Rogers v. United States

United States Court of Appeals
for the Federal Circuit
______________________

STEPHEN J. ROGERS, LINDA L. ROGERS,
DONALD E. DURAN, JUDITH DURAN, DENISE
RIZZO, DEBORAH CHILDERS, NATHAN
CHILDERS, CHESHIRE HUNT, MCCANN
HOLDINGS, LTD., MISSION VALLEY GOLF AND
COUNTRY CLUB, INC., PALMER RANCH
HOLDINGS, INC., WYNNSTAY HUNT, INC.,
BEE RIDGE, LLC, CALUSA LAKES COMMUNITY
ASSOCIATION, INC., FLORIDA BROADACRE
TRAILER LODGE, INC., FLORIDA ROCK
CONCRETE, INC., PINE RANCH EAST OWNERS
ASSOCIATION, INC., POST OFFICE PROPERTIES,
PUTLE HOME CORPORATION, SARASOTA
INVESTMENT COMPANY, INC., STONEYBROOK
GOLF & COUNTRY CLUB OF SARASOTA, INC.,
TOURNAMENT PLAYERS CLUB AT PRESTANCIA,
INC., TRINITY CHAPEL OF SARASOTA, INC.,
LOUIS L. ALDERMAN, ALEXANDRINE BOSWELL,
ANN CONVERSE, SUSAN BELTRAN, CATHY C.
SIANO, SANY CHESTNUT, MARK T. ENTWISTLE,
ROSEANN M. ENTWISTLE, CHRISTOPHER H.
HERZONG, TRACY A. HERZOG, J. WATT,
VIRGINIA GRAY SHROYER, ALSIE T. MARTIN, AND
MARY K. MARTIN,
Plaintiffs

AND

COUNTRY CLUB ESTATES COOPERATIVE, INC.,
WILLIAM J. GILL, SARA S. GILL, HANSON PIPE &
PRODUCTS SOUTHEAST, INC., HATCHETT
CREEK CORPORATION, CAROLE A. MADDEN,
2 ROGERS v. US

DAVID J. MARTINI, ROSE MARIE MARTINI, ALAN
H. MORTIMER, LEE MORTIMER, VENICE LAND
COMPANY, AUDREY ROSE ALLEN-WORDELL,
JUDITH BADAMS, BATES SHOW SALES STAFF,
INC., JEAN E. BECHTEL, RICHARD L.
BUONPANE, DONALD CHAPMAN, DARBY SOUTH
BUICK-PONTIAC-GMC, INC., ESTATE LANDS
EXCAVATORS, INC., TRIMBLE B. GAILBREATH,
DIANA J. GAILBREATH, TERRY L. GARNER,
KATHY GARNER, LANNING TIRE SALES, INC.,
CARL E. LONGWELL, MARY ELLEN LONGWELL,
DONALD GREY LOWRY, SAMUEL LUBUS, AS
TRUSTEE OF THE SAMUEL LUBUS REVOCABLE
TRUST AGREEMENT, GLENN LEE MCMURPHY,
SANDRA KAY MCMURPHY, JACK MIDKIFF,
AVONA MIDKIFF, MILFORD ENTERPRISES, INC.,
MARGARET L. MORAN, MARY JO PATTISON, AS
TRUSTEE OF THE MARY JO PATTISON
REVOCABLE TRUST, MARK RICHMOND,
TRUSTEE OF THE MARK RICHMOND
REVOCABLE TRUST, WILLIAM R. SAUTTER, III,
THOMAS H. LEWIS, JR., RICHARD SERINO,
JOYCE SERINO, SPERRY MARKETING GROUP,
INC., JAMES R. STEWART, SHIRLEY A. STEWART,
ROBIN E. STUART, TRUSTEE OF THE
REVOCABLE TRUST, VICTOR D. VIRZI, LEONA
VIRZI, WALGREEN CO., RICHARD M.
WILLIAMSON, PATRICIA WILLIAMSON, DELL
WILLMAN, CAROL J. WILLMAN, SUBURBAN
PROPANE, L.P., BAY PLAZA PROPERTIES, LLC,
CRAMER MOTORS, INC., PUBLIC STORAGE,
SOUTHERN SPRING & STAMPING, INC., TRIPLE
DIAMOND COMMERCIAL PROPERTIES LLC,
VENICE PLAZA LTD., WEST COAST INLAND
NAVIGATION DISTRICT, DEE A. DEATERLY,
KELLY A. GLAUSMAN, WILLIAM BREDA AND
ANGELYN P. BREDA, (ALSO KNOWN AS CFG
PROPERTIES), THOMAS MAYHALL AND
ROGERS v. US 3

KATHY MAYHALL, (ALSO KNOWN AS NEKARO,
LLC), DOUGLASR. MURPHY, JR., SALLY M.
BERRYMAN, SUSAN M. WEST, BIRD BAY
EXECUTIVE GOLF CLUB, FAYE HOWARD,
ROBERT WILLIAMS, KIMAL LUMBER, SEAN
PATRICK HILL, ALFRED ART, BARBARA ART,
JAMES BATTAGLIA, KATHRYN BATTAGLIA,
J. SCOTT BOYKIN, NADENE BOYLE, DALE
BROWN, SCOTT BROWN, MARTIN CROCE,
MELINDA CROCE, MARGARET DEWEY,
DEBORAH FOCHT, TIMOTHY GEORGE, CHARLES
GRIMM, MELINDA GRIMM, ROBERT HARRIS,
BILLIE HARRIS, RAYMOND LANE, BETH LANE,
DONALD LANE, II, KEVIN LYMAN, LLOYD
MEADOR, SANDRA SANZONE, DOROTHY
THOMAS, JENNY TROYER-CURTIS, EDWIN VAN
PELT, SR., JOYCE VAN PELT, ROSS WALKUP,
SUSAN WALKUP, CINDY WATSON, ABSOLUTE
MANAGEMENT ENTERPRISES, INC., P&S
PROPERTIES, INC., PRECISION FABRICATION
CORP., AND SIGNTIST, INC.,
Plaintiffs-Appellants

v.

UNITED STATES,
Defendant-Appellee
______________________

2013-5098, 2013-5102
______________________

Appeals from the United States Court of Federal
Claims in Nos. 07-CV-0273, 07-CV-0426, 08-CV-0198, 10-
CV-0187, 10-CV-0200, Judge Mary Ellen Coster Williams.
______________________

Decided: December 28, 2015
4 ROGERS v. US

______________________

MARK F. HEARNE, II, Arent Fox, LLP, Clayton, MO,
argued for plaintiffs-appellants. Also represented by
LINDSAY S.C. BRINTON, STEPHEN SHARP DAVIS, MEGHAN
SUE LARGENT.

LANE N. MCFADDEN, Environment and Natural Re-
sources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by ROBERT G. DREHER.
______________________

Before MOORE, O’MALLEY, and WALLACH, Circuit Judges.
O’MALLEY, Circuit Judge.
This is a consolidated appeal arising from claims by
Appellants—abutting landowners—that the United
States effected a taking of their property without just
compensation when it converted a former railroad corri-
dor into a recreational trail pursuant to the National
Trails System Act Amendments of 1983 (“Trails Act”). 1
Appellants allege that deeds transferred by their prede-
cessors-in-title to a railroad company granted only ease-
ments on their land for railroad purposes and, upon
termination of the use of the land as a railroad, left the
landowners unencumbered title and possession of their
land. The Court of Federal Claims consolidated the
landowners’ claims into three cases, of which two are on
appeal. Rogers v. United States (Bird Bay), 93 Fed. Cl.
607 (Fed. Cl. 2010), and Rogers v. United States (Rogers
III), 107 Fed. Cl. 387 (Fed. Cl. 2012). The court granted

1 The Rails-to-Trails Act was enacted on March 28,
1983, as part of the National Trails System Act Amend-
ments of 1983. Pub. L. No. 98-11, Title II, 97 Stat. 42, 48
(codified at 16 U.S.C. § 1247(d) (2014)).
ROGERS v. US 5

the government’s motion for partial summary judgment in
both cases, holding that Appellants lacked a property
right or interest in the land-at-issue because Seaboard Air
Line Railway (“Seaboard”), the railroad company, had
obtained fee simple title to the land from Appellants’
predecessors-in-title. Because we agree with the Court of
Federal Claims and find the Florida Supreme Court’s
answer to our certified question to be determinative of the
remaining issues, we affirm.
BACKGROUND
The Surface Transportation Board (“STB”) has exclu-
sive and plenary authority over the construction, opera-
tion, and abandonment of most of the nation’s rail lines.
Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir.
2004). As we have previously explained in other rails-to-
trails cases, a taking, if any, occurs when, pursuant to the
Trails Act, the STB issues a Notice of Interim Trail Use
(“NITU”) to suspend the abandonment of the rail line by a
railroad and preserve it for future active railroad use.
Barclay v. United States, 443 F.3d 1368, 1373 (Fed. Cir.
2006). See 49 C.F.R. § 1152.29(d). The NITU preserves
the STB’s jurisdiction over the corridor, thereby preempt-
ing the application of state law that might otherwise
apply. Caldwell, 391 F.3d at 1229-30. The government
must provide just compensation under the Fifth Amend-
ment Takings Clause if the issuance of a NITU results in
the taking of private property. Whispell Foreign Cars,
Inc. v. United States, 97 Fed. Cl. 324, 330 (Fed. Cl. 2011)
(citing Preseault v. ICC (Preseault I), 494 U.S. 1, 12-16
(1990)). Thus, a private party’s valid interest in the
property-at-issue is a prerequisite to a taking. Wyatt v.
United States, 271 F.3d 1090, 1096 (Fed. Cir. 2001).
The facts relevant to this long overdue decision are set
forth in full in the two trial court opinions on appeal, as
well as in the certification order we sent to the Florida
Supreme Court, as will be explained infra. We refer the
6 ROGERS v. US

reader to those opinions for the full details of the case
leading to this opinion and only include here a brief
summary of the facts.
Seaboard acquired the right to operate a 12.43 mile
long railroad line between the cities of Sarasota and
Venice, Florida, through a series of conveyances with
multiple landowners from 1910 through 1941. Rogers III,
107 Fed. Cl. at 390. Specifically:
In a series of four deeds (the Blackburn, Phillips,
Frazer, and Knight deeds), property owners con-
veyed their interests in the northern corridor of
the rail way to Seaboard in September 1910.
Those deeds appear, on their face, to unambigu-
ously convey a fee simple interest to Seaboard.
After receiving these deeds, Seaboard laid track
and began to operate trains along the entire corri-
dor as of November 1911. At this time, Seaboard
had not received any deed corresponding to the
southern portion of the rail corridor, but still op-
erated trains along the entire corridor.
In 1926–27, Seaboard relocated the southern por-
tion of its rail corridor a quarter mile to the east.
On April 1, 1927, trains began to run along the re-
located rail corridor. Then, on April 4, 1927, Sea-
board 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 corri-
dor.[n.2] Seaboard continued to operate trains
along the entirety of the rail corridor.
[N.2] Seaboard also received a deed from
the Venice-Nokomis Holding Corporation
on November 10, 1941 that purported to
transfer the same property that BLE
ROGERS v. US 7

transferred to Seaboard in the 1927 BLE
deed.
Certification Order, Rogers v. United States, No. 2013-
5098, -5102, slip. op. at 5-7 (Fed. Cir. July 21, 2014).
Thus, with respect to the northern corridor of the rail-
road, the four, largely identical, deeds-at-issue are the
Blackburn Deed, the Phillips Deed, the Frazer Deed, and
the Knight Deed. The southern corridor, which presently
abuts property owned by Appellant Bird Bay Executive
Golf Club (“Bird Bay”), has a more convoluted history
involving numerous transactions. The parties agree,
however, that the interpretation of only two deeds—the
1927 BLE Deed and the 1941 Venice-Nokomis Deed—are
dispositive of whether Bird Bay has a claim to the land-
at-issue. Bird Bay, 93 Fed. Cl. at 618, 619 n.13.
On December 15, 2003, due to decreased industrial
activity in the area, the current operator of the railroad
corridor, Seminole Gulf Railway, L.P. (“SGLR”), peti-
tioned the STB to abandon the railroad corridor. On April
2, 2004, the STB issued an NITU invoking § 1247(d) of
the Trails Act. Pursuant to the order, SGLR and CSX
Corporation, the successors and assigns of Seaboard,
granted the Trust for Public Land—a national, nonprofit
land conservation organization—the right to convert the
railroad corridor into a recreational trail.
Over 100 landowners filed suits alleging that the con-
version of the railroad corridor to a public trail under the
Trails Act resulted in a compensable taking of their
property interests in the railroad corridor. As explained
in our Certification Order to the Florida Supreme Court:
The Court of Federal Claims consolidated all
claims into three separate actions, resulting in
three separate opinions. Two of those opinions,
Rogers v. United States (“Bird Bay”), 93 Fed. Cl.
607 (2010) and Rogers v. United States (“Rogers”),
107 Fed. Cl. 387 (2012), are at issue in the present
8 ROGERS v. US

appeal. In both cases, the plaintiffs asserted that
they retained a compensable interest in the prop-
erty because Florida law limits a railroad’s ability
to hold an interest in property used for a rail cor-
ridor. The government argued that the plain lan-
guage of the deeds conveyed a fee simple interest
to the railroad, and that neither the Florida Su-
preme Court nor the Florida legislature has ex-
pressed a policy preventing a railroad from
receiving title in fee simple, regardless of the uses
for which the property is conveyed or the circum-
stances surrounding the execution of the deed.
In Bird Bay, the Court of Federal Claims found
that the 1927 BLE deed for the southern portion
of the railroad corridor conveyed a fee simple in-
terest to Seaboard. In Rogers, the Court of Feder-
al Claims similarly held that the 1910 Blackburn,
Phillips, Frazer, and Knight deeds conveyed a fee
simple interest to Seaboard for the northern por-
tion of the railroad corridor. The Court of Federal
Claims concluded, accordingly, that those plain-
tiffs—the present Appellants—had no compensa-
ble property interest for which they could be
entitled to compensation upon its taking.
Certification Order, slip. op. at 7-8. 2 Appellants filed
timely notices of appeal. We have jurisdiction over this
consolidated appeal under 28 U.S.C. § 1295(a)(3).

2 A third decision, Rogers v. United States, 90 Fed.
Cl. 418 (Fed. Cl. 2009), has not been appealed. Although
we referred to Rogers v. United States, 107 Fed. Cl. 38
(Fed. Cl. 2012), as “Rogers” in our Certification Order, the
parties refer to that case as Rogers III and, instead, refer
to Rogers v. United States, 90 Fed. Cl. 418 (Fed. Cl. 2009)
as “Rogers I.” To avoid confusion and maintain consisten-
ROGERS v. US 9

DISCUSSION
The sole question on appeal is whether the Appel-
lants—the plaintiffs from the Bird Bay and the Rogers III
actions—hold any interest in the land within the subject
rail corridor. The parties agree that the answer to that
question turns on whether Seaboard acquired fee simple
title to the land-at-issue through conveyances from Appel-
lants’ predecessors-in-title. See Bird Bay, 93 Fed. Cl. at
617 (“For Plaintiff Bird Bay, the first issue—whether the
railroad obtained an easement or a fee simple estate—is
dispositive.”).
The Federal Circuit reviews a decision of the Court of
Federal Claims granting summary judgment de novo.
Ladd v. United States, 713 F.3d 648, 651 (Fed. Cir. 2013).
Rule 56(a) of the Rules of the United States Court of
Federal Claims (“RCFC”) states that 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.” Ladd, 713 F.3d
at 651 (quoting RCFC 56).
We consider whether the United States has made a
compensable taking under the Fifth Amendment as a
question of law. Huntleigh USA Corp. v. United States,
525 F.3d 1370, 1377 (Fed. Cir. 2008). We analyze the
property rights of the parties in a rails-to-trails case
under the relevant state law. Preseault v. United States
(Preseault II), 100 F.3d 1525, 1543 (Fed. Cir. 1996) (en
banc). Under Florida law, interpretation of instruments
like contracts and deeds is generally a question of law.
Peacock Constr. Co. v. Modern Air Conditioning, Inc., 353
So. 2d 840, 842 (Fla. 1977). See also Nourachi v. United

cy with the parties, we refer to Rogers v. United States,
107 Fed. Cl. 38 (Fed. Cl. 2012) in this opinion as Rogers
III.
10 ROGERS v. US

States, 632 F. Supp. 2d 1101, 1110 (M.D. Fla. 2009)
(under Florida law, “[t]he interpretation of a deed, includ-
ing the legal description of the boundaries set forth in the
deed, is a question of law for the Court to resolve”). The
Federal Circuit gives no deference to legal conclusions
made by the Court of Federal Claims regarding either
federal or state law. Barclay, 443 F.3d at 1372-73; Hash
v. United States, 403 F.3d 1308, 1312 (Fed. Cir. 2005).
Upon a review of the record and the parties’ briefs, we
find no error in the Court of Federal Claim’s thorough
parsing of the language of the four deeds-at-issue govern-
ing the northern segments of the railroad corridor (Black-
burn, Phillips, Frazer, and Knight) or the two deeds-at-
issue governing the southern segment of the corridor
(1927 BLE and 1941 Venice-Nokomis). With respect to
the northern segments, the court reviewed the text of the
Blackburn, Frazer, Phillips, and Knight deeds, and held
that “[t]he language could not be clearer—the property
owners were conveying all of their interest” in the rail
corridor they transferred to Seaboard. Rogers III, 107
Fed. Cl. at 395-96. The court noted that the deeds make
no reference to an easement or right-of-way (referring
instead to a “strip of land”), contain no reversionary
clauses, and “unambiguously indicate” that these convey-
ances “intended to grant fee simple title to Seaboard”
through their granting clauses. Id. at 395-97. Although
it recognized that the Knight Deed, unlike the other
three, has a provision stating that the deed would become
“null [and] void” if the railroad were not built within five
years from the execution of the deed, it properly held that
this proviso meant only the conveyance was a fee simple
determinable and did not thereby transform an otherwise
unambiguous transfer of fee simple title into an ease-
ment. Id. at 398.
As for the southern segment of the railroad corridor,
the court also properly determined that BLE held title to
both the railroad corridor (through August 31, 1926 deeds
ROGERS v. US 11

from Potter and Honore Palmer) and the lands abutting
the corridor (through an October 6, 1925 deed from Dr.
Fred Albee) when it executed the BLE Deed to Seaboard
in 1927. See Bird Bay, 93 Fed. Cl. at 618. Because BLE
held the land-at-issue in fee simple in 1927, a point not in
dispute, and the 1927 BLE Deed transferred “all of its
right, title and interest” in “a strip of land” to Seaboard,
the court properly determined that the deed appears
unambiguously to convey fee simple title. Id. Although
Appellants argue that a subsequent foreclosure proceed-
ing against BLE in 1934 extinguished any interest Sea-
board obtained through the 1927 BLE Deed, we find no
error in the court’s rejection of this argument on the
grounds that the railroad corridor was not part of the
lands foreclosed. Id. at 620. And we further agree that,
even if it were, the 1941 Venice-Nokomis Deed, which was
conveyed by the company that foreclosed on BLE’s re-
maining property in 1934, appears on its face to grant the
exact same railroad corridor “real estate” back to Sea-
board “in fee simple forever.” Id. at 621. We agree that,
even if the 1941 Venice-Nokomis Deed was redundant, it
was not a legal nullity because quitclaim deeds may be
used to put a doubtful claim to rest. Id. at 622.
Despite our conclusions as to what the deeds appear
to convey on their face, the question remained as to
whether there is any reason under Florida law why a
railroad cannot hold fee simple title to land deeded to it
by a private party generally or on the facts of this case.
The parties hotly contest this point on appeal.
Appellants rely heavily on Preseault II for the proposi-
tion that a railroad that acquires a right-of-way for its
railway track only acquires the estate necessary for the
purposes of operating a railway—that is, typically an
easement—and that the act of survey and location before
the conveyance is the operative determinant of the type of
transfer effected by the deed. Appellants argue that,
although Vermont law guided Preseault II, Florida law is
12 ROGERS v. US

consistent with Vermont law in that it, too, restricts a
railroad’s eminent domain power by statute. Appellants
also contend that Seaboard only acquired an easement
and not fee simple because railroads can only use railway
land received by voluntary grant “for purposes of such
grant only.” Rev. Gen. Fla. Stat. § 4354 (1920). 3 Accord-
ing to Appellants, Seaboard received the right-of-way land
by voluntary grant because the consideration it ex-
changed for the deeds was nominal.
Appellants further argue that the Court of Federal
Claims’ findings violate the common law “strips and gore”
doctrine, which it asserts was adopted in Florida by
implication and incorporation. See Seaboard Air Line
Rwy. v. Southern Inv. Co., 44 So. 351 (Fla. 1907) (“the
proprietor of lots abutting on a public street is presumed,
in the absence of evidence to the contrary, to own soil to
the center of the street”) (internal quotation marks and
citations omitted); see also Florida Southern Ry. Co. v.
Brown, 1 So. 512, 513 (Fla. 1887). According to Appel-
lants, this doctrine creates a presumption that owners of
parcels of land that are bounded by adjacent public road-
ways or railways own all the land to the center of the
strip, rather than to just the edge of the strip.
In light of a dearth of Florida case law interpreting
the property rights of railroad companies, we decided to
avail ourselves of Florida’s certification procedure to refer
these issues to the Florida Supreme Court. Fla. Const.
Art. V § 3(b)(6); Fla. Stat. § 25.031; Fla. R. App. P.
9.150(a) (permitting a U.S. court of appeals to certify
questions to the Supreme Court of Florida “if the answer

3 Fla. Stat. § 2241 (1892) (recodified at Fla. Stat.
§ 4354 (1920); Fla. Stat. § 6316 (1927); Fla. Stat. § 360.01
(1941)). Section 360.01, the last recodification of the
statute, was repealed in 1982. See ch. 81-318, § 2, eff.
Oct. 1, 1982, Laws of Fla.
ROGERS v. US 13

is determinative of the cause and there is no controlling
precedent of the Supreme Court of Florida”). This deci-
sion was not solely on our own initiative:
Although, [in Bird Bay,] the Court of Federal
Claims rejected the plaintiffs’ argument that Sea-
board’s status as a railroad prevented it from
holding title in fee simple under Florida law, it
lamented its inability to certify the question to the
Florida Supreme Court. Bird Bay, 93 Fed. Cl. at
618 n.11, 622-24. In an earlier takings case under
the Trails Act applying Florida law, the Court of
Federal Claims also found that the Florida Su-
preme Court had not yet addressed when and how
a private party could convey property to a railroad
in fee simple, and similarly expressed a desire to
seek resolution of that question directly from the
Florida Supreme Court. Whispell Foreign Cars,
Inc. v. United States, 97 Fed. Cl. 324, 331-34 & n.6
(2011).
Certification Order, slip. op. at 8. We also note that
Appellants also raised this option in their Reply Brief.
Appellants Reply Br. 26-28 (“should there be uncertainty
about the meaning of § 4354 or the common law as ap-
plied by the Florida Supreme Court . . . , this Court
should certify this issue to the Florida Supreme Court”).
Our Certification Order posed the following question of
law to be answered by the Florida Supreme Court:
Assuming that a deed, on its face, conveys a strip
of land in fee simple from a private party to a rail-
road corporation in exchange for stated considera-
tion, 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 sur-
veys property, or lays track and begins to operate
trains prior to the conveyance of a deed—limit the
14 ROGERS v. US

railroad’s interest in the property, regardless of
the language of the deed?[n.1]
[N.1] While the Appellants dispute wheth-
er the deeds appear on their face to trans-
fer a fee simple interest in the properties
at issue, like the Court of Federal Claims
before us, we conclude that they do.
Certification Order, slip. op. at 8. The Supreme Court of
Florida acknowledged receipt of our certification on July
29, 2014, and on November 5, 2015, issued its answer in a
thorough opinion addressing the relevant state law,
policy, and factual considerations. The Supreme Court
parsed our question into three questions:
(1) Does section 2241, Revised Statutes of Florida
(1892), limit the railroad’s interest in the proper-
ty, 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, re-
gardless of the language of the deeds?
Rogers v. United States, No. SC14-1465, 2015 Fla. LEXIS
2477, *7 (Fla. Nov. 5, 2015). It answered all three in the
negative. Id.
On the first question, the Florida Supreme Court
examined the relevant statutes, particularly Section 4354
of the Revised General Statutes of Florida (1920), and
Florida case law on interpreting deeds. The Supreme
Court held that, contrary to Appellants’ argument, sub-
section (2) of the statute regarding “voluntary grants of
real estate” does not apply to this case because a “volun-
ROGERS v. US 15

tary conveyance” is one made without valuable considera-
tion, and the deeds-at-issue were conveyed for valuable
consideration. Rogers, 2015 Fla. LEXIS 2477, at *18. It
further quoted Saltzman v. Ahern for the well-established
rule that, “[i]f there is no ambiguity in the language
employed then the intention of the grantor must be ascer-
tained from that language.” 306 So. 3d 537, 539 (Fla. 1st
DCA 1975). It concluded from its analysis that Florida
statutes do not limit Seaboard’s interest in the property-
at-issue.
On the second question, the Florida Supreme Court
found that Appellants’ argument that rights-of-way
obtained by eminent domain can only be easements does
not apply because the lands in question were conveyed by
bargain and sale, not eminent domain. The court also
rejected Appellants’ argument that the nominal consider-
ation exchanged for the land-at-issue indicates the gran-
tors’ intent to convey less than fee simple title because
Florida law does not consider the amount of consideration
to be a basis for questioning the validity of a deed. Final-
ly, the court explicitly stated that it did not need to de-
termine whether and to what extent the “strips and gores”
doctrine applies in Florida today because the presumption
created by that doctrine “does not apply if[, as here,] a
contrary intention is made clear by the language of the
deed.” Rogers, 2015 Fla. LEXIS 2477, at *29. Thus, the
court held that “no policy of the State of Florida limits the
railroad’s interest in the property regardless of the lan-
guage of the deed.” Id. at *30. 4

4 Of note, we also find it is unnecessary to consider
the Appellants’ argument that the trial court’s decision
was contrary to the common law “strips and gores” doc-
trine because Appellants waived the argument by raising
it for the first time on appeal before this court. Fresenius
16 ROGERS v. US

Finally, on the third question, the Florida Supreme
Court found unpersuasive Appellants’ argument, relying
on Preseault II, 100 F.3d at 153, that a railroad that
surveys the land and locates the corridor prior to purchas-
ing the land-at-issue thereby obtains only an easement.
The court held that, because Appellants have not shown
that, in Florida, a deed for passing fee simple title is
limited by the fact that the grantee already occupies the
property, “factual considerations [in this case] do not limit
the railroad’s interest in the property regardless of the
language of the deeds.” Rogers, 2015 Fla. LEXIS 2477, at
*34. The Florida Supreme Court then remanded the case
back to this court.
Appellants were the ones to suggest that we certify
the question to the Florida Supreme Court if there is any
doubt as to Florida law. Appellants Reply Br. 26-28. The
Florida Supreme Court has now answered, and we find its
opinion to have removed all doubt as to the correct result
in this case. Its opinion confirms that, under Florida
state law, a railroad can acquire either an easement or fee
simple title to a railroad right-of-way and that no statute,
state policy, or factual considerations prevails over the
language of the deeds when the language is clear. As
explained supra, the language of the six deeds-at-issue
clearly convey fee simple title to Seaboard on their face.
CONCLUSION
Without further ado, we affirm.
AFFIRMED

USA, Inc. v. Baxter Int’l, Inc., 582 F.3d 1288, 1295 (Fed.
Cir. 2009).