              In the United States Court of Federal Claims
                                               No. 13-396 L
                                        (Filed: September 1, 2015)

                                                  )
 WILLIAM E. BARLOW AND TWILA                      )
 L. BARLOW, et al.,                               )
                                                  )
                          Plaintiffs,             )
                                                  )
 v.                                               )       Rails-to-Trails; Fifth Amendment
                                                  )       Takings; National Trails System Act;
 THE UNITED STATES,                               )       Illinois Law; Fee Simple; Easement;
                                                  )       Notice of Interim Trail Use (NITU)
                          Defendant.              )
                                                  )
                                                  )
                                                  )
                                                  )

        Steven M. Wald, Counsel of Record, Stewart Wald & McCulley, LLC, Saint Louis, MO,
for plaintiff.

       Marissa A. Piropato, Trial Attorney, John C. Cruden, Assistant Attorney General,
Environmental and Natural Resources Division, United States Department of Justice,
Washington, DC, for defendant.

                            MEMORANDUM OPINION AND ORDER

      I.      INTRODUCTION

           Plaintiffs, landowners who own property adjacent to a railroad line owned by the Union
Pacific Railroad Company, brought this takings action against the United States pursuant to the
National Trails System Act, 16 U.S.C. §§ 1241-51 (2012). Plaintiffs allege a Fifth Amendment
takings of their reversionary interest in property underlying the railroad line right-of-way, as a
result of the Surface Transportation Board’s issuance of a Notice of Interim Trail Use on
November 13, 2008. The parties have filed cross-motions for partial summary judgment on the
question of whether a compensable takings has occurred, pursuant to Rule 56 of the Rules of the
United States Court of Federal Claims (“RCFC”). For the reasons set forth below, the Court
GRANTS in part and DENIES in part plaintiffs’ motion for partial summary judgment and
GRANTS in part and DENIES in part defendant’s motion for partial summary judgment.


                                                      1
    II.        FACTUAL AND PROCEDURAL BACKGROUND1

          A.     Factual Background

          This “rails-to-trails” case involves an alleged takings of real property situated along an
abandoned railroad line located between milepost 461.5 in Fulton County, Illinois and milepost
486.2 in Peoria County, Illinois (the “Railroad Line”). 2nd Am. Compl. at 2; Pl. Mot. at Ex. D;
Def. Mot. at 6-7. It is undisputed that plaintiffs owned the land abutting the Railroad Line on the
date of the alleged takings. Def. Mot. at 7.

                 1.      The Railroad Line

          The Peoria and Farmington Railway was incorporated under Illinois state law in 1869
pursuant to a special act of the Illinois Legislature. Def. Mot. at 6, Ex. A. The Peoria and
Farmington Railway constructed the Railroad Line between 1882 and 1883. Pl. Mot. at 2, Ex. A;
Def. Mot. at Ex. A, Ex. B. To construct the Railroad Line, the Peoria and Farmington Railway
acquired property through conveyances, transfers, and condemnation. Pl. Mem. at 12; see e.g.,
Pl. Mot. at Ex. P, Ex. DD; Def. Mot. at Ex. C, Ex. D.

          The Union Pacific Railroad Company (“Union Pacific”) is the successor-in-interest to the
Peoria and Farmington Railway, as well as to the Burlington Monmouth & Illinois River
Railway Company and the Iowa Central Railway Company, which each owned the Railroad Line
at various times. Def. Mot. at 6, Ex. B; Pl. Mem. at 12.

          On July 1, 2008, Union Pacific filed a petition for exemption from formal abandonment
proceedings with the Surface Transportation Board, which has exclusive authority over the
construction, operation and abandonment of rail lines. Pl. Mem. at 10-11; Pl. Mot. at Ex A.

          On July 21, 2008, the Illinois Department of Natural Resources expressed an interest in
acquiring the Railroad Line for railbanking and interim trail use, by filing a Statement of
Willingness to Assume Financial Responsibility with the Surface Transportation Board. Pl. Mot.


1
 The facts recounted in this Memorandum Opinion and Order are taken from plaintiffs’ second amended
complaint (“2nd Am. Compl. at ___”), plaintiffs’ motion for partial summary judgment (“Pl. Mot. at __”),
plaintiffs’ memorandum in support of its motion for partial summary judgment (“Pl. Mem. at__”),
defendant’s motion for partial summary judgment (“Def. Mot. at __”), plaintiffs’ opposition thereto (“Pl.
Opp. at __”), and defendant’s reply (“Def. Rep. at __”). Except where otherwise noted, the facts recited
here are undisputed.



                                                    2
  at Ex. C. On October 16, 2008, Union Pacific indicated it was willing to negotiate with the
  Illinois Department of Natural Resources. Def. Mot. at Ex. E. Based upon the mutual
  expression of interest by the Illinois Department of Natural Resources and Union Pacific, the
  Surface Transportation Board issued a Notice of Interim Trail Use (“NITU”) for the Railroad
  Line on November 13, 2008. 2nd Am. Compl. at 13; Pl. Mot. at Ex. D.

            Although the NITU was originally set to expire on May 12, 2009, the Surface
  Transportation Board has granted several extensions of the expiration date for the NITU. Pl.
  Mot. at Ex. E. The most recent extension of the NITU was set to expire on April 26, 2015. Pl.
  Mot. at 3; Def. Mot. at 7. In this regard, the parties have not informed the Court of the current
  status of the NITU. See generally Pl. Opp.; Def. Rep.

            B.     The Disputed Parcels

            In their complaint, plaintiffs identify 51 parcels of land located along the Railroad Line
  that they allege the government has taken without just compensation. See generally 2nd Am.
  Compl. The parties address 21 of these parcels in their cross-motions for partial summary
  judgment. See generally Pl. Mot.; Def. Mot. The 21 parcels can be grouped into five categories:
  (1) parcels conveyed by “right-of-way” agreements; (2) parcels conveyed by “for railroad
  purposes” agreements; (3) parcels with no conveying instrument; (4) parcels acquired by
  condemnation; and (5) parcels to which the parties agree Union Pacific held only an easement.
  See Pl. Mot. at Ex. F-L; Def. Mot. at n.1, App. A-D. The parcels are further described below.

                   1.      Parcels Conveyed By “Right-of-Way” Agreements

            First, 13 parcels of land have been conveyed to Union Pacific via its predecessor-in-
  interest, the Burlington, Monmouth & Illinois River Railway Company, by “right-of-way”
  agreements (parcels 23, 37, 51, 55, 57, 58, 59, 74, 80, 83, 91, 98, 102). Pl. Mem. at 16-17; Pl.
  Mot. at Ex. P-BB; Def. Mot. at 11-12.2 The parties agree that the right-of-way agreements for
  these parcels contain identical conveyance language, which provides as follows:

   2
       Table 1: Parcels Conveyed By “Right-of-Way” Agreements
 NARA Map/Parcel:
   Pl. Exhibit No.       Grantor                                     Affected Plaintiffs
1/23: Ex. P        H. Kruse            William E. & Twila L. Barlow
2/37: Ex. Q        V. Ulrich           Real Estate Development Associates, LLC
2/51: Ex. R        E. Hall             George L. & Marcia J. Swords


                                                      3
                                               RIGHT OF WAY
              In Consideration Of the benefits to be derived from the location and building of the
              Burlington, Monmouth & Illinois River Railway and One Dollar to me in hand paid
              by said Railway Company, the receipt whereof is hereby acknowledged, I do hereby
              grant and convey unto the said Burlington, Monmouth & Illinois River Railway the
              Right of Way for said Railway, four rods wide, over and across the [description of
              land].
              And I Promise and Agree To make all proper and necessary deeds to convey in fee
              simple to said Company, said Right of Way, as soon as said Railway is located on or
              across said described premises.
   Pl. Mot. at Ex. P-BB.

                     2.       Parcels Conveyed By “For Railroad Purposes” Agreements

              Two parcels have been conveyed to Union Pacific via its predecessor-in-interest, the
   Burlington, Monmouth & Illinois River Railway Company, by agreements containing “for
   railroad purposes” language (parcels 44 and 47). Pl. Mem. at 20; Def. Mot. at 14.3 The
   agreement for parcel 44 states, in relevant part, that the grantors “convey and quitclaim to the
   Burlington Monmouth & Illinois River Railway Company for railroad purposes . . . all interest in


2/55: Ex. S           N. Williams         Blake T. Nebergall; Estate of Ethelyn Nebergall; Kent M. Nebergall; Phillip M.
                                          Nebergall; Jill M. Eklund; Bethany Wenger; Linda Pille; Judith D. Schmidgall;
                                          Tommy E. Trotter Revocable Trust; Daniel W. Arnold; Chester Hoffman &
                                          Catherine Schneider; Randall & Sonja S. Whitehurst
3/57: Ex. T           J.H. Pinkerton      Harold A. & Sara E. Passmore; Jacqueline R. Snowden Declaration of Trust &
                                          Richard Kent Snowden Declaration of Trust
3/58: Ex. U           J.A. Pinkerton      Carol S. Newell; John E. & Tammi L. Murphy; Harold A. & Sara E. Passmore
3/59: Ex. V           L.K. Gooding        Virgil D. Janssen; Donald P. & Deb Wallengfang
3/74: Ex. W           J.M. Hart           James W. Hart, Jr.
4/80: Ex. X           J. B. Patton        Raymond D. & Dortha Ryer
4/83: Ex. Y           G.W. DuMars         Kent L. Hudson
5/91: Ex. Z           J. Larkin           Janet K. Beecher
5/98: Ex. AA          W.T. Bell           John T. & Betty L. Fegan; Dale & Jean Peterson
5/102: Ex. BB         D. Downes           Michael Redlingshafer, Estate of Audrey Redlingshafer, Estate of John Redlingshafer

   3
       Table 2: Parcels Conveyed By “For Railroad Purposes” Agreements
NARA Map/Parcel:
 Pl. Exhibit No.            Grantor                                       Affected Plaintiffs
2/44: Ex. DD          J. Borland et al.   Francis H. Roark, Jr.; William & Faith Bryan; Leroy G. & Patricia A. Hagenbuch
2/47: Ex. EE          R.C. Goodrich       Andre L. Garrison; Donald L. & Suzanne K. Holmes; Roland B. & Kathryn E.
                                          Polhemus; Richard C. & Donna J. Vogel; Leamon C. Smith; Corwin E. Storer &
                                          Nicole L. Mauser-Storer




                                                          4
   the following described real estate, to wit: a strip of land . . . .” Pl. Mot. at Ex. DD. The
   agreement for parcel 47 states, in relevant part, that the grantors “convey and warrant for railroad
   purposes to the Burlington Monmouth & Illinois River Railway Company . . . the following
   described real estate, to wit: a strip of land . . . .” Pl. Mot. at Ex. EE.

                    3.      Parcels Without A Conveying Instrument

            In addition, plaintiffs have not provided conveying instruments for three of the parcels in
   dispute (parcels 33, 87, 90).4 Pl. Mem. at 22; Def. Mot. at 16.

                    4.      Parcels Acquired Through Condemnation

            Furthermore, the parties agree that one parcel has been acquired by a predecessor-in-
   interest to Union Pacific by condemnation (parcel 26).5 Pl. Mem. at 23-24; Def. Mot. at 17.

                    5.      Parcels Plaintiffs Held In Fee Simple

            Lastly, the parties agree that plaintiffs owned parcel 29 and the Illinois Route 116 parcel
   in fee simple at the time the Surface Transportation Board issued the NITU on November 13,
   2008.6 Def. Mot. at 1; Pl. Mem. at 20, 26.


   4
       Table 3: Parcels Without A Conveying Instrument
NARA Map/Parcel:
 Pl. Exhibit No.           Grantor                                      Affected Plaintiffs
1/33: N/A            Clarke Coal &      Teresa G. Seymour; Tim Menefee
                     Coke Co.
4/87: Ex. FF         [left              Marvin & Debra A. Swadinsky; Donna Mae Walker Declaration of Trust; The
                     blank]             Donald Gronewold Trust; The Harold Lee Gronewold Declaration of Trust; Mary
                                        Jane Severt
4/90: Ex. FF         Trivoli            Lonne E. Winters; Raymond N. & Jodie DePriest; Eleanor Jean Gronewold
                     Township           Declaration of Trust
   5
       Table 4: Parcel Acquired Through Condemnation
NARA Map/Parcel:
 Pl. Exhibit No.           Grantor                                      Affected Plaintiffs
1/26a: Ex. GG        Sarah Allen        Scott W. Hamilton
   6
       Table 5: Parcels Plaintiffs Held In Fee Simple
 NARA Map/Parcel:
    Pl. Exhibit No.       Grantor                                      Affected Plaintiffs
2/29: Ex. CC        A. Royster          Estate of Hilda Stretch
Illinois Rte. 116   John F. & Lena C. William & Faith A. Bryan; Francis H. Roark Jr.
                    Borland; Charles H.
                    & Sylvia Cameron



                                                        5
       C.      Procedural Background

       On June 13, 2013, plaintiffs filed a complaint, alleging a Fifth Amendment takings claim
against the United States, which plaintiffs subsequently amended on March 20, 2014, and on
July 23, 2014. See generally Pl. Comp.; 1st Am. Compl.; 2nd Am. Compl. On October 3, 2014,
the Court issued an Order certifying an opt-in class under RCFC 23, which includes all persons
owning an interest in the Railroad Line. See generally October 3, 2014 Order; see RCFC 23.

       On November 14, 2014, plaintiffs filed a motion for partial summary judgment on the
question of whether a permanent or temporary takings has occurred with respect to 21 of the 51
parcels listed in their complaint. Pl. Mot. at 4-5. On January 29, 2015, defendant filed a cross-
motion for partial summary judgment on this question, arguing that no compensable takings has
occurred. See generally Def. Mot. On March 2, 2015, plaintiffs filed a reply in support of their
motion for partial summary judgment and a response in opposition to defendant’s cross-motion
for partial summary judgment. See generally Pl. Opp. On April 13, 2015, defendant filed a
reply in support of its cross-motion for partial summary judgment. See generally Def. Rep. On
May 7, 2015, plaintiffs filed a motion requesting oral argument. See generally Pl. Mot. for
Oral Arg.

II.    Legal Standards

       A.      Jurisdiction

       The Tucker Act grants this Court jurisdiction over Fifth Amendment takings claims
against the United States. See 28 U.S.C. § 1491; Morris v. United States, 392 F.3d 1372, 1375
(Fed. Cir. 2004) (“[T]he Tucker Act provides the Court of Federal Claims exclusive jurisdiction
over takings claims for amounts greater than $10,000.”).

       B.      Summary Judgment

       A grant of summary judgment is appropriate when the pleadings, affidavits and
evidentiary materials filed in a case reveal that “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” RCFC 56(a); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Biery v. United States, 753 F.3d 1279, 1286
(Fed. Cir. 2014). A dispute is “genuine” when “the evidence is such that a reasonable jury could




                                                 6
return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. A fact is “material” if it
could “affect the outcome of the suit under the governing law . . . .” Id.

       In resolving motions for summary judgment, the Court will not make credibility
determinations and will draw all inferences ‘“in the light most favorable to the party opposing
the motion.”’ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). In doing so, the Court
does not weigh the evidence presented, but instead must “determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249; Agosto v. INS, 436 U.S. 748, 756 (1978) (“[A trial]
court generally cannot grant summary judgment based on its assessment of the credibility of the
evidence presented . . . .”); see also Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004).
And so, the Court may only grant summary judgment when “the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party . . . .” Matsushita, 475 U.S. at
587.

       The above standard applies when the Court considers cross-motions for summary
judgment. Principal Life Ins. Co. & Subsidiaries v. United States, 116 Fed. Cl. 82, 89 (2014);
see also Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010). And so, when both
parties move for summary judgment, ‘“the court must evaluate each party’s motion on its own
merits, taking care in each instance to draw all reasonable inferences against the party whose
motion is under consideration.”’ Abbey v. United States, 99 Fed. Cl. 430, 436 (2011) (quoting
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)).

       C.      The National Trails System Act

       The Interstate Commerce Act of 1887, ch. 104, 24 Stat. 379, and the Transportation Act
of 1920, ch. 91, 41 Stat. 477–78, granted the Interstate Commerce Commission, now the Surface
Transportation Board, exclusive authority over the construction, operation and abandonment of
the Nation’s rail lines. See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311,
321 (1981). In order for a railroad company to terminate rail service, the railroad company must
obtain the consent of the Surface Transportation Board. See Barclay v. United States, 443 F.3d
1368, 1371 (Fed. Cir. 2006), cert. denied, 549 U.S. 1209 (2007). To obtain such consent, the
railroad company may apply for permission to discontinue service, seek permission to terminate
through abandonment proceedings, or file a request for an exemption from abandonment


                                                  7
proceedings. See 49 U.S.C. § 10903(d)(1)-(2) (2012); Barclay, 443 F.3d at 1371. Once the
Surface Transportation Board consents, the rail line is removed from the national transportation
system and the Surface Transportation Board’s jurisdiction comes to an end. Id.

        In 1983, Congress amended the National Trails System Act to include an alternative
process for railroad companies to abandon rail lines. 16 U.S.C. § 1247(d); Preseault v. Interstate
Commerce Comm’n, 494 U.S. 1, 5-6 (1990) (“Preseault I”); Caldwell v. United States, 391 F.3d
1226, 1229 (2004) (“Caldwell II”). This process, known as “railbanking,” preserves corridors or
rights-of-ways not in use for train service for possible future use as recreational trails. Id.

        In order for a rail line to be “railbanked,” the railroad company must first file an
abandonment application under 49 U.S.C. § 10903 (2002), or a notice of exemption from that
process under 49 U.S.C. § 10502 (2012). Once an abandonment application, or request for an
exemption, is filed, a party interested in railbanking may request the issuance of a certificate of
interim trail use (“CITU”) (in abandonment application proceedings) or a NITU (in abandonment
exemption proceedings). 49 C.F.R. §1152.29(c)-(d). If the railroad company indicates that it is
willing to negotiate a railbanking and interim trail use agreement, the Surface Transportation
Board issues the CITU or NITU. Id. The issuance of the CITU or NITU preserves the Surface
Transportation Board’s jurisdiction over the rail line and allows the railroad company to
discontinue operations and remove track and equipment while the parties negotiate a railbanking
and interim trail use agreement. Id.; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 711-
12 (2011).

        The NITU or CITU affords the railroad company 180 days in which to negotiate a
railbanking and interim trail use agreement with the third party. 49 C.F.R. § 1152.29(c)(1),
(d)(1); Caldwell II, 391 F.3d at 1229-30, 1233. “If an agreement is reached, the NITU [or CITU]
automatically authorizes the interim trail use. If the [Surface Transportation Board] takes no
further action, the trail sponsor then may assume management of the right-of-way, subject only
to the right of a railroad to reassert control of the property for restoration of rail service.”
Caldwell v. United States, 57 Fed. Cl. 193, 195 (2003) aff'd, 391 F.3d 1226 (Fed. Cir. 2004)
(Caldwell I) (internal citations omitted); see also 16 U.S.C. § 1247(d); 49 C.F.R. §
1152.29(d)(2). If no agreement is reached, the railroad company may proceed with the
abandonment process. 49 C.F.R. §§ 1152.29(d)(1), (e)(2).



                                                    8
        D.      Fifth Amendment Takings And “Rails-to-Trails” Cases

        A Fifth Amendment takings occurs in rails-to-trails cases when the government, through
the issuance of a CITU or NITU, destroys an individual’s state law reversionary interest in
property underlying a railroad right-of-way. Ladd v. United States, 630 F.3d 1015, 1023-24
(Fed. Cir. 2010); Barclay, 443 F.3d at 1374 (“The issuance of the NITU is the only event that
must occur to ‘entitle the plaintiff to institute an action.’ Accrual is not delayed until a trail use
agreement is executed or the trail operator takes physical possession of the right-of-way.”
(internal citations omitted)); Caldwell I, 391 F.3d at 1233–34. “[O]nly persons with a valid
property interest at the time of the taking are entitled to compensation.” Wyatt v. United States,
271 F.3d 1090, 1096 (Fed. Cir. 2001).

        To determine whether a Fifth Amendment takings has occurred in a rails-to-trails case,
the Court follows a three-part analysis established by the United States Court of Appeals for the
Federal Circuit. See Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009)
(citing Preseault v. United States, 100 F.3d 1525, 1533 (1996) (“Preseault II”)). First, the Court
must determine who owned the land at issue at the time of the takings; and specifically whether
the railroad company owned the land in fee simple or held only an easement. Id. Second, if the
railroad company owned only an easement, the Court must determine whether the terms of the
easement are limited to use for railroad purposes, or whether the terms include use as a public
recreational trail. Id. Third, if the railroad company’s easement is broad enough to encompass
recreational trail use, the Court must determine whether the easement terminated prior to the
alleged takings, so that the property owner held a fee simple estate unencumbered by easement at
the time of the takings. Id.

        To determine whether the railroad company held an easement, or held the property in fee
simple at the time of the takings, the Court must look to the law of the state in which the property
is located. Preseault II, 100 F.3d at 1540. Because the Railroad Line is located in Illinois,
Illinois state law applies in this case. 2nd Am. Compl. at 2; Preseault I, 494 U.S. at 20-21.

        Under Illinois law, agreements should be construed in a manner that fulfills the intention
of the parties. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Cent. Ill. Public Serv. Co.,
43 N.E.2d 993, 996 (Ill. 1942). This intention should be ascertained by reading the agreement as
a whole, and every word and clause within the agreement should be considered and given full


                                                   9
effect if possible. Keen v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 64 N.E.2d 499,
502-03 (Ill. 1945); Tallman v. E. Ill. & Peoria R.R. Co., 41 N.E.2d 537, 539 (Ill. 1942); Sowers
v. Illinois Cent. Gulf R.R. Co., 503 N.E.2d 1082, 1084 (Ill. App. Ct. 1987). “Absent an
ambiguity in the deed, the intention of the parties must be discerned solely from the language of
the instrument, without consideration of extrinsic factors.” Urbaitis v. Commonwealth Edison,
575 N.E.2d 548, 552 (Ill. 1991) (citing Shelton v. Andres, 478 N.E.2d 311, 314 (Ill. 1985)).

       Additionally, under Illinois law, determining whether an agreement grants an easement or
a fee simple estate requires “construction of the instrument to determine whether the granting
clause conveys a designated piece of land or whether it refers to a right or privilege with respect
to the piece of land.” Penn Cent. Corp. v. Commonwealth Edison Co., 512 N.E.2d 118, 119 (Ill.
App. Ct. 1987) (citing McVey v. Unknown Shareholders of Inland Coal & Washing Co., 427
N.E.2d 215, 217 (Ill. App. Ct. 1981)). Generally speaking, an instrument containing the words
“convey and warrant” is deemed to convey a fee simple estate. Urbaitis, 575 N.E.2d at 552
(citing Tallman, 41 N.E.2d at 543). However, an instrument that grants simply a “right” in a
parcel of land is deemed to convey only an easement. Urbaitis, 575 N.E.2d at 552 (citing
Magnolia Petroleum Co. v. West, 30 N.E.2d 24, 26 (Ill. 1940)).

       In addition to the above common law rules of construction, the Illinois Legislature has
enacted the Conveyance Act, which sets forth the default rules for conveyances of property. 765
Ill. Comp. Stat. Ann. 5/0.01-5/39 (1990). Specifically, section 13 of the Conveyance Act
provides that “[e]very estate in lands which shall be granted, conveyed or devised, although other
words heretofore necessary to transfer an estate of inheritance be not added, shall be deemed a
fee simple estate of inheritance, if a less estate be not limited by express words, or do not appear
to have been granted, conveyed or devised by construction or operation of law.” 765 Ill. Comp.
Stat. Ann. 5/13 (1985) (emphasis added). Section 19 of the Conveyance Act also authorizes
railroad companies to “take and hold such voluntary grants of real estate and other property as
shall be made to it, in aid of the construction and use of its railway, and to convey the same when
no longer required for the uses of such railway, not incompatible with the terms of the original
grant.” 610 Ill. Comp. Stat. Ann. 5/19 (1985). This authorization has been interpreted by Illinois
state courts to permit “railroad corporations to take title in fee simple to lands conveyed to it.”
Keen, 64 N.E.2d at 505.



                                                 10
III.   LEGAL ANALYSIS

       The parties’ cross-motions for partial summary judgment present three key questions:
First, what was the nature of the property interest held by Union Pacific in the 21 parcels in
dispute at the time that the Surface Transportation Board issued the NITU? Second, in the event
that Union Pacific held an easement to any of the relevant parcels, was the scope of the easement
exceeded by the issuance of the NITU? Lastly, if the scope of any easement has been exceeded,
did a temporary or permanent takings occur?

       For the reasons discussed below, the undisputed material facts show that Union Pacific
held the 13 parcels conveyed by “right-of-way” agreements and the two parcels conveyed by
“for railroad purposes” agreements in fee simple when the Surface Transportation Board issued
the NITU. The undisputed material facts also demonstrate that plaintiffs have not met their
burden of proof to show that they held cognizable property interests in the three parcels for
which plaintiffs have not provided conveying instruments.

       A material fact remains in dispute with respect to the ownership of the single parcel
acquired by Union Pacific through condemnation.

       In addition, the undisputed material facts also show that plaintiffs held parcel 29 and the
Illinois Route 116 parcel in fee simple, and that Union Pacific held only an easement in these
parcels, when the Surface Transportation Board issued the NITU. In this regard, the undisputed
material facts also show that the scope of the easements held by Union Pacific had been
exceeded when the Surface Transportation Board issued the NITU.

       And so, the Court DENIES plaintiffs’ motion for partial summary judgment and
GRANTS defendant’s motion for partial summary judgment with respect to the 13 parcels
conveyed to Union Pacific by “right-of-way” agreements and the two parcels conveyed to Union
Pacific by “for railroad purposes” agreements. Because plaintiffs fail to meet their burden of
proof with respect to the three parcels for which plaintiffs have not provided conveying
instruments, the Court DENIES plaintiffs’ motion for partial summary judgment and GRANTS
defendant’s motion for partial summary judgment with respect to these parcels. In addition, the
Court DENIES both parties’ motions for partial summary judgment with respect to the parcel
acquired by condemnation. Finally, the Court GRANTS in part plaintiffs’ motion for partial




                                                11
summary judgment and DENIES in part defendant’s motion for partial summary judgment, with
respect to parcel 29 and the Illinois Route 116 parcel.

        A.      Nature Of The Parties’ Property Interest

        In “rails-to-trails” takings cases, the Court must decide as a threshold matter, whether the
railroad company in question held the disputed property in fee simple under applicable state law
at the time of the takings. Preseault II, 100 F.3d at 1533. And so, the Court begins the analysis
here by addressing whether Union Pacific held a fee simple interest in any of the parcels in
dispute when the Surface Transportation Board issued the NITU.

                1.      Parcels Conveyed By “Right-of-Way” Agreements

        The undisputed material facts show that Union Pacific held the 13 parcels conveyed to
the Burlington, Monmouth & Illinois River Railway Company by “right-of-way” agreements in
fee simple when the Surface Transportation Board issued the NITU.7 In this regard, the parties
agree that the conveyance language for the 13 parcels is identical and provides, in pertinent part,
that:

                                               RIGHT OF WAY
        In Consideration Of the benefits to be derived from the location and building of
        the Burlington, Monmouth & Illinois River Railway and One Dollar to me in
        hand paid by said Railway Company, the receipt whereof is hereby
        acknowledged, I do hereby grant and convey unto the said Burlington,
        Monmouth & Illinois River Railway the Right of Way for said Railway, four
        rods wide, over and across the [description of land].
        And I Promise and Agree To make all proper and necessary deeds to convey in
        fee simple to said Company, said Right of Way, as soon as said Railway is
        located on or across said described premises.
Pl. Mot. at Ex. P-BB (emphasis added).

        The plain language of the right-of-way agreement shows that the agreement conveys a
fee simple estate. The agreement provides in pertinent part that “I do hereby grant and convey
unto the said Burlington, Monmouth & Illinois River Railway the Right of Way for said


7
  Although the 21 parcels were originally conveyed to various other railroad companies, Union Pacific, as
the successor-in-interest, holds the same property interest in the parcels as held by its predecessor. Penn
Cent. Corp., 512 N.E.2d at 121 (successors-in-interest are granted a fee simple title in land if fee simple
title was conveyed to their predecessor-in-interest).


                                                    12
Railway . . . And I Promise and Agree To make all proper and necessary deeds to convey in fee
simple . . . said Right of Way . . . .” Id. (emphasis added). Under Illinois state law, there is a
rebuttable presumption that real property that is conveyed by an agreement containing the word
“covey”−as is the case here−conveys that property in fee simple. 765 Ill. Comp. Stat. Ann. 5/13
(1985); see also Keen, 64 N.E.2d at 502-03; Sowers, 503 N.E.2d at 1085. This presumption can
be overcome if a contrary intent is clearly expressed in the agreement. Id. And so, the Court
presumes here that the right of way agreement conveyed a fee simple estate in the 13 parcels to
Union Pacific, unless there is other language in the agreement to rebut this presumption. Keen,
64 N.E.2d at 502; Tallman, 41 N.E.2d at 539; Sowers, 503 N.E.2d at 1085.

       Plaintiffs point to the words “right-of-way” and “across,” which appear in the agreement,
to argue that there was no intent to convey a fee simple estate to Union Pacific. Pl. Mem. at 17-
18. Plaintiffs’ reliance upon these words to rebut the presumption that a fee simple estate has
been conveyed to Union Pacific is, however, misplaced.

       First, Illinois state courts have interpreted the words “right-of-way” to rebut the
presumption that agreements convey real property in fee simple, under certain circumstances.
Tallman, 41 N.E.2d at 540. Specifically, when the words “right-of-way” are used in an
agreement conveying real property to indicate the nature of the property interest being conveyed,
Illinois state courts have held that such agreements convey only an easement. Id. On the other
hand, Illinois state courts have held that when the words “right-of-way” are used to describe the
parcel being conveyed−rather than the property interest being conveyed−these words do not
limit the fee simple estate conveyed. Keen, 64 N.E.2d at 503; Sowers, 503 N.E.2d at 1086 (The
phrase “right of way” “in the consideration clause cannot be construed to limit the estate
conveyed.”); see also Urbaitis, 575 N.E.2d at 553 (“[T]here is no per se rule that the mere
inclusion of the term ‘right-of-way’ in any deed to a railroad negates the possibility that title in
fee simple was conveyed.”).

       A plain reading of the agreement at issue here makes clear that the words “right-of-way”
do not limit the estate conveyed to Union Pacific. Rather, these words describe the 13 parcels
that have been conveyed to Union Pacific. See Pl. Mot. at Ex. P-BB; see also Keen, 64 N.E.2d at
503; Sowers, 503 N.E.2d at 1086; Pl. Mot. at Ex. P-BB. In this regard, the agreements are
entitled “RIGHT OF WAY” and provide in two places that the grantors convey the “Right of



                                                  13
Way.” Pl. Mot. at Ex. P-BB. By entitling the agreement “RIGHT OF WAY” the parties have
demonstrated their intent to use this phrase to describe the parcels to be conveyed to the railroad
company. Id. This intent to describe the parcels−rather than to limit the estate conveyed−is
further evidenced by the language in the agreement that provides that the grantor intends “to
convey in fee simple.” Id. In fact, to read the right-of-way agreement to limit the fee simple
estate granted by this clause would require the Court to interpret the agreement in a manner
contrary to the parties’ express intent to convey the parcels in fee simple. And so, the Court
must read the agreement as a whole and conclude that the words “right-of-way” do not limit the
fee simple estate conveyed to Union Pacific in this case.

       The word “across” similarly does not limit the estate conveyed to the railroad company.
As discussed above, the agreement provides in pertinent part that:

       I do hereby grant and convey unto the said Burlington, Monmouth & Illinois
       River Railway the Right of Way for said Railway, four rods wide, over and
       across the [description of land].
       And I Promise and Agree To make all proper and necessary deeds to convey in
       fee simple to said Company, said Right of Way, as soon as said Railway is
       located on or across said described premises.
Pl. Mot. at Ex. P-BB (emphasis added). Illinois state courts have held that the word “across”
may limit the estate conveyed to something less than a fee simple estate, under certain
circumstances. Tallman, 41 N.E.2d at 539; Spierling v. Ohl, 83 N.E. 1068, 1069 (Ill. 1908).
But, Illinois state courts have specifically held that the word “across” does not limit the estate
conveyed when it is being used to simply describe the property at issue. Penn Cent. Corp., 512
N.E.2d at 120 (“We find that the use of the words ‘over’, ‘across’, and ‘through’ is merely
descriptive of the estate conveyed and does not constitute a limitation on the use of the land. In
addition, we find that the other language in the deed, such as the phrase ‘a strip of land,’ is clear
and unambiguous in purporting to convey the land itself in fee simple.”).

       Here, a plain reading of the agreement shows that the word “across” is intended to
describe where the parcel being conveyed is located. Pl. Mot. at Ex. P-BB. In both instances
where the word “across” appears in the agreement, this word precedes a detailed description of
the parcels conveyed to the railroad company. Id. And so, reading the right-of-way agreement
as a whole shows that the parties intended the word “across” to describe the parcels conveyed to
the railroad company. For this reason, there is nothing in the right-of-way agreement to rebut the


                                                  14
presumption under Illinois state law that the parties to these agreements intended to convey the
parcels to the railroad company in fee simple.8 See King v. Lee, 118 N.E. 724, 726 (Ill. 1918)
(“It is well settled that, where real property is conveyed in fee restrictions in the use are not
favored . . . .”).

        Because the right-of-way agreement conveys a fee simple estate under Illinois law,
plaintiffs could not have held any of the 13 parcels conveyed by right-of-way agreements in fee
simple at the time the Surface Transportation Board issued the NITU. And so, plaintiffs’ motion
for partial summary judgment as to parcels 23, 37, 51, 55, 57, 58, 59, 74, 80, 83, 91, 98, and 102
must be denied. For the same reasons, defendant’s cross-motion for partial summary judgment
with respect to these parcels is granted.

                 2.     Parcels Conveyed By “For Railroad Purposes” Agreements

        The undisputed material facts also show that when the Surface Transportation Board
issued the NITU, Union Pacific held parcels 44 and 47 in fee simple. The agreements
transferring these parcels contain the phrase “for railroad purposes,” which plaintiffs maintain
limits the estate conveyed to an easement. Pl. Mot. at Ex. DD, Ex. EE; Pl. Mem. at 20-21. For
the reasons discussed below, the Court disagrees.

        With respect to parcel 44, the agreement conveying this parcel provides, in pertinent part,
that the grantor does “convey and quitclaim to the Burlington Monmouth & Illinois River
Railway Company for railroad purposes . . . all interest” in the parcel. Pl. Mot. at Ex. DD
(emphasis added). The agreement for parcel 47 provides in pertinent part that the grantor does
“convey and warrant for railroad purposes to the Burlington Monmouth & Illinois River
Railway Company” the parcel. Pl. Mot. at Ex. EE (emphasis added).

        As established above, the use of word “convey” creates a rebuttable presumption that the
parcels are being conveyed in fee simple under Illinois law. 765 Ill. Comp. Stat. Ann. 5/13



8
  Although no deeds were located granting the parcels to the railroad company in fee simple, the property
owner’s covenant to convey the parcels in fee simple runs with the land regardless of whether the parties
have the deeds memorializing such a conveyance. Purvis v. Shuman, 112 N.E. 679, 682 (Ill. 1916)
(covenants that run with the land are those that “concern[] the lands and the enjoyment of it”); Louisville
& Nashville R.R. Co. v. Illinois Central R.R. Co., 51 N.E. 824, 825 (Ill. 1898) (covenant allowing a
railroad company a right-of-way over a railroad line runs with the land).



                                                    15
(1985); see Keen, 64 N.E.2d at 504 (“deed conveying to a railroad company ‘a strip of land,’ in
the absence of any limitation in the deed upon the estate conveyed, conveys fee-simple title to
the ‘strip of land’ described.”); Penn Cent. Corp, 512 N.E.2d at 119-20. And so, the question for
the Court to resolve is whether the words “for railroad purposes” limit the estate conveyed to
Union Pacific. Sowers, 503 N.E.2d at 1084-86.

        A plain reading of the two agreements shows that the words “for railroad purposes” do
not limit the estate conveyed to Union Pacific. Although the Court is not aware of any Illinois
state cases that have interpreted the meaning of the phrase “for railroad purposes,” within the
context of an agreement conveying real property to a railroad company, Illinois state courts have
addressed the meaning of similar language. In Keen v. Cleveland, Cincinnati, Chicago & St.
Louis Ry. Co., the Supreme Court of Illinois held that the words “for the purpose of facilitating
the construction and completion” of the railroad line do not limit the conveyance, because the
language is “merely the expression of the considerations which prompted the grantor to execute
the deed. . . .” Keen, 64 N.E.2d at 503. Similarly, in Sowers v. Illinois Cent. Gulf R.R. Co., the
Fifth District Appellate Court of Illinois also held that the words “to construct their Railroad” do
not limit the estate conveyed to something less than a fee simple estate. Sowers, 503 N.E.2d at
1086. For this reason, the court concluded that, when “reference is made to the purpose of the
grant as enabling the grantee to construct a railroad on the subject property, this did not limit the
estate conveyed to be a mere easement for use as a railroad right of way.” Sowers, 503 N.E.2d at
1086. In addition, in Penn Cent. Corp. v. Commonwealth Edison Co., the Third District
Appellate Court of Illinois also held that the words “for the purpose of enabling the said
Company to construct their said Road” do not limit the conveyance to the railroad company,
because these words were “merely expressive of the purpose which motivated the grantor to
make the conveyance.” Penn Cent. Corp., 512 N.E.2d at 119-20.9

        The Keen, Sowers and Penn Cent. Corp. cases are instructive in determining the nature of
the property interest conveyed to Union Pacific here. A plain reading of the agreements at issue

9
  Plaintiffs rely upon Magnolia Petroleum Co. v. West, 30 N.E.2d at 26 to support their argument that the
“for railroad purposes” language in the agreements at issue here limits the estate conveyed to an
easement. Pl. Mem. at 20-21; Pl. Opp. at 3-4. But in Magnolia Petroleum, the Supreme Court of Illinois
found that the phrase “for railroad purposes” did not alone limit the conveyance. Magnolia Petroleum
Co., 30 N.E.2d at 25-27. Rather, the court relied upon other evidence to determine that the parties
intended to convey only an easement in that case. Id.


                                                   16
in this case shows that the words “for railroad purposes” are intended to explain the reason for
conveying parcels 44 and 47 was to operate a railroad line. Pl. Mot. at Ex. DD, EE; Keen, 64
N.E.2d at 503; Sowers, 503 N.E.2d at 1086-87; Penn Cent. Corp., 512 N.E.2d at 120. Indeed,
similar to the language at issue in Penn Cent. Corp., the “for railroad purposes” language is
“merely expressive of the purpose which motivated the grantor to make the conveyance.” Penn
Cent. Corp., 512 N.E.2d at 119-20. And so, the words “for railroad purposes” do not serve to
limit the fee simple estate transferred to Union Pacific. 765 Ill. Comp. Stat. Ann. 5/13 (1985);
Keen, 64 N.E.2d at 504 (“deed conveying to a railroad company ‘a strip of land,’ in the absence
of any limitation in the deed upon the estate conveyed, conveys fee-simple title to the ‘strip of
land’ described.”).10

        Given this, the undisputed material facts show that Union Pacific held parcels 44 and 47
in fee simple when the Surface Transportation Board issued the NITU. Plaintiffs’ motion for
partial summary judgment as to parcels 44 and 47 must, therefore, be denied. For the same
reasons, defendant’s cross-motion for partial summary judgment with respect to these parcels is
granted.

                3.      Parcels Without A Conveying Instrument

        In addition, plaintiffs have not met their burden to show that they held a cognizable
property interest in parcels 33, 87 and 90 when the Surface Transportation Board issued the
NITU. The United States Court of Appeals for the Federal Circuit has held that “[i]t is plaintiffs’
burden to establish cognizable property interests for purposes of their takings . . . claims.”
Klamath Irrigation Dist. v. United States, 635 F.3d 505, 519 n.12 (Fed. Cir. 2011); see
Burgess v. United States, 109 Fed. Cl. 223, 237 (2013) (This burden of proof “requirement
plainly applies to rails-to-trails cases.”); Estate of Hage v. United States, 687 F.3d 1281, 1291
(Fed. Cir. 2012) (“It is the [plaintiffs’] burden to establish cognizable property interests for the
purposes of their takings claims.”); Thomas v. United States, 106 Fed. Cl. 467, 478 (2012). And



10
   This conclusion is further supported by the language in the agreement for parcel 44, which conveyed
“all of [the grantor’s] interest” in the land. Pl. Mot. at Ex. DD. This language indicates that no
reversionary interest or right-of-re-entry has been preserved in the land if the Burlington, Monmouth &
Illinois River Railway Company failed to use the land “for railroad purposes.” Id.; Keen, 64 N.E.2d at
503-04.


                                                   17
so, plaintiffs must show that they have cognizable property interests in these parcels in order to
pursue their takings claims.

        Plaintiffs have not satisfied their burden. In their motion for partial summary judgment,
plaintiffs do not provide any documentation to show who owns parcels 33, 87 and 90, or how
these parcels have been conveyed to Union Pacific. Pl. Memo. 21-23; Pl. Mot. at Ex. O, Ex. HH,
Ex. FF; Def. Mot. at 15-17. Instead, plaintiffs put forward documents to show that certain
plaintiffs own the land abutting the disputed parcels. See Pl. Mot. at Ex. M, Ex. L, Ex. F-K,
Ex. O, Ex. FF, and Ex. HH.11 This Court has held that, if the “evidence produced merely
suggests that a right-of-way was transferred, but does not prove whether such an interest was, in
fact, conveyed,” plaintiffs have not met their burden of proof. McClurg Family Farm, LLC v.
United States, 115 Fed. Cl. 1, 17-18 (2014). And so, plaintiffs have not shown that they have
cognizable property interests in the disputed parcels. Id.

        Nonetheless, plaintiffs point to this Court’s “rails-to-trails” decision in The Dana R.
Hodges Trust v. United States, to argue that they have provided sufficient evidence to meet their
burden of proof. 101 Fed. Cl. 549 (2011); Pl. Mem. at 3. Plaintiffs’ reliance upon the Hodges
case is misplaced.

        In Hodges, this Court held that plaintiffs met their burden of proof by providing valuation
maps stating that there was “no deed” conveying the property, along with other deeds and tax
records. Hodges, 101 Fed. Cl. at 560. But, the Court in Hodges specifically found that the
reference to “no deed” in the valuation maps in that case indicated that the property had been
acquired by adverse possession. Id. In contrast, here, the valuation maps put forward by
plaintiffs contain no such language. Pl. Mot. at Ex. F-K. In fact, there is no evidence before the
Court to even suggest that parcels 33, 87 and 90 have been acquired by adverse possession. Id.

        Given this, the Hodges case is distinguishable from this matter and plaintiffs have simply
not met their burden to show that they owned parcels 33, 87 and 90 in fee simple at the time that
the Surface Transportation Board issued the NITU. Id. Plaintiffs’ motion for partial summary


11
  Plaintiffs have provided the Court with the ICC Valuation Schedules (Pl. Mot. at Ex. L); the ICC
Valuation Maps (Pl. Mot. at Ex. F-K); plaintiffs’ subpoena to Union Pacific (Pl. Mot. at Ex. O); Union
Pacific’s response to plaintiffs’ subpoena (Pl. Mot. at Ex. FF); the correspondence between plaintiffs’
counsel and Union Pacific (Pl. Mot. at Ex. HH); and deeds, tax records, and maps (Pl. Mot. at Ex. M).



                                                   18
judgment as to these parcels must, therefore, be denied. For the same reasons, defendant’s cross-
motion for partial summary judgment with respect to these parcels is granted.

               4.      Parcel Acquired Through Condemnation

       Because there are material facts in dispute as to the ownership of parcel 26, neither party
has established that they are entitled to summary judgment with respect to this parcel. Pl. Mem.
at 23; Pl. Mot. at Ex. GG; Def. Rep. at 8. In this regard, the parties agree that parcel 26 has been
acquired by condemnation. Id. But, the parties disagree about which railroad company actually
condemned the parcel and when the condemnation occurred. Id. As established below, the
resolution of this factual dispute is material to resolving whether plaintiffs have a cognizable
property interest in this disputed parcel.

       Pursuant to the 1870 Illinois Constitution, a railroad company may only obtain an
easement for property acquired through condemnation proceedings. Ill. Const. 1870, art. II, §
13; Chicago & E. Ill. R.R. Co. v. Clapp, 66 N.E. 223, 223 (Ill. 1903) (“Section 13 of article 2 of
the Constitution of 1870 of Illinois provides that ‘the fee of land taken for railroad tracks without
consent of the owners thereof, shall remain in such owners subject to the use for which it is
taken.’”) (citations omitted). But, prior to the adoption of the 1870 Illinois Constitution, a
railroad company could acquire land conveyed by condemnation in fee simple. Cleveland,
Cincinnati, Chicago & St. Louis Ry. Co., 43 N.E.2d at 996 (“The general condemnation laws in
force prior to the adoption of the Constitution in 1870 provided that a railroad company in
acquiring title for a right of way should take it in fee simple.”). And so, if a railroad company
chartered prior to the adoption of the 1870 Illinois Constitution condemned parcel 26, it is at
least possible that the acquired parcel could have been conveyed in fee simple. On the other
hand, if a railroad company chartered after the adoption of the 1870 Illinois Constitution
condemned parcel 26, there can be no dispute that Union Pacific could have only acquired an
easement in the parcel.

       In their motion, plaintiffs maintain that the Iowa Central Railway Company, which
formed after the adoption of the 1870 Illinois Constitution, condemned parcel 26. Pl. Opp. at 7-
8. In contrast, the government argues that the Peoria and Farmington Railway, which
incorporated before the adoption of the 1870 Illinois Constitution, obtained parcel 26 in fee




                                                 19
simple by condemnation. Def. Rep. at 8.12 But, neither party has put forward evidence to
establish which railroad company acquired parcel 26 by condemnation or when the
condemnation occurred. Because these factual questions are material to resolving the dispute
over whether parcel 26 has been conveyed to Union Pacific in fee simple, the Court is unable to
resolve this issue by summary judgment. RCFC 56(a); see Anderson, 477 U.S. at 247-48; Biery,
753 F.3d at 1286. And so, the parties’ cross-motions for partial summary judgment on this issue
must be denied.

                5.       Parcels Plaintiffs Held In Fee Simple

        Lastly, the undisputed material facts show that plaintiffs held parcel 29 and the Illinois
Route 116 parcel in fee simple when the Surface Transportation Board issued the NITU. In its
motion for partial summary judgment, the government concedes that “the applicable
conveyances (‘deeds’) by which Union Pacific’s predecessor-in-interest acquired its interests in
the portions of the subject corridor adjacent to these three claimants’ properties only conveyed an
easement to the railroad under applicable Illinois state law.” Def. Mot. at 1 n.1. And so, there is
no dispute that plaintiffs held these parcels in fee simple, and that Union Pacific held only an
easement with respect to these parcels, when the Surface Transportation Board issued the NITU.

        B.      Scope Of Easement And Takings

        Because there is no dispute that Union Pacific held an easement with respect to parcel 29
and the Illinois Route 116 parcel, the Court next turns to the question of whether the scope of the
easement for those parcels has been exceeded by the issuance of the NITU. See Ellamae Phillips
Co., 564 F.3d at 1373; see also Preseault II, 100 F.3d at 1533. To make this determination, the
Court looks to whether the terms of the easement are limited to use for railroad purposes, or

12
  While the Illinois Supreme Court has declined to consider whether the 1870 Constitution applies
retroactively to a railroad charter incorporated before 1870, the United States Court of Appeals for the
Seventh Circuit has found that the relevant portions of the 1870 Constitution have no retroactive effect.
Marathon Oil Co. v. Heath, 358 F.2d 34, 37 n.6 (7th Cir. 1966) (“Section 13 of article II of the Illinois
constitution, S.H.A., adopted in 1870, effected a change in the condemnation power of railroads from that
granted by the statutes we have discussed by providing that railroads may acquire no more than an
easement over the right of way taken. This change had no retroactive effect.”) (internal citations omitted);
Peoria & R.I. Ry. v. Birkett, 62 Ill. 332, 337 (1872) (“We do not decide as to the effect of the constitution
upon the charter of the company . . . .”). And so, it appears that the Peoria and Farmington Company
could have acquired the parcel in fee simple. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 43
N.E.2d at 996; see also Marathon Oil Co., 358 F.2d at 37 n.6.; Peoria & R.I. Ry., 62 Ill. at 337.



                                                     20
whether the terms include use as a public recreational trail. Id. In this regard, if the terms of the
easement are limited to use for railroad purposes, the issuance of the NITU would exceed the
scope of the easement. Id.; see Duresa v. Commonwealth Edison Co., 807 N.E.2d 1054, 1063
(Ill. App. Ct. 2004).

       The government does not contest that the issuance of the NITU in this case exceeded the
scope of the easements for parcel 29 and the Illinois Route 116 parcel. Def. Mot. at 1 n.1, 27-30,
App. A. And so, the remaining question before the Court is whether a temporary or permanent
takings of these parcels has occurred. Caldwell II, 391 F.3d at1234.

       In order to resolve this question, the Court must ascertain, among other things, whether
the NITU in this matter has expired and, if so, whether a railbanking and interim trail use
agreement is in place. Caldwell II, 391 F.3d at 1234; Preseault II, 100 F.3d at 1552. The parties
have stated the NITU at issue in this matter was set to expire on April 26, 2015. Pl. Mot. at 3;
Def. Mot. at 7. But, the parties have not informed the Court of the current status of the NITU, or
stated whether a railbanking and interim trail use agreement is currently in place. Id.; Def. Mot.
at 7; see generally Pl. Opp.; Def. Rep.

       If the NITU has in fact expired and has been converted to a notice of abandonment, a
temporary takings may have occurred. Ladd, 630 F.3d at 1025 (“where no trail use agreement is
reached, the taking may be temporary” (internal citations omitted)); Caldwell II, 391 F.3d at
1234. On the other hand, if the Illinois Department of Natural Resources and Union Pacific have
reached a railbanking and interim trail use agreement, a permanent takings may have occurred.
Caldwell II, 391 F.3d at 1234; Preseault II, 100 F.3d at 1552; see also Toews, 376 F.3d at 1376.

       Because information about the current status of the NITU will inform the Court’s takings
analysis, the Court will hold the question of whether there has been a temporary or permanent
takings of parcel 29 and the Illinois Route 116 parcel in abeyance until the parties have provided
the Court with information about the status of the NITU.

IV.    CONCLUSION

       In sum, at the time the Surface Transportation Board issued the NITU, the undisputed
material facts show that Union Pacific held the 13 parcels conveyed by “right-of-way”
agreements and the two parcels conveyed by “for railroad purposes” agreements in fee simple.



                                                 21
In addition, the undisputed material facts show that plaintiffs have not met their burden to
establish that they held cognizable property interests in the three parcels for which they have
provided no conveyance documents. Furthermore, there are material facts in dispute regarding
the nature of the property interest held by plaintiffs and by Union Pacific in the parcel acquired
by condemnation. Finally, the undisputed material facts show−and the parties agree−that
plaintiffs held parcel 29 and the Illinois Route 116 parcel in fee simple at the time the Surface
Transportation Board issued the NITU, and that the scope of the easement granted to Union
Pacific in these parcels has been exceeded by the NITU.

       For the foregoing reasons, the Court:

       1.        GRANTS defendant’s motion for partial summary judgment with respect to
       parcels 23, 33, 37, 44, 47, 51, 55, 57, 58, 59, 74, 80, 83, 87, 90, 91, 98, 102 and DENIES
       plaintiffs’ motion for partial summary judgment with respect to these parcels;

       2.        GRANTS in part plaintiffs’ motion for partial summary judgment with respect to
       parcel 29 and the Illinois Route 116 parcel and DENIES in part defendant’s motion for
       partial summary judgment with respect to these parcels; and

       3.        DENIES plaintiffs’ motion for partial summary judgment with respect to parcel
       26 and DENIES defendant’s motion for partial summary judgment with respect to this
       parcel.

       The Court HOLDS in ABEYANCE the parties’ cross-motions for partial summary
judgment on the question of whether a permanent or temporary takings has occurred with respect
to parcel 29 and the Illinois Route 116 parcel.

       Because the Court holds this issue in abeyance, the Court also DENIES plaintiffs’
motion for oral argument as moot.

       The parties are directed to FILE a Joint Status Report on or before September 22, 2015,
that shall state their views on the following issues:

                 a.     Whether a railbanking and interim trail use agreement is in place, or
                        whether the NITU has expired, or has been extended.

                 b.     Whether discovery is needed to establish what railroad company acquired
                        parcel 26 by condemnation and when the condemnation occurred.


                                                  22
     c.   In light of the Court’s Memorandum Opinion and Order, how the parties
          propose to proceed with respect to resolving plaintiffs’ claims regarding
          the remaining parcels identified in the complaint.

IT IS SO ORDERED.



                                      s/ Lydia Kay Griggsby
                                     LYDIA KAY GRIGGSBY
                                     Judge




                                   23
