Phipps v. United States

In the United States Court of Federal Claims
No. 14-424L
Filed: April 26, 2016

* * * * * * * * * * * * * * * * ** *
RICHARD K. PHIPPS, et al., *
*
Plaintiffs, *
* Trails Act; Takings Claims; Cross-
v. * Motions for Partial Summary
* Judgment.
UNITED STATES, *
*
Defendant. *
* * * * * * * * * * * * * * * * ** *

Elizabeth A. Gepford McCulley, Steward, Wald & McCulley LLC, Kansas City,
Missouri, for plaintiffs. With her were Thomas S. Stewart, Steward, Wald & McCulley
LLC, and J. Robert Sears, Baker Sterchi Cowden & Rice, LLC, St. Louis, Missouri.

Cullen Shearburn, Trial Attorney, Environment & Natural Resources Division,
Natural Resources Section, Department of Justice, Washington, D.C., for defendant. With
him was John C. Cruden, Assistant Attorney General, Environment & Natural Resources
Division, Department of Justice, Washington, D.C.

OPINION

HORN, J.

FINDINGS OF FACT

Plaintiffs are landowners in the town of Farragut, Iowa, who allege that they are
entitled to receive just compensation under the Fifth Amendment to the United States
Constitution because the United States government effected a taking of their reversionary
property interests by operation of the National Trails System Act, 16 U.S.C. § 1241, et.
seq. (2012) (the Trails Act). Plaintiffs remaining in the case1 include David and Paula
Brownlee, Monte Jay Moyer, Rita Foster, Thomas A. Ingram and Amanda Hinds, Jerry
Lee Nicholas, Jeremy T. and Jennifer L. McAllister, Virginia Farm Company, James and

1 As the above-captioned case progressed through discovery, a number of plaintiffs
included in the original complaint filed a motion of voluntarily dismissal from the above-
captioned case, which the court granted. These plaintiffs include Robert L. Nicholas
(Claim 3), Randall Ray and Melanie Ann Reafleng (Claim 6), Kimberley D. Doyle (Claim
7), Steven D. and Glenda K. Powers (Claims 10.A and 10.B), Marilyn A. Phipps (Claim
13.A), and William Shaw Trust (Claim 17). Additionally, one of the two claims involving
plaintiff Richard K. Phipps was dismissed (Claim 13.C).
Gloria Dalrymple, Richard K., Roger and Lisa Phipps, C.S. Johnson Family Limited
Partnership, Dorothy Walter Trust, and Timothy and Shawna Dreyer.

The Burlington Northern Santa Fe Railway Company (BNSF) previously operated
a railroad that extended, in part, for approximately six miles between milepost 20.05
outside of Shenandoah, Iowa to milepost 26.0 outside of Farragut, Iowa. This 5.95-mile
railroad corridor is at the center of the dispute in the above-captioned case. Plaintiffs
allege that they each owned property adjoining the railroad corridor on which the railroad
operated between milepost 20.05 and milepost 26.0, and that BNSF owned an easement
for railroad purposes that laid across the property owned by plaintiffs. Plaintiffs allege that
BNSF’s easement for railroad purposes was extinguished when railroad operations on
the railroad corridor ceased, and, as a result, plaintiffs’ right to possess the land
unencumbered by the easement should have reverted back to them. Plaintiffs further
allege that defendant’s actions under the Trails Act prevented such a reversion.
Defendant challenges the adjacency of certain of these parcels to the railroad corridor
and argues that BNSF actually held certain portions of the railroad corridor in fee simple,
rather than as a mere easement. With regard to the remaining parcels at issue, however,
the government concedes that these parcels adjoined portions of the railroad corridor
over which BNSF held only easements for railroad purposes. Defendant states that it
does not object to the entry of partial summary judgment finding it liable for takings with
regard to these parcels, but argues that the takings were limited to easements for the
preservation of rail service.

In February 2012, BNSF intended to abandon the 5.95-mile railroad corridor at
issue and sought abandonment authorization from the United States Surface
Transportation Board (STB). On February 21, 2012, BNSF submitted a Petition for
Exemption to the STB seeking to exempt “BNSF’s abandonment of a 5.95-mile rail line
located in Page and Fremont Counties, Iowa” from “the prior approval requirements of 49
U.S.C. § 10903.” In its petition, BNSF explained that “BNSF owns a 5.95-mile rail line
between Shenandoah and Farragut in Page and Fremont Counties, Iowa,” and that BNSF
intended to “exercise the abandonment authority and convert the portion of the Line
between Milepost 20.05 and Milepost 21.90 to industry track and sell the industry track”
to the only customer on the line. BNSF proposed “to abandon its rail line located between
Milepost 20.05 in Shenandoah and Milepost 26.0 in Farragut, in Page and Fremont
Counties, Iowa.” BNSF further stated that there “has been no overhead traffic on the Line
for many years and no local traffic on the portion of the Line between Milepost 21.90 and
Milepost 26.0 since at least 2007.” In its petition, BNSF also asserted that “[t]he City of
Farragut has expressed an interest in railbanking the remainder of the Line within its city
limits.” BNSF asserted in its petition that the rail line “does not contain federally granted
rights of way.”

In response to a public notice of the proposed abandonment, on March 14, 2012,
the Iowa Natural Heritage Foundation (INHF) filed a request to the STB for the “issuance
of a Public Use Condition as well as a Certificate or Notice of Interim Trail Use rather than
an outright abandonment authorization between milepost 20.05 in Shenandoah and
milepost 26.0 in Farragut.” BNSF responded to the INHF’s request and agreed “to
negotiate with INHF for interim trail use/rail banking” as to the segment of the rail line
2
between mileposts 21.90 and 26.0. Thereafter, pursuant to its powers under the Trails
Act, the STB issued a Notice of Interim Trail Use (NITU) on June 8, 2012 granting BNSF’s
request for an exemption, “subject to public use, trail use, environmental, and standard
employee protective conditions.” According to submissions from the parties, BSNF and
the INHF have not completed negotiations on a trail use agreement, and the STB has
extended the negotiation period to May 18, 2016. Continued negotiations for a trail use
agreement, however, do not impact the parties’ cross-motions presently before the court.

Plaintiffs David and Paula Brownlee allege that they owned fee title to land parcel
number 420420013000000, including the portion of the property that extends to the
centerline of the allegedly abandoned railroad right-of-way, when the alleged taking
occurred. Plaintiffs David and Paula Brownlee’s claim is identified as Claim 1 in this case.

Plaintiff Monte Jay Moyer alleges that he owned fee title to land parcel number
420420014000000, including the portion of the property that extends to the centerline of
the allegedly abandoned railroad right-of-way, when the alleged taking occurred. Plaintiff
Monte Jay Moyer’s claim is identified as Claim 2 in this case.

Plaintiff Rita Foster alleges that she owned fee title to land parcel number
420420106000000, including the portion of the property that extends to the centerline of
the allegedly abandoned railroad right-of-way, when the alleged taking occurred. Plaintiff
Rita Foster’s claim is identified as Claim 4 in this case.

Plaintiffs Thomas A. Ingram and Amanda Hinds allege that they owned fee title to
land parcel number 420420107000000, including the portion of the property that extends
to the centerline of the allegedly abandoned railroad right-of-way, when the alleged taking
occurred. Plaintiffs Ingram and Hinds’ claim is identified as Claim 5 in this case.

Plaintiff Jerry Lee Nicholas alleges that he owned fee title to land parcel number
420420185000000, including the portion of the property that extends to the centerline of
the allegedly abandoned railroad right-of-way, when the alleged taking occurred. Plaintiff
Nicholas’ claim is identified as Claim 8 in this case.

Plaintiffs Jeremy T. and Jennifer L. McAllister allege that they owned fee title to
land parcel number 420420184000000, including the portion of the property that extends
to the centerline of the allegedly abandoned right-of-way, when the taking occurred.
Plaintiffs Jeremy T. and Jennifer L. McAllister’s claim is identified as Claim 9 in this case.

Separate from the aforementioned plaintiffs, the parties do not dispute that certain,
additional plaintiffs, including Virginia Farm Company (Claim 11),2 James and Gloria

2 Plaintiff Virginia Farm Company owned fee title to land parcel number
050050100000000 at the time of the alleged taking.

3
Dalrymple (Claim 12),3 Richard K., Roger and Lisa Phipps (Claim 13.B),4 C.S. Johnson
Family Limited Partnership (Claim 14),5 Dorothy Walter Trust (Clam 15),6 and Timothy
and Shawna Dreyer (Claims 16.A and 16.B),7 owned fee title to land parcels adjacent to
the railroad corridor at the time of the alleged taking, June 8, 2012. The parties also do
not dispute that, according to the original source deed, BNSF’s predecessor-in-interest
was conveyed an easement only for railroad purposes over the land parcels owned by
these plaintiffs.

In contrast, the parties dispute whether the parcels owned by plaintiffs Monte Jay
Moyer, Rita Foster, Thomas A. Ingram and Amanda Hinds, Jerry Lee Nicholas, and
Jeremy T. and Jennifer L. McAllister, Claims 2, 4, 5, 8, and 9, respectively, adjoined the
railroad corridor, such that, upon the cessation of the alleged easement for railroad
purposes, the railroad corridor land would pass to the owners of these adjoining parcels
pursuant to Iowa Code § 327G.77.8 Defendant argues that these land parcels were

3 Plaintiffs James and Gloria Dalrymple owned fee title to land parcel number
050050119000000 at the time of the alleged taking.
4 Plaintiff Richard K. Phipps owned a life estate in land parcel number 050050071000000,
including the property that extends to the centerline of the allegedly abandoned railroad
right-of-way, when the alleged taking occurred. Plaintiffs Roger and Lisa Phipps owned
the remainder interest in the same land parcel when the alleged taking occurred.
5Plaintiff C.S. Johnson Family Limited Partnership owned fee title to land parcel number
050050067000000 at the time of the alleged taking.
6Plaintiff Dorothy Walter Trust owned fee title to land parcel number 050050083000000
at the time of the alleged taking.
7 Plaintiffs Timothy and Shawna Dreyer owned fee title to land parcel numbers
040040108000000 and 04004093000000 at the time of the alleged taking.
8The version of Iowa Code § 327G.77 which appears to have been in place at the time
of the alleged takings in the above-captioned case, which is the same as the present
version, states:

1. If a railroad easement is extinguished under section 327G.76, the
property shall pass to the owners of the adjacent property at the time of
abandonment. If there are different owners on either side, each owner will
take to the center of the right-of-way. Section 614.24 which requires the
filing of a verified claim does not apply to rights granted under this
subsection.

2. An adjoining property owner may perfect title under subsection 1 by filing
an affidavit of ownership with the county recorder. The affidavit shall include
the name of the adjoining property owner, a description of the property, the
present name of the railroad, the jurisdiction, docket number, and date of
4
separated from the railroad corridor by intervening roads and did not adjoin the railroad
corridor. Specifically at issue are two roads in the town of Farragut, Iowa: Foote Street
and Cox Street.9 The parties disagree about whether Foote Street and Cox Street are
owned in fee by the town of Farragut, separating the railroad corridor from the plaintiffs’
land parcels, and, thereby, severing any alleged interests of plaintiffs in the railroad
corridor.

With regard to Foote Street, the parties agree that Foote Street was depicted on
the original plat map of the town of Farragut, which was incorporated in 1871. The original
plat map shows Foote Street as adjacent to the land parcels that presently comprise
Claims 1, 2, 4, and 5 and separating these land parcels from the railroad corridor. The
parties agree that, subsequent to the original plat map, some portions of Foote Street
have been vacated. The parties also agree that the current tax assessor’s map of Farragut
labels at least some of these vacated portions with the term “vac.” The parties do not
dispute that the portion of Foote Street adjacent to Claim 1, which is labelled “vac.” on the
tax assessor’s map, was formally vacated by the town of Farragut. The warranty deed for
Claim 1, dated September 26, 2006, grants plaintiffs David and Paula Brownlee fee
simple to “Lots 16 and 17, and all that part of Foote Street lying adjacent to and abutting
Lot 17, in the Town of Farragut, Fremont County, Iowa, according to the recorded Plat
thereof.” Thus, it is undisputed that Claim 1 includes a portion of Foote Street and runs
adjacent to a segment of the railroad corridor.

Whether the portions of Foote Street that are adjacent to the land parcels
comprising Claims 2, 4, and 5, which are not labelled “vac.” on the tax assessor’s map,
have been formally vacated or abandoned, however, remains in dispute between the
parties. Plaintiffs submitted photographs of the portions of Foote Street that are adjacent
to Claims 2, 4, and 5 as evidence that these portions of Foote Street have been
abandoned by the town of Farragut. The photographs depict a grass-covered area
between these plaintiffs’ land parcels and the railroad tracks, with no indication of the
existence of a road. Unlike for Claim 1, the deeds owned by plaintiffs Monte Jay Moyer,
Rita Foster, Thomas A. Ingram and Amanda Hinds for Claims 2, 4, and 5, respectively,
do not indicate that their land parcels include any part of Foote Street. The deed for Claim
2, dated March 1, 2013, conveys to plaintiff Moyer “Lots Seventy-five (75), Seventy-six
(76), and Seventy-seven (77) in the town of Farragut, Fremont County, Iowa.” The current
tax assessor’s map of the town of Farragut depicts Lots 75, 76, and 77 as adjacent to,
but not including, Foote Street. Claims 4 and 5 are comprised of separate portions of Lot

order authorizing the railroad to terminate service, and the approximate date
the track materials on the right-of-way were removed. A copy of the affidavit
must be mailed by the landowner by certified mail to the railroad. The
landowner shall pay taxes on the right-of-way from the date the affidavit is
filed.

Iowa Code § 327G.77 (2011).
9The parties refer to this second road interchangeably as “Cox Avenue” and “Cox Street.”
The court refers to this road as Cox Street.
5
583 in the town of Farragut. The deed for Claim 4, dated July 13, 1994, conveys to plaintiff
Foster:

That part of Lot 583 in the Town of Farragut, Fremont County, Iowa,
described as: commencing at a point 75 Feet West of the Northeast corner
of said Lot 583, thence South parallel with the West line of said Lot to the
South line thereof, thence Southwesterly on the South line of Lot 583 to the
Southwest Corner of said Lot, thence North 150.80 Feet to the Northwest
Corner of Lot 583, thence East 65 Feet to the place of beginning, said tract
being also described in the chain of title as the West Half of Lot 583 in the
Town of Farragut, Iowa, according to the recorded plat thereof.

The deed for Claim 5, dated September 21, 2010, conveys to plaintiffs Ingram and Hinds:
“510 Washington, Farragut, IA 51639[.] The East 75 feet of Lot 583 in the City of Farragut,
Fremont County, Iowa.” The current tax assessor’s map of the town of Farragut depicts
Lot 583 as adjacent to, but not including, Foote Street.

With regard to Cox Street, the parties dispute whether Claims 8 and 9 adjoin the
railroad corridor or whether Cox Street intervenes between these land parcels and the
railroad corridor. The land parcels comprising Claims 8 and 9 are portions of Lot 13 in the
plat map of U.D. Coy’s First Addition to the Town of Farragut, which was recorded in
1872.10 Neither Cox Street, nor any sort of road between Lot 13 and the railroad corridor,
is depicted in the U.D. Coy’s First Addition to the Town of Farragut plat map. Instead, the
map shows a rectangular Lot 13 with an unlabeled triangular parcel immediately to its
south, and then a long corridor labeled “Rail Road” directly south of this triangular parcel.
By contrast, the current tax assessor’s map of Farragut depicts Lot 13 (with notations
apparently showing that it has been subdivided into several smaller parcels) as a
trapezoid with three of its sides apparently in the same location as in the 1872 U.D. Coy’s
First Addition to the Town of Farragut plat map, but with at least a portion of the previously
unlabeled triangular parcel to its south now incorporated into Lot 13. Additionally, the
current tax assessor’s map depicts a strip of land between the south edge of Lot 13 and
the railroad corridor, which defendant alleges is the town of Farragut-owned Cox Street.
This strip of land is not labeled or otherwise identified, and the map is not helpful in
indicating who owns the strip of land. The parties do not dispute that photographs of the
area, provided by plaintiffs, portray that a gravel road identified as Cox Street exists in

10 Although not part of the original plat map of the town of Farragut, the area of land
comprising U.D. Coy’s First Addition currently falls within the incorporated boundaries of
the town. A plat map of U.D. Coy’s First Addition was submitted as an attachment to
plaintiffs’ reply brief in support of plaintiffs’ motion for partial summary judgment. The map
is titled “Plat of Coy’s Addition to Farragut” and states that it was “Filed for Record May
the 14th 1872.” The deeds for Claims 8 and 9 refer to this map as depicting “U.D. Coy’s
First addition to the Town of Farragut Iowa” and “UD Coy’s First Addition to the town of
Farragut,” respectively, and the defendant similarly describes “U.D. Coy’s First Addition.”
Plaintiffs, in their reply brief, erroneously describe the map as depicting “U.D. Coy’s First
Edition to Farragut.” The court refers to the document as the plat map of U.D. Coy’s First
Addition to the Town of Farragut.
6
this location between the railroad corridor and Claims 8 and 9. The parties also do not
dispute that the legal descriptions recited in plaintiffs’ ownership deeds for Claims 8 and
9 extend to the northern boundary of the railroad corridor, thus, including the land over
which Cox Street runs. Plaintiff Nicholas’ quit claim deed for Claim 8, dated February 18,
2000, describes his land parcel, as follows:

Commencing at a point on the West line of said Lot 13 a distance of 175
feet South of the Northwest corner thereof, thence East paralleling the North
line of said Lot 13 to the East line of said Lot and South down to the right-
of-way of the C.B. & Q. Railroad Company, thence Southwesterly along the
North line of said railroad right-of-way to its intersection with the West line
of said Lot 13 and North upon the West line of said Lot 90 feet to the point
of beginning.

Jeremy T. and Jennifer L. McAllister’s deed for Claim 9, dated July 28, 2004, describes
their land parcel, as follows:

The West Half (W1/2) of the South 75 feet of the North 175 feet of Lot 13 in
UD Coy’s First Addition to the town of Farragut, Fremont County, Iowa,
according to the recorded plat thereof AND

The East Half (E1/2) of the South 75 feet of the North 175 feet of Lot 13 in
UD Coy’s First Addition to the town of Farragut, Fremont County, Iowa,
according to the recorded plat thereof.

In addition to Cox Street, the current tax assessor’s map of the town of Farragut
depicts what defendant alleges, and plaintiffs dispute, is an additional parcel between
Cox Street and the railroad corridor. The parcel appears to have been separated out from
the northern-most quarter of the portion of the railroad corridor south of Claims 8 and 9
and is labelled “Pt. 16-07-253-002.” Defendant refers to this possibly independent parcel
as the “.002” Parcel. To the south of the .002 Parcel in the tax assessor’s map is the
railroad corridor, which is labelled “B.N. 002 501 R.R.” The current tax assessor’s map is
the only evidence in the record suggesting the existence of a separate .002 Parcel.

In addition, the parties dispute whether the original deed for the portion of the
railroad corridor that the parties agree is adjacent to the parcel held by David and Paula
Brownlee, Claim 1, and the portion that plaintiffs allege is adjacent to the parcels held by
plaintiffs Monte Jay Moyer, Rita Foster, and Thomas Ingram and Amanda Hinds, Claims
2, 4, and 5, respectively, conveyed an easement or fee to BNSF’s predecessor-in-
interest. In 1894, the following conveyance deed, recorded at Book C, page 544 (the
C/544 deed), conveyed these portions of the railroad corridor to BNSF’s predecessor-in-
interest:

In consideration of the payment of one Dollar I, John N. Dennison Trustee
of Boston __ by C. E. Perkins of Burlington Iowa my attorney in __ hereby
sell and convey to the Burlington and Missouri River Railroad Company the
following described Real Estate in Fremont County Iowa to wit:

7
 Commencing at the intersection of the center line of the main track of the
Red Oak and Nebraska City Branch of the Burlington and Missouri River
Railroad as now located and built and the north line of the southwest quarter
of section seven (7) township sixty eight (68) North Range forty (40) west
of the fifth (5th) principal meridian. Thence east to a point in said north line
of fifty (50) feet distant at right angle from said center line. Thence
southwesterly parallel to said center line and fifty (50) feet distant therefrom
to the west line of section seven (7). Thence north to a point on said west
line fifty (50) feet distant at right angles from said center line and on the
northside thereof. Thence northwesterly parallel to said center line and fifty
(50) feet distant therefrom eight hundred and seventy nine and six tenths
(879 6/10) feet. Thence north one hundred and twelve and fife [sic]
hundredths (112 5/11 [sic]) feet. Thence northeasterly parallel to said center
line and one hundred and fifty (150) feet distant therefrom nine hundred and
sixty three and six tenth (963 6/10) feet. Thence south one hundred and
twelve and five hundredths (112 5/100) feet. Thence northeasterly parallel
to said center line and fifty (50) feet distant therefrom to the said north line
of the southwest quarter of section seven (7). Thence east along said north
line to the place of beginning. Being the Depot grounds and Right of Way
at the town of Farragut as shown on the recorded files of said town. And I
warrant the title thereto against the lawful claims of all persons
whomsoever. Claiming by __ under __. Witness my hand this 2nd day of
March A.D. 1894[.]

Plaintiffs filed a complaint and an amended complaint in this court. In their
amended complaint, the remaining plaintiffs allege that, absent the operation of the Trails
Act, plaintiffs would have the exclusive right to physical ownership, possession and use
of their property, free from any recreational trail use or future railroad. Plaintiffs further
allege that, by operation of the Trails Act, defendant took plaintiffs’ property without just
compensation in violation of the Fifth Amendment to the United States Constitution. The
parties have conducted discovery, reviewed the claims book documentation, and
engaged in information exchanges with each other. Subsequently, both parties submitted
cross-motions for partial summary judgment. The government submitted proposed
findings of uncontroverted fact along with its cross-motion, to which plaintiffs did not
initially respond. At oral argument, defendant argued, for the first time, that there is a
genuine dispute of material fact with regard to Claims 8 and 9 based on the existence of
the .002 Parcel, such that a finding of summary judgment on those claims, for either
plaintiffs or defendant, would not be appropriate at this time. Briefing on the issue
regarding Claims 8 and 9 concluded on April 8, 2016.

Also following oral argument, on March 23, 2016, based on representations made
by the parties, the court issued an Order requiring plaintiffs to state whether they agreed
or disagreed with the accuracy of defendant’s proposed findings of uncontroverted fact
and the exhibits attached thereto, in particular the original plat map of the town of Farragut
and the current tax assessor’s maps of the properties at issue. Plaintiffs’ response stated
that they agreed that the original plat map of the town of Farragut was, in fact, what
defendant purported it to be. Plaintiffs agreed that, as to the current tax assessor’s map
8
provided by defendant, “the original plat is overlayed with the current assessor’s map,”
but denied that the tax assessor’s map accurately depicted the current map of the town
of Farragut on the grounds that “the assessor’s map outlining parcels of land are [sic] not
to be legally relied upon for legal descriptions.”11 The court’s Order also required
defendant to specifically state whether it agreed to the accuracy of three exhibits attached
to plaintiffs’ briefs: the pictures of Foote Street, the pictures of Cox Street, and the U.D.
Coy’s First Addition to the Town of Farragut plat map. Defendant’s response to the court’s
Order stated that defendant did not contest the authenticity of plaintiffs’ three exhibits, the
pictures of Foote Street, the pictures of Cox Street, and the U.D. Coy’s First Addition to
the Town of Farragut plat map, but argued that the exhibits should not be considered as
competent evidence because they fail to prove any facts of consequence to the case and,
thus, lack relevancy.

DISCUSSION

The parties have filed cross-motions for partial summary judgment pursuant to
Rule 56 of the Rules of the Court of Federal Claims (RCFC) (2015). RCFC 56 is similar
to Rule 56 of the Federal Rules of Civil Procedure in language and effect. Both rules
provide that “[t]he court shall grant summary judgment 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); Fed. R. Civ. P. 56(a) (2016); see also Young v. United Parcel
Serv., Inc., 135 S. Ct. 1338 (2015); Alabama v. North Carolina, 560 U.S. 330, 344 (2010);
Hunt v. Cromartie, 526 U.S. 541, 549 (1999); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Biery v.
United States, 753 F.3d 1279, 1286 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir.
2014); Ladd v. United States, 713 F.3d 648, 651 (Fed. Cir. 2013); Minkin v. Gibbons,
P.C., 680 F.3d 1341, 1349 (Fed. Cir. 2012); Noah Sys., Inc. v. Intuit Inc., 675 F.3d 1302,
1309-10 (Fed. Cir. 2012); Advanced Fiber Techs. (AFT) Trust v. J & L Fiber Servs., Inc.,
674 F.3d 1365, 1372 (Fed. Cir.), reh’g and reh’g en banc denied (Fed. Cir. 2012); Fujitsu
Ltd. v. Netgear Inc., 620 F.3d 1321, 1325 (Fed. Cir.), reh’g denied (Fed. Cir. 2010);
Consol. Coal Co. v. United States, 615 F.3d 1378, 1380 (Fed. Cir.), reh’g and reh’g en
banc denied (Fed. Cir. 2010), cert. denied, 131 S. Ct. 2990 (2011); 1st Home Liquidating
Trust v. United States, 581 F.3d 1350, 1355 (Fed. Cir. 2009); Arko Exec. Servs., Inc. v.
United States, 553 F.3d 1375, 1378 (Fed. Cir. 2009); Casitas Mun. Water Dist. v. United
States, 543 F.3d 1276, 1283 (Fed. Cir. 2008), reh’g and reh’g en banc denied, 556 F.3d
1329 (Fed. Cir. 2009); Moden v. United States, 404 F.3d 1335, 1342 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2005); Am. Pelagic Fishing Co., L.P. v. United States,
379 F.3d 1363, 1370-71 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2004), cert. denied,
545 U.S. 1139 (2005); Mata v. United States, 114 Fed. Cl. 736, 744 (2014); Leggitte v.
United States, 104 Fed. Cl. 315, 317 (2012); Arranaga v. United States, 103 Fed. Cl. 465,

11Plaintiffs also denied that another map of the town of Farragut that was included with
defendant’s proposed findings, and which plaintiffs allege was created by the defendant,
accurately depicts the town of Farragut. The court does not rely on this allegedly
defendant-created map in this opinion.
9
467-68 (2012); Cohen v. United States, 100 Fed. Cl. 461, 469 (2011); Boensel v. United
States, 99 Fed. Cl. 607, 610 (2011).

A fact is material if it will make a difference in the result of a case under the
governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see also Marriott
Int’l Resorts, L.P. v. United States, 586 F.3d 962, 968 (Fed. Cir. 2009) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. at 248); Mata v. United States, 114 Fed. Cl. at 744;
Arranaga v. United States, 103 Fed. Cl. at 467-68; Thompson v. United States, 101 Fed.
Cl. 416, 426 (2011); Cohen v. United States, 100 Fed. Cl. at 469. Irrelevant or
unnecessary factual disputes do not preclude the entry of summary judgment. See
Anderson v. Liberty Lobby, Inc., 477 U.S. at 247-48; see also Scott v. Harris, 550 U.S.
372, 380 (2007); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d 1253, 1257 (Fed. Cir.
2001); Gorski v. United States, 104 Fed. Cl. 605, 609 (2012); Walker v. United States, 79
Fed. Cl. 685, 692 (2008); Curtis v. United States, 144 Ct. Cl. 194, 199, 168 F. Supp. 213,
216 (1958), cert. denied, 361 U.S. 843 (1959), reh’g denied, 361 U.S. 941 (1960).

When reaching a summary judgment determination, the judge’s function is not to
weigh the evidence and determine the truth of the case presented, but to determine
whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.
at 249; see, e.g., Schlup v. Delo, 513 U.S. 298, 332 (1995); Ford Motor Co. v. United
States, 157 F.3d 849, 854 (Fed. Cir. 1998) (“Due to the nature of the proceeding, courts
do not make findings of fact on summary judgment.”); TigerSwan, Inc. v. United States,
118 Fed. Cl. 447, 451 (2014); Dana R. Hodges Trust v. United States, 111 Fed. Cl. 452,
455 (2013); Cohen v. United States, 100 Fed. Cl. at 469-70; Boensel v. United States, 99
Fed. Cl. at 611; Macy Elevator, Inc. v. United States, 97 Fed. Cl. 708, 717 (2011); Dick
Pacific/GHEMM, JV ex rel. W.A. Botting Co. v. United States, 87 Fed. Cl. 113, 126 (2009);
Johnson v. United States, 49 Fed. Cl. 648, 651 (2001), aff’d, 52 F. App’x 507 (Fed. Cir.
2002), published at 317 F.3d 1331 (Fed. Cir. 2003). The judge must determine whether
the evidence presents a disagreement sufficient to require submission to fact finding, or
whether the issues presented are so one-sided that one party must prevail as a matter of
law. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-52; Jay v. Sec’y of Dep’t of
Health and Human Servs., 998 F.2d 979, 982 (Fed. Cir.), reh’g denied and en banc
suggestion declined (Fed. Cir. 1993); Leggitte v. United States, 104 Fed. Cl. at 316. When
the record could not lead a rational trier of fact to find for the nonmoving party, there is no
genuine issue for trial, and the motion must be granted. See, e.g., Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Advanced Fiber Techs. (AFT) Trust
v. J & L Fiber Servs., Inc., 674 F.3d at 1372; Marriott Int’l Resorts, L.P. v. United States,
586 F.3d at 968; Am. Seating Co. v. USSC Grp., Inc., 514 F.3d 1262, 1266 (Fed. Cir.),
reh’g en banc denied (Fed. Cir. 2008); Rothe Dev. Corp. v. U.S. Dep’t of Def., 262 F.3d
1306, 1316 (Fed. Cir. 2001); Hall v. Aqua Queen Mfg., Inc., 93 F.3d 1548, 1553 n.3 (Fed.
Cir. 1996). In such cases, there is no need for the parties to undertake the time and
expense of a trial, and the moving party should prevail without further proceedings.

In appropriate cases, summary judgment:

saves the expense and time of a full trial when it is unnecessary. When the
material facts are adequately developed in the motion papers, a full trial is
10
 useless. “Useless” in this context means that more evidence than is already
available in connection with the motion for summary judgment could not
reasonably be expected to change the result.

Dehne v. United States, 23 Cl. Ct. 606, 614-15 (1991) (quoting Pure Gold, Inc. v. Syntex,
(U.S.A.) Inc., 739 F.2d 624, 626 (Fed. Cir. 1984)), vacated on other grounds, 970 F.2d
890 (Fed. Cir. 1992) (citation omitted); see also Vivid Techs., Inc. v. Am. Sci. & Eng'g,
Inc., 200 F.3d 795, 806 (Fed. Cir. 1999) (“The purpose of summary judgment is not to
deprive a litigant of a trial, but to avoid an unnecessary trial when only one outcome can
ensue.”); Metric Constr. Co., Inc. v. United States, 73 Fed. Cl. 611, 612 (2006).

Summary judgment, however, will not be granted if “the dispute about a material
fact is ‘genuine,’ that is, if the evidence is such that a reasonable [trier of fact] could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; see
also Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234, 1244 (Fed. Cir.), reh’g
and reh’g en banc denied (Fed. Cir. 2007), cert. denied, 555 U.S. 812 (2008); Eli Lilly &
Co. v. Barr Labs., Inc., 251 F.3d 955, 971 (Fed. Cir.), reh’g and reh’g en banc denied
(Fed. Cir. 2001), cert. denied, 534 U.S. 1109 (2002); Gen. Elec. Co. v. Nintendo Co., 179
F.3d 1350, 1353 (Fed. Cir. 1999); TigerSwan, Inc. v. United States, 118 Fed. Cl. at 451;
Stephan v. United States, 117 Fed. Cl. 68, 70 (2014); Gonzales-McCaulley Inv. Group,
Inc. v. United States, 101 Fed. Cl. 623, 629 (2011). In other words, if the nonmoving party
produces sufficient evidence to raise a question as to the outcome of the case, then the
motion for summary judgment should be denied. Any doubt over factual issues must be
resolved in favor of the party opposing summary judgment, to whom the benefit of all
presumptions and inferences runs. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Yant v. United
States, 588 F.3d 1369, 1371 (Fed. Cir. 2009), cert. denied, 131 S. Ct. 69 (2010);
Dethmers Mfg. Co. v. Automatic Equip. Mfg. Co., 272 F.3d 1365, 1369 (Fed. Cir. 2001),
reh’g and reh’g en banc denied, 293 F.3d 1364 (Fed. Cir. 2002), cert. denied, 539 U.S.
957 (2003); Monon Corp. v. Stoughton Trailers, Inc., 239 F.3d at 1257; Wanlass v.
Fedders Corp., 145 F.3d 1461, 1463 (Fed. Cir.), reh’g denied and en banc suggestion
declined (Fed. Cir. 1998); see also Am. Pelagic Co. v. United States, 379 F.3d at 1371
(citing Helifix Ltd. v. Blok-Lok, Ltd., 208 F.3d 1339, 1345-46 (Fed. Cir. 2000)); Dana R.
Hodges Trust v. United States, 111 Fed. Cl. at 455; Boensel v. United States, 99 Fed. Cl.
at 611 (“‘The evidence of the nonmovant is to be believed, and all justifiable inferences
are to be drawn in his favor.’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 255)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587-88; Casitas
Mun. Water Dist. v. United States, 543 F.3d at 1283; Lathan Co. Inc. v. United States, 20
Cl. Ct. 122, 125 (1990))); see also Am. Seating Co. v. USSC Grp., Inc., 514 F.3d at 1266-
67; Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807. “However, once a moving
party satisfies its initial burden, mere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. at 247-48.

The initial burden on the party moving for summary judgment to produce evidence
showing the absence of a genuine issue of material fact may be discharged if the moving
11
party can demonstrate that there is an absence of evidence to support the nonmoving
party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); see also Riley &
Ephriam Constr. Co. v. United States, 408 F.3d 1369, 1371 (Fed. Cir. 2005); Crown
Operations Int’l Ltd. v. Solutia Inc., 289 F.3d 1367, 1377 (Fed. Cir.), reh’g denied (Fed.
Cir. 2002); Trilogy Commc’ns, Inc. v. Times Fiber Commc’ns, Inc., 109 F.3d 739, 741
(Fed. Cir.) (quoting Conroy v. Reebok Int’l, Ltd., 14 F.3d 1570, 1575 (Fed. Cir. 1994),
reh’g denied and en banc suggestion declined (Fed. Cir. 1995)), reh’g denied and en
banc suggestion declined (Fed. Cir. 1997); Lockwood v. Am. Airlines, Inc., 107 F.3d 1565,
1569 (Fed. Cir. 1997); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807; RQ
Squared, LLC v. United States, No. 12-527C, 2015 WL 170230, at *6 (Fed. Cl. Jan. 14,
2015). If the moving party makes such a showing, the burden shifts to the nonmoving
party to demonstrate that a genuine dispute regarding a material fact exists by presenting
evidence which establishes the existence of an element essential to its case upon which
it bears the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. at 322; see also
Wavetronix LLC v. EIS Elec. Integrated Sys., 573 F.3d 1343, 1354 (Fed. Cir. 2009); Long
Island Sav. Bank, FSB v. United States, 503 F.3d at 1244; Florida Power & Light Co. v.
United States, 375 F.3d 1119, 1124 (Fed. Cir. 2004); Schoell v. Regal Marine Indus., Inc.,
247 F.3d 1202, 1207 (Fed. Cir. 2001); Am. Airlines, Inc. v. United States, 204 F.3d 1103,
1108 (Fed. Cir. 2000); Vivid Techs., Inc. v. Am. Sci. & Eng'g, Inc., 200 F.3d at 807;
Rasmuson v. United States, 109 Fed. Cl. 267, 271 (2013). However, “a non-movant is
required to provide opposing evidence under Rule 56(e) only if the moving party has
provided evidence sufficient, if unopposed, to prevail as a matter of law.” Saab Cars USA,
Inc. v. United States, 434 F.3d 1359, 1369 (Fed. Cir. 2006).

Even if both parties argue in favor of summary judgment and allege an absence of
genuine issues of material fact, the court is not relieved of its responsibility to determine
the appropriateness of summary disposition in a particular case, and it does not follow
that summary judgment should be granted to one side or the other. See Prineville Sawmill
Co. v. United States, 859 F.2d 905, 911 (Fed. Cir. 1988) (citing Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)); see also Marriott Int’l Resorts,
L.P. v. United States, 586 F.3d 962, 968–69 (Fed. Cir. 2009); B.F. Goodrich Co. v. U.S.
Filter Corp., 245 F.3d 587, 593 (6th Cir. 2001); Atl. Richfield Co. v. Farm Credit Bank of
Wichita, 226 F.3d 1138, 1148 (10th Cir. 2000); Chevron USA, Inc. v. Cayetano, 224 F.3d
1030, 1037 n.5 (9th Cir. 2000), cert. denied, 532 U.S. 942 (2001); Bubble Room, Inc. v.
United States, 159 F.3d 553, 561 (Fed. Cir. 1998) (“The fact that both the parties have
moved for summary judgment does not mean that the court must grant summary
judgment to one party or the other.”), reh’g denied and en banc suggestion declined (Fed.
Cir. 1999); Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d 1, 2 (1st Cir. 1998); Massey
v. Del Labs., Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997); LewRon Television, Inc. v. D.H.
Overmyer Leasing Co., 401 F.2d 689, 692 (4th Cir. 1968), cert. denied, 393 U.S. 1083
(1969); Rogers v. United States, 90 Fed. Cl. 418, 427 (2009), subsequent determination,
93 Fed. Cl. 607 (2010); Consol. Coal Co. v. United States, 86 Fed. Cl. 384, 387 (2009),
aff’d, 615 F.3d 1378, (Fed. Cir.), and reh’g and reh’g en banc denied (Fed. Cir. 2010),
cert. denied, 131 S. Ct. 2990 (2011); St. Christopher Assocs., L.P. v. United States, 75
Fed. Cl. 1, 8 (2006), aff’d, 511 F.3d 1376 (Fed. Cir. 2008); Reading & Bates Corp. v.
United States, 40 Fed. Cl. 737, 748 (1998). The court must evaluate each party’s motion
on its own merits, taking care to draw all reasonable inferences against the party whose
12
motion is under consideration, or, otherwise stated, in favor of the non-moving party. See
First Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir.), reh’g and reh’g
en banc denied (Fed. Cir. 2003); see also DeMarini Sports, Inc. v. Worth, Inc., 239 F.3d
1314, 1322 (Fed. Cir. 2001); Gart v. Logitech, Inc., 254 F.3d 1334, 1338–39 (Fed. Cir.),
reh’g and reh’g en banc denied (Fed. Cir. 2001), cert. denied, 534 U.S. 1114 (2002);
Oswalt v. United States, 85 Fed. Cl. 153, 158 (2008); Telenor Satellite Servs., Inc. v.
United States, 71 Fed. Cl. 114, 119 (2006).

Cross-motions are no more than a claim by each party that it alone is entitled to
summary judgment. The making of such inherently contradictory claims, however, does
not establish that if one is rejected the other necessarily is justified. See B.F. Goodrich
Co. v. United States Filter Corp., 245 F.3d at 593; Atl. Richfield Co. v. Farm Credit Bank
of Wichita, 226 F.3d at 1148; Allstate Ins. Co. v. Occidental Int’l, Inc., 140 F.3d at 2;
Rogers v. United States, 90 Fed. Cl. at 427; Reading & Bates Corp. v. United States, 40
Fed. Cl. at 748.

“Questions of law are particularly appropriate for summary judgment.” Oenga v.
United States, 91 Fed. Cl. 629, 634 (2010) (citing Dana Corp. v. United States, 174 F.3d
1344, 1347 (Fed. Cir. 1999) (“Summary judgment was appropriate here [in Dana Corp.]
because no material facts were disputed, many being stipulated, and the only disputed
issues were issues of law. Moreover, on each issue one party or the other is entitled to
judgment as a matter of law.”)); see also Santa Fe Pac. R.R. v. United States, 294 F.3d
1336, 1340 (Fed. Cir. 2002) (“Issues of statutory interpretation and other matters of law
may be decided on motion for summary judgment.”).

In the present case, plaintiffs allege that defendant effected a taking under the Fifth
Amendment to the United States Constitution through operation of the Trails Act. The
Takings Clause of the Fifth Amendment to the United States Constitution provides in
pertinent part: “nor shall private property be taken for public use without just
compensation.” U.S. Const. amend. V. The purpose of this Fifth Amendment provision is
to prevent the government from “‘forcing some people alone to bear public burdens which,
in all fairness and justice, should be borne by the public as a whole.’” Palazzolo v. Rhode
Island, 533 U.S. 606, 618 (2001) (quoting Armstrong v. United States, 364 U.S. 40, 49
(1960)), abrogated on other grounds by Lingle v. Chevron U.S.A. Inc., 544 U.S. 528
(2005), recognized by Hageland Aviation Servs., Inc. v. Harms, 210 P.3d 444 (Alaska
2009); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-24, reh’g
denied, 439 U.S. 883 (1978); Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536 (2005); E.
Enters. v. Apfel, 524 U.S. 498, 522 (1998); Rose Acre Farm, Inc. v. United States, 559
F.3d 1260, 1266 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2009), cert. denied, 130 S.
Ct. 1501 (2010); Janowsky v. United States, 133 F.3d 888, 892 (Fed. Cir. 1998); Res.
Invs., Inc. v. United States, 85 Fed. Cl. 447, 469-70 (2009); Pumpelly v. Green Bay &
Miss. Canal Co., 80 U.S. (13 Wall.) 166, 179 (1871) (citing to principles which establish
that “private property may be taken for public uses when public necessity or utility
requires” and that there is a “clear principle of natural equity that the individual whose
property is thus sacrificed must be indemnified”).

13
 Therefore, “a claim for just compensation under the Takings Clause must be
brought to the Court of Federal Claims in the first instance, unless Congress has
withdrawn the Tucker Act grant of jurisdiction in the relevant statute.” E. Enters. v. Apfel,
524 U.S. at 520 (citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-19 (1984));
see also Acceptance Ins. Cos. v. United States, 503 F.3d 1328, 1336 (Fed. Cir. 2007);
Morris v. United States, 392 F.3d 1372, 1375 (Fed. Cir. 2004) (“Absent an express
statutory grant of jurisdiction to the contrary, the Tucker Act provides the Court of Federal
Claims exclusive jurisdiction over takings claims for amounts greater than $10,000.”). The
United States Supreme Court has declared: “If there is a taking, the claim is ‘founded
upon the Constitution’ and within the jurisdiction of the [United States Court of Federal
Claims] to hear and determine.” Preseault v. Interstate Commerce Comm’n, 494 U.S. 1,
12 (1990) (Preseault I) (quoting United States v. Causby, 328 U.S. 256, 267 (1946)); see
also Lion Raisins, Inc. v. United States, 416 F.3d 1356, 1368 (Fed. Cir. 2005); Narramore
v. United States, 960 F.2d 1048, 1052 (Fed. Cir. 1992); Perry v. United States, 28 Fed.
Cl. 82, 84 (1993).

To succeed under the Fifth Amendment Takings Clause, a plaintiff must show that
the government took a private property interest for public use without just compensation.
See Adams v. United States, 391 F.3d 1212, 1218 (Fed. Cir. 2004), cert. denied, 546
U.S. 811 (2005); Arbelaez v. United States, 94 Fed. Cl. 753, 762 (2010); Gahagan v.
United States, 72 Fed. Cl. 157, 162 (2006). “The issue of whether a taking has occurred
is a question of law based on factual underpinnings.” Huntleigh USA Corp. v. United
States, 525 F.3d 1370, 1377-78 (Fed. Cir.), cert. denied, 555 U.S. 1045 (2008). The
government must be operating in its sovereign rather than in its proprietary capacity when
it initiates a taking. See St. Christopher Assocs., L.P. v. United States, 511 F.3d 1376,
1385 (Fed. Cir. 2008).

The United States Court of Appeals for the Federal Circuit has established a two-
part test to determine whether government actions amount to a taking of private property
under the Fifth Amendment. See Klamath Irr. Dist. v. United States, 635 F.3d 505, 511
(Fed. Cir. 2011); Am. Pelagic Fishing Co. v. United States, 379 F.3d 1363, 1372 (Fed.
Cir.) (citing M & J Coal Co. v. United States, 47 F.3d 1148, 1153-54 (Fed. Cir.), cert.
denied, 516 U.S. 808 (1995)), reh’g denied (Fed. Cir. 2004), cert. denied, 545 U.S. 1139
(2005). A court first determines whether a plaintiff possesses a cognizable property
interest in the subject of the alleged takings. Then, the court must determine whether the
government action is a “‘compensable taking of that property interest.’” Huntleigh USA
Corp v. United States, 525 F.3d at 1377 (quoting Am. Pelagic Fishing Co., L.P. v. United
States, 379 F.3d at 1372).

To establish a taking, a plaintiff must have a legally cognizable property interest,
such as the right of possession, use, or disposal of the property. See Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982) (citing United States v.
Gen. Motors Corp., 323 U.S. 373 (1945)); CRV Enters., Inc. v. United States, 626 F.3d
1241, 1249 (Fed. Cir. 2010), cert. denied, 563 U.S. 989 (2011); Karuk Tribe of Cal. v.
Ammon, 209 F.3d 1366, 1374-75 (Fed. Cir.), reh’g denied and en banc suggestion denied
(Fed. Cir. 2000), cert. denied, 532 U.S. 941 (2001). “‘It is axiomatic that only persons with
a valid property interest at the time of the taking are entitled to compensation.’” Am.
14
Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (quoting Wyatt v. United States,
271 F.3d 1090, 1096 (Fed. Cir. 2001), cert. denied, 353 U.S. 1077 (2002) and citing Cavin
v. United States, 956 F.2d 1131, 1134 (Fed. Cir. 1992)). Therefore, “[i]f the claimant fails
to demonstrate the existence of a legally cognizable property interest, the courts [sic] task
is at an end.” Am. Pelagic Fishing Co. v. United States, 379 F.3d at 1372 (citing Maritrans
Inc. v. United States, 342 F.3d 1344, 1352 (Fed. Cir. 2003) and M & J Coal Co. v. United
States, 47 F.3d at 1154). The court does not address the second step “without first
identifying a cognizable property interest.” Air Pegasus of D.C., Inc. v. United States, 424
F.3d 1206, 1213 (Fed. Cir.) (citing Am. Pelagic Fishing Co. v. United States, 379 F.3d at
1381 and Conti v. United States, 291 F.3d 1334, 1340 (Fed. Cir.), reh’g en banc denied
(Fed. Cir. 2002), cert. denied, 537 U.S. 1112 (2003)), reh’g denied and reh’g en banc
denied (Fed. Cir. 2005). Only if there is to be a next step, “‘after having identified a valid
property interest, the court must determine whether the governmental action at issue
amounted to a compensable taking of that property interest.’” Huntleigh USA Corp. v.
United States, 525 F.3d at 1378 (quoting Am. Pelagic Fishing Co. v. United States, 379
F.3d at 1372).

The STB has authority to regulate most railroad lines in the United States. See 49
U.S.C. § 702 (2012). A railroad seeking to abandon any part of its railroad line must either
(1) file an application to abandon or (2) file a notice of exemption to abandon the line. See
49 U.S.C. § 10903 (2012); see also 49 C.F.R. § 1152.50 (2016). “If the STB approves a
standard abandonment application or grants an exemption and the railroad ceases
operation, the STB relinquishes jurisdiction over the abandoned railroad right-of-way and
state law reversionary property interests, if any, take effect.” Caldwell v. United States,
391 F.3d 1226, 1228-29 (Fed. Cir. 2004) (citing Preseault I, 494 U.S. at 6-8), reh’g en
banc denied (Fed. Cir.), cert. denied, 546 U.S. 826 (2005).

“The Trails Act is designed to preserve railroad rights-of-way by converting them
into recreational trails.” Bywaters v. United States, 670 F.3d 1221, 1225 (Fed. Cir. 2012).
By operation of the Trails Act, the STB may issue a NITU, “suspending exemption
proceedings for 180 days to allow a third party to enter into an agreement with the railroad
to use the right-of-way as a recreational trail.” Barclay v. United States, 443 F.3d 1368,
1371 (Fed. Cir.), reh’g en banc denied (Fed. Cir. 2006), cert. denied, 846 U.S. 1209
(2007). Section 8(d) of the Trails Act, codified at 16 U.S.C. § 1247(d), “allows a railroad
to negotiate with a state, municipal, or private group (‘the trail operator’) to assume
financial responsibility for operating the railroad right of way as a recreational trail.” See
Bright v. United States, 603 F.3d 1273, 1275 (Fed. Cir.) (citing Caldwell v. United States,
391 F.3d at 1229), reh’g and reh’g en banc denied (Fed. Cir. 2010). If the railroad and an
authorized trail provider12 reach an agreement, the NITU extends indefinitely, and the
corridor is railbanked, with interim trail use permitted. See 49 C.F.R. § 1152.29(d)(1)-(2)
(2016) (“The NITU will indicate that interim trail use is subject to future restoration of rail

12 The Trails Act indicates that a trail provider may be “a State, political subdivision, or
qualified private organization [that] is prepared to assume full responsibility for
management of such rights-of-way and for any legal liability arising out of such transfer
or use, and for the payment of any and all taxes that may be levied or assessed against
such rights-of-way.” 16 U.S.C. § 1247(d).
15
service . . . . Additionally, the NITU will provide that if the sponsor intends to terminate
interim trail use on all or any portion of the right-of-way covered by the interim trail use
agreement, it must send the [STB] a copy of the NITU and request that it be vacated on
a specific date.”); see also Biery v. United States, 753 F.3d 1279, 1285 (Fed. Cir. 2014)
(“If the railroad and the [Surface Transportation] 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.” (citing Citizens Against
Rails–to–Trails v. Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir. 2001))); Caldwell
v. United States, 57 Fed. Cl. 193, 194 (2003) (“The term railbanking refers to the
‘preservation of railroad corridor for future rail use,’ while making the corridor available for
other activities.” (quoting Neb. Trails Council v. Surface Transp. Bd., 120 F.3d 901, 903
n.1 (8th Cir. 1997))), aff’d, 391 F.3d 1226 (Fed. Cir. 2004), reh’g en banc denied (Fed.
Cir.), cert. denied, 546 U.S. 826 (2005). When the NITU extends indefinitely and the
corridor is railbanked, the STB retains jurisdiction and abandonment of the railroad
corridor is blocked. See 16 U.S.C. § 1247(d) (“[I]n the case of interim use of any
established railroad rights-of-way pursuant to donation, transfer, lease, sale, or otherwise
in a manner consistent with this chapter, if such interim use is subject to restoration or
reconstruction for railroad purposes, such interim use shall not be treated, for purposes
of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad
purposes.”); see also Rasmuson v. United States, 807 F.3d 1343, 1344 (Fed. Cir. 2015)
(“NITUs ‘preserve established railroad rights-of-way for future reactivation of rail service’
and permit the railroad operator to cease operation without legally abandoning any ‘rights-
of-way for railroad purposes.’” (quoting 16 U.S.C. § 1247(d))).

As described by the United States Court of Appeals for the Federal Circuit:

Thus, section 8(d) of the Trails Act prevents the operation of state laws that
would otherwise come into effect upon abandonment-property laws that
would “result in extinguishment of easements for railroad purposes and
reversion of rights of way to abutting landowners.” Rail Abandonments-Use
of Rights-of-Way as Trails, Ex Parte No. 274 (Sub-No. 13), 2 I.C.C. 2d 591,
1986 WL 68617 (1986). A Fifth Amendment taking occurs if the original
easement granted to the railroad under state property law is not broad
enough to encompass a recreational trail. See Preseault II, 100 F.3d at
1552; see also Toews [v. United States], 376 F.3d at 1376.

Caldwell v. United States, 391 F.3d at 1229; see also Rogers v. United States, 814 F.3d
1299, 1303 (Fed. Cir. 2015) (“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.” (citing Barclay v. United States, 443 F.3d at
1373)).

The Federal Circuit has established a three-part inquiry to determine takings
liability in cases involving the conversion of railroad rights of way to a recreational trail by
means of 16 U.S.C. § 1247(d) of the Trails Act, as follows:

16
 (1) who owned the strips of land involved, specifically did the Railroad . . .
acquire only easements, or did it obtain fee simple estates; (2) if the
Railroad acquired only easements, were the terms of the easements limited
to use for railroad purposes, or did they include future use as public
recreational trails; and (3) even if the grants of the Railroad's easements
were broad enough to encompass recreational trails, had these easements
terminated prior to the alleged taking so that the property owners at that
time held fee simples unencumbered by the easements.

Preseault v. United States, 100 F.3d 1525, 1533 (Fed. Cir. 1996) (Preseault II). Phrased
differently, the Federal Circuit has also indicated:

the determinative issues for takings liability are (1) who owns the strip of
land involved, specifically, whether the railroad acquired only an easement
or obtained a fee simple estate; (2) if the railroad acquired only an
easement, were the terms of the easement limited to use for railroad
purposes, or did they include future use as a public recreational trail (scope
of the easement); and (3) even if the grant of the railroad's easement was
broad enough to encompass a recreational trail, had this easement
terminated prior to the alleged taking so that the property owner at the time
held a fee simple unencumbered by the easement (abandonment of the
easement).

Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 2009) (citing
Preseault II, 100 F.3d at 1533).

According to the United States Court of Appeals for the Federal Circuit, “[i]t is
settled law that a Fifth Amendment taking occurs in Rails-to-Trails cases when
government action destroys state-defined property rights by converting a railway
easement to a recreational trail, if trail use is outside the scope of the original railway
easement.” Ladd v. United States, 630 F.3d 1015, 1019 (Fed. Cir. 2010), reh’g and reh’g
en banc denied, 646 F.3d 910 (Fed. Cir. 2011); see also Ellamae Phillips Co. v. United
States, 564 F.3d at 1373. “It is the law-created right to own private property, recognized
and enforced by the Constitution, legislation, and common law, that gives the owner an
historically rooted expectation of compensation.” Preseault II, 100 F.3d at 1540. The
Federal Circuit in Preseault II also indicated “that power includes the power to preempt
state-created property rights, including the rights to possession of property when railroad
easements terminate. As Justice O'Connor succinctly pointed out in her concurring
opinion in Preseault I, however, having and exercising the power of preemption is one
thing; being free of the Constitutional obligation to pay just compensation for the state-
created rights thus destroyed is another.” Id. at 1537 (citing Preseault I, 494 U.S. at 22).

To determine the nature of the property interest at issue, the court looks to state
law. The United States Court of Appeals for the Federal Circuit, interpreting a takings
claim for a railroad right of way, stated that, “state law generally creates the property
interest in a railroad right-of-way.” Barclay v. United States, 443 F.3d at 1374 (citing
Preseault I, 494 U.S. at 8, 16). In a footnote on the same page, the court repeated, “[i]n
17
Toews v. United States, 376 F.3d 1371 (Fed. Cir. 2004), we reiterated that state law
controls the basic issue of whether trail use is beyond the scope of the right-of-way.”
Barclay v. United States, 443 F.3d at 1374 n.4. “The nature of the interest conveyed is
determined according to the law of the state where the conveyance occurred. ‘State law
creates and defines the scope of the reversionary or other real property interests affected
by the ICC’s [Interstate Commerce Commission] action pursuant to Section 208 of the
National Trails System Act Amendments of 1983, 16 U.S.C. §1247(d).’” Chevy Chase
Land Co. of Montgomery Cnty. v. United States, 37 Fed. Cl. 545, 565 (1997) (quoting
Preseault I, 494 U.S. at 20 (O’Connor, J., concurring) (citing Ruckelshaus v. Monsanto
Co., 467 U.S. at 1001)), aff’d, 230 F.3d 1375 (Fed. Cir. 1999), reh’g and reh’g en banc
denied (Fed. Cir.), cert. denied, 531 U.S. 957 (2000); see also Whispell Foreign Cars,
Inc. v. United States, 97 Fed. Cl. 324, 331 (“Whether an individual has a compensable
private property interest is determined by state law.”), amended after recons. in part, 100
Fed. Cl. 529 (2011).

While Chevy Chase Land Co. of Montgomery County v. United States and
Preseault I specifically addressed the application of state law to be applied in rails to trails
cases, the United States Supreme Court has made similar pronouncements about state
law governing how determinations are made regarding property conveyances. For
example, in Ruckelshaus v. Monsanto Co., 467 U.S. at 1001, the Supreme Court stated,
“we are mindful of the basic axiom that ‘“[p]roperty interests . . . are not created by the
Constitution. Rather, they are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as state law.”’” (quoting
Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980) (quoting Bd. of
Regents v. Roth, 408 U.S. 564, 577 (1972))) (omission in original). In Oregon ex rel. State
Land Board v. Corvallis Sand & Gravel Co., 429 U.S. 363 (1977), the United States
Supreme Court stated that, “[u]nder our federal system, property ownership is not
governed by a general federal law, but rather by the laws of the several States.” Id. at
378; see also Davies Warehouse Co. v. Bowles, 321 U.S. 144, 155 (1944) (“The great
body of law in this country which controls acquisition, transmission, and transfer of
property, and defines the rights of its owners in relation to the state or to private parties,
is found in the statutes and decisions of the state.”). The United States Court of Appeals
for the Federal Circuit also has directed that state law determines whether trail use
exceeds the scope of the easement. See generally Toews v. United States, 376 F.3d
1371; see also Preseault II, 100 F.3d at 1541-42.

Plaintiffs in the case currently before this court seek partial summary judgment in
their favor for the thirteen remaining claims. In particular, plaintiffs seek findings that the
federal government took plaintiffs’ property by operation of the Trails Act and that plaintiffs
are entitled to just compensation pursuant to the Fifth Amendment to the United States
Constitution. Defendant seeks partial summary judgment in its favor with regard to two
partially overlapping groups of claims, on independent grounds: those claims, which
defendant alleges include Claims 2, 4, 5, 8, and 9, that do not adjoin any segment of the
BNSF railroad corridor; and those claims, which defendant alleges include Claims 1, 2,
4, and 5, that adjoin segments of the railroad corridor that BNSF owned in fee simple.
With regard to plaintiffs’ Claims that adjoin portions of the railroad corridor in which BNSF
allegedly held only an easement for railroad purposes, which the parties agree includes
18
at least Claims 11, 12, 13.B, 14, 15, 16.A, and 16.B, defendant does not contest that the
issuance of the NITU by the STB amounted to a taking. Defendant, however, seeks a
finding that what was taken amounted only to easements for railroad purposes. The
parties, thus, dispute three issues: whether Claims 2, 4, 5, 8, and 9 were adjacent to the
railroad corridor; whether BNSF held the portion of the railroad corridor adjacent to Claims
1, 2, 4, and 5 in fee simple or merely as an easement for railroad purposes; and the nature
of the property interest defendant took from those plaintiffs whose claims were adjacent
to portions of the railroad corridor in which BNSF held only an easement for railroad
purposes.

Adjacency of Claims 2, 4, 5, 8, and 9 to the Railroad Corridor

Initially, the court examines whether Claims 2, 4, 5, 8, and 9 are adjacent to the
railroad corridor. With regard to Claims 2, 4, and 5, defendant argues that Foote Street,
which is depicted on the original plat map of the town of Farragut, and, thus, according to
defendant, is owned in fee simple by the town of Farragut, separates the plaintiffs’
property from the railroad corridor. With regard to Claims 8 and 9, defendant argues that
there remains at least a material issue of fact as to adjacency to the railroad corridor
because of “discrepancies” between the descriptions contained in the deeds for these
claims and the current tax assessor’s map of the town of Farragut. In particular, defendant
argues that the tax assessor’s map shows two separate strips of land separating Claims
8 and 9 and the railroad corridor: Cox Street and the alleged .002 Parcel.

Under Iowa law, streets listed on the original recorded plat map of a city at the time
of its incorporation are held by the city in fee simple. See Town of Kenwood Park v.
Leonard, 158 N.W. 655, 658 (1916) (“Section 917, c. 13, tit. 5, of the Code of 1897, in so
far as it provides that the recording of plats, such as we are dealing with, is equivalent to
a deed in fee simple of such portion of the premises platted as is set apart for streets or
other public use, evidently relates to streets in cities and towns, and not to streets in
unincorporated villages.”); see also City of Marquette v. Gaede, 672 N.W.2d 829, 833-34
(Iowa 2003) (“We have recognized that the recording of a plat, followed by the subsequent
incorporation of the platted area as a city, is the equivalent of a deed in fee simple to the
city of the land set apart in the plat for streets or other public uses.” (citing Fencl v. City
of Harpers Ferry, 620 N.W.2d 808, 812 (Iowa 2000); Kelroy v. City of Clear Lake, 5
N.W.2d 12, 16 (Iowa 1942); Inc. Town of Ackley v. Cent. States Elec. Co., 220 N.W. 315,
316 (Iowa 1928))). The city’s ownership interest is not lessened by its failure to improve
or open the platted street, even if it fails to do so for a significant amount of time. See
Fencl v. City of Harpers Ferry, 620 N.W.2d at 810, 815 (finding that city retained
ownership of an alley almost 150 years after the 1854 plat laying out the alley was
recorded, even though the platted alley had never actually been used as an alley).
Defendant provided the court with the original plat map of the town of Farragut. The map
depicts a street labeled Foote Street in the same location as Foote Street is located on
the current tax assessor’s map of Farragut and as adjoining the parcels on which Claims
1, 2, 4, and 5 are located. Plaintiffs appear not to contest that Foote Street was part of

19
the original plat map of the town of Farragut and, thus, owned in fee simple by the town.13
The town of Farragut, therefore, owned Foote Street in fee simple from at least the time
of Farragut’s incorporation in 1871.

With regard to Claims 2, 4, and 5, although plaintiffs apparently concede that the
town of Farragut once owned Foote Street, they argue that the town has since abandoned
the portions of Foote Street adjacent to Claims 2, 4, and 5, and, in fact, has formally
vacated the portion of Foote Street adjacent to Claim 2. According to plaintiffs, the
abandonment and/or vacation of the portions of Foote Street adjacent to Claims 2, 4, and
5 means that the relevant portions of Foote Street presently are covered by only “Mere
Easement[s]” and, thus, do not function as intervening parcels between the railroad
corridor and plaintiffs’ properties. (emphasis in original). With regard to Claims 8 and 9,
plaintiffs argue that there is no evidence that Farragut ever owned Cox Street, that it was,
at best, a mere easement, and that, even if Farragut did own Cox Street, Cox Street would
merely bisect plaintiffs’ parcels, which would still be adjacent to the corridor.

Under Iowa law, “an established highway may be abandoned by the public and its
rights therein lost.” Sioux City v. Johnson, 165 N.W.2d 762, 766 (Iowa 1969) (citing Kelroy
v. City of Clear Lake, 5 N.W.2d 12; Robinson v. Bd. of Supervisors, 269 N.W. 921, 923
(Iowa 1936); Lucas v. Payne, 120 N.W. 59, 61 (Iowa 1909)). “There is a presumption,
however, that once a highway is shown to exist, it continues to exist, and any
abandonment must be proven by clear and satisfactory evidence.” Allamakee Cty. v.
Collins Trust, 599 N.W.2d 448, 451 (Iowa 1999) (citing Sterlane v. Fleming, 18 N.W.2d
159, 161 (Iowa 1945); 39 Am. Jur. 2d Highways, Streets, & Bridges § 158, at 692 (1999)).
“In order to prove abandonment, actual acts of relinquishment accompanied by an
intention to abandon must be shown.” Id. “Nonuse is not enough to establish
abandonment,” and “[o]bstructions, encroachments, or the failure to keep a road in repair
do not necessarily result in abandonment.” Id. (citing Sterlane v. Fleming, 18 N.W.2d at
162); see also Sioux City v. Johnson, 165 N.W.2d at 766 (“Mere nonuser, of course, is
not sufficient to establish relinquishment of title or ownership.”). The photographs that
plaintiffs provide as evidence of abandonment appear to show that the portions of Foote
Street at issue are covered in grass, with no indication of any physical road, whether
paved, gravel, or dirt. Farragut’s apparent failure to improve the portions of Foote Street
at issue, however, does not establish abandonment. Stecklein v. City of Cascade, 693
N.W.2d 335, 340-41 (Iowa 2005) (“[T]he failure of a small town to improve a street ‘before
public convenience requires it, will not amount to either an abandonment or an estoppel.’”
(quoting Kuehl v. Town of Bettendorf, 161 N.W. 28, 31 (Iowa 1917))); see also Wolfe v.
Kemler, 293 N.W. 322, 325 (Iowa 1940) (noting that not “‘all the streets shown upon the
plat will be immediately opened and used. It is generally known and understood that a
large portion of them will not be required for use for many years after the town is laid

13While plaintiffs do not explicitly address the issue of whether the town of Farragut ever
owned Foote Street in fee prior to this alleged abandonment, in their motion for partial
summary judgment, plaintiffs concede that, under Iowa law, another street in Farragut,
Dupont Street, is owned by the town of Farragut in fee because it was part of the original
plat map of the town of Farragut. Foote Street, like Dupont Street, is included on the
original plat map of the town of Farragut.
20
out . . . .’” (quoting Meier v. Portland Cable Ry. Co., 19 P. 610, 614 (Or. 1888))). Similarly,
in the case before this court, the grass and lack of improvements to the platted location
of Foote Street demonstrated by the photographs provided to this court by plaintiffs are,
at best, evidence of mere disuse and, thus, insufficient to establish an intention to
abandon Foote Street by Farragut. See Stecklein v. City of Cascade, 693 N.W.2d at 337,
341 (finding no evidence of an intent to abandon platted street by city where the city had
failed to open street for 120 years after it was platted, the platted street was enclosed,
along with an adjacent private property, in a thirty to forty-year-old fence, additional fences
crossed the platted street itself, and there was “no visible use of any of the platted streets”
other than a gravel road leading to a house); Sioux City v. Johnson, 165 N.W.2d at 767
(holding that evidence that vehicular and pedestrian traffic had never existed on platted
street, that the city had never attempted to “grade, improve, or open” the street, and that
the trees, grass, and shrubs which were growing on the street were mere evidence of
non-use, insufficient to demonstrate abandonment); see also Town of Marne v. Goeken,
147 N.W.2d 218, 223 (Iowa 1966) (holding that, where vehicular travel in an alley was
“very rare” and the town had “neglected to mow the weeds or plow out the snow,” there
was “nothing to establish relinquishment of permanent control or ownership”). Based on
the above, plaintiffs have, therefore, failed to establish, for the purposes of their present
motion, that the portions of Foote Street adjacent to Claims 2, 4, and 5 have been
abandoned by the town of Farragut.

Plaintiffs also allege that the town of Farragut has vacated the portion of Foote
Street adjacent to Claim 2. Under Iowa law, municipalities such as Farragut have the
power to vacate streets within their jurisdiction. See Iowa Code § 306.10 (2011) (“In the
construction, improvement, operation or maintenance of any highway, or highway system,
the agency which has control and jurisdiction over such highway or highway system, shall
have power, on its own motion, to alter or vacate and close any such highway or railroad
crossing thereon . . . .”); id. § 403.12(1)(g) (2011) (“For the purpose of aiding in the
planning, undertaking or carrying out of an urban renewal project located within the area
in which it is authorized to act, any public body may, upon such terms, with or without
consideration, as it may determine: . . . Furnish, dedicate, close, vacate, pave, install,
grade, regrade, plan or replan streets, roads, sidewalks, ways or other places.”); see also
Walker v. City of Des Moines, 142 N.W. 51, 52 (Iowa 1913) (“[T]he Legislature has
authorized the city council, by ordinance, to withdraw a street or alley from such public
use by vacating it.” (citing Iowa Code § 751 (date unspecified))). Vacating a street,
however, is a formal act, requiring a municipality to go through a number of procedural
steps and issue a final order. See Iowa Code § 306.11 (2011) (hearing required before
vacation); id. §§ 306.12-.13 (2011) (notice of hearing required); id. § 306.16 (2011) (a
final order vacating the road must be entered and filed with the county auditor). There is
no evidence in the record before this court that the town of Farragut, or any other
governmental body, ever provided notice of a hearing, held a hearing, or issued a final
order vacating the portion of Foote Street at issue before the court.

In support of their argument, plaintiffs, instead, claim that the current tax assessor’s
map depicts the portion of Foote Street adjacent to Claim 2 as having been vacated. On
the current tax assessor’s map, Claim 1, which is comprised of Lots 15 and 16 and the
adjacent portion of Foote Street, is immediately to the west of Claim 2, which is comprised
21
of Lots 75, 76, and 77.14 On the current tax assessor’s map, the portion of Foote Street
included in Claim 1 is divided from the rest of Foote Street with two lines which continue
from the edges of Lots 16 and 17, cross Foote Street, and end at the railroad corridor.
This marked portion of Foote Street is denoted with the words “FOOTE vac.”
(capitalization in original). The parties agree that this and other portions of Foote Street
specifically annotated as “vac.” on the current tax assessor’s map have been vacated by
the town of Farragut. Although not discussed by the parties, to the east of Claim 2 there
is another portion of what was previously Foote Street, adjacent to Lots 103 and 183, that
is divided from the rest of Foote Street, with lines that continue from the west edge of Lot
103 and the east edge of Lot 183 down to the railroad corridor. Similar to the portion of
Foote Street included in Claim 1, this divided-off portion of Foote Street adjacent to Lots
103 and 183 is clearly marked “Vac. ST.” (capitalization in original). By contrast, the
portion of Foote Street adjacent to Claim 2 shown on the current tax assessor’s map,
which runs diagonally from southwest-northwest, is not divided-off from the two north-
south streets which intersect it and surround Claim 2. Nor is this portion of Foote Street
labelled in any way. Additionally, the portion of Foote Street to the east of the vacant

14 Below is a reproduction of the portion of the current tax assessor’s map depicting
Claims 1 and 2. The map was provided by the defendant as an exhibit to its proposed
findings of uncontroverted fact. The court has removed two annotations that were digitally
added by the defendant, but the document is otherwise unaltered.

22
portion of Foote Street, adjacent to parcels 103 and 183, is not divided from the north-
south streets intersecting and is simply labeled “FOOTE ST.”15 (capitalization in original).

The “vac.” and “Vac.” labels on the portions of Foote Street adjacent to Claim 1
and parcels 103 and 108 are clear indications that the town of Farragut has vacated those
portions of Foote Street. The absence of any similar “vac.” label on the portion of Foote
Street adjacent to Claim 2, suggests that, unlike for the portions of Foote Street adjacent
to Claim 1 and parcels 103 and 108, the tax assessor’s map intends to depict the portion
of Foote Street adjacent to Claim 2 as not having been vacated. Furthermore, because
the portion of Foote Street at issue also is divided from the two vacated portions of Foote

15Below is a reproduction of the portion of the current tax assessor’s map depicting the
portion of Foote Street to the east of Lots 103 and 183. The map was provided, as it
appears below, by the defendant as an exhibit to its proposed findings of uncontroverted
fact.

23
Street and continues to connect, without dividing lines, to other city streets, in a similar
manner to the unvacated portion of Foote Street to the east of parcels 103 and 108 there
is insufficient support for the court to find that the current tax assessor’s map depicts the
portion of Foote Street adjacent to Claim 2 as definitively having been vacated. Plaintiffs,
therefore, have failed to demonstrate that the portion of Foote Street adjacent to Claim 2
has been formally vacated.16

Even were the court to find that the town of Farragut had formally vacated the
portion of Foote Street abutting Claim 2, this would not necessarily make Claim 2 adjacent
to the corridor. Although plaintiffs never spell out their logic, their argument appears to
assume that, had Foote Street been vacated, ownership of the land comprising Foote
Street would have automatically passed to adjacent landowners, such as the plaintiff-
owners of Claim 2. As stated above, however, under Iowa law, the town of Farragut was
the owner of all of Foote Street in fee simple. Had Farragut formally vacated a portion of
Foote Street, that portion would no longer be a public road, but Farragut would continue
to own the land on which the road was previously located.17 See Walker v. City of Des
Moines, 142 N.W. at 52 (“When continued as a street, the city could not divert it to other
uses; but having effected its vacation the title, freed from the trust, continues in the city,
and it may convey the ground vacated to another, to be used for private purposes.”
(citations omitted)); id. at 53 (“If properly vacated, the city may devote the ground to
whatever legitimate purpose it may elect, or otherwise dispose of the same.”). If vacated,
the town of Farragut would have the right to sell or transfer the vacated portions of Foote
Street to the adjacent landowner or to anyone else. To make such a sale or transfer,
however, Farragut would have had to follow the same process it would have been
required to follow to dispose of any other real property, including promulgating a

16In their motion for partial summary judgment, plaintiffs initially asserted that all of Foote
Street was formally vacated by the town of Farragut, presumably including the portions
adjacent to Claims 4 and 5, as well as those adjacent to Claim 2. Plaintiffs did not provide
any explanation for why this was so, but merely cited versions of the current tax
assessor’s map that they had attached to the motion. After defendant filed its proposed
statement of uncontroverted facts, which included a fuller and more legible version of the
portion of the tax assessor’s map relating to Claims 4 and 5, plaintiffs appear to have
dropped their vacation argument as it related to the portions of Foote Street adjacent to
Claims 4 and 5, arguing, instead, only that “Foote Street has actually been formally
vacated adjacent to parcels [Claims] 1 and 2 and has been abandoned for the entire
length.” A review of the tax assessor’s map provided by defendant supports plaintiffs’
choice to do so. The map labels the portion of Foote Street adjacent to Claims 4 and 5 in
the same way it does all other streets, simply as “FOOTE ST.,” with no indication that it
had been vacated. Thus, there is no evidence in the record that the portion of Foote Street
adjacent to Claims 4 and 5 has been formally vacated by the town of Farragut.
17 By contrast, if the town merely had held an easement in Foote Street, the street would
have become the private property of its original owner upon vacation. See Schaller v.
State, 537 N.W.2d 738, 742 (Iowa 1995) (“Once a county vacates a road, the easement
is lost, and exclusive possession is restored to the original owner.” (citing 39 Am. Jur. 2d
Highways, Streets, and Bridges § 142, at 184 (1968))).
24
resolution, publishing a notice of the resolution, and holding a public hearing. See Iowa
Code § 364.7 (2011). With respect to the portion of Foote Street adjacent to Claim 2,
there is no evidence in the record before this court that such procedures ever were
followed, or that anyone other than the town of Farragut ever has owned the portion of
Foote Street adjacent to Claim 2. In fact, there is evidence in the record that the plaintiff-
owner of Claim 2, unlike the plaintiffs-owners of Claim 1, does not own any portion of
Foote Street. Whereas the deed for Claim 1 describes the property as “Lots 16 and 17,
and all that part of Foote Street lying adjacent to and abutting Lot 17, in the Town of
Farragut, Fremont County, Iowa, according to the recorded Plat thereof,” (emphasis
added), the deed for Claim 2 makes no mention of Foote Street, simply describing the
property at issue as “Lots Seventy-five (75), Seventy-six (76), and Seventy-seven (77) in
the town of Farragut, Fremont County, Iowa.” Plaintiffs, thus, have failed to demonstrate
that anyone other than the town of Farragut owns the portion of Foote Street adjacent to
Claim 2, regardless of whether the portion has been formally vacated.

There is no evidence in the record before the court that shows that the portions of
Foote Street abutting Claims 2, 4, and 5 have been held other than in fee simple by the
town of Farragut since the time of its incorporation in 1871. Plaintiffs have failed to
demonstrate that the town of Farragut has ever relinquished ownership of these portions
through abandonment or vacation. Foote Street, thus, continues to separate Claims 2, 4,
and 5 from the railroad corridor. As a result, with respect to Claims 2, 4, and 5, plaintiffs’
motion for partial summary judgment must be denied and defendant’s cross-motion
granted.

Unlike for Claims 2, 4, and 5, the properties that comprise Claims 8 and 9 were not
part of the original plat map of the town of Farragut. Instead, the parcel from which Claims
8 and 9 both are derived was first platted in the map of U.D. Coy’s First Addition to the
Town of Farragut, which was recorded in 1872. In particular, the deeds for Claims 8 and
9 state that they are comprised of portions of “Lot 13 of U.D. Coy’s First addition to the
Town of Farragut.” Neither Cox Street, nor any other street between Lot 13 and the
corridor is depicted in the plat map of U.D. Coy’s First Addition to the Town of Farragut.
Nor is there any other evidence in the record before the court that Cox Street is now, or
ever was, owned by the town of Farragut. Further, it is undisputed that the deeds for both
Claims 8 and 9, dated February 18, 2000 and July 28, 2004, respectively, both state that
the claims extend to the edge of the railroad corridor, which would include Cox Street.
Thus, there is some evidence in the record that Claims 8 and 9 include Cox Street, and
are adjacent to the corridor.

On the other hand, there is evidence, in the form of the current tax assessor’s map,
that an intervening parcel may separate Claims 8 and 9 from the railroad corridor. The
current tax assessor’s map depicts a tract of land, which defendant calls the “.002” Parcel,
that appears to have been separated-out from the northernmost quarter of the railroad
corridor. There is no cognizable evidence in the record about the ownership of the .002
Parcel.18 Because the .002 Parcel appears to have once been a portion of the railroad

18Plaintiffs argue in their supplemental submission following oral argument addressing
Claims 8 and 9 that “based on further conversations with the County Assessor, there is
25
corridor, its existence as an intervening parcel between Claims 8 and 9 and the current
railroad right-of-way would not necessarily be inconsistent with the descriptions in the
deeds for Claims 8 and 9. Should the .002 Parcel turn out to be a distinct parcel, owned
by a third party, plaintiffs’ allegations related to Claims 8 and 9, however, would fail due
to lack of adjacency. The possible existence of the .002 Parcel, thus, presents an issue
of material fact regarding the adjacency of Claims 8 and 9 to the railroad corridor.19 As a
result, the court denies summary judgment for either party with respect to Claims 8 and
9.

BNSF’s Interest in the Railroad Corridor Adjacent to Claims 1, 2, 4, and 5

The court turns next to the nature of the property interest held by the BNSF in the
portion of the railroad corridor adjacent to Claims 1, 2, 4, and 5. As noted above, the court
has found that, as a matter of law, intervening parcels prevent Claims 2, 4, and 5 from
adjoining the railroad corridor. Thus, plaintiffs’ allegations regarding those three claims
fail, regardless of BNSF’s interest in the corridor itself. By contrast, the parties in the
above-captioned case agree that Claim 1 is adjacent to the railroad corridor. Regarding
Claim 1, the question before the court is the nature of the interest that the deed that
pertains to the segment of the railroad corridor adjacent to Claim 1 conveyed to BNSF’s
predecessor-in-interest. Specifically, the parties dispute whether the C/544 deed
conveyed a fee simple interest to BNSF’s predecessor-in-interest or an easement for
railroad purposes. Defendant argues that “[h]ere, the deed recorded at Book C, page 544
conveys fee title to BNSF’s predecessor-in-interest, because the granting clause conveys
a tract of land, rather than a right-of-way.” Plaintiffs, however, argue that the “railroad held
an easement limited to railroad purposes over Plaintiffs’ land and nothing more.” Plaintiffs
also indicate that, “Iowa law is clear that by granting land to be used as a right-of-way,
only a railroad purposes easement is acquired by the railroad.” According to plaintiffs, the
C/544 deed “should be an easement for railroad purposes under Iowa law . . . because it

no intervening parcel .002.” While this may or may not be true, plaintiffs’ attorneys’
description in a legal brief of an alleged conversation that some unnamed person held
with the county assessor is not cognizable evidence. See Gemtron Corp. v. Saint-Gobain
Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (“Saint–Gobain's unsworn attorney
argument . . . is not evidence and cannot rebut the video and other admitted evidence
concerning Saint–Gobain's manufacturing process.” (citing Laitram Corp. v. Cambridge
Wire Cloth Co., 919 F.2d 1579, 1583 (Fed. Cir. 1990) (criticizing parties’ “reliance on
attorney argument and counsel’s unsworn fact statements as ‘evidence’”))); In re Budge
Mfg. Co., Inc., 857 F.2d 773, 776 (Fed. Cir. 1988) (finding statements made by attorney
should be considered as “no evidence”).
19 Plaintiffs also argue, with respect to the possible existence of the .002 Parcel, that
“assessor maps are not legally reliable for ownership documentation regarding the
parameters of a parcel, but rather are for tax purposes.” Not only do plaintiffs fail to
provide any legal support for this argument, but seemingly in contradiction to this claim,
the court notes that the current tax assessor’s map is the only piece of evidence plaintiffs
rely on for their argument regarding the vacation of Foote Street.
26
was obviously the grantor’s intent to grant an easement.” The parties do not dispute the
transcription of the original deed, which states:

In consideration of the payment of one Dollar I, John N. Dennison Trustee
of Boston __ by C. E. Perkins of Burlington Iowa my attorney in __ hereby
sell and convey to the Burlington and Missouri River Railroad Company the
following described Real Estate in Fremont County Iowa to wit:
Commencing at the intersection of the center line of the main track of the
Red Oak and Nebraska City Branch of the Burlington and Missouri River
Railroad as now located and built and the north line of the southwest quarter
of section seven (7) township sixty eight (68) North Range forty (40) west
of the fifth (5th) principal meridian. Thence east to a point in said north line
of fifty (50) feet distant at right angle from said center line. Thence
southwesterly parallel to said center line and fifty (50) feet distant therefrom
to the west line of section seven (7). Thence north to a point on said west
line fifty (50) feet distant at right angles from said center line and on the
northside thereof. Thence northwesterly parallel to said center line and fifty
(50) feet distant therefrom eight hundred and seventy nine and six tenths
(879 6/10) feet. Thence north one hundred and twelve and fife [sic]
hundredths (112 5/11 [sic]) feet. Thence northeasterly parallel to said center
line and one hundred and fifty (150) feet distant therefrom nine hundred and
sixty three and six tenth (963 6/10) feet. Thence south one hundred and
twelve and five hundredths (112 5/100) feet. Thence northeasterly parallel
to said center line and fifty (50) feet distant therefrom to the said north line
of the southwest quarter of section seven (7). Thence east along said north
line to the place of beginning. Being the Depot grounds and Right of Way
at the town of Farragut as shown on the recorded files of said town. And I
warrant the title thereto against the lawful claims of all persons
whomsoever. Claiming by __ under __. Witness my hand this 2 nd day of
March A.D. 1894[.]

According to Iowa law, “[e]very conveyance of real estate passes all the interest of
the grantor therein, unless a contrary intent can be reasonably inferred from the terms
used.” Iowa Code § 557.3 (2011); see also Hawk v. Rice, 325 N.W.2d 97, 99 (Iowa 1982).
The grantor's intent is controlling, and it is ascertained by applying general contract
principles. See Hawk v. Rice, 325 N.W.2d at 99 (citing Flynn v. Michigan-Wisconsin
Pipeline Co., 161 N.W.2d 56, 64-65 (Iowa 1968); see also Burgess v. United States, 109
Fed. Cl. 223, 228 (2013) (explaining that “Under Iowa law, deeds are interpreted
according to the ordinary rules of contract construction” (citing Weigmann v. Baier, 203
N.W.2d 204, 206 (Iowa 1972))). The omission of any limiting language in the granting or
habendum clauses of a deed conveying real estate is significant under Iowa law. See
Burgess v. United States, 109 Fed. Cl. at 228 (citing Iowa Code § 557.3). With regard to
property interests conveyed to railroad companies, a court examines a deed’s language
to determine whether the grantor’s intent was to convey a right-of-way easement for
railroad purposes or to convey land in fee simple to a railroad company. See Lowers v.
United States, 663 N.W.2d 408, 411 (Iowa 2003). Although the Iowa Supreme Court had
previously held that a deed that specifically conveyed land “for uses connected with
27
construction and operation of a railroad” conveyed “an easement rather than a fee,” in
Lowers v. United States, the Iowa Supreme Court “re-examine[d] the logic underlying
those conclusions” and held that “the reference in the deed to the use of the property for
railroad purposes does not diminish the conveyance of all right, title, and interest of the
grantor.” Id. (citing Atkin v. Westfall, 69 N.W.2d 523, 525 (Iowa 1955); Keokuk County v.
Reinier, 288 N.W. 676, 678 (Iowa 1939)). Thus, according to the Iowa Supreme Court,
language in a deed referencing the use of property for railroad purposes may not, by
itself, be sufficiently limiting so as to conclude that the deed is a conveyance of a right-of-
way easement and not a conveyance of the grantor’s entire right, title, and interest in the
property. See id. Instead, “there must be some reference to right-of-way in the language
defining the interest being conveyed” for the court to presume that a conveyance for a
right-of-way is only an easement. Id.

The parties do not dispute, under Iowa law, that every conveyance of real estate
passes all of the grantor’s interest unless a contrary intent reasonably can be inferred
from the language used. The crux of the parties’ dispute concerning the C/544 deed is
whether it contains limiting or qualifying language so as to limit the conveyance to a right-
of-way easement to the railroad, instead of a conveyance of all of the grantor’s interest.
Plaintiffs argue that “longstanding precedent from the Iowa Supreme Court” holds that “a
conveyance to the railroad through a deed granting a strip of land for a right-of[-]way for
the purpose of constructing a railroad only conveys an easement for railroad purposes.”
According to plaintiffs, “Iowa law is clear that by granting land to be used as a right-of-
way, only a railroad purposes easement is acquired by the railroad.” Plaintiffs also argue
that the grant or gift of ground for a right-of-way is presumed to be an easement only,
according to the Iowa Supreme Court. To support its position, plaintiffs cite to three cases
decided in Iowa that involved conveyances to railroads, Hawk v. Rice, 325 N.W.2d 97, as
well as Macerich Real Estate Co. v. City of Ames, 433 N.W.2d 726, 729 (Iowa 1988), and
Estate of Rockafellow v. Lihs, 494 N.W.2d 734, 736 (Iowa Ct. App. 1992). Plaintiffs argue
that the deeds at issue in these cases are comparable, and, thus, instructive, to
interpreting the C/544 deed. In Hawk v. Rice, the Iowa Supreme Court reviewed a
granting clause, which provided that the grantor did

grant, sell and convey to the said Toledo and Northwestern Railway, its
successors and assigns, for the purpose of constructing a Railroad thereon,
and for all uses and purposes connected with the construction and use of
said Railroad, the right of way for the said Railroad over and through the
[described tract] . . . .

Hawk v. Rice, 325 N.W.2d at 98 (ellipse and brackets in original). Additionally, the
habendum clause to the deed in the Hawk case stated that the railroad was to have, hold
and enjoy the land “for any and all uses and purposes in any way connected with the
construction, preservation, occupation and enjoyment of the said Railroad.” Id. In Hawk
v. Rice, the Iowa Supreme Court held that the language in the granting clause and the
habendum clause conveyed an easement only. See id. at 100.

In Estate of Rockafellow v. Lihs, 494 N.W.2d at 735-36, the Iowa Court of Appeals
relied upon the Iowa Supreme Court’s decision in Hawk v. Rice and concluded that the
28
disputed deed only created an easement for railroad purposes. In Estate of Rockafellow
v. Lihs, the granting clause of the deed stated that the grantor did

give, remise, release, convey, and quitclaim to the said Burlington, Cedar
Rapids & Minnesota Railway Company for the purpose of constructing a
railroad thereon and for all purposes connected with the construction and
use of the said railroad the right-of-way for the said road over and through
the . . . described tract. . . .

Id. at 735 (ellipses in original). The Iowa Court of Appeals explained in Estate of
Rockafellow v. Lihs that “[s]imilar language has been held in a long line of cases to convey
an easement only.” See id. at 736.

In Macerich Real Estate Co. v. City of Ames, the Iowa Supreme Court, citing its
earlier decision in Hawk v. Rice, also held that two deeds conveyed to the railroad only
an easement for railroad purposes. See Macerich Real Estate Co. v. City of Ames, 433
N.W.2d at 727-28. The first of the two deeds in Macerich Real Estate Co. v. City of Ames,
the Black deed, stated:

In consideration of the sum of $10.00, the receipt of which is hereby
acknowledged, Isaac Black and E.M. Black, his wife, hereby sell and convey
to the Iowa & Minnesota Railway Company the right-of-way 100 feet in width
for a single or double railroad track, as the same is located through the
following lands, to-wit:

The Northwest Quarter of the Northwest Quarter of Section 11, Township
83, Range 24, said lands being situated in the County of Story, State of
Iowa and we, the said Isaac Black and E.M. Black, his wife, warrant the title
against all persons whomsoever. In witness whereof, we have hereunto
signed our names this 21st day of August, 1866.

Id. at 727. The second of the deeds in Macerich, the Hoggatt deed, stated:

File for record March 20, 1874, at 2 o'clock p.m., Iowa & Minnesota Railway
Company in consideration of the sum of $10.00, the receipt which is hereby
acknowledged L.P. Hoggatt and Abigal Hoggatt, his wife, hereby sell and
convey to the Iowa & Minnesota Railway Company the right-of-way 100 feet
in width for a single or double railroad track as the same is located through
the following lands, to-wit:

34 acres in the Northeast Quarter of Section 10, Township 83, Range 24,
and said lands being situated in the County of Story and State of Iowa, and
the said L.P. Hoggatt and Abigal Hoggatt, his wife, warrant the title against
all persons whomsoever.

In witness whereof, we have hereunto signed our names this 21st day of
August, 1866.

29
Id. at 727-28.

Plaintiffs attempt to compare the language in the deeds in these three cases to the
language in the C/544 deed in order to persuade this court to adopt the same
interpretation and conclude that the C/544 deed conveyed only an easement. Plaintiffs
argue that, like the deeds in Hawk, Estate of Rockafellow, and Macerich, the C/544 deed
included limiting language and conveyed a right-of-way for railroad purposes, which,
under Iowa law, should lead to a finding that only an easement was conveyed. Defendant
argues, however, that the C/544 deed is distinguishable from the deeds in Hawk, Estate
of Rockafellow, and Macerich because the deeds in those cases contained granting
clauses that conveyed rights-of-way and the granting clause in the C/544 deed does not
reference a right-of-way or contain any limiting language, and, that, as a result, the C/544
deed cannot be construed as conveying an easement. According to defendant, under
Lowers v. United States, which was decided by the Iowa Supreme Court after Hawk,
Macerich, and Estate of Rockafellow, in order to establish an easement, “‘there must be
some reference to right-of-way in the language defining the interest being conveyed,’’’
which, according to defendant, requires that any reference to a right-of-way must be in
the deed’s granting clause. (emphasis in original). Plaintiffs argue, however, that the deed
in Lowers was “not on all fours with the deed at issue here,” and, as a result, the decision
in Lowers is not dispositive in the above-captioned case.

In Lowers v. United States, the Iowa Supreme Court considered whether a deed
conveyed an easement or a defeasible fee to a railroad. See Lowers v. United States,
663 N.W.2d at 410-11. In Lowers, the deed at issue was titled “Rt. Of Way Deed” and
stated that the grantors did

grant and convey unto said Railroad Company, the following piece or tract
of land in Cass County, in the State of Iowa, and particularly described as
follows to wit: [section coordinates] One hundred feet in width, having fifty
feet on each side of the center line of line of the Road of said Company, as
located by the engineer of said Railroad Company for the construction of
said Railroad in said Cass County; to Have and Hold the same unto said
Railroad Company forever; Provided that in case said Railroad Company
does not construct their road through said tract, or shall, after construction,
permanently abandon the route through said tract of land the same shall
revert to, and become the property of the grantors, their heirs or assigns.
And the said [grantor] hereby relinquishes her right of dower in the tract
herein conveyed.

Id. at 410 (brackets in original). The Iowa Supreme Court determined that this deed
conveyed to the railroad a defeasible fee, and not an easement for a right-of-way. See id.
In its decision, the court explained that “the reference in the deed to the use of the property
for railroad purposes” does not “diminish the conveyance of all right, title, and interest of
the grantor.” Id. at 411. The Iowa Supreme Court specifically found that “the fact that the
deed bore a caption or title indicating ‘Rt. of Way Deed’” did not “serve to limit the interest
conveyed in the body of the deed.” Id. Indeed, the Lowers court explained that, in order
for a court to presume that a conveyance for a right-of-way only grants an easement,
30
“there must be some reference to right-of-way in the language defining the interest being
conveyed.” Id.; see also Rasmuson v. United States, 109 Fed. Cl. at 273 (“[T]he Lowers
court found that there must be language expressly limiting the conveyance if the deed is
to grant any interest less than a fee.” (citing Lowers v. United States, 663 N.W.2d at 411)).

In the above-captioned case, defendant argues that the Lowers decision requires
that, in order to be construed as an easement, a deed’s granting clause must refer to a
right-of-way, and that the C/544 deed’s granting clause did not refer to a right-of-way, but,
instead, conveyed “real estate” to BNSF’s predecessor. (emphasis in original). Defendant
would have this court conclude that the language in the Lowers decision explaining that
the right-of-way must be referred to in the “interest being conveyed” creates a requirement
that the right-of-way must be referred to in the granting clause of a deed in order for a
court to find that the conveyance is an easement. Defendant argues that there was no
reference to a right-of-way in the granting clause in the C/544 deed, therefore, the right-
of-way language elsewhere in the deed did not define the interest conveyed in the C/544
deed. According to defendant, the C/544 deed’s granting clause conveyed “the following
described Real Estate in Fremont County, Iowa to wit . . . .” (emphasis and ellipsis in
original). Defendant argues that the subsequent right-of-way language in the deed merely
pertained to the use of the land and had no impact on the interests conveyed to BNSF’s
predecessor-in-interest. Defendant contends that the deed conveyed fee title to BNSF’s
predecessor-in-interest because the granting clause in the C/544 deed conveyed “real
estate.” (emphasis in original).

Despite defendant’s argument that the Lowers decision requires that a deed must
reference a right-of-way in its granting clause in order to convey an easement, the Iowa
Supreme Court in Lowers considered both the granting clause and the habendum clause
in determining whether the deed in that case conveyed an easement or a defeasible fee.
See Lowers v. United States, 663 N.W.2d at 411. In explaining its decision, the Iowa
Supreme Court also cited two previous decisions in which the court found that a fee
simple was conveyed because the relevant deeds “made no reference to right-of-way in
either the granting clause or the habendum clause.” Id. (emphasis in original) (citing
McKinley v. Waterloo R.R. Co., 368 N.W.2d 131 (Iowa 1985); Des Moines Ry. Co. v. City
of Des Moines, 159 N.W. 450 (Iowa 1960)). Accordingly, the requirement stated in Lowers
that “there must be some reference to right-of-way in the language defining the interest
being conveyed,” id., does not limit this court’s review to a deed’s granting clause, but
necessitates a review of the entire deed.

As described above, the C/544 deed provided that the grantor did “hereby sell and
convey to the Burlington and Missouri River Railroad Company the following described
Real Estate in Fremont County Iowa to wit: . . . . [legal description]. Being the Depot
grounds and Right of Way at the town of Farragut as shown on the recorded files of said
town.” Of note, the C/544 deed appears not to have included a habendum clause. As
plaintiffs assert, the language in the C/544 deed is similar to the language in the Hawk,
Macerich, and Estate of Rockafellow deeds, in which the Iowa Supreme Court and Court
of Appeals concluded that easements, not fee interests, were conveyed. See Hawk v.
Rice, 325 N.W.2d at 98; Macerich Real Estate Co. v. City of Ames, 433 N.W.2d at 729;
Estate of Rockafellow v. Lihs, 494 N.W.2d at 736. Each of the deeds in Hawk, Macerich,
31
and Estate of Rockafellow specifically referred to a right-of-way and the conveyance of
specific property in the language of the deed and found an easement for railroad purposes
only. See Hawk v. Rice, 325 N.W.2d 97; Macerich Real Estate Co. v. City of Ames, 433
N.W.2d at 729; Estate of Rockafellow v. Lihs, 494 N.W.2d at 736; see also Notelzah, Inc.
v. Destival, 489 N.W.2d 744 (Iowa 1992); Brugman v. Bloomer, 13 N.W.2d 313 (Iowa
1944). Notwithstanding defendant’s arguments, Iowa law does not appear to prescribe a
strict formula as to how a right-of-way must be written into a deed in order to successfully
convey an easement. Hawk, Macerich, Estate of Rockafellow, and the above-captioned
case are distinguishable from the deed in Lowers, which did not make any reference to a
right-of-way in the language of the deed. See Lowers v. United States, 663 N.W.2d at
411. Although the deed in Lowers was titled “Rt. of Way Deed,” the Iowa Supreme Court
held that this title alone was not sufficient to limit the interest conveyed in the deed to an
easement. See id. Unlike in Lowers, in the above-captioned case, the C/544 deed
specifically explained the described real estate as “Being the Depot grounds and Right of
Way at the town of Farragut.” (emphasis added). Additionally, the C/544 deed described
the right-of-way in relation to the “intersection of the center line of the main track of the
Red Oak and Nebraska City Branch of the Burlington and Missouri River Railroad” and
repeatedly referred to the “center line” in the land description. The Iowa Supreme Court
and this court have previously determined that such language in an Iowa deed describing
a right-of-way to a railroad grants an easement only for railroad purposes. See Rasmuson
v. United States, 109 Fed. Cl. at 279 (discussing the Burchinal deed, one of the multiple
deeds at issue in the case); Macerich Real Estate Co. v. City of Ames, 433 N.W.2d at
729; Hawk v. Rice, 325 N.W.2d at 99-100; Estate of Rockafellow v. Lihs, 494 N.W.2d at
736.

Although defendant argues that the deed at issue in the above-captioned case was
a conveyance of fee title because of the use of the term “real estate” in the granting
clause, Iowa law does not mandate deeds mentioning “real estate” to be considered fee
deeds. Moreover, defendant’s approach ignores that the property description includes the
phrase “Being the Depot grounds and Right of Way at the town of Farragut.” Also, in
arguing that “other judges of the CFC [Court of Federal Claims] have held that
conveyances of ‘land,’ ‘real estate,’ and ‘premises,’ convey fee title under Iowa law”
defendant relies on cases which are distinguishable from the above-captioned case.
Specifically, defendant cites to Rasmuson v. United States, 109 Fed. Cl. at 273, for the
proposition that a granting clause conveying “land” or “real estate” conveys fee title.20
Defendant’s characterization of Rasmuson is incorrect. In Rasmuson, a judge of this court
concluded that eight deeds conveying specified tracts of land granted fee interests to a
railroad and not easements. In arriving at its determination, however, the court considered
whether the deeds used “any limiting language” or the term right-of-way “in the body of
the text” and found that they did not. Id. at 278. The absence of any limiting language or
use of the term right-of-way was cited as a specific reason supporting the court’s
conclusion that those deeds conveyed fee interests. See id. The Rasmuson decision cited

20 The court notes that the page numbers listed by defendant in the table of authorities
for defendant’s cross-motion for partial summary judgment for Rasmuson, and other
cases cited by defendant in its motion, are incorrect.

32
the Iowa Supreme Court’s decision in Lowers for the proposition that there must be some
reference to right-of-way in the language defining the interest being conveyed in order for
the deed to convey an easement. See id. at 273.

In further support of defendant’s position that the use of the term “real estate” in
the C/544 deed’s granting clause conveyed a fee interest under Iowa law, defendant also
cites Burgess v. United States, 109 Fed. Cl. at 234, and Jenkins v. United States, No. 09-
241L, 2013 WL 490995 (Fed. Cl. Feb. 8, 2013).21 The relevant deeds in Burgess did not
use “limiting language in the granting or habendum clauses that describes the property
conveyed as a ‘right of way’ or which limits in any other way the estate conveyed.”
Burgess v. United States, 109 Fed. Cl. at 232. Additionally, the court in Burgess found
that the habendum clause in the deeds in that case included “a series of warranties more
typical of a transfer of a fee” and employed “broad conveyance language” granting a
“‘narrow strip of land,’” “‘with all the appurtenances.’” Id. at 233. The C/544 deed in the
above-captioned case is distinguishable from the deed in Burgess, in part, because it did
not include such warranties or convey the property with all the appurtenances. Defendant
further argues that, in Jenkins v. United States, the court held “a fee conveyance in the
granting of ‘depot grounds,’” however, this is an unequivocal misstatement of that case.
In Jenkins, when reviewing plaintiffs’ motion for reconsideration, the court considered the
law of merger when a railroad that first acquires an easement subsequently acquires a
fee interest in the same property. See Jenkins v. United States, 2013 WL 490995, at *2.
Although the Jenkins court did find, as defendant states, that the railroad acquired the
corridor in fee when it acquired the depot grounds, defendant ignores the basis for that
statement, which is that the railroad became the fee owner in the corridor, over which it
previously had an easement, when it later purchased the depot grounds together with the
corridor. See id. The facts of Jenkins are markedly distinct from the facts in the above-
captioned case, and defendant’s reliance on Jenkins is clearly misplaced. Because under
Iowa law, “[e]very conveyance of real estate passes all the interest of the grantor therein,
unless a contrary intent can be reasonably inferred from the terms used,” Iowa Code
§ 557.3, and the deeds in Rasmuson and Burgess did not contain any such limiting
language, these cases are not inconsistent or incongruous with the finding of this court
that the C/544 deed in the above-captioned case conveyed an easement and not a fee
interest to BNSF’s predecessor-in-interest. The court, therefore, finds that the portion of
the railroad corridor adjacent to Claim 1, which was conveyed to BNSF’s predecessor-in-
interest through the C/544 deed, was held by BNSF only as an easement for railroad
purposes.

The Nature of the Taking at Issue

With regard to the claims adjoining segments of the railroad corridor for which the
railroad held only easements for railroad purposes, the defendant does not contest that it
is liable for a taking, and that, therefore, partial summary judgment should be entered in
favor of the plaintiffs. The parties agree that such claims include: Claims 11, 12, 13.B, 14,

21 The court notes that Jenkins was issued as an unpublished opinion. Given that
defendant cites to Jenkins, and Jenkins is an Iowa Rails-to-Trails case, the court,
nonetheless, includes a discussion of Jenkins in this opinion.
33
15, 16.A, and 16.B. As discussed above, Claim 1 is also such a claim and there remains
a question of fact as to whether Claims 8 and 9 are as well.

The parties disagree, however, as to the nature of the property interest that was
taken by defendant. Defendant concedes that, with respect to the claims adjoining the
railroad corridor, the STB’s issuance of the NITU prevented the extinguishment of the
easements for railroad purposes that otherwise would have occurred under Iowa law,
effecting a taking. Defendant argues, however, that all that was taken by the issuance of
the NITU was an easement for railroad purposes and, thus, that defendant’s liability for
the taking should be limited to the taking of an easement for railroad purposes. According
to defendant, this is so because the NITU “does not mandate trail use, it merely preserves
the railroad easement by preempting abandonment of the rail corridor.” In support of this
claim, the government points to the portion of the Trails Act which discusses interim use.
See 16 U.S.C. § 1247(d). That provision states, in part:

If a State, political subdivision, or qualified private organization is prepared
to assume full responsibility for management of such rights-of-way and for
any legal liability arising out of such transfer or use, and for the payment of
any and all taxes that may be levied or assessed against such rights-of-
way, then the Board shall impose such terms and conditions as a
requirement of any transfer or conveyance for interim use in a manner
consistent with this chapter, and shall not permit abandonment or
discontinuance inconsistent or disruptive of such use.

Id.

According to defendant, this provision does not authorize any specific type of use, or
expand the scope of the railroad right of way, but merely states that interim use “shall not
be treated, for purposes of any law or rule of law, as an abandonment of the use of such
rights-of-way for railroad purposes.” Id. Defendant argues that the “context and historical
developments leading to the Trails Act” demonstrate that the purpose of the law was to
preserve railroad corridors by preempting extinguishment of railroad easements and not
by taking a new easement for recreational purposes. Defendant also argues that the
language at the beginning of this section making the interim use contingent on the third
party being “prepared to assume full responsibility . . . for any legal liability arising out of
such transfer or use” means that it is the interim user, i.e., the future trail operator such
as, potentially, INHF in the present case, and not the United States, who assumes any
legal liability arising from the specific interim use employed. See id. Defendant
acknowledges that its arguments have been rejected multiple times by judges of this court
in cases involving Iowa law and circumstances similar to those in the present case. See
Burgess v. United States, 109 Fed. Cl. at 239 (rejecting the government’s “well-rehearsed
argument” “that any easement it took was for railbanking purposes only, not for
recreational trail uses”); Rhutasel v. United States, 105 Fed. Cl. 220, 231 (2012) (“[T]he
Government’s argument that it is only liable for taking of an easement for railroad
purposes is misplaced . . . .”); Jenkins v. United States, 102 Fed. Cl. 598, 619 (2011)
(“Where, as here, a trail use agreement has been consummated, the scope or extent of

34
the government’s taking liability is not limited to railbanking only, but extends to all of the
uses authorized by the NITU, including the recreational trail.”).

Plaintiffs reject defendant’s characterization of what was taken, arguing that
defendant took plaintiffs’ reversionary interests in the portions of corridor at issue, rather
than a mere easement. Plaintiffs argue that these reversionary interests include the
plaintiffs’ “right to possession of their property unencumbered by any easement.”
Plaintiffs, citing Preseault I, 494 U.S. at 22, Preseault II, 100 F.3d at 1533, and Ladd v.
United States, 630 F.3d at 1023-24, argue that defendant’s argument is contrary to
binding precedent, which, plaintiffs allege, holds that a “landowners’ [sic] right to
unencumbered use of his property that he holds in fee simple” is destroyed when “the
Trails Act acts to eliminate the fee owner’s reversionary interest in land by issuing a NITU
that authorizes recreational trail use.” (emphasis in original). Plaintiffs also argue that
defendant’s argument that the interim user of the railroad corridor, rather than the
government, assumes liability for any taking, is contrary to established law, under which,
according to plaintiffs, “it is the mere authorization for such [interim] use by issuance of
the NITU that amounts to the taking.” (emphasis in original).

As discussed above, under Iowa law, when an easement for railroad purposes is
abandoned, the land up to the center line of the corridor reverts to the adjacent
landowners. See Chadek v. Alberhasky, 111 N.W.2d 297, 298 (Iowa 1961) (“Where there
are different landowners on each side of an abandoned right of way, each is the owner to
the center.” (citing Brugman v. Bloomer, 13 N.W.2d 313, 314 (Iowa 1944))); see also Iowa
Code § 327G.77. Therefore, in the present case, those plaintiffs whose parcels were
adjacent to the portions of the railroad corridor in which BNSF only had an easement for
railroad purposes held a reversionary interest in the adjacent portions of the corridor, at
least up to the center line of the corridor. “A taking occurs when state law reversionary
property interests are blocked.” Ladd v. United States, 630 F.3d at 1024 (citing Caldwell
v. United States, 391 F.3d at 1233-34; Barclay v. United States, 443 F.3d at 1374). The
United States Court of Appeals for the Federal Circuit has held that “[t]he issuance of the
NITU is the only government action in the railbanking process that operates to prevent
abandonment of the corridor and to preclude the vesting of state law reversionary
interests in the right-of-way.” Caldwell v. United States, 391 F.3d at 1233-34 (emphasis
in original); see also Barclay v. United States, 443 F.3d at 1374 (“Abandonment cannot
occur until authorized by federal law, and the NITU precludes abandonment and the
reversion that would follow if abandonment were consummated.”). In its February 21,
2012 Petition for Exemption, the BNSF stated that it intended to abandon the railroad
corridor at issue. Regardless of the government’s intended use of the railroad corridor,
the issuance of the NITU prevented BNSF’s abandonment of the railroad corridor and
deprived the plaintiffs of the vesting of their reversionary interests in the railroad corridor.
See Ladd v. United States, 630 F.3d at 1035 (“Thus, the NITU forestalls or forecloses the
landowners’ right to unencumbered possession of the property.”). It was, therefore, these
reversionary interests, rather than mere easements, that the government took from
plaintiffs when it issued the NITU.

The potential existence of future, non-federal, users of the railroad corridor does
not, as defendant claims, alter this calculus. The government’s issuance of the NITU was
35
the action that deprived plaintiffs of their reversionary rights and effected a taking. See
Caldwell v. United States, 391 F.3d at 1234. The existence of future users, and the use
to which they ultimately put the railroad corridor, may affect whether the government is
liable for a temporary or permanent taking. For instance, if a trail use agreement is
eventually reached between BNSF and INHF or another third party, “abandonment of the
right-of-way is effectively blocked,” and the taking would become permanent. Id. (citing
Preseault II, 100 F.3d at 1552). “Alternatively, negotiations may fail, and the NITU would
then convert into a notice of abandonment. In these circumstances, a temporary taking
may have occurred.” Id. While these circumstances may affect the extent of damages
that plaintiffs are ultimately due as a result of defendant’s taking, they cannot change the
fact that it was the issuance of the NITU that resulted in the taking. See Ladd v. United
States, 630 F.3d at 1025 (“The duration of the taking goes to damages, not to whether a
compensable taking has occurred.”). Therefore, the issuance of a NITU resulted in the
taking of the reversionary interests of those plaintiffs whose properties were adjacent to
the portions of the railroad corridor in which BNSF held an easement for railroad
purposes. To the extent defendant’s motion for partial summary judgment seeks to limit
its liability to the taking of an easement, the motion is denied. With respect to Claims 1,
11, 12, 13.B, 14, 15, 16.A. and 16.B, which adjoin the portions of the railroad corridor held
by BNSF as easements, plaintiffs’ motion for partial summary judgment is granted.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for partial summary judgment is
GRANTED IN PART and DENIED IN PART, and defendant’s cross-motion for partial
summary judgment is GRANTED IN PART and DENIED IN PART. The court holds that
defendant took the property of plaintiffs David and Paula Brownlee (Claim 1), Virginia
Farm Company (Claim 11), James and Gloria Dalrymple (Claim 12), Richard K., Roger,
and Lisa Phipps (Claim 13.B), C.S. Johnson Family Limited Partnership (Claim 14),
Dorothy Walter Trust (Claim 15), and Timothy and Shawna Dreyer (Claims 16.A. and
16.B) by operation of the Trails Act. The court further holds that the property interest taken
from these plaintiffs by defendant consisted of their reversionary interests in the portions
of the railroad corridor at issue, and not merely easements for railroad purposes. The
court also holds that a question of fact remains regarding whether defendant took the
properties of plaintiffs Jerry Lee Nicholas (Claim 8) and Jeremy T. and Jennifer L.
McAllister (Claim 9). Additionally, because the court finds that defendant did not take their
properties by operation of the Trails Act, the following plaintiffs are hereby DISMISSED
from the above-captioned action: Monte Jay Moyer (Claim 2), Rita Foster (Claim 4), and
Thomas A. Ingram and Amanda Hinds (Claim 5).

IT IS SO ORDERED.

s/Marian Blank Horn
MARIAN BLANK HORN
Judge

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