In the United States Court of Federal Claims
No. 15-421L
(E-Filed: June 16, 2021)
)
DAVID H. & ARLINE M. )
BEHRENS, et al., )
)
Plaintiffs, ) Motion for Summary Judgment; RCFC
) 56; Rails-to-Trails; Trails Act; Fifth
v. ) Amendment Takings; Railbanking.
)
THE UNITED STATES, )
)
Defendant. )
)
Thomas S. Stewart, Kansas City, MO, for plaintiffs.
Edward C. Thomas, Trial Attorney, with whom were John C. Cruden, Assistant Attorney
General, Environment and Natural Resources Division, United States Department of
Justice, Washington, DC, for defendant. Evelyn Kitay, Associate General Counsel,
United States Surface Transportation Board, Washington, DC, of counsel.
OPINION
CAMPBELL-SMITH, Judge.
Plaintiffs in this case allege that they have suffered takings of their property
pursuant to the Fifth Amendment of the United States Constitution. See ECF No. 24
(fourth amended complaint). Plaintiffs’ motion for partial summary judgment, ECF No.
96, and defendant’s cross-motion for partial summary judgment, ECF No. 97, both
brought pursuant to Rule 56 of the Rules of the United States Court of Federal Claims
(RCFC), are currently before the court.
In evaluating these motions, the court considered the following: (1) plaintiffs’
fourth amended complaint, ECF No. 24; (2) plaintiffs’ motion for partial summary
judgment, ECF No. 96; (3) defendant’s response and cross-motion for partial summary
judgment, ECF No. 97; (4) plaintiffs’ response to defendant’s cross-motion and reply in
support of its motion for partial summary judgment, ECF No. 98; (5) defendant’s reply in
support of its cross-motion, ECF No. 101; and (6) the parties’ joint supplement attaching
legible transcriptions of the deeds at issue, ECF No. 111.
Briefing is now complete and the motions are ripe for decision. The court has
considered all of the parties’ arguments and addresses the issues that are pertinent to the
court’s ruling in this opinion. For the following reasons, plaintiffs’ motion for partial
summary judgment, ECF No. 96, is DENIED; and defendant’s cross-motion for partial
summary judgment, ECF No. 97, is GRANTED.
I. Background
Plaintiffs are landowners along a 144.3-mile rail corridor owned by the Missouri
Central Railroad Company (MCRR). See ECF No. 24 at 4. The rail corridor stretches
through the center of Missouri, from Pettis County to Franklin County. See id. Plaintiffs
claim they have suffered a Fifth Amendment taking of their property interests as a result
of MCRR’s efforts to discontinue use of the rail corridor, and allow use of the property as
a recreational trail. See id. at 20.
The parties previously filed cross-motions for summary judgment, which the court
resolved in defendant’s favor. 1 See ECF No. 43 (reported opinion at Behrens v. United
States, 132 Fed. Cl. 663 (2017)). Plaintiffs then moved for reconsideration, which the
court granted in part. See ECF No. 52 (reported opinion at Behrens v. United States, 135
Fed. Cl. 66 (2017)). In its opinion ruling on plaintiffs’ motion for reconsideration, the
court summarized its conclusions in its initial summary judgment opinion as follows:
In ruling on the parties’ cross-motions for summary judgment, the court drew
five conclusions: (1) “Missouri law does not support a presumption that
easements conveyed to a railroad by voluntary grant are limited in scope to
railroad purposes only,” see ECF No. 43 at 5; (2) “Defendant is not liable for
a taking where the rail corridor is owned by [the railroad] in fee,” see id. at
6; (3) “Plaintiffs have failed to prove that they possess a valid property
interest in [several specific claims],” see id. at 10; (4) “[Several specific
claims] involve property outside the scope of this case,” see id. at 12; and (5)
“Defendant is not liable for a taking where the conveyed easements are broad
enough to encompass trail use and railbanking,” see id. at 13.
See id. at 2. The court granted reconsideration only with regard to the last point—the
scope of the easements at issue in this case. See id. at 4. The court noted that under
1
In its opinion ruling on the parties’ previous motions for summary judgment, the court
explained the background of this case in detail. See ECF No. 43. The court will only reiterate
the portions of that background that are directly relevant to the present motions.
2
Missouri law, easements must have a definable scope, and held that “[n]either party ha[d]
successfully established the facts necessary to determine the precise scope of the
easement with respect to the grants that do not include explicitly stated purposes.” Id.
The scope of each easement remains at issue in this case, see id. at 5, and are the subject
of the parties’ present motions for summary judgment. 2
Both parties acknowledge that the deeds at issue do not include express
restrictions on how MCRR uses the parcels. See ECF No. 96 at 30-31 (“Since an
easement requires a definable scope and these easements do not specifically say that they
are ‘for railroad purposes’ only, . . . the [c]ourt recognized the need to consider and
analyze extrinsic evidence on the subject upon reconsideration and directed the parties to
focus on extrinsic evidence to ascertain the scope of the railroad’s easement consistent
with the requirement to construe the deeds to give effect to the intention of the parties.”);
ECF No. 97 at 18 (“The deeds do not contain any language expressly limiting their scope
to railroad purposes.”).
Under Missouri law, when an easement does not include an expressly stated
purpose, it is “incomplete or ambiguous,” and the court may consider extrinsic evidence
“to determine the parties’ intention.” See Maasen v. Shaw, 133 S.W.3d. 514, 519 (Mo.
Ct. App. 2004) (citing Fisher v. Miceli, 291 S.W.2d 845, 848 (Mo. 1956)). Relevant
evidence may include the circumstances surrounding creation of the easement, its
location, and its prior use. See id. (citing Hoelscher v. Simmerock, 921 S.W.2d 676, 679
(Mo. Ct. App. 1996)). For this reason, following the court’s ruling on plaintiffs’ motion
for reconsideration, the parties engaged in discovery in an attempt to develop evidence of
the intended scope of the easements created by the subject deeds. See ECF No. 97 at 11;
see also ECF No. 62, ECF No. 65 (discovery orders).
After “reviewing and evaluating the arguments made by the parties, the court . . .
concluded that this case requires the resolution of tension between various precepts of
Missouri law,” and issued an order staying this case and inviting the parties to consider
seeking “guidance from the Supreme Court of Missouri on the interpretations of Missouri
law at issue in the case.” ECF No. 116 at 1, 4. On June 4, 2021, the parties filed a joint
status report in which they state that “[t]he parties have conferred and have researched the
issue as delineated by the [c]ourt and do not presently see a practical course” to seek
guidance from the Supreme Court of Missouri. ECF No. 118 at 1. As such, the parties
2
Plaintiffs maintain their position that under Missouri law, the grants at issue must
necessarily be limited to use for “railroad purposes only.” See ECF No. 96 at 12-31. Because
the court resolved this issue against plaintiffs in its first summary judgment decision, see ECF
No. 43 at 5-6, and left its conclusion undisturbed on reconsideration, see ECF No. 52 at 3-4, it
will not consider this argument for a third time in this opinion.
3
requested “that the [c]ourt lift the stay and rule on the pending motions before the
[c]ourt.” Id.
II. Legal Standards
Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. RCFC 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it “might affect the
outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). An issue is genuine if it “may reasonably be resolved in favor of either
party.” Id. at 250. “[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.” Id. at 247-48
(emphasis in original).
The moving party bears the initial burden of demonstrating the absence of any
genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to
the nonmoving party to show that a genuine issue of material fact does exist such that the
case should proceed to trial. Id. at 324.
The court must view the inferences to be drawn from the underlying facts in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d
1387, 1391 (Fed. Cir. 1987). The court, however, must not weigh the evidence or make
findings of fact. See Anderson, 477 U.S. at 249 (“[A]t the summary judgment stage the
judge’s function is not [herself] to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.”); 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.”).
Because the parties have developed an extensive factual record through discovery,
the issues presently before the court are primarily legal in nature. Thus, summary
judgment is appropriate, and to the extent any factual disagreements remain, the court
finds them to be immaterial to the issues at hand.
III. Analysis
A. Evidence Of Grantors’ Intent
Under Missouri law, “[t]he cardinal rule regarding an interpretation of a deed is to
ascertain the intention of the parties and to give that intention effect.” Hinshaw v. M-C-
M Props., LLC, 450 S.W.3d 823, 827 (Mo. Ct. App. 2014) (citing Dean Machinery Co. v.
Union Bank, 106 S.W.3d 510, 520 (Mo. Ct. App. 2003)). The evidence now before the
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court includes the language of the various deeds at issue and evidence of multiple uses of
the parcels—as an active rail line, for the placement of fiber optic cables, and for other
forms of transportation. 3
1. Deed Language
With only minor differences in capitalization and punctuation, each of the twenty
deeds states that the grantors: “grant, bargain and sell, and convey and confirm unto [the
railroad] the following described real estate . . . To have and to hold the same, together
with all the rights, immunities, privileges and appurtenances to the same . . . , and to its
successors and assigns forever . . . .” ECF No. 111-2 at 2-3 (Schoening deed); see also
id. at 5-6 (Bowles deed); id. at 8 (Stuhlmacher deed); id. at 11 (Groff deed); id. at 14
(Dreysse deed); id. at 17 (first Backues deed); id. at 20-21 (second Backues deed); id. at
23, 24-25 (first Thompson deed); id. at 27 (Yarger deed); id. at 30-31 (Lackland deed);
id. at 33 (second Thompson deed); id. at 36 (Linke deed); id. at 39 (Vaughn deed); id. at
42-43 (Ridenhour deed); id. at 45 (Wilcoxson deed); id. at 48 (Lacy deed); id. at 51
(Marriott deed); id. at 54 (Yaws deed); id. at 57 (Crewson deed); id. at 60 (Hatler deed).
In addition, seventeen of the deeds are titled “Warranty Deed.” Id. at 2, 5, 8, 11,
14, 17, 20, 30, 36, 39, 42, 45, 48, 51, 54, 57, 60. One of the three deeds that are not
explicitly described as warranty deeds describes the conveyance as a “quit claim.” Id. at
23. And one of the warranty deeds is joined by two mortgagees “for the purpose of
releasing the foregoing strip of land from the lien of their [m]ortgages against it.” Id. at
48.
2. Extrinsic Evidence
The parties have offered several pieces of extrinsic evidence in support of their
positions. Plaintiffs note that the grantee was a railroad, see ECF No. 96 at 32, and the
long, narrow shape of the property at issue, see id. at 33. For its part, defendant points to
relatively recent uses of the property—including the installation of fiber optic cable and
the use of recreational vehicles on the property. See ECF No. 97 at 19-20.
3
On October 16, 2020, the parties filed a joint supplement attaching transcribed copies of
the deeds at issue, pursuant to the court’s September 2, 2020 scheduling order. See ECF No.
111. Therein, they corrected an error in the number of deeds at issue, noting the discovery of a
corrected deed during the transcription process, bringing the total number of deeds from nineteen
to twenty. See id. at 1 n.1. Despite the previous omission of the corrected deed, the parties
reported that no further briefing on the pending motions was warranted. See id. at 2.
Accordingly, the court will rule on the motions for summary judgment based on the briefs which
were filed prior to the parties’ supplement, and which refer to nineteen deeds. For this reason,
there may be a discrepancy in the number of deeds referenced in the fact section, and the number
of deeds referenced in discussing the parties’ briefs.
5
B. Easements Are Broad Enough to Encompass Trail Use
The evidence before the court presents a complicated question of interpretation in
this case. As the court has previously noted, “[d]efendant concedes that each identified
deed likely conveys an easement as opposed to a fee interest because each deed involves
nominal consideration.” See ECF No. 43 at 14 (citing ECF No. 36 at 39). See also
Brown v. Weare, 152 S.W.2d 649, 653-54 (Mo. 1941) (holding that a deed exchanged for
nominal consideration is a “voluntary grant” under Missouri law); MO. ANN. STAT. §
388.210(2) (West 1969) (stating that a “voluntary grant” to a railroad “shall be held and
used for the purpose of such grant only”). And an easement, by its nature, must have a
definable scope. See Maasen, 133 S.W.3d at 518 (“By definition, an easement is ‘the
mere right of a person to use for a definite purpose another [person]’s land in connection
with his [or her] own land.’”) (quoting Mahnken v. Gillespie, 43 S.W.2d 797, 800-01
(Mo. 1931)).
While the court recognizes the force of these rules under Missouri law, they do not
fit comfortably with the language in the deeds that seems to indicate the intention to
convey a fee interest in the properties. See Nixon v. Franklin, 289 S.W.2d 82, 88 (Mo.
1956) (holding that the words “grant, bargain, and sell” are evidence of a conveyance in
fee); Bayless v. Gonz, 684 S.W.2d 512, 513 (Mo Ct. App. 1984) (holding that language
stating “to have and to hold the same together with all singular rights, immunities,
privileges and appurtenances to the same” conveys a fee simple interest).
Thus, in order to act in accordance with Missouri law, the court must both
consider the broad granting language and habendum clauses that seem to convey a fee
interest, but also remain mindful of the legal construction of the grants as easements that
must be limited in scope. The tension in this analysis is marked.
As noted above, the court has previously found that the scope of the easements at
issue is unclear. See ECF No. 52 at 4. And when the scope of an easement is unclear,
Missouri courts will consider extrinsic evidence that may include the circumstances
surrounding creation of the easement, its location, and its prior use. See Maasen, 133
S.W.3d at 519 (citing Hoelscher v. Simmerock, 921 S.W.2d 676, 679 (Mo. Ct. App.
1996)). Unfortunately, the evidence submitted by the parties in the briefs now before the
court is inconclusive. Plaintiffs point to the fact that the grantee was a railroad, see ECF
No. 96 at 32, and the long, narrow shape of the property at issue, see id. at 33, neither of
which are facts that compel the conclusion that the conveyance is limited to what
plaintiffs define as railroad purposes. For its part, defendant points to relatively recent
uses of the property that are quite far removed in time from the execution of the deeds—
including the installation of fiber optic cable, and the use of recreational vehicles on the
property—raising doubts about how probative of the grantors’ intent those activities are.
See ECF No. 97 at 19-20.
6
In light of the parties’ request that the court rule on their motions without guidance
from the Supreme Court of Missouri, on the record currently before it, the court believes
that the best course is to hew closely to the rule articulated in Hinshaw v. M-C-M
Properties, LLC, 450 S.W.3d 823 (Mo. Ct. App. 2014). Under Missouri law, “[t]he
cardinal rule regarding an interpretation of a deed is to ascertain the intention of the
parties and to give that intention effect.” Id. at 827 (citing Dean Mach. Co., 106 S.W.3d
at 520). In this case, the best evidence available of the grantor’s intent remains the
language of the deeds themselves, which indicates a broad grant to the railroad. See ECF
No. 96 at 32 (plaintiffs arguing that “[t]he most critical evidence concerning the
circumstances surrounding the creation of the easements are actually the deeds
themselves”).
In the court’s view, the broad granting language and habendum clauses in the
deeds at issue are convincing evidence that the grantors intended unrestricted
conveyances. The legal construction of these conveyances as easements does not change
that apparent intent. The court does not find, however, that these conveyances are in
fee—Missouri law clearly does not allow for such a conclusion given the nominal
consideration.
Rather, the court concurs with the reasoning articulated by this court in Burnett v.
United States, 139 Fed. Cl. 797 (2018), a case in which the court considered deeds
conveying property to the same railroad as the deeds in this case, through strikingly
similar language. The court in Burnett concluded that the deeds at issue conveyed
easements that were broad enough to encompass trail use and railbanking, and explained
its conclusion as follows:
[T]he granting clauses in these deeds state that: “the parties of the first part
. . . do by these presents, grant, bargain and sell, convey and confirm unto
said party of the second part . . .” the property conveyed. As discussed above,
the inclusion of the phrase “grant, bargain and sell” in a conveyance deed has
long been interpreted under Missouri law to convey a fee simple interest.
Nixon, 289 S.W.2d at 88. While there is no dispute that a fee simple interest
was not conveyed to the railroad here—given that the consideration provided
in these deeds is only one dollar—the inclusion of the phrase “grant, bargain
and sell,” nonetheless, indicates that the parties intended to convey a broad
easement to the railroad. This view is reinforced by the fact that the granting
clauses for these source deeds do not contain any language to limit the scope
of the easements conveyed.
In addition, the habendum clauses for the applicable source deeds similarly
indicates that the parties intended to convey a broad easement to MCRR.
These clauses state, in relevant part, that property is conveyed to the railroad:
“To have and to hold the same, together with all rights, immunities,
7
privileges and appurtenances to the same belonging to the [railroad] and to
its successors and assigns forever.” As discussed above, Missouri courts
have interpreted such language to convey a fee simple interest. Bayless, 684
S.W.2d at 513. And so, again, the Court construes the applicable source
deeds for the remaining claims in this case to convey a broad easement to the
railroad.
Indeed, while plaintiffs correctly argue that the source deeds do not contain
any language that specifically mentions trail use or railbanking, plaintiffs fail
to explain why it is necessary for the deeds to contain such language in order
to convey an easement to the railroad that is broad enough to encompass
public recreational trail use. Because the plain language in the source deeds
makes clear that the parties intended to convey a broad easement to the
railroad—and not to limit this easement to use for railroad purposes—the
Court concludes that the source deeds relevant to plaintiffs’ remaining claims
convey easements that can encompass public recreational trail use.
Burnett v. United States, 139 Fed. Cl. at 811–12 (record citations omitted).
In the court’s view, it would violate the primacy of the grantor’s intent to find that
the deeds—which otherwise appear to convey a fee interest—should be artificially
limited to plaintiffs’ definition of railroad purposes simply because Missouri law
construes conveyances for nominal consideration to be easements. For these reasons, the
court concludes that the easements at issue in the parties’ motions for summary judgment
are broad enough to encompass trail use.
IV. Conclusion
Accordingly, for the foregoing reasons:
(1) The clerk’s office is directed to LIFT the stay in this case;
(2) Plaintiff’s motion for partial summary judgment, ECF No. 96, is DENIED;
(3) Defendant’s cross-motion for partial summary judgment, ECF No. 97, is
GRANTED; and
(4) On or before July 16, 2021, the parties are directed to CONFER and FILE:
(a) A joint status report, indicating what, if any, issues remain for
resolution in this case; and
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(b) A joint motion for entry of judgment on all claims that have been
resolved. The parties are directed to specifically identify the resolved
claims, unless no issues remain, and the case may be dismissed in its
entirety.
IT IS SO ORDERED.
s/Patricia E. Campbell-Smith
Patricia E. Campbell-Smith
Judge
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