony that amounts to
an opinion of law is strongly disfavored by federal courts.” (citing Sparton Corp. v. United
States, 77 Fed. Cl. at 7)); Thomas v. United States, 106 Fed. Cl. 467, 476 n.4 (2012)
(disregarding an expert witness’ affidavit when the affiant outlined his opinion as to
whether a plaintiff owned a reversionary interest under Tennessee law). Although, under
FRE 704(a) (2019), opinion testimony is not objectionable merely because the opinion
embraces an ultimate issue, expert testimony embracing an ultimate issue that does not
assist the court in understanding the evidence before the court or in resolving factual
issues is inadmissible. See Katzin v. United States, 120 Fed. Cl. at 212 (citing Stobie
Creek Invs., LLC v. United States, 81 Fed. Cl. at 363); see also Sparton Corp. v. United
States, 77 Fed. Cl. at 8 (“Although Fed. R. Evid. 704 was amended so as not to preclude
expert testimony on the ultimate issue, the amendment was not intended to allow an
expert to advise the court on what outcome to reach.” (footnote omitted)). “The admission
of expert testimony is within the discretion of the trial court.” Banks v. United States, 94
Fed. Cl. 68, 73 (2010) (citing Sundance, Inc. v. DeMonte Fabricating Ltd., 550 F.3d 1356,
1360 (Fed. Cir. 2008), reh’g denied (Fed. Cir. 2009)).

        In the forty-seven page declaration signed by Charles Klinge, Mr. Klinge discusses
the transactions in the alleged chains of title for Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs
Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez, and Nelson
plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes. Charles Klinge
offers his commentary and thoughts on the transactions in the chains of title and
discusses and concludes whether he believes certain transactions included the land
underlying the railroad corridor. For example, Mr. Klinge states that “William F. Hughes
and Betty Mary Hughes in September 1998 retained ownership of all of the uplands” and
that “William F. Hughes and Betty Mary Hughes are the successors to the original private
property owner, Alfred Palmberg, who granted the Right of Way Deed to Seattle Lake
Shore & Eastern Railway.” Charles Klinge also makes conclusory, legal statements such
as, “in the context of this description, the reference to ‘second class shorelands’ was a
shorthand reference describing the uplands southwesterly of the northeasterly line of the
railroad right of way plus the submerged lakebed out to the line of navigability.” (emphasis
in original). It is within the province of the court to interpret the documents available to
determine the intent of the parties’ entering into the transactions relevant to the plaintiffs’
chains of title. At this stage of the proceedings, without an opportunity for defendant to
carefully review and examine the statements made by Mr. Klinge, Ms. Orrico, and Mr.
Broadus, each of whom offered declarations with what appears to be an offer of expert
conclusions, as discussed further below, the court does not accept the untested
declarations submitted by plaintiffs. The court is concerned about relying on the
potentially self-serving conclusions of only one party. Therefore, at this stage of the
proceedings, the court concludes that the untested declarations do not contain
information that will assist the court to fairly understand and reach conclusions about the
transactions and conveyances in the chains of title for Spencer plaintiffs Raymond and
Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder
plaintiffs Clifford and Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez,


                                              43
and Nelson plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes. The
declaration submitted by Charles Klinge is struck by the court.

         In the declaration signed by Vicki Orrico, Ms. Orrico, an attorney, states that she
reviewed the chains of title of Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, Howard and Pam Freedman. As in the declaration signed by Charles Klinge, Vicki
Orrico’s declaration discusses the transactions in the chains of title allegedly held by
Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, Howard and Pam
Freedman. Ms. Orrico provides commentary on transactions within the plaintiffs’ chains
of title and interprets the similarities or differences between the legal descriptions in the
plaintiffs’ deeds. Deed interpretation ultimately is within the province of the court. As in
the case of the declaration submitted by Mr. Klinge, the defendant has not had an
opportunity to do its own analysis and allow the court to review submissions from both
parties. Moreover, the declaration signed by Vicki Orrico does not contain specialized
information that at this stage of the litigation should be used to finally evaluate plaintiffs’
interests in the specifically-named cases. Based on the reasoning discussed above, the
court also strikes the declaration signed by Vicki Orrico.

        In the declaration signed by Jerry Broadus, Mr. Broadus reviewed the legal
descriptions in the deeds allegedly conveying title to Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, as well as the 1927
unrecorded plat map of a subdivision created by Willis J. Connell. Mr. Broadus describes
what he believes the metes and bounds in the deeds and 1927 unrecorded plat map
indicate and concludes that “[t]hose calls do not clearly exclude the abutting fee
underlying the railroad easement.” Mr. Broadus also asserts, without citation to any
authority, that “[i]t is common knowledge among surveyors that metes and bounds
descriptions were regularly added to unrecorded plat descriptions at the insistence of the
tax assessors, to ‘improve’ the legal descriptions in case the assessor needed to use
them for tax foreclosures.” In his declaration, Mr. Broadus discusses what he asserts is
the “[m]odern practice” of surveying and states that his understanding is that “[m]odern
practice prefers to adopt a mathematically weighted mean bearing between the westerly
directions of the north and south lines of the section, but this has hardly been the practice
in the past.” Mr. Broadus then discusses the partition action in the Superior Court for the
State of Washington for King County and states that, “[i]n my opinion,” the deed executed
by the court-appointed referee, Charles Bovee, and J.A. Earley included the land
underlying the railroad corridor. Whether the deeds conveying land to Spencer plaintiffs
Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway
included the land underlying the railroad corridor is a question for the court to decide
under Washington State law, including consideration of the decision in Roeder Co. v.
Burlington Northern, Inc., 716 P.2d 855 (Wash.) (en banc), recons. denied (Wash. 1986)
(en banc). Mr. Broadus’ untested speculative, generalized “common knowledge” and
discussion of “[m]odern practice” should not be relied on by the court, and does not assist
the court to evaluate the particular deeds and plat maps submitted by the parties. The
court, utilizing the guidance of Washington State law, must ascertain the intent of the
parties when the transaction was entered into by the parties. Consequently, based on the
reasoning discussed above, at this time Jerry Broadus’ declaration does not assist the


                                              44
court in interpreting the evidence submitted to the court, and the court strikes the
declaration signed by Jerry Broadus. Although the court is not resistant to understanding
how each side to the dispute at issue interprets the underlying documents, without
information or testimony or joint stipulations submitted by both sides, the court will not
accept the plaintiffs’ proffered declarations concerning interpretations of plaintiffs’ chains
of title.

       Plaintiffs’ reliance on Katzin v. United States, 120 Fed. Cl. 199, is misplaced.
United States Court of Federal Claims judges are not bound by each other. See Park
Props. Assocs., L.P. v. United States, 120 Fed. Cl. 787, 790 (2015) (quoting Sotera Def.
Solutions, Inc. v. United States, 118 Fed. Cl. 237, 258 (2014)), aff’d, 677 F. App’x 676
(Fed. Cir. 2017). Moreover, the facts and circumstances of each case will direct whether
a submitted expert declaration will assist the court. In Katzin v. United States, a judge of
the United States Court of Federal Claims was addressing a takings case concerning
property located in Puerto Rico. See Katzin v. United States, 120 Fed. Cl. at 217. The
Katzin court stated that resolution of the property issues before that judge would “depend
upon interpretations of century-old land records and maps, some of which are in Spanish.”
See id. The Katzin plaintiffs provided an expert declaration discussing the Puerto Rican
property records, which were cited by the Katzin plaintiffs and contained certain
documents that were in Spanish. See id. at 212. The judge in Katzin declined to strike the
expert declaration because the judge in Katzin concluded that the expert’s “opinion is
derived from a ‘review of a century’s worth of deed boundary descriptions and transfer
information,’” and “assist[ed] the court in understanding the foundational facts at issue in
the case.” See id. at 212 (quoting the Katzin plaintiffs’ brief). The defendant in Katzin also
had been able to depose the expert in Katzin. See id. at 212 n.16.

        In conclusion, the untested, oversimplified, conclusory declarations signed by
Charles Klinge, Vicki Orrico, and Jerry Broadus in the specifically-named cases do not
assist the court at this stage of the proceedings to reach a fair and just decision.
Defendant in the specifically-named cases has not been provided an expert report or an
opportunity to depose Mr. Klinge, Ms. Orrico, or Mr. Broadus. Moreover, unlike the
documents in Katzin, the documents in the record before this court are in English and do
not require translation by an expert. The court, therefore, strikes the declaration signed
by Mr. Klinge, the declaration signed by Ms. Orrico, and the declaration signed by Mr.
Broadus. The parties have not moved, however, to strike the exhibits and chains of titles
attached to and cited in the declarations signed by Charles Klinge, Vicki Orrico, and Jerry
Broadus. The exhibits attached to the declarations signed by Mr. Klinge, Ms. Orrico, and
Mr. Broadus, which defendant has not moved to strike, do include information on the
plaintiffs’ chains of title and additional documents perhaps relevant to the analysis of
whether plaintiffs own the lands underlying the railroad corridor in their particular cases.
These documents may be relevant at later stages of the proceedings and both parties will
have an opportunity to address their significance to finally resolve the cases.




                                             45
Contract Interpretation Under Washington State Law

        The parties also dispute whether Spencer plaintiffs Raymond and Lael Spencer,
John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and
Kathy Schroeder, Peterson plaintiff Donna Marie Raab Matrinez, Collins plaintiffs D.
Michael and Vanessa Collins, Donald Barrett, Howard and Pam Freedman and Nelson
plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes had an interest in
the land underlying the railroad corridor when the alleged taking occurred. As an initial
matter, the parties dispute whether under Washington State law the court may review
extrinsic evidence when interpreting the deeds conveying land to plaintiffs in the
specifically-named cases. Defendant argues that interpretation of a deed can potentially
be a mixed question of fact and law, but, that, “[w]here, as here, there is no dispute as to
the language included in a deed or plat, interpretation of either document is a pure
question of law that can be resolved on summary judgment.” (citing Hanson Indus., Inc.
v. Cty. of Spokane, 58 P.3d 910, 913 (Wash. Ct. App. 2002)). Defendant asserts that
“surrounding circumstances and other extrinsic evidence are to be used to determine the
meaning of specific words and terms used and not to show an intention independent of
the instrument or to vary, contradict or modify the written word.” (internal quotation marks
and citations omitted) (emphasis in original). According to plaintiffs, under Washington
State law, the court may review extrinsic evidence regardless of whether the deed is
ambiguous. Plaintiffs argue that Washington State has adopted the “context rule,” which
plaintiffs assert “‘recognizes that the intent of the ... [sic] parties cannot be interpreted
without examining the context surrounding the making of the contract’ or deed, including
extrinsic evidence.” (emphasis and omission in original) (quoting Pelly v. Panasyuk, 413
P.3d 619, 629 (Wash. Ct. App. 2018)). Plaintiffs contend that this court “must consider
the context of the transaction because the parties’ intent cannot be determined without
it.”

       According to the State of Washington Supreme Court, under Washington State
law, “when construing a deed, the intent of the parties is of paramount importance and
the court’s duty to ascertain and enforce.” Brown v. State, 924 P.2d 908, 911 (Wash.) (en
banc), recons. denied (Wash. 1996); see also Kershaw Sunnyside Ranches, Inc. v.
Yakima Interurban Lines Ass’n, 126 P.3d 16, 25-26 (Wash. 2006) (en banc); Kitsap Cty.
v. Kitsap Rifle & Revolver Club, 337 P.3d 328, 345 (Wash. Ct. App. 2014) (“Our goal is
to discover and give effect to the parties’ intent as expressed in the deed.” (citing Harris
v. Ski Park Farms, Inc., 844 P.2d 1006 (Wash.) (en banc), recons. denied (Wash. 1993),
cert. denied, 510 U.S. 1047 (1994))), amended on recons. denial (2015), review denied,
352 P.3d 187 (Wash. 2015); Newport Yacht Basin Ass’n of Condo. Owners v. Supreme
Nw., Inc., 277 P.3d 18, 24 (Wash. Ct. App. 2012) (citation omitted); Wash. State Grange
v. Brandt, 148 P.3d 1069, 1073 (Wash. Ct. App. 2006) (“Generally, when construing a
deed, the intent of the parties is of paramount importance and courts must ascertain and
enforce such intent.”), review denied, 171 P.3d 1054 (Wash. 2007).

       The State of Washington Supreme Court also has applied the “context rule” to the
interpretation of “railroad deeds.” As indicated by the State of Washington Supreme Court
in Harris v. Ski Park Farms, Inc. when analyzing deeds that involved the conveyance of


                                             46
land underlying a railroad corridor, “[t]his court has adopted the ‘context rule’ which
succinctly stated is that ‘extrinsic evidence is admissible as to the entire circumstances
under which [a] contract [is] made, as an aid in ascertaining the parties’ intent’, specifically
adopting the Restatement (Second) of Contracts §§ 212, 214(c) (1981).” Harris v. Ski
Park Farms, Inc., 844 P.2d at 1014 (footnote omitted) (alterations in original); see also
Haggart v. United States, 108 Fed. Cl. 70, 78 (2012) (“When faced with railroad deeds,
Washington courts have been more accepting of extrinsic evidence, regularly relying on
it to interpret the conveyance language, even when no ambiguity is cited.” (citing Kershaw
Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n, 126 P.3d at 25 n.12; and
Harris v. Ski Park Farms, Inc., 844 P.2d at 1014)), recons. denied, 131 Fed. Cl. 628
(2017); Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n, 126 P.3d at
26 n.15 (“Even absent ambiguity, this court, unlike in statutory or contract construction
cases, has consistently examined the circumstances surrounding the transfer and
subsequent conduct of the parties, regardless of ambiguity, if helpful in ascertaining the
parties’ intent, which is of paramount importance.” (internal quotation marks and citation
omitted)); Brown v. State, 924 P.2d at 912 (“In addition to the language of the deed, we
will also look at the circumstances surrounding the deed’s execution and the subsequent
conduct of the parties.”); cf. Newport Yacht Basin Ass’n of Condo. Owners v. Supreme
Nw., Inc., 277 P.3d at 27 (noting that the context rule applies to a “discrete subset of
cases interpreting railroad right-of-way interests”). Citing to Brown v. State and Harris v.
Ski Park Farms, Inc., the State of Washington Court of Appeals in Roeder Co. v. K & E
Moving & Storage Co., Inc., noted that “the [State of Washington] Supreme Court has
recently ruled that, in light of Washington’s adoption of the ‘context rule’ for contracts,
courts may look to extrinsic evidence along with the deed itself to determine the parties’
intent.” Roeder Co. v. K & E Moving & Storage Co., Inc., 4 P.3d 839, 841 n.6 (Wash. Ct.
App.) (emphasis in original) (citing Brown v. State, 924 P.2d at 912; and Harris v. Ski Park
Farms, Inc., 844 P.2d at 1014), recons. denied, (Wash. Ct. App. 2000), review denied, 16
P.3d 1264 (Wash. 2001)). Analyzing the language of deeds involving a conveyance of
land underlying a railroad corridor first, but then referring to the context surrounding the
execution of the deeds is reasonable, given the age of deeds and the sometimes stilted
language employed therein. See Haggart v. United States, 108 Fed. Cl. at 78-79 (citing
the undersigned’s decision in Longnecker Prop., et al. v. United States, 105 Fed. Cl. 393,
409 (2012)). Indeed, the undersigned in previous cases applied the context rule when
interpreting deeds involving the conveyance of land underlying a railroad corridor in
Washington State. See Lucier, et al. v. United States, 138 Fed. Cl. at 449-51; Longnecker
Prop., et al. v. United States, 105 Fed. Cl. at 409-10; Beres V, 104 Fed. Cl. at 427-31.

       The plaintiffs’ deeds in the specifically-named cases, however, are not “railroad
deeds” involving a conveyance of land to a railroad company. The plaintiffs’ chains of title
involve deeds concerning private conveyances of land, which are governed by
Washington State’s rules of contract interpretation. See Pelly v. Panasyuk, 413 P.3d at
628 (citing Wilkinson v. Chiwawa Cmtys. Ass’n, 327 P.3d 614 (Wash. 2014) (en banc);
Hollis v. Garwall, Inc., 974 P.2d 836 (Wash. 1990) (en banc); and Newport Yacht Basin
Ass’n of Condo. Owners v. Supreme Nw., Inc., 277 P.3d 18). In Berg v. Hudesman, the
State of Washington Supreme Court stated that the “instant case presents a clear



                                              47
opportunity for this court to resolve the long-standing confusion engendered by
inconsistent holdings in this area [of contract interpretation]” and that:

      We now hold that extrinsic evidence is admissible as to the entire
      circumstances under which the contract was made, as an aid in ascertaining
      the parties’ intent. We adopt the Restatement (Second) of Contracts §§ 212,
      214(c) (1981). Section 212 provides:

          (1) The interpretation of an integrated agreement is directed to the
          meaning of the terms of the writing or writings in the light of the
          circumstances, in accordance with the rules stated in this Chapter.

          (2) A question of interpretation of an integrated agreement is to be
          determined by the trier of fact if it depends on the credibility of
          extrinsic evidence or on a choice among reasonable inferences to be
          drawn from extrinsic evidence. Otherwise a question of interpretation
          of an integrated agreement is to be determined as a question of law.

      As explained in comment b to this section [212]:

          It is sometimes said that extrinsic evidence cannot change the plain
          meaning of a writing, but meaning can almost never be plain except
          in a context. Accordingly, the rule stated in Subsection (1) is not
          limited to cases where it is determined that the language used is
          ambiguous. Any determination of meaning or ambiguity should only
          be made in the light of the relevant evidence of the situation and
          relations of the parties, the subject matter of the transaction,
          preliminary negotiations and statements made therein, usages of
          trade, and the course of dealing between the parties. . . .

      In discerning the parties’ intent, subsequent conduct of the contracting
      parties may be of aid, and the reasonableness of the parties’ respective
      interpretations may also be a factor in interpreting a written contract.

Berg v. Hudesman, 801 P.2d at 228-29. Subsequently, in Hollis v. Garwall, Inc., the State
of Washington Supreme Court stated:

      Under Berg and cases interpreting Berg, extrinsic evidence may be relevant
      in discerning that intent, where the evidence gives meaning to words used
      in the contract. Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wash.2d 178,
      189, 840 P.2d 851 (1992) (extrinsic evidence illuminates what was written,
      not what was intended to be written). However, admissible extrinsic
      evidence does not include:

          • Evidence of a party’s unilateral or subjective intent as to the meaning
            of a contract word or term;


                                           48
          • Evidence that would show an intention independent of the instrument;
            or

          • Evidence that would vary, contradict or modify the written word.

Hollis v. Garwall, Inc., 974 P.2d 836, 843 (1999) (en banc) (emphasis in original). In
Hearst Communications, Inc. v. Seattle Times Co., the State of Washington Supreme
Court further stated that:

      If relevant for determining mutual intent, extrinsic evidence may include (1)
      the subject matter and objective of the contract, (2) all the circumstances
      surrounding the making of the contract, (3) the subsequent acts and
      conduct of the parties, and (4) the reasonableness of respective
      interpretations urged by the parties. Id. [Berg v. Hudesman, 801 P.2d at
      228] . . .

      Our holding in Berg may have been misunderstood as it implicates the
      admission of parol and extrinsic evidence. We take this opportunity to
      acknowledge that Washington continues to follow the objective
      manifestation theory of contracts. Under this approach, we attempt to
      determine the parties’ intent by focusing on the objective manifestations of
      the agreement, rather than on the unexpressed subjective intent of the
      parties. Max L. Wells Trust v. Grand Cent. Sauna & Hot Tub Co. of Seattle,
      62 Wash. App. 593, 602, 815 P.2d 284 (1991). We impute an intention
      corresponding to the reasonable meaning of the words used. Lynott v. Nat’l
      Union Fire Ins. Co. of Pittsburgh, Pa., 123 Wash.2d 678, 684, 871 P.2d 146
      (1994). Thus, when interpreting contracts, the subjective intent of the parties
      is generally irrelevant if the intent can be determined from the actual words
      used. City of Everett v. Estate of Sumstad, 95 Wash.2d 853, 855, 631 P.2d
      366 (1981). We generally give words in a contract their ordinary, usual, and
      popular meaning unless the entirety of the agreement clearly demonstrates
      a contrary intent. Universal/Land Constr. Co. v. City of Spokane, 49 Wash.
      App. 634, 637, 745 P.2d 53 (1987). We do not interpret what was intended
      to be written but what was written. J.W. Seavey Hop Corp. of Portland v.
      Pollock, 20 Wash.2d 337, 348-49, 147 P.2d 310 (1944), cited with approval
      in Berg, 115 Wash.2d at 669, 801 P.2d 222.


Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d 262, 266-67 (Wash. 2005) (en
banc).

       Following the State of Washington Supreme Court’s decision in Hearst
Communications, Inc., courts applying Washington State contract interpretation law have
stated that “extrinsic evidence relating to the context in which a contract is made may be
examined to determine the meaning of specific words and terms,” but that extrinsic


                                            49
evidence may not be used to show an intention independent of a written instrument, to
vary or contradict written words, or to show a “party’s subjective, unilateral intent as to the
contract’s meaning.” See William G. Hulbert, Jr. & Clare Mumford Hulbert Revocable
Living Tr. v. Port of Everett, 245 P.3d 779, 784 (Wash. Ct. App.) (citing Hearst Commc’ns,
Inc. v. Seattle Times Co., 115 P.3d at 267-67), review denied, 257 P.3d 662 (Wash.
2011); see also Contractors Equip. Maint. Co. ex rel. U.S. v. Bechtel Hanford, Inc., 514
F.3d 899, 903 (9th Cir. 2008); Wilkinson v. Chiwawa Cmtys. Ass’n, 327 P.3d at 250-51;
Pitell v. King Cty. Pub. Hosp. Dist. No. 2, 423 P.3d 900, 905 (Wash. Ct. App. 2018); Pelly
v. Panasyuk, 413 P.3d at 629; Kelley v. Tonda, 393 P.3d 824, 830 (Wash. Ct. App. 2017);
Dave Johnson Ins., Inc. v. Wright, 275 P.3d 339, 347 (Wash. Ct. App.), review denied,
285 P.3d 1008 (Wash. 2012). As stated by the State of Washington Supreme Court:

       The interpretation of a contract can be a mixed question of law and fact.
       Mut. of Enumclaw Ins. Co. v. USF Ins. Co., 164 Wash.2d 411, 424 n.9, 191
       P.3d 866 (2008). But where the contract presents no ambiguity and no
       extrinsic evidence is required to make sense of the contract terms, contract
       interpretation is a question of law. Id.; Tanner Elec. Coop. v. Puget Sound
       Power & Light, 128 Wash.2d 656, 674, 911 P.2d 1301 (1996); see Badgett[
       v. Sec. State Bank], 116 Wash.2d [563,] 568-69[, recons. denied (Wash.
       1991)], 807 P.2d 356 (explaining that whether promisor had a duty under
       the contract is a threshold question of law).

Rekhter v. State, Dep’t of Soc. & Health Servs., 323 P.3d 1036, 1051-52 (Wash. 2014)
(en banc); see also RSD AAP, LLC v. Alyeska Ocean, Inc., 358 P.3d 483, 488 (Wash. Ct.
App. 2015) (quoting Rekhter v. State, Dep’t of Soc. & Health Servs., 323 P.3d at 1051),
review denied, 369 P.3d 500; Trinity Universal Ins. Co. of Kan. v. Ohio Cas. Ins. Co., 312
P.3d 976, 985 n.8 (Wash. App. 2013) (“The meaning of a contract provision is a mixed
question of law and fact, because we ascertain the intent of the contracting parties by
viewing the contract as a whole, the subject matter and objective of the contract, all the
circumstances surrounding the making of the contract, the subsequent acts and conduct
of the parties to the contract, and the reasonableness of the interpretations advocated by
the parties. Where the facts are undisputed, such as where the parties agree that the
contract language controls and there is no extrinsic evidence to be presented, courts may
decide the issue as a matter of law.” (citations omitted)).

The Spencer, Schroeder, and Peterson Plaintiffs and the Centerline Presumption

         Defendant argues that Spencer plaintiffs Raymond and Lael Spencer, John and
Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy
Schroeder, and Peterson plaintiff Donna Marie Raab Matrinez do not have an interest in
the land underlying the railroad corridor. According to defendant, the deeds conveying
land to Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson
plaintiff Donna Marie Raab Matrinez rebut the centerline presumption for those five
plaintiffs because “each of these Plaintiffs’ deeds describe the property conveyed to them
using an express metes and bounds description that does not include the right-of-way.”


                                              50
Defendant argues that each of the five plaintiffs’ deeds “convey property using a metes
and bounds description that use one side of the right-of-way- [sic] the ‘northwesterly,’
‘southwesterly,’ or ‘westerly’ margin – as a boundary,” and that those five plaintiffs have
not provided any evidence indicating that the five plaintiffs obtained an interest in the land
underlying the right-of-way through “other means.” Defendant also asserts that “the
phrase ‘more or less’ [in the plaintiffs’ deeds] does not qualify any of the boundary points
that are on the ROW [right-of-way],” but only qualifies boundaries on the western edge of
plaintiffs’ properties. Additionally, defendant argues that Spencer plaintiffs Raymond and
Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, the three plaintiffs
whose deeds contain a reference to the 1927 unrecorded plat map of a subdivision
created by Willis J. Connell, “have provided no indication that either Mr. Connell or his
heirs conveyed title to land underlying the ROW to them or their predecessors in interest,
which is all that is matters for purposes of this action.”

        Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson
plaintiff Donna Marie Raab Matrinez each argue that they own the land underlying the
railroad corridor. According to Spencer plaintiffs Raymond and Lael Spencer, John and
Carolyn Rossi, and Reid and Susan Brockway, whose deeds contain references to tracts
of land on the 1927 unrecorded plat map of a subdivision created by Willis J. Connell,
“the reason metes and bounds are placed on the unrecorded plat [created by Willis J.
Connell] and carried into deeds is that the County Treasurer demanded metes and
bounds descriptions for unrecorded plats in order to assess property and enforce
assessments.” (emphasis in original). Spencer plaintiffs Raymond and Lael Spencer,
John and Carolyn Rossi, and Reid and Susan Brockway and Peterson plaintiff Donna
Marie Raab Matrinez also argue that the “more or less” language in the deeds of those
plaintiffs24 “is not only different from the metes and bounds addressed in Roeder, but is
inconsistent with the rationale of Roeder that a carefully-defined distance evidences an
intent to convey only to that specified number of feet and not any part of the right of way.”
(citing Roeder Co. v. Burlington N., Inc., 716 P.2d at 862). Schroeder plaintiffs Clifford
and Kathy Schroeder assert that the metes and bounds in their deed extend beyond the
railroad corridor, which the Schroeder plaintiffs Clifford and Kathy Schroeder argue
indicates that they own at least part of the land underlying the railroad corridor. Spencer
plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan
Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff
Donna Marie Raab Matrinez also contend that the circumstances under which the deeds
were executed indicate that plaintiffs’ predecessors-in-title did not retain the right of way,
and that those plaintiffs have submitted “evidence establishing they, not others, own the
right of way.”

       Under Washington State law, generally, “the conveyance of land which is bounded
by a railroad right of way will give the grantee title to the center line of the right of way if
the grantor owns so far, unless the grantor has expressly reserved the fee to the right of
way, or the grantor’s intention to not convey the fee is clear.” Roeder Co. v. Burlington N.,
24The deed conveying land to Schroeder plaintiffs Clifford and Kathy Schroeder does not
contain the phrase “more or less.”
                                              51
Inc., 716 P.2d at 861 (citing Standard Oil Co. v. Milner, 152 So. 2d 431, 438 (Ala. 1962);
Vaughn v. Fitzgerald, 511 P.2d 1148, 1151 (Okla. Ct. App.1973); and 11 C.J.S.
BOUNDARIES § 45 (1938)), recons. denied (Wash. 1986); see also Hornish v. King Cty.,
899 F.3d 680, 697 (9th Cir. 2018) (citing Roeder Co. v. Burlington N., Inc., 716 P.2d at
861), cert. denied, No. 18-838, 2019 WL 1590251 (U.S. Apr. 15, 2019); Haggart v. United
States, 180 Fed. Cl. at 83 (citing Roeder Co. v. Burlington N., Inc., 716 P.2d at 861);
Northlake Marine Works, Inc. v. City of Seattle, 857 P.2d 283, 289 (Wash. Ct. App. 1993).
“This rule,” referred to by the parties as the centerline presumption, presumes that the
grantor intended to convey fee in a right of way “along with and as a part of the
conveyance of the abutting land, generally on the theory that the grantor did not intend to
retain a narrow strip of land which could be of use only to the owner of the adjoining land.”
Roeder Co. v. Burlington N., Inc., 716 P.2d at 861 (citing Standard Oil Co. v. Milner, 152
So. 2d 431; and McConiga v. Riches, 40 Wash. App. 532, 539 (Wash. Ct. App. 1985)).
“When metes and bounds provisions in a deed describe property that extends up to, but
does not include, a railroad right of way, the presumption that abutting property owners
take title to the center of the right of way is rebutted.” Roeder Co. v. Burlington N., Inc.,
716 P.2d at 861; see also Northlake Marine Works, Inc. v. City of Seattle, 857 P.2d at
289 (“This [centerline] presumption is rebuttable, and if metes and bounds provisions in
the deed describe property that extends up to but does not include the right of way, the
presumption is rebutted.”).

        The parties’ dispute of whether the property descriptions in the deeds conveying
land to Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson
plaintiff Donna Marie Raab Matrinez rebut the centerline presumption is impacted by the
State of Washington Supreme Court’s decision in Roeder Co. v. Burlington Northern, Inc.,
716 P.2d 855. In Roeder Co. v. Burlington Northern, Inc., the State of Washington
Supreme Court stated that it was analyzing three issues,25 the third of which was “[d]o
abutting property owners become owners to the center line of a railroad right of way when
the right of way is abandoned?” See id. at 858-59. The State of Washington Supreme
Court stated its “CONCLUSION” to the third issue was “[w]hen metes and bounds
provisions in a deed describe property that extends up to, but does not include, a railroad
right of way, the presumption that abutting property owners take title to the center of the
right of way is rebutted.” Id. at 861 (capitalization in original). When analyzing whether the
plaintiffs in Roeder Co. v. Burlington Northern, Inc. had an interest in the railroad corridor,
the State of Washington Supreme Court stated:

       When the deed refers to the grantor’s right of way as a boundary without
       clearly indicating that the side of the right of way is the boundary, it is
       presumed that the grantor intended to convey title to the center of the right
       of way. When, however, a deed refers to the right of way as a boundary but
25 The State of Washington Supreme Court identified the first two issues as being “ISSUE
ONE. Did the Improvement Company convey an easement or fee simple title to
Bellingham Northern? ISSUE TWO. Is a ‘catchall’ description of a grantor’s land in a deed
legally sufficient to convey title to that land?” Roeder Co. v. Burlington N., Inc., 716 P.2d
at 858 (capitalization in original).
                                              52
       also gives a metes and bounds description of the abutting property, the
       presumption of abutting landowners taking to the center of the right of way
       is rebutted. A metes and bounds description in a deed to property that abuts
       a right of way is evidence of the grantor’s intent to withhold any interest in
       the abutting right of way, and such a description rebuts the presumption that
       the grantee takes title to the center of the right of way.

Id. at 861-62 (footnotes omitted).

       The State of Washington Supreme Court in Roeder Co. noted that “[a]ll of the
appellants herein, with the exception of the Davises, obtained their abutting property from
the” fee owner of the land underlying the railroad corridor, and that, “[w]ith one exception,
the deeds with which these grantors conveyed abutting property used metes and bounds
to describe that property as extending up to the rights of way.” Id. at 862 (footnote
omitted). According to the State of Washington Supreme Court, a “typical example” of the
deeds at issue in Roeder Co. v. Burlington Northern, Inc. stated:

       Beginning at a point on the North line of Oregon Street Two Hundred
       Seventy (270) Feet East of its point of intersection with the East line of
       Orleans Street; thence North Three Hundred Fifty-three (353) feet to the
       South line of the Railroad Right-of-Way of the Chicago, Milwaukee, St. Paul
       and Pacific Railway; thence Easterly along said Right-of-Way South line
       One Hundred Sixty and Thirty-Six Hundredths (160.36) Feet; thence South
       Three Hundred Sixty-three and Seventy-eight [Hundredths] (363.78) Feet
       to the North line of Oregon Street; thence West along said North line One
       Hundred Sixty (160) Feet to the point of beginning.

Id. at 862 (alteration in original). The State of Washington Supreme Court in Roeder Co.
concluded that a “boundary falling in the center of the rights of way is inconsistent with
the careful metes and bounds descriptions in these deeds.” Id. Regarding the “one
exception” that did not include a metes and bounds description, the State of Washington
Supreme Court stated, in a footnote, “[t]hat [the one] exception describes the abutting
property as ‘lying Northerly of the right-of-way’. While not in metes and bounds terms,
under the facts herein such a description appears to exclude any interest in the right of
way.” Id. at 862 n.27 (citation omitted).26

      The State of Washington Supreme Court in Roeder Co. also independently
analyzed the interest of the Davises, who had not received their interest from the fee
owner of the land underlying the railroad corridor, and stated:

       Without evidence showing that the owner of abutting property received that
       property from the fee owner of the right of way property, the railroad
       presumption is inapplicable. Even in the face of such evidence, other
       persuasive evidence of the grantor’s intent to retain the right of way can
26The State of Washington Supreme Court did not provide the text of the “one exception”
deed in its opinion. See generally Roeder Co. v. Burlington N., Inc., 716 P.2d 855.
                                             53
       rebut the presumption. Specifically, language in a deed that describes the
       adjoining property as extending up to the edge of the right of way rebuts the
       presumption that the grantor intended to convey title to the center of the
       right of way.

Id. at 862-63.

       In the cases currently before this court, the pertinent portion of the deed conveying
parcel number 322506-9241 to Peterson plaintiff Donna Marie Raab Matrinez states:

       That portion of government lot 3 and the northeast quarter of the southwest
       quarter of section 32, township 25 north, range 6 east, W.M., in king [sic]
       County, Washington, described as follows:

       Beginning at the intersection of the westerly line of the Northern Pacific
       Railway Company’s right-of-way with the east-west center line of said
       section; thence south 38°05’37” west 282.99 feet; thence north 51°54’23”
       west 190 feet, more or less, to the westerly line of said government lot;
       thence northeasterly along said lot line to the northwest corner thereof;
       thence easterly along said lot line to the point of beginning . . . .

(emphasis added). Peterson plaintiff Donna Marie Raab Matrinez’s deed identifies the
“westerly line” of the railroad corridor as a boundary for Ms. Raab Matrinez’s parcel before
providing a metes and bounds description of Ms. Raab Matrinez’s parcel, which does not
appear to include the land underlying the railroad corridor. The court is not persuaded by
the plaintiffs’ argument that the “more or less” language in Ms. Raab Matrinez’s deed is
“inconsistent with the rationale of Roeder that a carefully-defined distance evidences an
intent to convey only to that specified number of feet and not any part of the right of way.”
Peterson plaintiff Donna Marie Raab Matrinez’s deed identifies the railroad corridor as a
boundary before stating that Ms. Raab Matrinez’s parcels runs “west 190 feet, more or
less, to the westerly line of said government lot,” which is Lake Sammamish. Defendant
and plaintiffs do not dispute that, under Washington State law, a body of water may be
used as a boundary, which may shift over time. See Smith Tug & Barge Co. v. Columbia-
Pac. Towing Corp., 482 P.2d 769, 774 (Wash.), cert. denied, 404 U.S. 829 (1971); see
also 18 W ILLIAM B. STOEBUCK & JOHN W. W EAVER, W ASHINGTON PRACTICE SERIES: REAL
ESTATE § 13.5 (stating, under Washington State law, that “[t]he basic common law
principles are that a gradual, imperceptible movement of a water boundary changes the
boundary of land that bounds upon it, and a sudden or ‘avulsive’ change does not change
the boundary” (footnote omitted)). Defendant states that “[w]ater bodies are common
property boundaries, and frequently used as monuments in property descriptions despite
their variable nature.” (citing Rue v. Ore. & W.R. Co., 186 P. at 1076-77). Plaintiffs cite to
“Hudson House, Inc. v. Rozman, 509 P.2d 992 (Wash. 1973) for the unassailable
proposition that the boundary for property that uses a waterbody moves as the waterbody
moves.”




                                             54
        The plain language in Ms. Raab Matrinez’s deed states that Ms. Raab Matrinez
runs from the “westerly line” of the railroad corridor, which is a fixed boundary, “west 190
feet, more or less,” to Lake Sammamish, a natural water boundary which may be subject
to change over time. The “more or less” language appears to address that the western
border of Donna Marie Raab Matrinez’s parcel may fluctuate as Lake Sammamish
changes over time and does not impact that the eastern border of Ms. Raab Matrinez’s
property is identified as being the “westerly line” of the railroad corridor. Because the deed
conveying property to Peterson plaintiff Donna Marie Raab provides a metes and bounds
property description that extends up to, but does not appear to include, land underlying
the railroad corridor, the centerline presumption is rebutted for Peterson plaintiff Donna
Marie Raab Matrinez. See Roeder Co. v. Burlington N., Inc., 716 P.2d at 861.

      The pertinent portion of the deed conveying parcel number 322506-9144 to
Schroeder plaintiffs Clifford and Kathy Schroeder states:

       Beginning at a point which is 229.36 feet east and 834.91 feet north of the
       southwest corner of said Government Lot 4 and running southwesterly 66
       feet along the northwesterly margin of the Northern Pacific Railroad right of
       way to the point of beginning; thence north 70° 28’ 04” west to the shore of
       Lake Sammamish; thence southwesterly along said shoreline to a line
       which is parallel to an 250 feet southwesterly of said initial course of north
       70° 28’ 04” west; thence south 70° 28’ 04” east along said parallel line to
       the northwesterly margin of the Northern Pacific Railroad right of way;
       thence northerly along said margin to the point of beginning. EXCEPT the
       northeasterly 100 feet thereof.

The Schroeders’ deed provides a metes and bounds description, identifies the
“northwesterly margin” of the railroad corridor as a boundary, and states that the
Schroeders’ parcel runs along the “northwesterly margin” of the railroad corridor. The
plain language in the deed conveying property to the Schroeders indicates that the
centerline presumption is rebutted, as there is a metes and bounds description providing
that the Schroeders’ property extends up to, but does not appear to include, land
underlying the railroad corridor. See Roeder Co. v. Burlington N., Inc., 716 P.2d at 861.
Schroeder plaintiffs Clifford and Kathy Schroeder, however, argue that the “metes and
bounds description for the Schroeder’s [sic] deed does not extend up to the edge of the
right of way, but rather beyond its edge” and have submitted to the court a 2003 land
survey of the Schroeders’ property that concluded that the Schroeders’ property extends
approximately twenty-four feet into the one-hundred foot wide railroad corridor. (emphasis
in original). Defendant, however, contends that “Washington state law is clear that ‘When
there is a call . . . along the boundary line of adjoining land, this boundary, if marked, is a
kind of monument that will control inconsistent courses or distances.’” (capitalization and
omission in original) (quoting 18 W ILLIAM B. STOEBUCK & JOHN W. WEAVER, W ASHINGTON
PRACTICE SERIES: REAL ESTATE § 13.7 (2d ed. 2004 & Supp. 2018)).

      In Bullock v. Yakima Valley Transportation Co., the State of Washington Supreme
Court analyzed a deed, which included a metes and bounds description, conveying land


                                              55
located near a road. See Bullock v. Yakima Valley Transp. Co., 184 P. 641, 642 (Wash.
1919), adhered to on reh’g en banc, 187 P. 410 (Wash. 1920) (per curiam). “[A]s so
described,” the legal description in the deed in Bullock

       would carry the description into the road, and would give title to the
       transportation company to that portion of the roadway covered by the
       crossing and the sidewalk here involved. But that deed further recites that
       the land conveyed ‘runs to the south line of the road now used and traveled
       as a public road.’

Id. The State of Washington Supreme Court stated:

       This south line of the road had a fence on it. It is a well-established rule of
       law that description by monuments will control over description by metes
       and bounds, consequently we are of the opinion, and hold, that the
       transportation company’s ownership went only to the south line of the road,
       and did not include the crossing involved in this suit.

Id. Subsequently, in Matthews v. Parker, the State of Washington Supreme Court further
stated that:

       It seems to us to be too well settled to call for citation of authorities that, in
       a conveyance of interest in land, whether by ordinary deed or by dedication,
       if the description of the land be fixed by ascertainable monuments and by
       courses and distances, the well-settled general rule is that the monuments
       will control the courses and distances if they be inconsistent with the
       monument calls.

Matthews v. Parker, 299 P. 354, 355 (Wash. 1931); see also Staaf v. Bilder, 415 P.2d
650, 652 (Wash. 1966); Fagan v. Walters, 197 P. 635, 638 (Wash. 1921); Ray v. King
Cty., 86 P.3d 183, 197 (Wash. Ct. App. 2004) (“Because the location of this monument
conflicts with the distance calls in the deed, and because the monument controls over the
distance calls, we hold that the strip of land conveyed in this deed is centered on the
railroad tracks, as constructed.”); DD & L, Inc. v. Burgess, 753 P.2d 561, 564 (Wash. Ct.
App. 1988) (stating that monuments are given priority over courses and distances “[i]n
cases of conflicting calls”). Under Washington State law, a railroad line is considered to
be a monument. See Ray v. King Cty., 86 P.3d at 196 (stating that railroad tracks
constitute a monument); DD & L, Inc. v. Burgess, 753 P.2d at 564 (determining that the
centerline of railroad line constituted a monument).27

      In the specifically-named cases, the deed conveying parcel number 322506-9144
to Schroeder plaintiffs Clifford and Kathy Schroeder identifies the railroad corridor, which
is a monument under Washington State law, as a boundary and states that the
Schroeders’ parcel runs “along” the railroad corridor. Consequently, even if the metes

 In plaintiffs’ reply, plaintiffs state that the “railroad right of way” is a monument under
27

Washington State law.
                                              56
and bounds description in the Schroeders’ deed extends into the railroad corridor, as
plaintiffs allege, the language in the Schroeders’ deed identifying the railroad corridor, a
monument under Washington State law, as a boundary controls and indicates that the
railroad corridor is the boundary for the Schroeders’ parcel, notwithstanding that there
allegedly is an inconsistent description in the Schroeders’ deed. See Matthews v. Parker,
299 P. at 355; see also Ray v. King Cty., 86 P.3d at 197; DD & L, Inc. v. Burgess, 753
P.2d at 565. Because the Schroeders’ deed contains a metes and bounds description
and specifically identifies the railroad corridor as a boundary, the Schroeders’ deed
contains a legal description that “describe[s] property that extends up to, but does not
include, a railroad right of way,” and the centerline presumption is rebutted for Schroeder
plaintiffs Clifford and Kathy Schroeder. See Roeder Co. v. Burlington N., Inc., 716 P.2d
at 861.

        Regarding Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi,
and Reid and Susan Brockway, the deeds conveying land to those Spencer plaintiffs each
identify the railroad corridor as a boundary and provide a metes and bounds description
of those Spencer plaintiffs’ parcels. The metes and bounds descriptions in the Spencer
plaintiffs’ deeds indicate that the plaintiffs’ parcels extend up to and run along the edge of
the railroad corridor, thereby rebutting the centerline presumption for Spencer plaintiffs
Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway.
See Roeder Co. v. Burlington N., Inc., 716 P.2d at 861. The “more or less” language in
the deeds of Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and
Reid and Susan Brockway appears to acknowledge that the western border of the
plaintiffs’ parcels is Lake Sammamish, and that the plaintiffs’ western boundary line may
fluctuate with Lake Sammamish over time, in the same manner as the court previously
discussed regarding the deed conveying property to Peterson plaintiff Donna Marie Raab
Matrinez.

       That the centerline presumption is rebutted for the Spencer plaintiffs28 currently
before the court is reinforced by the presence in each of the deeds conveying land to
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway of a reference to a tract of land on the 1927 unrecorded plat map of a
subdivision created by Willis J. Connell. Under Washington State law, “where a deed
describes land as a lot laid out on and designated on a certain plat or survey, the plat
becomes as much a part of the deed as if it were copied into it.” Cook v. Hensler, 107 P.
178, 180 (Wash. 1910)); see also Haggart v. United States, 108 Fed. Cl. at 84
(“Washington law further dictates that ‘the general rule is that reference to a plat or map
in a deed of conveyance makes it a part thereof.’” (quoting Cook v. Hensler, 107 P. at
180)); Greenblum v. Gregory, 294 P. 971, 973 (Wash. 1930); Saterlie v. Lineberry, 962
P.2d 863, 864 (Wash. Ct. App. 1998) (“Where a deed references a map of the land
conveyed, the map and the deed are to be construed together, and the map becomes, ‘in
legal effect, a part of the description.’” (quoting Moore v. Clark, 289 P. 520, 523 (Wash.
1930))). As with the interpretation of deeds, when interpreting a plat map, under
28 In plaintiffs’ cross-motion for summary judgment, plaintiffs refer to Spencer plaintiffs
Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway as
“the Spencer Plaintiffs.”
                                             57
Washington State law, the intent of the parties who made the plat governs the
interpretation of the plat. See Gwinn v. Cleaver, 354 P.2d 913, 915 (Wash. 1960); see
also Tsubota v. Gunkel, 364 P.2d 549, 551 (Wash. 1961); Ditty v. Freeman, 347 P.2d
870, 872 (Wash. 1959) (quoting Mueller v. City of Seattle, 8 P.2d 994, 996 (Wash. 1932));
Selby v. Knudson, 890 P.2d 514, 517 (Wash. Ct. App. 1995) (“It is well settled law that
the intention of the dedicator controls in construing a plat.” (citing Roeder Co. v. Burlington
N., Inc., 714 P.2d 1170 (Wash. 1986) (en banc); and Frye v. King Cty., 275 P. 547 (Wash.
1929))). “That intention is to be determined from all the marks and lines appearing on the
plat.” Roeder Co. v. Burlington N., Inc., 714 P.2d at 1173 (citation omitted); see also
Crystal Ridge Homeowners Ass’n v. City of Bothell, 343 P.3d 746, 750 (Wash. 2015) (“We
determine intent from the marks and lines on the plat itself.”); Gwinn v. Cleaver, 354 P.2d
at 915 (“The platter’s intention is gathered from the plat itself.” (citing Osborne v. City of
Seattle, 100 P. 850 (Wash. 1909))); Frye v. King Cty., 275 P. at 548 (“[T]his intention must
be adduced from the plat itself, where possible, as that furnishes the best evidence
thereof.”). If, however, a plat is ambiguous, the court may consider extrinsic evidence
when determining the intent of the parties. See Tsubota v. Gunkel, 364 P.2d at 551;
Gwinn v. Cleaver, 354 P.2d at 915; Frye v. King Cty., 275 P. at 548; see also Roeder Co.
v. Burlington N., Inc., 714 P.2d at 1173 (“[W]here the plat is ambiguous, surrounding
circumstances may be considered to determine intention.” (citations omitted)); Selby v.
Knudson, 77 Wash. App. at 194.

        In the cases currently before the court, the 1927 unrecorded plat map of a
subdivision created by Willis J. Connell identifies thirty-one parcels, the centerline of the
railroad corridor, and a “County Road Margin.” The 1927 unrecorded plat map indicates
that there is 50 feet between the centerline of the railroad corridor and the edge of the
thirty-one parcels, as well as 50 feet between the centerline of the railroad and the
“County Road Margin.” The 1927 unrecorded plat map provides a metes and bounds
description for all of the thirty-one parcels on the plat map and identifies the railroad
corridor as a boundary, which, again, rebuts the centerline presumption as applicable to
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway. Plaintiffs, however, argue that the centerline presumption is not
rebutted because

       the reference to a metes and bounds description for the Spencer Plaintiffs
       has a different purpose than what the Court concluded in Roeder. The
       deeds to the Spencer Plaintiffs’ properties include a distance to the right of
       way arising from an unrecorded plat. Unlike the situation in Roeder, the
       reason metes and bounds are placed on the unrecorded plat and carried
       into deeds is that the County Treasurer demanded metes and bounds
       descriptions for unrecorded plats in order to assess property and enforce
       assessments. Unrecorded plats have a history of being deemed sufficient
       for describing property for purposes of conveyance. Sengfelder v. Hill, 58
       P. 250 (Wash. 1899). However, reference to a lot number in an unrecorded
       plat was insufficient to confer jurisdiction in a tax foreclosure unless there
       were metes and bounds to properly identify to the world the property being
       foreclosed upon. Napier v. Runkel, 114 P.2d 534 (Wash. 1941).


                                              58
       Accordingly, the metes and bounds were intended to satisfy County rules,
       not to withhold the right of way in the grant, a fact absent from Roeder.

(emphasis in original) (internal references omitted). Plaintiffs have not provided any
evidence to the court specifically indicating that Willis J. Connell, when creating the 1927
unrecorded plat map, included the metes and bounds descriptions for the tracts of land
in the 1927 unrecorded plat map in order to “satisfy County rules,” but merely speculate
that the intention of Willis J. Connell when creating the 1927 unrecorded plat map was to
“satisfy County rules.” Thus, the metes and bounds description in the deeds conveying
land to Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, as well as the descriptions in the 1927 unrecorded plat map, under
Washington State law, each indicate that the centerline presumption is rebutted for
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway. See Roeder Co. v. Burlington N., Inc., 716 P.2d at 861.

          With the centerline presumption rebutted for Spencer plaintiffs Raymond and
Lael Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, Schroeder
plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff Donna Marie Raab
Matrinez, the court must now determine whether, based on the evidence before the court,
Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid and
Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson plaintiff
Donna Marie Raab Matrinez possess an interest in the land underlying the railroad
corridor. Defendant argues that the centerline presumption is rebutted for those plaintiffs,
and that “Plaintiffs have produced no documentary evidence in this case that they
obtained land underlying the right-of-way through other means.” According to defendant,
“the plain language of the Plaintiffs’ deeds and their predecessor’s conveyances do not
show intent to convey the ROW to these Plaintiffs,” and none of plaintiffs’ extrinsic
evidence “shows that they obtained the land underlying the ROW, nor that anyone
intended to convey the land underlying the ROW to them or their predecessors.”
Defendant also asserts that the 1927 unrecorded plat map “show[s] the intent of Mr.
Connell to exclude the ROW from his conveyances of the adjoining lots.”

        Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and Peterson
plaintiff Donna Marie Raab Matrinez, however, argue that they own the land underlying
the railroad corridor, and that, while a metes and bounds in a deed may rebut the
centerline presumption, “there is no corresponding presumption that the right of way was
excluded.” Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and
Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy Schroeder, and
Peterson plaintiff Donna Marie Raab Matrinez argue that none of plaintiffs’ predecessors-
in-interest ever conveyed the land underlying the railroad corridor and that “the Grantor’s
subsequent actions, which are consistent with an intent not to retain the right of way,
supports Plaintiffs’ ownership.” Plaintiffs also submitted to the court a declaration signed
by Ray Spencer, a declaration signed by Carolyn Rossi, a declaration signed by Reid
Brockway, a declaration signed by Clifford Schroeder, and a declaration signed by Donna
Marie Raab Matrinez, in each of which the declarant states that, prior to 1998, when the


                                            59
NITU in the specifically-named cases was issued, no other party ever asserted ownership
of the land underlying the railroad. Additionally, Spencer plaintiffs Raymond and Lael
Spencer, John and Carolyn Rossi, and Reid and Susan Brockway, whose deeds
reference tracts of land on the 1927 unrecorded plat map created by Willis J. Connell,
argue that Willis J. Connell

       likely intended to grant the full right of way, not half, to the properties in the
       Spencer Group because the county road was immediately east of the
       railroad right of way. It would be nonsensical for a grantor to deed only half
       of the right of way to the grantee while the other half was burdened by a
       county road easement and had no other land to which it could attach.


        As discussed above, when interpreting a deed, “the intent of the parties is of
paramount importance and the court’s duty to ascertain and enforce.” See Brown v. State,
924 P.2d at 911; see also Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban Lines
Ass’n, 126 P.3d at 25-26; Kitsap Cty. v. Kitsap Rifle & Revolver Club, 337 P.3d at 345
(citing Harris v. Ski Park Farms, Inc., 844 P.2d 1006). “[W]hen interpreting contracts, the
subjective intent of the parties is generally irrelevant if the intent can be determined from
the actual words used,” but the court may consider extrinsic if “relevant for determining
mutual intent,” which may include “(1) the subject matter and objective of the contract, (2)
all the circumstances surrounding the making of the contract, (3) the subsequent acts and
conduct of the parties, and (4) the reasonableness of respective interpretations urged by
the parties.” See Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d at 266-67; see
also Hollis v. Garwall, Inc., 974 P.2d at 843; William G. Hulbert, Jr. & Clare Mumford
Hulbert Revocable Living Tr. v. Port of Everett, 245 P.3d at 784. When interpreting a plat
map, such as the 1927 unrecorded plat map, the intent of the party who made the plat
governs the interpretation of the plat, which is to be determined from the marks and lines
on the plat map, and the court may only consider extrinsic evidence if the plat map is
ambiguous. See Gwinn v. Cleaver, 354 P.2d at 915; see also Tsubota v. Gunkel, 364
P.2d at 551; Ditty v. Freeman, 347 P.2d at 872 (quoting Mueller v. City of Seattle, 8 P.2d
at 996); Selby v. Knudson, 890 P.2d at 517.

       Regarding the interests of Spencer plaintiffs Raymond and Lael Spencer, John
and Carolyn Rossi, and Reid and Susan Brockway in the land underlying the railroad
corridor, whose deeds reference tracts of land on the 1927 unrecorded plat map of a
subdivision created by Willis J. Connell, the 1927 unrecorded plat map does not contain
any language expressly excepting or reserving an interest in the land underlying the
railroad corridor to Willis J. Connell. The 1927 unrecorded plat map does contain metes
and bounds identifying the railroad corridor as a boundary for the tracts of land on the plat
map, which is sufficient to rebut the centerline presumption and is evidence of an intent
to retain an interest in the railroad corridor. See Roeder Co. v. Burlington N., Inc., 716
P.2d at 862. In Roeder Co. v. Burlington Northern, Inc., the State of Washington Supreme
Court, however, did not state that a metes and bounds description was dispositive of
intent or that a metes and bounds description unequivocally excludes a railroad right-of-
way. Other than the metes and bounds in the plat map, the 1927 unrecorded plat map


                                              60
does not contain any other language or markings indicating that Willis J. Connell intended
to retain an interest in the land underlying the railroad corridor. On the 1927 unrecorded
plat map, the railroad corridor only is labeled as “NOR. PAC. RY.” The legal descriptions
in the deeds of Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi,
and Reid and Susan Brockway also do not contain any language conclusively
demonstrating that the grantors conveying land to those plaintiffs intended to retain or
otherwise not convey an interest in the land underlying the railroad corridor. Other than
the mention of the railroad corridor as a boundary and the metes and bounds descriptions,
which is some evidence of an intent to retain the land underlying the railroad corridor, see
Roeder Co. v. Burlington Northern, Inc., 716 P.2d at 862, the deeds conveying land to
Spencer plaintiffs John and Carolyn Rossi and Reid and Susan Brockway do not
specifically state who owns the land underlying the railroad corridor. The deed conveying
land to Spencer plaintiffs Raymond and Lael Spencer only states that the Spencers’
property is “SUBJECT TO” a “Railroad right of way separating our property from E. Lake
Sammamish Parkway NE.” (capitalization in original).

        Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn Rossi, and Reid
and Susan Brockway, however, argue that Willis J. Connell never conveyed the land
underlying the railroad corridor to a third party or took any actions indicating that Willis J.
Connell retained an interest in the land after creating the subdivision. Neither plaintiffs nor
defendant has identified any subsequent transaction involving the land underlying the
railroad corridor relevant to the Spencer plaintiffs. In the declaration signed by Ray
Spencer, Ray Spencer states that Lael Spencer and he have “used on a regular basis the
area within the railroad right of way” since the Spencers purchased their property in 1992,
and that “no one ever told me that we did not own the railroad right of way or that someone
else owned it.” In the declaration signed by Carolyn Rossi, Carolyn Rossi states that,
since John Rossi and she purchased their property in 1983, “we have used the area of
the railroad right of way that lies west of the railroad tracks ‘rail bed’ as if it were our own,”
and that “[n]o one has ever indicated that we did not own the railroad right of way or that
someone else owned it.” According to the declaration signed by Reid Brockway, Susan
Brockway and he purchased their property in 1973. Mr. Brockway states Susan Brockway
and he have used the land to the west of the railroad right of way since 1973, and “[a]t no
time has anyone ever suggested that we did not own the western half of the railroad right
of way.” Defendant has not submitted to the court evidence refuting the statements made
in the declarations signed Ray Spencer, Carolyn Rossi, or Reid Brockway or indicating
that a predecessor-in-title in plaintiffs’ chains of title took actions consistent with having
an interest in the land underlying the railroad corridor. Given the metes and bounds
description in the plaintiffs’ deeds and in the 1927 unrecorded plat map, the lack of
language in the 1927 unrecorded plat map explicitly indicating that Willis J. Connell
intended to retain an interest in the land underlying the railroad corridor, the lack of
language in the plaintiffs’ deeds explicitly addressing ownership of the land underlying the
railroad corridor, and the undisputed statements in the declarations signed Ray Spencer,
Carolyn Rossi, or Reid Brockway, there is a genuine issue of material fact as to who owns
the land underlying the railroad corridor. The court, therefore, denies defendant’s motion
for partial summary judgment and plaintiffs’ cross-motion for partial summary judgment



                                               61
regarding whether Spencer plaintiffs Raymond and Lael Spencer, John and Carolyn
Rossi, and Reid and Susan Brockway own the land underlying the railroad corridor.

        Regarding Schroeder plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff
Donna Marie Raab Matrinez, whose deeds do not reference tracts on the 1927
unrecorded plat map, the deeds conveying land to Schroeder plaintiffs Clifford and Kathy
Schroeder and Peterson plaintiff Donna Marie Raab Matrinez use metes and bounds and
identify the railroad corridor as a boundary, which is some evidence of the grantor’s intent
to withhold any interest in the abutting right of way. See Roeder Co. v. Burlington N., Inc.,
716 P.2d at 862. The deeds conveying land to Schroeder plaintiffs Clifford and Kathy
Schroeder and Peterson plaintiff Donna Marie Raab Matrinez, however, do not contain
any additional statements unambiguously excluding the railroad corridor from the land
being conveyed to Schroeder plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff
Donna Marie Raab Matrinez. Nor do the deeds of Schroeder plaintiffs Clifford and Kathy
Schroeder and Peterson plaintiff Donna Marie Raab Matrinez contain language
conclusively demonstrating that the grantors in the deeds intended to retain or otherwise
exclude an interest in the land underlying the railroad corridor.

        Schroeder plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff Donna
Marie Raab Matrinez contend that they were unable to locate any transactions involving
the land underlying the railroad corridor adjacent to the parcels owned by Schroeder
plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff Donna Marie Raab Matrinez.
According to the declaration signed by Clifford Schroeder, the Schroeder plaintiffs
purchased their property in 1974 and have been consistently using the land on both sides
of the railroad corridor since 1974. In his declaration, Clifford Schroeder states that,
“[p]rior to 1998, no one has ever approached me [Clifford Schroeder] to suggest that they
are really the owner of the railroad right of way adjoining our property. Only King County
has made that claim and only after 1998.” In the declaration signed by Donna Marie Raab
Matrinez, Donna Marie Raab Matrinez states that her family purchased the property in
1967, that “[o]ur family used the entire railroad right of way,” that “[a]t no time did anyone
challenge my family’s ownership of the right of way that we used,” and that “[n]o one ever
claimed ownership until King County acquired rights to the right of way in 1998 and then,
only the County claimed ownership.” The statements in the declarations signed by Clifford
Schroeder and Donna Marie Raab Matrinez indicate that no other party has acted in a
manner indicating ownership of the land underlying the railroad corridor. Defendant has
not submitted any evidence to the court refuting the statements in the declarations signed
by Clifford Schroeder and Donna Marie Raab Matrinez or demonstrating that a
predecessor-in-title in plaintiffs’ chains of title took actions consistent with possessing an
interest in the land underlying the railroad corridor. The evidence submitted by Schroeder
plaintiffs Clifford and Kathy Schroeder and Peterson plaintiff Donna Marie Raab Matrinez,
the metes and bounds in the deeds conveying land to those two plaintiffs, and the lack of
a definite statement in the deeds related to ownership of the land underlying the railroad
corridor creates a genuine issue of material fact as to whether Schroeder plaintiffs Clifford
and Kathy Schroeder and Peterson plaintiff Donna Marie Raab Matrinez acquired an
interest in the land underlying the railroad corridor through their deeds. Consequently, the
court denies defendant’s motion for partial summary judgment and plaintiffs’ cross-motion


                                             62
for partial summary judgment regarding whether Schroeder plaintiffs Clifford and Kathy
Schroeder and Peterson plaintiff Donna Marie Raab Matrinez own the land underlying the
railroad corridor through their deeds.

The “Shorelands” Conveyances and Collins plaintiffs D. Michael and Vanessa
Collins, Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs
Robert and Beth Nelson and the Estate of William F. Hughes

       The parties also dispute whether Collins plaintiffs D. Michael and Vanessa Collins,
Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs Robert and Beth
Nelson and the Estate of William F. Hughes own the land underlying the railroad corridor.
The parcels owned by Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett,
and Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson all are
located in Government Lot 2. Nelson plaintiff the Estate of William F. Hughes owns two
parcels, parcel number 202506-9071, which is located in Government Lot 1, and parcel
number 202506-9085, which is located in Government Lot 2.

       Defendant asserts that the deeds conveying land to the five “shorelands” plaintiffs
describe the property owned by plaintiffs as second-class shorelands that are adjacent to
an “uplands” property. According to defendant, “[a]s a factual matter, it is not clear how
these shorelands became the dry lands that these Plaintiffs’ homes sit on today, but the
Court does not need to resolve that issue to find that Plaintiffs whose deed only gives
them title to ‘shorelands’ do not have title to land underlying the right-of-way.” Defendant
argues that the “‘shorelands’ conveyances did not convey property underlying the right-
of-way,” and that “Plaintiffs’ title to ‘shorelands’ could not grant them any interest in land
underlying the right-of-way, and their claims that are based on ownership of these
properties must be dismissed.”

        Defendant argues that the “only basis for their [plaintiffs’] claim to land underlying
the ROW [right-of-way] is their assertion that the term [second-class shorelands] was
used in a manner contrary to its normal definition,” and that the “undisputed facts before
this Court show that the land underlying the ROW was never ‘shorelands.’” Defendant
contends that the 1945 partition action in the Superior Court of the State of Washington
for King County did not include the land underlying the railroad corridor. According to
defendant, the 1945 partition action only partitioned second-class shorelands located
outside of the railroad corridor, as well as land located to the east of the railroad corridor.
Defendant argues that, because the land underlying the railroad corridor was not included
in the 1945 partition action, the “state court that oversaw the partition proceeding did not
have jurisdiction over property that was not before it, and thus this Court cannot assume
that it acted to partition it, even though the omission may have been inadvertent.”
Defendant also argues that the court must reject plaintiffs’ position that the term second-
class shorelands, as used in the 1945 partition action, was a misnomer and included the
land underlying the railroad corridor because “it contradicts the clear language of the
property described in the partition proceeding as well as the clear language of deeds
following that proceeding.”



                                              63
        Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and
Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William
F. Hughes, however, argue that the “origins of the phrase ‘second class shorelines’ [sic]
which appears in the remaining Shorelands Plaintiffs’ deeds overwhelmingly establish
that these Plaintiffs and their predecessors received all lands between the lake and the
right of way, as well as fee title underlying the full right of way itself.” Those five plaintiffs
contend that the purpose of the 1945 partition action “was to allocate to the six Palmberg
heirs the property owned by Bertha Palmberg.” Plaintiffs argue that Parcel A in the 1945
partition action “must have included all the land Palmberg owned in Government Lot 1,
including the fee underlying the right of way,” because, “at the time of the partition, there
was not yet any ownership by Palmberg or the heirs in the shorelands, and the sale to
J.J. Simpson was intended to dispose of all the estate in Government Lot 1 (which
included the right of way).” Regarding the land in Government Lot 2, plaintiffs argue that
the 1945 partition action resulted in the land underlying the railroad corridor in
Government Lot 2 being deeded to J.A. Earley because, “if the partition action did not
include the right of way in the deed to Earley, then the Court [in the partition action] failed
to accomplish the whole purpose of the partition action—to divide assets among heirs.”
Additionally, plaintiffs assert that the subsequent events confirm that “title in the right of
way had transferred to Plaintiffs’ predecessors and to Plaintiffs themselves.”

       Prior to the 1945 partition action at the center of the parties’ dispute involving the
“shorelands” plaintiffs, Alfred Palmberg, the father, executed a June 13, 1887 deed
conveying a 100-foot wide easement to the Seattle, Lake Shore and Eastern Railway
Company, on which the railroad corridor was subsequently constructed. See Beres IV,
97 Fed. Cl. at 781-92. In 1908, Alfred Palmberg died and Bertha Palmberg, Alfred
Palmberg’s wife, acquired Alfred Palmberg’s property. In 1918, Bertha Palmberg died
and, according to Bertha Palmberg’s probate document, Bertha Palmberg left her
property in undivided one-sixth shares to her six children, who were Maude Palmberg,
Annie Stangroom, Bessie Zengel, Gertie Gorman, Bert Stares, and Alfred W. Palmberg,
the son of Alfred Palmberg and Bertha Palmberg.

        In 1928, Alfred W. Palmberg, the son, applied to purchase the second-class
shorelands adjacent to Government Lot 2 from the State of Washington. The July 19,
1928 title report created in connection with Alfred W. Palmberg’s application states that
the “records do not disclose the location of the railroad right of way with reference to the
meander line or the high water line, however, the deed to the railroad company of the
right of way expressly reserves all riparian and water front rights on Lake Sammamish.”
According to the August 3, 1928 report created by Edward C. Dohm, a Washington “State
Field Engineer,” Alfred W. Palmberg’s application

       together with App. No. 8710 covering the balance of the frontage bordering
       on said lot 2 have been given considerable study owing to the peculiar
       descriptions which have been used in describing the upland tracts. We have
       secured 3 maps from the Northern Pacific Railway Company and a plat from
       the Engineer of King County. These plats show the railway right of way and
       the county road right of way mentioned in the descriptions and also show


                                               64
      that the line of high water is located outside of the west line of the Northern
      Pacific right of way, and also outside the government meander line.

      From our study of the records, the following description is submitted:

          All shore lands of the second class owned by the State of Washington,
          situate in front of, adjacent to or abutting upon the following described
          uplands:

          In front of all of lot 2, section 20, township 25 north, range 6 east W. M.,
          except the following described tract:

          [legal description appearing to match the legal description of the A.
          Stares tract]

      The above portion of said lot 2, not thus excepted. [sic] have a frontage of
      15.81 lineal chains, more or less, measured along government meander
      line.

Mr. Dohm’s August 3, 1928 report indicates that, as of 1928, there was dry land located
to the west of the railroad corridor and to the east of Lake Sammamish.

       Subsequently, the State of Washington appears to have approved Alfred W.
Palmberg’s application, and Alfred W. Palmberg appears to have made installment
payments to the State of Washington in connection with Alfred W. Palmberg’s application
to purchase the second-class shorelands in Government Lot 2. On February 27, 1940,
the State of Washington executed a deed conveying, in exchange for $395.25, to Alfred
W. Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie Gorman, and
Bert Stares, the following land:

      All shore lands of the second class, owned by the State of Washington,
      situate in front of, adjacent to or abutting upon the following described
      uplands:

      In front of all of lot 2, section 20, township 25 north, range 6 east, W.M.,
      except the following described tract:

      [legal description appearing to match the legal description of the A. Stares
      tract]

      The above portions of said lot 2, not thus excepted, have a frontage of 15.81
      lineal chains, more or less, measured along the government meander line.

The parties have not identified any other conveyances involving the relevant land
underlying the railroad corridor prior to 1945.



                                            65
       Defendant states that, “[a]s of 1945, at the outset of the partition proceeding, it is
undisputed that the Palmberg heirs owned certain land to the east of the ROW, land
underlying the ROW itself, and second-class shorelands adjacent to Government Lot 2.”
On June 22, 1945, the partition action was filed in the Superior Court of the State of
Washington for King County, which stated that all of the parties, including Bert Stares,
Gertie Gorman Hughes, Maude Palmberg, Annie Stangroom, the heirs of Bessie Zengel,
and the heirs of Alfred W. Palmberg, were “joint owners of the following described
property in King County, Washington.” The June 22, 1945 complaint identified the jointly
owned property as:

       Those portions of Government Lots 1, 2 and 3 of Section 20, Township 25
       North, Range 6 E.W.M., Described as follows:

       PARCEL “A”
       Beginning at a point on the North line of said Government Lot 1, 630 feet
       East of the Northwest corner thereof; then South 900 feet; thence
       Southwesterly, at right angles to the right-of-way of the Northern Pacific
       Railway Company (formerly the Seattle and International Railway) to the
       Northeasterly line of said right-of-way; thence Southeasterly, along said
       Northeasterly line to the South line of said Government Lot 1; thence East,
       along said South line to the Southeast corner thereof; thence North, along
       the East line thereof, to the Northeast corner thereof; thence West, along
       the North line, to the point of beginning, EXCEPT County Road.

       PARCEL “B”
       Beginning at the Northeast corner of said Government Lot 2; thence South,
       along the East line thereof, 569.04 feet; thence 221.58 feet; thence
       Southwesterly, at right angles, to the right-of-way of the Northern Pacific
       Railway Company (formerly the Seattle and International Railway), 15.3
       feet, to the Northeasterly line of said right-of-way; thence Northwesterly,
       along said Northeasterly line, to the North line of said Government Lot 2;
       thence East, along said North line, to the point of beginning, TOGETHER
       WITH second class shore lands adjoining, EXCEPT County Road.

       PARCEL “C”
       Beginning at the Southeast corner of said Government Lot 2; thence North,
       along the East line thereof, 110 feet; thence West 87 feet to the
       Northeasterly line of the right-of-way of the Northern Pacific Railway
       Company (formerly the Seattle and International Railway); thence
       Southeasterly, along said Northeasterly line, to the point of beginning,
       TOGETHER WITH second class shore lands adjoining, EXCEPT County
       Road.

(capitalization in original). Neither Parcel A, Parcel B, nor Parcel C in the June 22, 1945
complaint directly discussed the land underlying the railroad corridor, but, rather,
described land lying east of the railroad corridor, as well as “second class shore lands


                                             66
adjoining.” The June 22, 1945 complaint requested that the Superior Court partition the
interests of the parties in the land identified in the June 22, 1945 complaint. In the answers
to the June 22, 1945 complaint, Gertie Gorman Hughes, Maude Palmberg, and the heirs
of Bessie Zengel all state that “the property involved in this proceeding is property owned
by the parents of the parties hereto.” Although plaintiffs argue that this statement indicates
that the “parties understood that the property included all the land owned by their parents,”
the statement by Gertie Gorman Hughes, Maude Palmberg, and the heirs of Bessie
Zengel only indicates that the property listed in the June 22, 1945 complaint was property
owned by Alfred and Bertha Palmberg, not that “all property” previously owned by Alfred
and Bertha Palmberg was included in the June 22, 1945 complaint.

       On April 14, 1948, Gertie Gorman Hughes filed with the Superior Court of the State
of Washington for King County a document titled “BILL OF PARTICULARS,” attached to
which was the November 19, 1946 title report. (capitalization in original). On January 21,
1949, the Superior Court of the State of Washington for King County issued its Findings
of Fact and Conclusions of Law. The Superior Court’s Findings of Fact and Conclusions
of Law described the property at issue in the partition action as:

       In the County of King, State of Washington, those portions of Government
       Lots 1 and 2 of Section 20, Township 25 North, Range 6 E.W.M. described
       as follows:

       PARCEL A:

       Beginning at a point on the north line of Government Lot 1, 630 feet east of
       the northwest corner thereof; thence South 900 feet; thence southwesterly
       at right angles to the right-of-way of the Northern Pacific Railway Company
       (formerly the Seattle and International Railway) to the northeasterly line of
       said right-of-way; thence southeasterly along said northeasterly line to the
       south line of said Government Lot 1; thence east along said south line to
       the southeast corner thereof; thence north along the east line thereof to the
       northeast corner thereof; thence west along the north line to point of
       beginning; thence west along the north line to point of beginning; EXCEPT
       County Road;

       PARCEL B:

       Beginning at the northeast corner of said Government Lot 2; thence south,
       along the east line thereof 569.64 feet; thence west 221.58 feet; thence
       southwesterly at right angles to the right-of-way of the Northern Pacific
       Railway Company (formerly the Seattle and International Railway) 15.3 feet
       to the northeasterly line of said right-of-way; thence northwesterly along
       said northeasterly line to the north line of said Government Lot 2; thence
       east along said North line to the point of beginning; EXCEPT County Road;
       TOGETHER with second class shore lands adjoining, EXCEPT portion if
       any, in said railroad right of way.


                                             67
       PARCEL C:

       The second class shorelands adjoining that certain parcel of land
       particularly described as “Beginning at the Southeast corner of said
       Government Lot 2; thence North, along the East line thereof, 110 feet;
       thence West 87 feet to the Northeasterly line of the right of way of the
       Northern Pacific Railway Company (formerly the Seattle and International
       Railway); thence Southeasterly, along said Northeasterly line, to the point
       of beginning, EXCEPT County Road.” [illegible] any, in said [illegible] right
       of way.

(strike-through and capitalization in original). The Superior Court’s Findings of Fact and
Conclusions of Law did not explicitly mention the land underlying the railroad corridor, but
did indicate that the property at issue included land lying east of the railroad corridor, as
well as “second class shore lands adjoining” the property lying east of the railroad corridor,
notwithstanding that, as early as 1928, there appears to have been land in between the
railroad corridor and Lake Sammamish. The Superior Court determined, in its Findings of
Fact and Conclusions of Law, that S. L. Stangroom and Annie Stangroom had previously
acquired title to Parcel B, “exclusive of second class shorelands,” “beneficially and not as
redemption subject to claims of other heirs of the decedent Alfred Palmberg and Bertha
Palmberg.” The Superior Court determined that the Palmberg heirs, excluding Maude
Palmberg, jointly owned Parcel A, and that the Palmberg heirs, including Maude
Palmberg, jointly owned “PARCEL B SHORELANDS” and Parcel C which, as noted
above, was described as “second class shorelands.” (capitalization in original).

       The Superior Court’s January 21, 1949 Findings of Fact and Conclusions of Law
states that Parcel B, which is defined as extending to the eastern border of the railroad
corridor, is “TOGETHER with second class shore lands adjoining.” Likewise, the Superior
Court’s January 21, 1949 Findings of Fact and Conclusions of Law defines Parcel C as
the “second class shorelands adjoining that certain parcel of land,” which is defined as
extending to the eastern border of the railroad corridor. In defendant’s reply, defendant
argues:

       To the extent that Plaintiffs argue that the term “adjoining” means that the
       second-class shorelands referred to in the partition proceeding must be
       immediately next to the land east of the ROW, including land underlying the
       ROW, the term “adjoining” does create some ambiguity. The United States
       does not dispute that at the time of the partition proceeding, the second-
       class shorelands adjacent to Government Lots 1 and 2 were separated from
       the land east of the ROW that was described in the property descriptions by
       the ROW itself. Thus, the shorelands did not “adjoin” land to the east of the
       ROW. Thus, the description’s use of the term “adjoining” seems to be
       inaccurate. This inaccuracy, however, is not sufficient reason to jump to the
       conclusion that the Court intended to include land underlying the ROW in
       the partition proceeding despite failing to explicitly reference it.


                                             68
Similarly, plaintiffs state that the “adjoining” language in the partition action is ambiguous,
but, in plaintiffs’ reply, plaintiffs argue:

         Defendant concedes the language “shorelands” and “adjoining” is
         ambiguous. But Plaintiffs contend that while ambiguous, the language itself
         strongly suggests the very usage that Plaintiffs have described. Moreover,
         Plaintiffs’ claim is supported by scores of documents and uncontroverted
         facts where the only reasonable inference is that “shorelands” was a
         moniker used by the heirs and their successors for all lands west of the
         easterly boundary of the railroad right of way.


        When describing Parcels A, B, and C, the Superior Court used metes and bounds
to describe land that extended up to the eastern border of the railroad corridor. The
descriptions of the three parcels in the Superior Court’s January 21, 1949 Findings of
Fact and Conclusions of Law do not appear to explicitly include the land underlying the
railroad corridor and indicate that the railroad corridor may not have been included in the
partition action. The Findings of Fact and Conclusions of Law, however, did not define
second-class shorelands. Regarding the second-class shorelands described in Parcels
B and C, when the Washington State legislature first defined “second class shorelands”
in the Washington State Code, the Washington State legislature stated:

         [T]he term “second class shorelands” shall mean public lands belonging to
         the state bordering on the shores of a navigable lake or river not subject to
         tidal flow, between the line of ordinary high water and the line of navigability
         and more than two miles from the corporate limits of any city.

See W ASH. REV. CODE § 79.01.032 (1959) (repealed 1983).29 Based on the above-quoted
definition of “second class shorelands,” the term “second class shorelands” does not
appear to encompass land underlying the railroad corridor, but, rather, only included land
located beneath the water of Lake Sammamish.

       The legal descriptions of the three parcels, however, do not expressly or
unambiguously exclude the land underlying the railroad corridor from the partition action.
The Superior Court of the State of Washington for King County described the second-
class shorelands in Parcels B and C as “adjoining” the easterly line of the railroad corridor.
The statements that the second-class shorelands adjoined the eastern border of the
29   The Washington State legislature defined first class shorelands as

         public lands belonging to the state bordering on the shores of a navigable
         lake or river not subject to tidal flow, between the line of ordinary high water
         and the line of navigability and within or in front of the corporate limits of any
         city or within two miles thereof upon either side.

See W ASH. REV. CODE § 79.01.028 (1959) (repealed 1983).
                                                69
railroad corridor creates an ambiguity in the partition action, and Mr. Edward Dohm’s
August 3, 1928 report indicates that, as early as 1928, there was land between the
western border of the railroad corridor and Lake Sammamish. Therefore, second-class
shorelands, which are lands located underwater, would not adjoin the eastern border of
the railroad corridor because the railroad corridor was established well before 1928, and
there appears to have been land underlying the railroad corridor, as well as land located
to the west of the railroad corridor. If the second-class shorelands actually adjoined the
eastern border of the railroad corridor, the second-class shorelands would have included
the land underlying the railroad corridor, which was located to the west of the railroad
corridor’s eastern border. The Superior Court’s descriptions of Parcels A, B, and C,
however, are ambiguous, as both parties have stated, and the record before the court
does not clearly indicate whether the Superior Court incorrectly used “second class
shorelands” or “adjoining” in its January 21, 1949 Findings of Fact and Conclusions of
Law.

        Both plaintiffs and defendant argue that this court may use subsequent, extrinsic
evidence to determine whether the land underlying the railroad corridor was included in
the partition action. In order for the net proceeds to be partitioned among the parties to
the partition action before the Superior Court, the Superior Court appointed Charles
Bovee as referee and instructed Mr. Bovee to sell Parcel A, the “shorelands in Parcel B,”
and the Parcel C shorelands. On April 30, 1949, in accordance with the Superior Court’s
directive to sell Parcels A, B, and C, Mr. Bovee held a public auction. Mr. Bovee sold
Parcel A to J.J. Simpson for $7,500.00 and sold both the Parcel B second-class
shorelands and Parcel C second-class shorelands to J.A. Earley for $6,600.00. On June
8, 1949, Mr. Bovee executed a deed conveying Parcel A to J.J. Simpson, which contained
a legal description that was substantially similar to the legal description of Parcel A in the
Superior Court’s January 21, 1949 Findings of Fact and Conclusions of Law.

Land Located in Government Lot 1

        Nelson plaintiff the Estate of William F. Hughes owns two parcels, one of which
parcel number 202506-9071 and is located in Government Lot 1. After executing the June
8, 1949 deed with Charles Bovee, J.J. Simpson and Gertie Gorman Hughes executed a
real estate contract conveying land to Gertie Gorman Hughes, the legal description of
which appears to match the legal description of Parcel A in the Superior Court’s Findings
of Fact and Conclusions of Law. The legal description in the real estate contract also
identifies the eastern border of the railroad corridor as a boundary and does not appear
to include the land underlying the railroad corridor. On July 30, 1951, however, the
Department of Public Lands for the State of Washington issued an order conveying
second-class shorelands in Government Lot 1 to Gertie Gorman Hughes. The July 30,
1951 order stated that Gertie Gorman Hughes had “purchased the abutting uplands,” and
that “by virtue of such upland ownership the said Gertie Gorman Hughes is entitled to the
preference right to purchase shore lands abutting upon her upland.” The Department of
Public Lands for the State of Washington’s July 30, 1951 order, therefore, indicates that,
in the Department’s opinion, when Gertie Gorman Hughes purchased Parcel A in
Government Lot 1 from J.J. Simpson, Gertie Gorman Hughes purchased the land that


                                             70
abutted Lake Sammamish. Because the second-class shorelands were to the west of the
eastern border of the railroad corridor identified as the boundary of Ms. Gorman Hughes’
property and separated by dry land lying in between the railroad corridor and Lake
Sammamish, the Department of Public Lands for the State of Washington’s July 30, 1951
order indicates that the legal description of Parcel A may not have been accurate and
may have included land extending beyond the eastern border of the railroad corridor. The
July 30, 1951 order, however, does not conclusively demonstrate that Parcel A, as
partitioned to J.J. Simpson and sold to Gertie Gorman Hughes, included the land
underlying the railroad corridor, given the language used by the Superior Court to define
the boundaries of Parcel A.

Land Located in Government Lot 2

       Collins plaintiffs D. Michael and Vanessa Collins, Donald Barrett, and Howard and
Pam Freedman and Nelson plaintiffs Robert and Beth Nelson and the Estate of William
F. Hughes, parcel number 202506-9085, own parcels located in Government Lot 2, where
the Parcel B second-class shorelands and Parcel C second-class shorelands that Charles
Bovee sold to J.A. Early were located. Regarding the Parcel B second-class shorelands
and Parcel C second-class shorelands, on June 8, 1949, Mr. Bovee and J.A. Earley
executed a deed conveying second-class shorelands that were “adjoining” land in
Government Lot 2. On August 11, 1949, Mr. Bovee filed a petition to correct the deed
executed with J.A. Earley because the legal description in the June 8, 1949 deed was
“ambiguous.” Also on August 11, 1949, at the instruction of the Superior Court, Mr. Bovee
executed a corrected deed to J.A. Earley that conveyed:

      All shore lands of the second class formerly owned by the State of
      Washington situated in front of, adjacent to or abutting upon government lot
      2, section 20, township 25 north, range 6 east, W. M., except the shore
      lands in front of the following described tract:

                                          ***

      The shorelands hereby conveyed are all the shore lands of the second class
      conveyed by that certain deed from the State of Washington to Alfred
      Palmberg, Maude Palmberg, Annie Stangroom, Bessie Zengel, Gertie
      Gorman and Bert States by deed dated February 27, 1940 . . . .

The legal description in the August 11, 1949 corrected deed does appear to describe only
second-class shorelands, but the legal description appears to differ from the legal
description of Parcels B and C in the Superior Court of the State of Washington for King
County’s January 21, 1949 Findings of Fact and Conclusions of Law, which described
second-class shorelands that were “adjoining” the eastern line of the railroad corridor.
Moreover, in 1949, J.A. Earley paid $6,600.00 for Parcels B and C with a “frontage of
15.81 lineal chains,” which resulted in J.A. Earley paying $417.46 per lineal chain. When
originally purchasing the second-class shorelands in Government Lot 2 in 1940, the six
heirs of Bertha Palmberg had paid $395.25 for 15.81 lineal chains of second-class


                                           71
shorelands abutting Government Lot 2, which resulted in the six Palmberg heirs paying
$25.00 per lineal chain.30 That J.A. Earley paid $370.25 more per lineal chain in 1949
than the six heirs of Bertha Palmberg paid in 1940 does indicate that J.A. Earley may
have been purchasing more than just second-class shorelands under the waters of Lake
Sammamish in Government Lot 2, as the greatly increased price per lineal chain is
unexplained in the record before the court. Given the conflicting evidence before the
court, including the unclear legal descriptions in the partition action before the Superior
Court of the State of Washington for King County, however, the price differential does not
definitively establish that J.A. Earley purchased the land underlying the railroad corridor.

       Plaintiffs also argue that, “in 1982, the King County Assessor caught the misnomer
‘shorelands’ and corrected it for the purposes of assessing property taxes.” In 1982,
Harley Hoppe of the King County Assessor sent a letter to William F. Hughes’ attorney
stating:

       As we explained to Mr. Hughes, we had done some map update of the
       section in which his property is located and discovered that the dry beach
       area between the present location of the shore of Lake Sammamish and
       the railroad right-of-way was unaccounted for from an assessment
       standpoint.

       Until the change, Mr. Hughes [sic] property was described only as shore
       lands adjoining a tract of land in gov’t [government] lot 2 of the section. The
       westerly line of the tract ran a course that was probably once the easterly
       line of the right-of-way. His portion of the shore line, as it is now shown on
       the map, is well over a hundred feet south-westerly of this right-of-way line.
       Even after subtracting the right-of-way there is still an unassessed 50 to 55
       foot strip that appears to be above the high water line of the lake.

       Judging from similar descriptions in the area, our feeling was that the shore
       line and the railroad right-of-way was assumed to be the same during the
       early years of property development along the shore of the lake. With that
       assumption in mind, we changed the adjoining property owner’s tax
       description to describe the strip when it appeared that assumption best
       described the situation.

(emphasis added). The King County Assessor’s letter indicates that, based on its records,
as well as its “feeling” based on its review of other “descriptions in the area” and
assumptions made, William F. Hughes may have owned the land underlying the railroad
corridor. The King County Assessor’s letter, however, does not analyze whether the land
underlying the railroad corridor was included in the partition action before the Superior
Court of the State of Washington for King County or in the subsequent deeds issued to
J.J. Simpson or J.A. Earley.


30In 1951, when Gertie Gorman Hughes bought second-class shorelands in Government
Lot 1, Gertie Gorman Hughes paid $50.00 per lineal chain.
                                             72
       The chains of title for Collins plaintiffs D. Michael and Vanessa Collins, Donald
Barrett, and Howard and Pam Freedman and Nelson plaintiffs Robert and Beth Nelson
and the Estate of William F. Hughes all include deeds from either J.J. Simpson or J.A.
Earley. Based on the evidence before the court, it still is unclear whether the partition
action before the Superior Court included the land underlying the railroad corridor for the
land in both Government Lot 1 and Government Lot 2, and it still is unclear whether J.J.
Simpson and J.A. Earley acquired title to the land underlying the railroad corridor.
Additionally, neither party has identified a transaction involving the land underlying the
railroad corridor that is allegedly adjacent to Collins plaintiffs D. Michael and Vanessa
Collins, Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs Robert and
Beth Nelson and the Estate of William F. Hughes. The court, therefore, finds that there
are conflicting issues of material fact as to whether Collins plaintiffs D. Michael and
Vanessa Collins, Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs
Robert and Beth Nelson and the Estate of William F. Hughes own the land underlying the
railroad corridor.31 Plaintiffs’ motion for partial summary judgment and defendant’s motion
for partial summary judgment addressing whether Collins plaintiffs D. Michael and
Vanessa Collins, Donald Barrett, and Howard and Pam Freedman and Nelson plaintiffs
Robert and Beth Nelson and the Estate of William F. Hughes acquired interests in the
land underlying the railroad corridor through their deeds are both denied.

Plaintiffs’ Alternative Adverse Possession Theory

        Alternatively, all of the plaintiffs contend that, if plaintiffs did not acquire fee title to
the land underlying the railroad corridor, then plaintiffs adversely possessed the land
underlying the railroad corridor prior to the issuance of the September 18, 1998 NITU.
Defendant argues that plaintiffs cannot adversely possess a reversionary interest in the
land underlying the railroad corridor under Washington State law, and that plaintiffs’
adverse possession claims are preempted under the ICCTA. Defendant requests that, if
the court “allows Plaintiffs’ adverse possession claims to proceed,” the court should allow
time for discovery related to plaintiffs’ adverse possession claims under RCFC 56(d). As
discussed above, under Washington State law, adverse possession requires “possession
that is: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile.”
ITT Rayonier, Inc. v. Bell, 774 P.2d at 8 (citing Chaplin v. Sanders, 676 P.2d 431); see
also LeBleu v. Aalgaard, 371 P.3d 76, 78 (Wash. Ct. App. 2016) (citing Chaplin v.
Sanders, 676 P.2d 431).
31  Nelson plaintiffs Robert and Beth Nelson and the Estate of William F. Hughes argue,
“[i]f the right of way was never conveyed as a result of the partition proceeding, then the
Hughes Estate (and Nelsons as heirs) are the owners of a significant portion of the right
of way.” According to Nelson plaintiffs Robert and Beth Nelson and the Estate of William
F. Hughes, “the Court can conclude that the Hughes Estate owns at least 38.23% of the
right of way” based on alleged transfers made through the alleged wills of Alfred W.
Palmberg, Gertie Gorman Hughes, Maude Palmberg, and Minnie Hughes. As discussed
above, however, there is an issue of fact as to whether the land underlying the railroad
corridor was included in the partition action before the Superior Court of the State of
Washington for King County, and the court need not resolve the Nelson plaintiffs’
alternative argument at this time.
                                                 73
Is Adverse Possession of the Land Underlying the Railroad Corridor Barred Under
Washington State Law

        According to defendant, “Plaintiffs are barred by state law from adversely
possessing against the reversionary interest in the right-of-way before the reversionary
interest becomes a present possessory interest in the right-of-way; in other words, before
the right-of-way is abandoned.” Defendant argues that, in Kiely v. Graves, 271 P.3d 226,
233 (Wash. 2012) (en banc), the State of Washington Supreme Court “unambiguously
held” that an adverse possession claim cannot be asserted against a reversionary interest
or a remainder interest until the reversionary interest or remainder interest becomes a
vested interest. Defendant contends that Washington State courts “consistently refer to
the interest held by the fee owner of land underlying a railroad ROW easement as a
‘reversionary interest.’”

        All ten plaintiffs, however, contend that there “is no bar under Washington law to
adversely possessing the servient estate of a property burdened by a railroad easement.”
Plaintiffs assert that “the interest in the fee underlying the railroad easement is not a
reversionary interest in the classical sense” because “[r]eversionary interests are those
which include no present rights to use the property (such as in Kiely), but rather rights
that may come into existence based on future events.” Plaintiffs contend that the fee
interest in the land underlying the railroad corridor, to which the plaintiffs are attempting
to prove that they had adversely possessed, is a fee interest “burdened by a common law
easement,” and that the burdened fee interest is not a reversionary interest. Citing to
Veach v. Culp, 599 P.2d 526, 528 (Wash. 1979) (en banc), plaintiffs argue that, “[i]n the
case of a railroad easement the fee owner retains right to use, which makes it different
from a reversionary interest.” The ten plaintiffs in the specifically-named cases also
contend that defendant “misunderstands” the State of Washington Supreme Court’s
decision in Kiely v. Graves, and that a “complete reading” of Kiely v. Graves demonstrates
that defendant’s “argument is erroneous both on the law and the premise on which its
argument is made.”

       Regarding defendant’s argument that “the owner of the fee underlying the ROW
retained a reversionary interest in the ROW,” a reversionary interest is a future interest
“that will or may become possessory in the grantor or devisor (or that person’s heirs), i.e.,
not in a third person,” such as a reverter or a right of entry. See 17 WILLIAM B. STOEBUCK
& JOHN W. W EAVER, WASHINGTON PRACTICE SERIES: REAL ESTATE § 1.15 (2d ed. 2004 &
Supp. 2018) (emphasis in original) (discussing reversionary interests under Washington
State law). The Washington State courts in Brown v. State, 924 P.2d at 916; Lawson v.
State, 730 P.2d 1308, 1315 (Wash. 1986) (en banc); and King City v. Squire Inv. Co., 801
P.2d 1022, 1025-26 (Wash. Ct. App. 1990), did “refer to the interest held by the fee owner
of land underlying a railroad ROW easement as a ‘reversionary interest,’” as defendant
contends. In Lawson v. State, the State of Washington Supreme Court stated:

       At common law, where a deed is construed to convey a right of way for
       railroad purposes only, upon abandonment by the railroad of the right of


                                             74
      way the land over which the right of way passes reverts to the reversionary
      interest holder free of the easement. See generally Roeder Co. v. Burlington
      Northern, Inc., 105 Wash.2d at 571, 716 P.2d 855; Swan v. O’Leary, supra;
      Morsbach v. Thurston Cy., supra [278 P. 686 (Wash. 1929)]. In addition to
      outright abandonment of a right of way, there may be a change in use of the
      right of way which is inconsistent with the purpose for which the right of way
      was granted. Where the particular use of an easement for the purpose for
      which it was established ceases, the land is discharged of the burden of the
      easement and right to possession reverts to the original land owner or to
      that landowner’s successor in interest. Roeder Co. v. Burlington Northern,
      Inc., 105 Wash.2d at 571, 716 P.2d 855. Cf. 3 J. Sackman, Nichols on
      Eminent Domain § 9.35, at 9-113 (3d rev. ed. 1985) (imposition of a new
      easement of a nature different from the old one, and wholly inconsistent
      with it, amounts to abandonment of the old easement).

Lawson v. State, 730 P.2d at 1311-12; see also Brown v. State, 924 P.2d at 916 (“Under
the 1875 Act, railroads acquired less than fee simple estates, leaving the federal
government with a reversionary interest.”); King Cty. v. Squire Inv. Co., 801 P.2d at 1025-
26 (stating that, when a railroad company “formally abandoned” a railroad easement, the
railroad easement “was extinguished at that moment and its interest reverted to the
Squires’ heirs”).

        In Veach v. Culp, however, the State of Washington Supreme Court discussed a
factual situation in which a railroad company’s predecessor-in-interest had executed a
deed with an unidentified party in 1901 involving the conveyance of a one-hundred-foot-
wide right-of-way. See Veach v. Culp, 599 P.2d at 526. The State of Washington Supreme
Court determined that the 1901 deed conveyed an easement, rather than fee simple, to
the railroad company’s predecessor-in-interest in the right-of-way identified in the 1901
deed. See id. at 528. The railroad company in Veach v. Culp argued that it was entitled
to “exclusive possession” of the railroad right-of-way, regardless of whether the 1901
deed conveyed an easement or fee simple. See id. The State of Washington Supreme
Court stated:

      The railroad contends, nonetheless, that it is immaterial whether it owns an
      easement or a fee simple title. Its premise for this contention is that a
      railroad right-of-way, whether in fee or an easement, is entitled to exclusive
      possession. . . . Certainly it is true that in most instances the very nature of
      a railroad will require it to enjoy a substantial right regardless of the nature
      of its title.

      However, we must look to the actual use being made of this easement in
      light of the rule that the servient owner retains the use of an easement so
      long as that use does not materially interfere with the use by the holder of
      the easement. That principle is well established. Seattle v. Nazarenus, 60
      Wash.2d 657, 666, 374 P.2d 1014 (1962); Broadacres, Inc. v. Nelsen, 21
      Wash. App. 11, 15-16, 583 P.2d 651 (1978).


                                            75
      Here this railroad had been reduced to operation as an excursion operation.
      It has never made any freight deliveries. It has no paid employees. It has a
      very limited amount of equipment. Its single locomotive is owned by
      approximately 30 persons. It makes three round trips on Saturdays and two
      on Sundays. It is at the disputed site approximately only 15 minutes each
      trip. This regular usage is only on weekends during the summer for
      approximately 3 months. The other 9 months of the year it operates only on
      charter, admitting that in some months it has no charters at all.

      Thus the average use by the railroad of this disputed track area would be
      approximately 1 hour and 15 minutes during the weekends and then only
      during the summer.

      As holders of the subservient estate, the plaintiffs are entitled to use the
      right-of-way in such a manner as does not materially interfere with the
      railroad’s use thereof. Plaintiffs concede that their use is so restricted.

Veach v. Culp, 599 P.2d at 528. The State of Washington Supreme Court in Veach v.
Culp, therefore, indicated that the “servient owner” of the land underlying a railroad
easement retains fee title to the land burdened by railroad easement, as well as the right
to use the burdened land, “so long as that use does not materially interfere with the use
by the holder of the easement.” See id.

        Moreover, in a seminal rails-to-trails case, but involving Vermont State law, the
United States Court of Appeals for the Federal Circuit discussed, in the rails-to-trails
context, how some courts and parties have referred to the interest of the individual owning
the land burdened by a railroad easement as a reversionary interest. See Preseault II,
100 F.3d at 1533-34. In Preseault II, the United States Court of Appeals for the Federal
Circuit stated:

      Before addressing these several issues, a preliminary matter. There is an
      alternative way, frequently used today including by the parties here, to
      describe property transactions involving easements. Instead of calling the
      property owner’s retained interest a fee simple burdened by the easement,
      this alternative labels the property owner’s retained interest following the
      creation of an easement as a “reversion” in fee. Upon the termination,
      however achieved, of the easement, the “reversion” is said to become fully
      possessory; it is sometimes loosely said that the estate “reverts” to the
      owner.

      Under traditional common law estates terminology, a “reversion” is a future
      interest remaining in the transferor following the conveyance of certain
      lesser estates to a transferee, typically when the transferee takes a
      possessory estate of freehold, for example a life estate. An easement is not
      such a possessory estate of freehold. Traditional characterization describes


                                            76
       an easement as a “use” interest, sometimes an “incorporeal hereditament,”
       but not a “possessory” interest in the land. Therefore labeling the retained
       interest a “reversion” is not consistent with the traditional classification
       scheme, which views the retained interest as a present estate in fee simple,
       subject to the burden of the easement.

       Be that as it may, whether the property owner’s retained interest following
       the conveyance of an easement is denominated a fee simple estate or a
       reversion, it is uniformly treated at common law as a vested estate in fee.
       Under either characterization the result upon termination of the easement
       is the same. For consistency we use the traditional terminology which
       recognizes that the transferor remains seised of the freehold estate, and
       thus labels the owner’s estate as a fee simple, burdened, during the life of
       the easement, by the easement-holder’s rights.

Id. (footnotes omitted).

       Similarly, commentators have discussed the State of Washington Supreme Court’s
use of the term “reversionary interest” to describe land burdened by a railroad easement,
stating:

       In Lawson [v. State, 730 P.2d 1308] the [State of Washington Supreme]
       court, as it has done in earlier decisions, unfortunately spoke of the owner
       of the land that was subject to the railroad easement as having a
       “reversionary interest.” It was this “reversionary interest” that the statute [in
       Lawson] was said to have attempted to take. The owner of land that is
       subject to an easement does not thereby have a reversion; he has a fee
       simple absolute, subject to, or burdened by, an easement. A reversionary
       interest is an estate that follows another presently possessory estate, such
       as a reversion following a life estate, a possibility of reverter following a
       determinable fee, or a right of entry following a fee upon condition
       subsequent. The railroad, or the holder of any easement, does not have a
       presently possessory estate; thus, there can be no reversionary estate in
       the landowner. When the easement is terminated, one should simply say
       that the fee simple, which the owner had all along, is unburdened.

17 W ILLIAM B. STOEBUCK & JOHN W. W EAVER, WASHINGTON PRACTICE SERIES: REAL ESTATE
§ 2.9 (2d ed. 2004 & Supp. 2018); see also Marc A. Sennewald, Note, The Nexus of
Federal and State Law in Railroad Abandonments, 51 VAND. L. REV. 1399, 1410 (1998)
(citing to the State of Washington Supreme Court’s decision in Lawson v. State and
stating, “contrary to the language used in many decisions on rails-to-trails conversions,
there is no ‘reversionary’ interest in an easement”). The statements quoted above are
consistent with the State of Washington Supreme Court’s decision in Veach v. Culp, as
well as with decisions of Washington State courts in non rails-to-trails cases involving
adverse possession, which indicate that the party granting the easement retains fee
interest in the land burdened by the easement, rather than a reversionary interest, and


                                              77
may use the burdened land in a manner that does not unreasonably interfere with the
easement. See, e.g., Zonnebloem, LLC v. Blue Bay Holdings, LLC, 401 P.3d 468, 471
(Wash. Ct. App. 2017) (stating that an easement is a “nonpossessory right to use the land
of another” and “the owner of a servient estate may use his or her property in any
reasonable manner that does not interfere with the easement holder’s use of the
easement”); Kave v. McIntosh Ridge Primary Rd. Ass’n, 394 P.3d 446, 452 (Wash. Ct.
App. 2017) (“Although the dominant estate has a right to use the servient estate, the land
remains the property of the servient estate. . . . Therefore, an easement cannot be
considered the ‘land’ of the dominant estate owner.” (citations omitted)).

        In all of the specifically-named cases, this court previously determined that the
original conveyances to the Seattle, Lake Shore and Eastern Railway Company only
conveyed an easement to the Seattle, Lake Shore and Eastern Railway Company in the
railroad corridor. See Beres IV, 97 Fed. Cl. at 803. Notwithstanding the terminology in
Lawson v. State and other cases cited by defendant, as explained above, the parties
executing the deeds that conveyed the easements to the Seattle, Lake Shore and Eastern
Railway Company retained fee interest in the land underlying the railroad corridor, subject
to the Seattle, Lake Shore and Eastern Railway Company’s use of its railroad easement.
See Veach v. Culp, 599 P.2d at 526. As indicated by the State of Washington Supreme
Court in Veach v. Culp, the fee owners of the land burdened by the railroad easement,
and the fee owner’s successors-in-title, were entitled to use the land underlying the
railroad corridor “in such a manner as does not materially interfere with the railroad’s use”
of its railroad easement. See id.

       Moreover, defendant’s reliance on Kiely v. Graves, 271 P.3d 226, is misplaced. In
Kiely v. Graves, the State of Washington Supreme Court analyzed whether the Graves
owned an alley, which had been dedicated for public use by the city of Port Townsend,
or whether the Kielys had adversely possessed the alley. See id. at 228. The State of
Washington Supreme Court determined that the city of Port Townsend only possessed
an easement in the alley at issue. The State of Washington Supreme Court stated:

       The Kielys contend that because the city possessed only an easement, the
       Graveses may not rely on RCW [Revised Code of Washington] 7.28.090 to
       defeat their claim to the alley through adverse possession. RCW 7.28.090
       states:

          RCW 7.28.070 [establishing the standard for adverse possession
          under claim and color of title] and 7.28.080 [establishing the standard
          for adverse possession of vacant and unoccupied land] shall not
          extend to lands or tenements owned by the United States or this
          state, nor to school lands, nor to lands held for any public purpose.

       (Emphasis added.) RCW 7.28.090 has remained unchanged during all
       times relevant to this case. See Brace & Hergert Mill Co. v. State, 49 Wash.
       326, 95 P. 278 (1908). A party may not claim adverse possession of



                                             78
       property held or controlled by a municipality for public use. Gustaveson v.
       Dwyer, 83 Wash. 303, 304-05, 145 P. 458 (1915).

Kiely v. Graves, 271 P.3d at 231-32 (second and third alterations in original). The State
of Washington Supreme Court stated that “[t]his case hinges on whether an easement
dedicated for a public thoroughfare constitutes ‘lands held for any public purpose’ under
RCW 7.28.090.” Kiely v. Graves, 271 P.3d at 232.

       In analyzing the phrase “lands held for any public purpose” in RCW § 7.28.090,
the State of Washington Supreme Court stated:

   [W]e must give meaning to the “lands held for any public purpose” clause distinct
   from ownership. The legislature must have intended the clause to refer to land held
   by the government in something less than fee simple. An easement logically would
   be such a property interest. . . .

   An easement provides the right to use real property of another without owning it.
   City of Olympia v. Palzer, 107 Wash.2d 225, 229, 728 P.2d 135 (1986). The
   recipient of an easement is often called an “easement holder.” E.g., State v.
   Newcomb, 160 Wash. App. 184, 191, 246 P.3d 1286 (2011). Presumably then,
   “lands held for any public purpose” is property in which the government holds some
   but not all rights. When the public holds an easement, the “lands held for any public
   purpose” prong of RCW 7.28.090 is satisfied, barring adverse possession claims
   against that property.

Kiely v. Graves, 271 P.3d at 232. In discussing whether land is held by a city or
municipality for “public use,” the State of Washington Supreme Court drew a distinction
between property held by a city or municipality “as trustee for the public” and property
that is not held in trust for public use, but, rather, held “as the property of the municipality”
or city. See id. The Kiely v. Graves court stated that, “[h]ere, as in Rapp[ v. Stratton, 83
P. 182 (Wash. 1905)], the city held the alley in trust for the public until it was vacated,
thus precluding adverse possession prior to vacation by the city.” See Kiely v. Graves,
271 P.3d at 232. According to the State of Washington Supreme Court, fee interests
subject to public easements are “mere future expectancies, bereft of enjoyment and
incapable of pecuniary advantage,” and that, consequently, a landowner owning property
abutting a dedicated alley only has a reversionary fee in the dedicated alley. Id. at 233
(internal quotation marks and citations omitted). The State of Washington Supreme Court
asserted that “[a]n adverse possession claim cannot be asserted against a reversionary
interest or a remainder interest until the future interest becomes a vested interest.” Id.
(citations omitted). Thus, “[b]ecause the city of Port Townsend held an easement interest
until its vacation in 2009, RCW 7.28.090 prohibited the Kielys from obtaining title to the
alley through adverse possession.” Kiely v. Graves, 271 P.3d at 234.

      In all of the specifically-named cases, defendant argues that the court should apply
the bar in RCW § 7.28.090 to plaintiffs’ alternative adverse possession claims because
Washington State courts have stated that a “railroad is a public highway, created for public


                                               79
purposes.” See Lawson v. State, 730 P.2d at 1311 (citation omitted); see also Kershaw
Sunnyside Ranches, Inc. v. Yakima Interurban Lines Ass’n, 126 P.3d at 34 (quoting
Lawson v. State, 730 P.2d at 1311). The reasoning in Kiely v. Graves, as well as the
prohibition against adverse possession in RCW § 7.28.090, however, does not apply to
plaintiffs’ alternative claims of acquiring an interest in the land underlying the railroad
corridor through adverse possession because, as indicated in Kiely v. Graves, “lands held
for any public purpose” refers to “property in which the government holds some but not
all rights.” See Kiely v. Graves, 271 P.3d at 232. The State of Washington Supreme Court
asserted that the Washington State “legislature must have intended the clause [“nor to
lands held for any public purpose”] to refer to land held by the government in something
less than fee simple.” Id.; see also Gustaveson v. Dwyer, 145 P. 458, 459 (Wash. 1915)
(en banc) (stating that adverse possession cannot be asserted against property if the
“property is held by the municipality, or rather controlled by it, in a governmental capacity
for public purposes”); Pioneer Nat. Title Ins. Co. v. State, 695 P.2d 996, 998 (Wash. Ct.
App. 1985) (quoting RCW § 7.28.090 and stating that RCW § 7.28.090 is “underscored
by well settled case law establishing the rule that property cannot be acquired by adverse
possession against the State” (citations omitted)).

       The railroad easements in the specifically-named cases, however, originally were
granted to the Seattle, Lake Shore & Eastern Railway Company, not to a governmental
entity of the State of Washington or the United States. Defendant correctly notes that
Washington State courts have referred to railroad lines as “public highway[s], created for
public purposes,” but defendant has not cited to any cases indicating that a railroad
company is considered to be a governmental entity under Washington State law. Nor has
defendant cited to any cases applying RCW § 7.28.090 to an easement owned by a
railroad company, notwithstanding that, since at least 1893, Washington State law has
stated that adverse possession claims “shall not extend to lands or tenements owned by
the United States or this state, nor to school lands, nor to lands held for any public
purpose.” See W ASH. REV. CODE § 830 (1893). Indeed, Washington State courts have
permitted adverse possession claims against property held by railroad companies. See
N. Pac. Ry. Co. v. Ely, 65 P. 555, 558-59 (Wash. 1901) (stating a “railroad is not a public
highway in the sense that it belongs to the people” and that, “[i]f one occupies adversely
for 20 years land owned by a railway company, the statute of limitations should raise the
presumption of a grant; for the company holds its lands for private gain, as a private
proprietor” (internal quotation marks and citation omitted)), rev’d, 197 U.S. 1 (1905)
(reversing the State of Washington Supreme Court’s judgment because individuals could
not acquire title by adverse possession to land that was granted to a railroad company
under a federal statute); see also Netherlands Am. Mortg. Bank v. E. Ry. & Lumber Co.,
252 P. 916, 917 (Wash. 1927) (“Adverse title can be gained to land granted and conveyed
as a railroad right of way, but the adverse possession must be such as is inconsistent
with the exercise of the right of way easement.” (citing N. Pac. Ry. Co. v. Spokane, 88 P.
135 (Wash. 1907))); N. Pac. Ry. Co. v. Spokane, 88 P. at 136-37; N. Ctys. Inv. Tr. v.
Enyard, 64 P. 516, 516-17 (Wash. 1901).

        Additionally, the interests of the individuals allegedly owning the land underlying
the railroad corridor in the specifically-named cases differ from the interests at issue in


                                             80
Kiely v. Graves. In Kiely v. Graves, the State of Washington Supreme Court described
the interests in land underlying the public easement alley as reversionary interests that
were “mere future expectancies, bereft of enjoyment.” See Kiely v. Graves, 271 P.3d at
233 (internal quotation marks and citation omitted). As discussed above, if plaintiffs in the
specifically-named cases did not own the land underlying the railroad corridor through the
deeds in their chains of title, then the individuals who owned the land underlying the
railroad corridor would have owned the land in fee, subject to a railroad easement, with
the right to use the land in a manner that did not unreasonably interfere with the railroad
company’s use of its railroad easement. By having the ability to use the burdened land in
a manner that did not unreasonably interfere with the railroad easement, the landowners
owning the land burdened by the railroad easement would not be prevented from using
the land underlying the railroad in the manner discussed in Kiely v. Graves, as their
interests would not be “bereft of enjoyment.” Moreover, the statement in Kiely v. Graves
that “[a]n adverse possession claim cannot be asserted against a reversionary interest or
a remainder interest until the future interest becomes a vested interest” is inapplicable to
the specifically-named cases because, as discussed above, the landowners owning fee
simple title to the land burdened by the railroad easement do not have reversionary
interests. Thus, neither RCW § 7.28.090 nor the State of Washington Supreme Court’s
decision in Kiely v. Graves would bar plaintiffs’ alternative claims of acquiring an interest
in the land underlying the railroad corridor through adverse possession, and Washington
State law does not appear to bar plaintiffs’ alternative adverse possession claims related
to the fee simple title in the land underlying the railroad corridor.

Preemption Under the I.C.C. Termination Act of 1995

        Defendant also argues that plaintiffs’ alternative claims of acquiring an interest in
the land underlying the railroad corridor through State law adverse possession are
“categorically preempted” and “barred as a matter of law” under the ICCTA. Specifically,
defendant cites to the statute at 49 U.S.C. § 10501(b), which defendant asserts confers
exclusive jurisdiction to the STB over railroad activities. According to defendant, the STB
and other courts, albeit not this court or the United States Court of Appeals for the Federal
Circuit, have “found that state law condemnation or adverse possession claims falls within
the ICCTA’s preemptive scope,” even if a railroad is railbanked. Defendant argues that
plaintiffs’ adverse possession claims of “portions of the railroad” would interfere with
Burlington Northern reactivating the railroad corridor and restoring service on the railroad
corridor under the Trails Act.

         Plaintiffs contend that their alternative adverse possession allegations are not
preempted because “Plaintiffs’ ownership of the fee title underlying the right-of-way
easement—whether by title or through adverse possession—manifestly has not, does
not, and will not interfere with the federal government’s control over this right of way.”
According to plaintiffs, adversely possessing the fee simple title will not interfere with a
potential reactivation of the railroad corridor because “the property,” i.e. fee simple title
burdened by the railroad easement, “remains subject to preexisting easements and their
ownership presents no impediment to federal control.” Specifically, plaintiffs argue that,
“[i]f Plaintiffs acquired title to land via adverse possession, that title remained subject to a


                                              81
railroad easement, remains subject to an easement for trail use, and remains subject to
reinstitution of railroad use,” which plaintiffs assert “in no way” will interfere with rail
transportation. Additionally, plaintiffs assert that plaintiffs “and their predecessors have
occupied the right of way thirty years or longer, and that occupation has not interfered
with railroad operations (regardless of whether they owned it by title or not).”

       The Supremacy Clause of the United States Constitution “states a clear rule that
federal law ‘shall be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.’” Amgen Inc. v. Sandoz Inc., 877 F.3d 1315, 1326 (Fed. Cir. 2017)
(capitalization in original) (quoting U.S. Const. art. VI, cl. 2). Preemption of State law is a
question of congressional intent. Id. (quoting English v. Gen. Elec. Co., 496 U.S. 72, 78
(1990)); see also Wyeth v. Levine, 555 U.S. 555, 565 (2009) (“‘[T]he purpose of Congress
is the ultimate touchstone in every pre-emption case.’” (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 485 (1996))). The United States Supreme Court has stated:

       In the interest of avoiding unintended encroachment on the authority of the
       States, however, a court interpreting a federal statute pertaining to a subject
       traditionally governed by state law will be reluctant to find pre-emption.
       Thus, pre-emption will not lie unless it is “the clear and manifest purpose of
       Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct.
       1146, 1152, 91 L.Ed. 1447 (1947). Evidence of pre-emptive purpose is
       sought in the text and structure of the statute at issue. Shaw v. Delta Air
       Lines, Inc., 463 U.S. 85, 95, 103 S.Ct. 2890, 2898, 77 L.Ed.2d 490 (1983).

CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663-64 (1993).

       The ICCTA at 49 U.S.C. § 10501 (2018) provides:

       (b) The jurisdiction of the Board over—

          (1) transportation by rail carriers, and the remedies provided in this
          part with respect to rates, classifications, rules (including car service,
          interchange, and other operating rules), practices, routes, services,
          and facilities of such carriers; and

          (2) the construction, acquisition, operation, abandonment, or
          discontinuance of spur, industrial, team, switching, or side tracks, or
          facilities, even if the tracks are located, or intended to be located,
          entirely in one State,

          is exclusive. Except as otherwise provided in this part, the remedies
          provided under this part with respect to regulation of rail
          transportation are exclusive and preempt the remedies provided
          under Federal or State law.



                                              82
49 U.S.C. § 10501(b). The ICCTA broadly defines “transportation” to include “a
locomotive, car, vehicle, vessel, warehouse, wharf, pier, dock, yard, property, facility,
instrumentality, or equipment of any kind related to the movement of passengers or
property, or both, by rail, regardless of ownership or an agreement concerning use,” as
well as “services related to movement.” 49 U.S.C. § 10102(9) (2018). Citing to cases from
several of the United States Court of Appeals, the United States Court of Appeals for the
District of Columbia Circuit has stated that “all of the circuits have concluded that it [the
ICCTA’s definition of transportation] ‘does not encompass everything touching on
railroads.’” Delaware v. Surface Transp. Bd., 859 F.3d 16, 18 (D.C. Cir. 2017) (quoting
Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1129 (10th Cir. 2007)) (citing
Wedemeyer v. CSX Transp., Inc., 850 F.3d 889, 894-95 (7th Cir. 2017); City of Ozark,
Ark. v. Union Pac. R.R. Co., 843 F.3d 1167, 1171 (8th Cir. 2016); Grosso v. Surface
Transp. Bd., 804 F.3d 110, 118 (1st Cir. 2015); and Fayus Enters. v. BNSF Ry. Co., 602
F.3d 444, 451 (D.C. Cir. 2010)). Nevertheless, “[w]here the Board has such jurisdiction,
it is exclusive.” Grosso v. Surface Transp. Bd., 804 F.3d 110, 113-14 (1st Cir. 2015), reh’g
denied, 811 F.3d 83 (1st Cir. 2016).

        The STB and other federal courts have distinguished between two types of
preemption under 49 U.S.C. § 10501(b), which are referred to as “categorical preemption”
and “as applied preemption.” See, e.g., New Orleans & Gulf Coast Ry. Co. v. Barrois, 533
F.3d 321, 332 (5th Cir. 2008); Soo Line R. Co. v. City of St. Paul, 827 F. Supp. 2d 1017,
1021 (D. Minn. 2010); Jie Ao & Xin Zhouf-Petition for Declaratory Order, STB Finance
Docket No. 35539, 2012 WL 2047726, at *3 (S.T.B. June 4, 2012). The first type of
preemption, categorical preemption, “occurs when a state or local action is preempted on
its face despite its context or rationale” because the action would conflict with exclusive
federal regulation of railroads. See Union Pac. R. Co. v. Chicago Transit Auth., 647 F.3d
675, 679 (7th Cir. 2011) (citing CSX Transp., Inc.-Petition for Declaratory Order, STB
Finance Docket No. 34662, 2005 WL 1024490, at *2 (S.T.B. May 3, 2005)). The United
States Court of Appeals for the Fifth Circuit has stated:

       Regulations falling within this first category are “facially preempted” or
       “categorically preempted” and come in two types:

          The first is any form of state or local permitting or preclearance that,
          by its nature, could be used to deny a railroad the ability to conduct
          some part of its operations or to proceed with activities that the Board
          has authorized . . . .

          Second, there can be no state or local regulation of matters directly
          regulated by the Board—such as the construction, operation, and
          abandonment of rail lines (see 49 U.S.C. [§§] 10901-10907); railroad
          mergers, line acquisitions, and other forms of consolidation (see 49
          U.S.C. [§§] 11321-11328); and railroad rates and service (see 49
          U.S.C. [§§] 10501(b), 10701-10747, 11101-11124).




                                             83
       Id. [CSX Transp., Inc.-Petition for Declaratory Order, 2005 WL 1024490,] at
       *2 (citations and footnote omitted). State actions such as these constitute
       “per se unreasonable interference with interstate commerce.” Id. at *3. As
       such, the preemption analysis for state regulations in this first category is
       addressed to “the act of regulation itself” and “not to the reasonableness of
       the particular state or local action.” Id.

New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d at 332; see also Delaware v.
Surface Transportation Bd., 859 F.3d at 19.

        The second type of preemption under the ICCTA, “as applied preemption,” is a
“fact-based test,” which provides that “state law actions can be preempted as applied if
they have the effect of unreasonably burdening or interfering with rail transportation.” See
Franks Inv. Co. LLC v. Union Pac. R. Co., 593 F.3d 404, 414 (5th Cir. 2010); see also
Soo Line R. Co. v. City of St. Paul, 827 F. Supp. 2d at 1021 (stating that “as applied
preemption” requires “a factual assessment of whether the action would have the effect
of preventing or unreasonably interfering with railroad transportation” (internal quotation
marks and citation omitted)). “As applied preemption” is “based on the degree of
interference that the particular action has on railroad transportation—this occurs when
the facts show that the action ‘would have the effect of preventing or unreasonably
interfering with railroad transportation.’” Union Pac. R. Co. v. Chicago Transit Auth., 647
F.3d at 679 (quoting CSX Transp., Inc.-Petition for Declaratory Order, 2005 WL 1024490,
at *2-3); see also New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d at 332. The STB
has stated that “it is well settled that states cannot take an action that would have the
effect of foreclosing or unduly restricting a railroad’s ability to conduct any part of
its operations or otherwise unreasonably burdening interstate commerce.” CSX
Transportation, Inc.-Petition for Declaratory Order, 2005 WL 1024490, at *4 (citations
omitted).

        In the specifically-named cases, defendant cites to several cases in which the STB
or courts have found that state law condemnation actions or adverse possession claims
asserted in an attempt to acquire an interest in land owned by a railroad company were
preempted. For example, defendant cites to Union Pacific Railroad. v. Chicago Transit
Authority, 647 F.3d 675, in which the United States Court of Appeals for the Seventh
Circuit found that the Chicago Transit Authority’s attempted condemnation of a perpetual
easement on railroad property was as applied preempted because the perpetual
easement, which was to be located on the railroad company’s property, would have a
significant impact on railroad transportation. See id. at 682; see also B & S Holdings, LLC
v. BNSF Ry. Co., 889 F. Supp. 2d 1252, 1258 (E.D. Wash. 2012) (finding that the ICCTA
preempted state law adverse possession action of property a railroad owned in fee simple
because the adverse possession action sought to acquire railroad property, which would
divest the railroad of it property, and would interfere with railroad operations); Buffalo S.
R.R. Inc. v. Vill. of Croton-on Hudson, 434 F. Supp. 2d 241, 249 (S.D.N.Y. 2006)
(determining that an eminent domain action seeking to acquire fee simple title to land
owned by a railroad was preempted); Wis. Cent. Ltd. v. City of Marshfield, 160 F. Supp.



                                             84
2d 1009, 1015 (W.D. Wis. 2000) (concluding that a city’s attempt “under Wisconsin law
to condemn property used in rail transportation” as a passing track was preempted).

         Defendant also cites a decision issued by the STB, in which the STB found that
the petitioners’ State law adverse possession claim seeking “exclusive control of a 35-
foot by 135-foot strip of railroad ROW in the national rail network, over the objections of
the entities that are maintaining the ROW, that hold the right to reactivate freight rail
service over it, and that assert that continued access to the entire ROW is required for
rail-related activities.” See Jie Ao & Xin Zhouf-Petition for Declaratory Order, 2012 WL
2047726, at *1. According to the STB, the petitioners’ state law adverse possession
claims were preempted “regardless of whether this case is analyzed as ‘categorical’
preemption (preemption that occurs when a state or local regulation is preempted on its
face), or as ‘as applied’ preemption (based on the degree of interference that a particular
action would have on railroad transportation).” Id. The STB stated that “the record here
shows that transferring ownership of Parcel D [which included land in a railbanked right-
of-way] would directly affect the amount and type of maintenance that could be performed
on this railroad ROW, and limit future options for reactivation.” Id. at *7. The STB asserted
that allowing landowners to obtain “exclusive control” of land used as part of a railroad
right-of-way through adverse possession would impermissibly allow “landowners to carve
off strips of railroad ROW all over the country for non-rail use, even though the Board has
not authorized the ROW to be permanently removed from the nation’s rail system under
Title 49.” Id.

        In the specifically-named cases, however, none of the plaintiffs are asserting
adverse possession claims against land owned by a railroad company. Rather, all of the
plaintiffs contend that, prior to 1998, they had adversely possessed the fee interests,
which allegedly were owned by non-railroad parties, in the land underlying the railroad
corridor, which was burdened by Burlington Northern’s railroad easement.32 Plaintiffs
have not claimed that they adversely possessed the railroad easement that permitted
Burlington Northern to operate the railroad corridor. The concerns in Jie Ao, 2012 WL
2047726, at *7, in which the adverse possession claim “would permit landowners to carve
off strips of railroad ROW all over the country for non-rail use,” and the other cases cited
by defendant in which plaintiffs sought to obtain an interest in railroad property, therefore,
are not applicable to the specifically-named cases, as plaintiffs are not seeking to acquire
railroad property.33

32Plaintiffs assert that they have not located transactions involving the land underlying
the railroad corridor. Defendant, however, argues that “the United States need not
demonstrate, and the Court need not determine, who actually owns the land underlying
the ROW.”
33 In an undeveloped footnote, defendant briefly argues that the court “should also follow
the STB’s decision in Jie Ao because the STB’s interpretations of the ICCTA are generally
afforded deference under the standards set out in Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837, 842-844 (1984).” The adverse
possession allegations in all of the specifically-named cases, however, differ from the
facts and legal issues in Jie Ao because none of the plaintiffs in the specifically-named
                                             85
         Moreover, as discussed above, under Washington State law, “[t]itle vests
automatically in the adverse possessor if all the elements are fulfilled throughout the
statutory period.” See Gorman v. City of Woodinville, 283 P.3d at 1083 (citing El Cerrito,
Inc. v. Ryndak, 376 P.2d at 532). “Divestment of title does not occur differently or more
easily to the person who acquires title passively by adverse possession than to the person
who acquires title by deed.” Nickell v. Southview Homeowners Ass’n, 271 P.3d at 978
(citing El Cerrito, Inc. v. Rydnak, 271 P.2d at 978). “[T]he adverse possessor obtains a
new title that is the same as that held by the person who owned the present possessory
estate when the adverse possession began.” 17 W ILLIAM B. STOEBUCK & JOHN W. W EAVER,
WASHINGTON PRACTICE SERIES: REAL ESTATE § 8.6 (2d ed. 2004 & Supp. 2018).
Washington State courts have determined that an adverse possessor that adversely
possesses title to land that is subject to an easement takes title subject to that same
easement. See Van Sant v. City of Seattle, 287 P.2d 130, 131 (Wash. 1955) (affirming a
decision in which “[t]itle to the abutting portions of the streets was quieted in respondent,
subject to an easement in favor of the city of Seattle”); see also Harding v. Olympic Pipe
Line Co., 1999 WL 409468, at *4 (Wash. Ct. App. June 18, 1999) (“We see no reason
why a subsequent adverse possessor of a servient estate should be able to obtain better
title than a bona fide purchaser of the same property; either one takes title subject to an
existing prescriptive easement.”); Earnheart v. Carlson, 736 P.2d 1106, 1107 (Wash. Ct.
App. 1987) (affirming a trial court’s decision to quiet “title in Parcel A in the Olsens, subject
to an easement in favor of Bell for the existing utility lines and sewer drain fields”).

        In the specifically-named cases, plaintiffs alternatively are seeking compensation
from the United States based on the government’s alleged taking, and plaintiffs allege
that they acquired through adverse possession interests in the allegedly taken property
prior to the taking. Plaintiffs’ alleged adverse possession of the fee interest in the land
underlying the railroad corridor, which allegedly was not owned by the railroad company
or its predecessors, under Washington State law does not, “by its nature,” deny the
railroad company its ability to conduct railroad operations. If, for example, fee interest in
the land underlying the railroad corridor had passed through plaintiffs’ chains of title, title
to the land burdened by the railroad corridor would have passed without impacting the
railroad’s ability to operate its operations on the railroad corridor. Under Washington State
law, the passing of title to land burdened by the railroad easement does not alter the rights
of the railroad company as the dominant estate, and the railroad company would continue
to maintain a right to use its railroad easement. Nor would plaintiffs’ interests have differed
whether acquired by deed or adverse possession, as plaintiffs only would have had a

cases are asserting adverse possession of railroad property, as was the situation in Jie
Ao. See Jie Ao & Xin Zhouf-Petition for Declaratory Order, 2012 WL 2047726, at *1
(stating that “[p]etitioners here exclusive control of a 35-foot by 135-foot strip of railroad
ROW in the national rail network, over the objections of the entities that are maintaining
the ROW, that hold the right to reactivate freight rail service over it, and that assert that
continued access to the entire ROW is required for rail-related activities”). Moreover,
defendant’s undeveloped argument concerning Chevron deference overlooks whether
the reasoning in Jie Ao is applicable to the claims at issue in this Opinion.

                                               86
right to use their burdened land in a manner that does unreasonably interfere with the
railroad company’s railroad easement. Moreover, the statute at 49 U.S.C. § 10501, which
grants exclusive jurisdiction over “regulation of rail transportation” to the STB, does not
evidence an intent to grant exclusive jurisdiction to the STB over the ability of an individual
to adversely possess land owned by another individual or a non-railroad entity under
State law. The plaintiffs’ claims, therefore, are not categorically preempted under the
ICCTA.

        As noted above, the second type of preemption under the ICCTA, “as applied
preemption,” is a fact-intensive “test” that examines whether “the facts show that the
action ‘would have the effect of preventing or unreasonably interfering with railroad
transportation.’” Union Pac. R. Co. v. Chicago Transit Auth., 647 F.3d at 679 (quoting
CSX Transp., Inc.-Petition for Declaratory Order, 2005 WL 1024490, at *2-3). In the
specifically-named cases, however, the parties have not conducted discovery into
plaintiffs’ alternative claims of acquiring title to the land underlying the railroad corridor
through adverse possession. In its reply in support of its motion for partial summary
judgment, defendant has requested relief under RCFC 56(d), “in order to allow adequate
time for discovery” related to plaintiffs’ alternative adverse possession assertions.
According to defendant’s reply, “[t]he current posture of the litigation is such that the
parties have not engaged in intensive factual or expert discovery on the issue of adverse
possession,” as “the United States understood that the parties were to focus solely on the
threshold legal issues in this briefing.” Defendant argues that, “[w]ithout adequate time
for discovery, the United States cannot gather and present facts essential to its defense,”
and that the court should not address plaintiffs’ claims of acquiring interests through
adverse possession without a full factual record.

       In plaintiffs’ reply, plaintiffs state that, “[i]n fairness, however, Defendant assumed
that the briefing would be limited to the merits of the legal issues and it did have grounds
for that belief. Initially, that was Plaintiffs’ plan, too. But Plaintiffs changed their
minds . . . .” Therefore, plaintiffs “do not oppose Defendant’s request for a delay pursuant
to RCFC 56(d), but request the scope and time for discovery not be open-ended.”

        Under RCFC 56(d), if a non-moving party “shows by affidavit or declaration that,
for specified reasons, it cannot present facts essential to justify its opposition, the court
may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or
declarations or to take discovery; or (3) issue any other appropriate order.” RCFC 56(d).
“Rule 56(d) ‘provides for comparatively limited discovery for the purpose of showing facts
sufficient to withstand a summary judgment motion.’” RQ Squared, LLC v. United States,
129 Fed. Cl. 742, 748 (2017) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391
U.S. 253, 265 (1968)), aff’d, 708 F. App’x 685 (Fed. Cir. 2018). When analyzing motions
for relief under RCFC 56(d), judges on the United States Court of Federal Claims, as well
as the parties in the specifically-named cases, have applied a five-factor test originally
utilized in Theisen Vending Co. v. United States, 58 Fed. Cl. 194 (2003), which provides
that:




                                              87
       the non-movant must by affidavit and supporting papers: (1) specify the
       particular factual discovery being sought, (2) explain how the results of the
       discovery are reasonably expected to engender a genuine issue of material
       fact, (3) provide an adequate factual predicate for the belief that there are
       discoverable facts sufficient to raise a genuine and material issue, (4) recite
       the efforts previously made to obtain those facts, and (5) show good
       grounds for the failure to have discovered the essential facts sooner.

See Theisen Vending Co. v. United States, 58 Fed. Cl. at 198; see also Confidential
Informant 59-05071 v. United States, 134 Fed. Cl. 698, 721-22 (2017) (utilizing the five-
factor test established in Theisen Vending Co.), aff’d, 745 F. App’x 166 (Fed. Cir. 2018);
Anham FZCO v. United States, 123 Fed. Cl. 386, 389 (2015) (utilizing the five-factor test
established in Theisen Vending Co.); Alta Wind I Owner-Lessor C v. United States, 117
Fed. Cl. 369, 372 (2014) (utilizing the five-factor test established in Theisen Vending Co.);
Clear Creek Cmty. Servs. Dist. v. United States, 100 Fed. Cl. 78, 83 (2011) (utilizing the
five-factor test established in Theisen Vending Co.); Chevron U.S.A. Inc. v. United States,
72 Fed. Cl. 817, 819 (2006) (utilizing the five-factor test established in Theisen Vending
Co.). The court then determines “whether the ‘parties would be better served by pursuing
discovery and deferring any dispositive motions until further development of the record.’”
Anham FZCO v. United States, 123 Fed. Cl. at 389 (quoting Jade Trading, LLC v. United
States, 60 Fed. Cl. 558, 566 (2004)). Moreover, even when not applying the five-factor
test articulated in Theisen Vending Co. v. United States, judges on the United States
Court of Federal Claims have stated that a “nonmoving party will not be allowed to
conduct discovery that has no chance of leading to the denial of summary judgment for
the movant.” RQ Squared, LLC v. United States, 129 Fed. Cl. at 748 (citing Simmons Oil
Corp. v. Tesoro Petroleum Corp., 86 F.3d 1138, 1144 (Fed. Cir. 1996)); see also Zhou v.
United States, 133 Fed. Cl. 322, 326 (2017) (“When the material facts are not in doubt, a
Rule 56(d) request for discovery should be denied.” (citing RQ Squared, LLC v. United
States, 119 Fed. Cl. at 758)), aff’d, 727 F. App’x 651 (Fed. Cir. 2018).

       The issue of whether “as applied preemption” under the ICCTA bars plaintiffs’
claims of acquiring interests through State law adverse possession will require this court
to examine whether or not allowing adverse possession of the fee simple title to the land
underlying the railroad corridor has improperly restricted railroad operations or could
improperly restrict potential, future railroad operations. Plaintiffs contend that this fact-
intensive test is not met because:

       Plaintiffs and their predecessors have occupied the right of way thirty years
       or longer, and that occupation has not interfered with railroad operations
       (regardless of whether they owned it by title or not), as is apparent from
       their declarations describing their use and occupation as well as from the
       lack of any evidence or allegations to the contrary.

Permitting the parties to conduct discovery into plaintiffs’ claims that they acquired an
interest in the railroad corridor through adverse possession, however, would provide the
court with a fully-developed record on which to base a position regarding “as applied


                                             88
preemption” under the ICCTA, as well as a fully-developed record on which to evaluate
whether plaintiffs actually acquired interests in the land underlying the railroad corridor
through adverse possession. As currently developed, the factual record before the court
regarding adverse possession primarily consists of declarations signed by individual
plaintiffs, which were submitted to the court by plaintiffs’ counsels of record. Although
there does not appear to be contrary evidence in the record calling into question the
veracity of the plaintiffs’ declarations, by not allowing defendant time to conduct discovery
into the factual circumstances underlying plaintiffs’ assertions of acquiring interests in the
land underlying the railroad corridor through adverse possession, the court would be
reaching a conclusion only based on declarations submitted by individual plaintiffs.

        To support its request for relief under RCFC 56(d), defendant has submitted to the
court a declaration signed by Rachel Roberts, who states that “I, along with my colleague
Tanya Nesbitt, represent the United States in this action.”34 In the declaration signed by
Rachel Roberts, Ms. Roberts asserts that, “because summary judgment briefing was to
address potentially dispositive legal issues, the United States deferred further factual
discovery on Plaintiffs’ adverse possession claims, which would be costly, time-intensive,
and unnecessary given the United States’ understanding of Washington property law.”
Rachel Roberts asserts that plaintiffs, however, have not limited their cross-motion for
partial summary to threshold legal issues, and have asked the court to find as a matter of
law that plaintiffs acquired interests through adverse possession, which Ms. Roberts
argues is “an inherently fact-intensive and complex inquiry.” Rachel Roberts’ declaration
also describes the discovery the United States would undertake if the court granted
defendant’s request for relief under RCFC 56(d), including written discovery, depositions,
and expert testimony. Plaintiffs do not dispute that their cross-motion for partial summary
judgment goes beyond “threshold legal issues,” as apparently originally contemplated by
the parties, and addresses the merits of plaintiffs’ claims of acquiring interests through
adverse possession. Moreover, plaintiffs do not oppose defendant’s requested relief
under RCFC 56(d).

        Based on the parties’ representations to the court, it appears that defendant
reasonably thought, and, therefore, did not fully address, that the parties’ cross-motions
for partial summary judgment would not encompass the merits and factual circumstances
of plaintiffs’ alternative argument involving adverse possession. The facts relating to
whether plaintiffs had adversely possessed the land underlying the railroad corridor are
interrelated to the facts relating to whether plaintiffs’ adverse possession argument is
barred by “as applied preemption” under the ICCTA and further discovery will allow
development of the record as to both issues. The court, therefore, will grant a limited time
for the parties to conduct discovery into whether “as applied preemption” under the ICCTA
bars plaintiffs assertions of State law adverse possession, as well as whether plaintiffs
had acquired interests in the land underlying the railroad corridor prior to the alleged
taking in these specifically-named cases. This portion of defendant’s discovery shall be
limited to the facts concerning application of the factors for Washington State law adverse
possession and facts related to “as applied preemption” under the ICCTA. The court,
therefore, defers ruling on defendant’s argument related to “as applied preemption” under
34   Tanya Nesbitt currently is listed as counsel of record for defendant, the United States.
                                              89
the ICCTA and also defers ruling on whether plaintiffs had acquired interests in the land
underlying the railroad corridor through adverse possession.35

                                      CONCLUSION

        Defendant’s motion to dismiss the claims of the plaintiffs who are currently before
the court asserting that they had acquired interests in the land underlying the railroad
corridor through adverse possession is DENIED. Defendant’s motion to strike the
declarations is GRANTED, and the court STRIKES from the record before the court the
declarations submitted and signed by Charles Klinge, Vicki Orrico, and Jerry Broadus.
Defendant’s and plaintiffs’ cross-motions for partial summary judgment are DENIED IN
PART and DEFERRED IN PART. Specifically, the court concludes: 1) there are issues
of material facts as to whether Spencer plaintiffs Raymond and Lael Spencer, John and
Carolyn Rossi, and Reid and Susan Brockway, Schroeder plaintiffs Clifford and Kathy
Schroeder, Peterson plaintiff Donna Marie Raab Matrinez, Collins plaintiffs D. Michael
and Vanessa Collins, Donald Barrett, Howard and Pam Freedman, and Nelson plaintiffs
Robert and Beth Nelson and the Estate of William F. Hughes acquired interests in the
land underlying the railroad corridor through their deeds; 2) all of the ten plaintiffs’
alternative claims that they acquired interests in the land underlying the railroad corridor
are not barred under Washington State law; 3) all of the ten plaintiffs’ alternative claims
that they acquired interests in the land underlying the railroad corridor are not
categorically preempted under the ICCTA; 4) the court DEFERS ruling on whether all of
the ten plaintiffs’ alternative claims that they acquired interests in the land underlying the
railroad corridor are barred by “as applied preemption” under the ICCTA; and 5) the court
DEFERS ruling on the merits of whether plaintiffs acquired interests in the land underlying
the railroad corridor through adverse possession. Further proceedings will be scheduled
by separate Order.

       IT IS SO ORDERED.

                                                           s/Marian Blank Horn
                                                           MARIAN BLANK HORN
                                                                      Judge




35  Defendant also argues that, “[e]ven if some private use of a railroad ROW is
permissible, and is not preempted under the ICCTA, that use is not sufficiently hostile to
establish adverse possession.” Whether plaintiffs’ use of the land burdened by the
railroad easement was sufficiently hostile to establish adverse possession, however, goes
to the merits of whether plaintiffs had adversely possessed the land underlying the
railroad corridor and will be addressed after the parties have conducted discovery under
RCFC 56(d).
                                             90
