              In the United States Court of Federal Claims
                                            No. 19-047T
                                       (Filed: April 3, 2020)


    JOHN CARPENTER et al.,                                Keywords: rails-to-trails,
                                                          easements, Fifth Amendment,
                         Plaintiffs,                      Vermont, takings, railroad,
                                                          right-of-way, merger doctrine,
    v.
                                                          partial summary judgment,
    UNITED STATES,                                        railbanking, RCFC 56(a)

                        Defendant.


Adam Riley, and Ethan Flint, Flint Law Firm, LLC, Edwardsville, IL, for Plaintiffs.

Christopher Chellis, United States Department of Justice, Environment & Natural Resources
Division, Natural Resources Section, with whom were Jean Williams, United States Department
of Justice, Environment & Natural Resources Division, Deputy Assistant Attorney General,
Washington, D.C., for Defendant.

                                MEMORANDUM OPINION AND ORDER

TAPP, Judge.

         This case arises under the National Trails System Act of 1968 (Trails Act) and concerns
several parcels of land along a railway line in Bennington, Vermont. Before the Court are the
parties’ cross-motions for partial summary judgment. On November 9, 2019, Plaintiffs moved
for partial summary judgment on one claim by Amory Pacific, LLC, 1 alleging that the United
States Surface Transportation Board’s (“STB” or the “Board”) conversion of the railway corridor
into recreational trail, by operation of the Trails Act, effected a taking of Plaintiffs’ property.
(Pls. Mot., ECF No. 21). On December 6, 2019, the United States responded and filed a cross-
motion seeking partial summary judgment on five parcels, including the Amory Pacific claim
that is the subject of Plaintiffs’ motion, arguing that Amory Pacific has no ownership interest on
which to base its takings claim. (Def. Mot. at 1, ECF No. 24). On December 27, 2019, and
January 10, 2020, the parties filed their respective replies. (Pls. Reply, ECF No. 26; Def. Reply,
ECF No. 27). This matter is now fully briefed and ripe for decision.

        For the reasons set forth below, the Court GRANTS Plaintiffs’ Motion for Partial
Summary Judgment with respect to the claim brought by Amory Pacific, LLC; DENIES-IN-
PART the United States’ Cross-Motion for Partial Summary Judgment as it relates to the Amory
Pacific claim; and GRANTS-IN-PART the United States’ Cross-Motion for Summary

1
    Parcel No. 051-015-66122.
Judgment as it relates to the claims brought by John and Sylvia Carpenter, 2 Dwayne Scott
Dupee, 3 and SEALL, INC. 4 Finally, Plaintiffs’ motion requesting oral argument (ECF No. 28) is
DENIED AS MOOT.

                                              I.    Background

         The property at issue is a 1.57-mile segment of a railroad right-of-way corridor running
through the Town of Bennington, Vermont. (Def. Mot. at 5). This segment is part of a 131-mile
rail line owned by the State of Vermont and currently operated by Vermont Railway, Inc.
(“VTR”), but has been owned or used by several railroad companies over the years. 5 (See Def.
Mot, Ex. 1). Vermont’s acquisition and VTR’s operation of this line was authorized by the
Interstate Commerce Commission (“ICC”)—a predecessor agency to the STB— in 1964. (Id.,
Ex. 2). In 2004, the STB authorized VTR to operate the line under a modified certificate, which
exempted VTR from the requirements of 49 U.S.C. § 10903 regarding termination of operations.
(Id.).

        On July 5, 2018, VTR filed a 49 C.F.R. § 1152.50 Notice of Exemption to abandon rail
service over the 1.57-mile segment of rail line and pursue a public use and interim trail use
agreement with the Town of Bennington. (Id., Ex. 1). On September 14, 2018, pursuant to
VTR’s Notice and the Town of Bennington’s request, the STB issued a Notice of Interim Trail
Use (“NITU”). (Id., Ex. 2). On October 16, 2018, the Town of Bennington, State of Vermont,
and VTR filed their interim trail use agreement with the STB. (Id., Ex. 4). Under the terms of the
agreement, the Town of Bennington assumed responsibility for the management of the right-of-
way corridor, as well as the associated legal and tax liabilities. (Id.).

        On November 9, 2019, Plaintiffs moved for Partial Summary Judgment on a single parcel
belonging to Amory Pacific, LLC. (Pls. Mot. at 2). On December 6, 2019, the United States filed
its Response and Cross-Motion for Partial Summary Judgment on five parcels: John Carpenter
and Sylvia Carpenter; Dwayne Scott Dupee; Amory Pacific, LLC; and SEALL, INC. (Def. Mot.
at 10, 12, 14; see also Stipulations, ECF No. 18). In their response and reply, Plaintiffs conceded
the Carpenter, Dupee, and one of the SEALL claims should be dismissed. 6 (Pls. Reply at 3).




2
    Parcel Nos. 051-015-66938 and 051-015-66925.
3
    Parcel No. 051-015-66944.
4
    Parcel No. 051-015-66933.
5
 Successive ownership of the right-of-way is not at issue in this case. For the sake of brevity, this Opinion
occasionally refers to the owner of the rail line as simply “the railroad” without denoting which company owned and
operated the line in the relevant time period.
6
 The United States has agreed to proceed to valuation on two other parcels owned by SEALL, INC. (Pls. Mot. at 26
n. 2). Plaintiffs maintain that a small portion of Parcel No. 051-015-66933 relates to the same source deed (44/151)
and should therefore proceed to valuation with the remainder of SEALL’s claims. (Id.). Plaintiffs have not
expounded on the meaning of this footnote after conceding dismissal in the body of their Reply. As the United
States has supported its motion, the Court finds this claim appropriate for dismissal.

                                                         2
       The subject of the parties’ remaining dispute is whether the railroad source deed
(“Patchin deed”) recorded at Book 31, Page 489 (the “31/489 deed”) in Bennington County,
Vermont, conveys property in fee simple or merely an easement.

                            II.    Summary Judgment Standard

        The jurisdiction of the Court of Federal Claims is primarily found in the Tucker Act,
which allows the Court “to render any judgment upon any claim against the United States
founded either upon the Constitution, or any Act of Congress or any regulation of an executive
department, or upon any express of implied contract with the United States . . . in cases not
sounding in tort.” 28 U.S.C. § 1491(a)(1). Under the Tucker Act, the United States waives its
sovereign immunity for certain claims founded on another source of substantive law. United
States v. Testan, 424 U.S. 391, 298 (1976); Fisher v. United States, 402 F.3d 1167, 1172 (Fed.
Cir. 2005). “Rails-to-rails” claims based on the Fifth Amendment’s takings clause fall squarely
within this Court’s jurisdiction. See Preseault v. I.C.C., 494 U.S. 1 (1990).

        “The 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). A “genuine dispute” exists where a reasonable factfinder “could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material facts”
are those which might significantly alter the outcome of the case; factual disputes which are not
outcome-determinative will not preclude summary judgment. Id. In determining whether
summary judgment is appropriate, the court should not weigh the credibility of the evidence, but
simply “determine whether there is a genuine issue for trial.” Id. at 249. In so deciding, the Court
must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 578–88 (1986).

                                      III.    Discussion

        The parties agree that, in 1852, the Western Vermont Railroad (“WVR”) acquired a
parcel from Lyman Patchin by quitclaim deed for use in railroad operation. (See Stipulations at
2; Pls. Mot, Ex. F). The parties further agree that Amory Pacific is the current owner of the
parcel conveyed in this transaction. (See Stipulations at 2). The parties disagree whether this
deed conveyed an easement or conveyed the corridor in fee simple. (See Pls. Mot. at 10; Def.
Mot. at 12–13).

         Plaintiffs argue the Western Vermont Railroad company obtained only an easement in the
Patchin transaction and that easement expired once rail operations ceased. (Pls. Mot. at 1). If the
transaction conveyed only an easement, Plaintiffs argue, Amory Pacific assumed full ownership
in the land once railroad operations ceased and the parcel was converted to recreational trail use.
(Id.). Consequently, Plaintiffs argue Amory Pacific is entitled to compensation under the Fifth
Amendment takings clause. (Id. at 2). The United States argues the railroad acquired the parcel
from Amory Pacific’s predecessors-in-interest in fee simple, thus Amory Pacific has no standing
to pursue a takings claim. (Def. Mot. at 1–2). Resolution of these arguments requires an analysis
of several different bodies of law, as explained below.



                                                 3
           a. The Trails Act

        The Interstate Commerce Act of 1887 vested the ICC with excusive authority over the
construction, operation, and abandonment of most railroad lines in the United States. Chicago &
N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981); Caldwell v. United States, 391
F.3d 1226, 1228 (Fed. Cir. 2004). The STB, as a successor agency to the ICC, was vested with
this exclusive and plenary authority in 1996. 49 U.S.C. § 1302.

        A railroad under the jurisdiction of the STB cannot discontinue service without the
consent of the Board. Caldwell, 391 F.3d at 1228. To terminate service along a rail line, the
railroad “must either (1) file a standard abandonment application that meets the requirements of
49 U.S.C. § 10903; or (2) seek an exemption, under 49 U.S.C. § 10502.” Id. The Trails Act
provides a third option, colloquially known as “railbanking,” whereby the railroad negotiates
with a “trail operator” (usually a state or local municipality) to “assume financial and managerial
responsibility for operating the railroad right-of-way as a recreational trail.” Id. at 1229;
16 U.S.C. § 1247. When a right-of-way is “railbanked,” the abandonment proceedings are
stayed, and the STB retains jurisdiction over the corridor with the option to restart rail service at
later date. Caldwell, 391 F.3d at 1229; 49 C.F.R. § 1121.4. Because the abandonment
proceedings are stayed, so too is the operation of state property law which might “result in
extinguishment of easements for railroad purposed and reversion of rights of way to abutting
landowners.” Id. (quoting 2 I.C.C.2d 591, 1986 WL 68617 (1986)). Therefore, a Fifth
Amendment “taking” occurs “if the original easement granted to the railroad under state property
law is not broad enough to encompass a recreational trail.” Id. (citing Preseault v. United States,
100 F.3d 1525, 1552 (Fed. Cir. 1996) (“Preseault II”)).

        The railbanking process begins when the railroad either files an abandonment application
under 49 U.S.C. § 10903 or a notice of exemption under 49 U.S.C. § 10502. Id. at 1229–30. A
potential trail operator then files a railbanking petition which must include: (1) a map and
description of the right-of-way; (2) a statement assuming managerial, financial, and legal
responsibility for the right-of-way; and (3) an acknowledgment the right-of-way could be
reactivated for rail service. 49 C.F.R. § 1152.29. A successful petitioner who shows reciprocal
interest from the railroad will then receive a Notice of Interim Trail Use (“NITU”) from the STB.
49 C.F.R. §§ 1152.29(b)(2) and (d). The NITU “permits the railroad to discontinue service,
cancel tariffs, and salvage track and other equipment, ‘consistent with interim trail use and rail
banking’ without consummating an abandonment and the NITU extends indefinitely to permit
interim trail use once an ‘agreement’ is reached between the railroad and the trail operator.”
Caldwell, 391 F.3d at 1230 (quoting 49 C.F.R. § 1152.29(d)(1)). If the railroad and trail operator
reach a railbanking and interim trail use agreement, the STB’s jurisdiction over the rail line is
preserved. Caldwell, 391 F.3d at 1229; 49 C.F.R. § 1121.4. When the trail agreement is reached,
a permanent Fifth Amendment taking occurs since the abandonment procedures are effectively
blocked. Caldwell, 391 at 1235 (citing Preseault II, 100 F.3d at 1552).

           b. Vermont Law

       The threshold issue in a takings analysis is whether the plaintiff “has a compensable
property interest in the land allegedly taken[.]” Chicago Coating Co. v. United States, 892 F.3d
1164, 1167 (Fed. Cir. 2018) (internal citations omitted). In making this determination, courts

                                                 4
“look to the law of the state in which the property is located.” Barlow v. United States, 123 Fed.
Cl. 186, 194 (2015) (citing Preseault II, 100 F.3d at 1540). Here, because the parcels in question
are located in Vermont, the Court will follow Vermont law.

        Under Vermont law, if the railroad acquired title to the land in fee simple, then the
successors-in-interest “have no right or interest in those parcels” and thus do not have standing to
maintain a takings action. Preseault II, 100 F.3d at 1533. However, a plaintiff does have standing
to bring a takings claim if (1) the Railroad acquired only an easement; (2) the easement “imposed
on the property owners’ underlying fee simple estates”; and (3) the easement was “limited to
uses that did not include public recreational hiking and biking trails[.]” Id. Under Vermont law,
when a railroad acquires property through formal eminent domain procedures, the railroad
acquires only an easement that reverts to the grantor. Old Railroad Bed, LLC v. Marcus, 196 Vt.
74, 78 (2014) (citing Dessureau v. Maurice Mem’ls, Inc., 132 Vt. 350, 351 (1974)).

        The nature of the property interest can often be resolved “by analyzing the original deeds
that conveyed the property to the railroad[.]” Chicago Coating, 892 F.3d at 1167. However, the
deed is not always determinative of the scope of the property interest the railroad acquired. Troy
& Boston R.R. v. Potter, 42 Vt. 265 (1869); see also Old Railroad Bed, 196 Vt. at 81 (citing
Barre R.R. v. Montpelier & Wells River R.R., 61 Vt. 1 (1889)).

       If an eminent domain proceeding occurred before the deed was recorded, the language of
the deed deserves more scrutiny to determine whether the railroad obtained merely an easement
or acquired the parcel in fee simple. See Old Railroad Bed, 196 Vt. at 79. In addition to the deed,
courts may rely “on the location survey, together with all of the other surrounding
circumstances” to determine whether a parcel has been taken by eminent domain or acquired in a
fee simple transaction. See id.

         According to the Vermont Supreme Court, an eminent domain taking occurs “when the
initial steps, pointed out by the [Vermont eminent domain statute], were taken, [and] there only
remained for the company to acquire [the parcel] through purchase or through proceedings in
invitum.” 7 Barre R.R., 61 Vt. at 6. For example, in Troy & Boston R.R. v. Potter, the Vermont
Supreme Court held that a survey and location selection for the railroad’s right-of-way were
sufficient “initial steps” to effectuate the taking, despite the absence of a recorded deed
memorializing the right-of-way rights. 42 Vt. at 272. In Old Railroad Bed, however, the
Vermont Supreme Court made clear that a location survey does not transform a fee-simple
conveyance into an easement. 196 Vt. at 79, 82 (“[M]erely by virtue of the location survey
referenced in the original deeds, the properties here were [not] necessarily acquired by eminent
domain.”). These cases, when read together, highlight that the nature of the estate described in
the deed does not always control.



7
 “In invitum” means “against an unwilling person.” Black’s Law Dictionary 903 (10th ed. 2014). The phrase is
often invoked in connection with eminent domain condemnation proceedings. See, e.g., City of Winooski v. State
Hwy. Bd., 124 Vt. 496, 500 (1965).

                                                        5
         When there is no clear indication of the scope of the interest acquired by the railroad,
Vermont courts have looked to the eminent domain authority granted to the railroad as
encapsulated in its corporate charter. For a railroad to acquire a parcel in fee simple through
eminent domain, it must explicitly possess such authority in its corporate charter. Preseault v.
United States, 24 Cl. Ct. 818, 829 (1992) (“Preseault I”) (citing Hill v. Western Vermont
Railroad Co., 32 Vt. 68 (1859) and Page v. Heineberg, 40 Vt. 81 (1868)). In either a sale or
condemnation proceeding where the railroad has the power to acquire a parcel compulsorily,
“there is this implied limitation upon the power, that the company will take only so much land or
estate therein as is necessary for their public purposes.” Hill, 32 Vt. at 76. “Where no articulation
of such power exists, more than 100 years of well-settled Vermont law supports the presumption
that a railroad may only take what is ‘necessary’ to its purpose, namely, an easement.” Preseault
I, 24 Cl. Ct. at 829.

        The Court recognizes that questions of the interpretation of Vermont law may be best
addressed by the state courts of Vermont. However, Vermont courts have declared themselves
without subject matter jurisdiction to involve themselves in railroad abandonment disputes. See
Trustees of the Diocese of Vermont v. Vermont, 145 Vt. 510 (1985). Further, Vermont has
previously advised that it lacks any mechanism to resolve such questions on referral from federal
courts. Preseault II, 100 F.3d at 1534. Like the Federal Circuit in Preseault II, “[w]e have no
choice, then, but to determine this question of state law ourselves.” Id.; see Meredith v. City of
Winter Haven, 320 U.S. 228, 234 (1943) (“[I]t has from the first been deemed to be the duty of
the federal courts, if their jurisdiction is properly invoked, to decide questions of state law
whenever necessary to the rendition of a judgment.”).

           c. The Nature of Amory Pacific’s Property Interest

       Plaintiffs contend Amory Pacific is a successor-in-interest to land acquired by the
Western Vermont Railroad Company in a quitclaim deed (the Patchin deed), and that the survey
and location selection recorded prior to the Patchin deed constituted a taking by eminent domain.
(Pls. Mot. at 10–16). Thus, Plaintiffs argue, the railroad acquired only an easement. (Pls. Mot. at
15). The United States argues the Patchin deed conveyed property in fee simple, precluding
Amory Pacific from asserting the property interest necessary to maintain its takings claim. (Def.
Mot. at 12). As explained below, the Court agrees with the Plaintiffs.

           d. The Patchin Deed

        The railroad formally acquired its interest in the parcel at issue through a purchase
transaction, encapsulated in the Patchin deed. (Pls. Mot., Ex. F). The deed provides:

          Know all men by these presents [sic], that we, Syman [sic] Patchin, Samuel
          H. Blackman, Sylvia Black-man his wife, D[illegible] Squires and Newell
          Squires, all of Bennington in the County of Bennington and State of Vermont,
          for the consideration of one hundred and sixty two dollars [$162.00] received
          to our full satisfaction of the Western Vermont Railroad Company of in the
          County of and State of Vermont, have remised and released and by these

                                                  6
            presents do remise and quit claim to the said Western Vermont Rail-road
            Company, their heirs and assigns forever, all our right, title, interest or
            demand in or unto a piece or parcel of land lying and being in Bennington. .
            . . being the same piece of land surveyed and taken by said Western
            Vermont Railroad Company to build their Railroad upon

            ...

            To have and to hold the above remised and quit-claimed premises, with the
            appurtenances thereof unto the said Western Vermont Railroad Company and
            their heirs and assign forever, to their own proper use, benefit, and behoof
            ....

(Id. (emphasis added) (errors in original); see also Def. Mot. at 12; Pls. Mot. at 4)). Importantly,
as Plaintiffs repeatedly highlight and the United States does not dispute, this deed was recorded
following a survey and recording of the location selection. (Pls. Mot. at 13; see Def. Mot. at 15).

        Two provisions of this deed support Plaintiffs’ argument that Amory Pacific retained a
reversionary interest in the parcel because the railroad only acquired an easement. First, the deed
indicates the parcel it conveys is the “same piece of land surveyed and taken” by the railroad.
(Pls. Mot., Ex. F). In other words, the railroad had already exercised its eminent domain power
over the parcel prior to execution of the deed, acquiring an easement. Second, the grantors remit
the parcel to the railroad for “their own proper use, benefit, and behoof,” 8 which indicates the
interest was an easement rather than a fee simple estate. (Id.). The deed makes no mention of the
estate conveyed, stopping short of granting a fee simple estate. Instead, the deed limits the
conveyance to the railroad’s “use, benefit, and behoof[.]” (Id.). In interpreting whether Amory
Pacific’s predecessors-in-interest retained a reversionary interest through the recording of the
deed, we are guided by the decisions of the Federal Circuit and alternatively, the Vermont
Supreme Court.

             e. Preseault II

        This Court is bound by decisions of its predecessor, the Court of Claims, as well as
decisions by the Federal Circuit and the Supreme Court of the United States. S. Corp. v. United
States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc). Because the Preseault line of cases contains
controlling law that bears on the outcome of the present dispute, the Court addresses those cases
before analyzing Vermont law. See, e.g., Preseault v. I.C.C., 494 U.S. 1 (1990); Preseault II, 100
F.3d 1525 (Fed. Cir. 1996); Preseault I, 24 Cl. Ct. 818 (1992).

      At issue in Preseault II were three parcels acquired by the railroad—two through
commissioner awards and one via warranty deed. 100 F.3d at 1534–35. The Federal Circuit
summarized the warranty deed as follows:


8
 “Behoof” is an archaic term that means a “use, profit, or advantage that is part of a conveyance.” Black’s Law
Dictionary (10th ed. 2014).

                                                         7
           The operative instrument is a warranty deed, dated August 2, 1899, from
           Frederick and Mary Manwell to the Railroad. The deed contains the usual
           habendum clause found in a warranty deed, and purports to convey the
           described strip of land to the grantee railroad “[t]o have and to hold the
           above granted and bargained premises ... unto it the said grantee, its
           successors and assigns forever, to its and their own proper use, benefit
           and behoof forever.” The deed further warrants that the grantors have “a
           good, indefeasible estate, in fee simple, and have good right to bargain and
           sell the same in manner and form as above written. . . .

Id. at 1535 (emphasis added). The Federal Circuit held that despite the language purporting to
create a fee simple interest, “[u]nder well-settled Vermont law, the property interests in the
parcel . . . conveyed following survey and location by warranty deed, amounted to [an]
easement[ ]....” Id. (citing Preseault I, 24 Cl. Ct. at 830). In its decision, the trial court considered
a trio of Vermont Supreme Court cases: Hill v. Western Vermont Railroad Co., 32 Vt. 68 (1859),
Page v. Heineberg, 40 Vt. 81 (1868), and Troy & Boston Railroad Co. v. Potter, 42 Vt. 265
(1869). Preseault I, 24 Cl. Ct. at 827–30.

       In discussing Hill, the Preseault I court analyzed the corporate charter of the Western
Vermont Railroad Company, the same railroad charter relevant to the instant proceedings. See
Preseault I, 24 Cl. Ct. at 828. The court held that its charter did not grant the Western Vermont
Railroad Company power to acquire land in fee simple and therefore, the interest acquired could
only have been an easement. Id. at 829, aff’d, Preseault II, 100 F.3d at 1537. In affirming, the
Federal Circuit cited profusely to Vermont law holding “the act of survey and location is the
operative determinant, and not the particular form of transfer, if any.” Preseault II, 100 F.3d at
1537. Thus, because the survey and location initiated the exercise of the railroad’s eminent
domain power, “the proceeding retained its eminent domain flavor, and the railroad acquired
only that which it needed, an easement for its roadway.” Id.

        When the Federal Circuit issues a decision, this Court is not free to ignore it absent (1)
intervention from the U.S. Supreme Court or (2) abrogation by statute. See Strickland v. United
States, 423 F.3d 1335, 1338 n. 3 (Fed. Cir. 2005). Neither has occurred here. The facts material
to a decision in the instant case are nearly indistinguishable from those examined by the Federal
Circuit in Preseault II. Both involved the same railroad charter, similar deed language, and the
same process of conveyance—survey and recording of location prior to recorded deed.

       In Preseault II, conveyance of the parcel to the railroad for its “own proper use, benefit
and behoof” is language identical to that of the Patchin deed. See 100 F.3d at 1535. In fact, the
Preseault II deed goes further than the Patchin deed to identify the estate it purportedly created: a
fee simple interest. Id. Nevertheless, the Preseault II court held that, under Vermont law, an
easement was created. Id. at 1537. Like Preseault II, the Patchin deed followed the recording of
a survey and location selection and contained language that conveyed only what the railroad
required for its “own proper use, benefit and behoof[.]” Therefore, through the recording of the
Patchin deed, “the proceeding retained its eminent domain flavor, and the railroad acquired only
that which it needed, an easement for its roadway” rather than land in fee simple. Id.
                                                   8
Consequently, the Court must grant the Plaintiffs’ motion for partial summary judgment on the
Amory Pacific claim and deny the United States’ motion with respect to the same.

           f. Consistency With Vermont Law

        Even if this Court were not bound by the decision in Preseault II, the conclusion that the
railroad acquired only an easement is supported on alternative grounds by Vermont law.
Specifically, the railroad obtained an easement when it surveyed and recorded the location of the
right-of-way, an exercise of its eminent domain power. Further, the Patchin deed does not
purport to convey the parcel in fee simple, and even if it did, the Western Vermont Railroad
would have been prohibited by its corporate charter from exercising its eminent domain power to
acquire a fee simple interest. Several cases from the Vermont Supreme Court support this
conclusion.

        The parties chiefly disagree on what effect, if any, Old Railroad Bed v. Marcus, 196 Vt.
74 (2014), has on this case. The United States argues Old Railroad Bed holds that a fee simple
deed is not converted to an easement simply because the survey and location selection were
recorded prior to execution of the deed. (Def. Mot. at 16–17). Plaintiffs, on the other hand, argue
that Old Railroad Bed does not control Amory Pacific’s claim because in Old Railroad Bed, the
fee simple deed was recorded before the survey or location was recorded. (Pls. Reply at 6).
However, Old Railroad Bed makes clear that we must examine the location survey “together
with all of the other surrounding circumstances” to find evidentiary support that a parcel was
taken by eminent domain. Old Railroad Bed, 196 Vt. At 79.

        Old Railroad Bed emphasizes that recording of a location survey does not automatically
mean the parcel was acquired by eminent domain. Id. at 81. However, Old Railroad Bed only
resolves whether a recording of a location survey can change the character of the estate described
in an already-recorded deed. Id. Several other cases inform the Court’s analysis of Vermont law.
        In Hill v. Western Vt. R.R., the parties failed to record a conveyance instrument for a
transaction between the Western Vermont Railroad and a Vermont landowner. 32 Vt. at 69. The
Court found the location selection constituted the act of a taking using the eminent domain
power. Id. at 69–72. The Vermont Supreme Court then reviewed the corporate charter of the
Western Vermont Railroad Company to determine the nature of the land estate the railroad
acquired, ultimately holding the railroad’s eminent domain power was limited to acquisition of
easements. Id. at 74.
        In Page v. Heineberg, the Vermont Supreme Court addressed whether the Vermont
Central Railroad acquired property in fee simple, or whether the railroad was only permitted to
exercise eminent domain to acquire easements. 40 Vt. at 84–85. The court relied on the broad
authority in the railroad’s charter to find the railroad had the power to acquire the entire estate
through an ordinary purchase transaction. Id. at 86.
      Under Vermont law, the selection of a location constitutes exercise of the eminent
domain power to take land for public use. Hill, 32 Vt. at 69–72 (“After the [right-of-way] is once

                                                  9
located and finished, the right to acquire land by statute proceedings cannot be exercised
further.”); see also Troy & B.R Co. v. Potter, 42 Vt. at 272. All that is left is to determine
whether through that exercise, the railroad acquired an easement or a fee simple. Hill, 32 Vt. at
73. Without an instrument—either deed or contract—that specifies the character of the taking
(which occurs at the time of the location selection), Vermont law is clear that the estate taken is
the maximum property interest allowed under the railroad’s eminent domain power. Id. at 75
(“[W]here [railroads] have by their charter the power to [take land] compulsorily, there is this
implied limitation upon the power, that the [railroad] will take only so much land or estate
therein as is necessary for their public purposes.”) (emphasis added).
        To find the extent of that power, we look to the railroad’s charter. Id. (“[W]here the
quantity of estate is not defined, that it should be construed . . . according to the object and
purport of the grant, and the necessities or wants of the corporation thereby created.”) (emphasis
added). The power to exercise eminent domain to acquire in fee simple must be delineated
explicitly in the corporate charter, or else the railroad has only the power to exercise its eminent
domain power to acquire an easement. See Page, 40 Vt. at 86 (distinguishing Hill by holding “in
this charter we think [Vermont Central R.R.] have this comprehensive signification, and clothe
the company with the power or capacity to take the entire estate[.]”) (emphasis added); Troy &
B.R Co., 42 Vt. at 273. The Page court took pains to stress the acquisition power depended
“mainly[ ] upon the provisions of the charter of the company[.]” Page, 40 Vt. at 86.
        As explained above, the corporate charter of the Western Vermont Railroad indicates the
railroad was not capable of exercising its eminent domain power to acquire land in fee simple.
Here, the survey and location selection took place before the Patchin deed was recorded, and
nothing in the Patchin deed purports to evidence a purchase transaction of a fee simple estate.
(See Pls. Mot., Ex. F). Instead, the deed refers to the same estate already “surveyed and taken,”
indicating it attempts to capture the eminent domain proceedings exercised in the location
selection. (See id.). The Patchin deed grants the premises to the railroad for its “use, benefit, and
behoof” rather than explicitly identifying a fee simple estate. (Id.). Although unavailable to this
Court, both parties rely on Hill’s interpretation of the WVR’s corporate charter. (Def. Mot. at
17–18; Pls. Mot. at 15, n. 8).

        In Hill, the Vermont Supreme Court analyzed the eminent domain power afforded to the
Western Vermont Railroad, the railroad which surveyed and recorded the location of the parcel it
later acquired via the Patchin deed:

          The charter of the Western Vermont Railroad Company provided that their
          directors might cause such examinations and surveys of the road to be made
          as they should deem necessary; and that the road, when so surveyed and the
          survey recorded, should be deemed the line on which the road was to be
          constructed; and that the corporation might enter upon and take possession of
          such lands as were necessary for the construction and maintenance of
          their railroad, and the requisite accommodations appertaining thereto,
          with a provision for the appraisal, by commissioners, of the land so taken, if
          the parties should disagree as to the price.

                                                 10
Hill, 32 Vt. at 70 (emphasis added). The court found the WVR only had the power to exercise its
eminent domain power to acquire easements. Id. at 74 (“[This charter] was not intended to give
[the railroad] power to acquire any more land or any greater estate in such land, for the purposes
of a road bed or stations[.]”). Neither the survey and location selection, nor the Patchin deed
purport to convey more than an easement in the parcel now owned by Amory Pacific. Further,
under Hill, the railroad, through its corporate charter, lacked the necessary authority to acquire
the parcel from Amory Pacific’s predecessors-in-interest in fee simple.

       Therefore, the railroad obtained only an easement in the parcel and Amory Pacific, as a
successor-in-interest to the Patchin deed, has the necessary ownership interest to maintain its
takings claim. As discussed below, the NITU exceeds the scope of that easement, ripening
Amory Pacific’s claim and entitling it to compensation.

           g. Scope of the NITU

        As the Western Vermont Railroad acquired only an easement for railroad purposes, its
successors cannot hold more than an easement. The successors, including the most recent
railroad—Vermont Railway, Inc.—continuously used the easement for railroad operations. (Pls.
Mot., Ex. A). Therefore, the easement remained with the successive railroad operators for these
purposes, without reverting to the landowners, until the parcel was converted into a trail. (See
id.).

       When the STB issues the NITU pursuant to the Trails Act, the NITU severed the
Vermont Railway’s claim to the land because recreational use falls outside the scope of the
easement. Caldwell, 391 F.3d at 1229; Preseault II, 100 F.3d at 1552. The burdens of the
easement run with the land. Coggeshall Development Corp. v. United States, 23 Cl. Ct. 739
(1991); Public Utility Dist. No. 1 of Ferry County, Wash. v. United States, 20 Cl. Ct. 696 (1990).
Upon severance, all reversionary rights vested with the successors-in-interest to the original
grantors in the Patchin deed. Amory Pacific is one of those successors. (See Stipulations, ECF
No. 18).
        As successors abutting the corridor, Amory Pacific retained the rights to disputed
property. Therefore, conversion of the rail corridor to recreational trail exceeded the scope of the
easement, constituting a Fifth Amendment taking of Amory Pacific’s land. The United States is
liable for the taking, and Amory Pacific is entitled to just compensation.

                                      IV.     Conclusion

     Whether relying on the controlling authority of Preseault II, or undertaking an analysis of
Vermont law, the Court reaches the same result—the railroad obtained only an easement.

       Therefore, the Court holds as follows:

       1. Partial summary judgment in favor of the United States is GRANTED with respect to



                                                 11
               the claims Plaintiffs concede should be dismissed: John and Sylvia Carpenter, 9
               Dwayne Scott Dupee, 10 and SEALL, INC. 11 The clerk is directed to enter judgment
               pursuant to RCFC 54(b).

           2. The United States’ Cross-Motion for Partial Summary Judgment with respect to the
              claim brought by Amory Pacific, LLC is DENIED.

           3. Partial summary judgment is GRANTED in favor of the Plaintiffs with respect to the
              claim brought by Amory Pacific, LLC. 12

           4. Plaintiffs’ motion requesting oral argument (ECF No. 37) is DENIED AS MOOT.

The clerk is directed to enter partial judgment accordingly. The parties are ordered to file a joint
status report on or before April 24, 2020, advising the Court as to the status of the remaining
claims and proposing a schedule for further proceedings.

           IT IS SO ORDERED.

                                                              s/      David A. Tapp
                                                                   DAVID A. TAPP, Judge




9
    Parcel Nos. 051-015-66938 and 051-015-66925.
10
     Parcel No. 051-015-66944.
11
     Parcel No. 051-015-66933.
12
     Parcel No. 051-015-66122.

                                                   12
