     Case: 10-60800     Document: 00511649099         Page: 1     Date Filed: 10/28/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 28, 2011

                                       No. 10-60800                        Lyle W. Cayce
                                                                                Clerk

TISHOMINGO RAILROAD COMPANY, INCORPORATED; MISSISSIPPI
CENTRAL RAILROAD COMPANY; R. BRUCE CRAWFORD, Individually,

                                                  Plaintiffs - Appellants
v.

BELLSOUTH TELECOMMUNICATIONS, INC.,

                                                  Defendant - Appellee



                  Appeals from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:06-CV-343


Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Tishomingo Railroad Company (TRC), et al., contest: the judgment,
following a bench trial, rejecting their claims against BellSouth, arising out of
a dispute over telecommunications rights along a railroad right-of-way; and the
costs award to BellSouth. For the reasons that follow, the challenges fail.
        In 1999, following transactions between other entities, including NASA,
TRC began pursuing both exclusive railroad-operating authority and exclusive


        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 10-60800

telecommunications rights along an abandoned railroad line owned by the State
of Mississippi. TRC and the State entered into a memorandum of understanding,
which granted TRC exclusive railroad-operating authority but noted the need for
a complete lease agreement. TRC and the State, however, never executed that
agreement, due, in part, to the State’s desire to make any lease subject to
preexisting easements along the right-of-way. And, no agreement was reached
regarding exclusive telecommunications rights.
      In 2000, TRC installed a conduit to house fiberoptic cable along the
railroad right-of-way; it subsequently sold the conduit to BellSouth. There was
no mention of BellSouth’s needing an easement or being obligated to pay
licensing fees, in part because BellSouth believed it owned preexisting rights-of-
entry acquired from NASA and through Chapter 38 of Mississippi’s 1886 Act
(“An act to encourage and facilitate the construction of telegraph, telephone, and
other like lines in the State of Mississippi.” Southern Bell v. City of Meridian,
131 So. 2d 666, 668 (Miss. 1961)).
      In 2001, with TRC’s knowledge, BellSouth installed fiberoptic cable in its
conduit. In 2004, TRC invoiced BellSouth for licensing fees, based on its use of
the railroad right-of-way.
      After BellSouth refused to pay, appellants filed this action in 2006. It was
removed to federal court. Cross-motions for summary judgment were denied.
      After a bench trial, the district court ruled in favor of BellSouth. In a very
detailed opinion, the court rejected TRC’s contention that it had a “lease” or
other property interest giving it the right to charge fees to BellSouth and
concluded, inter alia, that BellSouth was properly using the right-of-way due to:
its express easement from NASA; an implied easement, arising out of
BellSouth’s purchase of the conduit; and the authority granted BellSouth
through the 1886 Act. Tishomingo R.R. Co., Inc., et al. v. BellSouth Telecomm.,
Inc., No. 1:06-CV-343, Memorandum Opinion (N.D. Miss. 21 Sept. 2010).

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                                   No. 10-60800

Following judgment, BellSouth was awarded costs. Tishomingo R.R. Co., Inc.,
et al. v. BellSouth Telecomm., Inc., No. 1:06-CV-343, Memorandum Opinion and
Order Adjudicating Contested Bill of Costs (N.D. Miss. 30 Dec. 2010).
      Appellants contend, inter alia: the district court lacked subject-matter
jurisdiction to consider the validity of the “lease” due to the exclusive jurisdiction
of the Surface Transportation Board (STB); the conduit is not located on the
NASA easement; in applying the 1886 Act, the district court misinterpreted the
Act’s scope, as pronounced in City of Meridian; an implied easement cannot arise
where, as here, a grant of land has not taken place; BellSouth’s activity
constitutes an unlawful taking; it failed to join the State and Tishomingo
County, who are necessary parties; and the court erred in awarding costs to
BellSouth. BellSouth responds, inter alia: STB jurisdiction does not apply
because the absence of a lease does not affect railroad-operating authority;
appellants fail to show clear error in the district court’s findings of fact;
BellSouth possesses the authority to use the right-of-way; the action is barred
by limitations; and appellants waived review of the costs award.
      For essentially the reasons stated in the two above-described opinions of
the district court, the judgment and costs award are AFFIRMED.




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