           In the United States Court of Federal Claims
                                            No. 15-843L
                                       (Filed: June 27, 2018)

***************************************
ALEX BROOKS, JR. et al.,              *
                                      *
                  Plaintiffs,         *               Rails-to-Trails; Fifth Amendment Taking;
                                      *               Threshold Title Issues; Centerline
v.                                    *               Presumption Under North Carolina Law;
                                      *               Intervening Public Road
THE UNITED STATES,                    *
                                      *
                  Defendant.          *
***************************************

Mark F. Hearne, II, Clayton, MO, for plaintiffs.

Mayte Santacruz, United States Department of Justice, Washington, DC, for defendant.

                                     OPINION AND ORDER

SWEENEY, Judge

        In this Rails-to-Trails case, plaintiffs own real property purportedly adjacent to a railroad
right-of-way in Cleveland County, North Carolina. They contend that the United States violated
the Just Compensation Clause of the Fifth Amendment to the United States Constitution by
authorizing the conversion of the railroad right-of-way into a recreational trail pursuant to the
National Trail Systems Act (“Trails Act”), thus acquiring their property by inverse
condemnation. Both plaintiffs and defendant move for summary judgment on threshold title
issues. 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). 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 (“Board”), 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 Board pursuant to 49 U.S.C. § 10903, or by
requesting that the Board exempt it from such proceedings pursuant to 49 U.S.C. § 10502.
While considering the railroad company’s abandonment application or exemption request, the
Board will entertain protests and comments from interested third parties. 49 C.F.R. §§ 1152.25,
1152.29(a) (2014). Of particular relevance in this case, interested third parties may submit
requests for the interim use of the railroad line as a trail pursuant to 16 U.S.C. § 1247(d). Id.

         If an interested third party submits a trail-use request to the Board that satisfies the
requirements of 16 U.S.C. § 1247(d), the Board makes the necessary findings pursuant to 49
U.S.C. § 10502(a) or 49 U.S.C. § 10903(d), and the railroad company agrees to negotiate a trail-
use agreement, the Board will issue one of two documents: if the railroad company initiated
abandonment proceedings, the Board will issue a Certificate of Interim Trail Use or
Abandonment, and if the railroad company sought an exemption, the Board will issue a Notice of
Interim Trail Use or Abandonment (“NITU”). 49 C.F.R. § 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 Board 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 Board 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 Board that it has fully abandoned the line, the Board 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. Relevant Factual History

       Plaintiffs own real property in Cleveland County, North Carolina, purportedly adjacent to
an 11.85-mile portion of a railroad right-of-way situated between (1) milepost SB 144.55 and
milepost SB 154.50, and (2) milepost SB 158.10 and milepost SB 160.00. 1 The right-of-way
was acquired between 1886 and 1889 by a predecessor of the railroad line’s current owner,

       1
          The court derives the facts in this section, which are undisputed, from the exhibits
attached to the parties’ summary judgment motions.

                                                 -2-
Norfolk Southern Railway Company (“Norfolk Southern”). On June 16, 2015, Norfolk Southern
submitted to the Board a notice of exemption to abandon the 11.85-mile right-of-way. Two days
later, the City of Shelby, North Carolina submitted a trail-use request to the Board. Norfolk
Southern agreed to negotiate a trail-use agreement with the City, and on August 4, 2015, the
Board issued a NITU. The City and Norfolk Southern have been granted several extensions of
time to negotiate a trail-use agreement and negotiations remain ongoing.

                                     C. Procedural History

        Three days after the Board issued the NITU, four individuals filed suit in this court
alleging that through the operation of the Trails Act, defendant had taken their property without
paying just compensation in violation of the Fifth Amendment. Additional plaintiffs joined the
action, culminating in the filing of a third amended complaint on July 28, 2017, that set forth the
claims of 105 property owners. 2 The claims of three of those property owners were subsequently
dismissed from the case, 3 leaving the claims of 102 property owners for adjudication.

        In accordance with a schedule proposed by the parties, plaintiffs provided defendant with
a book describing their claims. The parties subsequently filed four sets of stipulations regarding
title matters:

       •   June 9, 2017: The parties stipulated that (1) certain identified plaintiffs owned
           their properties on August 4, 2015, the date the Board issued the NITU, and
           (2) certain identified parcels were adjacent to the railroad right-of-way
           described in the NITU.

       •   August 11, 2017: The parties stipulated that (1) additional identified plaintiffs
           owned their properties on August 4, 2015, the date the Board issued the
           NITU, and (2) certain identified original conveyances corresponded with
           certain identified parcels and with the relevant segment of the original railroad
           right-of-way.

       •   August 18, 2017: The parties stipulated that certain identified original
           conveyances corresponded with other identified parcels and with the relevant
           segment of the original railroad right-of-way.

       •   August 29, 2017: The parties stipulated that under North Carolina law and for
           certain identified parcels, the identified source deeds conveyed an easement


       2
         For the purposes of this decision, the term “property owner” includes individuals,
groups of individuals, and entities.
       3
          The claim of Charles L. and Barbara S. Rogers (claim 18) was dismissed without
prejudice on September 6, 2017, and the claims of (1) Annie W. and Jimmy D. Dixon (claims
31a and 31b) and (2) Linda C. Price (claims 37a, 37b, 37c, and 37d) were dismissed without
prejudice on January 16, 2018.

                                                -3-
             for railroad purposes over the corresponding segment of the original railroad
             right-of-way.

The parties reserved the right to modify or revoke a stipulation if they later determined that the
stipulation was legally or factually erroneous.

         After filing their fourth set of stipulations, the parties suggested, and the court adopted, a
schedule for briefing cross-motions for summary judgment on threshold title issues. Plaintiffs
filed their motion for partial summary judgment (“motion”) on August 31, 2017, seeking
judgment in their favor with respect to the claims of all but six of the property owners identified
in their third amended complaint. 4 Defendant filed its response and cross-motion for partial
summary judgment (“cross-motion”) on October 10, 2017, arguing that plaintiffs were entitled to
summary judgment on threshold title issues only for fifty identified claims. According to
defendant, it was entitled to summary judgment with respect to (1) twelve claims of ten property
owners due to their failure to establish that they owned their properties on August 4, 2015, the
date the NITU issued, and (2) at least eighty-nine claims because the owners of the associated
parcels had not established a property interest in the land underlying the railroad right-of-way.

        Thereafter, plaintiffs sought a stay of the resolution of the claims contested by defendant
through January 31, 2018, to enable them to conduct additional title research. Over defendant’s
objection, the court granted plaintiffs’ request. 5 Thus, plaintiffs filed their reply in support of
their motion and response to defendant’s cross-motion (“reply and response”) on January 31,
2018. Defendant filed its reply in support of its cross-motion (“reply”) on March 7, 2018. In its
reply, defendant indicates that it now agrees that plaintiffs are entitled to summary judgment on
threshold title issues for sixty-three identified claims, but contends that it is entitled to summary
judgment with respect to (1) four claims of three property owners due to their failure to establish
that they owned their properties on August 4, 2015, the date the NITU issued, and (2) at least
sixty-eight claims because the owners of the associated parcels have not established a property
interest in the land underlying the railroad right-of-way.

        Briefing is now complete and the court deems oral argument unnecessary.

                                          II. DISCUSSION

       Both plaintiffs and defendant move for summary judgment on threshold title issues
pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”).

        4
          Specifically, plaintiffs did not seek summary judgment with respect to the claims of
(1) C.C. Dickson Co. (claim 24); (2) Hil-Cri-Mor Hudson Rentals (claim 19); (3) Sheila P. and
Les Ivie (claim 51); (4) James D. Ledbetter (claim 17b); (5) Charles L. and Barbara S. Rogers
(claim 18); or (6) Tommy A. Swan and Anita P. Long on Behalf of the Estate of Phyllis B.
Patterson (claims 56a, 56b, and 56c). As noted above, the claim of Charles L. and Barbara S.
Rogers was subsequently dismissed without prejudice on September 6, 2017.
        5
            The court later denied plaintiffs’ request to extend this deadline by an additional thirty
days.

                                                   -4-
Summary judgment is appropriate when there is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law. RCFC 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). A fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is
genuine if it “may reasonably be resolved in favor of either party.” Id. at 250.

        The moving party bears the initial burden of demonstrating the absence of any genuine
issue of material fact. Celotex Corp., 477 U.S. at 323. The nonmoving party then bears the
burden of showing that there are genuine issues of material fact for trial. Id. at 324. Both parties
may carry their burden by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials” or by “showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” RCFC 56(c)(1).

        The court must view the inferences to be drawn from the underlying facts in the light
most favorable to the nonmoving party. Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). However, the court must not weigh the evidence or make findings of fact.
See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial.”); Contessa Food Prods., Inc. v. Conagra, Inc., 282 F.3d 1370,
1376 (Fed. Cir. 2002) (“On summary judgment, the question is not the ‘weight’ of the evidence,
but instead the presence of a genuine issue of material fact . . . .”), abrogated on other grounds by
Egyptian Goddess, Inc. v. Swish, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc); Ford Motor Co.
v. United States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); Mansfield v. United States, 71 Fed. Cl.
687, 693 (2006) (“[T]he Court may neither make credibility determinations nor weigh the
evidence and seek to determine the truth of the matter. Further, summary judgment is
inappropriate if the factual record is insufficient to allow the Court to determine the salient legal
issues.”). 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. However, if neither party satisfies this burden on the
filing of cross-motions for summary judgment, then the court must deny both motions. See First
Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003) (“When both parties
move for summary judgment, the court must evaluate each motion on its own merits, resolving
reasonable inferences against the party whose motion is under consideration.”); Bubble Room,
Inc. v. United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have
moved for summary judgment does not mean that the court must grant summary judgment to one
party or the other.”).

        The issues raised in the parties’ summary judgment motions are threshold title issues,
namely, whether (1) the properties owned by plaintiffs correspond with properties that were
originally conveyed to create the railroad right-of-way described in the NITU; (2) the original
conveyances were easements for railroad purposes; (3) the properties owned by plaintiffs are
immediately adjacent to the railroad right-of-way described in the NITU; and (4) plaintiffs

                                                -5-
owned their properties on August 4, 2015, the date the Board issued the NITU. Plaintiffs bear
the burden of establishing each of these issues in their favor. See, e.g., Klamath Irrigation Dist.
v. United States, 635 F.3d 505, 520 n.12 (Fed. Cir. 2011) (“It is plaintiffs’ burden to establish
cognizable property interests for purposes of their takings . . . claims.”); Am. Pelagic Fishing Co.
v. United States, 379 F.3d 1363, 1372 (Fed. Cir. 2004) (“[A]s a threshold matter, the court must
determine whether the claimant has established a property interest for purposes of the Fifth
Amendment. . . . If the claimant fails to demonstrate the existence of a legally cognizable
property interest, the court[’]s task is at an end.” (citations omitted)); Cienega Gardens v. United
States, 331 F.3d 1319, 1328 (Fed. Cir. 2003) (“For any Fifth Amendment takings claim, the
complaining party must show it owned a distinct property interest at the time it was allegedly
taken, even for regulatory takings.”); BHL Props., LLC v. United States, 135 Fed. Cl. 222, 229
(2017) (“[I]t is [plaintiffs’] burden to prove [their] ownership of the land abutting the railway
corridor; it is not the government’s burden to disprove it.”).

         To facilitate its consideration of the parties’ motions, the court divides plaintiffs’ claims
into the following categories: (1) claims for which defendant agrees that plaintiffs are entitled to
partial summary judgment, (2) claims for which plaintiffs seek partial summary judgment that
were not addressed by defendant, (3) claims for which defendant contends that plaintiffs have
not established ownership of the associated parcels, (4) claims for which defendant contends that
the associated parcels are cut off from the railroad right-of-way by an intervening parcel,
(5) claims for which defendant contends that the associated parcels are cut off from the railroad
right-of-way by an intervening public road, (6) claims for which defendant contends that
plaintiffs have not established a property interest in the land underlying the railroad right-of-way,
and (7) claims that are not addressed by either party. In assessing the parties’ arguments
regarding the claims in categories three through six (and one claim in the first category), the
court primarily (but not exclusively) relies upon the following evidence in the record:

       •   The deeds reflecting the original conveyance of the right-of-way to Norfolk
           Southern’s predecessor, see Third Am. Compl. Exs. 15-17, 20, 25-27, 29, 31-
           32, 34, 36, 38-39, 41-44, 48-49, 51-53, 56-57;

       •   The deeds reflecting conveyances of property to plaintiffs, see Third Am.
           Compl. Exs. 21, 64, 74, 76, 82, 88, 90, 92, 98, 102, 106, 108, 115, 121, 123,
           133, 135, 143, 162, 168, 172, 176, 186, 194, 196, 202, 208, 212, 220, 222,
           230, 236, 248, 250, 258, 260, 264, 266; Reply & Resp. Exs. 2-3, 7-8, 16, 26-
           30, 35, 37;

       •   A series of maps prepared by the Interstate Commerce Commission in June
           1916 that depict the railroad right-of-way and the surrounding properties
           (“ICC valuation maps”), 6 see Third Am. Compl. Exs. 2-7;

       6
          ICC valuation maps “depict the right-of-way acquired for the railroad at the time the
railroad was built, and typically provide information on whom the land was acquired from, as
well as a description of the land including its dimensions or approximate boundary.” Reply &
Resp. Ex. 20 ¶ 5.

                                                 -6-
       •     An overview map of the railroad right-of-way prepared by plaintiffs that
             depicts the location of their properties, see Mot. Ex. 1;

       •     The WebGIS maps that defendant obtained from the Cleveland County
             website, 7 see Cross-Mot. Exs. 7-8; and

       •     A plat of the Meadow Brook subdivision, see, e.g., Reply & Resp. Ex. 54.

The court addresses each category in turn. 8

A. Plaintiffs Are Entitled to Summary Judgment on Threshold Title Issues as to the Sixty-
                 Four Claims for Which Defendant Concedes Entitlement

        As an initial matter, defendant has identified sixty-four claims for which it concedes that
plaintiffs are entitled to summary judgment on the threshold title issues: 9

           Claim                  Property Owner                           Parcel Number
           1       Harry Eugene Washburn, Sr., Gerald Donald               2518675605
                   Washburn, D.P. Washburn, and Evelyn Washburn
                   Giles
           15a     Don L. Yelton                                           (a) 2547035597
           15b                                                             (b) 2547035304
           25      Rickey Warren and Deborah Bailey Smith                  2546174787
           26                                                              2546175578
           29      Royster Oil Company, Inc.                               2546174092
           32a     Hoyle Plumbing Company, Inc.                            (a) 2546059653



       7
          Defendant submitted a number of WebGIS maps in support of its cross-motion. “GIS”
is an acronym for “geographic information systems,” which “is a computer-based technology
that allows for the collection, storage, display and analysis of geographic data[,] most commonly
displayed as a map or an interactive web-based application.” Reply & Resp. Ex. 20 ¶ 2.
       8
           For each category, the court provides a table that identifies the relevant claims,
property owners, and parcel numbers. The names of the property owners are taken directly from
the third amended complaint. However, some of the property owners are identified differently in
the parties’ stipulations, summary judgment motions and briefs, and exhibits, including (but not
necessarily limited to) the property owners associated with claims 1, 34a, 34b, 46a, 54, 55, 65,
94, 96, 97, 99, 109, 111, and 117. Before any final judgment is entered for plaintiffs, the parties
shall ensure that the proper individuals or entities are identified as the property owners entitled to
compensation.
       9
          In its reply, defendant provides that its concession applies to sixty-three claims. The
difference in number is due to defendant combining claims 122a and 122b into a single claim.

                                                 -7-
33a   Doris W. Elliott                                     (a) 2546058598
33b                                                        (b) 2546058586
34a   Doris and James Wilson                               (a) 2546058551
34b                                                        (b) 2546058425
35a   Dilipkumar S. Patel                                  (a) 2546057386
35b                                                        (b) 2546057236
35c                                                        (c) 2546057240
36    Jerry Dean Greene                                    2546058392
38    Peggy Ellis Porter                                   2546046852
39    Carol H. Price and James Nathan Price                2546045275
40a   New Covenant Baptist Church                          (a) 2546034663
40b                                                        (b) 2546036249
42    Joyce Conner Hamrick                                 2546103734
43a   Harry Quinton and Frances M. Hamrick                 (a) 2545190995
43b                                                        (b) 2545198687
44    Victor M. Haynes and Robert A. Haynes                2545198615
45    Cameron Todd Hamrick                                 2545190594
47    Kenneth Wayne Allen                                  2545380577
48    Earnest and Mary Wilson                              2545271944
49a   John L. and Sharon Yvette A. McGill                  (a) 2545277593
49b                                                        (b) 2545279221
52    J. Daryl Hopper                                      2545467174
53a   Thomas F. Hardin                                     (a) 2545740965
53b                                                        (b) 2545832637
54    Jody R. Standridge, Stacey Walk, and Deedra          2545634843
      Dimsdale on Behalf of the Estate of William Gerald
      Standridge
67    Arthur Dale Wellmon, Jewel L. Wellmon Oxner,         2544872938
      and Anita L. Wellmon Strange
69    Bobby and Brenda Walker                              2544788165
70    Alex Brooks, Jr.                                     2544787044
72    Joe Tillman and Madonna Rose Costner                 2544775961
74    Richard R. and Susan G. Shook                        2544769539
75    The Trustees of Ellis Chapel Baptist Church          2544760824
76                                                         2544666504
77a   Laura Kaye Lowery                                    (a) 2544674096
77b                                                        (b) 2544663913
78    David Thomason and Joyce A. Peake                    2544660799
84    Randolph S. and Dawn M. Cole                         2544437394
85    Johnny M. and Martha Lavender                        2544329889
86    Margaret L. Jackson                                  2544423458
88a   Larry E. Lail                                        (a) 2544411850
88b                                                        (b) 2544411743
88c                                                        (c) 2544411513
89c   Jaqueline H. Lavender                                (c) 2543373985

                                  -8-
        92a       Trustees of New Hope Church of Earl                      (a) 2543371336
        92b                                                                (b) 2543379389
        92c                                                                (c) 2543371336
        104       M.T. and Frankie Ramey                                   2543344476
        106       Mary Nancy H. Edwards, Stephen Sarratt, Ronald           2543336811
        122a      R. Miller, and Mark L. Miller                            (a) 2542175398
        122b                                                               (b) 2542175398
        107       Michael Shane Owle                                       2543332207
        108a      Thomas B. Austell, Jr., Robert N. Austell, and           (a) 2543323888
        108b      Hugh F. Austell                                          (b) 2543226282
        108c                                                               (c) 2543309926
        111       Robert Nicholas Austell                                  2543321072
        118       Debbie L. Clay and Elizabeth Hamilton                    2542381502
        120       Henry Lee Jones                                          2542370792
        121       Adam Davis Brookie                                       2542278354

In other words, defendant agrees that (1) the identified parcels correspond with property that was
originally conveyed to create the railroad right-of-way described in the NITU; (2) the original
conveyances were easements for railroad purposes; (3) the parcels are immediately adjacent to
the railroad right-of-way described in the NITU; 10 and (4) the identified plaintiffs owned their
parcels on August 4, 2015, the date the Board issued the NITU. Accordingly, the court grants
summary judgment to plaintiffs as to these threshold title issues for the sixty-four identified
claims.

B. Plaintiffs Are Entitled to Summary Judgment on Threshold Title Issues as to Claim 80

       One claim that should have been included in the first category, but was not, is claim 80:

        Claim                       Property Owner                         Parcel Number
        80        Whaley, LLC                                              2544562027

Instead, defendant includes claim 80 in the group of claims, discussed below, in which the
associated parcels are separated from the railroad right-of-way by a public road. However, the
deed submitted by plaintiffs, when read in conjunction with plaintiffs’ overview map, indicates
that the southeastern boundary of the parcel at issue is the railroad right-of-way and that there is
no intervening parcel or public road. Accordingly, the court grants summary judgment to
plaintiffs as to the threshold title issues for claim 80.

       10
            In its cross-motion, defendant asserted that the parcels associated with these sixty-four
claims–including the parcel owned by Thomas B. Austell, Jr., Robert N. Austell, and Hugh F.
Austell–extend to the centerline of the railroad right-of-way. However, in its reply, defendant
indicates that “Plaintiff Thomas B. Austell, Jr.” owns “the underlying interest subject to the
entire railroad easement, including both sides of the rail corridor . . . .” Reply 6. It is unclear
whether the other property owners in this category who own parcels immediately adjacent to the
railroad right-of-way own the entire railroad right-of-way rather than just to the centerline.

                                                 -9-
C. Plaintiffs Are Entitled to Summary Judgment on Threshold Title Issues as to the Eight
                            Claims Not Addressed by Defendant

       The next category of claims before the court includes the eight claims for which plaintiffs
seek partial summary judgment that are not addressed by defendant: 11

        Claim                     Property Owner                          Parcel Number
        11        Margaret E. Causby                                      2528029197
        28a       Royster Transport Company, Inc.                         (a) 2546174312
        28b                                                               (b) 2546174200
        46a       Jerry T. Mayo                                           (a) 2545190384



       11
            In its cross-motion, defendant conceded that plaintiffs were entitled to partial summary
judgment with respect to fifty claims, but that plaintiffs did not provide “evidence establishing
that the remaining 89 parcels actually extend to the center of the rail corridor.” Cross-Mot. 10.
The court is uncertain how defendant determined that there were eighty-nine remaining parcels
(a term that defendant uses interchangeably with “claims”). Other than the fifty conceded
claims, defendant listed nine claims in Table 2, fifty-eight claims in Table 3, one claim in
footnote 8 (the remaining claims listed in footnote 8 were also listed in Table 3), nine claims in
footnote 9 (the remaining claims listed in footnote 9 were also listed in Table 3), seven claims in
footnote 10 (the remaining claims listed in footnote 10 were also listed in Table 3), and one
claim in an unlabeled table on page 7 (the remaining claims in that table were also listed in
footnote 10). In other words, defendant specifically mentioned only eighty-five contested
claims. However, there must have been more than eighty-five remaining claims at the time
defendant filed its cross-motion because defendant did not address eight claims for which
plaintiffs seek partial summary judgment or, as discussed below, the seven claims for which
plaintiffs do not seek partial summary judgment.

         In its reply, which was filed after plaintiffs voluntarily dismissed certain claims and
provided additional evidence in support of their motion, defendant indicates that there are 135
claims total, concedes that plaintiffs are entitled to partial summary judgment with respect to
sixty-three of those claims, and argues that it is entitled to summary judgment with respect to the
remaining seventy-two claims. Again, the court is uncertain how defendant calculated these
numbers. Other than the sixty-three conceded claims, defendant lists fifty-three claims in
Exhibit 2 and seven other unique claims in the reply itself (in footnotes 7, 8, and 10, and on
pages 2, 3, and 5). In other words, defendant specifically mentions only sixty contested claims in
its reply. It does not identify the other twelve claims that it contests. Nor does it indicate
whether these unidentified claims include the seven claims for which plaintiffs have not sought
partial summary judgment.

       Given this lack of clarity, the court will only assess the parties’ entitlement to summary
judgment with respect to the claims specifically mentioned in the summary judgment motions
and supporting briefs.

                                               -10-
        55        Jody R. Standridge, Stacey Walk, and Deedra              2545634163
                  Dimsdale on Behalf of the Estate of William Gerald
                  Standridge
        79        Melissa Austell Bradshaw                                 2544565383
        81        Royster Oil Company, Inc.                                2544550806
        90        David A. McSwain                                         2543384232

The parties stipulated that (1) the identified parcels correspond with property that was originally
conveyed to create the railroad right-of-way described in the NITU; (2) the original conveyances
were easements for railroad purposes; (3) the parcels are immediately adjacent to the railroad
right-of-way described in the NITU; 12 and (4) the identified plaintiffs owned their parcels on
August 4, 2015, the date the Board issued the NITU. Thus, in the absence of any modification or
revocation of those stipulations by defendant, the court grants summary judgment to plaintiffs as
to these threshold title issues for the eight identified claims.

D. Summary Judgment Is Appropriate on the Issue of Ownership With Respect to Claims
                      16, 89a, and 89b, but Not to Claim 65

        With respect to the third category of claims, defendant contends that plaintiffs have not
satisfied their burden of establishing that the identified property owners actually owned the
relevant parcels. The four claims in this category are:

        Claim                    Property Owner                            Parcel Number
        16        Cleveland Lumber Company, Inc.                           2547121328
        65 13     Penny Denise Canipe, Susan Borders Lail, and             2544883340
                  Michael Gene Borders




       12
           In their reply and response, plaintiffs contend that the “[c]enterline presumption
applies” to these eight claims. Reply & Resp. 12; see N.C. Gen. Stat. § 1-44.2(a) (2014)
(“Whenever a railroad abandons a railroad easement, all right, title and interest in the strip, piece
or parcel of land constituting the abandoned easement shall be presumed to be vested in those
persons, firms or corporations owning lots or parcels of land adjacent to the abandoned
easement, with the presumptive ownership of each adjacent landowner extending to the
centerline of the abandoned easement.”); McDonald’s Corp. v. Dwyer, 450 S.E.2d 888, 890-91
(N.C. 1994) (“The general rule is ‘that a call for a monument as a boundary line in a deed will
convey the title of the land to the center of the monument if it has width.’ Subsection (a) of
[N.C. Gen. Stat. § 1-44.2] is consistent with this common law presumption insofar as it applies to
abandoned railroad easements.” (citation omitted) (quoting Goss v. Stidhams, 315 S.E.2d 777,
778 (N.C. App. 1984))).
       13
          As discussed below, defendant also contends that claim 65 is cut off from the railroad
right-of-way by an intervening public road.

                                                -11-
        89a        Jaqueline H. Lavender                                   (a) 2543481298
        89b 14                                                             (b) 2543481060

Specifically, in its cross-motion, defendant identified apparent deficiencies in the materials
produced by plaintiffs to support their allegation of ownership. In response, plaintiffs submitted
additional documents to establish that the property owners actually owned the parcels at issue.
Defendant, however, contends in its reply that these additional documents also fail to support
plaintiffs’ allegation of ownership.

                                            1. Claim 16

        First, with respect to claim 16, defendant contended in its cross-motion that the legal
description in the deed produced by plaintiffs “does not match the tract dimensions delineated in
the county records.” Cross-Mot. 7. With their reply and response, plaintiffs submitted four
deeds that they contend “convey portions of this property to the owner.” Reply & Resp. 9. In its
reply, defendant argues that “none of the deeds produced by [plaintiffs] match[es] the tract
dimensions delineated by the county records, which describe this property as a 15.73-acre
parcel,” and that the five deeds produced by plaintiffs “cover, at most, about 4 acres of the 15.7
acres allegedly owned by [Cleveland Lumber Company, Inc.]” Reply 3. In fact, defendant
argues (albeit incorrectly), 15 “none of the five deeds describe[s] the portion alongside the subject
rail corridor; instead, [each] describe[s] the property on the side abutting S. Morgan Street,
which is located on the opposite of the rail corridor.” Id.

       The deeds submitted by plaintiffs describe the dimensions of the parcels as follows:

       •    The Vinson deed: A 72-by-200-foot parcel, the eastern boundary of which
            runs along North Morgan Street for 72 feet;

       •    The McCurry deed: Two parcels (one that is 54 by 100 feet, and another that
            is 24 by 100 feet) that are situated 276 feet to the west of North Morgan
            Street, and a third parcel (150 by 63 feet) that does not appear to adjoin North
            Morgan Street;

       14
           As discussed below, defendant also contends that claims 89a and 89b are cut off from
the railroad right-of-way by an intervening public road.
       15
            One of the deeds–the Dellinger deed–describes land abutting the railroad right-of-way:

       That lot in the Northwest square of the City of Shelby, N.C., on the West side of
       North Morgan Street, BEGINNING at a stake Morgan Street, Mrs. Tom
       Babington’s corner; thence North 2 3/4 East 112 feet to a stake; thence North 87
       1/4 West 573 feet to a stake on bank of railroad cut; thence with railroad South 24
       East 125 feet to a stake; thence with Mrs. Babington’s line South 87 1/4 East 513
       feet to the BEGINNING, containing 1 9/20 acres more or less . . . .

Reply & Resp. Ex. 3 at 29 (emphasis added).

                                                -12-
       •    The Roberts deed: A 72-by-87-foot parcel, the eastern boundary of which
            runs along North Morgan Street for 72 feet;

       •    The Dellinger deed: A 112-by-573-by-125-by-513-foot parcel, the eastern
            boundary of which may run along North Morgan Street for 112 feet, and the
            western boundary of which runs along the railroad right-of-way for 125 feet;
            and

       •    The Martin deed: A 100-by-414-foot parcel, the eastern boundary of which
            runs along North Morgan Street for 100 feet.

The only map in the record that depicts the location of these parcels is plaintiffs’ overview map,
which suggests that the western boundary of the property constituting claim 16 is the railroad
right-of-way, and that only a part of the property extends as far as North Morgan Street to the
east. However, it is not possible to match up the deeds, which mostly describe the boundaries of
the parcels in relation to the surrounding properties (identified with the owners’ names), with the
property depicted on the map, for two reasons in particular: (1) the deeds describe a boundary
that runs along North Morgan Street for, at most, 356 feet, while the map reflects that the
property runs along North Morgan Street for just under 1000 feet; and (2) the map reflects that
the western boundary of the property runs along the railroad right-of-way for just under 1750
feet, but the deeds only account for 125 feet of that length. In short, the evidence submitted by
plaintiffs is insufficient to determine whether Cleveland Lumber Company, Inc. owns all of the
property constituting claim 16 that abuts the railroad right-of-way. Plaintiffs have only
established such ownership for the portion of the property described in the Dellinger deed, which
is adjacent to the railroad right-of-way for 125 feet. Consequently, the court grants plaintiffs’
motion with respect to the parcel described in the Dellinger deed, and because plaintiffs have not
otherwise satisfied their burden of establishing ownership of property adjacent to the railroad
right-of-way, grants defendant’s cross-motion with respect to the remainder of the property
constituting claim 16. 16




       16
            The court further notes that although defendant is correct that the deeds submitted by
plaintiffs describe, at most, a four-acre area of land, it provides no evidence in support of its
contention that county records describe claim 16 as a 15.73-acre parcel. These county records
are not part of the record before the court, leaving the court with no way, beyond the assertions
of counsel, to ascertain the size of the parcel. Cf. Meridian Eng’g Co. v. United States, 885 F.3d
1351, 1358 (Fed. Cir. 2018) (“[U]nsworn attorney argument . . . is not evidence . . . .”); Mel
Williamson, Inc. v. United States, 229 Ct. Cl. 846, 848 (1982) (“Argument is not fact.”); Del.,
Lackawanna & W. R.R. Co. v. United States, 54 Ct. Cl. 35, 41-42 (1919) (“The court can not
accept asseverations of counsel, as to facts, made in argument, whether denied or conceded by
the other side at the bar, without any stipulation duly filed or other evidence . . . .”).

                                               -13-
                                           2. Claim 65

        Second, with respect to claim 65, defendant contended in its cross-motion that plaintiffs
only produced estate documents, “which do not describe with specificity the property at issue
and do not confirm that the decedent owned it.” Cross-Mot. 7. With their reply and response,
plaintiffs submitted a deed, a death certificate, and a Cleveland County “property card.”
Plaintiffs contend that these documents, in conjunction with the previously submitted estate
documents, establish that Harold and Carolyn Borders acquired the property in 1999, that
Carolyn Borders died in 2000, that Harold Borders died in 2001, and that upon Harold’s death,
his three children inherited the property. In its reply, defendant argues, without any factual
support, that the deed “does not match the tract dimensions delineated by the county records,
which describe this property as being approximately 145 feet in length, running parallel to the
rail corridor.” Reply 3. Moreover, defendant asserts, “[t]he problem in determining whether this
deed is the correct one is exacerbated by the fact that it does not describe the property with any
specificity; rather than describing the property with metes and bounds, it references other deeds
and plat books that were not produced by [plaintiffs].” Id.

       The deed submitted by plaintiffs describes the parcel associated with claim 65 as follows:

       Being all of Lot Nos 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34,
       35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53 of
       Block “C” of the J.B. Lowery property as shown on a plat as recoded in Plat Book
       7, Page 93 of the Cleveland County Registry and reference is hereby made to said
       plat for a full metes and bounds description as if fully set out herein.

Reply & Resp. Ex. 7 at 63. This description, on its own, is insufficient to determine whether
Harold Borders’s children own land adjacent to the railroad right-of-way. However, plaintiffs’
overview map depicts the parcel associated with claim 65 as adjacent to the railroad right-of-
way. Further, in support of its cross-motion, defendant submitted a WebGIS map that depicts the
parcel as adjacent to the railroad right-of-way. Although these maps are not sufficient to
establish ownership of the parcel, they do create a genuine issue of material fact. Thus, the court
denies both summary judgment motions with respect to claim 65.

                                     3. Claims 89a and 89b

        Third, with respect to claims 89a and 89b, defendant contended in its cross-motion that
plaintiffs did not produce any deeds to establish ownership. With their reply and response,
plaintiffs submitted a deed and estate documents, arguing that this material establishes that C.L.
and Bessie Sue Lavender acquired the property in 1953, that the property was conveyed to their
son Claude Lavender and his wife Jacqueline Lavender, and that Claude Lavender died in 2013,
leaving his widow as the sole owner. In its reply, defendant remarks that the deed produced by
plaintiffs “describes more than 20 parcels,” and states that it “has not been able to match the
description of the parcels in Claims 89a and 89b with any of the parcels described in the deed.”
Reply 3. Defendant also asserts that “the county records” indicate that a deed not supplied by




                                               -14-
plaintiffs–located at page 409 of book 3E–applies to the parcels described in claims 89a and
89b. 17 Id.

         As defendant observes, the deed submitted by plaintiffs contains metes-and-bounds
descriptions of twenty separate tracts. These descriptions rely almost entirely on landmarks
(stones, trees, creeks, etc.), surrounding properties (identified by the owners’ names), and
unnamed or currently nonexistent roads to define the boundaries of each tract. Only one of the
tracts is described as being bounded by a railroad right-of-way: tract 13 runs “with Southern
Railroad . . . 950 feet” from “Mrs. J.P. Aydlotte’s line” to “the corner of Hazel Turner’s
land[.]”18 Reply & Resp. Ex. 8 at 72. However, the only map in the record that depicts the
boundaries of the parcels associated with claims 89a and 89b is plaintiffs’ overview map, which
indicates that the two parcels abut the railroad right-of-way for less than 500 feet. Furthermore,
the map reflects that the parcels are bounded by Lavender Road and/or Blacksburg Road, but
neither road is mentioned in the deed plaintiffs submitted. In short, the evidence submitted by
plaintiffs is insufficient to determine whether Jacqueline Lavender owns the parcels associated
with claims 89a and 89b. Consequently, the court grants defendant’s cross-motion with respect
to these claims. Furthermore, as explained below, summary judgment for defendant as to claims
89a and 89b is also appropriate on alternative grounds.

 E. Claims for Which Defendant Contends That Plaintiffs Have Not Proven Ownership of
                   the Land Underlying the Railroad Right-of-Way

       For the fourth category of claims, defendant contends that plaintiffs have not established
a property interest in the land underlying the railroad right-of-way. As discussed below,
defendant divides these sixty-one claims into four subcategories. 19

                          1. Claims Affected by an Intervening Parcel

        The first subcategory includes two claims for which defendant argues that the relevant
parcels are separated from the railroad right-of-way by an intervening parcel:

        Claim                     Property Owner                          Parcel Number
        32b        Hoyle Plumbing Company, Inc.                           (b) 2546150563



       17
            Plaintiffs indicated in their reply and response that they were submitting two new
deeds: one located at page 365 of book 6W, and one located at page 409 at book 13E. However,
plaintiffs only submitted the deed located at page 365 of book 6W.
       18
            A railroad right-of-way is mentioned in the description of only one other tract–the
third tract of tract 10. However the description indicates that the railroad right-of-way runs
through, not along, the tract. Plaintiffs’ overview map does not depict the parcels associated
with claims 89a or 89b as crossing the railroad right-of-way at any point.
       19
            One claim (claim 73) appears in two subcategories.

                                               -15-
        73 20     Robert Carl and Marilyn D. Merck                         2544773856

Specifically, defendant contended in its cross-motion that “WebGIS maps . . . confirm that the
claims . . . have intervening parcels, and therefore do not extend to the center of the rail
corridor.” 21 Cross-Mot. 10. In response, plaintiffs argue that the maps submitted by defendant
do not support its contention of an intervening parcel. Rather, they assert, the GIS maps attached
to their reply and response indicate that the parcels at issue abut the railroad right-of-way.
Defendant, in its reply, contends that the maps submitted by plaintiffs actually establish the
existence of an intervening parcel.

        With respect to claim 32b, the maps submitted by the parties depict differing boundaries
for the parcel at issue. Defendant’s map depicts the parcel as abutting the eastern edge of South
Morgan Street, while plaintiffs’ map depicts the parcel as extending beyond the western edge of
South Morgan Street. Problematically, the only deed pertaining to this parcel in the record lacks
a metes-and-bounds description that could clarify the true boundaries of the parcel:

       Located in the City of Shelby, in the section known as South Shelby, and being all
       of Lot No. 17 of the Consolidated Textile Co., Inc. property as shown on plat
       thereof prepared from an actual survey by G. Sam Rowe, Registered Civil
       Engineer, dated September 16, 1955, of record in Book of Plats No. 7 at Page 8,
       Cleveland County Public Registry, North Carolina, reference to the said plat, and
       the record thereof, being hereby made for a full and complete description and
       identification of said lot.

Third Am. Compl. Ex. 160 at 435. Thus, the court has no way to ascertain which map accurately
depicts the parcel. Moreover, plaintiffs’ map is confusing; it appears to indicate, contrary to their
assertion, the existence of an intervening parcel. Because neither plaintiffs nor defendant has
established the absence of a genuine issue of material fact regarding the boundaries of the parcel
described in claim 32b, the court denies both motions with respect to that claim.


       20
           As discussed below, defendant also contends that the parcel described in claim 73 is
cut off from the railroad right-of-way by an intervening public road.
       21
          The WebGIS maps submitted by defendant all bear the URL of the source website
(http://www.webgis.net/nc/Cleveland), and the website includes the following disclaimer:

       The information contained on this site is furnished by government and private
       industry sources and is believed to be accurate but accuracy is not guaranteed.
       Mapping information is a representation of various data sources and is not a
       substitute for information that would result from an accurate land survey. The
       information contained hereon does not replace information that may be obtained
       by consulting the information’s official source. In no event shall Cleveland
       County, NC or the consultants of Cleveland County, NC be liable for any
       damages, direct or consequential, from the use of the information contained on
       this site.

                                                -16-
        With respect to claim 73, the maps submitted by the parties once again depict differing
boundaries for the parcel at issue. Based on the metes-and-bounds description contained in the
relevant deed, defendant’s map contains the accurate depiction: a rectangular parcel (100 by 221
feet) with one side running along the southwestern edge of Peeler Street and an adjacent side
running along the northwestern edge of North Carolina Highway 180 (“Highway 180”). 22
However, both maps depict the boundaries of the purportedly intervening parcel as only partially
cutting off the relevant parcel from the railroad right-of-way, with approximately 3/4 of the
southeastern side of the parcel being adjacent to a public road, which itself is adjacent to land
that appears to be a combination of the public road right-of-way and the railroad right-of-way.
Because there is no material dispute regarding the existence of a parcel that partially cuts off the
parcel associated with claim 73 from the railroad right-of-way, the court grants in part
defendant’s cross-motion with respect to the portion of the parcel adjacent to the intervening
parcel. However, because defendant also contends that Highway 180 cuts off the parcel from the
railroad right-of-way, the court defers ruling on plaintiffs’ motion until the following section.

                       2. Claims Affected by an Intervening Public Road

        Next, for fifty-eight of plaintiffs’ claims, 23 defendant contends that plaintiffs have not
established that they own the land underlying the railroad right-of-way because a public road
separates the relevant parcels from the railroad right-of-way. These claims include the
following:

         Claim                      Property Owner                          Parcel Number
         2         M&B Associates, Inc.                                     2518834152
         3         James W. Morgan, Joseph H. Morgan, and Eleanor           2518921759
                   Ann Morgan
         13        Capitol Funds, Inc.                                      2527199552
         23a                                                                (a) 2546181964
         23b                                                                (b) 2546181265
         20a       Don A. and Linda H. Jones                                (a) 2547106861
         20b                                                                (b) 2547106776
         22        Royster P&M Warehouse, Inc.                              2546190578

         27        Thurman Larry Moore, POA for Annie M. Moore              2546171485
         30a       Carter Chevrolet Inc.                                    (a) 2546161704
         30b                                                                (b) 2546160713
         30c                                                                (c) 2546069513
         41        Melinda Tessneer                                         2546027714

       22
          Contrary to the legal description in the deed, the parcel depicted on plaintiffs’ map is
not rectangular and extends beyond the southeastern edge of Highway 180.
       23
          Defendant identifies most of these claims in its reply in footnotes 7, 8, and 9, and in
Exhibit 2. Two claims–claims 60 and 61a–are only identified in defendant’s cross-motion (in
footnote 9).

                                                 -17-
         58        Vickie M. Powell                                          2544899387
         59        William Keith and Phyllis H. Hamrick                      2544895359
         60        Craig P. Gates, Inc.                                      2544894275
         61a       Joseph and Rebecca Barnes                                 (a) 2544893054
         62        Dawn Renee Greene                                         2544885663
         63        Hamrick Bennet Heirs                                      2544884477
         64        Lee Van and Penny Denise Canipe                           2544884316
         65 24     Penny Denise Canipe, Susan Borders Lail, and              2544883340
                   Michael Gene Borders
         66        Charlotte Ellis, on Behalf of Barbara C. Hopper’s         2544882194
                   Estate
         68        Victoria Lynn Hope                                        2544778874
         71        Tracy Lee Kale and Penny Champion Kale                    2544786047
         73 25     Robert Carl and Marilyn D. Merck                          2544773856
         82        Patsy L. Coulson                                          2544445185
         83        Jewell S. Hyman                                           2544435974
         87        Mary Jeannine Allen                                       2544411976
         89a       Jaqueline H. Lavender                                     (a) 2543481298
         89b 26                                                              (b) 2543481060
         91        Elizabeth Lee Lavender                                    2543378857
         93a       Gene R. Deaton, II                                        (a) 2543269651
         93b                                                                 (b) 2543269534
         94        Sheree W. Dotson f/k/a Sheree W. Johnson, and             2543269416
                   Margaret Sue White
         95        Robert Michael Wilkins                                    2543258867
         102a                                                                (a) 2543340870
         102b 27                                                             (b) 2543258867


        24
           As discussed above, defendant also contends that plaintiffs have not satisfied their
burden of establishing that the property owner associated with claim 65 actually owns the parcel
at issue. The court denied summary judgment to both plaintiffs and defendant on this issue.
        25
           As discussed above, defendant also contends that the parcel described in claim 73 is
cut off from the railroad right-of-way by an intervening parcel. The court granted summary
judgment in part to defendant on this issue.
        26
          As discussed above, defendant also contends that plaintiffs have not satisfied their
burden of establishing that the identified property owner associated with claims 89a and 89b
actually owns the parcels at issue. The court granted summary judgment to defendant on this
issue.
        27
            The first set of joint stipulations and Exhibit A to plaintiffs’ motion indicate that the
parcel numbers for claim 102a are 2543248704 and 25433408, and that the parcel number for
claim 102b is 2543258867 (the same as for claim 95). However, the second and fourth set of
joint stipulations and Exhibit 1 to plaintiffs’ motion indicate that the parcel number for claim
                                                 -18-
        96       Leland C. and Laladge J. Moss                          2543352883
        97       Bobby A. and Ann M. Thackerson                         2543352699
        98a      Tim White and Sheree Dotson                            (a) 2543258784
        98b                                                             (b) 2543259425
        99       Jonathan E. and Janet M. Doupe                         2543258696
        100      Sue M. White                                           2543259174
        101a     Keith and Pattie Ellis Norman                          (a) 2543353157
        101b                                                            (b) 2543353076
        103      Julie A. Owle                                          2543345517
        105a     Lena M. Francis                                        (a) 2543347236
        105b                                                            (b) 2543347236
        109      Daniel Wray Dedmon                                     2543216138
        110      Dennis Coleman                                         2543216013
        112      Mary E. Abernathy                                      2543205777
        113      Gisela A. Bowen                                        2543205620
        114      Kathy T. Carter                                        2543202090
        115      Roy M. Rizzo                                           2542292773
        116      Andrew Thomas Dedmon                                   2542199691
        117      William R. and Elizabeth Poston Cameron                2542192190
        119a     Rodney Harold and Sara O. Powell                       2542188389
        119b

        By way of background, North Carolina has codified the common-law presumption that
owners of land adjacent to an abandoned railroad easement own to the centerline of the
easement. 28 See N.C. Gen. Stat. § 1-44.2; McDonald’s Corp., 450 S.E.2d at 890-91. However,
pursuant to the statute codifying the presumption, North Carolina General Statutes section 1-44.2
(“section 1-44.2”), a different rule applies when the abandoned railroad easement adjoins a
public road right-of-way. Relying on the latter rule, defendant argues that because the parcels
described in the fifty-eight claims at issue are separated from the railroad right-of-way by a
public road, they do not include the land underlying the railroad right-of-way.

      In response, plaintiffs assert that the six public roads at issue–Washburn Switch Road,
South Morgan Street, South Post Road, Topic Street, Blacksburg Road, and Bettis Road–are




102a is 2543340870, and that the parcel number for claim 102b is 2543248704. These latter
parcel numbers appear to be the correct parcel numbers.
       28
            North Carolina is one of a small number of states that has codified the centerline
presumption. See Danaya C. Wright, Doing a Double Take: Rail-Trail Takings Litigation in the
Post-Brandt Trust Era, 39 Vt. L. Rev. 703, 726 (2015) (“At least four states have passed
legislation providing that adjoining landowners will be deemed to own to the centerline of
abandoned railroad corridors (where the railroad held only an easement): Arkansas, Indiana,
Iowa, and North Carolina.”)

                                              -19-
easements. 29 Because easements do not affect title to the underlying fee estate, plaintiffs argue
that the centerline presumption set forth in section 1-44.2(a) applies to the parcels at issue.
Additionally, for certain claims, plaintiffs contend that the legal descriptions in the relevant
deeds support their contention that those parcels extend to the centerline of the railroad right-of-
way. Finally, plaintiffs generally argue that defendant has misconstrued section 1-44.2(a) to cut
off their property interests underlying the railroad right-of-way.

                                       a. Section 1-44.2(a)

       Central to the parties’ contentions is the meaning and application of section 1-44.2.
Thus, the court turns to the text of that statute to ascertain how it should be construed. See
Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (“In statutory
construction, we begin ‘with the language of the statute.’” (quoting Barnhart v. Sigmon Coal
Co., 534 U.S. 438, 450 (2002))).

       Section 1-44.2 is titled “Presumptive ownership of abandoned railroad easements” and
provides, in relevant part:

       (a) Whenever a railroad abandons a railroad easement, all right, title and interest
       in the strip, piece or parcel of land constituting the abandoned easement shall be
       presumed to be vested in those persons, firms or corporations owning lots or
       parcels of land adjacent to the abandoned easement, with the presumptive
       ownership of each adjacent landowner extending to the centerline of the
       abandoned easement. In cases where the railroad easement adjoins a public road
       right-of-way, the adjacent property owner’s right, title and interest in the
       abandoned railroad easement shall extend to the nearest edge of the public road
       right-of-way.

       ....

       (b) The presumption established by this section is rebuttable by showing that a
       party has good and valid title to the land.

N.C. Gen. Stat. § 1-44.2. In short, the statute provides the answer to two questions: (1) Who
owns an abandoned railroad easement when that easement is adjacent to multiple parcels of
land? (2) Who owns an abandoned railroad easement when that easement adjoins a public road
right-of-way?



       29
           In support of this contention, plaintiffs offer an affidavit from an employee of the
North Carolina Department of Transportation (“NCDOT”) that indicates that NCDOT could not
locate any information regarding whether the state acquired the roads at issue by easement or fee,
and therefore NCDOT holds right-of-way easements for maintenance purposes. However, the
affidavit applies only to South Morgan Street, South Post Road, Blacksburg Road, and Bettis
Road. It does not mention Washburn Switch Road or Topic Street.

                                                -20-
question in Nelson v. Battle Forest Friends Meeting, 436 S.E.2d 122 (N.C. 1993). 30 In such
circumstances, the court held, “the public road right-of-way [does] not adjoin the abandoned
railroad easement and the second sentence of [section] 1-44.2(a) does not apply . . . .” Id. at 124;
see also id. at 125 (“We believe that the definition of ‘adjoin’ does not include a tract which . . .
is included within the bounds of another tract. To adjoin, a tract must be ‘close to or in contact,’
‘next to’ or ‘touching.’”). Consequently, the two adjacent landowners would each own to the
centerline of the abandoned railroad easement pursuant to the first sentence of section 1-44.2(a).
Id. at 125.

   b. Summary Judgment Is Not Appropriate as to the Thirty-Three Claims Where the
 Intervening Public Road May Be Situated Completely Within the Railroad Right-of-Way

        It is undisputed that for all fifty-eight claims in this second subcategory, the relevant
parcels are akin to Parcel B in Figure 2–separated from the railroad line by a public road. Thus,
pursuant to the second sentence of section 1-44.2(a), if the public road right-of-way adjoins the
railroad right-of-way, then whoever owns the property on the other side of the railroad right-of-
way (the property akin to Parcel A in Figure 2) presumptively owns the entirety of the railroad
right-of-way. However, for many of the fifty-eight claims identified by defendant, the evidence
submitted by the parties suggests, but does not definitively establish, that the public road is
situated within the confines of the railroad right-of-way.

        To reach this conclusion, the court first reviewed the deeds reflecting the original
conveyances to Norfolk Southern’s predecessor to determine the width of the railroad right-of-
way. These deeds generally reflect that the railroad right-of-way is 100 feet wide (fifty feet from
each side of the centerline). 31 Next, the court reviewed the deeds reflecting the conveyance of

       30
          North Carolina state appellate courts have not otherwise addressed the public-road-
right-of-way provision of section 1-44.2(a).
       31
           Many of the deeds explicitly granted a 100-foot-wide right-of-way. However, the
remaining deeds were not as clear. For example, the court was unable to ascertain the width of
the right-of-way granted in the deed marked as Exhibit 27 because the deed is illegible. In
addition, the deeds in Exhibits 17, 48, and 49 only describe a five-foot-wide right-of-way, but a
review of plaintiffs’ overview map reflects that there is another deed conveying a wider right-of-
way at that location. Further, in the deeds marked as Exhibits 20, 34, 44, and 52, the space
where the width of the right-of-way was to be written was left blank, and in the deed marked as
Exhibit 51, the width of the right-of-way was unstated. Finally, plaintiffs did not include the
second page of the deed submitted as Exhibit 36, which presumably is the page that sets forth the
width of the right-of-way. Despite these issues, the court recognizes that North Carolina law, at
the time Norfolk Southern’s predecessor acquired its easement in the late 1880s, generally
limited the width of railroad rights-of-way to 100 feet. See The Code of North Carolina, ch. 49,
§ 1957(4) (1883) (indicating that the General Assembly, during its 1871-1872 session, enacted a
law providing that “[e]very railroad corporation shall have power . . . [t]o lay out its road not
exceeding one hundred feet in width”). But see Battle’s Revisal of the Public Statutes of North
Carolina, ch. 99, § 29(4) (1873) (indicating that the General Assembly, during its 1871-1872
session, enacted a law–the same law described in the 1883 code–providing that “[e]very
corporation formed under this chapter shall have power . . . [t]o lay out its road not exceeding
                                                -22-
the relevant parcels to the current property owners to determine how the boundaries of the
parcels were described; in some cases, the deeds did not include a metes-and-bounds description,
but plaintiffs submitted a subdivision plat that indicated the boundaries of the parcels. 32 The
court then roughly outlined the parcels’ boundaries on the WebGIS maps submitted by defendant
and, using the scales on the maps, determined whether it was possible that the public road was
within the railroad right-of-way. For the following thirty-three claims, the court determined that
it was possible (and in some cases, quite likely) that the public road exists within the railroad
right-of-way: 2, 3, 13, 22, 23a, 23b, 27, 30a, 30b, 30c, 41, 58, 64, 66, 73 (the portion not
affected by the intervening parcel), 87, 91, 93a, 93b, 95, 96, 98a, 98b, 102a, 102b, 103, 109, 110,
112, 113, 114, 116, and 117. If the public road rights-of-way do, in fact, exist solely within the
confines of the railroad right-of-way, then the owners of the parcels described in these claims
presumptively own to the centerline of the railroad right-of-way, Nelson, 436 S.E.2d at 124-25,
unless another party establishes “good and valid title to the land,” N.C. Gen. Stat. § 1-44.2(b).

        In applying section 1-44.2, as clarified by Nelson, to plaintiffs’ claims, the court has
necessarily rejected several of the arguments advanced by the parties. For example, defendant
argues that because the deeds associated with the claims at issue specifically identify one of the
parcels’ boundaries as the near edge or centerline of the public road or as the near edge of the
railroad right-of-way, the relevant plaintiffs cannot own to the centerline of the railroad right-of-
way. This argument reflects a misunderstanding of section 1-44.2, which applies to parcels that
are “adjacent” to an abandoned railroad easement. There is no requirement that the parcels
underlie the easement for the centerline presumption (or the public-road-right-of-way exception)
to attach.

       In addition, plaintiffs argue that Washburn Switch Road, South Morgan Street, and South
Post Road are easements and therefore the centerline presumption applies to the adjacent parcels.
However, a public road that is an easement is exactly the situation addressed by section 1-44.2,
which is expressly concerned with the effect of a “public road right-of-way” on the ownership of
an abandoned railroad easement.

      Plaintiffs further assert that two of the public roads at issue–Blacksburg Road and Bettis
Road–existed at the time Norfolk Southern’s predecessor acquired its right-of-way. 33
Consequently, they argue that the property owners who conveyed easements to the railroad must

twelve rods [198 feet] in width”); Hendrix v. S. Ry. Co., 77 S.E. 1001, 1004-05 (N.C. 1913)
(holding that when a deed “conveys ‘all right, title and claim to so much of our land as may be
occupied by the said railroad, its banks, ditches and works,’ . . . the right of way of the [railroad]
is confined to the land occupied for its tracks, banks, ditches, and works, but that such
occupation . . . may be extended from time to time, . . . not to exceed, however, the width of the
right of way provided in its charter.”). The court further recognizes that the ICC valuation maps
generally depict a railroad right-of-way not exceeding 100 feet in width.
       32
          The claims for which the deeds lacked metes-and-bounds descriptions are claims 109,
110, 112, 113, and 114.
       33
            Plaintiffs’ assertion is based on the ICC valuation maps.

                                                 -23-
have owned the land underlying the roads, therefore rebutting the presumption that that the
owner of the property on the opposite side of the railroad right-of-way owns the entire railroad
right-of-way. However, as defendant notes, plaintiffs have not provided evidence that the land
underlying the public road was conveyed to subsequent purchasers. The only deeds before the
court indicate that the relevant boundary is either the near edge or centerline of the public road,
or the edge of the railroad right-of-way (which might coincide with the near edge or centerline of
the road). The court has no way of ascertaining whether a prior owner of the parcel that included
the railroad right-of-way divided that parcel in such a way as to convey the land underlying the
railroad right-of-way to a purchaser not in the relevant plaintiff’s chain of title.

        In short, the court finds that the proper application of section 1-44.2, as clarified by
Nelson, might result in the conclusion that the plaintiffs who own the parcels associated with the
thirty-three claims at issue presumptively own to the centerline of the railroad right-of-way.
However, because its method for ascertaining the location of the public road rights-of-way is
necessarily imprecise, the court declines to grant summary judgment to plaintiffs or defendant as
to these thirty-three claims. In other words, there is a genuine issue of material fact as to the
property interest owned by the relevant plaintiffs. To prove that these plaintiffs presumptively
own to the centerline of the railroad right-of-way, plaintiffs will need to marshal evidence
establishing that the public road rights-of-way are, in fact, situated within the railroad right-of-
way. 34

   c. Summary Judgment Is Not Appropriate as to Eleven Additional Claims Where the
 Intervening Public Road May Be Situated Completely Within the Railroad Right-of-Way

        The thirty-three claims described above are not the only claims for which the Nelson rule
might operate to grant presumptive ownership to the centerline of the railroad right-of-way
pursuant to the first sentence of section 1-44.2(a). There are eleven additional claims for which
the public road might lie within the railroad right-of way. Because of their unique attributes, the
court addresses each claim separately.

        Claim 59. The deed associated with claim 59 describes a 200-foot-deep parcel bounded
by Fourth Street to the north, Wright Avenue to the west, lot 41 to the south, and Broad Street to
the east. However, the boundaries depicted on the WebGIS map submitted by defendant are
different; the map shows the 200-foot-deep parcel bounded by an unnamed dirt track to the
north, Topic Court to the west, Topic Street to the south, and nothing in particular to the east.
The map further reflects that approximately sixty-five feet east of the eastern boundary of the
parcel is Topic Street (which is T-shaped), that the railroad line is situated to the east of Topic

       34
           Plaintiffs will also need to marshal evidence to establish that Washburn Switch Road
is an easement and not a fee estate to prevail with respect to claims 2, 3, and 13. Further,
although the parties stipulated that plaintiffs owned the parcels associated with claims 98a, 98b,
and 116, and although WebGIS maps submitted by defendant depict the eastern boundary of
these parcels as the western edge of Bettis Road, plaintiffs did not submit the relevant deeds that
would allow the court to ascertain how the eastern boundary of the parcels is actually described.
(The deeds submitted by plaintiffs–Exhibits 115 and 121 to their third amended complaint–were
not the correct deeds.)

                                                -24-
Street, and that South Post Road lies to the east of the railroad line. Plaintiffs aver that South
Post Road is the current name of Broad Street at this location (in Patterson Springs, North
Carolina). 35 However, the relevant ICC valuation map–which shows the parcel as being
bounded by Fourth Street, Wright Avenue, lot 41, and Broad Street–suggests that the deed’s
reference to Broad Street is actually a reference to the road now called Topic Street, and not
South Post Road. Based on the description in the deed, and to the extent that South Post Road is
the current name of Broad Street, plaintiffs may be able to overcome the presumption set forth in
the second sentence of section 1-44.2(a) since the eastern boundary of the parcel would fall
beyond (and therefore include) the railroad line. However, based on the WebGIS and ICC
valuation maps, Topic Street is an intervening road, and may be situated completely within the
railroad right-of-way. Because there is conflicting evidence in the record concerning the precise
boundaries of the parcel, the court declines to grant summary judgment to plaintiffs or defendant
with respect to claim 59. 36

        Claim 60. The deed associated with claim 60 describes a 200-foot-deep parcel bounded
by Fourth Street to the north, Wright Avenue to the west, lot 41 to the south, and Broad Street to
the east. However, the boundaries depicted on the WebGIS map submitted by defendant are
different; the map shows the 200-foot-deep parcel bounded by Topic Street to the north, Topic
Court to the west, lot 41 to the south, and nothing in particular to the east. The map further
reflects that this parcel is adjacent to the parcel associated with claim 59, and that similar to the
latter parcel, Topic Street, the railroad right-of-way, and South Post Road are situated–in that
order–to its east. Accordingly, the court’s analysis of claim 59, as well as the conclusion it
reached, applies equally to claim 60.

       Claim 61a. The deed associated with claim 61a includes a metes-and-bounds description
of a 100-by-200-foot parcel, and generally describes the parcel as

       Being all of that property denominates “Third Lot” in that conveyance of B.T.
       Falls, Commissioner to J.Q. Earl, dated November 7, 1933, the same being all of
       Lot No. 10 of the L.H. Paterson land as shown on map of said lands in Special
       Proceedings Number 1919 in the Office of the Clerk of the Superior Court for
       Cleveland County, North Carolina . . . .

Third Am. Compl. Ex. 74 at 209. Neither the metes-and-bounds description nor the general
description is sufficient to ascertain the precise location of the parcel or how the parcel is situated
with respect to the railroad right-of-way or any intervening public roads. The only map in the
record that shows the location of parcel is plaintiffs’ overview map, 37 which suggests that the

       35
           As described below, further south along the railroad right-of-way, in Earl, North
Carolina, the current name of Broad Street is Bettis Road and/or Blacksburg Road.
       36
           In addition to proving the boundaries of the parcel associated with claim 59, plaintiffs
will need to marshal evidence that Topic Street is an easement and not a fee estate.
       37
          The relevant valuation map (submitted by plaintiffs as Exhibit 3 to their third amended
complaint) does not depict the “Lot No. 10” mentioned in the deed.

                                                 -25-
parcel is similarly situated to the parcels associated with claims 59 and 60 in that Topic Street,
the railroad right-of-way, and South Post Road lie to its east. Thus, notwithstanding plaintiffs’
failure to establish the absence of a genuine issue of material fact, the court treats claim 61a in
the same manner as those claims and declines to grant summary judgment to plaintiffs or
defendant.

        Claim 68. The deed associated with claim 68 indicates that the southwestern point of the
roughly triangular-shaped parcel is an “iron pin set in the Southern Railroad Right-of-Way” and
that the boundary line runs to the northeast in three segments to “an unmarked point on the
N.C.D.O.T. Right of Way[.]” Reply & Resp. Ex. 16. The WebGIS map submitted by defendant
reflects that there are possibly two intervening roads affecting the relevant plaintiff’s property
interest in the railroad right-of-way: Brierwood Farms Road and South Post Road. The court
cannot ascertain, from the metes-and-bounds description in the deed, the extent to which these
two roads are situated within the railroad right-of-way. Thus, the court declines to grant
summary judgment to plaintiffs or defendant with respect to claim 68.

        Claims 97 and 99. The parcels associated with claims 97 and 99 are situated on opposite
sides of the railroad right-of-way, with Blacksburg Road and Bettis Road constituting
intervening public roads for each parcel, respectively (and Bettis Road appearing to be fully
contained within the railroad right-of-way). The deed associated with claim 97 indicates that the
western boundary of the parcel is the east edge of the “Broad Street (N.C. Hwy. 198)” right-of-
way, which is also the “East edge of the right of way of Southern Railroad.” Third Am. Compl.
Ex. 250 (emphasis added). The deed associated with claim 99 indicates that the eastern
boundary of the parcel is the “West edge of Broad Street.” Third Am. Compl. Ex. 123.
Plaintiffs aver that Broad Street is now known as Bettis Road at this location (in Earl, North
Carolina). However, North Carolina Highway 198 is, in the vicinity of the two parcels at issue,
currently known as Blacksburg Road, not Bettis Road, 38 and the WebGIS map submitted by
defendant suggests that the western boundary of the parcel associated with claim 97 is
Blacksburg Road. Moreover, the relevant ICC valuation map depicts both roads, with the road
currently known as Bettis Road labeled as both “Broad St.” (in white print) and as a “dirt street”
(in yellow handwriting), and the road currently known as Blacksburg Road labeled as both
“Broad St.” (in black handwriting), and as a “dirt” street (in yellow handwriting). Given the
uncertainty regarding what the two deeds mean by “Broad Street,” it is not possible for the court
to ascertain the western boundary of the parcel associated with claim 97 or, consequently, how to
apply the rules set forth in section 1-44.2(a) as between the parcels associated with claims 97 and
99. Thus, the court declines to grant summary judgment to plaintiffs or defendant with respect to
claims 97 and 99.

        Claim 100. The deed associated with claim 100 describes the parcel as “lots numbers 50
and 51 . . . .” Third Am. Compl. Ex. 260 at 723. Although the deed lacks a metes-and-bounds
description, when it is read in conjunction with the relevant ICC valuation map, it is apparent
that the eastern boundary of the parcel is the road currently known as Bettis Road. According to
the WebGIS map submitted by defendant, Bettis Road may exist completely within the railroad

       38
          The court takes judicial notice of this fact pursuant to Rule 201(b)(2) of the Federal
Rules of Evidence.

                                                -26-
right-of-way. Thus, the proper application of section 1-44.2(a), as clarified by Nelson, might
result in the conclusion that the plaintiff who owns the parcel associated with claim 100
presumptively owns to the centerline of the railroad right-of-way. Thus, the court declines to
grant summary judgment to plaintiffs or defendant with respect to claim 100.

        Claims 101a and 101b. The deeds associated with claims 101a and 101b indicate that the
western boundary of both parcels is the “East edge of Broad Street.” Third Am. Compl. Ex. 208
at 551, 553. Although the WebGIS map submitted by defendant suggests that the western
boundary of the parcels is the eastern edge of Blacksburg Road, as noted with respect to claims
97 and 99, there is a lack of clarity regarding whether the eastern edge of Broad Street is actually
the eastern edge of Bettis Road or the eastern edge of Blacksburg Road. Accordingly, it is not
possible to ascertain the western boundary of the parcels associated with these claims or,
consequently, how the rules set forth in section 1-44.2(a) should be applied to the parcels. The
court therefore declines to grant summary judgment to plaintiffs or defendant with respect to
claims 101a and 101b.

         Claims 105a and 105b. The deed associated with claims 105a and 105b includes a
(somewhat opaque) metes-and-bounds description of a single parcel (leading defendant to refer
to the claim as “claim 105”). Using an informal diagram submitted by plaintiffs as a guide, the
court was able to trace the approximate boundary of the parcel on the WebGIS map submitted by
defendant. The southern end of the western boundary of the parcel appears to be adjacent to the
railroad right-of-way with no intervening road, and the northern end of the western boundary of
the parcel is separated from the railroad right-of-way by Blacksburg Road. Further, it appears
that at least a portion of Blacksburg Road may be completely encompassed within the railroad
right-of-way. Thus, the proper application of section 1-44.2(a), as clarified by Nelson, might
result in the conclusion that the plaintiff who owns the parcel associated with claim 100
presumptively owns to the centerline of the railroad right-of-way (due to the operation of the first
sentence of section 1-44.2(a) with respect to the southern portion of the western boundary of the
parcel, and the holding of Nelson with respect to the northern portion of the western boundary of
the parcel). Thus, the court declines to grant summary judgment to plaintiffs or defendant with
respect to claims 105a and 105b.

 d. Summary Judgment Is Not Appropriate as to Six Additional Claims Where, Pursuant
    to Evidence Submitted by Defendant, the Intervening Public Road May Be Situated
                    Completely Within the Railroad Right-of-Way

        There are an additional six claims for which the evidence submitted by the parties
suggests that the public road might exist completely within the railroad right-of way: claims 20a,
20b, 63, 65, 71, and 115. 39 For these claims, the deeds submitted by plaintiffs lack a metes-and-
bounds description from which the court could ascertain the boundaries of the parcels at issue.
However, the WebGIS maps submitted by defendant suggest that the parcels are adjacent to the
public road and that the public road may be within the railroad right-of way. Although it is
plaintiffs’ burden to establish that their property is adjacent to the railroad right-of-way, the court

       39
           The court previously denied the parties’ summary judgment motions as to claim 65 on
different grounds.

                                                 -27-
will not ignore evidence in the record suggesting the existence of a genuine issue of material
fact. Accordingly, the court declines to grant summary judgment to plaintiffs or defendant with
respect to these six claims.

  e. Defendant Is Entitled to Summary Judgment as to Claims 82, 83, 89a, 89b, 119a, and
                                         119b

        In contrast with the claims discussed above, the court concludes that plaintiffs have not
satisfied their burden of establishing that the parcels associated with claims 82, 83, 89a, 89b,
119a, and 119b are adjacent to the railroad right-of-way. 40 For claims 82 and 83, the deeds
submitted by plaintiffs do not contain a metes-and-bounds description of the associated parcels,
but instead indicate that such a description can be found in a recorded subdivision plat.
However, plaintiffs did not submit the plat in support of its motion, leaving the court with no
way to ascertain the boundaries of the parcels at issue. Further, the WebGIS maps submitted by
defendant suggest that the eastern boundary of the parcels is Blacksburg Road and that
Blacksburg Road does not lie within the railroad right-of-way. Thus, in the absence of any
evidence in the record that the parcels associated with claims 82 and 83 include the railroad
right-of-way or that Blacksburg Road is encompassed within the railroad right-of-way, plaintiffs
have failed to establish that the second sentence of section 1-44.2(a) does not operate to deprive
the owners of the parcels of any interest in the railroad right-of-way.

         For claims 89a and 89b, the deed submitted by plaintiffs contains, as previously noted,
metes-and-bounds descriptions of twenty separate tracts, and these descriptions rely almost
entirely on landmarks (stones, trees, creeks, etc.), surrounding properties (identified by the
owners’ names), and unnamed or currently nonexistent roads to define the boundaries of each
tract. As also noted above, the only map in the record that depicts the boundaries of the parcels
associated with claims 89a and 89b is plaintiffs’ overview map, which indicates that the parcel
associated with claim 89a is situated at the corner of Lavender Road and Blacksburg Road, and
that one of the boundaries of the parcel associated with claim 89b is Blacksburg Road. This map
is not nearly detailed enough for the court to ascertain whether the any of the tracts described in
the deed coincide with the parcels depicted on the map. Furthermore, the overview map suggests
that Blacksburg Road is situated between the parcels and the railroad right-of-way. Thus, in the
absence of any evidence in the record that the parcels associated with claims 89a and 89b include
the railroad right-of-way, 41 or that Blacksburg Road is encompassed within the railroad right-of-
way, plaintiffs have failed to establish that the second sentence of section 1-44.2(a) does not
operate to deprive the owners of the parcels of any interest in the railroad right-of-way.

       For claims 119a and 119b, the deed submitted by plaintiffs includes a (somewhat opaque)
metes-and-bounds description of a single parcel. Unfortunately, the sole map submitted by the

       40
           The court previously granted defendant’s cross-motion as to claims 89a and 89b on
different grounds.
       41
           As noted above, the deed’s description of one of the tracts indicates that the tract runs
along a railroad right-of-way for 950 feet, but plaintiffs’ overview map suggests that the parcels
associated with claims 89a and 89b run along the railroad right-of-way for less than 500 feet.

                                                -28-
parties showing the location of the parcel is plaintiffs’ overview map, which only allows for a
very rough determination of the parcel’s boundaries. From this map, it appears that the southern
portion of the parcel may adjoin the railroad right-of-way with no intervening public road, and
that the northern portion of the parcel is separated from the railroad right-of-way by Bettis Road.
However, especially in light of the fact that the legal description of the parcel lacks any reference
to the railroad right-of-way, the court cannot ascertain the extent to which Bettis Road is
encompassed within the railroad right-of-way. In short, the evidence submitted by plaintiffs is
insufficient to determine whether the southern portion of the parcel is adjacent to the railroad
right-of-way, and whether Bettis Road is situated within the railroad right-of-way such that the
second sentence of section 1-44.2(a) is inapplicable.

       In sum, defendant is entitled to summary judgment as to claims 82, 83, 89a, 89b, 119a,
and 119b.

           f. Plaintiffs Are Entitled to Summary Judgment as to Claims 62 and 94

        For the final two claims that implicate an intervening public road, claims 62 and 94, the
court concludes that plaintiffs have satisfied their burden of establishing that the pertinent parcels
are adjacent to the railroad right-of-way. With respect claim 62, the associated deed indicates
that the western boundary of the parcel is the center of Highway 180 (South Post Road), which is
“50 feet from the center of the Southern Railway track[.]” Reply & Resp. Ex. 28. In other
words, half of the intervening public road is situated within the railroad right-of-way. As
explained in Nelson, the second sentence of section 1-44.2(a) applies only when a public road
right-of-way adjoins an abandoned railroad easement. 436 S.E.2d at 124-25. The North
Carolina Supreme Court strictly construed the term “adjoins” to mean that the two rights-of-way
must be situated side by side. See id. at 125 (“We believe that the definition of ‘adjoin’ does not
include a tract which . . . is included within the bounds of another tract. To adjoin, a tract must
be ‘close to or in contact,’ ‘next to’ or ‘touching.’”). Here, South Post Road and the railroad
right-of-way are not situated side by side; rather, the two rights-of-way overlap. Thus, the
second sentence of section 1-44.2(a) does not apply, and the owner of the parcel associated with
claim 62 owns to the centerline of the railroad right-of-way.

        With respect to claim 94, the associated deed indicates that the eastern boundary of the
parcel is the “West edge of Broad Street, also referred to as the e[d]ge of South Railroad[.]”
Plaintiffs aver that Broad Street is now known as Bettis Road at this location (in Earl, North
Carolina), and the WebGIS map submitted by defendant suggests that the eastern boundary of
the parcel associated with claim 94 is Bettis Road. In contrast, as noted above with respect to
claims 97 and 99, the relevant ICC valuation map suggests that the “Broad Street” mentioned in
the deed could be referring to either Bettis Road or Blacksburg Road. This lack of clarity
regarding the deed’s reference to Broad Street, however, is of no moment. If the reference to
Broad Street means Bettis Road, then the owner of the parcel would own to the centerline of the
railroad right-of-way because the road lies completely within the railroad right-of-way. And, if
the reference to Broad Street in the deed means Blacksburg Road, then the owner of the parcel
would own the entirety of the railroad right-of-way because the presumptions set forth in section
1-44.2(a) would be overcome by proof that the railroad right-of-way is completely within the
boundaries of the parcel.

                                                -29-
       In sum, plaintiffs are entitled to summary judgment as to the threshold title issues as to
claims 62 and 94.

            3. Defendant Is Entitled to Summary Judgment as to Claims 21 and 50

        The third and fourth subcategories of claims in which defendant challenges plaintiffs’
assertion of a property interest in the land underlying the railroad right-of-way collectively
include only two claims:

        Claim                    Property Owner                            Parcel Number
        21        Stephen Thompson Gheen                                   2547104347
        50        Gaye L. Willis                                           2545367307

        With respect to claim 21, the relevant deed describes a 200-by-200-foot parcel bounded
by West Warren Street to the north and South Morgan Street to the east. The only map in the
record that depicts the location of this parcel is plaintiffs’ overview map, which indicates that the
railroad right-of-way is adjacent and parallel to South Morgan Street. However, the railroad
right-of-way is marked on the map in such a way that obscures how South Morgan Street and the
railroad right-of-way are situated with respect to each other. 42 Thus, the court is unable to
ascertain whether (1) the parcel at issue is immediately adjacent to the railroad right-of-way
(implicating the first sentence of section 1-44.2(a)), (2) South Morgan Street is an intervening
public road (implicating the second sentence of section 1-44.2(a)), or (3) South Morgan Street is
situated within the railroad right-of-way (implicating Nelson). In short, plaintiffs have not
satisfied their burden of establishing that the owner of the parcel associated with claim 21 has a
property interest in the railroad right-of-way. The court therefore grants defendant’s motion for
summary judgment as to this claim.

        With respect to claim 50, the relevant deed lacks a metes-and-bounds description of the
parcel. Rather, the parcel is described as “Lot #2 Block ‘H’ of map 4 WinterPark Subdivision.”
Third Am. Compl. Ex. 266 at 736. The only map in the record depicting the location of this
parcel is plaintiffs’ overview map, which suggests that the parcel is adjacent to the railroad right-
of-way (with no intervening parcel or public road). However, there is no way for the court to
determine that the parcel described in the deed is the same parcel depicted on the map. In other
words, plaintiffs have not satisfied their burden of establishing that the parcel associated with
claim 50 is adjacent to the railroad right-of-way. The court therefore grants defendant’s motion
for summary judgment as to this claim.




       42
           A WebGIS map submitted by defendant depicting an area north of the parcel at issue
indicates that the railroad line is situated to the east of South Morgan Street, while a separate
WebGIS map submitted by defendant depicting the area south of the parcel at issue indicates that
the railroad line is situated to the west of South Morgan Street.

                                                -30-
     F. Summary Judgment Is Not Appropriate With Respect to the Seven Claims Not
                         Addressed in the Parties’ Motions

      Finally, the parties do not address the following seven claims in their summary judgment
motions: 43

         Claim                     Property Owner                          Parcel Number
         17b      James D. Ledbetter                                       (b) 2547115134
         19       Hil-Cri-Mor Hudson Rentals                               2547114054
         24       C.C. Dickson Co.                                         2546185419
         51       Sheila P. and Les Ivie                                   2545451806
         56a      Tommy A. Swan and Anita P. Long on Behalf of             (a) 2545726295
         56b      the Estate of Phyllis B. Patterson                       (b) 2545726295
         56c                                                               (c) 2545726295

Accordingly, neither plaintiffs nor defendant is entitled to summary judgment on threshold title
issues with respect to these claims.

                                       III. CONCLUSION

        As set forth in more detail above, the court GRANTS summary judgment to plaintiffs on
the threshold title issues with respect to the following claims:

       1, 11, 15a, 15b, 16 (in part), 25, 26, 28a, 28b, 29, 32a, 33a, 33b, 34a, 34b, 35a,
       35b, 35c, 36, 38, 39, 40a, 40b, 42, 43a, 43b, 44, 45, 46a, 47, 48, 49a, 49b, 52, 53a,
       53b, 54, 55, 62, 67, 69, 70, 72, 74, 75, 76, 77a, 77b, 78, 79, 80, 81, 84, 85, 86,
       88a, 88b, 88c, 89c, 90, 92a, 92b, 92c, 94, 104, 106, 107, 108a, 108b, 108c, 111,
       118, 120, 121, 122a, and 122b.

In addition, with respect to the following claims, the court DENIES summary judgment to both
plaintiffs and defendant on the issue of whether the associated parcels are immediately adjacent
to the railroad right-of-way (but, based on the parties’ stipulations, GRANTS summary
judgment to plaintiffs on the other three threshold title issues, namely, (1) the identified parcels
correspond with property that was originally conveyed to create the railroad right-of-way
described in the NITU; (2) the original conveyances were easements for railroad purposes; and
(3) the identified plaintiffs owned their parcels on August 4, 2015, the date the Board issued the
NITU):

       43
           The court notes that the parties stipulated that (1) for claims 56a, 56b, and 56c, the
associated parcels correspond with property that was originally conveyed to create the railroad
right-of-way described in the NITU; (2) for claims 51, 56a, 56b, and 56c, the original
conveyances were easements for railroad purposes; (3) for claims 17b, 19, 51, 56a, 56b, and 56c,
the associated parcels are immediately adjacent to the railroad right-of-way described in the
NITU; and (4) for claims 17b, 19, 24, and 51, the identified plaintiffs owned their parcels on
August 4, 2015, the date the Board issued the NITU.

                                                -31-
       2, 3, 13, 20a, 20b, 22, 23a, 23b, 27, 30a, 30b, 30c, 32b, 41, 58, 59, 60, 61a, 63, 64,
       65, 66, 68, 71, 73 (the portion not affected by the intervening parcel), 87, 91, 93a,
       93b, 95, 96, 97, 98a, 98b, 99, 100, 101a, 101b, 102a, 102b, 103, 105a, 105b, 109,
       110, 112, 113, 114, 115, 116, and 117.

Next, the court GRANTS summary judgment to defendant with respect to the following claims:

       16 (in part), 21, 50, 73 (the portion affected by the intervening parcel), 82, 83,
       89a, 89b, 119a, and 119b.

The court therefore DISMISSES these claims WITH PREJUDICE. Finally, the court
DENIES summary judgment to both plaintiffs and defendant on all threshold title issues with
respect to the following claims left unaddressed in the parties’ summary judgment motions:

       17b, 19, 24, 51, 56a, 56b, and 56c.

By no later than Friday, July 13, 2018, the parties shall file a joint status report suggesting
further proceedings.

       IT IS SO ORDERED.

                                                       s/ Margaret M. Sweeney
                                                       MARGARET M. SWEENEY
                                                       Judge




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