FOX v. NORFOLK SOUTHERN CORPORATION Et Al.

FIFTH DIVISION
BRANCH, J.,
RICKMAN and REESE, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

June 23, 2017

In the Court of Appeals of Georgia
A17A0319. FOX v. NORFOLK SOUTHERN CORPORATION et
al.

BRANCH, Judge.

This appeal arises out of a right-of-way owned by Norfolk Southern Railroad

Co. and bisecting a parcel of land owned by C. Randall Fox. After the railroad

constructed a passing side track running parallel to the existing track situated in the

right-of-way, Fox sued Norfolk Southern Corporation and Norfolk Southern Railroad

Co.1 in Gordon County Superior Court, asserting claims for inverse condemnation

and trespass. Fox now appeals from the trial court’s order granting summary

judgment to Norfolk Southern, as well as the order denying Fox’s motion for

reconsideration. Fox contends that the trial court erred in finding both that the

1
The appellees are referred to collectively herein, together with Norfolk
Southern Railroad’s predecessors in interest, as “Norfolk Southern” or “the Railroad.”
Railroad constructed the passing track within its right-of-way, and that Fox has not

acquired any part of that right-of-way by adverse possession. Additionally, Fox

asserts that the trial court erroneously found that his claim for inverse condemnation

of his property situated to the east of the railroad tracks is preempted by federal law.

For reasons explained more fully below, we find no error in the trial court’s grant of

summary judgment to Norfolk Southern on Fox’s inverse condemnation and trespass

claims related to the Railroad’s right-of-way, and we therefore affirm the grant of

summary judgment on those claims. We further find, however, that the trial court

erred in granting Norfolk Southern summary judgment on Fox’s claim for inverse

condemnation of his property to the east of the railroad tracks. We therefore reverse

that part of the trial court’s order which found that this claim was preempted by

federal law.

Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “In

reviewing a grant or denial of summary judgment, we owe no deference to the trial

court’s ruling and we review de novo both the evidence and the trial court’s legal

conclusions.” GAPIII, Inc. v. Seal Indus., 338 Ga. App. 101, 102 (789 SE2d 321)

(2016). Moreover, we construe the evidence and all inferences and conclusions

2
arising therefrom most favorably toward the party opposing the motion. SKC, Inc. v.

EMAG Solutions, 326 Ga. App. 798, 798 (755 SE2d 298) (2014).

Here, the relevant facts are largely undisputed,2 and they show that Fox owns

a piece of real property in Gordon County that is bisected by an active railroad track.

The property, which totals approximately 160 acres, originally consisted of three

separate tracts of land, which the parties have referred to as Tracts 1, 2, and 3. The

western boundary of Tract 1 fronts on Old Dalton Road, and Fox uses Tract 1 to

access Tracts 2 and 3. Tract 1 is bounded on the east by the Railroad’s right-of-way,

and Tracts 2 and 3 are bounded on the west by that right-of-way.3 To access Tracts

2 and 3, therefore, Fox must travel east over the tracks situated in the right-of-way.

Fox does this by means of a private railroad crossing that appears to have been in

existence as long as the tracks themselves.

In 1868, Norfolk Southern’s predecessor in interest obtained title to the right-

of-way in fee simple, and the deed conveying the property describes it as

2
Where there is any conflict in the evidence, we have construed that evidence
in favor of Fox as the non-movant. See SKC, Inc., 326 Ga. App. at 798.
3
Tract 2 is also bounded on the west by Tract 3, on the east by the Oostanaula
River, and on the north and south by private property not owned by Fox. Tract 3 is
bounded on the east and north by Tract 2 and on the south and east by private
property not owned by Fox.

3
 a strip of land along such line as may be adopted by the [Railroad] of
sufficient width through said lot of land . . . [to] build said rail road as
well as all sidetracks and turnouts and necessary and sufficient for all
purposes of keeping up and repairing the same not to exceed fifty feet
from the center of the main line to each side making said strip not to
exceed one hundred feet – full width together with all the rights and
appurtenances to said strip of land. . . .

The deed further provides that the Railroad “shall construct and keep in repair all

necessary stock gaps and road crossings” and that “the landowner may cultivate the

soil as close to the track as the ditches will permit.” The deed was recorded in April

of 1871. The railroad tracks were constructed in approximately 1870, and have been

in use since that time.

In 1915, the Railroad conducted a survey of all its real property to create a

valuation map for filing with the Interstate Commerce Commission (“ICC”).4 Fox’s

land is depicted on the 1916 valuation map, and the map shows the location of the

4
In 1913, Congress amended the Interstate Commerce Act to include the
Railroad Valuation Act, whose purpose was to provide the federal government a basis
for assessing taxes against the nation’s railroads. See Dana R. Hodges Trust v. United
States, 2011 U. S. Claims LEXIS 2062 at *34 (B) (1) (Ct. Fed. Claims 2011);
Southern R. Co. v. United States, 585 F2d 466 (Ct. Fed. Claims 1978). The law
required railroads to file maps of all their real property with the ICC, and “[f]or
Southern Railway Company [Norfolk Southern’s predecessor in interest], the ICC
evaluation date was June 30, 1916.” Southern R., 585 F2d at 468.

4
right-of-way granted in the 1868 deed. The map further shows that the right-of-way

is 100 feet wide, 50 feet on each side of the track, measured from the track’s

centerline. The Railroad filed a second valuation map in 1927, and that valuation map

also reflects that the Railroad has a 100-foot right-of-way bisecting what is now Fox’s

land.

Fox purchased the property in question in the fall of 2001, acquiring Tracts 1

and 3 from Total Investment Properties and acquiring Tract 2 from Edmond Holland

and Ted Fuller.5 Neither of the deeds transferring title to Fox contain metes and

bounds descriptions, but the deed conveying title to Tracts 1 and 3 incorporates by

reference a plat of survey dated September 9, 1991, and recorded at Plat Book 23,

page 35. The deed conveying title to Tract 2 incorporates by reference a September

2001 survey done for Fox in conjunction with his purchase of all three tracts, and

recorded at Plat Book 40, page 7. The September 2001 survey depicts all three tracts,

and both the 1991 and the 2001 surveys show that the Railroad owns a 100-foot right-

of-way that lies between Tract 1 and the remaining property.

5
According to Fox, his purchase of Tract 2 was contingent on his ability to
purchase Tract 1, because without Tract 1 he could not access the remainder of the
property.

5
 The train tracks bisecting Fox’s property are part of Norfolk Southern’s “H”

line. In approximately 2007, Norfolk Southern began to plan the construction of a

new passing side track,6 to run parallel to the existing tracks on the H line, including

those tracks bisecting Fox’s property. As part of that process, the Railroad’s

engineering department decided that the optimal design for the new passing track

would require the Railroad to acquire an additional 40 feet of width adjacent to its

existing right-of-way. Norfolk Southern thereafter began approaching property

owners, including Fox, about purchasing from each of them the additional right-of-

way requested by the engineering department. In May 2007, representatives of

Norfolk Southern met with Fox, provided him with a plat showing the additional

property the Railroad was seeking to purchase, and offered to buy the land for

$25,000. According to Fox, he told the Railroad he would give them the property if

they would provide him with a written guarantee that no train would block his private

crossing for more than 30 minutes at a time. The Railroad responded that it could not

provide such a written guarantee, and Fox therefore declined sell them any additional

6
A passing side track allows the train on the main track to pull over so that
another train (usually one traveling in the opposite direction) can pass on the main
track. Thus, according to one Railroad representative, a passing track differs from a
traditional side track in that its usual purpose is not to store trains for a significant
length of time.

6
right-of-way. Engineers at the Railroad then reconfigured the plans for the passing

track so that the portion bisecting Fox’s property would fit entirely within the existing

right-of-way.

The new passing track became operational in January 2008, and according to

Fox, trains routinely sit on the new track and block the private railroad crossing that

serves his property for up to 24 hours at a time. The blockages are so frequent that

Fox, who had previously grazed cattle on the land, can no longer use the property for

that purpose. In September 2010, Fox filed the current lawsuit, alleging that based on

both the language of the 1868 deed and historical use, the Railroad’s right-of-way

was only 45 feet wide. Fox therefore contended that the construction of the sidetrack

on property outside of a 45 foot strip constituted an inverse condemnation of and

trespass against his property. Norfolk Southern removed the case to federal court,

asserting that Fox’s trespass claim was preempted by federal law and asking the court

to exercise supplemental jurisdiction over his claim for inverse condemnation. To

support its preemption argument, the Railroad relied on the Interstate Commerce

Commission Termination Act of 1996 (“ICCTA”), 49 USCS § 10501, et seq. That

statute vests exclusive jurisdiction in the Surface Transportation Board with respect

to legal remedies related to “the construction, acquisition, operation, abandonment,

7
or discontinuance of spur, industrial, team, switching, or side tracks, or facilities . .

. .” 49 USCS §10501 (b) (2). Specifically, Norfolk Southern argued that Fox’s

trespass claim sought a remedy related to the construction and operation of a side

track because if he prevailed on that claim, the Railroad would be required either to

abandon the track or to pay Fox to operate the track. In response, Fox contended that

he was seeking damages only for the initial taking of his property and that “[this]

trespass claim is duplicative of [the] inverse condemnation claim because both are

legal vehicles to ensure that [Fox] is compensated for the loss of his property.” Based

on this representation, the federal court found that Fox’s claims were not preempted

because “[t]he issue of whether [the Railroad] wrongfully took [Fox’s] property does

not relate to the regulation of the Railroad or affect the operation and use of the

Railroad. [The Railroad] could continue operating [its] side track and would have to

compensate [Fox] only for the initial wrongful taking.” The federal court therefore

remanded the case to the state court.

Following extensive discovery, Norfolk Southern moved for summary

judgment, arguing that because the passing side track was constructed entirely within

its 100 foot right-of-way, Fox could not prevail on his claims for trespass and inverse

condemnation. After a hearing, the trial court granted the Railroad’s motion and

8
entered judgment in its favor. Fox then filed a motion for reconsideration and sought

to file an additional affidavit.7 In his motion for reconsideration, Fox asserted for the

first time that Norfolk Southern’s unreasonable interference with his private right of

access across the railroad tracks had resulted in the inverse condemnation of that

portion of his property situated to the east of the tracks. The trial court accepted the

affidavit for filing, and held a hearing on the motion for reconsideration. The trial

court thereafter denied the motion, finding that the additional affidavit did not create

a factual question as to whether the Railroad had taken Fox’s property for

construction of the side track. The court further found that Fox’s claim for the inverse

condemnation of his property east of the railroad tracks (Tracts 2 and 3) was

preempted by the ICCTA. Fox now appeals the grant of summary judgment in favor

of Norfolk Southern and the denial of his motion for reconsideration.

1. Before addressing the merits of this appeal, we consider whether we have

jurisdiction over the same. As noted above, the trial court granted summary judgment

in favor of Norfolk Southern on Fox’s claim for the inverse condemnation of his

7
The affidavit was that of William Collins, who Fox alleged was one of his
predecessors in title. The affidavit had been executed in 2013, and counsel believed
that it had been filed with the court. As a result of a clerical error, however, counsel
discovered that the affidavit had not been filed prior to the grant of summary
judgment.

9
property to the east of the railroad tracks after finding that this claim was preempted

by federal law. “The preemption doctrine is a product of the Supremacy Clause, see

U. S. Const., Art. VI, Cl. 2, which invalidates state laws that interfere with, or are

contrary to, federal law.” Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 598 (3)

(a) (748 SE2d 846) (2013) (citation and punctuation omitted). And under Georgia

law, our Supreme Court has exclusive jurisdiction over appeals “involving

construction of the Constitution of the State of Georgia and of the United States in

all cases in which the constitutionality of a law, ordinance, or constitutional provision

has been called into question.” Atlanta Independent School System v. Lane, 266 Ga.

657 (1) (469 SE2d 22) (1996); Ga. Const. of 1983, Art. VI, Sec. VI, Para. II.

Accordingly, it is well-established that appellate jurisdiction lies exclusively with the

Supreme Court of Georgia in cases where a party asserts an affirmative claim of

preemption. Thus, where a plaintiff sues seeking declaratory or injunctive relief based

on an assertion that a Georgia law, ordinance, or regulation is void in its entirety

because it is preempted by federal law, appellate jurisdiction lies in the Supreme

Court. See, e. g., Ward v. McFall, 277 Ga. 649, 651 (1) (593 SE2d 340) (2004) (direct

appeal to the Supreme Court where plaintiff sought a declaration that the child

support guidelines set forth in OCGA § 19-6-15 (b) were preempted and therefore

10
unconstitutional); Davis v. State, 248 Ga. 783-784 (286 SE2d 430) (1982) (direct

appeal to the Supreme Court from denial of defendant’s motion to dismiss indictment,

in which defendant asserted that the Georgia statute punishing “criminal issuance of

a bad check” was preempted in its entirety by federal law). Similarly, our Supreme

Court has held that it has exclusive appellate jurisdiction where a plaintiff seeks relief

based on an argument that preemption precludes the application of an otherwise valid

state law in a specific category of cases. See Babies Right Start v. Ga. Dept. of Pub.

Health, 293 Ga. 553, 554-555 (1) (748 SE2d 404) (2013) (appellate jurisdiction was

in the Supreme Court where the plaintiff sought both a declaration that Georgia’s

Administrative Procedure Act could not apply to an ALJ’s ruling regarding vendor

eligibility to participate in the federal WIC program and accompanying injunctive

relief).

Traditionally, however, this Court has exercised appellate jurisdiction in those

cases that do not involve an affirmative claim of preemption – i.e., where preemption

is raised as a defense and where that defense does not involve a direct constitutional

challenge to an entire statute, ordinance or regulation on preemption grounds. In other

words, we have exercised jurisdiction in those cases where a defendant argues that

the plaintiff’s otherwise cognizable state law claim is preempted under the

11
circumstances of the particular case. See Perry v. Intl. Longshoremen Assn. Local No.

1414, 295 Ga. App. 799, 801 (2) (673 SE2d 302) (2009) (holding that the individual

appellants — current and former union members — could not prevail on their defense

that federal law preempted the award of amounts each allegedly owed the union);

Parks v. Hyundai Motor America, 294 Ga. App. 112, 113-114 (1) (668 SE2d 554)

(2008) (affirming grant of summary judgment in favor of defendants based on finding

that plaintiffs’ state law tort claims for defective design and failure to warn were

preempted by federal regulations promulgated under the National Traffic and Motor

Vehicle Safety Act of 1996); Continental Pet Technologies v. Palacias, 269 Ga. App.

561, 562 (1) (604 SE2d 627) (2004) (rejecting employer’s defense that the federal

Immigration Reform and Control Act of 1986 and regulations promulgated

thereunder preempted Georgia law “for employment purposes relating to workers’

compensation”); Smith v. Mitchell Constr. Co., 225 Ga. App. 383, 386 (2) (481 SE2d

558) (1997) (affirming grant of summary judgment to defendants and holding that

plaintiff’s state law tort claims resulting from judgment creditor’s violation of

bankruptcy stay were preempted by federal bankruptcy law); Central of Ga. R. Co.

v. Markert, 200 Ga. App. 851, 851-852 (2) (410 SE2d 437) (1991) (finding plaintiff’s

state law negligence claims based on the railroad’s alleged failure to equip its

12
locomotive with adequate safety and warning devices and the alleged operation of

that locomotive at excessive speeds were preempted by federal law). But see Poloney

v. Tambrands, Inc., 260 Ga. 850, 851 (1) (412 SE2d 526) (1991) (direct appeal to

Supreme Court from trial court’s grant of partial summary judgment to defendant

based on its finding that federal regulations “expressly preempt state tampon warning

label requirements for toxic shock syndrome, including those that emanate from state

tort law”) (citations omitted).

As the foregoing demonstrates, the preemption defense cases in which we have

exercised jurisdiction have not required us to determine “the constitutionality of a

[specific] law, ordinance, or constitutional provision.” Instead, they required us to

apply well-settled principles of law to determine whether federal law preempts state

law in a specific case, thereby barring the plaintiff’s state law cause of action. See

generally City of Philadelphia v. New Jersey, 430 U. S. 141, 142 (97 SCt 987, 51

LE2d 224) (1977) (in explaining its decision to remand the case to allow the New

Jersey Supreme Court to resolve the question of whether federal law preempted a

state statute before it addressed whether that statute discriminated against or unduly

burdened interstate commerce, the Court noted that while preemption is “ultimately

a question under the Supremacy Clause, analysis of pre-emption issues depends

13
primarily on statutory and not constitutional interpretation”) (citation and punctuation

omitted). And it appears that our Supreme Court has approved of our exercise of

jurisdiction in such cases, at least implicitly. See Perry, 295 Ga. App. 799 (appeal

transferred to Court of Appeals from Supreme Court, even though the asserted

defense was based, in part, on preemption); Allen v. Wright, 282 Ga. 9, 11-12 (1) (644

SE2d 814) (2007) (addressing a preemption defense and affirming this Court’s

finding that HIPPA preempted OCGA § 9-11-9.2, which required a medical release

form to be filed with a complaint alleging medical malpractice; the Supreme Court

made no comment regarding this Court’s exercise of appellate jurisdiction); Advance

PCS v Bauer, 280 Ga. 639 (632 SE2d 95) (2006) (addressing a preemption defense

and reversing this Court’s decision that plaintiff’s state law claims were not

preempted by ERISA; the opinion raises no question regarding this Court’s exercise

of jurisdiction).

Despite our exercise of jurisdiction in appeals involving the assertion of a

preemption defense, the Supreme Court’s relatively recent decision in Babies Right

Start warrants closer consideration. In Babies Right Start, the appeal was originally

filed in this Court, but we transferred the case to the Supreme Court, presumably

based on the fact that it involved an affirmative claim of preemption. The opinion

14
noted the transfer and broadly stated that the plaintiff’s “preemption argument brings

the appeal under our constitutional question jurisdiction” and that “the Court of

Appeals lack[ed] jurisdiction” over the appeal. 293 Ga. at 554 (1) (citation and

emphasis supplied). Although this language arguably could indicate that the Supreme

Court has exclusive appellate jurisdiction whenever a preemption question is raised

(whether by a plaintiff seeking affirmative relief or by a defendant seeking to avoid

liability under traditional state tort or property law), we are mindful that the case

involved an affirmative claim of preemption which this Court historically has

transferred. Further, this Court has continued to exercise jurisdiction in cases

involving a preemption defense.8 See Midville River Tract v. Central of Ga. R. Co.,

339 Ga. App. 546, 549-550 (1) (794 SE2d 192) (2016), cert. denied, Case No.

S17C0712 (May 30, 2017) (affirming grant of summary judgment in favor of railroad

defendants based on a finding that the Federal Railroad Safety Act preempted

plaintiff’s state law negligence claims); PLIVA, Inc. v. Dement, 335 Ga. App. 398,

8
Citing Babies Right Start, we have also transferred to the Supreme Court
cases involving an affirmative claim of preemption. See Community & Southern Bank
v. Lovell, Case No. S17A0765, docketed December 14, 2016 (transfer order noted
that a primary issue on appeal is whether the federal Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 preempts two Georgia statutes, OCGA §
§18-2-79 and 44-12-24).

15
401-402 (1) (a) (780 SE2d 735) (2015) cert. granted, Case No. S16C0685 (September

6, 2016) (appeal withdrawn February 10, 2017) (reversing trial court’s finding that

plaintiff’s state law negligence claims based on inadequate warnings on prescription

drugs were preempted by federal law). In light of that fact, and given that this case

involves a preemption defense rather than an affirmative claim of preemption and

does not require us to decide whether a specific statute, ordinance, or regulation is

preempted in its entirety by federal law, we have presumed to exercise jurisdiction

over this appeal. We do so, however, cognizant of the fact that the ultimate

responsibility for construing Georgia’s constitutional provisions regarding appellate

jurisdiction rests with the Supreme Court, and not this Court. See Saxton v. Coastal

Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 SE2d 587) (1996).

2. We turn now to the merits of Fox’s appeal. In his first claim of error, Fox

does not dispute that Norfolk Southern constructed the passing track entirely within

the 100 foot right-of-way it claims under the 1868 deed. He contends, however, that

the Railroad does not, in fact, hold title to that entire right-of-way and that the trial

court erred in concluding otherwise. Specifically, Fox argues that under the language

of the 1868 deed, the Railroad’s right-of-way “was determined by the sighting of the

new railroad,” and that the “railroad as built stretches no more than [45] feet from

16
ditch to ditch.” Fox further contends that the Railroad never used any land beyond the

ditches before building the sidetrack. Given these facts, Fox argues that the right-of-

way to which Norfolk Southern holds title is, in fact, only 45 feet wide. We disagree.

(a) As an initial matter, we note that it appears that Fox’s argument on this

issue is foreclosed by OCGA § 46-8-100. Enacted in 2008, that statute provides, in

relevant part:

A railroad company organized and incorporated as provided in this
chapter shall be empowered: . . .
(3) To acquire, purchase, hold, and use all such real estate and other
property as may be necessary for the construction and maintenance of
said road and of the stations, . . . and all other accommodations
necessary to accomplish the object of the corporation; and to condemn,
lease, or buy any land necessary for its use; provided, however, that to
the extent an issue arises over the dimensions of any such acquisition by
a railroad corporation or railroad company which occurred prior to
1913, such dimensions shall be determined by reference to the
documents evidencing any such transaction and by examining the
official map of the railroad filed with the Interstate Commerce
Commission pursuant to the Railroad Valuation Act of March 1, 1913,
Stat. 701, as amended, and such depictions contained on such official
railroad map shall be conclusive as to the dimensions of any acquisition
as of the date of such railroad map; . . .

17
(Emphasis supplied.) Under the plain terms of this statute, the 1913 valuation map

showing the Railroad’s 100 foot right-of-way is conclusive evidence as to the

dimensions of that right-of-way.

In an effort to avoid this statute, Fox argues that because this version of OCGA

§ 46-8-100 did not become effective until after the construction of the sidetrack, it

cannot apply to this dispute, because such an application would “retroactively”

deprive Fox of his vested rights in the disputed property. To prevail on this argument,

however, Fox was obligated to come forward with some evidence showing that he

does, in fact, have an ownership interest in the property at issue — either by virtue

of title or by acquisition through adverse possession. As is shown below, however,

Fox has failed to present any such evidence.

(b) Fox argues that the language of the 1868 deed, which granted Norfolk

Southern’s predecessor in interest “a strip of land . . . of sufficient width” on which

to build the railroad, not to exceed 100 feet, shows that the deed conveyed to the

Railroad only that land which the company actually utilized at the time it built the

tracks. Put another way, Fox argues that under the terms of the 1868 deed, the width

of the right-of-way was determined by the space physically occupied by the Railroad

when it constructed the tracks, that title to the unclaimed portion of the 100-foot

18
right-of-way remained with the landowner, and that title to that property subsequently

passed to him. This argument, however, finds no support in the record.

For purposes of determining Fox’s taking claim, the relevant question is

whether Fox, in fact, holds title to the property in question. And in this case, the

record shows that he does not. As noted above, although Fox’s deeds of title do not

contain a metes and bounds description of the property he was purchasing, each deed

incorporates by reference a plat of survey. And under Georgia law, “a deed

incorporating a recorded plat by reference as the legal description [of the property]

has the same effect as if written out in the deed.” Jones v. Bowen, 244 Ga. App. 300,

302 (535 SE2d 501) (2000) (footnote omitted). Thus, because each of the surveys

incorporated into Fox’s deeds shows the Railroad as having a 100-foot right-of-way,

the evidence demonstrates that Fox did not take title to any portion of that right-of-

way. In other words, regardless of any ambiguity found in the 1868 deed, the record

shows that by the time Fox purchased the property, the Railroad held title to a 100

19
foot right-of-way and that Fox purchased his land with knowledge of that fact.9

Accordingly, Fox’s claim that he holds title to any part of the 100-foot right-of-way

is without merit.

(c) Despite the foregoing, Fox argues that in its responses to his Requests to

Admit, Norfolk Southern admitted it did not own the property on which it constructed

the side track, and that it is bound by the those admissions. We disagree.

Norfolk Southern first contacted Fox by letter about purchasing the additional

40 feet of width adjacent to its right-of-way. Attached to the letter was part of a plat

copied from a tax map and showing the Railroad’s right-of-way bisecting Fox’s

property. In addition to depicting Norfolk Southern’s 100 foot right-of-way, the plat

also showed the additional right-of-way (totaling one-half acre) that Norfolk Southern

proposed to acquire from Fox. On the plat an arrow is drawn, pointing to a corner

near where the existing right-of-way and the proposed additional right-of-way would

9
Despite Fox’s assertions to the contrary, the unrefuted evidence of record
shows that the Railroad has historically used the entire 100 foot width. The track
supervisor responsible for maintaining the right-of-way bisecting Fox’s property
testified that Norfolk Southern does, in fact, use all of its right-of-way, though it may
not use the entire right-of-way “at all times.” The supervisor further explained that
the right-of-way “is the only [property] the [Railroad has] to use for our track
maintenance. Any materials that need to be unloaded or stockpiled, any debris that
we have to remove, has to be done within the limits of the right-of-way.”

20
meet, with the notation “south edge of the culvert.”10 It cannot be determined from the

drawing whether the south edge of the culvert is within the 100 foot right-of-way or

within the proposed additional right-of-way. It is undisputed, however, that the

property on which Norfolk Southern built the new side track includes the south edge

of the culvert.

Fox attached a copy of the plat sent to him by the Railroad to his second

Requests to Admit, and asked Norfolk Southern to admit that it offered to purchase

the property shown on the plat; that the Railroad offered to purchase the property

because it did not own that property; that Fox refused to sell the property to Norfolk

Southern; and that the Railroad was now in possession of at least part of the property.

According to the parties,11 Norfolk Southern admitted that it “offered to purchase the

40 foot strip” shown on the plat; that it offered to purchase this property because it

10
There are culverts situated within the 100 foot right-of-way, running
underneath the railroad tracks.
11
It appears that Fox never filed Norfolk Southern’s responses with the trial
court, as no copy of those responses is included in the appellate record. In his brief,
Fox cites only to a copy of the Requests to Admit, but that copy does not include the
Railroad’s responses. In its brief, Norfolk Southern cites to Fox’s trial court brief,
filed in response to the summary judgment motion, in which Fox quotes both the
Requests and the Railroad’s purported responses. Given that Norfolk Southern does
not challenge Fox’s failure to file the responses or dispute the content of those
responses, we have assumed that the parties’ briefs accurately represent the same.

21
did not own the same; and that Fox refused to sell the Railroad this property. Norfolk

Southern denied, however, that it was in possession of any of the property it had

offered to purchase from Fox.

Fox contends that the proposed offer Norfolk Southern made to him shows that

the existing right-of-way did not extend past the south edge of the culvert. Based on

this interpretation of the plat attached to the offer, Fox reasons that the Railroad’s

admission that it did not own the property it proposed to buy from Fox constitutes an

admission that Norfolk Southern did not own any property beyond the culvert. As

noted above, however, it is impossible to determine from the plat the precise location

of the southern edge of the culvert. Moreover, the plat does not constitute a survey,

and there is no evidence it was taken from a survey. And the option to purchase that

the Railroad proposed to have Fox sign and that accompanied its written offer

provided, in relevant part, “The area and legal description of the Premises [to be

purchased] shall be determined by an accurate field survey as soon as practicable after

the execution of this Option . . . .” Additionally, Norfolk Southern denied that it built

outside its right-of-way; the plat shows that the Railroad has a 100 foot right-of-way;

and Fox does not dispute that if the right-of-way is 100 feet wide, the passing track

is situated on Railroad property. In light of this evidence, Norfolk Southern’s

22
admission that it did not own the property it proposed to buy from Fox does not create

a disputed question of fact as to whether the Railroad’s right-of-way is 100 feet wide.

3. Fox argues that even if the Railroad did acquire title to a 100 foot right-of-

way, he has gained ownership of a portion of that property (including the portion on

which the sidetrack is situated) through adverse possession. One who is claiming title

by adverse possession bears the burden of showing that while acting under a claim

of ownership, he has been in “public continuous, exclusive, uninterrupted, and

peaceable” possession of the land in question for a period of at least 20 years.12

OCGA § 44-5-161 (3), § 44-5-163; Arnold v. Shackelford, 219 Ga. 839, 843 (2) (136

SE2d 384) (1964). The question of whether the facts as alleged by the claimant are

sufficient to support a claim of adverse possession is one of law, to be determined by

the court. Henson v. Tucker, 278 Ga. 859, 861 (1) (630 SE2d 64) (2006). Here, we

agree with the trial court that even to the extent they are supported by evidence, the

facts asserted by Fox cannot support his adverse possession claim.

12
In this case, it appears that Fox seeks to satisfy the 20-year requirement by
tacking his period of possession onto the successive periods of possession by his
predecessors in title. See Steinichen v. Stancil, 284 Ga. 580, 582 (669 SE2d 109)
(2008).

23
 Fox relies on two facts to support his claim of prescriptive title: the existence

of a long-standing “hog wire” fence that he contends was situated within the 100 foot

right-of-way and the use of the right-of-way by one of his purported predecessors in

title, William Collins.13 Neither of these facts, however, supports a claim of adverse

possession.

First, assuming that the fence is located within the Railroad’s right-of-way,

there is no evidence that the fence was constructed or maintained under a claim of

right — i.e., for the purpose of allowing Fox and his predecessors to claim title to the

Railroad’s property. Fox testified that the fence was there when he purchased the

property, and he estimated that it had been there for decades, because in places it was

covered in vines, the wire was rusted to the point it was crumbling, and many of the

posts were rotting and falling over. The fence was not exclusive to Fox’s property,

13
We note there is no evidence in the record showing that Collins was, in fact,
a predecessor in interest to Fox. In his brief, Fox cites Collins’s affidavit in support
of his assertion that from 1976 to 1991 Collins owned that part of the Fox property
that lies to the west of the railroad tracks. Collins’s affidavit, however, merely states
that he “owned property adjacent to the Railroad’s right-of-way at issue in this
dispute from 1976 through 1991.” He further avers that the property he owned
consisted of a 9 acre tract “between Old Dalton Road and the Railroad,” but he does
not further identify that property. In its brief, however, Norfolk Southern does not
challenge the assertion that Collins was a predecessor in interest to Fox, and we have
therefore assumed that Fox now owns the property referenced in Collins’s affidavit.

24
but continued onto the property of a neighbor who, like Fox, kept cattle. And Fox

acknowledged that whoever constructed the fence may have done so to keep cattle

off the tracks. The surveyor Fox hired offered similar testimony, acknowledging that

he could not tell if the fence was placed to delineate property lines, and that it was

possible that the fence had been erected to keep cattle off the tracks.

Fox further testified that he did not know who erected the fence, and that it

could have been either a prior property owner or the Railroad. Additionally, Fox

opined that to the extent the fence was in the Railroad’s right-of-way, its placement

may have resulted from the fact that the 1868 deed gave the landowner the right to

utilize the property within the right-of-way for agricultural purposes. Finally, in his

affidavit, Collins stated that during the 15 years he owned land adjacent to the right-

of-way, he maintained an “existing fence” and also maintained a gate in the fence “to

allow access across the railroad crossing bordering my property.” Collins further

averred that “[t]he purpose of this fence and the locked gate was to prevent intrusions

and trespass on the railroad right-of-way as well as to secure my property.”

(Emphasis supplied.) Thus, Collins’s affidavit establishes that he was not using the

fence or the gate to assert ownership of the Railroad’s right-of-way.

25
 Moreover, as Fox acknowledged in his testimony, the 1868 deed gave the

landowner a limited right to use the land within the right-of-way. And Fox has

presented no evidence that any use of the Railroad’s right-of-way by Fox and his

predecessors was anything other than permissive. See Woods v. Brannen, 208 Ga.

495, 496 (67 SE2d 702) (1951). Permissive possession, however, “cannot be the

foundation of a prescription until an adverse claim [of ownership] and actual notice

[of that claim] to the other party.” OCGA § 44-5-161 (b). See also Drew v. DeKalb

County, 239 Ga. 35, 37 (2) (235 SE2d 528) (1977). For Fox’s use of the land to

establish adverse possession, therefore, he and his predecessors in interest were

required to provide actual notice to Norfolk Southern of their adverse claim to that

land. Woods, 208 Ga. at 496 (1) (where a deed conveying a right-of-way to a railway

company reserved to the landowner the right to cultivate the land up to the tracks

“until needed for railway purposes,” the landowner’s subsequent possession of land

within the right-of-way was permissive, and could not ripen into prescriptive title in

the absence of an adverse claim and actual notice to the railway of that claim). Id. See

also Drew, 239 Ga. at 37 (2) (landowner’s adverse possession claim as to a railroad’s

right-of-way failed, where the evidence showed that her use of that land “originated

by permission, and that she had given no actual notice to the railroad, or its

26
predecessors in title, of any adverse claim by her to the portion used”). To provide

notice of an adverse claim, the use and occupation of the land in question must be “so

notorious as to attract the attention of every adverse claimant and so exclusive as to

prevent actual occupation by another.” Henson, 278 Ga. at 862 (1) (punctuation and

footnote omitted). See also Arnold, 219 Ga. at 843. In this case, however, no evidence

shows that the fence served to exclude Norfolk Southern from its right-of-way. With

respect to this issue, Norfolk Southern’s track supervisor testified that while Norfolk

Southern was aware of the fence, it did not consider the fence an encroachment on its

right-of-way because the fence did not interfere with the Railroad’s access to its

property.

4. In his motion for reconsideration, Fox argued for the first time that the

Railroad’s construction and use of the passing track had resulted in an unreasonable

interference with his right of access to his property east of the railroad tracks, and that

a question of fact existed as to whether this interference had resulted in a taking of

that property.14 The trial court heard argument on this issue and subsequently denied

14
Although Fox did not raise this argument in his response to the Railroad’s
motion for summary judgment, the trial court allowed him to pursue the argument as
part of his motion for reconsideration, and the trial court ruled on that argument.
Accordingly, because the issue was raised and ruled on in the court below, we may
consider this claim of error. See RL BB ACQ I-GA CVL, LLC v. Workman, 341 Ga.

27
the MFR, based in part on its finding that Fox’s claim for the inverse condemnation

of Tracts 2 and 3 was preempted by federal statutory law. Fox challenges this ruling

on appeal. We agree with Fox that the trial court erred in finding that his claim for the

alleged taking of Tracts 2 and 3 was preempted by federal law. Given this fact, and

because the record shows a question of fact as to whether the Railroad’s interference

with Fox’s access to his property constitutes a taking of the same, we reverse that part

of the trial court’s order.

(a) We first note that, despite Norfolk Southern’s assertions to the contrary, any

unreasonable interference with Fox’s ability to access Tracts 2 and 3 can support a

claim for inverse condemnation. Under Georgia law, a claim for inverse

condemnation arises whenever a governmental or public entity creates a condition

with respect to private property that results in a taking of that property. Ga. Dept.. of

Transp. v. Jackson, 322 Ga. App. 212, 215 (744 SE2d 389) (2013). See also Waters

v. DeKalb County, 208 Ga. 741, 744 (69 SE2d 274) (1952). Georgia law further

recognizes that “[t]he right of access, or easement of access, to a public road is a

property right which arises from the ownership of land contiguous to a public road,

and the landowner cannot be deprived of this right without just and adequate

App. 127, 139 (6) (a) (798 SE2d 677) (2017).

28
compensation . . . .” MARTA v. Datry, 235 Ga. 568, 575 (I) (220 SE2d 905) (1975)

(citations omitted). Thus, a taking of property occurs whenever an entity with the

power of eminent domain substantially interferes with a landowner’s means of ingress

and egress to his property, and “[t]he measure of damages is any dimunition in the

market value of the property by reason of such interference.” Dept. of Transp. v.

Robinson, 260 Ga. App. 666, 667 (1) (580 SE2d 535) (2003) (footnote omitted).

With respect to such a taking, we note that it is irrelevant that the landowner’s

access from the public road depends on one or more easements he may have over the

property of another — including an easement across railroad tracks. See Jackson, 322

Ga. App. 212. In Jackson, we affirmed a jury verdict in favor of the plaintiff on his

inverse condemnation claim against the DOT, which resulted from the DOT’s closure

of a driveway that ran from a state highway “across a tract of land with no record of

ownership and over a railroad crossing before reaching Jackson’s property.” Id. at

212. Finding that the evidence supported the conclusion that Jackson had established

a prescriptive easement over the driveway, including the railroad crossing, we found

that the evidence also supported Jackson’s claim for inverse condemnation, based on

the DOT’s taking of his easement. Id. at 215-216.

29
 Moreover, an inverse condemnation claim is available even when the

interference with a property owner’s access results from changes made to property

owned entirely by the party causing the interference. See Louisville & N. R. Co. v.

Merchants’ & Farmers’ Bank, 166 Ga. 310 (2) (a) (143 SE 506) (1928) (where

railroad’s relocation of its tracks within its right-of-way resulted in local businesses

losing ingress and egress to their property, the railroad had affected a taking of that

property and was required to compensate the business owners); Athens Terminal Co.

v. Athens Foundry & Machine Works, 129 Ga. 393, 401 (3) (58 SE 891) (1907)

(railroad required to compensate property owner for the taking of its property where

the new track, built entirely on property owned in fee simple by the railroad,

interfered with the “right of egress and ingress to the lot owned in fee simple by the

Foundry Company”); Robinson, 260 Ga. App. at 667 (1); DeKalb County v. Glaze,

189 Ga. App. 1 (375 SE2d 66) (1988). Robinson involved the DOT’s decision to

eliminate an acceleration/deceleration lane on a public highway that provided access

to the Robinson’s business. After purchasing property along the state highway and

building an automotive repair shop thereon, the Robinsons had constructed the lane

pursuant to an agreement with the DOT, to accommodate the tractor-trailer trucks

being serviced at their business. Robinson, 260 Ga. App. at 666. The Robinsons

30
thereafter deeded the property on which the acceleration/deceleration lane was

situated to the DOT, and during a subsequent road widening project, the DOT

decided to eliminate that lane. The Robinsons sued for inverse condemnation,

claiming that the elimination of the lane interfered with their easement of access. Id.

The jury found in favor of the Robinsons and the DOT appealed, arguing that because

they owned the property on which the lane was situated, the Robinsons could not

assert a taking based on the lane’s closure. This Court disagreed, noting that public

improvements that result in “a substantial impairment of the property owner’s

‘easement of access’” may constitute a taking. Id. at 668 (1) (punctuation and

footnote omitted). See also Glaze, 189 Ga. App. at 2 (1) (“it is well settled that if the

installation of [public] improvements results in a substantial impairment of the

property owner’s ‘easement of access,’ a taking has occurred for which compensation

is required regardless of the importance of the public interests which are thereby

promoted”), citing Dougherty County v. Hornsby, 213 Ga. 114, 116-117 (1) (97 SE2d

300) (1957).

In this case, it is undisputed that Fox’s sole means of ingress and egress from

the public road to that part of his property east of the railroad tracks is by means of

31
an easement over the Railroad’s right-of-way.15 Additionally, Fox testified that

Norfolk Southern frequently parks trains on the passing track, and thereby blocks his

access to Tracts 2 and 3, for up to 24 hours at a time. And according to Fox, the lack

of predictable access to Tracts 2 and 3 has rendered that property useless for at least

one of the agricultural purposes for which it is zoned — grazing cattle. Given this

evidence, a question of fact exists as to whether the passing track substantially

interferes with Fox’s access to his property to the extent that a taking of that property

has occurred. See Glaze, 189 Ga. App. at 2 (1) (finding that whether the county’s

installation of curbs in its existing right-of-way “substantially interfered with” a store

owner’s access to his property was a “question[ ] of fact to be resolved by the jury”).

The trial court, however, never considered the merits of Fox’s claim for the taking of

15
It appears that the 1868 deed, which obligates the Railroad to construct and
maintain all “necessary” railroad crossings, created an express easement in favor of
the landowner. See Albenberg v. Szalay, 332 Ga. App. 665, 667-668 (2) (774 SE2d
730) (2015). Alternatively, Fox is entitled under Georgia law to claim an implied
easement. Id. at 668-669 (4). See also Eardley v. McGreevy, 279 Ga. 562, 563 (1)
(615 SE2d 744) (2005).

32
his property east of the railroad tracks, finding instead that such a claim was

preempted by federal statutory law.16 This ruling was in error.

(b) The trial court found that Fox’s claim for the inverse condemnation of the

property in question was preempted by the provisions of the ICCTA. Enacted in 1996,

this statute abolished the Interstate Commerce Commission and created the Surface

Transportation Board (“STB” or “the Board”) to administer the Act. See Elam v.

Kansas City Southern R. Co., 635 F3d 796, 804 (2) (5th Cir. 2011); 49 USC §§

10101, 10102 (1). In the ICCTA, Congress expressly conferred on the STB exclusive

jurisdiction over the regulation of railroad transportation. With respect to the Board’s

regulatory authority, the Act provides:

16
On appeal, Fox points to the federal court’s remand order, in which the
district court found that because Fox’s trespass claim was actually a claim for the
taking of the property on which the side track was built, the claim was not preempted
by federal statute. Fox contends that this order has a preclusive effect, and operated
to bar the trial court from considering the issue of preemption. We disagree. Where,
as here, a remand order is based on a finding that the district court lacked subject
matter jurisdiction, the federal court’s order “has no preclusive effect on the state
court’s resolution of [a defendant’s] preemption defense in the same case.” In Re
Loudermilch, 158 F3d 1143, 1146 (11th Cir. 1998). Thus, after being “reinvested
with the jurisdiction,” “[t]he state court is competent to revisit the district court’s
determination” as to the issue of preemption. Id. See also Soley v. First Nat. Bank of
Commerce, 923 F2d 406, 409 (II) (5th Cir. 1991) (where a federal district court’s
remand order is based on jurisdictional grounds, that order “will have no preclusive
effect on the state court’s consideration of [a] substantive preemption defense”); 28
USCA § 1447 (c).

33
 The jurisdiction of the Board over
(1) transportation by rail carriers, and the remedies provided in this part
with respect to rates, classifications, rules (including car service,
interchange, and other operating rules), practices, routes, services, and
facilities of such carriers; and
(2) the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching, or side tracks, or
facilities, even if the tracks are located, or intended to be located,
entirely in one State, is exclusive. Except as otherwise provided in this
part, the remedies provided under this part with respect to regulation of
rail transportation are exclusive and preempt the remedies provided
under Federal or State law.

49 USC §10501 (b) (emphasis supplied).

Recognizing that the STB “is uniquely qualified to determine whether state law

should be preempted by the ICCTA,” courts have traditionally looked to STB

decisions when analyzing a claim of preemption. Emerson v. Kansas City S. R. Co.,

503 F3d 1126, 1130 (III) (A) (10th Cir. 2007). See also Adrian & Blissfield R. Co. v.

Village of Blissfield, 550 F3d 533, 540 (II) (B) (6th Cir. 2008); New Orleans & Gulf

Coast R. Co. v. Barrios, 533 F3d 321, 331-332, (III) (B) (5th Cir. 2008); Green

Mountain R. Corp. v. Vermont, 404 F3d 638, 642 (II) (2d Cir. 2005). In 2005, the

Board articulated a framework for analyzing preemption claims, and under that

34
framework, state and local laws and/or claims asserted under those laws may be

preempted either categorically or as applied.17 CSX Transp., Inc.–Petition for

Declaratory Order, 2005 WL 1024490, at *2-3 (STB May 3, 2005). See also Barrios,

533 F3d at 322 (describing the STB’s analytical framework); Wedemeyer v. CSX

Transp., 850 F3d 889, 894-895 (II) (7th Cir. 2017). A state or local law (and any

action brought thereunder) is categorically preempted if the law itself or the remedy

it provides “directly conflict[s] with exclusive federal regulation of railroads” and

17
Federal courts have recognized that the STB’s use of the term “categorical
preemption” refers to what is more commonly known as express preemption, while
its use of the term “as applied preemption” refers to what is more commonly known
as implied preemption. See Franks Investment Co. v. Union Pacific R. Co., 593 F3d
404, 409-414 (II) (5th Cir. 2010) (en banc); PCS Phosphate Co. v. Norfolk Southern
Corp., 559 F3d 212, 217-218 (II) (A), 220-221 (4th Cir. 2009).

35
thereby unreasonably burdens interstate commerce.18 CSX Transp., 2005 WL

1024490 at*3 (1). See also Union Pacific R. Co. v. Chicago Transit Auth., 647 F3d

675, 679 (II) (7th Cir. 2011).

The second category of preempted state laws are those that are preempted as

applied. The as-applied preemption analysis is used in those cases involving a

18
Categorically preempted laws and actions fall into one of two categories.
The first is any form of state or local permitting or preclearance, that by
its nature, could be used to deny a railroad the ability to conduct some
part of its operations or to proceed with activities that the Board has
authorized. Second, there can be no state or local regulation of matters
directly regulated by the Board – such as the construction, operation,
and abandonment of rail lines; railroad mergers, line acquisitions, and
other forms of consolidation; and railroad rates and service. Both types
of categorically preempted actions by a state or local body would
directly conflict with exclusive federal regulation of railroads. . . . In
other words, state and local laws that fall within one of the precluded
categories are a per se unreasonable interference with interstate
commerce.

CSX Transp., 2005 WL 1024490 at *2-3 (citations and footnotes omitted). See also
Barrios, 533 F3d at 332 (III) (B). Accordingly, when deciding whether a state law or
cause of action is categorically preempted, the “analysis is addressed not to the
reasonableness of the particular state or local action, but rather to the act of regulation
itself.” CSX Transp., 2005 WL 1024490, at *3 (1). See also Barrios, 533 F3d at 332
(III) (B).

36
traditional state law cause of action — i.e., a cause of action that arises under

generally applicable statutory or common law that is not directed specifically at

railroads or their property. See Tubbs v. Surface Transp. Bd., 812 F3d 1141, 1144-

1145 (II) (A) (8th Cir. 2015) (using the as-applied analysis to determine whether

plaintiff’s numerous state law claims, including a claim for inverse condemnation

were preempted under the ICCTA); Island Park, LLC v. CSX Transp., 559 F3d 96,

99 (2d Cir. 2009) (conducting an as-applied analysis to determine whether federal law

claims for taking of property without compensation were preempted); Union Pacific,

647 F3d at 679-680 (II) (A) (because state-law condemnation actions are necessarily

fact-dependent proceedings, the question is whether the action was preempted as

applied); Franks, 593 F3d at 411 (II) (A) (as-applied analysis controls suit governed

by Louisiana property law, as that law was not intended “to regulate railroad

transportation”); Guild v. Kansas City Southern R. Co., 541 Fed. Appx. 362, 368 (IV)

(5th Cir. 2013) (as-applied analysis governs negligence suit brought under

Mississippi tort law for damage done by railroad to a privately-owned spur track

adjoining the railroad’s main track); Norfolk Southern Railway Co. – Petition for

Declaratory Order, 2013 WL 5891582 *3 (STB November 4, 2013) (the as-applied

analysis controls the question of whether the ICCTA preempts state law claims for

37
inverse condemnation). In such cases, preemption occurs not because the law itself

seeks to regulate railroads, but because allowing a particular state law claim to

proceed would “have the effect of unreasonably burdening or interfering with rail

transportation.” Franks, 593 F3d at 414 (II) (A). See also CSX Transp., 2005 WL

1024490 at *3. The question of whether a state law cause of action is preempted as

applied is a fact-specific one, and depends heavily on the circumstances of a

particular case. Tubbs, 812 F3d at 1144; Norfolk Southern, 2013 WL 5891582 at *3

(1).

Here, because Fox is asserting a traditional state law claim for inverse

condemnation, we analyze Norfolk Southern’s preemption defense under the as-

applied standard. Tubbs, 812 F3d at 1144 (II) (A). Specifically, “we must assess

whether, as applied to the facts of this case, [Georgia inverse condemnation law]

would have the effect of unreasonably burdening or interfering with rail

transportation.” Guild, 541 Fed. Appx. at 367-368 (IV). See also Adrian & Blissfield

R. Co., 550 F3d at 540 (II) (B).

Despite the fact that Norfolk Southern, as the party asserting federal

preemption, bears the burden of proving that the doctrine applies in this case, Guild,

541 Fed. Appx. at 368, its brief neither offers any argument nor cites to any evidence

38
showing that rail transportation will be burdened if Fox should prevail on his inverse

condemnation claim.19 Instead, Norfolk Southern argues that Fox’s claim is

preempted because it arises out of the construction and use of a side track. While that

fact is certainly relevant for purposes of analyzing the question of preemption, it is

not determinative of that question. Instead, as explained above, Norfolk Southern is

required to show that Fox’s inverse condemnation claim, if successful, would burden

or interfere with rail transportation. Moreover, the Railroad must be able to identify

an articulable, specific burden or interference that Fox’s claim would impose on rail

transportation. Id. (to show that a state law claim is preempted by the ICCTA, a

railroad must come forward with something more than “general evidence or

assertions” that the claim “would somehow affect rail transportation”); Franks, 593

F3d at 415 (II) (A) (reversing a district court’s finding that a Louisiana law granting

landowners the right to establish private, grade-level crossings on railroad property

was preempted by the ICCTA; the appellate court noted that the railroad showed only

that, as a general rule, railroad crossings affect rail transportation in incidental ways

19
Indeed, all of the briefs submitted in this case by both Norfolk Southern and
Fox have provided little guidance with respect to the question of preemption.
Specifically, neither party’s briefs (including the supplemental briefs on preemption
requested by this Court) identify or apply the relevant test for determining whether
the ICCTA preempts Fox’s state law claim for inverse condemnation.

39
and it failed to tie any of the problems generally associated with crossings, such as

increased costs, drainage problems, or decreased rail speeds, to the crossings at issue).

Based on the current record, Norfolk Southern has failed to make this required

showing.

In its brief, Norfolk Southern attempts to equate Fox’s claim for inverse

condemnation with a state law claim for continuing nuisance,20 and it seems to argue

that the relief afforded by such a claim would interfere with railroad operations. This

argument, however, ignores the fact that under Georgia law, a claim for continuing

nuisance affords very different relief than that afforded by a claim for inverse

condemnation. A plaintiff who prevails on a claim for continuing nuisance may

recover accrued damages (i.e., all damages that have accrued within the four years

preceding the suit) for not only any physical damage to property but also “for

annoyance and discomfort caused by such nuisance as a result of the maintenance of

the [same].” Weller v. Blake, 315 Ga. App. 214, 216 (1) (726 SE2d 698) (2012). See

also Reid v. Gwinnett County, 242 Ga. 88, 89 (249 SE2d 559) (1978). Furthermore,

20
To the extent that Norfolk Southern is arguing that Fox has asserted that the
sidetrack constitutes a permanent nuisance (i.e., a nuisance that cannot be abated), we
note that a permanent nuisance can give rise to a claim for inverse condemnation. See
Liberty County v. Eller, 327 Ga. App. 770, 771-772 (761 SE2d 164) (2014).

40
a continuing nuisance claim subjects a defendant to an award of punitive damages,

and it also allows the plaintiff to obtain injunctive relief requiring the defendant to

take affirmative action to abate the nuisance. Reid, 242 Ga. at 89, Weller, 315 Ga.

App. at 219 (3) (a). See also Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727,

731 (2) (426 SE2d 387) (1992) (the maintenance of a nuisance “is the failure to abate

the nuisance after notice by the injured party”). By contrast, a plaintiff who prevails

on a claim for inverse condemnation is entitled to a one-time, lump sum payment to

compensate him for the losses he suffered as a result of the taking of his property. See

Robinson, 260 Ga. App. at 667 (1).

Here, Fox has never sought any type of equitable relief against the Railroad,

and he has maintained throughout this litigation that the only relief he is seeking is

monetary compensation for the alleged taking of his property.21 Thus, unlike

21
We note that given Fox’s representations to the federal district court, the
Superior Court of Gordon County, and this Court as to the type of relief he is seeking,
he would be judicially estopped from seeking a different type of relief on remand.
Under the doctrine of judicial estoppel, a party cannot take a position, persuade a
court to accept the same, and then later assert an inconsistent position. See Georgia
Neurology & Rehabilitation, P. C. v. Hiller, 310 Ga. App. 202, 206 (2) (a) (712 SE2d
611) (2011). See also Kamara v. Henson, 340 Ga. App. 111, 112 (1) (796 SE2d 496)
(2017) (“[t]he essential function and justification of judicial estoppel is to prevent the
use of intentional self-contradiction as a means of obtaining unfair advantage in a
forum provided for suitors seeking justice”).

41
continuing nuisance claims that courts often find are preempted by the ICCTA, Fox’s

action does not seek damages that accrue with each use of the sidetrack and that result

from the byproducts of “conventional and routine rail operations,” including “noises,

vibrations, and various discharges,” that are conducted “on the rail carrier’s own

property.” Norfolk Southern, 2013 WL 5891582 at *3. See also Pace v. CSX Transp.,

613 F3d 1066, 1069 (III) (11th Cir. 2010) (finding that the ICCTA preempted state

law nuisance claims seeking monetary damages resulting from noise and smoke

coming from a newly-constructed side track); Guckenberg v Wisconsin Central Ltd.,

178 FSupp.2d 954, 958 (II) (B) (E. D. Wis. 2001) (state law nuisance claims seeking

compensatory and punitive damages for interference with plaintiff’s use and

enjoyment of their property resulting from noise and smoke generated by railcars on

newly constructed side track was preempted). Nor is Fox seeking injunctive or

declaratory relief that would require Norfolk Southern to modify or abandon its use

of the sidetrack. See Maynard v. CSX Transp., 360 FSupp.2d 836, 838, 841-842

(plaintiffs’ state law nuisance claims alleging that the railroad’s use of a side track

blocked access to their homes for up to six hours at a time was preempted in part

because it sought injunctive relief against the railroad and therefore sought to regulate

or interfere with railroad operations). Additionally, Fox does not seek to dispossess

42
the Railroad from its property. See Wedemeyer v. CSX Transp., 850 F3d at 898 (II)

(lawsuit that sought to eject railroad from land with active, ongoing rail operations,

after railroad resumed use of a previously abandoned track was preempted). Finally,

Fox’s inverse condemnation claim is unique to Fox — i.e., it is not a claim that can

be asserted by all “owners of property near operating rail lines anywhere.” Norfolk

Southern, 2013 WL 5891582 at *3. Given the circumstances of this case, therefore,

we cannot say that Fox’s claim for inverse condemnation would unreasonably

43
interfere with or otherwise burden rail transportation.22 Accordingly, the trial court

erred when it found that this claim was preempted by the ICCTA.

For the reasons set forth above, we affirm the trial court’s grant of summary

judgment to Norfolk Southern on Fox’s claim for inverse condemnation of the

22
We note that the “blocked crossing” cases on which the Railroad seeks to
rely are not relevant to Fox’s claim for inverse condemnation. See Elam v Kansas
City Southern R. Co., 635 F3d 796 (5th Cir. 2011); Friberg v. Kansas City Southern
R. Co., 267 F3d 439 (5th Cir. 2001); Burlington Northern & Santa Fe R. Co. v. Dept.
of Transp., 206 P3d 261 (Or. App. 2009); City of Seattle v. Burlington Northern R.
Co., 41 P3d 1169 (Wash. 2002); Canadian Nat. R. Co. v. City of Des Plaines, 2006
WL 345095 (Ill. App. 2006). Both Elam and Friberg involved claims of negligence
per se based on a state “anti-blocking” statute–i.e., a law that purported “to regulate
the amount of time the train [could] occupy a crossing.” Elam, 635 F3d at 801. See
also Friberg, 267 F3d at 441, n. 2. Burlington Northern, City of Seattle, and
Canadian National all involved a railroad’s challenge to civil penalties imposed by
a governing authority for the railroad’s violation of a state regulation or municipal
ordinance that sought to regulate the amount of time a train could occupy a crossing.
In each case, the court found that the anti-blocking statute, ordinance, or regulation
was categorically preempted because it was targeted specifically at railroad
companies and sought to regulate railroad operations. Elam, 635 F3d at 804 (III) (A)
(2); Friberg, 267 F3d at 443; Burlington Northern, 206 P.3d at 474; City of Seattle,
41 P3d at 1172; Canadian Nat., 2006 WL 345095 at *3. Such laws and regulations
were preempted because “regulating the time the train can occupy a rail crossing
impacts, in such areas as train speed, length and scheduling, the way a railroad
operates the trains, with concomitant economic ramifications . . . .” Friberg, 267 F3d
at 443 (II). See also Elam, 635 F3d at 807 (III) (A) (3) (antiblocking statutes are
preempted because they “directly attempt[ ] to manage or govern a railroad’s
decisions in the economic realm[,]” and these economic effects “are not merely
incidental to an otherwise valid state law”).

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property on which the new side track was constructed. We reverse the grant of

summary judgment to Norfolk Southern on Fox’s claim for inverse condemnation of

his property located to the east of the railroad tracks.

Judgment affirmed in part and reversed in part. Rickman and Reese, JJ.,

concur.

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