Stephen J. Rogers v. United States

Supreme Court of Florida
____________

No. SC14-1465
____________

STEPHEN J. ROGERS, et al.,
Appellants,

vs.

THE UNITED STATES OF AMERICA,
Appellee.

[November 5, 2015]

CANADY, J.

Under the authority of article V, section 3(b)(6) of the Florida Constitution,

the United States Court of Appeals for the Federal Circuit has certified to this

Court a question of Florida law which the Court of Appeals found would be

determinative of an appeal pending in that court and upon which that court found

there to be “no controlling precedent in the existing decisions of the Florida

Supreme Court.” Rogers v. United States (Rogers III), Nos. 2013-5098 & 2013-

5102, slip op. at 4 (Fed. Cir. July 21, 2014). We are authorized to answer the

question. See art. V, § 3(b)(6), Fla. Const.
 FACTS

This case originates from claims for compensation for takings of property

filed in the United States Court of Federal Claims. The claimants alleged that the

conversion of a former railroad corridor into a recreational trail had effected a

taking of the abutting landowners’ property rights without compensation. The

United States Court of Federal Claims, as explained in two opinions, each

involving multiple claimants, found, insofar as the current appellants are

concerned, that the claimants did not own any property interests in the land

formerly used as a railroad corridor and therefore were not entitled to

compensation. See Rogers v. United States (Rogers II), 107 Fed. Cl. 387 (Fed. Cl.

2012); Rogers v. United States (Rogers I), 93 Fed. Cl. 607 (Fed. Cl. 2010). The

claimants appealed these two decisions, and as stated above, the Court of Appeals

for the Federal Circuit certified a question of Florida law for this Court to answer.

The Court of Appeals set forth the following under the heading “A

Statement of All Facts Relevant to the Questions Certified”:

The property at issue involves, in part, a 12.43 mile long, 100
foot wide strip of land between Sarasota and Venice in Sarasota
County, Florida. The Seaboard Air Line Railway (“Seaboard”)
received property interests for the land underlying its railway through
a series of transactions from 1910 through 1941. In the early 1900s,
Seaboard surveyed the property it intended to use for its rail way. In a
series of four deeds (the Blackburn, Phillips, Frazer, and Knight
deeds), property owners conveyed their interests in the northern
corridor of the rail way to Seaboard in September 1910. Those deeds
appear, on their face, to unambiguously convey a fee simple interest

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to Seaboard. After receiving these deeds, Seaboard laid track and
began to operate trains along the entire corridor as of November 1911.
At this time, Seaboard had not received any deed corresponding to the
southern portion of the rail corridor, but still operated trains along the
entire corridor.

In 1926-27, Seaboard relocated the southern portion of its rail
corridor a quarter mile to the east. On April 1, 1927, trains began to
run along the relocated rail corridor. Then, on April 4, 1927,
Seaboard received a deed from the Brotherhood of Locomotive
Engineers pension fund (“BLE”) that appears, on its face, to
unambiguously convey a fee simple interest in the property
corresponding to the relocated southern portion of the rail corridor.[n. 2]
Seaboard continued to operate trains along the entirety of the rail
corridor.

[N. 2] Seaboard also received a deed from Venice-
Nokomis Holding Corporation on November 10, 1941
that purported to transfer the same property that BLE
transferred to Seaboard in the 1927 BLE deed.

In 2003, a successor operator of the rail corridor, Seminole
Gulf, sought an exemption from continuing to operate the rail line.
The Surface Transportation Board granted Seminole Gulf’s petition
for an exemption, which allowed Seminole Gulf and Sarasota County
the opportunity to negotiate a railbanking and interim trail use
agreement. Seminole Gulf and Sarasota County reached an
agreement, and CSX Corporation (“CSX”), the owner of the rail
corridor, quitclaimed its interest in the property to the Trust for Public
Land. CSX then removed its track, and the Trust converted the
property into the Legacy Trail.

In addition to these facts, attached hereto are the following
documents from the parties’ Appendix on Appeal:

1. Court of Federal Claims’s Partial Final Judgment,
entered May 10, 2013 (A1);

2. Court of Federal Claims’s Opinion and Order, entered
June 28, 2010 (A2-22);

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 3. Court of Federal Claims’s Opinion and Order, entered
September 25, 2012 (A23-42).

Rogers III, slip op. at 5-7 (one footnote omitted). The Court of Appeals stated the

certified question as follows:

Assuming that a deed, on its face, conveys a strip of land in fee
simple from a private party to a railroad corporation in exchange for
stated consideration, does Fla. Stat. § 2241 (1892) (recodified at Fla.
Stat. § 4354 (1920); Fla. Stat. § 6316 (1927); Fla. Stat. § 360.01
(1941)), state policy, or factual considerations—such as whether the
railroad surveys property, or lays track and begins to operate trains
prior to the conveyance of a deed—limit the railroad’s interest in the
property, regardless of the language of the deed? [n. 1]

[N. 1] While the Appellants dispute whether the deeds
appear on their face to transfer a fee simple interest in the
properties at issue, like the Court of Federal Claims
before us, we conclude that they do.

Rogers III, slip op. at 5.

Considering the alternatives included in the Court of Appeals’ certified

question, we see that there are actually three questions: (1) Does section 2241,

Revised Statutes of Florida (1892), limit the railroad’s interest in the property,

regardless of the language of the deeds? (2) Does state policy limit the railroad’s

interest in the property, regardless of the language of the deeds? (3) Do factual

considerations, such as whether the railroad surveys land or lays track and begins

running trains before the conveyance of a deed, limit the railroad’s interest in the

property, regardless of the language of the deeds? Under the circumstances found

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to exist by the Court of Federal Claims, we answer all three questions in the

negative.

The Court of Appeals’ mention of “a railbanking and interim trail use

agreement,” Rogers III, slip op. at 6, refers to a step in the process for converting

an unused railroad corridor into a recreational trail under federal law. See 16

U.S.C. § 1247(d) (2012).1 The national program of conversion of unused railroad

corridors into recreational trails, which is intended in part to “preserve established

railroad rights-of-way for future reactivation of rail service,” 16 U.S.C. § 1247(d),

is a valid exercise of the authority of Congress to regulate interstate commerce.

See Preseault v. I.C.C., 494 U.S. 1, 17-19 (1990).

The present case arises from the claims of a group of owners of land

abutting the railroad corridor who claim that conveyances to the railroad by their

predecessors in title granted only easements for a railroad right-of-way and did not

convey fee simple title; that the abandonment of the railroad right-of-way gave

them the right to claim the land free of the easements; and that the conversion of

1. National Trails System Act Amendments of 1983, Pub. L. No. 98-11, tit.
II, § 208, 97 Stat. 42, 48. There is no need for us to explain the difference between
an “exemption from continuing to operate the rail line,” Rogers III, slip op. at 6,
which the Court of Appeals stated was involved in this case, and an
“abandonment” of a railroad corridor under 49 U.S.C. §§ 10502, 10903 (2012).
See Whispell Foreign Cars, Inc. v. United States, 100 Fed. Cl. 529, 532-35 (Fed.
Cl. 2011).

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the land to a public recreational trail constitutes a taking for which they are entitled

to compensation. “[A] Fifth Amendment taking occurs when, pursuant to the

Trails Act, state law reversionary interests are effectively eliminated in connection

with a conversion of a railroad right-of-way to trail use.” Caldwell v. United

States, 391 F.3d 1226, 1228 (Fed. Cir. 2004); see also Hash v. United States, 403

F.3d 1308 (Fed. Cir. 2005). In the two opinions pending on review in the Court of

Appeals, the Court of Federal Claims engaged in a detailed examination and

analysis of the process and the legal documents by which Seaboard obtained title to

the parcels of land in question in this proceeding.

Seaboard obtained title to the parcels of land in question by five deeds, four

executed in 1910 and one in 1927. A sixth deed, recorded in 1941, conveyed the

same property as the 1927 deed and appears to have been recorded to remove any

doubt about the effect of the 1927 deed. In the later of the Court of Federal

Claims’ two opinions, the four 1910 deeds are referred to as the Blackburn,

Phillips, Frazer, and Knight deeds. See Rogers II, 107 Fed. Cl. at 389, 395-98.

The 1927 deed was executed by the B.L.E. Realty Corporation and is referred to as

the B.L.E. deed in the earlier Court of Federal Claims opinion. See Rogers I, 93

Fed. Cl. at 615.

Record documents show that the Blackburn deed reads in pertinent part as

follows:

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 That for and in consideration of the sum of Two Hundred Dollars
($200.00) in hand paid, the receipt of which is hereby acknowledged,
and other valuable consideration, the parties of the first part hereby
grant, bargain, sell, and convey unto the party of the second part all
their right, title and interest, of any nature whatsoever, in and to the
following property, to-wit:

[100-foot-wide strip of land, 50 feet on either side of a center line
described by reference to township, range, and section lines, and
described as being about 3.5 acres]

TOGETHER WITH all and singular the tenements,
hereditaments, and appurtenances thereunto belonging or
appertaining, and every right, title or interest, legal or equitable, of the
said party of the first part in and to the same.

The other three 1910 deeds used the same operative language, i.e., “grant, bargain,

sell and convey” for specified consideration all “right, title and interest of any

nature whatsoever” together with all “appurtenances thereunto belonging” and,

again, “every right, title or interest, legal or equitable.”

The B.L.E. deed from 1927 reads in pertinent part:

That said B.L.E. Realty Corporation, for and in consideration of the
sum of Five Dollars, cash in hand paid, and for other good and
valuable considerations, the receipt whereof is hereby acknowledged,
hath granted, bargained, sold, aliened, remised and released and doth
by these presents grant, bargain, sell, convey, alien, remise and
release, unto the said Seaboard Air Line Railway Company, its
successors and assigns, forever, all of its right, title and interest in and
to the following real estate situated in Sarasota County, Florida,
described as follows, to wit:

[legal descriptions of three tracts of land]

TO HAVE AND TO HOLD, together with the rights, members
and appurtenances thereunto belonging or appertaining, unto the said

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 party of the second part, its successors and assigns in fee simple,
forever.

None of the deeds described the interest in land being conveyed as a “right of

way.” The Court of Federal Claims found that the deeds conveyed title to the

parcels of land in question in fee simple. Based on the finding that the claimants’

predecessors in title did not retain any ownership interests, the court held that the

current owners of land abutting the corridor do not have any ownership interests

and therefore have not suffered any compensable taking of property.

ANALYSIS

I. The Statute

At the time of the 1910 deeds, the statute cited by the Court of Appeals was

codified as section 2803, General Statutes of Florida (1906). At the time of the

1927 deed, the same statute appeared as section 4354 in the Revised General

Statutes of Florida (1920).2 In substance, this statute remained the same from the

time of its adoption in 1874 until it was repealed in 1982 and will be referred to

herein as Special Powers of Railroad Statute. At all times relevant to the issues in

this proceeding, the statute provided:

2. As noted by the Court of Appeals in its framing of the question, the
statute also appeared as section 2241, Revised Statutes of Florida (1892), section
6316, Compiled General Laws of Florida (1927), and section 360.01, Florida
Statutes (1941). Section 360.01 was repealed in 1982. See ch. 81-318, § 2, Laws
of Fla.

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 Every railroad and canal company shall be empowered:
(1) To cause such examinations and surveys for the proposed
railroad or canal to be made as shall be necessary for the selection of
the most advantageous route, and for such purposes by its officers,
agents and servants to enter upon the lands or water of any person for
that purpose.
(2) To take and hold such voluntary grants of real estate and
other property as shall be made to it to aid in the construction,
maintenance and accommodation of its road or canal, but the real
estate received by voluntary grant shall be held and used for purposes
of such grant only.
(3) To purchase, hold and use all such real estate and other
property as may be necessary for the construction and maintenance of
its road or canal and the stations and other accommodations necessary
to accomplish the objects of its incorporation, and to sell, lease or buy
any lands or real estate not necessary for its use.
(4) To lay out its road or canal, not exceeding two hundred feet
in width, and to construct the same, and, for the purpose of cuttings
and embankments and for obtaining gravel and other material, to take
as much land as may be necessary for the proper construction,
operation and security of the road or canal, or to cut down any trees
that may be in danger of falling on the road or into the canal, making
compensation therefor as provided for land taken for the use of the
company.
(5) To construct its road or canal across, along or upon or use
any stream of water, water-course, street, highway or canal which the
route of its road or canal shall intersect or touch, and whenever the
track of any railroad or canal shall touch, intersect or cross any road,
highway or street, it may be carried over or under such railroad or
canal, as may be found most expedient for the public good; and in
case any embankment or cut in the construction of any railroad or
canal shall make it necessary to change the course of any highway or
street, the company may construct such road or canal so as to change
the course or direction of any road, highway or street.
(6) To cross, intersect or unite its railroad with any other
railroad heretofore or hereafter to be constructed at any point in its
route or upon the ground of any other railroad company with the
necessary turnouts, sidings and switches and other conveniences in
furtherance of the objects of its connections; and every company
whose railroad is or shall be hereafter intersected by any new railroad

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can unite with the owners of such new railroads forming such
intersections and connections and grant the facilities aforesaid, and if
the two corporations cannot agree upon the amount of compensation
to be made therefor and all the points and matters of such crossing and
connections, the same shall be ascertained according to the provisions
for exercising the right of eminent domain, and no company which
shall have obtained the right of way and constructed its road at the
point of intersection before the beginning of proceedings for
condemnation shall be required to alter the grade or change the
location of its road.
(7) To take and convey persons or property over their railroad
or canal by the power or force of steam or animals or by any
mechanical power, and to receive compensation therefor, and to do all
the business incident to railroads or canal business.
(8) To erect and maintain all convenient buildings, wharves,
docks, stations, fixtures and machinery for the accommodation and
use of their passengers and freight business.
(9) To regulate the time and manner in which passengers and
property shall be transported.
(10) To borrow such sums of money at such rates of interest
and upon such terms as the company or its board of directors shall
authorize or agree upon and may deem necessary or expedient, and to
execute one or more trust deeds or mortgages, or both, as the occasion
may require, of railroads or canals constructed or in process of
construction by said company, for the amounts borrowed or owing by
such company, as its board of directors shall deem expedient; and
such company may make such provisions in such trust deed or
mortgage for transferring their railroad track or canal right of way,
depots, grounds, rights, privileges, franchises, immunities, machines,
houses, rolling stock, furniture, tools, implements, appendages and
appurtenances used in connection with such railroads or canals, in any
manner whatsoever then belonging to the said company, or which
shall thereafter belong to it, as security for any bonds, debts or sums
of money as may be secured by such trust deed or mortgage, as they
shall think proper; and in case of sale of any railroad or canal, or any
part thereof, constructed or in course of construction by any railroad
or canal company, by virtue of any trust deed or of any foreclosure of
any mortgage thereon, the parties acquiring title under such, and their
associates, successors or assigns, shall have or acquire thereby, and
shall exercise and enjoy thereafter the same rights, privileges, grants,

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 franchises, immunities and advantages in or by said trust deed or
mortgage enumerated and conveyed, which belonged to and were
enjoyed by the company making such deed or mortgage or contracting
such debt, so far as the same relate or appertain to that portion of said
road or canal or the line thereof mentioned or described and conveyed
by said mortgage or trust deed, and no further, as fully and absolutely
in all respects as the corporators, officeholders, shareholders and
agents of such company might or could have done, had not such sale
or purchase taken place, and such purchasers, their associates,
successors or assigns may become incorporated as provided by law.

Appellants argue that subsection (2) of the statute applies, and since the

statute provides that “real estate received by voluntary grant shall be held and used

for the purposes of such grant only,” the interests conveyed to the railroad were

only easements for use of the property as a railroad right of way. However,

nothing in any of the deeds indicates that any of them were voluntary grants or that

they were intended to convey easements.

A “voluntary conveyance” is “[a] conveyance made without valuable

consideration.” Black’s Law Dictionary 408 (10th ed. 2014). Construing a similar

state statute on the subject of railroad rights of way, the Supreme Court of Missouri

has held that the term “voluntary grant” was used by the legislature to mean a

conveyance without valuable consideration. See, e.g., Clay v. Mo. State Highway

Comm’n, 239 S.W.2d 505, 508 (Mo. 1951); Brown v. Weare, 152 S.W.2d 649,

653 (Mo. 1941). The provision in subsection (2) of the Florida statute, to the effect

that “real estate received by voluntary grant shall be held and used for purposes of

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such grant only,” does not apply in this case because the deeds were grants by

bargain and sale for valuable consideration and conveyed fee simple title.3

Appellants also argue that the intent to grant only easements is indicated by

language in the deeds showing that the purpose for which the land was purchased

was for a railroad right of way. They cite cases from other jurisdictions holding

that deeds granting property to railroads for rights of way are construed to convey

easements rather than fee simple title.4 However, no decisions of Florida courts

support Appellants’ argument.

3. “Voluntary grants” of land to railroads might include land grants made by
a state or local government or the federal government. Other grantors might
donate land to railroads in the hope of benefiting from the location of the railroad
tracks or a station. See Seaboard Air Line Ry. Co. v. Bd. of Bond Trustees of
Special Road & Bridge Dist., 108 So. 689, 698 (Fla. 1926); Armstrong v. Seaboard
Air Line Ry. Co., 95 So. 506, 506-07 (Fla. 1922).

4. See Neider v. Shaw, 65 P.3d 525 (Idaho 2003) (use of term “right of
way” in conveyance indicates an easement); Ross, Inc. v. Legler, 199 N.E.2d 346
(Ind. 1964) (public policy construes conveyances to railroads for rights of way as
easements); Harvest Queen Mill & Elev. Co. v. Sanders, 370 P.2d 419 (Kan. 1962)
(railroads do not get fee simple title to rights of way); Ill. Cent. R.R. Co. v.
Roberts, 928 S.W.2d 822 (Ky. 1996) (term “right of way” in deed to railroad
conveys an easement); Mich. Dep’t of Nat. Res. v. Carmody-Lahti Real Estate,
Inc., 699 N.W.2d 272 (Mich. 2005) (deed granting right of way conveys an
easement); Brown v. Weare, 152 S.W.2d 649 (Mo. 1941) (public policy of state is
that when railroad acquires right of way it takes an easement); Pollnow v. State
Dep’t of Nat. Res., 276 N.W.2d 738 (Wis. 1979) (railroad right of way taken by
condemnation is an easement).

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 The effect of a deed, both as to the property conveyed and the character of

the estate conveyed, is determined by the intent of the grantor. See Reid v. Barry,

112 So. 846, 852 (Fla. 1927). In Saltzman v. Ahern, 306 So. 2d 537, 539 (Fla. 1st

DCA 1975), Florida’s First District Court of Appeal restated the following well-

established rule:

When the language of a deed is clear and certain in meaning and the
grantor’s intention is reflected by the language employed, there is no
room for judicial construction of the language nor interpretation of the
words used. Rules of construction will be utilized only where the
meaning or effect of the deed is doubtful. If there is no ambiguity in
the language employed then the intention of the grantor must be
ascertained from that language.

We need not discuss the language of the deeds in this case in detail or the

circumstances of their execution because the Court of Federal Claims did a

thorough job of it in reaching the conclusion that the deeds by their language

appeared to convey fee simple title. The deeds in question in this case included all

the formal statements needed to show that the land was purchased and that the

deeds granted fee simple title.5

5. Section 689.10, Florida Statutes (2014), provides:

Where any real estate has heretofore been conveyed or granted
or shall hereafter be conveyed or granted without there being used in
the said deed or conveyance or grant any words of limitation, such as
heirs or successors, or similar words, such conveyance or grant,
whether heretofore made or hereafter made, shall be construed to vest
the fee simple title or other whole estate or interest which the grantor
had power to dispose of at that time in the real estate conveyed or

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 Contrary to Appellants’ argument, Florida law recognizes that railroads may

hold fee simple title to land acquired for the purpose of building railroad tracks.

See, e.g., Atlantic Coast Line R.R. Co. v. Duval Cnty., 154 So. 331 (Fla. 1934);

Clark v. Cox, 85 So. 173 (Fla. 1920); Fla. Power Corp. v. McNeely, 125 So. 2d

311 (Fla. 2d DCA 1960). Subsection (3) of the statute authorized railroad

companies to “purchase . . . such real estate . . . as may be necessary to the

construction and maintenance of its road.” The fact that railroads in Florida have

also conducted their operations using rights of way which they held by virtue of

easements, see Van Ness v. Royal Phosphate Co., 53 So. 381 (Fla. 1910); Silver

Springs, Ocala & Gulf R.R. v. Van Ness, 34 So. 884 (Fla. 1903), does not change

this fact. The determinative factor is the language of the deed when the language

granted, unless a contrary intention shall appear in the deed,
conveyance or grant.
This law was enacted in 1903, ch. 5145, § 1, Laws of Fla. (1903), and made
retroactive in 1925. Ch. 10170, § 1, Laws of Fla. (1925). One purpose of
the law was to make it unnecessary to include certain language required
under the common law to convey an “estate of inheritance.” See Reid v.
Barry, 112 So. 846, 860-61 (Fla. 1927). In Reid, the Court observed that the
“habendum clause” of a deed defines the estate to be conveyed. “But if the
estate conveyed is shown by the granting clause, the habendum is not
necessary and its omission of no effect.” Id. at 861. The effect of this
statute is that a deed is presumed to convey fee simple title, or whatever title
the grantor had power to convey, unless a contrary intention is shown by the
language of the deed.

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is clear. See, e.g., Cohen v. Pan Am. Aluminum Corp., 363 So. 2d 59 (Fla. 3d

DCA 1978).

On the first component of the certified question, we answer that nothing in

section 2241, Revised Statutes of Florida (1892), as the statute existed then or

later, limited the railroad’s interest in the property regardless of the language of the

deed.

II. State Policy

Appellants argue that the railroads that operated trains using the corridor in

question in this case occupied and used the corridor under rights of way that were

easements, that is, rights to use the strips of land for railroad purposes only.

According to this argument, when the corridor stopped being used for railroad

purposes and was in effect abandoned, unencumbered title to the land reverted to

the abutting landowners as successors in title to the owners who granted the

railroad the right to run trains over their property.6 Subsection (4) of the statute

6. Some courts have cautioned against using the term “reversion” to refer to
the interest of an owner of land subject to an easement whose servient estate is
later unburdened by reason of the abandonment or discontinuation of the easement.

[A] “reversion” is a future interest remaining in the transferor
following the conveyance of certain lesser estates to a transferee,
typically when the transferee takes a possessory estate of freehold, for
example a life estate. An easement is not such a possessory estate of
freehold. . . . Therefore labeling the retained interest a “reversion” is
not consistent with the traditional classification scheme, which views

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quoted above provides that a railroad company may “take as much land as may be

necessary for the proper construction, operation, and security of the road . . .

making compensation therefor.” Appellants argue that, even if the deeds by which

the landowners granted land to the railroad appeared to convey fee simple title, the

various parcels of land making up the corridor used by the railroad should

nevertheless be treated as though they were taken by eminent domain.

Appellants cite cases from other jurisdictions holding that when a railroad

obtains property by eminent domain for use as a railroad right of way, it receives

only such interest as is needed to fulfill the purpose of the taking, which is an

easement. We need not address the nature, quality, or character of the title or

estate in land a railroad obtains when it takes land for a right of way by eminent

domain under Florida law, because the deeds in question in this case conveyed fee

simple title and were obtained by bargain and sale, not eminent domain.

Appellants argue that the deeds show that the railroad paid only nominal

consideration for the land and that the recitation of nominal consideration in a deed

the retained interest as a present estate in fee simple, subject to the
burden of the easement.
Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996); see also
Brown, 152 S.W.2d at 655 (Mo. 1941) (“[I]n the grant of an easement no
title passes but . . . continues in the holder of the servient estate so that when
the easement ceases there can be no such thing as a reversion of title. . . .
[T]he servient estate is merely freed from the burden of the use . . . .”).

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can be evidence that the grantor intended to grant something less than full title.

Appellants suggest that the amounts of consideration stated in the deeds show that

the deeds were meant to convey easements rather than fee simple title. Appellants

cite Craft v. Craft, 76 So. 772 (Fla. 1917), to support this argument. In Craft,

certain lots were conveyed without any consideration under circumstances where

the grantee had agreed to sell the lots and remit the proceeds to the grantors. The

Court held that while the grantee received legal title, his undertaking created a trust

enforceable in a court of equity. Id. at 772-73. The agreement of the parties

resulted in the grantee holding the proceeds of the sales in trust for the grantors.

The case is inapplicable here because the facts are distinguishable. Appellants also

cite Ogg v. Mediacom LLC, 142 S.W.3d 801 (Mo. Ct. App. 2004), where a

Missouri court found nominal consideration to be a factor in discerning the

grantor’s intent to convey an easement rather than fee simple title. The law of

Florida, however, is that the amount of consideration stated in a deed provides no

basis for questioning the validity of the deed. See, e.g., Kingsland v. Godbold, 456

So. 2d 501 (Fla. 5th DCA 1984); Venice East, Inc. v. Manno, 186 So. 2d 71 (Fla.

2d DCA 1966). The language of the deed determines the nature of the estate

conveyed. Here the deeds were clear in their language and conveyed fee simple

title.

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 Appellants argue that the deeds should be construed as having granted

easements because the law of Florida disfavors recognition of fee simple title to

“strips and gores” of land which become isolated due to changes in their use or

other circumstances. As applied to railroad rights of way, Appellants argue, this

principle of law would operate so that upon abandonment of a railroad corridor,

title would “revert” to the adjoining landowners. To support this argument,

Appellants cite cases dealing with street and road easements created by subdivision

plats, such as Paine v. Consumers’ Forwarding & Storage Co., 71 F. 626 (6th Cir.

1895), in which the court explained the principle as follows:

The existence of “strips or gores” of land along the margin of
nonnavigable lakes, to which the title may be held in abeyance for
indefinite periods of time, is as great an evil as are “strips and gores”
of land along highways or running streams. The litigation that may
arise therefrom after long years, or the happening of some unexpected
event, is equally probable, and alike vexatious in each of the cases,
and that public policy which would seek to prevent this by a
construction that would carry the title to the center of a highway,
running stream, or nonnavigable lake that may be made a boundary of
the lands conveyed applies indifferently, and with equal force, to all
of them.

Id. at 629-30 (quoting Lembeck v. Nye, 24 N.E. 686, 689 (Ohio 1890)). Paine

involved a subdivision plat by which strips of land had been designated for use as

streets. Later one of the streets was abandoned, and the court held that the deeds to

the lots adjacent to the land designated for a street had conveyed title that extended

to the center line of the street. It was clear that the court was applying a

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presumption as to the grantor’s intent, which would not have been appropriate or

necessary had a different intention been made clear in the deeds. Id. at 629, 632,

634-35. As applied to a railroad right of way, the “strips and gores” doctrine has

been explained as follows:

The presumption is that a deed to a railroad or other right of way
company (pipeline company, telephone company, etc.) conveys a
right of way, that is, an easement, terminable when the acquirer’s use
terminates, rather than a fee simple. Transaction costs are minimized
by undivided ownership of a parcel of land, and such ownership is
facilitated by the automatic reuniting of divided land once the reason
for the division has ceased. If the railroad holds title in fee simple to a
multitude of skinny strips of land now usable only by the owner of the
surrounding or adjacent land, then before the strips can be put to their
best use there must be expensive and time-consuming negotiation
between the railroad and its neighbor—that or the gradual extinction
of the railroad’s interest through the operation of adverse possession.
It is cleaner if the railroad’s interest simply terminates upon the
abandonment of railroad service. A further consideration is that
railroads and other right of way companies have eminent domain
powers, and they should not be encouraged to use those powers to
take more than they need of another person’s property—more, that is,
than a right of way. But all this said, there is nothing to prohibit a
farmer or other landowner from selling outright to the railroad a strip
of land for the railroad’s tracks; and if that is how the matter was
handled with respect to some or all of the parcels in this case, Penn
Central remains their owner today, save as its rights may have been
extinguished by adverse possession.

Penn Central Corp. v. U.S. R.R. Vest Corp., 955 F.2d 1158, 1160 (7th Cir. 1992)

(citations omitted). This explanation supports our conclusion that since the deeds

in question here were clear as to the title conveyed, presumptions that are used

when the intent is unclear do not apply.

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 Appellants also cite certain decisions of this Court in support of their “strips

and gores” argument. In Seaboard Air Line Ry. v. Southern Investment Co., 44

So. 351 (Fla. 1907), and Florida Southern Ry. v. Brown, 1 So. 512 (Fla. 1887), this

Court recognized that when a street or highway is the boundary of a lot or piece of

land, the owner of the lot owns to the center of the street or highway, subject to the

right of the public to use the public street or highway. “The rule seems to be based

on the supposed intention of the parties, and the improbability of the grantor

desiring or intending to reserve his interest in the street when he had parted with

his title to the adjoining land.” Id. at 513-14. In Smith v. Horn, 70 So. 435 (Fla.

1915), a subdivision plat was mapped out showing blocks and lots with spaces for

streets running in between them. The plat showed the owner’s intent to create

public easements for the streets. The purchasers of the lots were presumed to have

received title to the land extending to the center of the street abutting their lots.

Upon the subsequent abandonment or surrender of a street easement, the abutting

owners owned the property to the center of the street free of the easement. Id. at

436-37. This outcome was based on the presumed intent of the grantor in the

absence of a contrary showing. Servando Bldg. Co. v. Zimmerman, 91 So. 2d 289

(Fla. 1956), recognized that the rule applied in Horn, Southern Investment, and

Brown is a rule of construction that is employed to aid in determining the grantor’s

intent. Under this body of caselaw, a conveyance of a lot bordered by a street is

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presumed to carry title to the center of the street. This rule of construction does not

apply if a contrary intention is made clear by the language of the deed. To the

same effect is the decision in United States v. 16.33 Acres of Land, 342 So. 2d 476

(Fla. 1977). The presumption is also inapplicable if the strip of land being claimed

is titled in someone else. See Paine, 71 F. at 629.

These cases on subdivision plats are distinguishable. Moreover, the

presumption that an owner of a lot abutting a street owns to the center of the street

will not prevail over clear language in a deed showing contrary intent.7 The

Appellants claim to be the successors in title of landowners whose land was subject

to an easement for a railroad right of way. But the Appellants in the present case

cannot be equated to purchasers who took title to land subject to an easement for a

street or road for the benefit of the public whose land was later unburdened due to

the discontinuation or abandonment of the street or road easement. The

Appellants’ predecessors were the grantors, and if they intended to grant only

easements their deeds would have said so. The record shows that the claimants’

predecessors in title did not grant mere easements to the railroad while retaining

title to the land underlying the easements. It shows instead that the owners sold

7. We need not discuss whether or to what extent this “center line
presumption” rule still applies to property adjacent to streets and highways in
Florida today. We hold that it has no application in this case.

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their land to the railroad and conveyed to it fee simple title. We therefore find that

the decisions Appellants cite in support of their “strips and gores” argument are

inapplicable to this case.

We answer the second part of the question by holding that no policy of the

State of Florida limits the railroad’s interest in the property regardless of the

language of the deed.

III. Other Factual Considerations

The third part of the certified question asks whether “factual

considerations—such as whether a railroad surveys property, or lays track and

begins to operate trains prior to the conveyance of a deed, limit the railroad’s

interest in the property.” Rogers III, slip op. at 5.

Subsection (1) of the railroad and canal statute quoted above provided as

follows:

Every railroad and canal company shall be empowered:
(1) To cause such examinations and surveys for the proposed
railroad or canal to be made as shall be necessary for the selection of
the most advantageous route, and for such purposes by its officers,
agents and servants to enter upon the lands or water of any person for
that purpose.

Thus the railroad company was authorized to enter upon private land for the

purpose of conducting surveys to determine the best route for the railroad.

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 Appellants seek support in Preseault v. United States, 100 F.3d 1525 (Fed.

Cir. 1996), for the argument that surveying the land and locating the corridor for

the railroad gave the process of purchasing the rights of way an “eminent domain

flavor.” Id. at 1537. The suggestion, based on Preseault, is that the element of

potential coercion from the possibility of condemnation should lead a court to

conclude that the railroad’s resulting interest in the property is only an easement,

assuming an easement is the most the railroad could have obtained by

condemnation. Preseault was grounded on the Court of Appeals’ conclusions

about state law. Id. at 1534. However, where state law does not “treat, as

conveying an easement, rather than a fee, a deed that conveyed all right, title and

interest of the grantor,” the outcome will be different. Burgess v. United States,

109 Fed. Cl. 223, 233 (Fed. Cl. 2013) (citing Lowers v. United States, 663 N.W.2d

408, 410 (Iowa 2003), for its refusal to “[d]etermin[e] the nature of the interest

conveyed by reference to the intended use by the grantee.”).

In Holland v. State, 388 So. 2d 1080 (Fla. 1st DCA 1980), a grantor sold

land to the State for a negotiated price for a highway right of way, conveying fee

simple title by warranty deed in statutory form. The court held that the grantor

could not later claim that the State did not obtain subsurface rights on the ground

that there would have been no necessity for the State to obtain the subsurface rights

in a taking by eminent domain. “The time for appellants to have declined

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voluntary relinquishment of subsurface mineral rights was when the fee simple sale

was bargained and consummated, averting condemnation proceedings in which

appellants might have challenged the public necessity for the taking.” Id. at 1082.

Similarly, the fact that a railroad endowed by the State with the power of eminent

domain might not have been able to show a necessity of taking more than an

easement does not provide a basis for questioning the effect of an unambiguous

deed that was sufficient on its face to convey fee simple title. We therefore

conclude that the fact that the railroad company surveyed property that it did not

own and located a route for its railroad before acquiring title to it did not affect the

nature or quality of the property interest the railroad received under the deeds that

were executed later.

The record shows that the four deeds that conveyed property used for the

northern part of the route were executed before the tracks were laid. Thus the

question about running trains before the conveyance is not involved. The southern

part of the route was relocated in the mid-1920s. Trains were running on the

southern part of the route at the time of the 1927 deed from B.L.E. Realty. The

opinion of the Court of Federal Claims explains the complicated history of the

parcels of land conveyed to Seaboard by the 1927 B.L.E. Realty deed. See

Rogers I, 93 Fed. Cl. at 612-16. There is no need for us to explain the events that

led to the railroad operating on those tracks before it had secured title to the right

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of way. Appellants have not cited any source of statutory or decisional law

applicable in Florida that supports their argument that a deed meeting all the

formal requisites for passing fee simple title is rendered invalid or is limited in its

effect by the fact that the grantee is already occupying the property. When a deed

is unambiguous and sufficient on its face to show the grantor’s intent as to the

property described and the estate conveyed, extrinsic evidence is not admissible to

vary the terms. See, e.g., Fla. Moss Prods. Co. v. City of Leesburg, 112 So. 572

(Fla. 1927); Mason v. Roser, 588 So. 2d 622 (Fla. 1st DCA 1991).

We answer the third part of the certified question by holding that the

factual considerations referred to in the certified question do not limit the railroad’s

interest in the property regardless of the language of the deeds.

CONCLUSION

The certified question is answered in the negative as explained above. We

submit our answer and remand the case to the United States Court of Appeals for

the Federal Circuit.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

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Certified Question of Law from the United States Court of Appeals for the Federal
Circuit - Case Nos. 2013-5098 & 2013-5102

Mark F. (Thor) Hearne, II of Arent Fox, LLP, Clayton, Missouri; Andrew Prince
Brigham of Brigham Property Rights Law Firm, Jacksonville, Florida; Raoul G.
Cantero, III and David P. Draigh of White & Case LLP, Miami, Florida; and James
W. Ely, Jr., Professor Emeritus, Vanderbilt University, Nashville, Tennessee,

for Appellants

John C. Cruden, Assistant Attorney General, and Lane N. McFadden, Appellate
Attorney, United States Department of Justice, Washington, District of Columbia;
and Michael T. Gray, Appellate Attorney, United States Department of Justice,
Jacksonville, Florida,

for Appellee

Major Best Harding, James Harold Thompson, and Robert Neil Clarke, Jr. of
Ausley & McMullen, P.A., Tallahassee, Florida; and Kim Rice Bongiovanni,
Assistant General Counsel, CSX Transportation, Inc., Jacksonville, Florida,

for Amicus Curiae CSX Transportation, Inc.

Robert W. Goldman of Goldman Felcoski & Stone, P.A., Naples, Florida,

for Amicus Curiae The Real Property, Probate & Trust Law Section of The
Florida Bar

Matthew Zane Leopold, General Counsel, Craig Deron Varn, General Counsel,
Ronald Elliot D. Potter, Senior Assistant General Counsel, and Sarah Meyer Doar,
Senior Assistant General Counsel, Florida Department of Environmental
Protection, Tallahassee, Florida,

for Amicus Curiae Board of Trustees of the Internal Improvement Trust
Fund

Kenneth Bradley Bell, Amy Brigham Boulris, and Lauren Vickroy Purdy of
Gunster Yoakley & Stewart, P.A., Tallahassee, Florida,

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 for Amici Curiae Alabama & Gulf Coast Railway, LLC, The Apalachicola
Northern Railway, LLC, The Bay Line Railroad, LLC, The First Coast
Railroad, Inc., The Florida Central Railroad Company, Inc., Florida East
Coast Railway, LLC, The Florida Midland Railroad Company, Inc., The
Florida Northern Railroad Company, Inc., Georgia Southern and Florida
Railway Company, Seminole Gulf Railway, LP, and The Talleyrand
Terminal Railroad Company, Inc.

Alexandra Jennifer Overhoff, Tallahassee, Florida,

for Amicus Curiae Florida Land Title Association

Marc Allen Peoples, Assistant General Counsel, Florida Department of
Transportation, Tallahassee, Florida,

for Amicus Curiae Florida Department of Transportation

Pamela Jo Bondi, Attorney General, Allen C. Winsor, Solicitor General, and
Rachel Erin Nordby, Deputy Solicitor General, Tallahassee, Florida,

for Amicus Curiae State of Florida

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