Biery v. United States

United States Court of Appeals
for the Federal Circuit
______________________

DOROTHY L. BIERY, JULIA R. CHALFANT ETVIR
TRUST, K.A.K. FARMS, INC., AMERICAN
PACKAGING CORPORATION, AND COLLINS
INDUSTRIES, INC.,
Plaintiffs-Appellants,

GORDON HOLLOWAY, as successor and repre-
sentative of decedent, GEORGE A. HOLLOWAY, AND
STACY E. JUDY TRUST,
Plaintiffs,

v.

UNITED STATES,
Defendant-Appellee.
______________________

2013-5082
______________________

Appeal from the United States Court of Federal
Claims in No. 07-CV-0693, Judge Nancy B. Firestone.
______________________

Decided: June 4, 2014
______________________

MARK F. (THOR) HEARNE, II, Arent Fox, LLP, of Wash-
ington, DC, argued for plaintiffs-appellants. With him on
the brief were MEGHAN S. LARGENT, LINDSAY S.C.
BRINTON, and STEPHEN S. DAVIS. Of counsel was DEBRA J.
ALBIN-RILEY, of Los Angeles, California.
2 BIERY v. US

NINA ROBERTSON, Attorney, Appellate Section, Envi-
ronmental and Natural Resources Division, United States
Department of Justice, of Washington, DC, argued for
defendant-appellee. With her on the brief was ROBERT G.
DREHER, Acting Assistant Attorney General.
______________________

Before PROST, ∗ Chief Judge, SCHALL and O’MALLEY,
Circuit Judges.
SCHALL, Circuit Judge
Plaintiffs-Appellants Dorothy L. Biery, the Julia R.
Chalfant Etvir Trust, K.A.K. Farms, Inc., American
Packaging Corporation, and Collins Industries, Inc., are
landowners in Kansas. Each of them owns land abutting
a 2.88-mile stretch of rail corridor near the City of South
Hutchinson, Kansas. In the late nineteenth and early
twentieth centuries, their predecessors in interest granted
various deeds covering that land to the Hutchinson &
Southern Railroad Company. The Burlington Northern
and Santa Fe Railway (“BNSF”) eventually succeeded to
the interests of that railroad. Up until 2004, the corridor
served the operations of the BNSF. Plaintiffs-Appellants
brought this action in the United States Court of Federal
Claims, alleging that the subsequent conversion of the
corridor to a recreational trail pursuant to the National
Trail Systems Act (“Trails Act”), 16 U.S.C. § 1247(d),
constituted a taking of their several property interests in
the land underlying the corridor. As a result, they
claimed, they were entitled to compensation under the
Fifth Amendment.

∗
Sharon Prost assumed the position of Chief Judge
on May 31, 2014.
BIERY v. US 3

On April 9, 2013, pursuant to Rule 54(b) of the Rules
of the United States Court of Federal Claims (“RCFC”),
the Court of Federal Claims entered judgment in favor of
the government on plaintiffs-appellants’ claims. Biery v.
United States, Nos. 07-693L, 07-675L (Fed. Cl. Apr. 9,
2013). The court did so after ruling on summary judg-
ment that none of the plaintiffs-appellants possessed a
fee-simple property interest in the land underlying the
rail corridor that could be the subject of a taking. Biery v.
United States, Nos. 07-693L, 07-675L (Fed. Cl. Aug. 20,
2009) (“Initial Decision”). The court concluded that the
land had been conveyed to the BNSF’s predecessor in fee
simple, contrary to plaintiff-appellants’ claims that the
several conveyances at issue had only granted easements.
Plaintiffs-Appellants now appeal from the court’s judg-
ment. 1
For the reasons set forth below, we conclude as fol-
lows: (1) The underlying land claimed by plaintiffs-
appellants Julia R. Chalfant Etvir Trust and K.A.K.
Farms, Inc. (“Chalfant”) was conveyed to the BNSF’s
predecessor in fee simple. Chalfant thus has no compen-
sable property interest in the land. (2) The underlying
land claimed by plaintiff-appellant Dorothy L. Biery
(“Biery”) was not conveyed to the BNSF’s predecessor in
fee simple. Rather, the railroad’s predecessor was only
granted an easement over the land. Biery thus retains

1 Plaintiffs Gordon Holloway, as Successor and
Representative of Decedent, George A. Holloway, and the
Stacy E. Judy Trust also own land abutting the 2.88-mile
stretch of rail corridor. They too brought a takings claim
in the Court of Federal Claims. The court found that
their predecessors had granted only an easement to the
BNSF’s predecessor. Their claims, therefore, remained in
the litigation and are not before us on appeal. Initial
Decision at 2.
4 BIERY v. US

fee-simple title to the land, a compensable property
interest. (3) On the present record, it is not clear whether
the underlying land claimed by plaintiffs-appellants
American Packaging Corporation and Collins Industries,
Inc. (“American Packaging”) was held by the BNSF’s
predecessor in fee simple or whether the BNSF’s prede-
cessor simply held an easement over the land. Of the
three deeds at issue for American Packaging, the first-in-
time granted the railroad’s predecessor only an easement
over the land. The two subsequent deeds, though, con-
veyed fee-simple interests. The effect of these deeds,
however, is clouded by chain-of-title questions. Thus, we
cannot presently say whether American Packaging holds
fee-simple title to the land, a compensable property
interest. Accordingly, we affirm the judgment of the
Court of Federal Claims as it relates to Chalfant, but
reverse it as it relates to Biery and American Packaging.
The case is remanded to the court for further proceedings.
BACKGROUND
I.
LEGAL FRAMEWORK
The Fifth Amendment to the Constitution provides
that private property shall not “be taken for public use,
without just compensation.” U.S. Const. amend. V. The
first issue to be addressed in a takings case is whether the
claimant has a cognizable interest in the property that
allegedly was taken. Air Pegasus of D.C, Inc. v. United
States, 424 F.3d 1206, 1212 (Fed. Cir. 2005). If the claim-
ant does not have such an interest, that is the end of the
matter. Id. at 1212–13. The court does not then proceed
to the next step in the analysis, which is to determine
whether there was a taking. Id.
As noted, in 2004, the stretch of rail corridor at issue
was converted to a public trail pursuant to the Trails Act.
If, prior to the conversion, the BNSF held fee-simple title
BIERY v. US 5

to the land underlying the corridor, then, for their part,
plaintiffs-appellants possess no compensable property
interests. That is because the railroad’s fee-simple title
would constitute complete ownership in the land. 1
Tiffany Real Prop. § 27 (3d ed. 2013). If, however, the
BNSF held only easements over the land, then plaintiffs-
appellants retained a fee-simple interest in the land.
Under those circumstances, if the BNSF’s conversion of
the railroad tracks to a recreational trail was outside the
scope of the easements and thus constituted abandon-
ment, then the BNSF would have lost its interest because
“if the beneficiary of [an] easement abandons it, the
easement disappears, and the landowner resumes his full
and unencumbered interest in the land.” Marvin M.
Brandt Revocable Trust v. United States, 134 S. Ct. 1257,
1265 (2014) (citing Smith v. Townsend, 148 U.S. 490, 499
(1893)). In short, if plaintiffs-appellants hold fee-simple
title to the land, they may potentially have a compensable
property interest for purposes of a takings claim.
The issue in this case is whether the deeds from the
late nineteenth and early twentieth century, upon which
the BNSF’s interest was predicated, granted fee-simple
interests to the railroad’s predecessor, or merely ease-
ments. We therefore begin by briefly setting forth the
conveyances that are relevant to the claim of each of the
several plaintiffs-appellants. We then turn to the events
leading up to this lawsuit and the subsequent proceedings
in the Court of Federal Claims.
II.
A. CHALFANT APPELLANTS
The Chalfant appellants claim the land referenced in
the deed from Julia Fair (the “Julia Fair deed”) to the
Hutchinson & Southern Railroad in the late nineteenth
century. In 1889, a condemnation decree declared a right-
of-way for the Hutchinson, Oklahoma & Gulf Railroad
across land owned by Thomas Fair. It is undisputed that
6 BIERY v. US

the railroad took only an easement over the land at that
time. The condemnation decree does not mention Thom-
as’s wife, Julia Fair. After the condemnation, the
Hutchinson, Oklahoma & Gulf Railroad merged with the
Hutchinson & Southern Railroad Company. In 1899,
after Thomas Fair had died, Julia Fair executed a quit-
claim deed to the Hutchinson & Southern Railroad for the
same land that was subject to the earlier condemnation
proceeding. The relevant language from the deed states
that, for $3,500, Ms. Fair transferred the following inter-
est to the railroad:
A strip of land one hundred <100> feet wide being
fifty <50> feet on each side of the center line of the
railroad of the Hutchinson & Southern Railway as
the same is now located and constructed 2 over and
across section thirty five <35> township twenty
three <23> range six <6> with the appurtenances
and all the estate, title and interest of the said
parties of the first part therein.
Joint Appendix (“J.A.”) 703–04, 918.
B. BIERY APPELLANT
Appellant Biery claims the land referenced in the
deed from the Phillips Investment Company (the “Phillips
deed”) to the Hutchinson & Southern Railroad. Similar to
the land claimed by Chalfant, the land claimed by Biery
was originally subject to condemnation proceedings. In
1899, the Phillips Investment Company executed an
indenture in favor of the Hutchinson & Southern Railroad

2 The legibility of the 1899 deed is insufficient to
confirm that the word “constructed” is used rather than
“constricted,” but “constructed” makes the most sense in
context. Regardless, it does not change the outcome.
BIERY v. US 7

on a preprinted form titled “Right of Way Deed.” 3 In
exchange for $117 in consideration, the Phillips deed
transferred the following property interest to the railroad:
All that part of the East half of the North West
quarter of Section twenty three (23) Township
twenty three (23) South of Range six (6) West, ly-
ing South of the South line of Tenth Avenue ex-
tended and East of a line thirty-five (35) feet west
and parallel to the center of the track of the
Hutchinson and Southern Railway Company, con-
taining 1.16 acres, more or less, and being the
tract on which condemnation proceedings were
filed in the County Treasurer’s Office on July 25,
1899.
J.A. 1482–83. The deed also transfers an interest in land
described as “Lots one hundred and sixty eight (168) and
one hundred and seventy (170) Sixth Avenue West in
Blanchard’s Second Addition to the City of Hutchinson.”
Id. at 1482. In pre-printed language, the deed recites the
transfer as being “of an absolute and indefeasible estate of
inheritance, in fee simple, of and in all and singular the
above granted and described premises, with the appurte-
nances . . . .” Id.
C. AMERICAN PACKAGING APPELLANTS
The American Packaging appellants claim the land
referenced in the deed from Ella Rowland and H. Edward
Rowland (the “Rowland deed”) and in two deeds from the
Irrigation Loan & Trust Company (the “Irrigation Loan
deeds”) to the Hutchinson & Southern Railroad.

3 The legibility of the deed is poor, and the word
“Warranty” appears to have been written over the words
“Right of Way.”
8 BIERY v. US

An 1891 condemnation decree declared a right-of-way
for the Hutchinson & Southern Railroad across forty-six
lots in Blanchard’s Third Addition in South Hutchinson,
Kansas. Subsequently, in 1896, Ella and H. Edward
Rowland executed a quitclaim deed to the Hutchinson &
Southern Railroad that describes a series of lots matching
those described in the 1891 condemnation decree. After
listing the lots, the deed states the following language of
conveyance: “For and in consideration of $1.00 and the
conveyance 4 of all the right of way now occupied by said
Railroad in Blanchard’s Third Addition to the City of
South Hutchinson.” J.A. 706, 1436.
In 1901, the Irrigation Loan & Trust Company exe-
cuted two quitclaim deeds to the railroad. For $144 in
consideration, the first deed quitclaims an interest in a
strip of land described as “[t]he West sixty-six (66) feet of
the west half (1/2) of the South Quarter (1/4) of Section
number Twenty-Three (23) . . . .” J.A. 1434. For $65.60 in
consideration, the second deed quitclaims an interest in a
series of lots that make up a portion of the lots listed in
the 1891 condemnation decree and in the 1896 Rowland
quitclaim deed.
In 1906, for $5,025 in consideration, the Rowlands ex-
ecuted a quitclaim deed to Harriet B. Hettinger, transfer-
ring their interest in the lots described in the 1896 deed,
but noting that the railroad had a “right of way consisting
of a strip the width of two lots (60 feet) off of and along
the west side” of the property. J.A. 982.

4 The transcription of the hand-written deed uses
the word “convenience” instead of “conveyance,” but the
parties agreed during oral arguments that “conveyance” is
a more proper transcription. J.A. 706, 1436.
BIERY v. US 9

D. THE BNSF’S INTEREST
As noted, the BNSF’s interest in the properties at is-
sue began with condemnation proceedings in the late
nineteenth century brought by the Hutchinson, Oklahoma
& Gulf Railroad and the Hutchinson & Southern Rail-
road. Sometime after those condemnation proceedings,
the two railroads merged into the Atchison, Topeka and
Santa Fe Railroad, which subsequently merged with the
Burlington Northern Railroad to become the BNSF.
In 1983, Congress passed legislation amending the
Trails Act to “preserve shrinking rail trackage by convert-
ing unused rights-of-way to recreational trails.” Preseault
v. Interstate Commerce Comm’n (Preseault I), 494 U.S. 1,
5 (1990) (citing 16 U.S.C. § 1241 et seq.). By converting
unused railways to recreational trails as an interim use,
the Interstate Commerce Commission could maintain
control over the right-of-way and prevent it from revert-
ing to landowners under state law, thus preserving it for
possible future railroad use. Id. at 6–8. Under the law,
therefore, before abandoning an unused railway, a rail-
road must seek permission from the Surface Transporta-
tion Board (“Board”). Citizens Against Rails-to-Trails v.
Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir. 2001).
If the railroad and the Board reach agreement, the land
underlying the railway may be transferred to a trail
operator (e.g., state, political subdivision, or qualified
private organization) for interim trail use. Id. If no
agreement is reached, the railroad may abandon the line
and liquidate its interests. Id. (citing Preseault I, 494
U.S. at 7). Depending on the scope of the railroad’s inter-
est in the property, the conversion of the railway to a
recreational trail may constitute a compensable taking
under the Fifth Amendment. Preseault v. United States
(Preseault II), 100 F.3d 1525, 1552 (Fed. Cir. 1996) (en
banc).
10 BIERY v. US

In 2004, after having discontinued its use, the BNSF
sought the Board’s permission to abandon the railway
that ran across the properties at issue in this case. Soon
after, the BNSF and the City of South Hutchinson en-
tered into a Trail Use Agreement. In donating its proper-
ty to the city for trail use, the BNSF noted that it may not
have held fee-simple title or any other interest in the
property. Subsequently, plaintiffs-appellants claimed
ownership of the land underlying the railway and sought
compensation for a taking.
III.
PROCEEDINGS IN THE COURT OF FEDERAL CLAIMS
Plaintiffs-Appellants filed suit in the Court of Federal
Claims in 2007 under the Tucker Act, 28 U.S.C. § 1491,
alleging a taking and seeking compensation under the
Fifth Amendment. On cross motions for summary judg-
ment, the court found that neither the Julia Fair deed,
the Phillips deed, the Rowland deed, nor the Irrigation
Loan deeds contained any use restrictions or reversionary
clauses. Initial Decision at 3–4. Accordingly, the court
held that the BNSF and its predecessor acquired fee-
simple title in the properties described in the deeds. Id.
Because the BNSF owned the properties in fee simple
rather than holding mere easements, the court deter-
mined, plaintiffs-appellants had no compensable property
interests that were subject to a taking. Id.
Plaintiffs-Appellants appealed to this court immedi-
ately after the summary judgment order. Because the
Court of Federal Claims had not entered a partial judg-
ment under RCFC 54(b), and because claims were still
pending, we dismissed the Notice of Appeal as premature.
Biery v. United States, 358 F. App’x 172 (Fed. Cir. 2009).
In 2013, the court entered final judgment pursuant to
RCFC 54(b), dismissing the claims of the five plaintiffs-
appellants. They appealed again. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
BIERY v. US 11

DISCUSSION
I.
STANDARD OF REVIEW
This appeal stems from a grant of summary judg-
ment. We review de novo the grant of summary judg-
ment. Ladd v. United States, 713 F.3d 648, 651 (Fed. Cir.
2013). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” RCFC 56(a). We review de novo legal conclusions of
the Court of Federal Claims. Barclay v. United States,
443 F.3d 1368, 1372 (Fed. Cir. 2006).
As noted, the issue on appeal is the nature of the
BNSF’s property interest in the several strips of land
underlying its former railroad tracks. More specifically,
we must determine whether the BNSF’s predecessor took
fee-simple title in the land or merely an easement. The
nature and scope of a property interest in a rail corridor is
a question of state law. Preseault II, 100 F.3d at 1534.
Under Kansas law, “the interpretation and legal effect of
written instruments are matters of law.” Stone v. U.S.D.
No. 222, 91 P.3d 1194, 1203 (Kan. 2004).
With this background in mind, we turn first to Kansas
law. We then address the several parcels of land at issue.
II.
KANSAS LAW
Kansas courts have “uniformly held that railroads do
not own fee titles to narrow strips taken as right-of-way,
regardless of whether they are taken by condemnation or
right-of-way deed.” Harvest Queen Mill & Elevator Co. v.
Sanders, 370 P.2d 419, 423 (Kan. 1962) (analyzing and
reaffirming the rule laid out in Abercrombie v. Simmons,
81 P. 208 (Kan. 1905)). To determine whether a railroad
12 BIERY v. US

took property as a right-of-way, Kansas courts first look to
the deed itself. Stone, 91 P.3d at 1203–04.
In construing a deed, the first step is to determine
whether it is ambiguous. Cent. Natural Res., Inc. v. Davis
Operating Co., 201 P.3d 680, 687 (Kan. 2009) (citing Wood
River Pipeline Co. v. Willbros Energy Servs. Co., 738 P.2d
866 (Kan. 1987)). In making this determination, Kansas
courts “apply the plain, general, and common meaning of
the terms used in the instrument.” Id. (citing Johnson v.
Johnson, 645 P.2d 911 (Kan. 1982)). “An instrument is
ambiguous when the application of pertinent rules of
interpretation to the whole ‘fails to make certain which
one of two or more meanings is conveyed by the words
employed by the parties.’” Id. (quoting Wood v. Hatcher,
428 P.2d 799 (Kan. 1967)). If the language of a deed is
ambiguous, we may consider facts surrounding the deed’s
execution in order to clarify the parties’ intent. Id. at 688.
For example, the size of the land may help in determining
whether a right-of-way was intended in an ambiguous
deed. Stone, 91 P.3d at 1204.
If, however, the language of a deed to a railroad is un-
ambiguous, we look no further than its four corners and
analyze it according to the general rule in Kansas. Id. at
1203. “The general rule is that deeds purporting to
convey to railroads a strip, piece, parcel, or tract of land
which do not describe or refer to its use or purpose or
directly or indirectly limit the estate conveyed are gener-
ally construed as passing an estate in fee.” Id. at 1203–
04. In simpler terms, when an unambiguous deed to a
railroad contains no use restrictions, reversionary clause,
or anything else indicating the land is for a right-of-way,
the title to the land is granted in fee simple. Id. at 1204.
BIERY v. US 13

III.
A. THE JULIA FAIR DEED
To determine whether the Chalfant appellants have a
compensable property interest, we consider whether the
1899 Julia Fair deed granted the Hutchinson & Southern
Railroad fee-simple title or merely an easement. Finding
that the deed contained no use restrictions or reversion-
ary clause, the Court of Federal Claims held that the deed
granted the railroad fee-simple title. Initial Decision at 3.
As noted, the Julia Fair deed quitclaimed to the
Hutchinson & Southern Railroad an interest in a strip of
land 100 feet wide “with the appurtenances and all the
estate, title and interest” therein. J.A. 703–04. Chalfant
argues that the Julia Fair deed was undertaken to clarify
the railroad’s right-of-way easement. According to
Chalfant, the railroad needed the deed because the earlier
condemnation decree had listed only Thomas Fair—the
late husband of Julia. In analyzing the words of the deed,
Chalfant argues that it describes the conveyance as being
“over and across” the land described, which, according to
Chalfant, indicates a right-of-way. The Court of Federal
Claims erred, Chalfant concludes, by ignoring Kansas law
and holding that a quitclaim deed in a strip of land to a
railroad for a right-of-way conveyed fee-simple title.
The government responds that the 1899 deed from
Julia Fair expressly and unambiguously conveyed all the
estate, title, and interest of Ms. Fair. The deed contained
no use restrictions or other limitations on the interest
conveyed. On this basis alone, the government argues,
the deed conveyed fee-simple title. Further, the govern-
ment argues, the railroad had no need to clarify the
interest it had taken from Thomas Fair because his wife,
Julia, did not own the land at the time of the condemna-
tion. According to the government, Julia received Thom-
as’s interest after he died. She then transferred that
14 BIERY v. US

interest to the railroad for $3500—more than five times
the amount the railroad originally paid for its easement.
We conclude that the Julia Fair deed transferred fee-
simple title to the Hutchinson & Southern Railroad.
First, we find the words of the deed to be unambiguous;
thus, we do not look beyond its four corners. Second, we
find no language in the deed indicating that the parties
intended to limit the railroad’s interest to a right-of-way.
Rather, the deed conveyed “all the estate, title, and inter-
est” of Julia Fair. She retained no reversionary interest.
Accordingly, the Julia Fair deed transferred fee-simple
title to the railroad. See Stone, 91 P.3d at 1203–04.
We are not persuaded by Chalfant’s argument regard-
ing the words “over and across.” Those words reflect the
simple truth that the railroad tracks run over and across
the land that Ms. Fair transferred; they do not place a
limitation on the transfer itself. Further, the fact that the
railroad paid $3,500 for the land indicates that, contrary
to Chalfant’s suggestion, the railroad received more than
just confirmation of an easement.
Accordingly, because Chalfant has no compensable
property interest that could have been subject to a taking,
we affirm the dismissal of its claim.
B. THE PHILLIPS DEED
Next, we consider whether the Biery appellant has a
compensable property interest. To do so, we must deter-
mine whether the Phillips deed granted the Hutchinson &
Southern Railroad fee-simple title, or merely an ease-
ment. Noting that the deed recited the words “fee sim-
ple,” and finding that it did not contain any use
restrictions or reversionary clause, the Court of Federal
Claims held that it granted the railroad fee-simple title.
Initial Decision at 3–4.
As noted, the Phillips deed conveyed an interest in
two tracts of land. The deed describes the first tract in
BIERY v. US 15

relation to the centerline of the railway and as “the tract
on which condemnation proceedings were filed.” It de-
scribes the second tract without any reference to the
railroad or the railway. The deed appears to be titled
“Right of Way Deed” and contains pre-printed language
that the estate was granted as “an absolute and indefea-
sible estate of inheritance, in fee simple.” As noted above,
however, the word “warranty” appears to have been
written over the words “Right of Way.”
Biery argues that the Phillips deed granted only an
easement to the railroad. The document, Biery urges, is
titled “Right of Way Deed” and describes a strip of land
that was previously subject to condemnation proceedings.
According to Biery, the court erred by focusing on the
words “fee simple” because, under Kansas law, the words
“fee simple” are not determinative of the right granted.
The government responds that the descriptive title
“Right of Way Deed” does not limit the property right to
an easement because the deed does not contain any use
limitations. Regarding the “fee simple” language, the
government responds that Biery cannot meet its burden
of proof by pointing to a remote possibility that the gran-
tor did not mean “fee simple” when he wrote “fee simple.”
We conclude that the Phillips deed granted an ease-
ment to the Hutchinson & Southern Railroad over the
first tract of described land and granted the railroad fee-
simple title to the second tract. The deed was originally
titled “Right of Way Deed,” which would indicate that the
railroad received only an easement. See Harvest Queen,
370 P.2d at 424 (“For many years it has been the estab-
lished law of this state that railroads receive easements
only in strips taken as rights-of-way, regardless of wheth-
er they are taken by condemnation or deed.”). The title is
illegible, however, and the phrase “Right of Way” appears
to have been crossed out, making it unclear from the title
what the parties intended.
16 BIERY v. US

Although the title of the instrument may be unclear,
the contents of the Phillips deed are unambiguous and
make clear the parties’ intent. Under Kansas law, a deed
grants an easement when it describes or refers to the
land’s use or purpose, directly or indirectly, as being for a
right-of-way. Stone, 91 P.3d at 1203–04. The Phillips
deed describes the first tract of land in relation to the
centerline of the railway and as the tract on which con-
demnation proceedings were filed. By describing the first
tract of land in relation to the condemnation proceedings,
we believe the parties intended to convey or confirm a
right-of-way for the railroad, and therefore an easement.
Regarding the government’s reliance on the pre-printed
language that uses the words “fee simple,” we note that
such language is not dispositive. See Abercrombie, 81 P.
at 210 (“The fact that the deed contains covenants of
warranty, or that the right acquired is designated as a
fee, is not necessarily controlling.”).
Although the pre-printed language is not determina-
tive of the first tract of land, we believe it nonetheless
may be given meaning. The second tract of land—lots 168
and 170—was conveyed with no use restrictions, rever-
sionary clause, or anything else limiting its use to a right-
of-way. We conclude that the second tract, therefore, was
conveyed in fee simple to the railroad. See Stone, 91 P.3d
at 1203–04.
Because we conclude that the Phillips deed conveyed
only an easement in the first tract of land described, we
hold that the Court of Federal Claims erred in dismissing
Biery’s claim.
C. THE ROWLAND DEED AND IRRIGATION LOAN DEEDS
To determine whether the American Packaging appel-
lants have a compensable property interest, we consider
the interests granted to the Hutchinson & Southern
Railroad in the Rowland deed and in the two Irrigation
Loan deeds. Like the deeds of the other appellants, the
BIERY v. US 17

Court of Federal Claims found that the Rowland deed and
the two Irrigation Loan deeds transferred fee-simple title
to the railroad because none of the deeds contained any
use restrictions or reversionary clauses. Initial Decision
at 3.
The 1896 Rowland deed lists a series of lots—lots that
were also listed in earlier condemnation proceedings—and
recites that it is for “the conveyance of all the right of
way” that was occupied at the time by the railroad. J.A.
706. The two Irrigation Loan deeds likewise list various
lots—including some of those in the Rowland deed—but
have no reference to a right-of-way. J.A. 1434–39.
American Packaging argues that the Court of Federal
Claims failed to properly apply Kansas law to the deeds.
Moreover, it argues that no factual basis exists for the
court’s conclusion that the Irrigation Loan & Trust Com-
pany held fee-simple title to the land. If the Irrigation
Loan & Trust Company never held fee-simple title, Amer-
ican Packaging contends, it could not have conveyed fee-
simple title to the Hutchinson & Southern Railroad.
The government counters that the Court of Federal
Claims correctly held that the three deeds at issue con-
veyed fee-simple title because none contained use re-
strictions or reversionary clauses. The government
further argues that, although the Rowland deed uses the
term “right-of-way,” it does not do so in a way that re-
stricts use of the land. Regarding American Packaging’s
argument that the Irrigation Loan & Trust Company did
not have a fee-simple interest to convey, the government
contends that the chain of title shows that the Irrigation
Loan & Trust Company did in fact hold title to the prop-
erties at issue.
We conclude that the Rowland deed conveyed only an
easement to the railroad. Under Kansas law, railroads do
not acquire fee-simple title to narrow strips of land taken
as rights-of-way. Harvest Queen, 370 P.2d at 423. As
18 BIERY v. US

noted, for $1 in consideration, the Rowland deed lists a
series of lots that match those in the earlier condemnation
proceedings and states that it is for “the conveyance of all
the right of way” occupied at that time by the railroad.
The unambiguous language describes the use as a right-
of-way, therefore indicating that the parties expressly, or
at a minimum, impliedly, intended to convey or confirm
an easement. See Abercrombie, 81 P. at 210 (“But where
there is an implied restriction, as is often the case in
regard to the right of way, or the like, of a railroad com-
pany, the grant does not ordinarily vest a fee in the
company, but vests such an estate—usually an ease-
ment—as is requisite to effect the purpose for which the
property is required.” (quoting 2 Elliott on Railroad, §
400)).
Regarding the government’s argument that the term
“right-of-way” must be used in a way that expressly
restricts use of the land in order to avoid transferring fee-
simple title, we do not read Kansas law to be so restric-
tive. To the extent any ambiguity exists in the deed’s use
of the term “right-of-way,” however, the Rowland’s subse-
quent transfer of the land resolves it. In 1906, ten years
after executing the quitclaim deed at issue in this case,
the Rowlands executed another deed. For $5,025 in
consideration, the Rowlands quitclaimed their interest to
H. B. Hettinger in the same lots as the 1896 deed, noting
that the land was subject to a right-of-way by the rail-
road. J.A. 982. In our view, the 1906 deed’s reference to
an existing right-of-way confirms the conclusion that the
parties to the 1896 deed intended to convey only an
easement. See Stone, 91 P.3d at 1203 (noting that extrin-
sic evidence such as “subsequent deeds referring to a
right-of-way” may help resolve whether an ambiguous
deed granted an easement). We therefore hold that the
Court of Federal Claims erred in ruling that the Rowland
deed conferred a fee-simple interest.
BIERY v. US 19

Regarding the Irrigation Loan deeds, they both ap-
pear clear and unambiguous. Neither mentions any
purpose for the land or any limitation on the railroad’s
use. Both, therefore, conveyed the entire estate owned at
the time by the Irrigation Loan & Trust Company. See
Stone, 91 P.3d at 1203–04. We conclude, therefore, that
the Court of Federal Claims correctly construed the
Irrigation Loan deeds.
Nevertheless, because the court erred in construing
the Rowland deed, it erred in dismissing American Pack-
aging’s claim as to the land described in that deed. The
chain of title shows that the Rowlands issued a quitclaim
deed to the Hutchinson & Southern Railroad in 1896,
which conveyed an easement. The record does not show
any conveyance from the Rowlands to the Irrigation Loan
& Trust Company between 1896 and 1901. If the Irriga-
tion Loan & Trust Company did not possess an undivided
fee-simple interest in the land in 1901, it could not have
conveyed such an interest to the railroad. Moreover,
because the Irrigation Loan & Trust Company deeds are
quitclaim deeds, they may have conveyed no property
interest at all. See 14 R. Powell, Powell on Real Property
§ 81A.03[1][c] (Michael Allen Wolf ed., LexisNexis Mat-
thew Bender 2013) (explaining that with a quitclaim
deed, “[t]he grantor makes no assurance to the grantee
that he or she actually has good title to, or even any
interest at all in, the property . . . .”). We remand to the
Court of Federal Claims to evaluate the chain of title and
determine the extent to which American Packaging has a
property interest stemming from the Rowland’s earlier
property interest. 5

5 The 1906 deed from the Rowlands suggests that
their interest in the land continued past the Irrigation
Loan & Trust Company’s transfer in 1901. See J.A. 982.
We leave it to the Court of Federal Claims on remand to
20 BIERY v. US

CONCLUSION
We affirm the grant of summary judgment with re-
spect to Chalfant, reverse the grant of summary judgment
with respect to Biery and American Packaging, and
remand the case to the Court of Federal Claims to deter-
mine the merits of Biery’s and American Packaging’s
claims.
AFFIRMED-IN-PART, REVERSED-IN-PART, AND
REMANDED
COSTS
Each party shall bear its own costs.

evaluate how this evidence resolves the chain-of-title
question.