       In the United States Court of Federal Claims
                                No. 16-912L and
                    No. 16-1565L and No. 18-375L Consolidated
                                   No. 18-983L
                              (Filed: June 22, 2020)

                                      )
PERRY LOVERIDGE, et al.,              )
                                      )
                    Plaintiffs,       )
                                      )
v.                                    )
                                      )     Motion for Summary Judgment; Rails-
THE UNITED STATES,                    )     to-Trails; Oregon Law; Abandonment;
                                      )     Adjacency; Centerline Presumption;
                    Defendant.        )     Valuation Maps; Condemnation;
                                      )     Registrar of Title
_______________________________       )
                                      )
ALBRIGHT, et al.,                     )
                                      )
                     Plaintiffs,      )
                                      )
and                                   )
                                      )
THE UNITED STATES,                    )
                                      )
                 Defendant.           )
_______________________________       )
                                      )
STIMSON LUMBER COMPANY,               )
                                      )
                     Plaintiff,       )
                                      )
and                                   )
                                      )
THE UNITED STATES,                    )
                                      )
                    Defendant         )
                                      )
Thomas S. Stewart, Kansas City, MO, for Loveridge and Stimson Lumber plaintiffs.
Elizabeth G. McCulley, Kansas City, MO, of counsel.

Meghan S. Largent, St. Louis MO, for Albright plaintiffs. Lindsay S.C. Brinton, St. Louis
MO, of counsel.

James H. Hulme, Washington DC for Aeder plaintiffs. Laurel LaMontagne and Morgan
Pankow, Washington DC, of counsel.

David W. Gehlert, Environment and Natural Resources Division, United States
Department of Justice, Washington DC, with whom was Prerak Shah, Acting Deputy
Assistant Attorney General, for defendant.

                                      OPINION

FIRESTONE, Senior Judge.

I.     INTRODUCTION

       This is the court’s fourth opinion arising from the parties’ cross motions for partial

summary judgment in Albright v. United States (Case No. 16-1565L), Aeder v. United

States (Case No. 18-375L), Loveridge v. United States (Case No. 16-912L), and Stimson

Lumber v. United States (Case No. 18-983L). The plaintiffs in these related cases claim

they are entitled to just compensation under the Fifth Amendment for a taking of their

property in connection with the creation of the Salmonberry Trail in Oregon. The

Salmonberry Trail was established under the National Trails System Act, 16 U.S.C.

§ 1247(d), after the Port of Tillamook Bay Railroad (“POTB”) ceased operations over

portions of its railways in 2007. The POTB obtained its property interest over the

portions of the railways from the Pacific Railway & Navigation Company (“Railroad”).

Authorization to establish the Salmonberry Trail was issued by the government in a

Notice of Interim Trail Use (“NITU”) dated July 26, 2016. A final trail use and rail

                                             2
banking agreement was reached between the POTB and the Salmonberry Trail

Intergovernmental Agency (“STIA”) on October 27, 2017. The plaintiffs claim to own

property underlying the POTB’s railroad right of way and assert that the creation of the

Salmonberry Trail gave rise to a “taking” of their property. The extensive history of this

litigation can be found in the court’ prior decisions and will not be repeated here. See

Loveridge v. United States, 139 Fed. Cl. 122 (2018), recons. partially granted, 2019 WL

495578 (2019).

       The court’s first two opinions addressed whether deeds granted to the Railroad by

prior landowners granted a fee rather than an easement for the right of way at issue.

Where the Railroad obtained a fee interest and thus owned the right of way, the court

found that the plaintiffs could not establish a taking. See Loveridge, 139 Fed. Cl. 122;

Loveridge, 2019 WL 495578. In the court’s recently-issued third opinion, Loveridge v.

United States, 2020 WL 2301463 (Fed. Cl. May 8, 2020), the court determined whether

the trail use and railbanking authorized by the NITU fit within the scope of certain

easements.

       In this fourth opinion, the court addresses the remaining three issues raised in the

parties’ pending cross motions for partial summary judgment: (1) whether plaintiffs must

establish that their easements were abandoned under Oregon law prior to issuance of the

NITU to receive just compensation for a new trail easement on plaintiffs’ fee land rather

than compensation for a trail easement on top of a continuing rail easement; (2) where an

easement for a road, street or other pathway was established between plaintiffs’ property

and the Railroad right of way before the plaintiffs acquired their property and where these

                                             3
plaintiffs’ deeds identify that road, street or other pathway as their property boundary,

can the plaintiffs claim a property interest across the road, street or other pathway to the

centerline of the railroad right of way under Oregon law; and (3) whether plaintiffs who

could not produce a deed or other instrument identifying the interest conveyed to the

Railroad may rely on other evidence and Oregon state law presumptions to prove that the

Railroad obtained an easement and that these plaintiffs own the property underlying the

easement.

       For the reasons discussed below, the parties’ cross motions for partial summary

judgment are GRANTED-IN-PART and DENIED-IN-PART.

II.    LEGAL STANDARDS

       Summary judgment is proper “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 is one that could permit a reasonable jury to enter a verdict in

the non-moving party’s favor, and 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). The party moving for summary judgment bears the initial burden of showing the

“absence of evidence to support the non-moving party’s case.” Crown Operations Int’l,

Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986)).

       Once the moving party has met its burden, the party opposing summary judgment

must respond and “demonstrate by specific factual allegations that a genuine issue of

material fact exists for trial.” Crown Operations, 289 F.3d at 1388 (citing Celotex Corp.,

                                              4
477 U.S. at 322-23. “[M]ere 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). The court must view the

inferences to be drawn from the underlying facts in the light most favorable to the

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986).

III.   DISCUSSION

       The facts and law relevant to each of the three issues are discussed in the separate

sections of the opinion.1

       A.     Abandonment of a Railroad Easement Under Oregon Law
       The court first turns to the government’s argument that the plaintiffs whose

property was burdened by a railroad purpose easement prior to the NITU must

demonstrate that the railroad purpose easement was abandoned prior to the issuance of

the NITU to receive just compensation for the imposition of a trail use easement on

unencumbered land. The court holds, as discussed below, that these plaintiffs need not do

so under well-settled law.

              1.      Undisputed Facts
       The right of way segment at issue involves the POTB railroad line located

between Milepost 775.01 near Banks, Washington County, Oregon, and Milepost 856.08

near Tillamook, Tillamook County, Oregon (“Railroad Line”). See Loveridge, 139 Fed.



1
 Briefing of these issues was completed on April 3, 2020. The parties have not requested oral
argument, and the court has determined that oral argument is not necessary.
                                               5
Cl. at 129. The POTB has not run trains on the relevant portions of the right of way since

at least 2007. See Albright, ECF No. 20 at 3; Albright, ECF No. 24 at 4.

       On May 26, 2016, the POTB filed with the Surface Transportation Board (“STB”)

a “Notice of Intent to Partially Terminate (Abandon) Service” for the railroad segment at

issue here. Loveridge, 139 Fed. Cl. at 129. The Notice stated that “a portion of the rail

line suffered catastrophic damage due to severe storms” and that “POTB has

unsuccessfully sought funding for repairing the line.” See Albright, ECF No. 20-1 at 2. It

further stated “POTB does not believe that it will be able to obtain the necessary funding

to repair and rehabilitate the line” and therefore “POTB is giving this notice of its intent

to terminate service over (fully abandon) the Subject Line.” Id.

       On or about June 17, 2016, the STIA filed with the STB a Statement of

Willingness to Assume Financial Responsibility (“Statement”) to operate a trail on the

relevant segment of the right of way. 139 Fed. Cl. at 129. In its Statement, the STIA

stated that the relevant railroad segment “is suitable for railbanking” and requested that

the STB issue a Public Use Condition and NITU under the National Trails System Act,

16 U.S.C. § 1247(d). Id.

       On July 26, 2016, the STB issued a NITU. Id. After two extensions of the NITU,

on October 27, 2017 POTB and STIA notified the STB that they had entered into a final

trail use and rail banking agreement regarding the relevant railroad segment. Id.

              2.     Relevant Federal and Oregon Law

       “[T]he [STB’s] issuance of a NITU effects a taking . . . when state law

reversionary property interests are blocked . . . .” Caquelin v. United States, No. 2019-

                                              6
1385, 2020 WL 2781657, at *3 (Fed. Cir. May 29, 2020) (quotation and citation omitted).

Thus, to find a taking, the court must determine whether issuance of the NITU in this

case blocked the plaintiffs’ state law reversionary interests, meaning that, but for the

NITU, the railroad’s easement would have been abandoned and the property returned

unencumbered by the railroad’s easement. Castillo v. United States, 952 F.3d 1311, 1315

(Fed. Cir. 2020) (“If, in the absence of a conversion to trail use, state law would provide

for return to a person of full rights in the land, a taking occurs when, pursuant to the

Trails Act, state law reversionary interests are effectively eliminated in connection with a

conversion to a railroad right-of-way to trail use.” (internal quotations and alterations

omitted)).

       The property rights of the parties in this case are analyzed under Oregon law. See

Castillo, 952 F.3d at 1319 (“We analyze the property rights of the parties in a rails-to-

trails case under the relevant state’s law . . . .”). Under Oregon law, an easement can be

terminated by consent, prescription, abandonment, or merger. Cotsifas v. Conrad, 905

P.2d 851, 852 (Or. Ct. App. 1995). “A party claiming abandonment [of an easement]

must show in addition to non-use ‘either [a] verbal expression of an intent to abandon or

conduct inconsistent with an intention to make further use.’” Conner v. Lucas, 920 P.2d

171, 174 (Or. Ct. App. 1996) (quoting Abbot v. Thomson, 641 P.2d 652, 654 (Or. Ct.

App. 1982) (alterations in original)).

              3.     Analysis
       In all four cases before the court for parcels where the Railroad obtained an

easement for railroad purposes, the government has moved for partial summary judgment

                                              7
arguing that if the plaintiffs cannot show that the POTB terminated its railroad easement

by abandonment before the NITU was issued, the NITU simply adds a new easement on

top of the existing railroad easement and just compensation is limited. Albright Def.’s

Mot. for Part. Summ. J. on Scope of Easements (“Albright Def.’s Aband. Mot.”) at 14-15

(ECF No. 120); Loveridge Def.’s Mot. for Part. Summ. J. on Scope of Easements

(“Loveridge Def.’s Aband. Mot.”) at 14-15 (ECF No. 94); Stimson Lumber Def.’s Mot.

for Part. Summ. J. on Scope of Easements (“Stimson Lumber Def.’s Aband. Mot.”) at 10-

11 (ECF No. 24).2 In support, the government argues that, in Oregon, “an easement

holder may be liable in trespass for use of an easement that is inconsistent with its scope”

but that Oregon “easements are not extinguished by inconsistent uses.” See Albright

Def.’s Aband. Mot. at 15 (citing Conner, 920 P.2d at 175 and Cotsifas, 905 P.2d at 852.).

The government therefore contends that if the plaintiffs cannot demonstrate prior

abandonment of the right of way by the POTB under state law before issuance of the

NITU, the plaintiffs are only entitled to just compensation for a railbanking and trail use

easement on a land still encumbered by a railroad purposes easement. Id.

       Plaintiffs respond that the government has misconstrued the law regarding the

Trails Act. Specifically, the plaintiffs argue that they do not have to provide evidence that

the railroad easements had actually terminated through abandonment under state law “to




2
  Although the court’s prior decision addressed the scope of easements conveyed to the Railroad,
it deferred judgment on the above issue. See Loveridge, 2020 WL 2301463, at *14 (indicating
that the court will address “whether under Oregon law the United States is liable for imposing a
new easement on the properties already encumbered by an easement or whether the easements
were terminated prior to the alleged taking” in its subsequent decision).
                                               8
either establish a taking or to prove the nature of their property interest prior to the

NITU.” See Albright Pls’ Resp. at 13 (ECF No. 125) (quoting Rogers v. United States,

101 Fed. Cl. 287, 293 (2011)). Rather, the plaintiffs contend that they are entitled to

compensation for a railbanking and trail use easement on unencumbered land if they can

show that the POTB’s railroad purposes easements would have been extinguished by

abandonment under Oregon law but for the United States’ issuance of the NITU. Id.; see

id. at 4 n.8.

       The court agrees with the plaintiffs that whether the easements were legally

terminated prior to issuance of the NITU is not relevant to determining the nature of the

property interest taken by the United States in connection with the easements limited to

railroad purposes. The plaintiffs’ claim before the court is rooted in the Trails Act’s

preemption of state property laws for terminating easements through abandonment. See

Caquelin, 2020 WL 2781657, at *9 (holding that the taking occurs at “the time as of

which, had there been no NITU, the railroad would have abandoned the rail line, causing

termination of the easement that the NITU continued by law”). This is because upon

issuance of the NITU, “the STB retains jurisdiction for possible railroad use and the

abandonment of the corridor is blocked.” Caldwell v. United States, 391 F.3d 1226, 1229

(Fed. Cir. 2004). Therefore, where plaintiffs can show that POTB would have abandoned

its easement but for the Trails Act, the plaintiffs’ “measure of damages for just

compensation must be the difference between the value of plaintiffs’ land unencumbered

by a railroad easement and the value of plaintiffs’ land encumbered by a perpetual trail



                                               9
use easement subject to possible reactivation as a railroad.” Raulerson v. United States,

99 Fed. Cl. 9, 12 (2011).

       This court has uniformly rejected the government’s contention to hold otherwise.

See, e.g., Ladd v. United States, 110 Fed. Cl. 10, 13 (2013) (“Plaintiffs’ reversionary

interests are determined in this court by subtracting the value of plaintiffs’ land with

easements for recreational trails, from their land without easements––unencumbered

property.”); see also Balagna v. United States, 138 Fed. Cl. 398, 405 n.4 (2018) (“The

government is thus wrong to suggest that, when it comes to valuation, it is somehow

relevant that Plaintiffs’ land has long been encumbered by a railroad corridor. . . . For

valuation purposes, the Court treats the property as though the railroad easement never

existed.” (quotation omitted)).3 The court declines to depart from this approach.

       Having determined that plaintiffs need only demonstrate that the easements

limited to railroad purposes would have been terminated by abandonment, the court

considers the undisputed facts under the Oregon law governing abandonment. It is

undisputed that the POTB has not operated rail traffic on the relevant railroad track since

at least 2007. On May 26, 2016, the POTB filed with the STB a Notice of Intent to

Partially Terminate (Abandon) Service for the railroad segment at issue here. It is also

undisputed that the Notice indicated that the POTB would not be able to repair damage to




3
  Indeed, the government acknowledges that this court has considered and rejected this argument
in several cases. See Albright Def.’s Aband. Mot. at 14 (citing Toscano v. United States, 107
Fed. Cl. 179 (2012); Geneva Rock Prods, Inc. v. United States, 107 Fed. Cl. 166 (2012)).
                                              10
the Railroad Line at issue and rehabilitate the Line and declared the POTB’s “intent to

terminate service over (fully abandon) the Subject Line.” Albright, ECF No. 20-1 at 2.

       The POTB’s failure to operate trains on the segment since 2007, together with its

statement to the STB of its intent to “fully abandon” the segment for rail service, would

have been sufficient to terminate the easements limited to railroad purposes by

abandonment under Oregon law because no other use of the segment would have

remained. In Oregon, “[a] party claiming abandonment [of an easement] must show in

addition to non-use ‘either [a] verbal expression of an intent to abandon or conduct

inconsistent with an intention to make further use.’” Conner, 920 P.2d at 174. Here, the

POTB has not used the relevant railroad purposes easements for years, and expressed its

intent to abandon rail service in the STB Notice. Id.; see also Caquelin, 2020 WL

2781657, at *9 (applying Iowa law, and holding that “[t]he railroad filed an application to

abandon, indicating an affirmative intent to abandon”). Thus, the court finds that the

plaintiffs have presented sufficient evidence of an expression of an intent to abandon the

rail line prior to the issuance of the NITU and that issuance of the NITU interfered with

the POTB’s intent to abandon the rail line. The government has not identified “any

evidence at all affirmatively indicating that the railroad would have delayed abandonment

. . . had there been no NITU to interfere with the grant of authority of abandonment” that

would otherwise have taken effect. Caquelin, 2020 WL 2781657, at *9. Thus, plaintiffs

have established a taking as of the issuance of the NITU.

       In view of the foregoing, it is irrelevant that inconsistent use is not grounds for

termination of an easement in Oregon. Here, the evidence established that POTB had

                                             11
ceased to operate the line in 2007 and after consideration had decided to finally terminate

operations and to fully abandon railroad use on the relevant segment. The government

has not presented any evidence that the POTB would not have abandoned rail service

over the segment. Rather, all evidence supports that the POTB would have abandoned

rail use over the segment and that any railroad purpose easements would have reverted

back to the plaintiffs that granted them, but for the issuance of the NITU. The

government’s motion for partial summary judgment regarding the measure of just

compensation therefore is denied. Just compensation must be measured assuming the

subject property was not encumbered by a railroad easement.

         B.     Properties Where There Is an Intervening Road Between the Plaintiffs’
                Property and the Railroad Right of Way
         The court now turns to the plaintiffs that own properties where there is an

intervening road, street, or other boundary between the plaintiffs’ property and the

railroad right of way. As discussed below, the court finds that, under Oregon law, these

plaintiffs own only to the centerline of the intervening road, street, or other boundary and

have not established a property interest in the railroad right of way to pursue a takings

claim.

                1.     Undisputed Facts

         The Loveridge plaintiffs’ motion for summary judgment claims that they own the

underlying fee to the centerline of the right of way for the below-listed properties.

Loveridge Pls.’ Supp. Summ. J. Mot. and Mem. On Adj. Issues (“Loveridge Pls.’ Adj.

Mot.) (ECF No. 102). Plaintiffs support their claims with undisputed evidence of the


                                              12
conveyance deeds granted by prior landowners to the Railroad for the right of way

between 1900 and 1910, as well as later documentation regarding the creation of a public

road, street or other pathway adjacent to the Railroad’s right of way in the form of

resolutions providing notice to the public about the County’s plan to construct the road

and recommendations that a road be established with damages paid to the abutting

landowner. Plaintiffs contend that under Oregon law even if their property is bounded by

a road and not the railroad right of way, so long as a prior landowner granted an easement

to the railroad and owned the property at the time the public road was created, the

plaintiffs can claim ownership across the intervening road up to the railroad right of way.

       The government argues in its cross motion that plaintiffs whose property boundary

is a road, street, or other pathway and not the railroad right of way cannot prove a taking

based on deeds that show their predecessor deeded property to the Railroad and for the

road or street. Def.’s Opp. & Cross Mot. for Part. Summ. J. on Adjacency Issues

(“Loveridge Def.’s Adj. Mot.”) (ECF No. 107). The government argues that under

Oregon law current landowners who own property bounded by a road, street, or pathway

own only to the centerline of the road or street and cannot claim any ownership of the

railroad right of way.

       The following chart summarizes the undisputed evidence:

    Claimant and Conveyance         Intervening    Property Description in
    Claim No.    Deed and           Road and       Modern Deed or Plat
                 Date to the        Documentation Describing Property
                 RR                                Boundary
     Bay Air LLC Whitney Co.        Idaville Rd.   “along the Northerly Right of
     Claim No.   7/84 (5.29.1907)                  Way boundary of the County
     47.D                           Journal J/Page Road to Idaville . . .”

                                            13
                              250 (10.12.1920)
Stephen C.     Hammond         Foss Rd.        The deed describes the property
and Genene     Lumber                          as “Parcel 2, Partition Plat 1992-
A. Grimes      23/308          Road Survey-    22, Tillamook County, Oregon.”
Claim No. 77   (3.11.1910)     Book B/Pg. 194 Plat 1992-22 describes the
                               (4.8.1908)      boundary as follows:
                                               “Commencing at a point which is
                               Road Book 3/Pg. . . . on the north right-of-way line
                               250 (11.4.1908) of Foss-Batterson County Road;
                                               thence along said North right-of-
                                               way line ……….”
Terry and     Hammond          Foss Rd.        “on the North right-of-way line of
Michelle Hart Lumber                           Foss-Batterson
Claim No. 78 23/308            Road Survey-    County Road, . . . thence along
              (3.11.1910)      Book B/Pg. 194 said North Right-of Way
                               (4.8.1908)      line……..”

                               Road Book 3/Pg.
                               250 (11.4.1908)
Joseph         Prescriptive    Highway 101     “to the North right-of-way line of
Cadwell        Easement (no                    Highway 101, thence
Claim No.      source deed     Road Resolution Northwesterly along the North
130            identified) &   388 (12.1.1926) right-of-way line of Highway
               Chance 5/449                    101……….”
               (fee)
Keith Chartier Hammond       Foss Rd.            “true point of beginning of this
Claim No.      Lumber 23/308 (constructed in     parcel . . . being on the Northerly
134            (3.11.1910)   1920)               right-of-way line of the County
                                                 Road, . . . along the North right-
               Kunz 13/15      Road Survey-      of-way line of the County
                               Book B/Pg. 194    Road………”
                               (4.8.1908)

                             Road Book 3/Pg.
                             250 (11.4.1908)
Deborah        Hammond       Foss Rd.        “lying North of the Northerly right
Nitzche        Lumber 23/308 Road Survey-    of way of Foss-Batterson County
Claim No.      (3.11.1910)   Book B/Pg. 194 Road[.]”
170                          (4.8.1908)
                               Road Book 3/Pg.
                               250 (11.4.1908)

Lawrence       Hammond       Foss Rd.        The deed describes the
Wood           Lumber 23/308 Road Survey-    property as “Parcel 1,
Claim No.      (3.11.1910)   Book B/Pg. 194
201                          (4.8.1908)      Partition Plat 1992-022 in
                                             Tillamook, County,
                             Road Book 3/Pg. Oregon ......... ”
                             250 (11.4.1908) Plat 1992-022 describes the
                                             property boundary as
                                             “[c]ommencing at a point

                                      14
                                                        which is . . . . . . .on the north
                                                         right-of-way line of Foss-
                                                         Batterson County Road; thence
                                                         along said North right-of-way
                                                         line. . . . . . .”
     David P.        Whitney Co.      Idaville Rd.       “Beginning at ¾ inch iron pipe in
     Reber,          7/84                                the apparent centerline of County
     Claim No.       (5.29.1907)                         Road, . . . thence continuing along
     204.B                           Journal J/Page      the apparent centerline of said
                                     250                 road…….”
                                     (10.12.1920)
     Birthe          Byrom 5/310     Highway 101 (E. “Beginning at a point . . .
     Schweter                        Garibaldi Dr.)  on the Northerly line of
     Claim No.                                       the Coast Highway.”
     205                             Road Resolution
                                     175, parcel 2
                                     NARA map 23,
                                     parcel 31

     Lori J. &       Beals 18/41     N. Miller Street   The deed describes the property as
     Richard K.                                         “Lot 1 and the North 5 feet of Lot
     Ruffo Trust                     Plat               2, Block 49, BEALS’ ADDITION
     Claim No.
     103.A                                              TO LAKE LYTLE.” The plat for
                                                        Beals’ Addition shows a street
                                                        (Davis Avenue) as the border for
                                                        parcel 103.A.
     Carol           Beals 18/41     N. Miller Street   The deed describes the property as
     Woodbridge                                         “Lot 5, Block 49, BEALS’
     Claim No.                       Plat               ADDITION TO LAKE LYTLE[.]”
     202
                                                        The plat for Beals’ Addition shows
                                                        a street (Davis Avenue) as the
                                                        border for parcel 202.
     Florian Davis J.F. Carstens     Banks-Veronia      “to the Northeasterly
     Claim No.     72/530            State Trail        right-of-way line of
     210                                                [Burlington
                                     J.F. Carstens       Northern] Railroad”
                                     72/5304

Loveridge Pls.’ Adj. Mot. at 2, 4-5 and Loveridge Def.’s Adj. Mot. at 2-3.




4
 The Carstens deed granted a right of way to the Railroad and a second right of way which
became the Banks-Veronia State Trail in 1974. See Loveridge Pls.’ Adj. Mot. at 10.
                                              15
       The disputed issues of fact include whether the property interest conveyed to

create the intervening road or street was a fee interest or easement. The plaintiffs claim

that they have provided sufficient evidence to presume that an easement was conveyed

for the establishment of a public road or street under Oregon law. Loveridge Pls.’ Adj.

Mot. at 6 (citing Lankin v. Terwilliger, 29 P. 268 (Or. 1892)). The government disputes

whether the evidence relied upon by plaintiffs indicates that conveyance for the

intervening road was an easement. Loveridge Def.’s Adj. Mot. at 7. As discussed below,

the court need not address this dispute and assumes without holding that the conveyances

for these roads or streets was an easement.

              2.      Relevant Federal and Oregon Law
       “To demonstrate a cognizable property interest in a Trails Act case, a plaintiff

must establish ownership in land adjacent to the railroad line described in the NITU and

that ownership in that land can be traced to the railroad company’s acquisition.”

Anderson v. United States, 147 Fed. Cl. 661, 671 (2020) (citing Brooks v. United States,

138 Fed. Cl. 371, 377 (2018)). The above-noted plaintiffs can show that a prior owner of

their land granted a deed to the Railroad for a right of way. However, the deed from the

plaintiffs’ predecessor to the plaintiffs identifies a road, street or other pathway as the

boundary of their property.

       Under Oregon law, statutory and common law presumptions apply regarding the

ownership of property underlying a road or street adjacent to a property. Oregon law’s

centerline presumption provides that the adjacent landowners on either side of the road

each own the underlying fee to the centerline of the road. See Or. Rev. Stat. § 93.310(4)

                                              16
(“When a road or stream of water not navigable is the boundary, the rights of the grantor

to the middle of the road, or the thread of the stream, are included in the conveyance,

except where the road or bed of the stream is held under another title.”).

          The centerline presumption in Oregon statutory law is consistent with Oregon

common law. See Howe v. Greenleaf, 320 P3d 641, 646 (Or. Ct. App. 2014) (recognizing

that the statute is a codification of common law). As relevant here, the presumption

applies where a road is dedicated through the property of a single owner by creating

distinct parcels: “The creation of any dedicated road through the property of a single

owner has the practical effect of creating distinct parcels, although in common

ownership, on both sides of the dedicated road.” Id. at 648. In this situation, the

conveyance of one of the distinct parcels includes only to the the centerline of the road.

Id. at 648; see also Coussens v. Stevens, 113 P.3d 952, 959-60 (Or. Ct. App. 2005) (citing

cases).

          Oregon law recognizes an exception to the centerline presumption “where the

dedicated road runs between two tracts of land under different ownership and the road

was wholly dedicated from only one of the owners’ tracts.” Howe, 320 P.3d at 647

(emphasis added). In that case, “the entire width of the road transfers with the abutting

property from which it was wholly dedicated.” Id. (emphasis added); see id. at 648

(declining to apply this exception because “[a]t the time that Skyland Drive was

dedicated, the Smiths owned all of the property on both sides of the road and owned the

entire fee underlying the road” (emphasis added)).

                3.     Analysis

                                             17
       Here, the plaintiffs argue that so long as they can establish that the prior

landowner conveyed the entire interest necessary for the road placed between their

property and the railroad right of way, the court should presume that the current owner

owns the land under the entire road – not just to the centerline. Therefore, plaintiffs

argue, they can establish that they own the property adjacent to the railroad right of way,

a necessary condition for just compensation. Loveridge Pls.’ Adj. Mot. at 3; Loveridge

Pls.’ Adj. Reply at 3-5 (ECF No. 108). The plaintiffs contend that the presumption in

Oregon law that two parcels are created––one on either side of the roadway when the

road was created––should not bar their claim if their predecessor owned the entire tract at

the time the road was established. In support of their position, the plaintiffs cite cases in

this court applying the law of other states that also involved intervening roadways. Id. at

5 (citing Haggart v. United States, 108 Fed. Cl. 70 (2012) (applying Washington law)

and Hardy v. United States, 127 Fed. Cl. 1 (2016) (applying Georgia law)). In both of

those cases, this court held that where an intervening road was granted by the plaintiffs’

predecessors as an easement, the plaintiffs, although not directly adjacent to the railroad

right of way, were presumed to own the railroad right of way to the centerline. Haggart,

108 Fed. Cl. at 85; Hardy, 127 Fed. Cl. at 15-16.

       The government responds that the plaintiffs’ reading of Oregon law is

unsupported. Loveridge Def.’s Adj. Mot. at 7. The government argues that for 11 of the

parcels with an intervening boundary5 the plaintiffs have established only a presumption


5
 Bay Air LLC (47.D), Stephen C. and Genene A. Grimes (77), Terry and Michelle Hart (78),
Joseph Cadwell (130), Keith Chartier (134), Deborah Nitzche (170), Lawrence Wood (201),
                                              18
that they own to the centerline of the road.6 The government argues that these plaintiffs

have not established that they own the entire roadway and thus have failed to show that

their properties are adjacent to the railroad right of way.

       According to the government, under Oregon law, if property is acquired for a road

then two distinct parcels are created, with one parcel on each side of the road owning up

to road’s centerline. Def.’s Adj. Mot. at 4. The government further contends that, under

Oregon law, the conveyance of one parcel does not include the conveyance of the other

unless expressly stated. Id. This view is consistent, the government argues, with the

plaintiffs’ ownership deeds which “explicitly use the intervening roads as boundaries or

convey only to the centerline of the intervening roads.” Id. at 4-5.

       The government argues that the pending case is similar to BHL Properties LLC v.

United States, 135 Fed. Cl. 222 (2017), which involved Wisconsin law. In BHL

Properties, the plaintiff sought to show that he owned the entirety of the property

underlying an intervening road by relying, in part, on the deed of a prior landowner

conveying the easement for the entire road. Id. at 229. The court found that the prior deed



David P. Reber (204.B), Birthe Schweter (205), Lori J. & Richard K. Ruffo Trust (103.A), and
Carol Woodbridge (202).
6
  The government contends that the tax documents provided regarding the Florian Davis (210)
parcel and the intervening state trail indicate that the landowner does not own fee title of land
underlying the state trail easement and thus cannot establish a taking claim. Def.’s Adj. Mot. at
8. The plaintiffs respond that whether the easement is under a separate tax parcel is “non-
responsive and irrelevant” under their application of the centerline presumption to their
predecessor’s land. See Loveridge Pls’ Adj. Reply at 3 n.9. The court agrees with the government
that the tax documents are relevant in determining the bounds of plaintiffs’ current property and
prove that plaintiffs have not established ownership of any land directly adjacent to the railway
for this parcel.
                                               19
was “sufficient to establish that [the prior owner] once owned the land under [the road] in

fee simple” but that “nothing in the record show[ed] that [the current plaintiff] is in the

chain of title as successor-in-interest to [the prior landowner] with respect to the land

underlying [the road.]” Id. Even if the centerline presumption was applied, the court

concluded that the plaintiff could claim ownership to the center of the intervening road

only. Id. The court concluded that it did not matter that a prior individual owned the

entire parcel under the road adjacent to the railroad right of way without chain of title

linking the plaintiff to that predecessor. Id. The court explained that without “evidence of

conveyances that link [the prior owner’s] retained interest” in the land underlying the

road to the plaintiff, “it is thus entirely possible that someone other than [the plaintiff]

(such as, for example, a neighbor whose land also abuts [the road] either to the north or

the south) is the successor-in-interest . . . as to the land [the plaintiff] claims he owns.” Id.

Here, as well, the government argues, it is entirely possible that a neighbor whose land

also abuts the intervening road owns the land at issue or that ownership was reserved by a

prior landowner.

       After considering the applicable Oregon law, the court finds that the above-

identified plaintiffs have established only that they own to the centerline of the road,

street or pathway on the boundary of their property and not to the railroad right of way.

To begin, the court rejects the plaintiffs’ contention that the centerline presumption

should be applied “at the time the railroad’s right-of-way was constructed,” regardless of

the establishment of the intervening roadway. Loveridge Pls.’ Adj. Reply at 4. A Trails

Act taking occurs “when a railroad right-of-way is converted to interim trail use” and

                                               20
state law reversionary property interests “that would otherwise vest in the adjacent

landowners are blocked from so vesting.” Caldwell, 391 F.3d at 1233. Therefore, only the

ownership interests of the plaintiffs at the time the NITU was issued is relevant to

deciding liability.

       In considering the ownership interests of the plaintiffs at the time the NITU was

issued, and assuming but not deciding that the intervening roads, streets, or other

pathways granted by the prior landowners are easements, the court finds that plaintiffs

have failed to show that they own more than to the centerline of the intervening road,

street or pathway identified as a boundary in their deeds. As discussed above, Oregon law

presumes that where a road is built on a single grantor’s land, two parcels are created

with one parcel on each side of the road’s centerline. See Howe, 320 P.3d at 648. Only

where there are two owners, where each owns a parcel on either side of the road and

where only one provides the land for the road, does Oregon law presume that the party

that provided the land for the entire road owns all of the property underlying the road. Id.

at 647. Here, plaintiffs presented no evidence of two owners at the time the roads were

created. Without this evidence, it must be presumed that the parcel closest to the railroad

right of way is now owned by someone other than the plaintiffs. Id. (“[T]itle to half the

road continues to presume to pass with the conveyance of an abutting property whether

the conveyance is made while the road is in existence or after the abutting road is

vacated.”); Coussens, 113 P.3d at 959-60 (concluding that where the plat shows a road as

a western boundary, the grantor reserved for himself the land underlying the western half

of the road and land west of the road).

                                             21
       To defeat to the government’s motion for summary judgment, these plaintiffs

needed to do more than produce documents regarding the creation of a public road on a

prior landowner’s property. Contrary to plaintiffs’ contentions, the court cannot presume

that the property underlying the entire road belongs to them because it once belonged to a

prior landowner where the modern deeds show that the property conveyed to the

plaintiffs is bounded by the intervening road. Plaintiffs had to produce evidence to show

that the land on the other side of the centerline of the road and directly adjacent to the

railroad right of way was also conveyed to them. See BHL Props., 135 Fed. Cl. at 229.

Plaintiffs have failed to do so for any of the subject deeds, which show only that their

property is bounded by a road and do not expressly state that the land underlying the road

was conveyed to them. For this reason, the court cannot find that the plaintiffs’ own

property adjacent to the railroad right of way or to the centerline of the railroad right of

way. Plaintiffs’ motion for partial summary judgment on this issue is denied and the

government’s motion for partial summary judgment is granted.

       C.     Properties Where a Source Deed for the Railroad’s Right of Way Is
              Not Before the Court

       The court now turns to the five Albright parcels and ten Loveridge parcels where

the parties have not identified an instrument of conveyance of a right of way to the

Railroad. As discussed below, the court finds that under Oregon law, where the only

available evidence indicates that the property was acquired by condemnation, adverse

possession, franchise, or vacation, the Railroad is presumed to only have acquired an

easement for Railroad purposes, but where the only available evidence indicates that the


                                              22
Railroad possessed its right of way in fee, the Railroad is presumed to have acquired its

interest in fee.

               1.     Undisputed Facts

       At issue in Albright are five parcels belonging to James A. Smejkal, Bel Cochran,

LLC, Cochran 2 LLC, Three Bridges, LLC, and Oregon Coast Hospitality Investments,

LLC, for which the parties have not identified an instrument of conveyance of a right of

way to the Railroad.7 Albright Mot. for Partial Summ. J. (ECF No. 118) (“Albright Pls.’

Mot.”). These plaintiffs have instead provided the court with (a) the bounds of the

plaintiffs’ modern deeds, (b) tax records showing that the plaintiff owned the land on July

26, 2016 (the date the NITU was issued), and (c) a copy of any maps kept by the National

Archives and Records Administration prepared by the Interstate Commerce Commission

(“ICC”), referred to as “Val Maps,” noting the basis for the Railroad’s property interest.

The Val Maps state “Registrar of Title” in connection to the James A. Smejkal, Bel

Cochran LLC, and Cochran 2 LLC parcels and “No Record” in connection to the Three

Bridges, LLC and Oregon Coast Hospitality Investments LLC parcel.

       In addition, before the court is the Washington County Department of Assessment

and Taxation Certificate of Withdrawal dated June 28, 1972, which describes the

Railroad as the owner “in fee simple” of portions of its corridor adjacent to the James A.

Smejkal, Bel Cochran, LLC, and Cochran 2 LLC parcels. See Albright Def.’s Resp. in


7
  The government now concedes that the Howell Tree Farm’s Parcel 3N400C005700 was
acquired through a condemnation proceeding which conveyed an easement limited in scope to
railroad purposes. See Albright J. Stipulation Regarding Title Matter (Dec. 10, 2019) (ECF No.
134).
                                              23
Opp. to Pls.’ Mot. (“Albright Def.’s Resp.) at 3 (ECF No. 126). The Certificate of

Withdrawal states “[a]s the owner in fee simple of the . . . real property [described in the

certificate] . . . The Pacific Railway and Navigation Company . . . has filed application

for the withdrawal of title to said real property from the registry system, and for restoring

or changing the same back to the recording system.” Id. at 3 (citing ECF No. 24-11).

       Ten parcels are at issue in Loveridge. Loveridge Mot. for Partial Summ. J. (ECF

No. 91) (“Loveridge Pls.’ Mot.”). These parcels belong to Daniel Yeoman (39.A-C), Old

Mill Investment LLC (43.D), Carol H. Trustee (59.A), Leonard C. & Kathleen A. Parker

(101), Harvey Strong (112.B), John & Margie Anderson Living Trust (121), Douglas F.

Brown (126), and Joseph Cadwell (130). The plaintiffs have prepared a map for each

parcel from an overlay of the applicable Val Map with the county’s parcel report. Id. at 2.

The Val Maps state “No Record at Hand” for the Old Mill Investment LLC (43.D),

Harvey Strong (112.B), Douglas F. Brown (126), and Joseph Cadwell (130) parcels. Id.

at 3-4. The Val Maps reference a “Condemnation” proceeding in connection to the Daniel

Yeoman (39.A-C), Leonard C. & Kathleen A. Parker (101), and John & Margie

Anderson Living Trust (121) parcels. Id. at 7. The Val Map also states “Vacation” for a

portion of the Leonard C. & Kathleen A. Parker (101) parcel. Id. at 9. Finally, the Val

Map states “Franchise” for portions of the Carol H. Trustee (59.A) parcel. Id. The

plaintiffs subpoenaed the POTB to request all service conveyance instruments listed on

the Val Maps, and the POTB provided a list of all the conveyance instruments it had

related to the railroad line. Loveridge Pls.’ Mot. at 6. POTB’s list did not include any

conveyance instruments for the parcels at issue. Id. In addition, the plaintiffs provide a

                                             24
letter from the Fidelity National Title Insurance Company indicating that a search was

conducted regarding the three Loveridge condemnation claims, and no documents could

be provided after a “reasonably diligent search of available records.” Id. at Ex. I (ECF

No. 91-9).

                       2.      Relevant Federal and Oregon Law

   One of the “determinative issues for takings liability” is “who owns the strip of land

involved, specifically, whether the railroad acquired only an easement or obtained a fee

simple estate.” Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir.

2009). The court has already determined in these cases whether the Railroad acquired an

easement or fee for properties where there is a source deed conveying the right of way to

the Railroad. See Loveridge, 139 Fed. Cl. at 127. The liability issue for the properties

described in this section of this opinion is whether the Railroad is presumed to have

acquired no more than an easement under Oregon law where there is no source deed and

the Val Maps for the parcels at issue reference condemnations, no record, franchise,

vacation, or a registrar of title.

       Oregon courts have recognized that the “general rule regarding the interest taken

in a right-of-way condemnation proceeding by a railroad is that, unless otherwise

expressly provided by statute or in the instrument of taking, only an easement is

acquired.” Egaas v. Columbia Cty., 673 P.2d 1372, 1375 (Or. Ct. App. 1983) (citing

Cappelli v. Justice, 496 P.2d 209 (Or. 1976) and 3 Nichols, Law of Eminent Domain 9-6

to 9-10, § 9.2 (3d ed rev. 1975)). In addition, where Oregon statutes governing railroad

right of way condemnations allowed railroad companies to take “whatever estate was

                                             25
necessary to accomplish the railroad’s purpose,” the Oregon (and other) courts have

determined what the railroad acquired at a condemnation proceeding in light of what was

necessary for the railroad’s purpose, based on the language of the condemnation

judgment. Egaas, 673 P.2d at 1375.

       When a railroad acquires a right of way through a franchise agreement or the

vacation of a public road, the railroad appropriates its property interest from a public

road. This arises from the local government’s power to grant “exclusive privileges or

franchises” over public rights of way. Parkhurst v. City of Salem, 32 P. 304, 304-05 (Or.

1893); see also McQuaid v. Portland & V. Ry. Co., 22 P. 899, 902 (Or. 1889) (explaining

that a governmental body is the owner of the “franchise” in a public right of way).8 In

addition, when the local government acquires property for a public road, Oregon courts

presume that the government acquired only an easement. Lankin v. Terwilliger, 29 P.

268, 269 (Or. 1892) (“By the location of [a] county road over the lands of [private

property owners], the public [acquires] no more than a right of way as an easement or

servitude, with the powers and privileges incident thereto.”).

                       3.      Analysis


8
 The authority of a railroad to appropriate public roads is set forth by Or. Rev. Stat.
§ 772.105(1):

       When it is necessary or convenient in the location of any railway to appropriate any part
       of any public road, street, alley or public grounds not within the corporate limits of a
       municipal corporation, the county court of the county wherein such road, street, alley or
       public grounds is located, may agree with the corporation constructing the road, upon the
       extent, terms and conditions upon which the same may be appropriated or used, and
       occupied by such corporation. If the parties are unable to agree, the corporation may
       appropriate so much thereof as is necessary and convenient in the location and
       construction of the road.
                                                 26
       The plaintiffs in Albright and Loveridge have moved for partial summary

judgment regarding the fifteen parcels for which no instrument of transfer from the

landowner to the Railroad has been located. Instead, the plaintiffs rely on secondary

evidence in the form of Val Maps prepared by the ICC. The plaintiffs argue that pursuant

to these Val Maps, where (1) the Railroad acquired its property through “condemnation,”

(2) where there is “no record” of an instrument of transfer, (3) where the Railroad

acquired its property through “vacation” or “franchise”, and (4) where the Railroad’s

conveyance is held in the “Registrar of Title,” Oregon law presumes that the Railroad

acquired at most an easement. Albright Pls.’ Mot. at 4-5; Loveridge Pls.’ Mot. at 4, 7, 9.

       The government has moved for partial summary judgment for all of these parcels

claiming that the Val Maps are insufficient to establish the Railroad’s interest in its right

of way, and that plaintiffs have misconstrued the presumptions applicable under Oregon

law. Albright Def.’s Resp. at 6-7, Loveridge Def.’s Resp. at 2-3. In addition, for the three

parcels in Albright where the government has found the Railroad’s 1972 Certificate of

Withdrawal, the government argues the evidence establishes that the Railroad obtained a

fee interest and thus plaintiffs cannot establish liability. Albright Def.’s Resp. at 2-4.

       Before turning to the plaintiffs’ arguments, the court must address the

government’s threshold contention that Val Maps are not by themselves sufficient to

establish the scope of the Railroad’s interest and thus government liability. See Albright

Def.’s Resp. at 7 (citing Amaliksen v. United States, 55 Fed. Cl. 167, 175 (2003)). While

the court agrees that it may be inappropriate to rely on Val Maps to determine ownership

where the language in an available source deed is clear, Amaliksen, 55 Fed. Cl. at 172,

                                              27
this court has relied on Val Maps to determine takings liability where “neither party has

provided any evidence of a deed.” See, e.g., Mills v. United States, 147 Fed. Cl. 339, 348

(2020). In addition, the plaintiffs have sought additional documentary evidence by

issuing a subpoena to the POTB and having the Fidelity National Title Insurance

Company conduct a search regarding the condemnation claims. The “[p]laintiffs have

done what they can, and it is thus inappropriate to speculate, as defendant does, that the

railroads might have obtained their interest by fee.” Id. As such, the court may rely on

Val Maps as the only available evidence of the Railroad’s property interest and thus the

government’s potential liability.

       Having agreed to accept the Val Maps as evidence of the Railroad’s property

interest, the court turns first to the Daniel Yeoman (39.A-C), Leonard C. & Kathleen A.

Parker (101), and John & Margie Anderson Living Trust (121) parcels for which the Val

Maps reference condemnation. Relying on Egaas, 673 P.3d at 1374, the plaintiffs argue

that the Railroad is presumed to have obtained only an easement in condemnation

proceeding where there is “no evidence to suggest the railroad” acquired or needed more

than an easement. Loveridge Pls.’ Mot. at 7. The government argues that the plaintiffs’

reliance on Egaas is misplaced because that case involved the interpretation of an actual

condemnation judgment and thus the holding does not apply to the current case. See

Loveridge Def.’s Resp. at 4-5. The government contends that where there is no

condemnation judgment in evidence, there are no applicable presumptions regarding the

Railroad’s ownership interest and the plaintiffs have failed to meet their burden of proof.

Id.

                                             28
       The court agrees with the plaintiffs that Egaas articulates the “general rule” in

Oregon that a railroad acquires only an easement in a condemnation proceeding “unless

otherwise expressly provided by statute or in the instrument of taking.” 673 P.2d at 1375.

The Egaas court recognized that this general rule is consistent with Oregon statutes

which “authorized a railroad to take whatever interest, fee or easement, in the

appropriated land that was necessary to accomplish its purposes.” Id. (emphasis added).9

The Egaas court then applied this presumption to interpret ambiguous language in a

condemnation judgment. Id. Eventually, the Oregon court concluded that an easement

was acquired because “[a]n easement was all that was necessary for railroad purposes in

this instance.” Id.

       The court finds that the reasoning in Egaas is applicable to this case. Although

there is no record of the condemnation judgment before the court for the properties

identified as having been “condemned” on the Val Map, the court can presume absent

any evidence to the contrary that the Railroad acquired only that which was necessary for

its railroad purpose, namely an easement. See id. (“[T]he condemnation statutes limit the

nature of the estate taken to that necessary to accomplish railroad purposes.”). The court

thus holds that the Railroad is presumed to have acquired at most an easement through

condemnation in connection to the Daniel Yeoman (39.A-C), Leonard C. & Kathleen A.

Parker (101), and John & Margie Anderson Living Trust (121) parcels. The plaintiffs’



9
 The court in Egaas explained that this limitation on a railroad company did not necessarily
apply in cases of a voluntary conveyance. 673 P.2d at 1375. Where there is a voluntary
conveyance, the extent of the property interest is based on the intent of the parties. Id.
                                               29
motion for partial summary judgment regarding these parcels is granted and the

government’s motion is denied.

       The court next turns to the Three Bridges, LLC, Oregon Coast Hospitality LLC,

Old Mill Investment LLC (43.D), Strong Harvey (112.B), Douglas F. Brown (126), and

Joseph Cadwell (130) parcels where the Val Map indicates that “no record” is available

regarding a conveyance to the Railroad. Here, the plaintiffs argue if no evidence of a

conveyance instrument exists, the court should presume that the Railroad obtained a

prescriptive easement over the right of way. Plaintiffs argue that this result is consistent

with the presumption applied in other states,10 and is a proper extension of the

presumptions applied by Oregon courts regarding other rights of way.11 See Loveridge

Pls.’ Mot. at 4; Albright Pls.’ Mot. at 10-11. The government responds that because no

Oregon case has addressed the rights of a railroad where there is no source deed, the

court cannot presume the Railroad obtained at most an easement. See Loveridge Def.’s

Resp. at 3. As such, the government argues that even if there is no deed, plaintiffs have

failed to identify sufficient evidence to meet their burden of proof. Id.



10
   In other jurisdictions, a right of way obtained by prescriptive use of land for railroad purposes
has been held to provide only an easement. See Schulenberg v. United States, 137 Fed. Cl. 79, 98
(2018) (railroad obtained prescriptive easement where parties could not locate any original
source deed under Indiana law); Dana R. Hodges Trust v. United States, 101 Fed. Cl. 549, 560
(2011) (finding that where no documents existed, the railroad could not obtain any interest
greater than a prescriptive easement under Michigan law); Ybanez v. United States, 98 Fed. Cl.
659, 666 (2011) (applying Texas law to conclude that “[a] railroad that uses a strip of land for
railroad operations only, as if it had condemned the land for railway use, cannot acquire more
than an easement for railroad purposes”).
11
  As discussed above, where the public acquires a right of way for a road, it is presumed that
only an easement was acquired. See Lankin, 29 P. at 269.
                                                30
       Having carefully considered the parties’ arguments, the court concludes that the

Railroad is presumed to have only acquired an easement where the Railroad acquired its

right of way through prescription. The court finds it appropriate to extend the statutory

limitations relied on in Egaas, regarding the condemnation of railroad right of ways, to

circumstances where a railroad acquires its right of way through prescription. See 673

P.2d at 1375. To hold otherwise would mean that a railroad company could acquire title

through prescription where it could not through a condemnation proceeding. Moreover,

as the plaintiffs argue, limiting the interest conveyed to an easement is consistent with

Oregon law applicable to other right of ways. See Lankin, 29 P. at 269. Here, where the

available evidence in the form of Val Maps indicates that there was no record of a

conveyance to the Railroad, the plaintiffs have presented sufficient evidence through the

Val Map to rely on the Egaas presumption in connection the Three Bridges, LLC,

Oregon Coast Hospitality LLC, Old Mill Investment LLC (43.D), Strong Harvey (112.B),

Douglas F. Brown (126), and Joseph Cadwell (130) parcels. The plaintiffs’ motion for

partial summary judgment for these parcels is granted, and the government’s motion is

denied.

       The court now considers the Kathleen A. Parker (101) and Carol H. Trustee (59.A)

parcels, where the Val Maps state that the Railroad acquired its property rights by

“Franchise” or “Vacation.” The plaintiffs argue that “the purpose of a franchise

agreement or vacation was to allow the railroad to construct its line over what were then

public streets or county roads.” Loveridge Pls.’ Mot. at 9. These streets and roads, the

plaintiffs argue, were held as easements and thus the property acquired through the

                                             31
vacation of a public street or road is also only an easement. Id. The government argues

that while the Val Maps indicate that the Railroad acquired its rights by vacation or

franchise agreement, the plaintiffs have not met their burden because they have not

provided copies of the applicable conveyance documents for those segments. Loveridge

Def.’s Resp. at 6.

       As discussed above, the Val Maps constitute the available evidence and the

plaintiffs are entitled to rely on them to demonstrate what property interest the Railroad

acquired. In Oregon, where a railroad acquires its right of way through franchise or

vacation, the railroad is given a right of way over a public road. See Parkhurst, 32 P. at

304-05; McQuaid, 22 P. at 902. Because the road holds only an easement under Oregon

law, see Lankin, 29 P. at 269, it is logical to presume that the Railroad acquired at most

an easement to operate over the road. As such, the Loveridge plaintiffs’ motion for partial

summary judgment in connection to the parcels for Kathleen A. Parker (101) and Carol

H. Trustee (59.A) is granted, and the government’s motion is denied.

       Finally, the court turns to the motions regarding the James A. Smejkal, Bel

Cochran LLC, and Cochran 2 LLC parcels for which the Val Maps state that the Railroad

obtained its right of way through a “Registrar of Title” and for which the government has

provided a Certificate of Withdrawal from June 28, 1972.

       The government argues that the Val Maps reference to “Registrar of Titles” means

a “certificate showing title to the land was registered with the County’s Registrar of




                                             32
Deeds through the Torrens system.” Albright Def.’s Resp. at 2.12 In addition, the

government references the Certificate of Withdrawal from June 28, 1972, which states

“[a]s the owner in fee simple of the . . . real property [described in the certificate] . . . The

Pacific Railway and Navigation Company . . . has filed application for the withdrawal of

title to said real property from the registry system, and for restoring or changing the same

back to the recording system.” Id. at 3 (citing ECF No. 24-11). Thus, the government

argues that there is evidence of a “recorded instrument that conclusively shows” that the

Railroad owed the property in fee and plaintiffs claim to ownership of the underlying

Railroad right of way fails as a matter of law. Id. at 3-4.

       The plaintiffs concede the Railroad’s Certificate of Withdrawal from the registry

system indicates that the Railroad held “some interest in the land.” Albright Pls.’ Reply

at 6 (ECF No. 128). Plaintiffs respond that the Certificate of Withdrawal is not

“conclusive evidence” that the Railroad owned a fee estate interest and without such

conclusive evidence it is presumed that the Railroad obtained an easement. Id. In

addition, the plaintiffs argue that because their title company could not find a deed to the

Railroad immediately preceding or following the Certificate of Withdrawal, further

factual development is warranted. Id. at 6 n.1.

       In a Trails Act case, “[t]o be entitled to compensation, a plaintiff must demonstrate

that she or he is the owner of the burdened estate . . . .” BHL Props., 135 Fed. Cl. at 228.



12
  In Oregon, the Torrens system, a system of land title registration, was established by statute
and was in effect from 1901 until the early 1970s. Albright Def.’s Resp. at 2-3 (citing Or. Rev.
Stat. §§ 94.0054-99.990, repealed by Or. Laws 1971, c. 478, § 1.).
                                                33
Fact discovery in this case closed on August 7, 2017, and the evidence the government

relies on was obtained prior to the close of discovery. The plaintiffs had an opportunity

but have failed to produce any evidence to show that there is a disputed issue of material

fact regarding the Railroad’s fee ownership. The court therefore agrees with the

government that the plaintiffs have failed to demonstrate ownership of the burdened land

adjacent to the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels. While

not conclusive, the Certificate of Withdrawal and the Val Maps are the only available

evidence, and this evidence indicates that the Railroad owned the land in fee. No

competing evidence has been presented to show plaintiffs’ ownership in the underlying

right of way. While plaintiffs suggest there could be more evidence, “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 Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1166

(Fed. Cir. 2017) (holding that “speculation cannot prevent the entry of summary

judgment”). The plaintiffs have failed to demonstrate ownership of the right of way in

connection to the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels as a

matter of law. As such, the government’s motion for partial summary judgment regarding

the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels is granted and the

plaintiffs’ motion for partial summary judgment is denied.

                                        CONCLUSION
       For the reasons stated above, the plaintiffs’ and the government’s motions for

partial summary judgment are GRANTED-IN-PART and DENIED-IN-PART.

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Specifically, the government’s motions for partial summary judgment regarding the

appropriate measure of just compensation is DENIED. The plaintiffs’ partial motion for

summary judgment on applying the centerline presumption to the railway where there is

an intervening road, street, or trail is DENIED and the government’s cross motion that

the plaintiffs are only presumed to own up to half of the intervening road, street, or trail is

GRANTED. The plaintiffs’ motions for partial summary judgment that the Railroad is

presumed to have acquired no more than an easement in connection to the Three Bridges,

LLC, Oregon Coast Hospitality LLC, Old Mill Investment LLC (43.D), Strong Harvey

(112.B), Douglas F. Brown (126), Joseph Cadwell (130), Kathleen A. Parker (101), and

Carold H. Trustee (59.A) parcels are GRANTED. Finally, the government’s motion for

partial summary judgment regarding the James A. Smejkal, Bel Cochran LLC, and

Cochran 2 LLC parcels is GRANTED and the plaintiffs’ motion for partial summary

judgment is DENIED.

       The plaintiffs filed additional motions for partial summary judgment on June 19,

2020. Albright, ECF No. 52, Loveridge, ECF No. 115, Stimson Lumber, ECF No. 33. The

government will file its response briefs to these motions by Monday, July 13, 2020.

       IT IS SO ORDERED.

                                                            s/Nancy B. Firestone
                                                            NANCY B. FIRESTONE
                                                            Senior Judge




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