       In the United States Court of Federal Claims
                                           No. 09-242L

                                     (Filed: February 7, 2013)
                                            __________

 LOUIS A. BURGESS, et al.,                      *      Takings case; Cross-motions for partial
 For themselves and as representatives of a     *      summary judgment; Rails-to-Trails Act;
                                                *      Determination of claimant’s property
 class of similarly situated persons,
                                                *      interests; Preseault; Iowa law construed;
                                                *      Easements for railroad purposes; Railroad
                       Plaintiffs,                     relocation – fee simple deeds; Deeds
                                                *
                                                       executed under threat of condemnation;
                                                *
         v.                                            Deeds with reverter clauses – application of
                                                *      Iowa Code § 614.24, Stale Users and
                                                *      Reversions Act (SURA); Dedication of alley
 THE UNITED STATES,
                                                *      to public use; Questions of fact precludes
                        Defendant.              *      rulings as to certain parcels; Recreational
                                                *      trail and railbanking not encompassed within
                                                *      “railroad purpose”; Scope of takings; Trial.
                                                *
                                            __________

                                             OPINION
                                            __________

        Thomas Scott Stewart, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, for
plaintiffs.

       Frank James Singer, Environment & Natural Resources Division, United States
Department of Justice, with whom was Acting Assistant Attorney General John C. Cruden, for
defendant.

ALLEGRA, Judge:

         Plaintiffs are landowners in Iowa, who allege that their property was taken as a result of
actions taken by defendant under the National Trails System Act (the Trails Act), 16 U.S.C. §§
1241-51. The court certified a class on September 14, 2009. Pending are cross-motions for
partial summary judgment regarding defendant’s liability as to the 148 parcels at issue. For the
reasons that follow, the court renders a split decision, concluding, as a matter of law, that
defendant is liable with respect to some of these parcels and not as to others. For still other
parcels, the court determines that the existence of genuine issues of material fact precludes a

                                                -23-
ruling as to liability. The court’s determinations are summarized in the appendix that follows
this opinion.

I.     BACKGROUND

       A brief recitation of the underlying facts sets the context for this decision.

        The class of plaintiffs in this case owns real estate that assertedly underlies or adjoins a
23.61 mile railroad corridor that runs through Franklin and Butler Counties, Iowa (the Railroad
Line). The Railroad Line was originally created by the Iowa Pacific Railroad Company (the
Railroad),1, which in the 1870s, established the corridor through a combination of various forms
of conveyance and transfer. In many instances, the Iowa Pacific (and its successors-in-interest,
including the Dubuque and Dakota Railroad Company and the Mason City and Fort Dodge
Railroad) frequently used a standard form of right-of-way deed. Although these deeds varied
slightly, they generally stated, in critical part:

       That in consideration of the sum of [dollar amount] . . . , and the benefit [the
       grantors] expect to derive from the construction of their road, [grantors’ name] . . .
       hereby grant, convey, and confirm unto the said THE IOWA PACIFIC
       RAILROAD COMPANY, their successors and assigns forever, the RIGHT OF
       WAY for their Railroad, to-wit: A strip of land for that purpose one hundred feet
       wide across [legal description of land involved].

In other instances, the Railroad relocated the rail corridor and obtained new deeds. These deeds
typically recited the following language:

       That [grantors], in the consideration of the sum of [dollar amount] . . . , do hereby
       Grant, Bargain, Sell and Convey unto [the railroad company], its successors and
       assigns forever, all that tract or parcel of land lying and being in the County of
       Butler and State of Iowa, described as follows, to-wit: [legal description of land
       involved].

The Iowa Pacific and its successors-in-interest also negotiated various other forms of conveyance
in establishing the rail corridor.

        Eventually, Union Pacific Railroad (Union Pacific) became the successor-in-interest to
the Railroad. On June 9, 2003, Union Pacific filed a petition for exemption with the Surface




       1
          As context requires, the phrase “the Railroad” may also refer herein to the Iowa Pacific
and its successors-in-interest.

                                                -2-
Transportation Board (STB),2 seeking permission to abandon a segment on the eastern portion of
the Railroad Line, specifically, that between milepost 318.36, near Hampton, Iowa, and milepost
294.75, near Allison, Iowa – a distance totaling 23.61 miles. On June 9, 2003, the Iowa Trails
Council, a non-profit trail operator, filed a petition with the STB expressing interest in
negotiating a trail use agreement with Union Pacific. Union Pacific subsequently responded that
it was willing to negotiate such an agreement with the Council. Based on this mutual expression
of interest, on September 26, 2003, the STB issued a Notice of Interim Trail Use (NITU)3 for the
portion of the Railroad Line identified above. On August 4, 2008, the Iowa Natural Heritage
Foundation, on behalf of the Conservation Boards of Franklin and Butler Counties, and the Iowa
Trails Council, notified the STB that it and Union Pacific had entered into a trail use agreement.

         On April 20, 2009, plaintiffs filed their complaint in this court seeking just compensation
under the Fifth Amendment for property they claim was taken when the STB issued a NITU
pursuant to the Trails Act. As mentioned, on September 14, 2009, the court certified a class that
eventually grew to include 148 individual parcels and 77 individuals or entities. On September
22, 2009, plaintiffs filed a second amended complaint. On September 8, 2010, plaintiffs filed a
motion for partial summary judgment on liability as to some of the parcels in the class. On
October 29, 2010, the court granted the parties’ joint motion to stay briefing on plaintiffs’ motion
pending settlement discussions. On June 21, 2011, after those settlement discussions appeared to
have run their course, the court lifted the stay and resumed briefing of plaintiffs’ motion for
partial summary judgment. On July 8, 2011, defendant filed a response to plaintiffs’ motion for
partial summary judgment and its own cross-motion for partial summary judgment. Briefing and
argument on these cross-motions, which now involve all 148 parcels, has now been completed.


       2
          The STB has exclusive authority over all the nation’s rail lines. See Chi. & N.W.
Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 321 (1981). A railroad cannot terminate rail
service on a particular line without first getting the STB’s consent. See Barclay v. United States,
443 F.3d 1368, 1371 (Fed. Cir. 2006), cert. denied, 549 U.S. 1209 (2007).

       3
          There are three ways to terminate rail service. First, a railroad can apply to the STB for
permission to discontinue service. See 49 U.S.C. § 10903(d)(2). Second, a railroad can ask the
STB for permission to abandon the rail line through a proceeding. See 49 U.S.C. § 10903(d)(1).
Finally, under the Trails Act, a railroad can terminate service through a process known as
“railbanking.” Under the railbanking process, the railroad must first file an abandonment
application under 49 U.S.C. § 10903, or a Notice of Exemption from that process under 49
U.S.C. § 10502. At some point during this process, a third-party may ask the STB to issue a
NITU so that the former railway can be used for interim trail use. The interim trail is subject to
the “possible future reconstruction and reactivation of the right-of-way for rail service.” 49
C.F.R. § 1152.29(a)(1)-(3). The NITU gives the railroad 180 days in which to negotiate an
interim trail use agreement with the third-party trail sponsor. 49 C.F.R. § 1152.29(d)(1). If an
agreement is reached, then the trail sponsor manages the right-of-way, subject to a possible
future restoration of rail service; if an agreement is not reached, the railroad may exercise its
authority to abandon the line. 49 C.F.R. §§ 1152.29(d)(1) and (e)(2).

                                               -3-
II.     DISCUSSION

        We begin with common ground. Summary judgment is appropriate when there is no
genuine dispute as to any material fact and the moving party is entitled to judgment as a matter
of law. See RCFC 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Disputes
over facts that are not outcome-determinative will not preclude the entry of summary judgment.
Id. at 248. However, summary judgment will not be granted if “the dispute about a material fact
is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return a verdict
for the nonmoving party.” Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Becho, Inc. v. United States, 47 Fed. Cl. 595, 599 (2000).

        When making a summary judgment determination, the court is not to weigh the evidence,
but to “determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; see also
Agosto v. Immigration & Naturalization Serv., 436 U.S. 748, 756 (1978) (“a [trial] court
generally cannot grant summary judgment based on its assessment of the credibility of the
evidence presented”); Am. Ins. Co. v. United States, 62 Fed. Cl. 151, 154 (2004). The court must
determine whether the evidence presents a disagreement sufficient to require fact finding, or,
conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at
250-52; see also Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (“‘Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial.’” (quoting Matsushita, 475 U.S. at 587)). Where there is a genuine dispute, all
facts must be construed, and all inferences drawn from the evidence must be viewed, in the light
most favorable to the party opposing the motion. Matsushita, 475 U.S. at 587-88 (citing United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Stovall v. United States, 94 Fed. Cl.
336, 344 (2010); L.P. Consulting Grp., Inc. v. United States, 66 Fed. Cl. 238, 240 (2005).
Where, as here, a court considers cross-motions for (partial) summary judgment, it must view
each motion, separately, through this prism.4

        A.      Ownership Interest

        In Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (en banc), the Federal
Circuit held that a threshold issue in rails-to-trails cases is who owned the land involved, with
particular focus on whether the railroad in question acquired only an easement or instead
obtained fee simple title to the corridor. “Clearly, if the Railroad obtained fee simple title to the
land over which it was to operate, and that title inures, as it would, to its successors,” the court
observed, a plaintiff “would have no right or interest in those parcels and could have no claim
related to those parcels for a taking.” Id.; see also Sutton v. United States, 107 Fed. Cl. 436, 438
(2012). The Federal Circuit went on to explain that if an easement is found, the court must then
determine whether it was subject to limitations, particularly, one “limited to use for railroad

        4
          See Chevron U.S.A. Inc. v. Mobil Producing Tex. & N.M., 281 F.3d 1249, 1252-53
(Fed. Cir. 2002); see also Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010);
Travelers Prop. Cas. Co. of Am. v. Hillerich & Bradsby Co., Inc., 598 F.3d 257, 264 (6th Cir.
2010); Stovall, 94 Fed. Cl. at 344; Northrop Grumman Computing Sys., Inc. v. United States, 93
Fed. Cl. 144, 148 (2010).

                                                 -4-
purposes.” Preseault, 100 F.3d at 1533; see also Ladd v. United States, 630 F.3d 1015, 1019
(Fed. Cir. 2010); Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009).

        As to the wide majority of parcels at issue, both parties focus on the legal import of the
same deeds, which effectuated the conveyance of a property interest from plaintiffs’
predecessors to the Railroad. Under Iowa law, deeds are interpreted according to the ordinary
rules of contract construction. See Weigmann v. Baier, 203 N.W.2d 204, 206 (Iowa 1972);
Maxwell v. McCall, 124 N.W. 760 (Iowa 1910); Jackson v. Benson, 7 N.W. 97 (Iowa 1880); see
also Douglas R. Bigelow Trust v. United States, 107 Fed. Cl. 490, 493 (2012); Sutton, 107 Fed.
Cl. at 440. As to these parcels, both parties largely agree that there are no questions of fact and
that the issue of how these deeds should be construed presents a question of law, suitable for
resolution under the cross-motions.5 See Steele’s Lessee v. Spencer, 26 U.S. 552, 560 (1828);
Douglas R. Bigelow Trust, 107 Fed. Cl. at 493; Sutton, 107 Fed. Cl. at 439-40. Those questions,
of course, must be resolved by reference to state law, in this case, that of Iowa. See Rhutasel v.
United States, 105 Fed. Cl. 220, 225 (2012); Jenkins v. United States, 102 Fed. Cl. 598, 606
(2011); see also Douglas R. Bigelow Trust, 107 Fed. Cl. at 493. As to other parcels, however,
the parties raise questions of fact that, as will be seen, preclude this court from resolving much at
this stage of the proceedings.




       5
         In Markman v. Westview Instruments, Inc., 52 F.3d 967, 997 (Fed. Cir. 1995), aff’d,
517 U.S. 370 (1996), the Federal Circuit explained the law on this point thusly:
       The interpretation of a contract or a deed, like a patent, is ultimately a question of
       law. There is nothing novel about the principle that, in the words of Justice Story,
       “the interpretation of written documents properly belongs to the Court, and not to
       the jury.” William & James Brown & Co. v. McGran, 39 U.S. (14 Pet.) 479, 493,
       10 L.Ed. 550 (1840). This principle has been routinely evoked in the context of
       contract law. See Levy v. Gadsby, 7 U.S. (3 Cranch) 180, 186, 2 L.Ed. 404 (1805)
       (“the construction of a written evidence is exclusively with the court”); Goddard
       v. Foster, 84 U.S. (17 Wall.) 123, 142, 21 L.Ed. 589 (1872) (“[I]t is well-settled
       law that written instruments are always to be construed by the court . . . .”); see
       also Meredith v. Picket, 22 U.S. (9 Wheat.) 573, 575, 6 L.Ed. 163 (1824)
       (interpreting a deed, “[t]he Judges must construe the words of an entry, or any
       other title paper, according to their own opinion of the words as they are found in
       the instrument itself”).

See also Chevy Chase Land Co. of Montgomery Cnty., Md. v. United States, 158 F.3d 574, 575
(Fed. Cir. 1998).

                                                -5-
        For each of the parcels in question, the parties raise a variety of issues. For ease and
clarity of decision, the court has grouped the parcels into ten categories raising the same or
similar issues.6 The court will address each of these categories in turn.

                  1.      Parcels for Which Liability is Uncontested.

                           Claimant Name                        Claim            Source
            Reinhold Leroy and Milton Peter Heyde            19.A & 19.B         M 565
            Bruce and Carol Lowery Symens                    20.A & 20.B         M 565
            Steven J. Koontz, Revocable Trust and Jean H.
                                                             25.C & 25.D         M 564
            Koontz, Revocable Trust
            Sherry Wagner                                     26.C - 26.E        M 564
            Clarence and Agnes Moore                             28.H            M 562

       For the ten properties listed in the chart above, the parties agree that the referenced deeds
created easements by condemnation.7 Defendant also agrees that under Iowa Code § 327G.76,8




        6
          In several instances, the parcels in these categories will be identified in a chart that lists
the name(s) of the claimant(s), as well as the claim identifier that the parties have assigned to the
claim in their class index. The charts also identify the source document(s) that relate to the
claim, using the record number employed in the Franklin or Butler County, Iowa recorder
offices. For instance, a conveyance located at “M 565” is recorded at Book M, page 565, or one
at “53 345” is recorded at Book 53, page 345. These same conventions are used in the appendix
that follows this opinion.

        7
         Defendant initially conceded some form of liability as to fifteen parcels, but later
modified its position to that currently reflected above.

        8
            This provision states:
        Railroad property rights which are extinguished upon cessation of service by the
        railroad divest when the department of transportation or the railroad, having
        obtained authority to abandon the rail line, removes the track materials to the
        right-of-way. If the department of transportation does not acquire the line and the
        railway company does not remove the track materials, the property rights which
        are extinguished upon cessation of service by the railroad divest one year after the
        railway obtains the final authorization necessary from the proper authority to
        remove the track materials.

Iowa Code § 327G.76; see also Burlington Northern R.R. Co. v. Kmezich, 48 F.3d 1047, 1049-50
(8th Cir. 1995) (discussing this provision); Macerich Real Estate Co. v. City of Ames, 433 N.W.
2d 726, 729 (Iowa 1988).

                                                      -6-
these easements extinguished due to non-use before the NITU in question was issued, making
defendant liable for a takings.9

                  2.       Parcels for Which Plaintiffs Concede There is No Liability.

                              Claimant Name                          Claim        Source
              Michael and Angie Harper                                 1           42 146
              Verlene M. Murray                                        2           36 271
              Franklin County c/o Michelle Giddings, Auditor           3           36 271
              Robert Brandt                                            6            U 57
              Virginia M. Meinberg                                     7            U 57
              John E. and Lynn R. Byrne                                11           U 57
              Larry (deceased) and Mary Jo Towne                  12.A & 12.B      U 527
              Dawn (McLennan) Craighton                                13          U 527
              Larry D. Butt                                            14          U 527
              Charles P. and Deanna L. Genz                            23            --
              Douglas and Karen Symens                               24.A            --
              Brenda Terpstra and George Terpstra (deceased)           61          31 117
              Rolin and Robin Eberline                               63.A          31 117
              Richard and Nancy J. Rieken                              64          31 117
              Emery Dickman                                         69.B - D       40 130
              Rodney Langfritz                                         77            --


        Based on their review of the relevant conveyance documents and deeds (and for some of
the parcels, there were no such documents), plaintiffs concede that there is no liability for the
nineteen parcels listed in the chart above.

                  3.       Parcels for Which Deeds Convey a Right-of-Way –
                           “For Their Railroad” and “For That Purpose.”

                            Claimant Name                         Claim            Source
           Kay F. Fox, Executer of the Estate of James Casper
                                                                17.A - 17.D        M 553
           Fox
           Michael J. Buchanan                                  18.A - 18.C     M 600; M522
           Bruce and Carol Lowery Symens                        20.C - 20.F        M 504
           Birdsell Farm Partners LLC, Jeff Birdsell            21.A & 21.B        M 546
           Etna Jeanette Doyle                                  22.A & 22.B        M 546
           Douglas and Karen Symens                             24.C & 24.D        M 563
           Franklin County Land Company, Leonard                                M 592; M 523;
                                                                27.A - 27.H
           Berghoefer                                                              M 563
           Clarence and Agnes Moore                                28.A            M 563
           Carolyn and Burdeen Sluiter                              29             M 531




       9
          As will be discussed below, notwithstanding its stipulation, defendant contests the
nature of the takings of these properties and the damages that are owed.

                                                       -7-
        Kurt M. and Coreen Wolf                                    30               T 304; T 336
        Dennis and Deb Mennen                                  31.A - 31.C             T 303
        Annette Lundie                                             32                  T 337
        Lanny R. and Betty J. Blohm                                33                  31 530
        Brenda Blohm-Baldwin                                       34                  T 252
        Leslie Dean Buseman                                        35                  T 252
        Douglas D. Borneman                                        36                  T 252
        Alvin Thadd Canon                                     37.A & 37.D           T 252; T 300
        George Reiners                                             38               T 252; T 248
        Finley J. and Robert J. Manifold                           46                  T 248
        Dorla Ferch                                                48               T 249; U 66
        Lowell E. and Marrian M. Newhall                      49.A & 49.B           T 249; U 66
        Richard L. and Cheryl A. Collins                      50.A & 50.B           T 249; U 66
        NE Iowa Christian Service Camp                            53.B          T 300; T 341; 31 118
        Lorna Yost                                                 58                   31 96
        Carol Ann Finke                                            59                   31 96
        Leslie A. & Cheryl J. Palmer                               60                   31 96
        James D. Winkowitsch                                       62                  31 117
        Rolin and Robin Eberline                              63B & 63.C                31 93
        Alan and Kathy A. Eberline                             65.A - 65.C      31 94; 31 119; 31 51
        Bernard and Carole Franken                                 66                  31 119
        Martin and Tanya Reeser                                    67                   31 51
        Greta Eberline, Betty Rewerts, Eldon Siemers, and
                                                                   68                 31 120
        Donald Siemers
        Emery Dickman                                            69.A                  T 381
        Hummel Harry Farms, Inc., Kevin Hummel                    71.B                 31 50
        Timothy and Felicia A. Schrage                             72                  T 253
        Adeline M. and Alfred Johnson                         73.A & 73.B              T 253
        Allison-Bristow Comm. School District, Warren
                                                                   74                  T 253
        Davison
        United Suppliers, Inc. (successor in interest to
                                                            75.A, 75.D - 75.F          T 253
        Allison-Kesley AG Center, Inc.), Brad Oelmann

        For the sixty-eight properties listed in the chart above, the relevant “Right of Way Deed”
indicates that the property owner grants to the Iowa Pacific “the right of way for their railroad,”
going on to describe the conveyance as “[a] strip of land for that purpose one hundred feet
across.” Plaintiffs argue that these deeds conveyed an easement limited to railroad purposes,
while defendant asserts that the same instruments conveyed unlimited easements. Plaintiffs are
right; defendant is wrong.

        In Iowa, when construing easement grants, courts apply the “cardinal principle” that “the
intention of the parties must control; and except in cases of ambiguity, this is determined by what
the contract itself says.” Wiegmann v. Baier, 203 N.W.2d 204, 208 (Iowa 1972); see also
Jenkins, 102 Fed. Cl. at 607. It is also the general rule that “where a right-of-way is granted it
may be used for any purpose to which the land accommodated thereby may reasonably be

                                                    -8-
devoted unless the grant contains specific limitations . . . .” McDonnell v. Sheets, 15 N.W.2d
252, 255 (Iowa 1944); see also Wiegmann, 203 N.W.2d at 208; Pitsenbarger v. N. Natural Gas
Co., 198 F. Supp. 665, 672 (S.D. Iowa 1961). If the easements in question were not unrestricted,
but instead limited for railroad purposes only, they were extinguished upon abandonment of the
rail line. Macerich Real Estate Co., 433 N.W.2d at 729-30; see also Iowa Code §§ 327G.76-.77.

         Defendant essentially argues that the language in the deeds that says the conveyance was
“for their railroad” and “for that purpose” are words of description, rather than limitation.
However, Iowa cases construing deeds with similar, to nearly identical, language have reached
an opposite conclusion. For example, in Macerich Real Estate Co., the Iowa Supreme Court
considered a deed that conveyed to a railroad “the right-of-way 100 feet in width for a single or
double railroad track.” 433 N.W.2d at 727. Seeking to effectuate the grantor’s intent, the court
held that the language of the deed “conveyed to the railroad only an easement for railroad
purposes.” Id. at 729; see also Estate of Rockafellow v. Lihs, 494 N.W.2d 734, 735 (Iowa Ct.
App. 1992); Haack v. Burlington N., Inc. 309 N.W.2d 147, 150 (Iowa Ct. App. 1980). While the
language of the deeds in question is not identical to that in Macerich Real Estate Co.,10 there is
little doubt in the court’s mind that the “that purpose” language in the right-of-way deed referred
to the phrase “for their railroad,” leading ipso facto to the conclusion that the easement was for a
railroad purpose. In this regard, the deeds here are far more explicit than those found, under
Iowa law, to likewise grant a limited easement only for railroad purposes in Rhutasel, 105 Fed.
Cl. at 227, and Jenkins, 102 Fed. Cl. at 607-08. Certainly nothing defendant argues convinces
this court that the interests conveyed here were somehow broader.

        Accordingly, the court concludes that the sixty-eight deeds at issue convey easements
limited to railroad purposes.11




       10
            Research reveals only a single Iowa case, Frith v. City of Dubuque, 45 Iowa 406
(1877), in which the deed stated that the proper owner conveyed to the railroad a “right of way
for their railroad.” Id. at 408. That case, however, had nothing to do with the nature of the deed,
but rather focused on whether the railroad was liable to adjacent landowners adversely affected
by the building of the railway. Id.

       11
           As to five of these parcels (24.C, 24.D., 27.G, 27.H., and 28.A), plaintiffs make the
further argument that the Railroad acquired an easement limited to railroad purposes via
condemnation. Because the court concludes that these parcels were covered by deeds that
conveyed easements limited to railroad purposes, it need not reach this alternative point. As to
one of these parcels (37.D), plaintiffs argue that the rail line was relocated (see discussion, infra).
However, they have not provided any deed evidencing this second transaction and the court thus
believes that the deed conveying an easement limited to railroad purposes remains controlling.

                                                 -9-
               4.      Parcels for Which Deeds Convey a Right-of-Way –
                       “For Their Railroad.”

        The six parcels in this fourth category (28.B through 28.G) all are covered by the same
right-of-way deed. In this deed, the conveyance is “for their railroad,” but there is no succeeding
language indicating that an easement of the strip of land described is being conveyed “for that
purpose.” Nevertheless, the parties appear to have lumped these parcels into the category above.
And, indeed, the court sees no reason why, under the principles described above, this deed ought
not also be viewed as conveying easements limited to railroad purposes. See also Haack, 309
N.W.2d at 150.

               5.      Parcels for Which There Were Multiple Conveyances
                       Relating to the Railroad Relocation.

                   Claimant Name                     Claim               Source
         Alvin Thadd Canon                    37.B           T 250; 53 399; 54 515
         Lowell E. and Marrian M. Newhall     49.C           T 249; U 66; 53 424
         Georgette Bauman, Trustee of Duane   51             T 250; 53 349
         Bauman Trust , Georgette Bauman
         Revocable Trust
         Evelyn and Dennis Wiegman            52             T 254; 53 346; 53 351
         NE Iowa Christian Service Camp       53.A           T 254; 53 351
         Brian Winkowitsch                    54.A & 54.B    T 300; 53 345; 53 348; T 251;
                                                             53 347
         William A. Beadle                    55.A & 55.B;   T 251; 53 345; 53 347; 53 351;
                                                             T 339
         Vern T. Reiher                       56             T 342; 53 307; Q 461
         Kevin D. and Jeannette Snyder        57.A           T 342; 53 307
         Lois A. & Joel Burgess               70             T 382; 54 427
         Hummel Harry Farms, Inc., Kevin      71A            T 382; 54 411
         Hummel

         In this fifth category are thirteen parcels that were the subject of two succeeding
conveyances. Easements on these parcels were first conveyed to the Iowa Pacific around 1870,
using right-of-way deeds like those in category 3 above, that is, deeds that contain the “for their
railroad” and “for that purpose” limitations. Around 1902, the Mason City and Fort Dodge
Railway Company relocated the Railroad Line within these thirteen parcels approximately sixty
feet to the south. To do this, it obtained new deeds covering this new strip of land. Unlike the
earlier deeds, these later deeds contain neither the legend “Right of Way” nor any of the
limitations discussed above. Rather, in broad terms, they convey either “all that tract or parcel of
land” or “the following described premises,” using the phrase “right of way” only to pinpoint the
location of the strip of land conveyed vis-à-vis the prior rail line. These deeds, moreover,
convey the premises “with all the appurtenances thereto” or language to similar effect, and




                                                 - 10 -
relinquish various hereditary rights, including rights of dower and under the homestead laws of
the State of Iowa.12

       In the court’s view, the original deeds here convey only an easement limited to railroad
purposes. The real question, though, is whether the subsequent transfer, to relocate the Railroad
Line, conveyed a further easement or a fee.

        A review of the deeds in question reveals that they unmistakably express the grantors’
intent to convey a fee simple. First, unlike the deeds discussed above, the deeds in question
employ broad conveyance language, i.e., conveying a “narrow strip of land,” “with all the
appurtenances.” Missing from these deeds is any limiting language in the granting or habendum
clauses that describes the property conveyed as a “right of way” or which limits in any other way
the estate conveyed. This omission of such caveats is significant for under Iowa law, “[e]very
conveyance of real estate passes all the interest of the grantor therein, unless a contrary intent can
be reasonably inferred from the terms used.” Iowa Code § 557.3.13 In addition, the habendum
clauses in these deeds make a series of warranties more typical of a transfer of a fee, indicating,
for example, that the grantors relinquish all rights of dower and under the Iowa homesteading
statute. See Goldsmith v. Barber, 5 N.W. 209, 211 (Iowa 1880) (discussing Iowa homestead
rights).14 In short, these deeds appear to convey a fee simple title from a grantor to a grantee.

        Plaintiffs, however, argue, that the second round of conveyances should be interpreted as
conveying only a right-of-way because their predecessors-in-interest executed these deeds under
threat of condemnation – a compelled consent. In Preseault, the Federal Circuit reviewed


       12
            In some of the referenced deeds (e.g., 37.B, 56, 57.A, 70, and 71.A) the hereditary
rights relinquished are specified. In other referenced deeds (e.g., 49.C, 51, 53, and 53A.), the
deed not only conveys a strip or parcel of land, but also conveys “all the hereditaments and
appurtenances thereunto.”

       13
           The Iowa Supreme Court relied upon this statute, which was originally passed in 1851,
in Lowers, 663 N.W. 2d at 411 (stating that “a conveyance passes all of the grantor’s interests
unless a contrary intent may be inferred from [the] language used”); see also Felton v. Thomson,
227 N.W. 529, 531 (Iowa 1929); see generally, Restatement (First) Property § 39 (1936)
(“Where a statute provides that an otherwise effective conveyance creates an estate in fee simple
absolute in the conveyee, unless the conveyance expresses an intent to create an estate other than
a fee simple absolute, a limitation to the conveyee creates an estate in fee simple absolute in him,
without the use of words of inheritance or any other expression of an intent to create such an
estate.”). In Rhutasel, 105 Fed. Cl. at 227, this court likewise concluded that, under Iowa law, a
deed similar to those at issue conveyed a fee simple absolute.

       14
           See also Russell v. City of Bryan, 919 S.W.2d 698, 705 (Tex. Ct. App. 1996); Ham v.
Stenzke Realty Co., 50 So. 2d 11, 14 (La. 1950); 2 Joyce Palomar, Patton and Palomar on Land
Titles § 345 (3d ed. 2012).

                                                - 11 -
Vermont law and concluded that a deed purporting to grant a fee simple should be construed as
conveying only an easement because it was given following a survey that was the precursor to
condemnation. 100 F.3d at 1536-37. Plaintiffs assert that the same should be the case under
Iowa law, citing the decision of the Iowa Supreme Court in Keokuk County v. Reiner, 288 N.W.
676, 678 (Iowa 1939). But, Keokuk did not purport to construe the deed there contrary to its
terms. Instead, the Court merely concluded that in interpreting a deed “given by the landowner
when he has no choice in the matter, since the land can be taken by condemnation, if he refuses
to convey it, we feel that such a liberal construction should be given as will effectuate the
intention of the parties, and fully protect the rights of the grantor and his assigns.” 288 N.W. at
678. Moreover, in 2003, the Iowa Supreme Court abrogated Keokuk, rejecting the logic of that
decision and refusing to “[d]etermin[e] the nature of the interest conveyed by reference to the
intended use by the grantee.” Lowers v. United States, 663 N.W.2d 408, 410 (Iowa 2003); see
also Jenkins, 102 Fed. Cl. at 611. Based on this analysis, the Court concluded that it would not
treat, as conveying an easement, rather than a fee, a deed that conveyed all right, title and interest
of the grantor. Lowers, 663 N.W.2d at 411.

        Keokuk thus compels this court neither to look beyond the four corners of the deeds
involved nor to construe language plainly conveying a fee simple as instead conveying an
easement. See Jenkins, 102 Fed. Cl. at 611. Indeed, in Watkins v. Iowa Central Railway Co., 98
N.W. 910, 913 (1904), the Iowa Supreme Court rejected the argument that the railroad “took no
greater title through its deed from [a private party] than it would have acquired by condemnation
proceedings,” noting that “no provision of law . . . prevents [a railroad from] acquiring such title
by purchase.” Consistent with this view, the Iowa courts, over the last seventy years, have
readily construed deeds as conveying a fee interest to railroads despite the looming presence of
statutes that would allow condemnation for railroad purposes. See, e.g., Lowers, 663 N.W.2d at
411; Notelzah, Inc. v. Destibal, 489 N.W.2d 744, 746 (Iowa 1992); Jacobs v. Miller, 111 N.W.2d
673, 675 (Iowa 1961); Reichard v. Chi., B&Q. R.R. Co., 1 N.W.2d 721, 726 (Iowa 1942).15 Such
cases, of course, ought not exist if plaintiffs are right. But they do exist, with obvious
consequences for plaintiffs’ compulsion theory. Accordingly, the court concludes that the deeds
which effectuated the second conveyance here transferred a fee interest in the property involved.


       15
            Plaintiffs also argue that the court should view the relocation deeds as conveying
easements based on an 1876 Act that dealt with the relocation of railroads. See An Act to
authorize the re-location of railroads, Code of Iowa, Title X, Chapter 118, Law of 1876, codified
at Rev. Code of Iowa § 356 (1880). They focus on section 6 of this Act, which states that “no
vested right of any person or persons, living on and along the line of any railroad removed under
the provisions of this act, shall be defeated or affected by this act.” Id. at 357. In invoking this
statute, however, plaintiffs appear to overlook that: (i) the relocation here was not effectuated
under the provisions of the Act (which provides for a railroad to file a court petition to effectuate
the relocation, see id. at 356 (section 1 of the Act)); and (ii) the entire Act is inapplicable to the
rail line in question (which was built in the 1870s) because the Act applied only to “such
railroads as were constructed prior to the year one thousand eight hundred and sixty-six,” see id.
at 357 (section 6 of the Act).

                                                - 12 -
        But, what effect do these fee conveyances have on the earlier deeds that conveyed only a
limited easement? In the court’s view, the answer under Iowa law is relatively plain: acquisition
by a grantee of a fee interest in the same property in which it previously held an easement
extinguishes the easement, leaving only the fee. See Feilhaber v. Swiler, 212 N.W. 417, 418
(Iowa 1927) (acquisition of fee resulted in “extinguishment of the easement”); Keokuk Elec. Ry.
& Power Co. v. Weismann, 126 N.W. 60, 64 (Iowa 1910); Marshall Ice Co. v. LaPlant, 111
N.W. 1016, 1019 (Iowa 1907) (“no easement exists where there is unity of ownership”).16 It
follows that when the railroad obtained a fee interest in portions of the parcels in question any
prior easement it possessed in the same property ceased to exist and, more importantly, no longer
limited the use of the property.

        Beyond this, the parties make various arguments that hinge on how the relocated Railroad
Line sat on a given parcel, e.g., whether the new line bisected the parcel or was on the southerly
edge thereof. These arguments, however, are inadequately developed, leaving not only material
questions of fact as to which parcels were bisected in what fashions, but also overriding
questions as to how Iowa law and, in particular, Iowa Code §§ 327G.76-77, apply in this
situation. This court will not resolve the latter questions on a hypothetical basis, without a
clearer indication as to the actual facts in this case, which will be developed at trial.

                6.      Parcels for Which There Were Multiple Conveyances
                        Relating to the Construction of a Depot.

                          Claimant Name                     Claim             Source
            Gregory G. Worden                           4             U 57; O 95; M 495
            House-Loebig Enterprises, Inc., Vernon L.   5             U 57; O 95; M 495
            House
            Laipple Oil Inc.                            8             U 57; O 95; M 495
            John M. and Mark J. Laipple                 9             U 57; O 95; M 495
            Terry L. and Karen A. Wheeler               10            U 57; O 95; M 495
            Otto and Denise Tjaden                      39.A & 39.B   T 393; T 248
            Valoy J. Eilers                             40            T 393; T 248

        Eight additional parcels listed above were also the subject of two grants. For three of
these (39.A, 39.B, and 40), the first conveyance, in June 1872, was a right-of-way deed to the
Iowa Pacific granting it an easement “for their railroad” and “that purpose” – which deed is
indistinguishable from those that the court above concluded resulted in a limited easement for
railroad purposes. The second deed for these parcels, dated September 2, 1872, reflects that the


       16
           This concept is hardly unique to Iowa law. See, e.g., Hidalgo Cnty. Water Control
and Improvement Dist. No. 16 v. Hippchen, 233 F.2d 712, 714 (5th Cir. 1956) (construing Texas
law); Modern, Inc. v. Florida, 2006 WL 1627270, at *13 n.19 (M.D. Fla. June 8, 2006)
(“Obviously, a person cannot have an easement in his own land because an easement merges
with the title, and it follows that no easement exists so long as there is a unity of ownership of
the properties involved.” (quoting 20 Fla. Jur. 2d Easements §1)); Meade v. Ginn, 159 S.W.3d
314, 324 n.5 (Ky. 2004) (quoting 25 Am Jur. 2d Easements and Licenses § 1 (2004)).

                                                   - 13 -
land holders “have sold, and by these presents do convey unto the [Iowa Pacific] the following
lands for depot grounds” – which deed, based upon the analysis above, the court construes as
conveying a fee interest in the land described.

        This second deed, however, also includes a reverter clause that states: “in case of said
Company, or their assigns, shall at any time abandon the aforesaid track as depot grounds, then
and in that case, the same shall revert to me or my heirs, and legal representative.” Plaintiffs
assert that this reversion was triggered when the Union Pacific abandoned the Railroad Line and
that the claimants, therefore, now own a fee interest in this property. Not so, defendant asserts,
relying upon Iowa Code § 614.24, otherwise known as the Stale Users and Reversions Act
(SURA).

       The relevant provision, Iowa Code § 614.24, as it existed on July 4, 1966, provided in
relevant part:

       No action based upon any claim arising or existing by reason of the provisions of
       any deed or conveyance . . . providing for any reversion, reverted interests or use
       restrictions in and to the land therein described shall be maintained either at law
       or in equity in any court to recover real estate in this state or to recover or
       establish any interest therein or claim thereto, legal or equitable, against the
       holder of the record title to such real estate in possession after twenty-one years
       from the recording of such deed of conveyance . . . unless the claimant shall, by
       himself, or by his attorney or agent, . . . file a verified claim with the recorder of
       the county wherein said real estate is located within said twenty-one year period.
       In the event said deed was recorded . . . more than twenty years prior to July 4,
       1965, then said claim may be filed on or before one year after July 4, 1965 . . . .

The Iowa Supreme Court has, on several occasions, considered the impact of this statute on
reversionary interests contained in deeds conditioned on the continuing use of land for railway
purposes. Each time it has concluded that the statute extinguishes reversions created prior July
4, 1945, that were not verified on or before July 4, 1966. See Lowers, 663 N.W.2d at 412;
McKinley v. Waterloo R.R. Co., 368 N.W.2d 131, 138 (Iowa 1985); Amana Soc’y v. Colony Inn,
Inc., 315 N.W.2d 101, 108-10 (Iowa 1982); Chi. & Nw. Ry. Co. v. City of Osage, 176 N.W.2d
788, 792 (Iowa 1970).

       In the most recent of these cases – Lowers – the court considered questions certified by
the U.S. District Court for the Southern District of Iowa deriving from a class action in which
property owners asserted that the Trails Act had effectuated a takings of their property. See
Lowers v. United States, 2001 WL 1200869, at *1 (S.D. Iowa May 2, 2001). In Lowers, the
Iowa Supreme Court held that reverters that were part of deeds issued to railroads in the 1870s
and 1880s were extinguished by operation of section 614.24. Lowers, 663 N.W.2d at 412.17 It


       17
          The Iowa Supreme Court’s opinion does not disclose the dates of these deeds, but that
information may be found in the district court’s order that certified questions regarding these

                                               - 14 -
reasoned that, under the statute, “reversionary interests created by deeds that were recorded more
than twenty years prior to July 4, 196[5], were extinguished if not asserted by verified claims
filed with the county recorder on or before July 4, 1966.” Id. It went on to find that “because the
holders of the reversionary interests on which plaintiffs’ federal class action is based have failed
to file the necessary verified claims within the time provided by section 614.24, those
reversionary interests are barred from being asserted.” Id. Finally, the court clarified that
“[u]nder Iowa law, the bar to asserting such reversionary interests is synonymous with the
extinguishment of the inchoate property interests, which may no longer be asserted.” Id. It thus
concluded that “[s]ection 614.24 operated to vest fee simple absolute ownership in the railroad
company in 1966.” Id.; see also McKinley, 368 N.W.2d at 138; City of Osage, 176 N.W.2d at
793.

       Plaintiffs have provided no basis for this court to distinguish Lowers or any of the other
Iowa cases dealing with this issue.18 Nor have they offered any evidence suggesting that they




deeds to the Iowa Supreme Court. See Lowers v. United States, 2001 WL 1200869, at *1 (S.D.
Iowa May 2, 2001).

       18
            In its reply brief, plaintiffs cite Lowers for the proposition that section 614.24 does not
apply to railroad abandonments prior to 1980 (using an “!” for emphasis). It appears, however,
that plaintiffs’ counsel has either not read this opinion (which is unlikely) or is misrepresenting
what it holds.

        In Lowers, the class-action plaintiffs made the same arguments plaintiffs make now,
relying on a 1980 amendment to section 614.24 that added the following subsection (2):
       The provisions of this section [614.24] requiring the filing of a verified claim
       shall not apply to the reversion of railroad property if the reversion is caused by
       the property being abandoned for railway purposes and the abandonment occurs
       after [July 1, 1980]. The holder of such a reversionary interest may bring an
       action based upon the interest regardless of whether a verified claim has been
       filed under this section at any time after July 4, 1965.

1980 Iowa Acts ch. 1115, §6. The plaintiffs in Lowers asserted, as plaintiffs do here, that “this
amendment abrogated the application of section 614.24 with regard to reversionary interests in
railroad property triggered by railroad abandonments.” Lowers, 663 N.W.2d at 412. The Iowa
Supreme Court made short shrift of this claim, indicating that:

       We believe that it was the intent of this legislation that persons holding
       reversionary interests in railway property that were not barred on the date the
       amendment became effective were no longer required to file a verified claim with
       the county recorder in order to thereafter assert their interest in a legal action. It

                                                - 15 -
filed verified claims as to their reversions on or before July 4, 1966. Based on Lowers, the court
thus concludes that Iowa Code § 614.24 likewise operated to vest fee simple absolute ownership
of the parcels at issue in the Railroad in 1966. See Rhutasel, 105 Fed. Cl. at 227.

        The five remaining parcels in this category (4, 5, 8, 9, and 10) also were the subject of
two conveyances, with the second being for a depot. They differ from the first three parcels in
this category in that the parties disagree as to which documents effectuated the first of these
conveyances. This dispute, however, is irrelevant because the parties agree that the second
conveyance occurred as the result of a deed that was signed on July 24, 1879. Like the depot
deeds discussed above, that deed plainly conveyed to the Dubuque and Dakota Rail Road
Company a fee interest, which primed any preexisting easement. Leaving little doubt in this
regard, the deed indicates that the property owners “do hereby sell and convey . . . the following
described premises” and further indicates that “said tract sold being for Depot Grounds and other
Railroad purposes.” Also like the depot deeds discussed above, the July 24, 1879, deed contains
a reverter clause, indicating that if the tract is “ceased to be used for such purposes,” i.e., for the
depot and associated uses, it would “revert back to [the property owners] (except right of
way).”19 For the reasons discussed above, Iowa Code §614.24 also caused this reverter to
extinguish in 1966, there being no indication that plaintiffs ever filed the verified claim required
by the statute. Accordingly, like the three parcels discussed above, the five parcels that were
subject to the July 24, 1879, deed also were owned by the railroad in fee simple absolute.

        As to all of the parcels in this category, then, the end result is the same – the holders of
these parcels have failed to establish that they have the requisite property interest and their
claims, therefore, must be dismissed.

               7.         Parcels Over Which There is a Dispute as to Whether
                          the Land Adjoins the Railroad.

                                   Claimant Name                 Claim     Source
                    Thomas and Mary Jean Van Ellen              41       T 248
                    William R. and Jeanne J. Reysack            42       T 248
                    Lois J. Silver                              43       T 248




       was not intended to revive property interests previously extinguished by SURA
       prior to the effective date of the amendment.

Id. at 413. The court noted that “[t]o interpret the 1980 amendment as reviving inchoate property
interests that had been extinguished under the 1965 version of section 614.24 would have the
disquieting effect of disturbing real estate ownership established more than thirty years ago.” Id.

       19
          That this deed makes provision for the continuation of a right-of-way upon the
reversion of the property to the original owners is, of course, further indication that it otherwise
conveys a fee simple to the railroad.

                                                       - 16 -
                     Lois A. Gallope                     45         T 248
                     Mark and Chris Uthe                 47.A       T 248
                     Mark Uthe                           47.B       T 248

         As can be seen, this category involves six parcels. Easements on these parcels were
transferred to the Railroad using a “Right of Way” deed identical to those in category 3 above,
i.e., one in which the transfer was “for their Railroad” and “for that purpose.” What
distinguishes these parcels from those in category 3 is a dispute as to whether they adjoin the
Railroad Line. The relevant maps show a sixteen-foot wide alley between these parcels and the
Railroad Line; the parties agree that “the original plat tendered the alley in fee simple to the town
of Dumont, Iowa.” That the alley was tendered to Dumont does not mean, however, that it
necessarily became public land. Rather, under Iowa law, dedication for public use requires not
only that there be an intent to dedicate and a dedication, but acceptance by the public or a party
to whom the dedication is made. See State v. Hutchison, 721 N.W.2d 776, 782 (Iowa 2006);
Sons of the Union Veterans of the Civil War v. Griswold Am. Legion Post 508, 641 N.W.2d 729,
734 (Iowa 2002). And the parties, for various reasons, disagree as to whether Dumont ever
accepted the alley so as to effectuate the dedication. In the court’s view, there are genuine issues
of material fact as to this issue which preclude the court from resolving this issue as a matter of
law.20 Accordingly, this issue must await trial.21

                8.        Parcels Subject to Arbitration Agreement for Which
                          No Actual Conveyance Document is Available.

       The three parcels in this group (22.C, 25.B, and 26.B) were among the parcels that were
the subject of an arbitration agreement that was entered into between the property owners and the
Iowa Pacific on June 24, 1872. That agreement provided, in pertinent part, as follows:

       Whereas the Iowa Pacific Railroad Company has located its line of Railway
       through, over and across [property] owned by Geo. W. Hansell, one of the parties
       hereto, and the said parties are unable to agree upon the value of the right of way

       20
            Additional genuine issues of material fact exist as to who owns parcel 47.B.

       21
           Plaintiffs also glancingly argue that the alley became the property of the adjoining
property owners via adverse possession. But, “[i]t has long been the rule in Iowa that the
doctrine of adverse possession does not apply to governmental entities.” Fenci v. City of
Harpers Ferry, 620 N.W.2d 808, 816 n.5 (Iowa 2000); see also Stecklein v. City of Cascade, 693
N.W.2d 335, 340 (Iowa 2005); Johnson v. City of Shenandoah, 133 N.W. 761, 763 (Iowa 1911).
Hence, if the property did pass to Dumont by virtue of dedication, it did not return to the
property owners by adverse possession. Rather, assuming Dumont obtained the property, the
only way for plaintiffs to demonstrate that the property returned to its original owners would be
by demonstrating that the town had abandoned its interest. See Stecklein, 693 N.W.2d at 340-41.
This requires more than proof of nonuse. Id. (citing numerous cases). Plaintiffs have not argued
this theory.

                                               - 17 -
       so to be taken. Now therefore for the purpose of avoiding litigation and costs, and
       for the purposes of ascertaining the value of said right of way we the said Iowa
       Pacific Railroad Company . . . , and the said George W. Hansell owner of said
       premises have chosen and by these presents do choose and empower the
       following named persons as referees or arbitrators of said matter, directing the
       said parties . . . to proceed . . . and view the said premises and this said line, and to
       appraise the value for said right of way. And the said parties to this submission
       hereby agree to and with each other that they will stand to and truly perform the
       decision so rendered, this said Railroad Co. by paying the amounts so found, and
       this said Geo W. Hansell by thereupon making and delivering to said Co’s agent a
       good and sufficient deed of such right of way across said premises one hundred
       feet in width.

While this agreement anticipates a subsequent conveyance, the parties have produced no deed,
condemnation decree, or other document that shows that a transfer took place and, if so, under
what terms.

        The Federal Circuit has made quite clear that “[i]t is plaintiffs’ burden to establish
cognizable property interests for purposes of their takings claims.” Klamath Irrigation Dist. v.
United States, 635 F.3d 505, 519 n.12 (Fed. Cir. 2011); see also Estate of Hage v. United States,
687 F.3d 1281, 1291 (Fed. Cir. 2012); Air Pegasus of D.C., Inc. v. United States, 424 F.3d 1206,
1212 (Fed. Cir. 2005); Cienega Gardens v. United States, 331 F.3d 1319, 1328 (Fed. Cir. 2003).
And this requirement plainly applies to rails-to-trails cases. See Thomas v. United States, 106
Fed. Cl. 467, 478 (2012); Rhutasel, 105 Fed. Cl. at 226-27. The affected plaintiffs have not met
their burden because the evidence merely suggests that a right-of-way was transferred, but does
not prove whether such a limited interest was actually conveyed, via a deed or condemnation (as
opposed to a broader fee interest), or if an easement was conveyed, whether that interest was
unrestricted, subject only to railroad use, or subject to some other limitation. Nor, contrary to
plaintiffs’ claims, does the agreement quoted above evidence a condemnation of a right-of-way
limited to rail purposes. Accordingly, as to these parcels, plaintiffs have failed to establish that
they have a cognizable property interest, requiring that the claims relating to these parcels be
dismissed.22

               9.      Parcels Subject to Arbitration Agreement and Potentially
                       a Subsequent Deed.

        The parties agree that the four parcels in this group (21.C, 22.D, 25.A, and 26.A) were
also the subject of the arbitration agreement discussed above. Defendant, however, contends that
these parcels were subsequently the subject of a deed executed by Geo. W. Hansell and his wife
on July 6, 1880. That deed reflects that “in consideration of the sum of One Dollar in hand

       22
          The court reaches the same conclusion as to parcel 24.B, for which plaintiffs have
produced neither a deed nor any other evidence that the claimant possessed the requisite property
interest.

                                                - 18 -
paid,” the Hansells “do hereby sell unto the Dubuque and Dakota Railroad Company, the
following described premises . . . .” The deed contains neither references to a right-a-way nor a
reverter clause. Plaintiffs argue that this deed does not relate to these four parcels. However, as
with the parcels discussed above, they have not produced any other deed that evidences a
conveyance of some property interest to the railroad. Rather, they reiterate their argument that
the agreement itself evidences a condemnation of a right-of-way limited to rail purposes.

         In the court’s view, defendant prevails as to this category of parcels for two reasons.
First, if the July 6, 1880, deed applies to these properties, it plainly evidences a conveyance of a
fee interest, and not the transfer of a limited easement. In this regard, there is little to distinguish
this deed from those held above to convey a fee simple absolute. Second, if, as plaintiffs
contend, the July 6, 1880, deed does not apply to these parcels, plaintiffs still cannot prevail
because they have failed to establish that they have a cognizable property interest in the parcels
in question. For the reasons discussed above, the court again disagrees that the arbitration
agreement evidences any form of conveyance, either by deed or condemnation. In short, the
claims related to these parcels must also be dismissed.

                 10.      Parcels for Which the Evidence is Disputed.

                            Claimant Name                          Claim             Source
             Lowell A. and Patricia C. Stock                    15            M 495; U 527
             Robert Lee Fink                                    16            M 495; U 527
             Alvin Thadd Canon                                  37.C          T 250; 54 515
             Junior C. and Marlene G. Havig                     44            T 248
             Kevin D. and Jeannette Snyder                      57.B & 57.C   T 250; 54 515; 31
                                                                              96; 53 307
             United Suppliers, Inc. (successor in interest to   75.B & 75.C   T 253
             Allison-Kesley AG Center, Inc.), Brad Oelmann
             City of Allison                                    76.A & 76.B   T 253; 40 130

        The parties dispute which conveyances apply to the ten parcels listed above, making
various conflicting factual arguments that rely, inter alia, on the chain of title and plat maps in
the record. In the court’s view, genuine issues of material fact preclude the entry of summary
judgment as to any of these parcels.

                 *                 *                 *               *               *

       A chart summarizing the court’s conclusions regarding the parcels at issue may be found
in Appendix A to this opinion.

        B.       Remaining Liability Issues

      With respect to the parcels as to which an easement limited to railroad purposes was
conveyed, the next issue is whether the NITU authorized use of an easement exceeding that



                                                      - 19 -
purpose.23 Defendant seems to contend (although at other points it denies doing so) that
recreational trail use – the activity authorized by the Trails Act and the NITUs – is within the
scope of permissible uses for the easements, essentially arguing that it is a railroad purpose.
Based on this claim, defendant suggests that there has been no takings of the easements in
question because the NITU did not authorize uses beyond the scope of the easements granted.

        In fact, under Iowa law, creating a public recreational trail is not considered an act in
furtherance of a railroad purpose. See McKinley, 368 N.W.2d at 133-35; see also Estate of
Rockafellow, 494 N.W.2d at 736 (suggesting that this result is dictated by Iowa Code §
327G.77). Indeed, the Federal Circuit treated the differences between trails and rails as self-
evident in another Trails Act case, Toews v. United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004),
where the circuit court identified fundamental differences between using the easement for a trail
and for a railroad.24 It observed that these “different uses create different burdens,” which is
important because under the state law at issue in that case (California), “the landowner’s grant
defines the burden with which the land is burdened.” Id. at 1376-77; see also Beres v. United
States, 104 Fed. Cl. 408, 455-56 (2012); Thompson v. United States, 101 Fed. Cl. 416, 433
(2011). The latter point, of course, is also true in Iowa, giving this court every reason to believe
that what was said in Toews cannot be gainsaid here. See Rhutasel, 105 Fed. Cl. at 228-30
(applying Iowa law and finding that “when a landowner grants a railroad purposes easement,


       23
           See Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010) (“It is settled law that
a Fifth Amendment taking occurs in Rails-to-Trails cases when government action destroys
state-defined property rights by converting a railway easement to a recreational trail, if trail use
is outside the scope of the original railway easement.”); Preseault, 100 F.3d at 1552 (“[I]f the
terms of the easement when first granted are broad enough under then-existing state law to
encompass trail use, the servient estate holder would not be in a position to complain about the
use of the easement for a permitted purpose.”).

       24
            In this regard, Judge Plager, writing on behalf of the court, stated:
       And it appears beyond cavil that use of these easements for a recreational trail –
       for walking, hiking, biking, picnicking, frisbee playing, with newly-added tarmac
       pavement, park benches, occasional billboards, and fences to enclose the trailway
       – is not the same use made by a railroad, involving tracks, depots, and the running
       of trains. The different uses create different burdens. In the one case there was an
       occasional train passing through (no depots or turntables or other appurtenances
       are involved on these rights of way). In the other, individuals or groups use the
       property, some passing along the trail, others pausing to engage in activities for
       short or long periods of time.

Toews, 376 F.3d at 1376-77. Continuing along these lines, Judge Plager added: “Some might
think it better to have people strolling on one’s property than to have a freight train rumbling
through. But that is not the point. The landowner’s grant authorized one set of uses, not the
other.” Id. at 1377.

                                                 - 20 -
once the Railroad’s operations discontinue, the railroad purposes easement extinguishes.”).
Much of what has been said also applies to railbanking, which, despite the absence of any Iowa
case on point, also does not appear to be consistent with the railroad purpose for which the
easements in question were granted.25 Defendant does not cite any directly contrary Iowa case –
and, for good reason, as research reveals none.26

         Next, in a well-rehearsed argument, defendant asseverates that any easement it took was
for railbanking purposes only, not for recreational trail uses. As other courts have noted, this
claim ignores the fact that “[t]he issuance of the NITU is the only government action in the
railbanking process that operates to prevent abandonment of the corridor and to preclude the
vesting of state law reversionary interests in the right-of-way.” Caldwell v. United States, 391
F.3d 1226, 1233-34 (Fed. Cir. 2004), cert. denied, 546 U.S. 826 (2005) (emphasis omitted). The
NITU, and the Trail Act from which it derives, pave the way not only for railbanking but for the
issuance of the interim trail use agreement. Any other interpretation of the Trail Act “divorces
the language of the Act from its history, purpose, and regulatory scheme.” Jenkins, 102 Fed. Cl.
at 614. Under these circumstances, defendant should not be heard to argue that it effectuated a
takings only for railbanking purposes and that some other unrelated entities (either a state or
political subdivision thereof or a third-party) effectuated a takings of the property for use as a
trail. For these reasons, two other judges of this court, applying Iowa law, have rebuffed similar
attempts by defendant to narrow the scope of its takings. See Rhutasel, 105 Fed. Cl. at 230;
Jenkins, 102 Fed. Cl. at 613-16. The court sees no reason to depart from these well-reasoned
opinions, particularly in light of the host of cases that have reached similar conclusions, albeit
under different state laws.27



       25
           See Toews, 376 F.3d at 1381; Haggart v. United States, 2012 WL 6685542, at *20
(Fed. Cl. Dec. 18, 2012); Toscano v. United States, 107 Fed. Cl. 179, 185 (2012); Thomas v.
United States, 106 Fed. Cl. 467, 487-88 (2012); Macy Elevator, Inc. v. United States, 105 Fed.
Cl. 195, 201 (2012); Biery v. United States, 99 Fed. Cl. 565, 572-73 (2011) (cataloguing cases
from various jurisdictions); Ellamae Phillips Co. v. United States, 99 Fed. Cl. 483, 486 (2011)
(“We find that trail use is outside the scope of the easement granted . . . irrespective of the
existence of railbanking.”).

       26
           Nor is there any indication that Iowa would treat these uses as within the original grant
purpose under the “shifting use” doctrine. See Preseault, 100 F.3d at 1543 (rejecting the
“shifting use” argument and noting that “there are differences in the degree and nature of the
burden imposed” from trail use); Toews, 376 F.3d at 1379 (“[A] public transportation easement
defined as one for railroad purposes is not stretchable into an easement for a recreational trail and
linear park for skateboarders and picnickers . . . .”); Toscano, 107 Fed. Cl. at 185; Biery, 99 Fed.
Cl. at 576-77.

       27
           See also Haggart, 2012 WL 6685542, at*21; Sutton, 107 Fed. Cl. at 440; Thomas, 106
Fed. Cl. at 487. Based on its resolution of these issues, this court need not proceed to the third

                                               - 21 -
III.   CONCLUSION

       This court need go no further. Based on the foregoing: the court GRANTS, in part, and
DENIES, in part, plaintiffs’ second motion for partial summary judgment, and GRANTS, in
part, and DENIES, in part, defendant’s cross-motion for partial summary judgment. On or
before March 8, 2013, the parties shall file a joint status report indicating how this case should
proceed, with a proposed schedule, as appropriate. The parties shall have at least one serious
discussion regarding settlement before filing this report.

       IT IS SO ORDERED.


                                                            s/Francis M. Allegra
                                                            Francis M. Allegra
                                                            Judge




stage of the Preseault analysis, focusing on whether the easements in question had been
abandoned. See Preseault, 100 F.3d at 1552; Haggart, 2012 WL 6685542 at *20.

                                              - 22 -
Claimant                                                                       Claim   Source   Resolution
Group 1: Parcels for Which Liability is Uncontested
Reinhold Leroy and Milton Peter Heyde                                          19.A    M 565
Reinhold Leroy and Milton Peter Heyde                                          19.B    M 565
Bruce and Carol Lowery Symens                                                  20.A    M 565
Bruce and Carol Lowery Symens                                                  20.B    M 565
Steven J. Koontz, Revocable Trust and Jean H. Koontz, Revocable Trust          25.C    M 564
                                                                                                 Liability
Steven J. Koontz, Revocable Trust and Jean H. Koontz, Revocable Trust          25.D    M 564
Sherry Wagner                                                                  26.C    M 564
Sherry Wagner                                                                  26.D    M 564
Sherry Wagner                                                                  26.E    M 564
Clarence and Agnes Moore                                                       28.H    M 562

Group 2: Parcels for Which Plaintiffs Concede There is No Liability
Michael and Angie Harper                                                        1      42 146
Verlene M. Murray                                                               2      36 271
Franklin County c/o Michelle Giddings, Auditor                                  3      36 271
Robert Brandt                                                                   6       U 57
Virginia M. Meinberg                                                            7       U 57
John E. and Lynn R. Byrne                                                       11      U 57
Larry (deceased) and Mary Jo Towne                                             12.A    U 527
Larry (deceased) and Mary Jo Towne                                             12.B    U 527
Dawn (McLennan) Craighton                                                       13     U 527
Larry D. Butt                                                                   14     U 527     Dismiss
Charles P. and Deanna L. Genz                                                   23       --
Douglas and Karen Symens                                                       24.A      --
Brenda Terpstra and George Terpstra (deceased)                                  61     31 117
Rolin and Robin Eberline                                                       63.A    31 117
Richard and Nancy J. Rieken                                                     64     31 117
Emery Dickman                                                                  69.B    40 130
Emery Dickman                                                                  69.C      --
Emery Dickman                                                                  69.D      --
Rodney Langfritz                                                                77       --



                                                                        -23-
Claimant                                                                   Claim                 Source     Resolution
Group 3: Parcels for Which Deeds Convey a Right-of-Way "For Their Railroad" and "For That Purpose"
Kay F. Fox, Executer of the Estate of James Casper Fox                      17.A                 M 553
Kay F. Fox, Executer of the Estate of James Casper Fox                      17.B                 M 553
Kay F. Fox, Executer of the Estate of James Casper Fox                      17.C                 M 553
Kay F. Fox, Executer of the Estate of James Casper Fox                      17.D                 M 553
Michael J. Buchanan                                                         18.A                 M 600
Michael J. Buchanan                                                         18.B                 M 522
Michael J. Buchanan                                                         18.C                 M 522
Bruce and Carol Lowery Symens                                               20.C                 M 504
Bruce and Carol Lowery Symens                                               20.D                 M 504
Bruce and Carol Lowery Symens                                               20.E                 M 504
Bruce and Carol Lowery Symens                                               20.F                 M 504
Birdsell Farm Partners LLC, Jeff Birdsell                                   21.A                 M 546
Birdsell Farm Partners LLC, Jeff Birdsell                                   21.B                 M 546
Etna Jeanette Doyle                                                         22.A                 M 546
                                                                                                             Liability
Etna Jeanette Doyle                                                         22.B                 M 546
Douglas and Karen Symens                                                    24.C                 M 563
Douglas and Karen Symens                                                    24.D                 M 563
Franklin County Land Company, Leonard Berghoefer                            27.A                 M 592
Franklin County Land Company, Leonard Berghoefer                            27.B                 M 592
Franklin County Land Company, Leonard Berghoefer                            27.C                 M 523
Franklin County Land Company, Leonard Berghoefer                            27.D                 M 523
Franklin County Land Company, Leonard Berghoefer                            27.E                 M 523
Franklin County Land Company, Leonard Berghoefer                            27.F                 M 523
Franklin County Land Company, Leonard Berghoefer                            27.G                 M 563
Franklin County Land Company, Leonard Berghoefer                            27.H                 M 563
Clarence and Agnes Moore                                                    28.A                 M 563
Carolyn and Burdeen Sluiter                                                  29                  M 531
Kurt M. and Coreen Wolf                                                      30               T 304; T336




                                                              - 24 -
Claimant                                                                    Claim          Source          Resolution
Dennis and Deb Mennen                                                        31.A           T 303
Dennis and Deb Mennen                                                        31.B           T 303
Dennis and Deb Mennen                                                        31.C           T 303
Annette Lundie                                                                32            T 337
Lanny R. and Betty J. Blohm                                                   33           31 530
Brenda Blohm-Baldwin                                                          34            T 252
Leslie Dean Buseman                                                           35            T 252
Douglas D. Borneman                                                           36            T 252
Alvin Thadd Canon                                                            37.A           T 252
Alvin Thadd Canon                                                            37.D           T 300
George Reiners                                                                38        T 252; T 248
Finley J. and Robert J. Manifold                                              46            T 248
Dorla Ferch                                                                   48        T 249; U 66
Lowell E. and Marrian M. Newhall                                             49.A       T 249; U 66
Lowell E. and Marrian M. Newhall                                             49.B       T 249; U 66
Richard L. and Cheryl A. Collins                                             50.A       T 249; U 66         Liability
Richard L. and Cheryl A. Collins                                             50.B       T 249; U 66
NE Iowa Christian Service Camp                                               53.B   T 300; T 341; 31 118
Lorna Yost                                                                    58            31 96
Carol Ann Finke                                                               59            31 96
Leslie A. & Cheryl J. Palmer                                                  60            31 96
James D. Winkowitsch                                                          62           31 117
Rolin and Robin Eberline                                                     63.B           31 93
Rolin and Robin Eberline                                                     63.C           31 93
Alan and Kathy A. Eberline                                                   65.A           31 94
Alan and Kathy A. Eberline                                                   65.B          31 119
Alan and Kathy A. Eberline                                                   65.C           31 51
Bernard and Carole Franken                                                    66           31 119
Martin and Tanya Reeser                                                       67            31 51
Greta Eberline, Betty Rewerts, Eldon Siemers, and Donald Siemers              68           31 120
Emery Dickman                                                                69.A           T 381




                                                                   - 25 -
Claimant                                                                            Claim           Source           Resolution
Hummel Harry Farms, Inc., Kevin Hummel                                               71.B            31 50
Timothy and Felicia A. Schrage                                                        72             T 253
Adeline M. and Alfred Johnson                                                        73.A            T 253
Adeline M. and Alfred Johnson                                                        73.B            T 253
Allison-Bristow Comm. School District, Warren Davison                                 74             T 253
United Suppliers, Inc. (successor in interest to Allison-Kesley AG Center, Inc.),
                                                                                    75.A             T 253
Brad Oelmann                                                                                                          Liability
United Suppliers, Inc. (successor in interest to Allison-Kesley AG Center, Inc.),
                                                                                    75.D             T 253
Brad Oelmann
United Suppliers, Inc. (successor in interest to Allison-Kesley AG Center, Inc.),
                                                                                    75.E             T 253
Brad Oelmann
United Suppliers, Inc. (successor in interest to Allison-Kesley AG Center, Inc.),
                                                                                    75.F             T 253
Brad Oelmann

Group 4: Parcels for Which Deeds Convey a Right-of-Way - "For Their Railroad"
Clarence and Agnes Moore                                                    28.B                     M 505
Clarence and Agnes Moore                                                    28.C                     M 505
Clarence and Agnes Moore                                                    28.D                     M 505
                                                                                                                      Liability
Clarence and Agnes Moore                                                    28.E                     M 505
Clarence and Agnes Moore                                                    28.F                     M 505
Clarence and Agnes Moore                                                    28.G                     M 505

Group 5: Parcels for Which There Were Multiple Conveyances Relating to the Railroad Relocation
Alvin Thadd Canon                                                           37.B             T 250; 53 399; 54 515
Lowell E. and Marrian M. Newhall                                            49.C              T 249; U 66; 53 424
Georgette Bauman, Trustee of Duane Bauman Trust, Georgette Bauman
                                                                             51                  T 250; 53 349
Revocable Trust                                                                                                      Question
Evelyn and Dennis Wiegman                                                    52              T 254; 53 346; 53 351    of Fact
NE Iowa Christian Service Camp                                              53.A                 T 254; 53 351
Brian Winkowitsch                                                           54.A             T 300; 53 345; 53 348
Brian Winkowitsch                                                           54.B             T 251; 53 345; 53 347




                                                                         - 26 -
Claimant                                                                     Claim                     Source               Resolution
William A. Beadle                                                             55.A          T 251; 53 345; 53 347; 53 351
William A. Beadle                                                             55.B          T 339; 53 351; 53 345; 53 347
Vern T. Reiher                                                                 56               T 342; 53 307; Q 461        Question
Kevin D. and Jeannette Snyder                                                 57.A                  T 342; 53 307            of Fact
Lois A. & Joel Burgess                                                         70                   T 382; 54 427
Hummel Harry Farms, Inc., Kevin Hummel                                        71.A                  T 382; 54 411

Group 6: Parcels for Which There Were Multiple Conveyances Relating to the Construction of a Depot
Gregory G. Worden                                                            4                U 57; O 95; M 495
House-Loebig Enterprises, Inc., Vernon L. House                              5                U 57; O 95; M 495
Laipple Oil Inc.                                                             8                U 57; O 95; M 495
John M. and Mark J. Laipple                                                  9                U 57; O 95; M 495
                                                                                                                             Dismiss
Terry L. and Karen A. Wheeler                                                10               U 57; O 95; M 495
Otto and Denise Tjaden                                                      39.A                T 393; T 248
Otto and Denise Tjaden                                                      39.B                T 393; T 248
Valoy J. Eilers                                                              40                 T 393; T 248

Group 7: Parcels for Which There is a Dispute as to Whether the Land Adjoins the Railroad
Thomas and Mary Jean Van Ellen                                                 41                      T 248
William R. and Jeanne J. Reysack                                               42                      T 248
Lois J. Silver                                                                 43                      T 248                Question
Lois A. Gallope                                                                45                      T 248                 of Fact
Mark and Chris Uthe                                                           47.A                     T 248
Mark Uthe                                                                     47.B                     T 248




                                                                - 27 -
Claimant                                                                   Claim                  Source          Resolution
Group 8: Parcels Subject to Arbitration Agreement for Which No Actual Conveyance Document is Available
Etna Jeanette Doyle                                                         22.C                 UP 3148
Douglas and Karen Symens                                                    24.B        No Conveyance on Record
                                                                                                                   Dismiss
Steven J. Koontz, Revocable Trust and Jean H. Koontz, Revocable Trust       25.B                 UP 3148
Sherry Wagner                                                               26.B                 UP 3148

Group 9: Parcels Subject to Arbitration Agreement and Potentially a Subsequent Deed
Birdsell Farm Partners LLC, Jeff Birdsell                                     21.C          UP 3148; U 351
Etna Jeanette Doyle                                                           22.D          UP 3148; U 351
                                                                                                                   Dismiss
Steven J. Koontz, Revocable Trust and Jean H. Koontz, Revocable Trust         25.A          UP 3148; U 351
Sherry Wagner                                                                 26.A          UP 3148; U 351

Group 10: Parcels for Which the Evidence is Disputed
Lowell A. and Patricia C. Stock                                                      15      M 495; U 527
Robert Lee Fink                                                                      16      M 495; U 527
Alvin Thadd Canon                                                                   37.C     T 250; 54 515
Junior C. and Marlene G. Havig                                                       44          T 248
Kevin D. and Jeannette Snyder                                                       57.B     T 342; 53 307
Kevin D. and Jeannette Snyder                                                       57.C     31 96; 53 307        Question
United Suppliers, Inc. (successor in interest to Allison-Kesley AG Center, Inc.),                                  of Fact
                                                                                    75.B        T 253
Brad Oelmann
United Suppliers, Inc. (successor in interest to Allison-Kesley AG Center, Inc.),
                                                                                    75.C        T 253
Brad Oelmann
City of Allison                                                                     76.A        T 253
City of Allison                                                                     76.B        40 130




                                                                         - 28 -
