           In the United States Court of Federal Claims
                                           No. 14-388L
                                       (Filed: May 4, 2016)

*************************************
WILLIAM C. HARDY & BERTIE ANN *
HARDY et al.,                       *
                                    *                Rails-to-Trails; Fifth Amendment Taking;
              Plaintiffs,           *                NITU; Easement; Fee Simple; Strip of Land;
                                    *                Right-of-Way; Railroad Purposes; Deed;
v.                                  *                Conveying Easements Under Georgia Law;
                                    *                Scope of Easement; Parcel of Land
THE UNITED STATES,                  *
                                    *
              Defendant.            *
*************************************

Elizabeth A. Gepford McCulley, Kansas City, MO, for plaintiffs.

Stephen Finn, United States Department of Justice, Washington, DC, for defendant.

                                    OPINION AND ORDER

SWEENEY, Judge

        In this Rails-to-Trails class action, 112 plaintiffs contend that they own real property
adjacent to a railroad corridor in Newton County, Georgia. They assert that until 2013,
defendant, the United States, held easements for railroad purposes that crossed their land.
According to plaintiffs, defendant then authorized the conversion of the railroad rights-of-way to
recreational trails pursuant to the National Trail Systems Act (“Trails Act”), conduct that resulted
in a taking that violated the Just Compensation Clause of the Fifth Amendment to the United
States Constitution. Plaintiffs move for partial summary judgment on the issue of liability.
Defendant cross-moves for partial summary judgment regarding the parcels of land identified in
plaintiffs’ motion, and also with respect to additional parcels that defendant identifies. For the
reasons set forth below, the court grants in part and denies in part the parties’ motions.

                                       I. BACKGROUND

                             A. Statutory and Regulatory Context

       During the last century, the United States began to experience a sharp reduction in rail
trackage. Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5 (1990) (“Preseault I”). To
remedy this problem, Congress enacted a number of statutes, including the Trails Act, 16 U.S.C.
§§ 1241-1251 (2012). The Trails Act, as amended, provides for the preservation of “established
railroad rights-of-way for future reactivation of rail service” by authorizing the interim use of
such rights-of-way as recreational and historical trails. Id. § 1247(d). This process is referred to
as “railbanking,” and is overseen by the Surface Transportation Board (“STB”), id., the federal
agency with the exclusive jurisdiction to regulate “the construction, acquisition, operation,
abandonment, or discontinuance” of most railroad lines in the United States, 49 U.S.C.
§ 10501(b) (2012).

        Before railbanking can occur, the railroad company must seek to abandon its line, either
by initiating abandonment proceedings with the STB pursuant to 49 U.S.C. § 10903, or by
requesting that the STB exempt it from such proceedings pursuant to 49 U.S.C. § 10502. When
considering the railroad company’s abandonment application or exemption request, the STB will
entertain protests and comments from interested third parties. 49 C.F.R. §§ 1152.25, 1152.29(a)
(2010). These third parties may submit requests for the interim use of the railroad line as a trail
pursuant to 16 U.S.C. § 1247(d) and make offers of financial assistance pursuant to 49 U.S.C.
§ 10904. Id.

         If an interested third party submits a trail use request to the STB that satisfies the
requirements of 16 U.S.C. § 1247(d), the STB must then make the necessary findings pursuant to
49 U.S.C. § 10502(a) or 49 U.S.C. §10903(d). Once the railroad company agrees to negotiate a
trail use agreement, the STB will issue one of two documents: if the railroad company initiated
abandonment proceedings, the STB will issue a Certificate of Interim Trail Use or
Abandonment; if the railroad company sought an exemption, the STB will issue a Notice of
Interim Trail Use or Abandonment (“NITU”). Id. § 1152.29(b)-(d). The effect of both
documents is the same: to “permit the railroad to discontinue service, cancel any applicable
tariffs, and salvage track and materials, consistent with interim trail use and rail banking . . . ;
and permit the railroad to fully abandon the line if no agreement is reached 180 days after it is
issued, subject to appropriate conditions . . . .” Id. § 1152.29(d)(1); accord id. § 1152.29(c)(1).
The STB will entertain requests to extend the 180-day deadline to enable further negotiations. If
the railroad company and the interested third party execute a trail use agreement, then
abandonment of the railroad line is stayed for the duration of the agreement. Id. § 1152.29(c)-
(d); 16 U.S.C. § 1247(d). If no trail use agreement is executed, the railroad company is
permitted to fully abandon the line. 49 C.F.R. § 1152.29(c)-(d). To exercise its abandonment
authority, the railroad company must “file a notice of consummation with the STB to signify that
it has . . . fully abandoned the line” within one year of “the service date of the decision
permitting the abandonment . . . .” Id. § 1152.29(e)(2). In the absence of a timely filed notice of
consummation, the railroad company’s authority to abandon the line automatically expires. Id.

        If efforts to execute a trail use agreement are unsuccessful, and the railroad company
notifies the STB that it has fully abandoned the line, the STB is divested of jurisdiction over the
abandoned railroad line and “state law reversionary property interests, if any, take effect.”
Caldwell v. United States, 391 F.3d 1226, 1228-29 (Fed. Cir. 2004).

                      B. The Initial Acquisition of the Land in Question

       As explained above, plaintiffs are 112 individuals who collectively own 173 parcels of
land adjacent to a railroad corridor in Newton County, Georgia. The disputed land is situated

                                                 2
between milepost E 65.80 (at the point of the railroad line crossing Route 229 in Newborn,
Georgia) and milepost E 80.70 (near the intersection of Washington Street, SW, and Turner Lake
Road, SW, in Covington, Georgia), a distance of 14.9 miles. The alleged easements were
acquired by the Middle Georgia & Atlantic Railway Company (“MG&AR”). In 1896, the
Central of Georgia Railway Company (“CGA”) bought MG&AR. CGA subsequently extended
the railroad line to Porterdale, Georgia. In 1963, CGA was bought by Southern Railway
Company, which merged CGA with two other railroad companies to form the modern-day CGA.
CGA is currently a wholly owned subsidiary of the Norfolk Southern Railway Company
(“NSRC”).

        When MG&AR acquired rights to the land upon which the railroad was built, it did so
through a combination of standard form deeds and condemnation. CGA, as the successor-in-
interest to MG&AR, assumed these rights over the rail corridor. Subsequently, when CGA
extended the railroad line, it obtained property rights over the expanded corridor through
standard form deeds that were different from those used by MG&AR. Most of the deeds vary
with respect to specific details, including the size of the parcel and the consideration given. All
of the deeds in question are dated between 1889 and 1927.

                                 C. Proceedings Before the STB

        More recently, CGA decided that it no longer needed the railroad lines that traverse the
parcels of land at issue in this case. Thus, on July 1, 2013, it submitted to the STB a notice of
exemption from formal abandonment proceedings. The petition referenced the land described
above. The Newton County Trail Path Foundation (“Foundation”), an interested third party,
sought to prevent abandonment. It filed a petition with the STB on July 26, 2013, indicating that
it was interested in negotiating a trail use agreement with the NSRC. The NSRC replied that it
was willing to negotiate with the Foundation. On August 19, 2013, the STB issued a NITU,
which provided 180 days, or until February 15, 2014, for negotiations. Since that date, the
Foundation has requested extensions to continue and complete negotiations. The most recent
request states that CGA and the Foundation “have been negotiating a trail use Agreement but
need additional time to continue and complete negotiations.” Parties’ Joint Notice, Docket No.
75, Ex. 1. The STB approved this request and extended the NITU deadline to August 3, 2016.

                                     D. Procedural History

        On May 6, 2014, William C. Hardy, for himself and as representative of a class of
similarly situated individuals, filed a complaint in this court alleging a Fifth Amendment taking.
Plaintiffs have amended their complaint twice. In the second amended complaint, Mr. Hardy
and the other 111 plaintiffs continue to assert, as their sole claim for relief, a Fifth Amendment
taking. Plaintiffs filed a motion for partial summary judgment on the issue of liability with
respect to 101 of their parcels. Defendant cross-moved for partial summary judgment on those
same 101 parcels, as well as an additional 50 parcels. The motions are fully briefed, and the
court heard argument on October 28, 2015. Because of a factual dispute and legal argument that
arose at oral argument that precluded a merits ruling, the court ordered supplemental briefing
which is now complete.



                                                 3
                                        II. DISCUSSION

                                       A. Legal Standards

                                     1. Summary Judgment

        Both plaintiffs and defendant move for summary judgment on the issue of liability
pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”).
Summary judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. RCFC 56(a); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). Entry of summary judgment is mandated against a party who fails to establish
“an element essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp., 477 U.S. at 322.

                       2. Fifth Amendment Takings and the Trails Act

        As noted above, the sole claim for relief in plaintiffs’ second amended complaint is a
Fifth Amendment taking. The Fifth Amendment prohibits the federal government from taking
private property for public use without paying just compensation. U.S. Const. amend. V. The
United States Court of Federal Claims possesses jurisdiction to entertain Fifth Amendment
takings claims against the United States, 28 U.S.C. § 1491(a)(1) (2012); Morris v. United States,
392 F.3d 1372, 1375 (Fed. Cir. 2004), such as claims premised upon the conversion of a railroad
right-of-way into a recreational trail pursuant to the Trails Act, Preseault I, 494 U.S. at 12-13.

       To establish a taking, a plaintiff must first “identif[y] a cognizable Fifth Amendment
property interest that is asserted to be the subject of the taking.” Casitas Mun. Water Dist. v.
United States, 708 F.3d 1340, 1348 (Fed. Cir. 2013). In determining whether a plaintiff has
demonstrated the existence of a valid property interest in a Trails Act case, the court considers:

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

Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (en banc) (“Preseault II”).
Then, “if the court concludes that a cognizable property interest exists, it determines whether the
government’s action amounted to a compensable taking of that interest.” Casitas Mun. Water
Dist., 708 F.3d at 1348. In Trails Act cases, a taking occurs when “government action destroys
state-defined property rights by converting a railway easement to a recreational trail, if trail use
is outside the scope of the original railway easement.” Ladd v. United States, 630 F.3d 1015,
1019 (Fed. Cir. 2010). It is well settled that the STB’s issuance of “[t]he NITU is the
government action that prevents the landowners from possession of their property unencumbered

                                                 4
by the easement.” Id.; accord Barclay v. United States, 443 F.3d 1368, 1374 (Fed. Cir. 2006);
Caldwell, 391 F.3d at 1233-34.

                                   B. The Parties’ Arguments

        Plaintiffs allege that they collectively own 173 parcels of land in the subject area, and
move for partial summary judgment with respect to 101 of those parcels. Plaintiffs contend that
they own the disputed property in fee simple, and that the railroad acquired easements limited to
railroad purposes. Accordingly, plaintiffs assert that the issuance of the NITU authorizing the
conversion of the railroad line for use as a public recreational trail under the Trails Act exceeded
the scope of the easement and thus constituted a taking that requires just compensation.

        Defendant cross-moves for partial summary judgment on those same 101 parcels of land,
as well as on an additional 50 parcels. Defendant advances the following arguments in its cross-
motion to explain why no taking has occurred: (1) for those parcels burdened by a strip of land
acquired by CGA in fee simple, plaintiffs lack the requisite ownership interest needed to assert a
taking; (2) for those plaintiffs whose land does not adjoin the rail corridor due to an intervening
public road, plaintiffs have no claim; (3) for plaintiff whose parcel is burdened by a strip of land
acquired by the railroad through adverse possession and held by the railroad in fee simple,
plaintiff lacks the requisite ownership interest needed to assert a taking; (4) for plaintiffs whose
parcels are burdened by railroad easements sufficiently broad to encompass future trail use,
plaintiffs are precluded from establishing a taking; and (5) for plaintiffs whose parcels are
burdened by railroad easements limited to railroad purposes, no taking has occurred because the
railroad has not abandoned the rail line and extinguished its easements.

         Plaintiffs dispute all of defendant’s arguments. First, plaintiffs assert that the railroad’s
easements are limited to railroad purposes. Second, with respect to the parcels of land with
intervening roads, which are themselves easements, plaintiffs contend that own to the centerline
of the rail corridor. Third, with respect to the parcel of land for which there is no deed, plaintiffs
concede that the railroad adversely possessed it, but assert that the railroad only possesses an
easement, not ownership in fee simple. Finally, plaintiffs argue that the issuance of a NITU
results in a taking. Thus, plaintiffs assert, whether or not the railroad abandoned the rail line is
immaterial to the court’s takings analysis.

                                            C. Analysis

          1. Interpretation of Railroad Right-of-Way Deeds Under Georgia Law

        The parties’ first dispute concerns the nature of the property interests acquired by CGA
and its predecessors. Plaintiffs assert that the deeds conveyed easements, while defendant
contends that many of the deeds conveyed property in fee simple. Under Georgia law,

      [A corporation] shall be empowered, first, to cause such examinations and surveys to
      be made of the proposed railroad as shall be necessary to the selection of the most
      advantageous route, and for such purposes to be empowered by its officers, agents,



                                                  5
      servants or employees, to enter upon the land or water of any person for that purpose.
      Second, to take and hold such voluntary grants of real estate and other property as
      may be made to it, to aid in the construction, maintenance and accommodation of its
      road, but the real estate received by voluntary grant shall be held and used for the
      purpose of such grant only.

Ga. Code Ann. § 1689 (1882). Further, Georgia law provides that “[w]henever the
corporation or person shall cease using the property taken for the purpose of conducting
their business, said property shall revert to the person from whom taken.” Ga. Code Ann.
§ 5233 (1910).

      To determine the nature of the property interests at issue, “the controlling question is
whether the instruments upon which the plaintiff bases his claim of title convey the title to the
lands therein referred to, or merely an easement for railroad purposes.” Askew v. Spence, 79
S.E.2d 531, 531 (Ga. 1954). When reviewing these deeds, the court must examine them in light
of the common law and the law of Georgia at the time that they were executed. Preseault II, 100
F.3d at 1534. With respect to such deeds:

      [T]he crucial test in determining whether a conveyance grants an easement in, or
      conveys title to, land, is the intention of the parties, but in arriving at the intention
      many elements enter into the question. The whole deed or instrument must be
      looked to, and not merely disjointed parts of it. The recitals in the deed, the contract,
      the subject-matter, the object, purposes, and nature of the restrictions or limitations,
      if any, or the absence of such, and the attendant facts and circumstances of the
      parties at the time of the making of the conveyance are all to be considered. [OCGA
      § 44-5-34].

Latham Homes Sanitation, Inc. v. CSX Transp., Inc., 538 S.E.2d 107, 108 (Ga. 2000) (citing
Jackson v. Rogers, 205 Ga. 581, 586-87 (1949)).

        Although the deed must be examined as a whole to determine what type of property
interest was conveyed, certain aspects of a deed carry significant weight. According to the
Supreme Court of Georgia, a deed that grants a railroad a strip of land as a “right-of-way” over
the surrounding land typically conveys an easement, such that the railroad is given a right to pass
over and use the land, instead of to the land, itself. See Jackson v. Crutchfield, 191 S.E. 468, 470
(Ga. 1937) (holding that a deed that granted “right-of-way over which to pass” conveyed an
easement). In addition, the presence of a reservation in a deed, such as a conveyor’s right to
cultivate the land up to the right-of-way, offers proof of intent to convey an easement. Jackson
v. Sorrells, 92 S.E. 513, 514 (Ga. 1956) (holding that a deed that reserved the conveyor’s right to
“cultivate up to [the] road bed” constituted an easement); accord Safeco Title Ins. Co. v. Citizens
& S. Nat’l Bank, 380 S.E.2d 477, 479 (Ga. 1989).

        Moreover, the presence of a qualification, or a stipulation specifying that the property
will be used “for railroad purposes,” signals that the deed conveys an easement. Askew, 79
S.E.2d at 532; see also Crutchfield, 191 S.E. at 470; Rogers v. Pitchford, 184 S.E. 623, 624 (Ga.
1936); Duggan v. Dennard, 156 S.E. 315, 317 (Ga. 1930). A deed may further indicate that the

                                                  6
land is “to be used” “as [the railroad] may deem proper in the construction and equipment of [a]
railroad . . . and for all other purposes.” Duggan, 156 S.E. at 317. Because the deed stipulates
that the property must be used for a particular purpose, it “clearly denotes that it was not the
intention of the grantor that his lot of land should be alienated in fee.” Id. In such cases, the
words “‘for all other purposes,’ construed with its associate language,” refer only to purposes
related to building and using the railroad. Id.

         In addition, the amount of consideration is a factor. For example, if the consideration set
forth in a railroad right-of-way deed is relatively low, it is likely that the deed conveyed only an
easement, and not fee simple title. See id.; Pitchford, 184 S.E. at 624. Deeds conveying property
to a railroad for “nominal consideration” generally convey only easements. Sorrells, 92 S.E.2d
at 514. By contrast, a large amount of consideration given is typically indicative of an intent to
convey a property interest in fee simple. Johnson v. Valdosta, 150 S.E. 845, 847 (1929).

        On the other hand, the presence of a “warranty clause” in a railroad right-of-way deed
may weigh in favor of determining that the land was conveyed in fee simple. Id. at 847. For
example, the grantor may “stipulate[] to warrant the title to the tract or parcel of land conveyed,
and [to] defend the title against the claims of all persons whatsoever, unto the railroad company,
its successors and assigns, forever in fee simple.” Id. Further, the presence of the term “forever
in fee simple,” on its own, does not necessarily indicate that title was actually conveyed in fee
simple. See Sorrells, 92 S.E.2d at 513; Valdosta, 150 S.E. at 847 (noting that “the words . . .
‘forever in fee simple’ do not demand the construction that this deed conveys title to this land,
and not a mere easement therein”); Atlanta B. & A. Ry. Co. v. Coffee Cty., 110 S.E. 214, 215
(Ga. 1921) (determining that the words “fee simple” did not describe the interest conveyed, but
were only “descriptive of the extent of duration and enjoyment of the easement”). By itself, the
phrase “forever in fee simple” has played little role in ascertaining whether an interest in fee
simple or an easement was conveyed. However, when this phrase and a warranty clause are
present “in connection with” other factors, including the payment of substantial consideration,
then the combination of the phrase “fee simple forever” and the warranty clause are “potent . . .
in inducing [the court] to hold” that the deed conveyed fee simple. Valdosta, 150 S.E. at 847.

       Finally, in construing deeds purporting to convey property interests to a railroad company,
courts must be cognizant that:

      “It is favorable to the general public interest that the fee in all roads should be vested
      either exclusively in the owner of the adjacent land on one side of the road, or in him
      as to one half of the road, and as to the other half, in the proprietor of the land on the
      opposite side of the road. This is much better than that the fee in long and narrow
      strips or gores of land scattered all over the country and occupied or intended to be
      occupied by roads, should belong to persons other than the adjacent owners. In the
      main, the fee of such property under such detached ownership would be and forever
      continue unproductive and valueless.”

Fambro v. Davis, 348 S.E.2d 882, 884 (Ga. 1986) (quoting Johnson v. Arnold, 91 Ga. 659, 666-
67 (1893)). Indeed, the Supreme Court of Georgia has specifically held:



                                                  7
      The rule avoids the undesirable result of having long, narrow strips of land owned by
      people other than the adjacent landowner. Pindar asserts that this rule of
      construction also should govern the construction of deeds that designate a railroad
      right-of-way as a boundary. This Court has, in fact, already applied it to language in
      a will to determine title to an abandoned railroad right-of-way. We now adopt this
      rule for use in construing deeds that have as a boundary a railroad right-of-way.

Descendants of Bulloch, 475 S.E.2d 587, 589 (Ga. 1996). Having set forth the relevant rules of
deed construction, the court will now examine the deeds at issue in this case.

                                      2. The Deeds at Issue

                 a. The Armstrong Deed and Substantially Similar Deeds

        The Supreme Court of Georgia has held that the “true meaning” of a deed “can only be
ascertained by an examination and consideration of the instrument as a whole.” Duggan, 156
S.E. at 316. The majority of the deeds at issue in this case contain language that is substantially
similar to that of the deed signed by W.W. Armstrong in 1890 (“Armstrong deed”). This deed
provides:

               This Indenture Witnesseth That the undersigned W.W. Armstrong
               has bargained sold and conveyed to the Middle Georgia & Atlantic
               Railway Company, a Corporation of Said State the following
               property – A strip of land situated in the 477 G.M. District Newton
               County. Fifty feet wide, the same being twenty five feet on each
               side the center line of said Railroad for a right-of-way of said
               Railroad, or for any other use, in the discretion of said Company,
               and more particularly described as follows – Along a recent survey
               made by said Railway Co. through my land in said State & County.
               The consideration of this Deed is the sum of seven no/100 dollars
               paid by said Company to the undersigned before the execution of
               these presents. To Have and to Hold the said described land, with
               its members and appurtenances unto the said Middle Georgia &
               Atlantic Railway Company, its successors and assigns forever.
               And the said W.W. Armstrong will forever warrant and defend the
               title hereby conveyed to the said Railroad Company against any
               and every person whatsoever. In witness whereof, the said W.W.
               Armstrong has hereunto set his hand and affixed his seal, and
               delivered these presents, this the 1st day of May 1890.

Pls.’, Ex. F(13). The deeds that are similar to the Armstrong deed are listed in the table below.




                                                 8
        Deed              Consideration         Exhibit Number
        Petty           “10 per acre dollars”    Pls.’ Ex. F(3)

    S.G. Morgan                 $20              Pls.’ Ex. F(4)

    A.R. Morgan                 $56              Pls.’ Ex. F(5)

      Rhebergh                  $50              Pls.’ Ex. F(6)

Robinson & Hardeman             $25              Pls.’ Ex. F(7)

  John Roquemore                 $5              Pls.’ Ex. F(8)

   J.H. Roquemore                $1              Pls.’ Ex. F(9)

      Jackson                    $5              Pls.’ Ex. F(10)

        Epps                    $28              Pls.’ Ex. F(11)

       Banks                     $8              Pls.’ Ex. F(12)

     Armstrong                   $7              Pls.’ Ex. F(13)

     A.S. Hays                 None              Pls.’ Ex. F(15)

  W.J. & B.F. Hays              $70              Def.’s Ex. GG

      Skinner                    $5              Pls.’ Ex. F(17)

        Pitts            Depot at Newton         Pls.’ Ex. F(18)

    J.C. Anderson                $5              Pls.’ Ex. F(19)

       Smith                     $5              Pls.’ Ex. F(21)

 Stanton & Bateman      Left Blank in Deed       Pls.’ Ex. F(22)

    G.B. Stanton               $125              Pls.’ Ex. F(25)

Stanton, Hays, & Hays           $20               Def.’s Ex. Y

       Corley                    $5              Def.’s Ex. AA

        Pace                     $1              Def.’s Ex. AA

       Wright                   $10              Def.’s Ex. BB



                                      9
            Simms                            $1                            Def.’s Ex. BB

             Bagby                           $5                            Def.’s Ex. V

             White                           $1                            Def.’s Ex. II

             Childs                          $1                            Def.’s Ex. JJ

             Terrell                        $10                            Def.’s Ex. JJ

            Ozburn                          $10                            Def.’s Ex. JJ

        J.H. Roquemore                       $1                            Def.’s Ex. JJ


        The Supreme Court of Georgia’s decision in Sorrells provides guidance in interpreting
the Armstrong deed and those substantially similar to it. 92 S.E. at 514. In Sorrells, the court
examined whether the interest conveyed to a railroad was an easement or title to the land. Id. at
513-14. In making its determination, the court considered the following factors: the property in
question was a “strip” of land in the middle of the grantor’s land; the deed “recite[d] that the land
[wa]s conveyed for use as a railroad”; the grantor retained the right to cultivate the land not in
use by the railroad; and the consideration was “nominal.” Id. at 514. Based on the totality of
these factors, the court concluded that the deed merely conveyed an easement to operate a
railroad “over the land in question.” Id.

        The provisions in the Armstrong deed and those substantially similar to it are nearly
identical to the language in the Sorrells deed. Specifically, the Armstrong deed and those
substantially similar to it each provided that a “strip of land” would be designated as a “right-of-
way” for the railroad “or for any other use, in the discretion of said Company.” Pls.’ Ex. F(13).
As described earlier, a deed that grants a railroad a strip of land as a “right-of-way” usually
conveys an easement. Crutchfield, 191 S.E. at 470. In addition, the deeds here qualified how the
designated land would be used, namely, for railroad purposes; if the parties had intended to
convey fee simple in the strips of land, they would have had no reason to specify how the land
would be used in their respective habendum clauses. See Duggan, 156 S.E. at 317 (holding that
because the deed in question “qualifi[ed]” how the land was to be used, it “seem[ed] clear that a
reversion of the possession to the grantor or his heirs or successors in title was in the
contemplation of the parties”); Latham, 538 S.E.2d at 109 (determining that because the deed
defined how the railroad would use the land and its rights therein, it was “inconsistent with the
conveyance of title, where the owner has full dominion and control, [unlike] in an easement”).
Clearly, when a deed indicates that the land is to be used for the railroad and “for all other
purposes,” it refers only to uses related to building and using the railroad. Id. at 317. Thus, the
use of the phrase “for any other use” here refers only to uses related to railroad purposes.




                                                  10
         The consideration described in the deeds in question was typically one or five dollars,
with some exceptions, including one for $28, one for $50, and one for $56.1 Overall, these
amounts are small. Taken together, these factors lead the court to conclude that the grantors
intended to convey easements, and not fee simple interests, in the strips of land. See Askew, 79
S.E.2d at 532 (holding that a deed that conveyed a right-of-way for railroad purposes for nominal
consideration conveyed an easement that reverted to the original owner when such use was
complete); Sorrells, 92 S.E.2d at 514 (concluding that a deed that conveyed a strip of land for use
as a railroad for nominal consideration conveyed an easement); Duggan, 156 S.E. at 317
(determining that a deed that conveyed a right-of-way and qualified that it was to be used in the
construction and equipment of a railroad and for all other purposes, for nominal consideration,
conveyed an easement).

                      b. The Lee Deed and Substantially Similar Deeds

        Among the remaining deeds are two categories of deeds whose language differs from that
of the Armstrong deed.2 First, some deeds contain language that is substantially similar to that of
the deed signed by W.B. Lee in 1894 (“Lee deed”). This deed provides:

               This Indenture witnesseth that the undersigned W.B. Lee has
               bargained, sold and conveyed to the Middle Georgia & Atlantic
               Railway Company, a corporation of said State, the following
               property; A Strip of land situated in the 462 \G.M. District of
               Newton County, the width to be what is necessary for Railroad
               purposes for said Railroad, as a right-of-way, more particularly
               described as follows:
               This right-of-way is in the City of Covington, and in the South
               eastern portion of the City limits, passing through the eastern
               portion of the lot bought by said W.B. Lee from Jon L. Sibley –
               The consideration of this deed is the sum of one hundred and fifty
               dollars, paid by said Company to the undersigned before the
               execution of these presents. To have and to hold the said described
               land, with its members and appurtenances unto the said Middle
               Georgia and Atlantic Railroad Company, its successors and
               assigns, forever.
               And the said W.B. Lee will forever warrant and defend the title
               hereby Conveyed to the said Railroad Company against any and
               every harm whatsoever. In witness whereof, the said W.B. Lee has



      1
         Although the consideration described in the G.B. Stanton deed was larger, namely, $125,
the host of other factors present in the deed—including the terminology used and the
qualification that the land would be used for railroad purposes—weigh in favor of concluding
that an easement was conveyed.
      2
        These categories or subsets have been created by the court after comparing the language
of the various deeds at issue.
                                                11
               hereto set his hand and affixed his seal, and delivered those
               presents the 2nd day of June 1894. Signed, sealed and delivered.

Pls.’ Ex. F(24). The deeds that are similar to the Lee deed are listed in the table below.


             Deed                     Consideration                     Exhibit Number
             Lee                          $150                           Pls.’ Ex. F(24)

          McCormick                        $325                           Pls.’ Ex. F(2)

             Hight                         $150                          Pls.’ Ex. F(14)

          Henderson                        $100                          Pls.’ Ex. F(16)

             Boyle                         $300                          Pls.’ Ex. F(26)

            Cannon                         $100                          Pls.’ Ex. F(27)

              Peek                         $250                            Def.’s Ex. T

         J.E. Robinson                     $275                           Def.’s Ex. AA

             Butler                        $300                           Def.’s Ex. CC


        The Lee deed and those substantially similar to it each provided that a “strip of land”
would be designated as a “right-of-way” for the railroad. Id. The consideration that was paid in
each was substantial, ranging from $100 to $325. As noted previously, a “substantial sum” of
consideration materially “differs from conveyances to railroad companies of right-of-way based
upon nominal considerations,” as the former typically indicates that the land was conveyed in fee
simple. Valdosta, 150 S.E. at 847. Further, the deeds here contained a warranty clause, where
the grantor “would forever warrant and defend the title hereby conveyed . . . against any & every
person whatsoever.” Id. Although the inclusion of a warranty clause would not be sufficient, on
its own, to establish that a fee simple interest was conveyed, the Supreme Court of Georgia has
held that “when considered in connection with . . . other terms of th[e] deed[s]” in question, such
as a substantial sum of consideration, the land was conveyed in fee simple. Id. Accordingly, the
court finds that the Lee deed and those substantially similar to it did not convey an easement, but
rather, a property interest in fee simple. See id. at 847-48 (determining that the deed conveyed a
property interest in fee simple because of a combination of factors, including that a substantial
sum of money would be paid in consideration for a “strip of land” to be used as a “railroad right-
of-way,” and that the deed contained a warranty clause).




                                                  12
                             c. The Robinson and Weaver Deeds

        Finally, the deeds signed by J.E. Robinson in 1894 (“Robinson deed”) and R.I. Weaver in
1927 (“Weaver deed”) are distinct from those previously discussed. As with the prior deeds, the
court examines the language within these deeds to determine whether a fee simple interest was
conveyed. The relevant language and terms encompassed in the Robinson deed appear in
identical, or nearly identical, form in the Weaver deed. The court will examine the language in
the Robinson deed. This deed provided:

              THIS INDENTURE, Made the this ___ day of April in the year of
              one thousand eight hundred and ninety-nine between J.E. Robinson
              of the State of Georgia and the County of Newton of the first part,
              and the Central of Georgia Railway Company, a corporation
              created by and existing under the laws of the State of Georgia, of
              the second part:

              WITNESSETH: that the said party of the first part, for and in
              consideration of the sum of Two Hundred and seventy-five and
              no/100 ($275.00) dollars, to him in hand paid by the said party of
              the second part, at or before the ensealing and delivery of these
              presents, the receipt whereof is hereby acknowledged, has granted,
              bargained, sold and conveyed and by these presents does grant,
              bargain, sell, and convey unto the said party of the second part, and
              to its successors and assigns forever, all that certain tract or parcel
              of land:

                    Beginning at the Southwest corner of the land of the
                    said J.E. Robinson where it intersects the property of
                    W.C. Lee on the South and B.F. Camp on the West;
                    thence running in an Easterly direction on the line
                    dividing said Robinson & W.C. Lee to a point where
                    said land is intersected by a public road leading to
                    Carroll’s Brick Yard; thence along said public road to
                    the right of way line of the Central of Ga. Ry. Co.;
                    thence in a Westerly direction along the Southern line
                    of said right of way and parallel therewith and distant
                    50 feet from the centre thereof to the intersection of
                    said right of way by the property of B.F. Camp; thence
                    in a Southerly direction along said property line to
                    point of beginning. Containing in all 2.00 acres, more
                    or less, situated in the State of Georgia County of
                    Newton; the exact metes, bounds, & location begin
                    shown on map attached & made a part here of.

              TO HAVE AND TO HOLD the said above described property,
              together with all and singular the rights, members, and

                                                13
               appurtenances thereto in anywise appertaining or belonging to the
               only proper use, benefit and behoof of the said party of the second
               part, its successors and assigns, in FEE SIMPLE forever.

               And the said party of the first part, will and his heirs, executors and
               administrators shall the afore granted premises unto said party of
               the second part its successors, heirs, executors, administrators and
               assigns forever warrant and defend, by virtue of these presents.
               IN WITNESS WHEREOF, The said party of the FIRST part has
               hereunto set his hand and seal the day and year above written.

Def.’s Ex. AA at 11-12.

       The Robinson deed contained no mention of a “strip of land” being granted, which, as
described earlier, is terminology that typically indicates that an easement was conveyed. Id.
Further, although the deed conveyed a property interest to a railroad company, the deed did not
provide any qualification stipulating that the land would be used exclusively “for railroad
purposes.” A qualification specifying that the land conveyed will be used for “railroad
purposes” usually indicates that an easement was conveyed. Askew, 79 S.E.2d at 532; see also
Crutchfield, 191 S.E. at 470; Pitchford, 184 S.E. at 624; Duggan, 156 S.E. at 317. Thus, the
absence of a qualification leans more heavily in favor of a fee simple interest being conveyed. In
addition, the deed provided for a large amount of consideration, namely, $275.

         Lending additional support in favor of finding that the conveyance was in fee is the
deed’s warranty clause, in which the grantor pledged that he and his “heirs, executors and
administrators” would “forever warrant and defend” the property in question “unto” the railroad
company to which the land was being conveyed. Def.’s Ex. AA at 11. The deed also provided
that the land was being conveyed “in FEE SIMPLE forever.” Id. Although the use of that
terminology or the presence of a warranty clause in themselves “do not demand the construction”
of a deed as conveying a property interest in fee simple, here, the appearance of both, the large
sum of consideration, and the other factors set forth above compels the conclusion that this deed
conveyed land in fee simple. See Valdosta, 150 S.E. at 847 (holding that the presence of a
warranty clause, the phrase “forever in fee simple,” and a large sum of consideration in the deed
was “potent” and indicated that the deed conveyed a property interest in fee simple); Latham,
538 S.E.2d at 109 (noting that “the deed form language of ‘successor and assigns,’ ‘forever in
fee simple,’ and ‘will warrant and defend the title thereof, against the claim of all persons’ has
the attributes of a deed of title in fee simple by warranty deed”). Moreover, as mentioned above,
the Weaver deed contained the same or substantially similar relevant language as the Robinson
deed. In addition, the Weaver deed provided for a large amount of consideration, namely,
$2500. Consequently, the Weaver deed conveyed a property interest in fee simple as well.

                                       3. County Road 213

       County Road 213 is a public road that separates the rail corridor and eight parcels of land:
Claims 81.A, 81.B, 81.C, 83, 84, 85.A, 85.B, and 85.C. According to defendant, County Road



                                                 14
213 was granted in fee to rural Newton County, and because the eight parcels do not adjoin the
rail corridor, plaintiffs who own the parcels lack a property interest in the railroad right-of-way.

        Defendant relies upon Department of Transportation v. Knight, 232 S.E.2d 72, 74 (Ga.
1977), in support of its contention that the land granted to build County Road 213 was conveyed
in fee simple. In Knight, the Supreme Court of Georgia evaluated whether a deed concerning
land used to build a highway conveyed a fee simple interest or an easement. To make this
determination, the court engaged in an “examination of the laws governing the acquisition,” id.
at 226, and also interpreted the “words used” in the conveyance deed, including the term
“conveyance,” because such terms “serve as guides to [the] construction” of a deed and “the
intention of the parties,” id. at 227. The court concluded that the deed conveyed an interest in
fee simple.

        Defendant’s argument that the holding in Knight controls the outcome in this case lacks
merit. The subject land in Knight was conveyed to build a limited access highway next to a
federal interstate highway pursuant to the Limited Access Highway Act, Ga. Code Ann. § 95-
1703 (1965). Under that statute, abutting landowners have limited or no access to a limited
access highway, and both federal interstate highways and limited access roads constructed to
support them are conveyed in fee. By contrast, County Road 213 is a county road, not a limited
access highway. Indeed, defendant acknowledges that County Road 213 was created as a state
road. Thus, the statute that the court interpreted in Knight, and the court’s specific reasoning
therein, are inapt.

        Although the court’s conclusion in Knight does not compel the same result here because
of the difference in the facts in the two cases, its methodology in interpreting a road conveyance
deed is instructive. Like the Knight court, this court will examine the relevant law and the
construction of the conveyance deeds.

       Public roads like County Road 213 were built pursuant to Georgia Statute 95-1721,
which provides in pertinent part:

      Section 1. That title 95 (“Roads, Bridges and Ferries”), part IV (“State Highway
      System”), chapter 95-17 (“State-Aid Roads”) of section 95-1721 (“Counties
      Prohibited from Participating in the Cost of Construction”) of the Code of Georgia of
      1933 be and the same is hereby amended by striking and repealing all of said section
      95-1721, and enacting in lieu thereof a new section to be numbered section 95-1721,
      and to read as follows:

      95-1721. Control and supervision of State-aid Roads; expense of procuring rights of
      way borne by county. When a road is approved as a part of the system of State
      Highways, establishment of such road and its construction, including location,
      surveys, grading, and paving, shall be under the control and supervision of the State
      Highway Board. All expenses necessary for such construction, including surveys,
      the location or relocation of such roads, and all other expenses connected with the
      establishment and construction thereof, except the expense of procuring rights of
      way, shall be paid by the Board but of funds allocated to the Highway Department.

                                                 15
      It shall be the duty of county commissioners or other county authorities having
      control of county roads to assist in procuring the necessary rights of way as cheaply
      as possible, and all expenses thereof, including the purchase price of any land
      purchased for a right of way, and all direct and consequential damages awarded in
      any proceeding brought to condemn any such right of way, shall be paid by the
      county in which such road is situated out of the county treasury; provided that
      nothing contained in this Act shall prevent the State Highway Board from using State
      Highway funds for the purpose of purchasing right of way, or to pay the purchase
      price thereof, or to pay any damages awarded on account of the location of any such
      State-aid Road, or from assisting the counties in so doing.

Ga. Code Ann. § 95-1721 (1935). This statute allowed the State Highway Board to construct
“State-aid Road[s]” as part of the “system of State Highways,” where the roads constituted
“right[s] of way” running through private land. Id. As explained above, under Georgia law, the
conveyance of land as a “right of way” is typically considered an easement, as opposed to a
property interest in fee simple. Crutchfield, 191 S.E. at 470.

     Further, the deeds that granted the land to build County Road 213 are substantially similar.
One such deed provides:

      State Highway Department of Georgia RIGHT OF WAY DEED . . .
      WITNESSETH that U.T. Smith Jr., the undersigned, is the owner of a tract of land in
      said county through which a state aid road, known as project No. SP 1982, on State
      Highway No. 213 between Starrsville and Mansfield has been laid out by the State
      Highway Department of Georgia as a part of the State Aid Road System of Georgia,
      as provided by the Acts of General Assembly of Georgia of 1919 and 1921, said road
      being more particularly described in a map and drawing of said road in office of the
      State Highway Department of Georgia, Atlanta Co., to which reference is hereby
      made.
      Now, therefore, in consideration of the benefit to my property by the construction or
      maintenance of said road, and in consideration of ONE DOLLAR ($1.00) in hand
      paid the receipt whereof is hereby acknowledged. I do hereby grant, bargain, sell
      and convey to said State Highway Department of Georgia, and their successor in
      office in such land in Lot no. ________ of the _______ Land District or
      _____________ G.M. District of said County as to make a right of way for said road
      as surveyed and measured from the center line of the highway location as follows:
      From Sta. 344/22 to Sta. 347/35 a strip 40 ft. wide Rt. & Lt. side. As shown in red
      on attached plat. Said right of way is more particularly described according to a plat
      of the right of way through the property of U.T. Smith, Jr. prepared by the State
      Highway Department of Georgia dated the 20 day of March 1958 and made a part of
      this description.

Pls.’ Suppl. Ex. A-B at 25-26. This deed reflects that the land in question was granted to the
State Highway Department of Georgia through “right of way deed[s],” where such deeds
conveyed a “strip” of land as a “right of way” for a “state aid road” through private land. Id. In
addition, each of these deeds conveyed the corresponding land for a consideration of one dollar.

                                                16
Because the deeds referred to the land conveyed as a “strip” of land and a “right of way,” the
land was acquired to construct a “state aid road” as set forth in Georgia Statute 95-1721, and
nominal consideration was given, the court concludes that the deeds that conveyed the land for
County Road 213 conveyed easements. See Crutchfield, 191 S.E. at 470 (holding that a deed
that granted “right of way over which to pass” conveyed an easement); Sorrells, 92 S.E.2d at 514
(determining that deeds conveying property to a railroad for “nominal consideration” generally
convey only easements). Consequently, because the land granted to construct County Road 213
was conveyed as an easement, those plaintiffs who own the subject parcels of land adjacent to
County Road 213 own to the centerline of the adjoining rail corridor. See Metro. Atlanta Rapid
Transit Auth. v. Datry, 220 S.E.2d 905, 907 (Ga. 1975) (concluding that “as owners of land
abutting Sycamore Street, [the plaintiffs] hold fee simple title to the middle line of the street
subject to the easement held by the City of Decatur”).

        Finally, the court rejects defendant’s argument that the deeds that conveyed the eight
parcels of land—namely, parcels 81.A, 81.B, 81.C, 83, 84, 85.A, 85.B, and 85.C —were fee
conveyances. Some of these parcels were conveyed by the Robinson & Hardeman deed, some
were conveyed by the G.B. Stanton deed, some were conveyed by the White deed, and some
were conveyed by a combination thereof. See Def.’s App’x A. Because the court previously
determined that these deeds conveyed easements, see supra Part II.C.2.a, plaintiffs who own
parcels of land conveyed by any one or combination of these three deeds possess a property
interest in the railroad right-of-way.

                                       4. Railroad Avenue

        Further, in their initial briefs, the parties disagreed as to whether Railroad Avenue, which
runs between the rail corridor and five parcels of land, was conveyed as an easement or in fee to
the town of Mansfield, Georgia. In its supplemental brief, defendant concedes that Railroad
Avenue was conveyed as an easement. Nonetheless, defendant asserts that although four of
these parcels of land—namely, parcels 85.D, 92.A, 92.B, and 92.C—were conveyed as
easements, parcel 95 was not because it falls beyond the limits of the Mansfield plat. In
response, plaintiffs argue that parcel 95 is, indeed, within the limits of the Mansfield plat, and
provide the survey for the land at issue. Based on a review of that survey, the court concludes
that plaintiffs are correct. Parcel 95 was conveyed by the John Roquemore deed. Def.’s App’x
A. The survey for the lands conveyed by the John Roquemore deed clearly indicates that such
parcels, including parcel 95, were platted within the town of Mansfield. See Pls.’ Suppl. Ex. A.
Thus, parcel 95 falls within the limits of the Mansfield plat.

        Defendant raises an additional challenge, arguing that the deed that conveyed these five
parcels of land—namely, parcels 85.D, 92.A, 92.B, 92.C, and 95—was a fee conveyance. By
contrast, plaintiffs argue that each of these parcels of land was conveyed as an easement. It is
evident, based on the court’s prior analysis, that defendant’s argument is incorrect. The court has
already determined that the deed that corresponds to parcel 95, namely, the John Roquemore
deed, and the deed that conveyed the other four parcels, specifically, the J.H. Roquemore deed
both conveyed easements. See supra Part II.C.2.a.




                                                 17
        Finally, defendant argues that the Railroad Avenue easement and the rail corridor (if it is
found to be an easement) should be subdivided at the center of the combined easements, rather
than at the center of the railroad’s easement. Plaintiffs counter that because the railroad was
conveyed as an easement before Railroad Avenue was, the landowners owned to the center of the
rail corridor, and the subsequent establishment of the Railroad Avenue easement did not affect
that ownership. Plaintiffs are correct. Defendant’s contention would be accepted by the court if
the Railroad Avenue easement and the railroad corridor easement had been established at exactly
the same time. However, the railroad corridor easement was established first, and the Railroad
Avenue easement followed at a later date. Thus, the landowners on both sides of the railroad
corridor easement owned to the center of that easement; the addition of the Railroad Avenue
easement afterwards did not change that. Consequently, the plaintiffs who own the parcels of
land adjoining Railroad Avenue own to the centerline of the railroad right-of-way and retain a
property interest in it.3

                                           5. Parcel 97

       Defendant also argues that there is no deed conveying parcel 97, and that the Stanton &
Bateman deed does not pertain to that parcel of land. Plaintiffs concede the point. However,
plaintiffs assert that because the railroad was built adjacent to parcel 97 and has been used and
maintained by the railroad since the 1880s, the railroad has satisfied the requirements of adverse
possession and has acquired an easement by prescription for railroad purposes. In support of
their position, plaintiffs rely on Watkins v. Hartwell R. Co., 597 S.E.2d 377 (Ga. 2004). In that
case, the court held that the subject railroad adversely possessed the disputed land and obtained a
prescriptive easement. Id. at 380. The court explained that the railroad only acquired “title” to
use the right-of-way, but that no fee ownership was given in the right-of-way. Id. Plaintiffs
argue that similarly, in this case, the railroad adversely possessed parcel 97 and therefore only
held title in the easement as a right-of-way, instead of acquiring title in fee simple. According to
plaintiffs, the title in the easement was extinguished when the rail line terminated service.
Defendant responds that the railroad did not acquire an easement that was limited to use as a
right-of-way. Rather, defendant argues, because the railroad adversely possessed the land, it
obtained a claim of title and ownership in the land, not mere use by virtue of an easement.

        Defendant has the better argument. Generally, if a railroad adversely possessed disputed
land, and there is uncertainty regarding whether it used all of the land in the right-of-way, a court
may find that the railroad only acquired an easement limited to rail use. However, because there
is no uncertainty here, the railroad acquired title in fee simple. The court’s ruling is supported by
the holding in Kelley v. Randolph, 763 S.E.2d 858 (2014). In that case, the Supreme Court of
Georgia held that “[t]o establish adverse possession, a party must show possession that is in the
right of the party asserting possession and not another and that is public, continuous, exclusive,
uninterrupted and peaceable, and accompanied by a claim of right.” Id. at 860 (citing Ga. Code
Ann. § 44-5-161 (2010)). Here, the parties agree that the railroad satisfied these elements of
adverse possession when it constructed and used a rail line adjacent to parcel 97. Further, as set


      3
         Defendant previously argued that those plaintiffs who claimed ownership in parcels 3.B,
81.A, 81.C, and 106 did not, in fact, retain such property interests. However, in its supplemental
brief, defendant concedes that each of these plaintiffs did enjoy such ownership.
                                                 18
forth in Kelley, “[p]ossession of property in conformance with these elements for a period of 20
years confers good title by prescription to the property.” Id. (citing Ga. Code Ann. § 44-5-163
(2010)). The railroad possessed the property for more than twenty years, and thus, acquired title
to it, as opposed to a mere easement to use it. The railroad’s “[c]onstruction” of the railroad
“demonstrated [its] exercise of exclusive dominion over the property[,] . . . establish[ing] a claim
of right to the property.” Id. Thus, the railroad acquired a claim of title, or ownership of the
land, with respect to parcel 97. See Id. (noting that “‘claim of right’ is synonymous with ‘claim
of title’ and ‘claim of ownership’ in the sense that the possessor claims the property as his
own”(citing Walker v. Sapelo Island Heritage Auth., 674 S.E.2d 925 (Ga. 2009))); accord Ga.
Power Co. v. Irvin, 482 S.E.2d 362 (Ga. 1997); Waxelbaum v. Gunn, 104 S.E. 216 (Ga. 1920).

         Plaintiffs rely on Watkins to argue that the prescriptive easement here grants “title” to use
the right-of-way, but not fee ownership. The reasoning in Watkins fails to assist plaintiffs. In
that case, the deed conveying the land in question was unrecorded, and the court held that the
railroad satisfied the requirements for adverse possession, thereby “gain[ing] a right-of-way by
prescription.” 597 S.E.2d at 380. The court then examined the “scope of that prescription.” Id.
It held that because it was not clear whether the railroad had used the entirety of the land in the
right-of-way, there was a genuine dispute of material fact as to whether the railroad had “actual
possession of the disputed property.” Id. Consequently, the court reasoned, because
constructive possession of the disputed land in such cases does “not extend beyond the tract or
lot in which actual possession is maintained,” id., and the railroad had not demonstrated actual
possession, it could “not prevail based on constructive possession,” id. at 380. By contrast, in
this case, there is no such factual dispute. The parties agree that the railroad adversely possessed
parcel 97, and plaintiffs do not offer any arguments or evidence creating a dispute of fact
regarding whether the railroad used all of the land in the right-of-way. Thus, there is no basis to
question whether the railroad actually possessed the land, and consequently, whether it
constructively possessed it. The railroad’s claim to the land would therefore not be limited to an
easement. Accordingly, the railroad acquired a claim of title in fee with respect to parcel 97.

                                  6. The Scope of the Easements

        The court must now determine whether the easements at issue were limited to use for
railroad purposes, or if they were broad enough to encompass use for recreational trails. See
Preseault II, 100 F.3d at 1533 (examining whether the easements were “limited to use for
railroad purposes, or [if] they include[d] future use as public recreational trails”). Plaintiffs
contend that because the deeds at issue indicated that the respective rights-of-way were to be
used for railroad purposes, the scope of the easements was limited to rail use.

        By contrast, defendant argues that the easements contemplated public uses like
railbanking. In support of its contention, defendant relies on Romanoff Equities, Inc. v. United
States, 815 F.3d 809, 810 (Fed. Cir. 2016), in which the United States Court of Appeals for the
Federal Circuit (“Federal Circuit”) held that the conversion of a railway to a recreational trail in
the state of New York did not exceed the scope of the easement, and thus, did not constitute a
Fifth Amendment taking. In that case, the court explained that the interest conveyed to the
railroad was an easement. Id. In determining the scope of that easement, the court relied on
Missionary Society of the Salesian Congregation v. Evrotas, 175 N.E. 523 (N.Y. 1931), a

                                                 19
decision by the Court of Appeals of New York, for guidance. In Missionary Society, the court
held that because the subject deed allowed the easement to be used by the railroad and “for all
other lawful purposes,” the easement could also lawfully be used as a walkway and to install
water pipes. Id. at 524. The court reached this conclusion because, it explained, “[w]hen the
terms of a grant are doubtful, the grantee may take the language most strongly in its favor.” Id.

        Consequently, the Federal Circuit reasoned in Romanoff Equities that the Missionary
Society decision “clearly signal[ed] that the New York courts will enforce easements by their
terms and that a very broad easement, although ‘unusual,’ is not void simply because it extends
not only to the specific purposes named in the easement, but to ‘all other lawful purposes.’” 815
F.3d at 814 (citation omitted). The court then noted that the language of the subject deed was
“broad” because it granted the railroad and “its successors and assigns forever . . . the permanent
and perpetual rights and easements . . . together with the exclusive use of the portion of the
parcels of land herein described . . . for railroad purposes and for such other purposes as the
Railroad Company, its successors and assigns, may from time to time or at any time or times
desire to make use of the same.” Id. at 811 (citation omitted). The Federal Circuit therefore
affirmed the trial court, explaining that the “broad grant of the easement ‘for such other
purposes’ as the railroad company and its successors desired to make of it, was broad enough to
encompass the use of the property for a park.” Id. In this case, defendant argues that because the
language of the subject deeds is similarly broad, the court should find that they encompassed trail
use.

        The court examines the scope of the easements that have already been identified above.
In addition, the court evaluates the nature of some additional easements, namely, the easements
conveyed by the Stanton & Bateman deed and by the Stanton, Hays, & Hays deed.4 Because the
Supreme Court of Georgia has held that when deeds stipulate that the land in question is to be
used for railroad purposes and for all other purposes in the railroad’s discretion, the scope of the
easements conveyed is limited to rail use, the court finds that the easements in this case
contemplated only rail use. As described previously, if a deed stipulates that the property in
question is to be used for railroad purposes, the intended use is limited to such purposes. See
Crutchfield, 191 S.E. at 470-71 (determining that because the deed in question “granted, sold,
bargained, and conveyed to [a railroad company], its successors and assigns, the right of way
over which to pass at all times by themselves, directors, officers, agents and hirelings, for the
purpose of running, erecting, and establishing thereon a railroad track or tracks,” the property
was “deeded solely for a railroad right of way, and therefore conveyed to the company only an
easement in said lands for that purpose” (internal quotation marks omitted)); accord Askew, 79


      4
        Defendant concedes that certain deeds conveyed easements. Specifically, these deeds
are: the Dearing deed, Pls.’ Ex. F(1); the Stanton, Hays, & Hays deed, Def.’s Ex. Y; the Stanton
& Bateman deed, Def.’s Ex. R; and the Brown deed, Def.’s Ex. U. Defendant also admits that
when parcels of land along the subject rail corridor were acquired by condemnation, namely, the
“Samuel Johnson Condemnation,” the railroad acquired easements. Defendant concedes that the
scope of the easements associated with the Dearing and Brown deeds, and with the Samuel
Johnson Condemnation, was limited to railroad purposes. However, with respect to the Stanton
& Bateman deed, as well as the Stanton, Hays, & Hays deed, defendant argues that the respective
easements were broad enough to encompass railbanking and interim trail use.
                                                 20
S.E.2d at 532; Rogers, 184 S.E. at 624; Duggan, 156 S.E. at 317. Thus, if an easement is
conveyed for railroad purposes, a public use beyond that is not considered a railroad purpose.
See Tompkins v. Atl. Coast Line R. Co., 79 S.E.2d 41, 47 (Ga. App. 1953) (holding that if an
easement for railroad purposes is conveyed, it does not allow for communications or power lines
on the right-of-way because they exceed the scope of a railroad purpose); see also Haggart v.
United States, 108 Fed. Cl. 70, 93 (Fed. Cl. 2012) (finding that “recreational trail use is not a
railroad purpose and thus exceeds the scope of the . . . easements”). Moreover, if the deed
conveys the land for the railroad’s use and indicates that the land is to be utilized “for all other
purposes,” this phrase, “construed with its associate language,” refers only to purposes related to
building and using the railroad. Duggan, 156 S.E. at 317; Tompkins, 79 S.E.2d at 45 (noting that
“the conveyance to a railroad of the right to construct and operate its road is ordinarily construed
to give the railroad the right to use and to take from the described area of the easement earth,
stone, and timber necessary for the construction of the roadbed and the free operation of its trains
thereon”).

         In this case, the Stanton, Hays, & Hays deed conveyed an easement “through which the
track of the . . . Rail Road r[an],” a qualification clearly indicating that the right-of-way was
intended for rail use alone. Def.’s Ex. Y at 7. Further, the Armstrong deed, the deeds
substantially similar to it, and the Stanton & Bateman deed all conveyed easements to the
railroad “for a right of way of said Railroad, or for any other use, in the discretion of said
Company.” Pls.’ Exs. F(13), F(22); Def.’s Ex. 4. Because the initial part of the clause indicated
that the land conveyed would be used “for a right-of-way of” the railroad, the use of the property
was limited to railroad purposes. Id. Further, although the remainder of the clause indicated that
the land would be used “for any other use, in the discretion of the Company,” this language is
interpreted in the context of the earlier clause, and thus refers only to purposes related to
construction and use of the railroad. Id. Consequently, the scope of the easements conveyed
herein was limited to railroad purposes, and did not contemplate the use of the land as public
trails or for any other use.

         Defendant’s argument that the reasoning in Romanoff Equities applies here is misplaced.
Although the Federal Circuit’s decisions are binding on this court, the Federal Circuit has also
held that in Trails Act cases, whether a taking has occurred is governed by “state-defined
property rights.” Ladd, 630 F.3d at 1019. Thus, because the Federal Circuit’s analysis in
Romanoff Equities was based on New York property law, that decision is not binding here,
where the court must apply Georgia law. The difference between these two states’ bodies of law
highlights why the holding in Romanoff Equities does not apply here. Although New York
courts have interpreted the phrase “for all other lawful purposes” as being broad enough to
include uses beyond railroad purposes, the Supreme Court of Georgia has held that if a deed
conveys land for a railroad’s use and indicates that the land is to be utilized “for all other
purposes,” that phrase, in tandem with the “associate language,” refers only to purposes related
to building and using the railroad. Duggan, 156 S.E. at 317. Consequently, while the phrase
“for all other purposes” is interpreted to include public trail use in New York law, it holds the
opposite meaning in Georgia law. The decision in Romanoff Equities is therefore inapposite
here. Accordingly, the scope of the easements at issue here is limited to railroad purposes and
did not encompass public trail use.



                                                21
                    7. The Effect of the NITU on Plaintiffs’ Property Interests

         In its cross-motion, defendant argued that with respect to those deeds that conveyed
easements, because no railbanking and interim trail use agreement has been reached, it was
uncertain whether a taking had occurred. However, in its supplemental briefing, defendant has
reversed course and now concedes that any takings that occurred did so on the date that the
NITU was issued. Nonetheless, defendant argues, because the railroad has not abandoned the
rail line, the easements have not been terminated. According to defendant, mere nonuse of the
rail line, without further indication of an intent to abandon it, does not constitute abandonment.
Further, defendant asserts, the railroad’s decision to negotiate with a third party regarding the
future use of the corridor indicates that the railroad has not abandoned its property interest.
Defendant argues that if an agreement is reached, the railroad has a right to restore rail service in
the future. According to defendant, because the railroad has not abandoned the rail line, the
easements conveyed by deed have not been terminated and no taking has occurred.

        Defendant’s arguments are contrary to established binding precedent. In Ladd, the
central issue before the Federal Circuit was “whether the issuance of a NITU constitutes a
compensable taking, where no conversion to a recreational trail has occurred.” 630 F.3d at 1015.
The Federal Circuit held:

          Because according to our precedent, a takings claim accrues on the date that a
          NITU issues, events arising after that date—including entering into a trail use
          agreement and converting the railway to a recreational trail—cannot be necessary
          elements of the claim. Hence it is irrelevant that no trail use agreement has been
          reached and that no recreational trail has been established.

Id. at 1024; see also Barclay, 443 F.3d at 1378 (“This is merely another version of the argument–
rejected in Caldwell—that the original NITU should not be viewed as the taking because
subsequent events might render the NITU only temporary.”). The Federal Circuit’s holdings are
unambiguous: the STB’s issuance of a NITU effects a taking. Events arising thereafter—such
as the conversion of a rail line to a trail pursuant to a railbanking agreement, or the restoration of
rail service—are not necessary elements in determining whether a taking occurred. Indeed, they
have no bearing whatsoever on the existence of a Fifth Amendment taking. This conclusion was
reinforced in Preseault II, when the Federal Circuit held that abandonment of the rail line
provided an “alternative ground for concluding that a governmental taking [had] occurred.” 100
F.3d at 1549. Abandonment is therefore not an essential element to determining whether a NITU
effects a taking. Rather, abandonment is an alternative means of evaluating whether a taking has
occurred, distinct from the certainty that issuance of a NITU effects a taking. Consequently, a
taking occurs if (1) a NITU is issued, or, alternatively, (2) the rail line is abandoned. Because a
NITU was issued here, a Fifth Amendment taking occurred, regardless of whether the rail line
was abandoned. Accordingly, the affected plaintiffs are entitled to summary judgment on the
issue of liability.5



      5
        Defendant argues that the NITU and Exemption Notice are ambiguous as to the location
of the end of the rail line. However, as the court stated during oral argument, and in its
                                                  22
                                       III. CONCLUSION

        Because the parties have demonstrated that: (1) some of the deeds at issue conveyed
easements limited to railroad purposes; (2) some of the deeds at issue conveyed interests in fee
simple; and (3) condemnation of some parcels of land resulted in the acquisition of easements
limited to railroad purposes, the court GRANTS IN PART and DENIES IN PART the parties’
cross-motions for partial summary judgment. The parties shall file a joint status report by no
later than Monday, May 23, 2016 suggesting further proceedings.

       IT IS SO ORDERED.


                                                    s/ Margaret M. Sweeney
                                                    MARGARET M. SWEENEY
                                                    Judge




November 9, 2015 order, the parameters of the NITU are settled by the plain language of the
NITU, itself. Tr. of Oral Arg. 72.
                                               23
