             In the United States Court of Federal Claims
                         Nos. 14-447L, 15-510L & 16-47L (consolidated)

                                      (Filed: December 9, 2016)

 *************************************            )
 CHRISTOPHER HARLEY-WHITE, et al.,                )      Rails-to-Trails takings case;
                                                  )      abandonment of rail use under Maine
                       Plaintiffs,                )      law; limited-use easements for railroad
                                                  )      purposes
        v.                                        )
                                                  )
 UNITED STATES,                                   )
                                                  )
                       Defendant.                 )
                                                  )
 *************************************

       J. Robert Sears, Baker Sterchi Cowden & Rice, LLC, St. Louis, Missouri, for plaintiffs.
With him on the briefs were Jacqueline D. Gebhardt, Baker Sterchi Cowden & Rice, LLC, St.
Louis, Missouri, and Steven M. Wald and Michael J. Smith, Stewart Wald & McCulley LLC, St.
Louis, Missouri.

       Joshua P. Wilson, Senior Attorney, Natural Resources Section, Environment and Natural
Resources Division, United States Department of Justice, Washington, D.C., for defendant.
With him on the briefs was John C. Cruden, Assistant Attorney General, Environment and
Natural Resources Division, United States Department of Justice, Washington, D.C.

                                     OPINION AND ORDER

LETTOW, Judge.

        These consolidated takings cases concern the conversion of a portion of the Belfast and
Moosehead Lake Railroad Line (“the Belfast & Moosehead” or “Railway”) in Belfast, Maine
and its attendant right-of-way into a recreational trail under Section 208 of the National Trails
System Act Amendments of 1983, Pub. L. No. 98-11, § 208, 97 Stat. 42, 48 (codified at 16
U.S.C. § 1247(d)) (“Trails Act”). This change occurred upon issuance of a Notice of Interim
Trail Use (“NITU”) by the Surface Transportation Board (“STB”) on April 30, 2014.
Previously, each plot of land in question was burdened by an easement obtained pursuant to the
Belfast & Moosehead’s public charter, which was issued under Maine law, 1867 Me. Private and
Special Laws ch. 380, at 316-23. See Pls.’ [Proposed] Findings of Fact Ex. F, ECF 39-6.
Plaintiffs are owners of twelve plots of land adjacent to the right-of-way, each of whom alleges
that he or she owns a portion of the fee underlying the right-of-way. They aver that the
easements were exceeded and thus destroyed, making the government liable for taking plaintiffs’
property under the Fifth Amendment by authorizing use of the property as a public trail. See,
e.g., Preseault v. Interstate Commerce Comm’n, 494 U.S. 1 (1990) (“Preseault I”) (holding that
the Tucker Act, 28 U.S.C. § 1491(a), provides a remedy for an alleged taking of a property
interest in land previously used as a railroad right-of-way that had been transferred to a public
entity for use as a public trail).1 Before the court are plaintiffs’ motion for summary judgment on
liability and defendant’s corresponding cross-motion.

       The court concludes that the government is liable to plaintiffs for the taking of plaintiffs’
property after the government exceeded the scope of the former easements. Plaintiffs’ motion
for summary judgment on liability is thus granted and defendant’s cross-motion is denied.

                                         BACKGROUND

        This case involves a two-mile strip of land previously used as a right-of-way for the
Belfast & Moosehead in Belfast, Maine. Pls.’ [Proposed] Findings of Fact ¶ 1, ECF No. 39.2 It
extends from milepost 0.33 at the U.S. Route 1 overpass in downtown Belfast to milepost 2.33 at
Oak Hill. Id.

         In 1867, the State of Maine issued articles of incorporation for the Belfast and
Moosehead Lake Railway Company. 1867 Me. Private and Special Laws ch. 380, at 316-23,
Pls.’ [Proposed] Findings of Fact Ex. F. The articles authorized the Belfast & Moosehead to
“locate, construct and finally complete, alter and keep in repair, a railway, with one or more sets
of rails or tracks, with all suitable bridges, tunnels, viaducts, turnouts, culverts, drains, and all
other necessary appendages, from the city of Belfast, over the most practicable route to
Moosehead Lake.” Id. at 317. The articles also empowered the Railway “to purchase, or to take
and hold so much of the land and other real estate of private persons and corporations as may be
necessary for the location, construction and convenient operation of [the] railroad,” provided that
the Railway compensate the property owners at a mutually agreed-upon price or through
damages “as shall be ascertained and determined by the county commissioners for the county
where such land or other property may be situated, in the same manner and under the same
conditions and limitations as are by law provided in the case of damages by the laying out of
highways.” Id.

        Pursuant to the articles of incorporation, the Belfast & Moosehead used condemnation to
obtain easements to most of the property on which it constructed the Railway. Pls.’ [Proposed]
Findings of Fact ¶ 9.3 Each plaintiff owns a parcel of land adjacent to the right-of-way, as well


       1
        The Fifth Amendment specifies that “private property [shall not] be taken for public use,
without just compensation.” U.S. Const. amend. V.
       2
         Plaintiffs have submitted proposed findings of fact, and defendant has filed a response.
See United States’ Resp. to Pls.’ Proposed Statement of Uncontroverted Facts (“Def.’s Resp. to
Facts”), ECF No. 43. Where applicable, this opinion will indicate the government’s
disagreements with plaintiffs’ proposed factual findings as noted in its response.
       3
         As defendant notes, the rest of the land underlying the railroad was purchased for the
“cost of land” as permitted by the Railway’s articles of incorporation. Def.’s Resp. to Facts ¶ 9;
see also United States’ Mot. for Summary Judgment on Liability and Supporting Mem. of Fact


                                                  2
as a fee interest under the corridor that is burdened by the easements obtained by the Belfast &
Moosehead. Id. ¶¶ 15-38; see also id. ¶ 39 (“Each [p]laintiff still owns the fee interest
underlying the easement at issue and at no time relinquished their fee ownership or any of their
rights to the surface of the property other than the original railroad[-]purpose easement.”).4

        The Belfast & Moosehead operated the Railway from 1870 to 1925. Pls.’ [Proposed]
Findings of Fact ¶ 4.5 It sold the Railway to the City of Belfast (“the City” or “Belfast”) in 1925,
which then operated the Railway regularly through the 1980s. Id. Since 1990, however, the
Railway has only been used for a “closed-loop tourist excursion service run by various
operators.” Pls.’ [Proposed] Findings of Fact Ex. B, at 2, 20, ECF 39-2. On June 25, 2013, the
City filed with the STB a notice of exemption to abandon the Railway and the right-of-way at
issue in this case. Pls.’ [Proposed] Findings of Fact ¶ 2 & Ex. B. It amended this notice on
December 9, 2013 to request a petition for exemption. Id. ¶ 6 & Ex. D, ECF 39-4. On April 30,
2014, the STB issued a NITU for the Railway. Id. ¶ 7 & Ex. A, ECF 39-1. Thereafter, on June
12, 2014, the City filed a NITU Agreement with the STB. Id. ¶ 8 & Ex. E, ECF 39-5. In this
agreement, the City agreed to convert the Railway into a recreational trail. Id. The agreement
also reserves to the City the potential reactivation of the Railway in the future. Id. The
agreement has since been effectuated; the rails and ties have been removed from the Railway,
and the trail, called the Passy Trail because of its proximity to the Passagassawakeag River, is

and Law (“Def.’s Cross-Mot.”) Ex. 6, ECF No. 41-6 (showing that the Railway acquired the land
underlying the right-of-way through condemnation, deeds, and quitclaim deeds). The parties do
not dispute that the easements to the parcels at issue in this case were acquired from plaintiffs’
predecessors-in-interest through condemnation. Pls.’ [Proposed] Findings of Fact ¶ 12; Def.’s
Resp. to Facts ¶ 12.
       4
         The government disputes these statements to the extent that it argues that plaintiffs never
owned fee simple title to the underlying right-of-way, and that the easements were highway-
purpose easements rather than railroad-purpose easements. See Def.’s Resp. to Facts ¶¶ 16, 18,
20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 39.
       5
           The Belfast & Moosehead had a memorable logo:




                                                 3
open to the public. Def.’s Cross-Mot. Ex. 1 (Decl. of Joseph Slocum (Aug. 24, 2016) (“Slocum
Decl.”), ¶¶ 2, 14), ECF No. 41-1; Pls.’ Mem. in Resp. to Def.’s Mot. for Summary Judgment on
Liability (“Pls.’ Resp.”) at 7, ECF No. 44.

       Belfast began planning the development of the Passy Trail prior to the issuance of the
NITU. As part of this planning process, the City paid for and acquired recreational trail
easements from abutting landowners along the Railway “as a gesture of goodwill and to settle all
doubts” regarding ownership of the trail. Slocum Decl. ¶¶ 6, 8. Subsequently, after some
landowners filed suit in this court, however, the Belfast City Council voted to rescind those
landowners’ easements and reclaim the payments “because the City believed it held all rights
necessary to develop the Passy Trail regardless of the easements.” Id. ¶ 12. The Maine Superior
Court ordered the rescission and refund on April 27, 2015. Id.; see also Order of Apr. 27, 2015,
Lynn L. Harrison Trust v. City of Belfast, No. RE-15-8 (Me. Super. Ct., Waldo Cnty.), a copy of
which is set out at Def.’s Cross-Mot. Ex. 5, ECF No. 41-5. The City continues to hold easements
along portions of the right-of-way that are not at issue in this case. Slocum Decl. ¶ 13.

        On May 27, 2014, plaintiffs Christopher Harley-White, Kristin Robinson-White, and
Eliah P. Thanhauser filed suit in this court, alleging an uncompensated taking of their property
along the Railway contravening the Fifth Amendment. See generally Compl. This suit was
consolidated with two other suits, Lewis v. United States, No. 15-510L, and Finden v. United
States, No. 16-47L, that were brought by other plaintiffs who own property underlying the right-
of-way. See Order of Aug. 26, 2015, ECF No. 18; Order of Apr. 5, 2016, ECF No. 34. Plaintiffs
argue that the easements granted to the Belfast & Moosehead were terminated when the Railway
ceased operations and the NITU was issued, and that but for the NITU “[p]laintiffs would have
the exclusive right to physical ownership, possession, and use of their property free of any
easement for recreational trail use or future railroad use.” Second Am. Compl. ¶¶ 6, 20.
According to the Claims Books submitted by plaintiffs with their proposed findings of fact,
twelve distinct claims exist, each of which is associated with a named claimant (or claimants)
and one or more parcels of land. Pls.’ [Proposed] Findings of Fact Exs. J and K, ECF Nos. 39-10
and 39-11. The relevant parcels are demarcated on the Belfast tax maps submitted by the
government. See Def.’s Cross-Mot. Ex. 9.

        The pending cross-motions for partial summary judgment on liability have been fully
briefed and were addressed at a hearing on November 2, 2016. Subsequent submissions by the
parties clarified a salient question of mixed law and fact.

                               STANDARDS FOR DECISION

        A grant of summary judgment is warranted when the pleadings, affidavits, and
evidentiary materials filed in a case reveal that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Rule 56(a) of the Rules of the
Court of Federal Claims (“RCFC”). A material fact is one “that might affect the outcome of the
suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine dispute is one that “may reasonably be resolved in favor of either party.” Id. at 250.




                                                4
         The party moving for summary judgment bears the burden of demonstrating the absence
of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Consequently, “the inferences to be drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654,
655 (1962)). To establish “that a fact cannot be or is genuinely disputed,” a party must “cite[] to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or
other materials.” RCFC 56(c)(1)(A). “Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial,’” and
summary judgment is appropriate. Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). Because cross-motions for summary
judgment are pending before the court, the court must evaluate each motion on its own merits,
“taking care in each instance to draw all reasonable inferences against the party whose motion is
under consideration.” Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed.
Cir. 1987).

                                           ANALYSIS

         To find a taking for which liability would arise under the Fifth Amendment in a rails-to-
trails case, the court must perform a three-part analysis specified by the Federal Circuit in
Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996) (en banc) (“Preseault II”):

       (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.

100 F.3d at 1533; see also Phipps v. United States, 126 Fed. Cl. 674, 690 (2016); Barlow v.
United States, 123 Fed. Cl. 186, 194 (2015); Memmer v. United States, 122 Fed. Cl. 350, 357-58
(2015). To prevail, plaintiffs must show that the railroad held only an easement on their
property, and that either the easement did not encompass future use as a public recreational trail,
or that the easement had terminated prior to the alleged taking. Geneva Rock Prods., Inc. v.
United States, 107 Fed. Cl. 166, 170 (2012).

                   A. Easements and Reversionary Interests under Maine Law

        First, the court must determine the nature of the property interest each plaintiff would
have had under Maine law in the absence of the STB’s issuance of the NITU. See Capreal, Inc.
v. United States, 99 Fed. Cl. 133, 140 (2011). A taking will occur when the conversion of a
railroad right-of-way to interim trail use under the Trails Act blocks the “state law reversionary



                                                 5
property interests that would otherwise vest in the adjacent landowners.” Caldwell v. United
States, 391 F.3d 1226, 1233 (Fed. Cir. 2004) (citing Preseault II, 100 F.3d at 1552). The parties
agree that the Belfast & Moosehead obtained only easements for the land underlying the right-of-
way through condemnation and that plaintiffs retained a fee interest. Pls.’ [Proposed] Findings
of Fact ¶ 12; Def.’s Resp. to Facts ¶ 12; see also Pls.’ Resp. at 1. However, the parties disagree
regarding whether Maine law operated to terminate those easements upon the issuance of the
NITU, such that unfettered ownership of the right-of-way would revert to plaintiffs.

        In Maine, abandonment of rail service on a right-of-way “shall not mean or imply that the
rights-of-way on a railroad line have been abandoned. In the event that the railroad, any person,
firm or corporation, or any agency shows interest in the eventual restoration of service, the
rights-of-way shall not be deemed abandoned.” Me. Rev. Stat. Ann. tit. 23, § 7105(3)(B).6 The
government contends that the petition for exemption and the subsequent issuance of the NITU
demonstrate Belfast’s interest in restoring rail service along the Passy Trail, arguing that in these
circumstances Maine law forecloses abandonment of the rail line and the reversion of plaintiffs’
property interests. Def.’s Cross-Mot. at 12.

        In support, the government cites Dale Henderson Logging, Inc. v. Dep’t of Transp., 48
A.3d 233 (Me. 2012), in which the Supreme Judicial Court of Maine found that a railroad right-
of-way had not been abandoned upon its conversion to interim trail use because the Maine
Department of Transportation (“DOT”) had demonstrated an active interest in the eventual
restoration of service pursuant to the predecessor statute to § 7105(3)(B). See Def.’s Cross-Mot.
at 11.7 After the Interstate Commerce Commission (“ICC”)8 approved the Maine Central
Railroad Company’s application for abandonment of the Calais Branch right-of-way and the
company conveyed its interest in the right-of-way to Maine DOT, the DOT “held and managed
[the corridor] for future railroad uses.” Id. at 238 (citing § 7105(3)(C)) (internal quotation marks
omitted). The court found that Maine DOT had demonstrated an interest in restoring rail service
because it “had issued several requests for proposals . . . to restore service,” it had annually
inspected the “bridges, culverts and tracks on the corridor,” and it had spent over $750,000 to
maintain the corridor “in such a condition to allow for the future resumption of rail service
thereon.” Id. at 238-39. Further, the Maine legislature specifically provided by statute that
Maine DOT “reserves the right to terminate at any time the use of the Calais Branch rail corridor



       6
        The Maine State Railroad Preservation Act was adopted by the State in 1989 to “protect
and promote rail transportation in order to further the general welfare.” Me. Rev. Stat. Ann. tit.
23, § 7102. Section 7105 applies to “all existing and future rights-of-way created prior to or
following September 30, 1989.” Me. Rev. Stat. Ann. tit. 23, § 7105(3)(B).

       The earlier statute, Me. Rev Stat. Ann. tit. 23, § 4207(3)(B), was “substantively the
       7

same” as § 7105(3)(B). Dale Henderson Logging, 48 A.3d at 234 n.1.
       8
         The ICC was the predecessor agency to the STB, and performed substantially the same
functions with regard to railroad right-of-way abandonments and the conversion of rights-of-way
to recreational trails. See Jenkins v. United States, 102 Fed. Cl. 598, 600 n.1 (2011).



                                                 6
for recreational purposes and to use the Calais Branch rail corridor for railroad purposes.” Id. at
239 (quoting Me. Rev. Stat. Ann. tit. 23, § 7108(2)) (internal quotation marks omitted).

        In contrast to the facts underpinning the result in Dale Henderson Logging, the court
finds here that there is not sufficient evidence to conclude that any entity has demonstrated
“interest in the eventual restoration of service” along the Passy Trail. The government points
only to the City’s general statement in its petition to the STB for exemption that the Passy Trail
“may have future value as a rail transportation corridor,” such that the right-of-way would be
“railbank[ed],” allowing trail use “unless and until such other uses become viable.” Pls.’
[Proposed] Findings of Fact Ex. B, at 3. Notably, any applicant for a NITU must warrant that the
right-of-way at issue will be railbanked pursuant to the Trails Act, which states that “if such
interim [trail] 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.” 16 U.S.C. § 1247(d); see also Caldwell, 391 F.3d at
1229-30 (explaining that a petition for exemption to abandon a right-of-way under the Trails Act
must include, among other things, “an acknowledgement that the right-of-way may be
reactivated for railroad use in the future”) (citing 49 C.F.R. § 1152.29(a)). To receive a NITU,
future railroad use along the right-of-way must merely be a possibility; no entity need show
actual “interest” in such future use. In this instance, the City’s representation in the petition to
the STB is sufficient to satisfy the Trails Act standard, but is not sufficient to forestall
abandonment under Me. Rev. Stat. Ann. tit. 23, § 7105(3)(B).

        In Dale Henderson Logging, Maine DOT had spent significant time, money, and effort to
preserve the Calais Branch corridor for future railroad purposes. 48 A.3d at 238-39. In the case
of the Passy Trail, however, Belfast has made no actual effort to preserve the corridor. Rather,
the City has spent its time, money, and effort to fully convert the right-of-way into a trail. Since
the issuance of the NITU, the rails and rail equipment have been pulled up from the right-of-way
and it has been paved for use as a recreational trail. See Slocum Decl. ¶ 14; Hr’g Tr. 24:6-10
(Nov. 2, 2016).9 Belfast also “has not been approached by any railroad, shipping company or
industrial or commercial entity wishing to use the line for transportation purposes,” and no rail
excursion service has been contemplated. Pls.’ [Proposed] Findings of Fact Ex. B, at 15.
Finally, there is no legislative grant from the State of Maine to provide explicitly for future
railroad use along the Passy Trail as there was in Dale Henderson Logging. The mere statement
that the corridor may be used as a railroad at some indeterminate time in the future is insufficient
to constitute “interest in the eventual restoration of service” under Me. Rev. Stat. Ann. tit. 23, §
7105(3)(B) and Dale Henderson Logging. Therefore, the right-of-way should be deemed
abandoned under Maine law, terminating the easements that were granted to the Belfast &
Moosehead by plaintiffs’ predecessors-in-interest.

         The government’s contention also fails for a separate, independent reason. Even if
abandonment of the railroad right-of-way had been forestalled under Maine law, the conversion
to interim trail use would still constitute a taking if the trail use was beyond the scope of the


       9
       The date will be omitted from subsequent citations to the transcript of the hearing held
on November 2, 2016.



                                                 7
easements. In Preseault II, the court addressed a Vermont statute that required the state to retain
unused railroad rights-of-way and maintain them for public use “not inconsistent with future
transportation purposes” – essentially, state-mandated railbanking. 100 F.3d at 1551. The
Federal Circuit determined that even though the Vermont statute effectively prevented the
reversion of any easements over the rights-of-way to the fee owners, it did not foreclose these
owners from bringing takings claims because the statute was “wholly silent on the question of
compensation.” Id.; see also Capreal, 99 Fed. Cl. 133, 141-43 (holding that a Massachusetts
statute permitting the state to acquire easements in railroad rights-of-way allowed abutting
landowners who owned the underlying fee to bring takings claims if the state’s use went beyond
the scope of the easements because the statute did not speak to the issue). Similarly here, in
some circumstances, § 7105(3)(B) provides for railbanking of rights-of-way that otherwise
would have been abandoned, but it does not address compensation for the servient landowners in
the event that interim use of the land exceeds the scope of the original railroad easements.
Therefore, even under the assumption that the issuance of the NITU forestalled abandonment and
prevented the reversion of the servient owners’ property interests in the railroad right-of-way
under Maine law, interim trail use would still constitute a taking without just compensation if
such use is beyond the scope of the original Belfast & Moosehead easements.

                        B. Limited-Use Easements for Railroad Purposes

        A taking occurs in a rails-to-trails case “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). The government contends that the easements granted to the Belfast & Moosehead were
for highway purposes rather than railroad purposes, and further asserts that recreational trail use
falls within the scope of the easements regardless of whether they were granted for railroad
purposes or highway purposes. Def.’s Cross-Mot. at 12-15; United States’ Resp. to Pls.’ Mot.
for Summary Judgment on Liability (“Def.’s Resp.”) at 5-9, ECF No. 42; United States’ Reply in
Support of Its Mot. for Summary Judgment on Liability (“Def.’s Reply”) at 9-10, ECF No. 45.
The court looks to the law of Maine to determine the scope of the easements, rather than federal
law, because the easements were obtained under the state-issued articles of incorporation of the
Railway. See Capreal, 99 Fed. Cl. at 143-44 (explaining that the scope of an easement granted
under state law is a matter of state law) (citing Toews v. United States, 376 F.3d 1371, 1377-79
(Fed. Cir. 2004); Chevy Chase Land Co. v. United States, 230 F.3d 1375 (Table), 1999 WL
1289099, at *3 (Fed. Cir. 2000); Preseault II, 100 F.3d at 1541-44).

        The articles of incorporation of the Belfast & Moosehead granted the Railway the right
“to purchase, or to take and hold so much of the land and other real estate of private persons and
corporations as may be necessary for the location, construction and convenient operation of [the]
railroad.” 1867 Me. Private and Special Laws ch. 380, at 317. For the Railway to obtain this
land, the articles provided:

       [I]n all cases said corporation shall pay for such lands, estate or materials so taken and
       used, such price as they and the owner or respective owners thereof may mutually agree
       on; and in case said parties shall not agree, then said corporation shall pay such damages
       as shall be ascertained and determined by the county commissioners for the county where



                                                 8
       such land or other property may be situated, in the same manner and under the same
       conditions and limitations as are by law provided in the case of damages by the laying out
       of highways. And the land so taken by said corporation shall be held as lands taken and
       appropriated for public highways.

Id. Plaintiffs argue that the text of the articles indicates that the land was to be taken for the
specific purpose of building and operating the railroad. See Pls.’ Resp. at 9-10. The government
counters that plaintiffs’ predecessors-in-interest “were paid for the taking of a public highway”
when the land was originally condemned, thus transforming the railroad-purpose easement into a
highway easement. Def.’s Cross-Mot. at 3.

         In Stuart v. Fox, 152 A. 413 (Me. 1930), the Supreme Judicial Court of Maine analyzed
easements obtained by a railroad under a similar railroad charter. The railroad charter at issue in
Stuart was identical in relevant part to the Belfast & Moosehead articles of incorporation. See
1846 Me. Laws ch. 369, at 488, attached to Pls.’ Reply as Ex. 1, ECF No. 46-1. In determining
whether a conveyance of abutting property included the railroad right-of-way, the court
determined that the “highway rule” – that is, the “well-established principle” that “a conveyance
of land bounded on a highway, the fee of which is owned by the grantor, carries title to the center
of it, unless a contrary intent appears” – did not apply to railroad rights-of-way. Stuart, 152 A. at
414, 417. The court distinguished highway easements from railroad easements, stating that a
grantor of a railroad easement has no use of the right-of-way abutting his property while a
grantor of a highway easement can generally use the highway for ingress and egress. See id. at
417-18. Further, the charter language stating that the railroad held its right-of-way “as lands
taken and appropriated for public highways” (which is identical to the language in the Belfast &
Moosehead articles of incorporation) was deemed to “not mean to imply that [the railroad’s]
right[-]of[-]way was in all respects similar to a highway, but merely that it held it as an easement
devoted to the public use in distinction from an ownership in fee.” Id. at 418.

        In this instance, the Belfast & Moosehead was authorized to take property for the purpose
of building and maintaining a railroad, not for a public highway generally. Stuart distinguishes
highway easements from railroad easements based on the nature of the dominant estate owner’s
use of the land, and this distinction does not turn on the use of “public highways” in the language
of the charter. Rather, as the court stated in Stuart, that language merely indicates that the
railroad, as the holder of the dominant estate, shall take the land as an easement rather than
outright owning it in fee. Therefore, the court finds that the easements granted by plaintiffs’
predecessors-in-interest under the Belfast & Moosehead’s articles of incorporation were railroad-
purpose easements.

         Because the easements were held for a railroad purpose, the transformation of the right-
of-way into a recreational trail goes beyond the scope of the easements and constitutes a taking.
Under Maine law, “a legislative grant of the power to take by eminent domain must be construed
strictly against the donee of that power to ensure that no greater interest in land is acquired than
is minimally necessary to the purpose of the grant.” Lage v. Phillips Historical Soc’y, No. CV-
83-44, 1985 Me. Super. LEXIS 22, at *3 (Me. Super. Ct. Feb. 6, 1985). In Lage, the Maine
Superior Court determined that a legislative grant to a railroad allowing for condemnation “as
may be necessary or convenient for the location or construction, and convenient for the operation



                                                 9
of [the] [r]ailroad” only allowed for a railroad purpose easement. Id. at *3-4. This easement
thus expired upon the discontinuation of its use for railroad purposes. Id. at *4. Similarly, the
easements here must be construed under Maine law to authorize only the use of the right-of-way
for railroad purposes. Trail use does not fit within this construction.10

        The government relies on Briggs v. Lewiston & Another, 10 A. 47 (Me. 1887), for the
proposition that plaintiffs, “having been paid once for the right to run trains over their property,”
should not be compensated again for changes in the types of vehicles or traffic patterns that pass
over the right-of-way. Def.’s Reply at 9. The government argues that railroad easements convey
greater rights to grantees than highway easements, and thus “less technologically advanced, less
intrusive, and simpler modes of transportation” than trains must be within the scope of a railroad
easement. Id. This proposition is not supported by Maine law. In Briggs, a company built a
“street railroad,” also called a “horse railroad,”11 on a highway, the right-of-way for which had
previously been condemned as a public highway easement. 10 A. at 47-48. The court found that
the street railroad did not exceed the scope of the easement because the land was still being used
as a highway, albeit also as a street railroad. Id. at 48. A highway easement was broad enough,
the court reasoned, to encompass technological improvements that would “facilitate [the land’s]
use as a highway.” Id. The street railroad therefore was “a change in the mode, but . . . not a
change in the use” of the highway easement. Id.

        It cannot be said, however, that using the right-of-way for a recreational trail rather than a
railroad is merely “a change in the mode.” Pursuant to Lage, the easement granted to the
Railway under the articles of incorporation must be construed to encompass only railroad
purposes; that is, the easement is limited solely to transportation via trains. 1985 Me. Super.
LEXIS 22, at *3. Hiking, biking, and sightseeing over a trail that is paved and without rails are
uses outside the scope of the limited railroad-purpose easement, even if the new means of travel
are more primitive forms of transportation than a railroad.

        Further still, Maine law would bar the government’s position even if the easement were
for a public highway rather than for railroad purposes. A recreational trail would fall outside the
scope of a public highway easement under Maine law. In Briggs, the street railroad at issue was
deemed within the scope of a public highway easement because “[t]he laying down [of] rails in
the street, and the running [of] street cars over them for the accommodation of persons desiring
to travel on the street, is only a later mode of using the land as a [high]way; using it for the very
purpose for which it was originally taken. . . . The land is still used for a highway.” Briggs, 10
A. at 48. The Supreme Judicial Court in Briggs identified multiple forms of transportation, from
“an occasional rude cart” to “wagons, drays, coaches, [and] omnibuses,” that would be within the


       10
         Railbanking of the corridor for potential future railroad use also is not within the narrow
scope of the railroad purpose easement. See Toews, 376 F.3d at 1381 (holding that railbanking
does not change the analysis of whether interim trail use is within the scope of a railroad purpose
easement when a plan for future railroad use is merely speculative).
       11
         A “street railroad” or “horse railroad” consisted of cars on rails that were pulled by
animals, usually horses. A few horse railroads remain in limited use today, including replicas at
Disneyland and the Magic Kingdom at Disney World.


                                                 10
scope of the public highway easement because they would all be used for travel along the
highway. Id. Notably, however, recreation is outside the scope of travel upon public highways.
The public’s right to use a highway is limited to “the right to pass and repass thereon,” without
regard to the purpose or mode of such travel. Stinson v. City of Gardiner, 42 Me. 248, 253-54
(1856). The court in Stinson specifically noted that use of a public highway for “sport” or as a
“play-ground” is outside the scope of this right because those uses cannot be classified as travel
or transportation along the highway. Id. at 254-55. Recreation is thus a “change in the use”
rather than a “change in the mode” of transport upon a public highway, and the change in use
would serve to extinguish a highway-purpose easement. Briggs, 10 A. at 48; see also Preseault
II, 100 F.3d at 1542-43 (“Although a public recreational trail could be described as a roadway for
the transportation of persons, the nature of the usage is clearly different. In the one case, the
grantee is a commercial enterprise using the easement in its business, the transport of goods and
people for compensation. In the other, the easement belongs to the public, and is open for use
for recreational purposes, which happens to involve people engaged in exercise or recreation on
foot or on bicycles.”); Capreal, 99 Fed. Cl. at 144 (“[T]his [c]ourt finds that a recreational trail
use is outside the scope of easements for public travel. A railroad, or a highway for public
travel, has the primary purpose of transporting goods and people. The purpose of a recreational
trail is fundamentally different. A bicycle trail does not exist to transport people but rather to
allow the public to engage in recreation and enjoy the outdoors. The two uses are distinct and an
easement for a recreational trail is not like in kind to an easement for railroads.”).

         Contrary to the government’s assertions, the Passy Trail was intended to be used for
recreation rather than as a public highway, and is currently being used as such. The notice of
exemption filed by the City of Belfast states that the “best current use” of the Railroad Line is as
a “scenic recreational walking and bicycle trail.” Pls.’ [Proposed] Findings of Fact Ex. B, at 3.
Further, according to Joseph Slocum, City Manager of Belfast, citizens have begun using the
trail for “walking, jogging, and recreating” as well as “pushing folks in wheel chairs along its
hard stone mix surface to enjoy the experience.” Slocum Decl. ¶ 14. These uses are
recreational, not for transporting visitors along the right-of-way from point A to point B. The
recreational purpose for the Passy Trail thus exceeds the scope of the original easements, even if
these easements were in fact granted for highway purposes. Therefore, each of the government’s
several arguments respecting trail use fails, and the government is liable to plaintiffs for a taking
of their property without just compensation.

                                          CONCLUSION

       For the reasons stated, plaintiffs’ motion for summary judgment on liability is
GRANTED and defendant’s cross-motion is DENIED. Pursuant to a joint status report
previously filed by the parties, the parties are directed to submit a proposed schedule for trial
preparatory steps in the damages phase of litigation on or before January 5, 2017.

       It is so ORDERED.

                                               s/ Charles F. Lettow
                                               Charles F. Lettow
                                               Judge



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