Department of Natural Resources v. Carmody-Lahti Real Estate, Inc

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED MAY 27, 2005

MICHIGAN DEPARTMENT OF NATURAL RESOURCES,

Plaintiff-Appellee and Cross-Appellant,

v No. 124413

CARMODY-LAHTI REAL ESTATE, INC, a
MICHIGAN CORPORATION

Defendant-Appellant and Cross-Appellee.
_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

In 1873, the Quincy Mining Company conveyed an

interest in real property located in Houghton County,

Michigan, to the Mineral Range Railroad Company. The

parties labeled this interest a “right of way” in the

written deed. The precise nature of this right-of-way—

whether it was an easement or a fee estate, whether it was

limited to railroad purposes and, if so, what such a

limitation would mean—is the subject matter of this appeal.

Plaintiff, the Michigan Department of Natural

Resources, is the successor in interest of the Mineral
Range Railroad Company. It asserts that it owns a fee

simple interest and is therefore entitled to use the right-

of-way as a snowmobile and recreation trail. Defendant,

Carmody-Lahti Real Estate, Inc., is the successor in

interest of the Quincy Mining Company and maintains that

plaintiff’s predecessor in interest enjoyed only an

easement, which it abandoned before purporting to convey it

to plaintiff.

We conclude that the Court of Appeals correctly

determined that the 1873 deed conveyed an easement rather

than a fee simple. However, we conclude that the panel

erred in holding that the easement was neither limited to a

specific purpose nor abandoned by plaintiff’s predecessor

in interest. Properly construed, the instrument conveyed

an easement for railroad purposes only. Thus, when

plaintiff’s predecessor in interest unambiguously

manifested its intent to relinquish any use of the right-

of-way for railroad purposes and took action consistent

with that intent, the easement was abandoned. Defendant,

as successor in interest to the original grantor, now has

an unencumbered fee simple interest in the land formerly

subject to the easement.

We therefore reverse the judgment of the Court of

Appeals and remand to the circuit court for entry of

summary disposition in defendant’s favor.
2

 I. FACTS AND PROCEDURAL HISTORY

In 1873, Quincy Mining conveyed a “right of way” to

Mineral Range through a written instrument that provided:

This indenture made this twentyfirst day of
October in the Year of Our Lord [1873] between
the Quincy Mining Company . . . and The Mineral
Range Railroad Company . . . witnesseth that
[Quincy Mining] for and in consideration of the
sum of one dollar to it in hand paid by [Mineral
Range], the receipt whereof is hereby . . .
acknowledged has granted, bargained, sold,
remised, aliened and confirmed and by these
presents does grant, bargain, sell, remise,
release, alien and confirm unto [Mineral Range]
its successors and assigns forever a right of way
for the railroad of [Mineral Range] as already
surveyed and located by the engineer of [Mineral
Range] and according to the survey thereof on
file in the Office of the Registrar of Deeds for
the County of Houghton, Michigan to consist of a
strip of land one hundred feet in width being
fifty feet on each side of said surveyed line
across the following described tracts or parcels
of land situated in said county of Houghton:
[describes parcels/plats].

Also a right of way for said railroad
surveyed and located as aforesaid and according
to the survey thereof on file as aforesaid to
consist of a strip of land one hundred feet in
width being twenty feet in width on the north
side of said surveyed line and eighty feet in
width on the south side of said surveyed line
across the tract or parcel of land known . . .
as [describes parcels/ plats].

Reserving to [Quincy Mining] and to its
successors and assigns all ore and minerals on
said strip of land and the right to mine the same
from underneath the surface in such manner as
not to interfere with the construction or
operation of said railroad. Provided that
[Quincy Mining] shall not in any case mine within
fifteen feet of the surface of the [rock?]
without the consent in writing of [Mineral Range]
together with all and singular the hereditaments
3

 and appurtenances thereunto belonging or in
anywise appearing to have and to hold the said
strip of land with the appurtenances, for the
purpose and uses above stated and subject to the
reservations aforesaid unto [Mineral Range] its
successors and assigns forever In Witness Whereof
[Quincy Mining] has caused its corporate seal to
be affixed and these presents to be executed by
its President and Secretary the day and year
first above written. Signed, sealed and
delivered . . . .

Quincy Mining, the grantor, subsequently transferred

its remaining interest in the Houghton County property to

the Armstrong-Thielman Lumber Company, which, in turn, sold

its interest to defendant Carmody-Lahti Real Estate, Inc.

Mineral Range later conveyed its right-of-way to the Soo

Line Railroad Company, which, until the early 1980s,

continued to utilize the right-of-way for railroad

purposes.

Although the railroad industry was central to the

economic vitality of our nation in the mid-nineteenth

century, its dominance began to wane in the late nineteenth

and early twentieth centuries—the years following the

initial transfer of the Houghton County right-of-way.1 But

even as railroading itself declined in importance, the

United States Congress determined that the rail corridors

1
See, generally, Wright & Hester, Pipes, wires, and
bicycles: Rails-to-Trails, utility licenses, and the
shifting scope of railroad easements from the nineteenth to
the twenty-first centuries, 27 Ecology L Q 351 (2000).
4
themselves might prove vital for future economic growth.2

Accordingly, Congress enacted the Transportation Act of

1920, which required, among other things, that railroad

companies seek and obtain the permission of the Interstate

Commerce Commission (ICC) before abandoning any extant rail

line.3 Congress has since amended this procedure with the

Railroad Revitalization and Regulatory Reform Act (RRRRA)

of 1976,4 and again with the Staggers Rail Act of 1980.5

2
See Preseault v Interstate Commerce Comm, 494 US 1,
5-6; 110 S Ct 914; 108 L Ed 2d 1 (1990). See also Wild, A
history of railroad abandonments, 23 Transp L J 1 (1995).
3
Transportation Act, 41 Stat 456 (1920). See Wild,
supra, p 4 (noting that the Transportation Act was largely
concerned with “railroad rate policies”). Abandonment is
to be distinguished from mere discontinuance of service.
See Preseault, supra at 6 n 3. The former involves
relinquishing rail lines and underlying property interests.
Discontinuance, on the other hand, “allows a railroad to
cease operating a line for an indefinite period while
preserving the rail corridor for possible reactivation of
service in the future.” Id.
4
Railroad Revitalization and Regulatory Reform Act of
1976, PL 94-210, 90 Stat 31 (1976). See Wild, supra, pp
7-8.
5
Staggers Rail Act of 1980, PL 96-448, 94 Stat 1895
(1980). See also Wild, supra, p 9. Congress abolished
the ICC in 1995, ICC Termination Act of 1995, 109 Stat 803,
and vested authority over railroad abandonment in the
Surface Transportation Board, 49 USC 10903. See RLTD R
Corp v Surface Transportation Bd, 166 F3d 808, 810 (CA 6,
1999). After Soo Line abandoned its Houghton County right-
of-way in 1982, Congress amended the National Trails
System Act, 16 USC 1241 et seq., to create a “railbanking”
program. See 16 USC 1247(d).
5
 In September 1982, Soo Line, which then owned the

right-of-way originally granted to the Mineral Range

Railroad in 1873, sought federal permission to abandon the

railway. The ICC granted this request in a written order

on September 29, 1982. The order placed specific

conditions on Soo Line’s abandonment of its railway:

Soo Line shall keep intact all of the right-
of-way underling [sic] the track, including all
the bridges and culverts, for a period of 120
days from the decided date of this certificate
and decision to permit any state or local
government agency or other interested party to
negotiate the acquisition for public use of all
or any portion of the right-of-way. In addition,
Soo Line shall maintain the Houghton Depot for
120 days from the decided date of this
certificate and decision. During this time, Soo
Line shall take reasonable steps to prevent
significant alteration or deterioration of the
structure and afford to any public agency or
private organization wishing to acquire the
structure for public use the right of first
refusal for its acquisition.

Six years after the ICC granted its request to abandon

the railway, Soo Line conveyed the right-of-way to

plaintiff, the Michigan Department of Natural Resources

(MDNR). By that time, the railroad tracks that originally

occupied the right-of-way had been largely removed. The

record reveals that, by 1988, there were no railroad tracks

on the thirty-foot strip of land at issue in this case and

there were only remnants of track scattered along the

easement. Thus, the task of reconstructing the path of the

railroad for litigation purposes was a difficult one. The
6

parties offered on this issue the testimony of several

surveyors, and each described a painstaking process in

which they consulted a number of maps and searched for

remaining physical evidence of the railroad.

The MDNR used the right-of-way as a snowmobile and

recreation trail until 1997, when defendant installed a

fence that blocked a portion of the right-of-way,

substantially interfered with its recreational use, and

spawned the present litigation.

In December 1997, plaintiff filed a complaint seeking

an order to enjoin defendant from blocking the right-of-way

with its fence. Plaintiff argued that it had an unlimited

right to use the right-of-way for any purpose because the

1873 deed conveyed to Mineral Range Railroad, its

predecessor in interest, a fee simple estate. Defendant

argued in response that the deed had conveyed only an

easement limited to railroad purposes. The MDNR exceeded

the scope of the easement, defendant argued, and had

thereby extinguished the right-of-way.

The trial court initially granted summary disposition

in plaintiff’s favor, concluding that the 1873 instrument

conveyed a fee estate rather than an easement and that

plaintiff was therefore permitted to use the right-of-way

as a snowmobiling trail. The Court of Appeals reversed and

remanded the matter to the trial court. Unpublished
7

opinion per curiam, issued June 5, 2001 (Docket No.

222645). The panel held that the 1873 deed conveyed an

easement rather than a fee simple and, accordingly,

remanded to the circuit court for a determination whether

the easement had been extinguished.

When the matter returned to the trial court, defendant

filed a motion for summary disposition, arguing that the

right-of-way had been extinguished by abandonment or by a

1920 tax sale of the servient estate. The trial court

rejected both claims, granted summary disposition to

plaintiff, and ordered the injunctive relief—removal of

defendant’s fence—sought by plaintiff.

Defendant appealed this judgment to the Court of

Appeals. There, defendant no longer asserted that Soo Line

had abandoned the easement as a result of the 1920 tax

sale. Rather, defendant maintained that plaintiff’s

predecessor abandoned the easement. The Court of Appeals,

like the trial court, rejected this argument. The panel

affirmed the judgment of the trial court, holding that

Quincy Mining had not conveyed the easement for any

“particular purpose” and, therefore, that Soo Line’s

termination of rail service through the right-of-way was

not an abandonment of its easement. Unpublished opinion

per curiam, issued June 3, 2003 (Docket No. 240908).

8

 Assessing the specific language of the 1873

instrument, the Court of Appeals stated:

[W]e believe that the phrase in the 1873
deed, “a right of way for the railroad of [the
Mineral Range Railroad],” cannot be construed as
a defeasance clause or as granting the easement
for a particular purpose only. In making this
determination, Quinn [v Pere Marquette R Co, 256
Mich 143; 239 NW 376 (1931)] is instructive. The
phrase is akin to a statement of purpose. The
declaration that the easement was for the Mineral
Range Railroad’s construction of a railroad was
"merely an expression of the intention of the
parties that the deed is for a lawful purpose."
Quinn, supra at 151. Thus, Soo Line’s cessation
of rail service and subsequent sale of the
easement to be used for non-railroad purposes did
not automatically extinguish the easement. [Slip
op at 6-7.]

The panel also rejected the argument that Soo Line’s

abandonment application to the ICC in 1982 constituted an

abandonment of the easement.6 In the end, the panel

determined that Soo Line had a legitimate property interest

to convey to plaintiff and that plaintiff was therefore

entitled to summary disposition.

6
The Court stated:

In regards to the ICC certificate of
abandonment, the ICC only regulates and approves
cessation of railroad operations, it “does not
determine abandonment.” [Id. at 9 (citation
omitted).]
9
 This Court granted defendant’s application for leave

to appeal on June 3, 2004, and solicited amicus briefs.7 We

initially denied plaintiff’s application for leave to

cross-appeal from the first Court of Appeals opinion

(holding that the 1873 deed conveyed an easement).

However, after hearing oral arguments, we requested

additional briefing on the question whether the 1873 deed

conveyed a fee simple or an easement.8

II. STANDARD OF REVIEW

A trial court’s decision to grant or deny summary

disposition under MCR 2.116(C)(10) is subject to review de

novo.9 Under this court rule, a party is entitled to

summary disposition when “there is no genuine issue as to

any material fact, and the moving party is entitled to

judgment . . . as a matter of law.”10

III. ANALYSIS

Plaintiff, the Michigan Department of Natural

Resources, asserts the right to use of a former railroad

right-of-way in Houghton County, Michigan, as a public

7
Dep't of Natural Resources v Carmody-Lahti Real
Estate, Inc, 470 Mich 868 (2004).
8
Dep't of Natural Resources v Carmody-Lahti Real
Estate, Inc, 687 NW2d 298 (2004).
9
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611
(2004).
10
MCR 2.116(C)(10).
10
snowmobile and outdoor recreation trail. Defendant,

Carmody-Lahti Real Estate, Inc., purports to own the land

underlying the trail in fee simple and claims the legal

right to bar public recreational use of the right-of-way.

At first blush, then, this case seems to concern land use

policy. Moreover, it is a policy question on which both

our federal and state legislatures have spoken: Congress

has enacted the National Trails System Act,11 which codifies

a federal policy of preserving our nation’s rail corridors;

the Michigan Legislature has enacted the State

Transportation Preservation Act in 1976, which declares a

legislative preference for using dormant railways as

recreational trails.12

But the question of how the land ought to be used is

not before us. Instead, this appeal presents us with the

more modest task of discerning the meaning of a late-

nineteenth century deed. In order to determine whether

plaintiff is entitled to the injunctive relief granted on

remand by the trial court, we must determine, first,

whether the “right of way” conveyed by the 1873 deed in

question is an easement or a fee simple. If the right-of-

way is an easement, we must then establish whether

11
16 USC 1241-1249.

12
MCL 474.51 et seq.

11

plaintiff has exceeded the scope of the easement or has

abandoned it.

A. RIGHT-OF-WAY AS FEE SIMPLE OR EASEMENT

Our initial task is to establish the precise contours

of the property interest conferred upon Mineral Range

Railroad, plaintiff’s predecessor in interest. According

to plaintiff, the 1873 deed conveyed the land itself to

Mineral Range Railroad. Thus, plaintiff argues that, as

Mineral Range’s successor in interest, it owns the land

described by the 1873 deed in fee simple. Defendant

argues, however, that the deed transferred only an

easement—the right to use the land—rather than the land

itself.

An inquiry into the scope of the interest conferred by

a deed such as that at issue here necessarily focuses on

the deed’s plain language,13 and is guided by the following

principles:

(1) In construing a deed of conveyance[,] the
first and fundamental inquiry must be the intent
of the parties as expressed in the language
thereof; (2) in arriving at the intent of parties
as expressed in the instrument, consideration
must be given to the whole [of the deed] and to
each and every part of it; (3) no language in the
instrument may be needlessly rejected as
meaningless, but, if possible, all the language
of a deed must be harmonized and construed so as
to make all of it meaningful; (4) the only
purpose of rules of construction of conveyances

13
Quinn, supra at 150.

12

 is to enable the court to reach the probable
intent of the parties when it is not otherwise
ascertainable.[14]

These four principles stand for a relatively simple

proposition: our objective in interpreting a deed is to

give effect to the parties’ intent as manifested in the

language of the instrument.

The instrument’s granting clauses are a natural

starting point for discerning the parties’ intent.15 The

deed purports to convey a “right of way” that “consist[s]”

of a “strip of land . . . across [the parcels described in

the deed].” As we recognized over seventy years ago in

Quinn, a deed granting a right-of-way typically conveys an

easement, whereas a deed granting land itself is more

appropriately characterized as conveying a fee or some

other estate:

Where the grant is not of the land but is
merely of the use or of the right of way, or, in

14
Purlo Corp v 3925 Woodward Avenue, Inc, 341 Mich 483,
487-488; 67 NW2d 684 (1954) (citations omitted).
15
Although it may look at first glance as though the
deed grants two separate rights-of-way, the instrument
grants only a single right-of-way, one that is positioned
slightly differently within the first and second sets of
plats described in the deed. The entire right-of-way is
measured from a single line surveyed across a series of
plats. For the first set of plats, the right-of-way is
one hundred feet total in width, measured fifty feet on
either side of the survey line. For the second set of
plats, the right-of-way is still one hundred feet total in
width, but it is measured twenty feet on one side of the
surveyed line and eighty feet on the other.
13
 some cases, of the land specifically for a right
of way, it is held to convey an easement only.

Where the land itself is conveyed, although
for railroad purposes only, without specific
designation of a right of way, the conveyance is
in fee and not of an easement.[16]

Here, the deed’s granting clause conveys only a right-of-

way. The plain language of the deed, as well as the rule

of construction articulated in Quinn, therefore indicate

that the deed conveyed an easement rather than a fee

simple.

Plaintiff relies on Quinn for the proposition that the

term “right-of-way” “has two meanings in railroad parlance:

the strip of land upon which the track is laid, and the

legal right to use such strip.”17 The former meaning, in

plaintiff’s view, is an estate in real property, whereas

the latter—the right to use property—is an easement only.

16
Quinn, supra at 150-151 (citations omitted). A
similar distinction was made in Jones v Van Bochove, 103
Mich 98, 100; 61 NW 342 (1894):

We think the court below was correct in
holding that the deed conveyed an easement only,
and not a fee. It does not purport to convey a
strip of land 40 feet wide, etc., but the right
of way over a strip 40 feet wide. Cases,
undoubtedly, can be found in which the operative
words of the grant relate to the land itself; but
such construction cannot be given to this deed.
17
Quinn, supra at 150. See also anno: Deed to
railroad company as conveying fee or easement, 6 ALR 3d 973
(1966); 65 Am Jur 2d, Railroads, § 40, p 234.
14
Because “right-of-way” may be defined in two ways,

plaintiff contends that the 1873 deed is ambiguous.

The initial flaw with this argument is this: although

“right-of-way” is susceptible to two meanings, it does not

follow that the phrase is equally susceptible to either

meaning in this case. As already noted, application of the

principles articulated in Quinn shows that this deed—which

grants a “right of way” rather than, for example, a strip

of land to be used as a right-of-way—conveys an easement

only.

Moreover, it would make little sense to read the

phrase “right of way” as referring to a strip of land.

Recall that the deed conveys a right-of-way, and

subsequently describes that right-of-way as “consist[ing]

of a strip of land . . . .” If “right of way” is to be

interpreted as conveying the land itself rather than

passage over a strip of land, then the instrument must be

interpreted as transferring “[a strip of land] . . . to

consist of a strip of land . . . .” This reading produces a

redundancy and violates the principle that “all the

language of a deed must be harmonized and construed so as

to make all of it meaningful . . . .”18 Accordingly, it is

an interpretation we must reject.

18
Purlo, supra at 487-488.
15

 According to the granting clause, the right-of-way to

which the deed refers appears to be “the legal right to use

the . . . strip”—or, in other words, an easement.19 The

deed contains no language that belies this conclusion or

affirmatively indicates that the parties intended to convey

a fee simple. Although the deed refers to “strips of

land,” even a cursory reading of the deed reveals that

these references are merely descriptive of the right-of-

way,20 the object of the granting clauses, and are not an

attempt to convey an interest in the land itself.

Indeed, one need only examine the language describing

the right-of-way as consisting of a “strip of land . . .

across” the described parcels to confirm this fact. That

the parties described the interest as going “across” the

land reveals that they understood the right-of-way as being

distinct from the land itself. As in Westman v

Kiell,21“[t]his language evidences an intent to convey a use

19
See Quinn, supra at 150 (noting that “[w]here the
grant is not of the land but is merely of the use or of the
right of way . . . it is held to convey an easement only”).
20
Compare Jones v Van Bochove, 103 Mich 98; 61 NW 342
(1894) (described earlier in this opinion).
21
183 Mich App 489; 455 NW2d 45 (1990).
16
or right of way upon and across the land, or, in other

words, an easement.”22

The language of the habendum clause is also consistent

with conveyance of an easement. This clause states that

Mineral Range Railroad was “to have and to hold the said

strip of land with the appurtenances, for the purpose and

uses above stated and subject to the reservations aforesaid

. . . forever . . . .” The reference in the habendum

clause to the “purpose and uses above stated and . . . the

reservations aforesaid” demonstrates the parties’ intent to

convey only the limited property interest previously

described in the deed. Although the habendum clause

refers to a “strip of land,” the context of this phrase—

particularly the references to “strip[s] of land” in

clauses that precede the habendum clause—shows that this

reference describes the geographical placement of the

easement rather than the nature of the property interest

conveyed.

Plaintiff contends that Quincy Mining’s reservation of

mineral rights indicates that the parties intended the deed

to convey a fee simple rather than an easement. This

argument is unpersuasive. Indeed, plaintiff’s assertion

that this reservation would have been unnecessary if Quincy

22
Id. at 494.
17

Mining had conveyed only an easement overlooks the key

difference between railroad easements and ordinary

easements.

Typically, the owner of a servient estate may continue

to use land encumbered by an easement.23 Railroad

easements, however, are “essentially different from any

other [easement].”24 As one commentator recently noted, “a

railroad right-of-way easement granted by a landowner

cannot be used by the landowner for any reason, even if the

use does not interfere with the use by the easement

holder.”25 For this reason, grantors of railroad rights-of-

way have included language in deeds to delineate their

continuing use rights in the portion of their fee estate

burdened by a railroad easement. In Michigan Limestone &

Chemical Co v Detroit & M R Co, for example, a railway

enjoyed a “right of way through plaintiff’s property”26—an

23
Harvey v Crane, 85 Mich 316, 323; 48 NW 582 (1891).
24
65 Am Jur 2d, Railroads, § 71, p 254. See also
Sennewald, The nexus of federal and state law in railroad
abandonments, 51 Vand L R 1399, 1412 (1998).
25
Sennewald, supra, p 1411.
26
238 Mich 221, 223; 213 NW 221 (1927) (emphasis
added).
18
easement according to the standards articulated in Quinn.27

Yet the deed expressly reserved for the grantor the right

to build a road, pipeline, or conduit across the railroad

right-of-way to ensure that the grantor’s quarry had

continued access to Lake Huron.28 Therefore, there is

nothing incongruous about the grantor’s reservation of

mineral rights and our conclusion that the right-of-way

conveyed in 1873 was an easement. Rather, such a

reservation might be expected in a deed conveying a

railroad right-of-way, particularly when the grantor is a

mining company and has a strong interest in protecting its

mining interests.

Although our sole concern is the intent of the parties

as manifested in the plain language of the deed at issue

here, it is worth noting that this analysis of the deed is

consistent with our prior jurisprudence in this area. In

general, this Court has construed deeds that purport to

convey a right-of-way as transferring an easement. In

fact, we have been unable to discover a single case in

27
Quinn, supra at 150 (“Where the grant is not of the
land but is merely of the use or of the right of way . . .
it is held to convey an easement only.”).
28
Limestone & Chemical Co, supra at 223. See also
Mahar v Grand Rapids Terminal R Co, 174 Mich 138, 143; 140
NW 535 (1913), noting that a deed conveying an easement
“reserve[d] to the [grantors] the right of sewage and
drainage across the premises.”
19
which this Court construed a deed conveying a “right of

way” as transferring a fee estate, and plaintiff has

directed us to none.

In Jones v Van Bochove,29 for example, we considered a

deed with a granting clause that conveyed

“[a]ll that certain piece or parcel of land
situate * * * and described as follows, to wit:
The right of way for a railroad, running from the
marl bed of said cement company to their works,
on the west side of the Kalamazoo river, and
described as follows: ‘A strip of land 40 feet
wide * * * and 952 feet in length.’”[30]

We held that this granting clause conveyed an easement

rather than a fee, noting that the deed “does not purport

to convey a strip of land 40 feet wide, etc., but the right
31
of way over a strip 40 feet wide.” Likewise, in Mahar,

supra, we determined that the following language conveyed

an easement rather than a fee estate:

“That the said parties of the first part,
for and in consideration of the future
construction, continued maintenance and
operation of a first-class, standard-gauge steam
railroad (over which shall be transported
passengers and freight) within the time, limits
and conditions hereinafter to be defined, . . .

29
103 Mich 98; 61 NW 342 (1894).
30
Id. at 100. See also Westman v Kiell, 183 Mich App
489, 494; 455 NW2d 45 (1990), holding that a deed conveying
a “‘right of way upon and across lands of Henry Salee . . .
for the uses and purposes of said Railroad Company’”
transferred an easement rather than a fee. (Emphasis in
original.)
31
Jones, supra at 100 (emphasis added).
20
 have granted, bargained, sold and conveyed and by
these presents do grant, bargain, sell, convey
and quitclaim unto the party of the second part,
his successors or assigns, for a right of way for
a railroad forever . . . .”[32]

In contrast, deeds that this Court and the Court of

Appeals have read as conveying a fee rather than an

easement typically contain language that unambiguously

conveys an estate in land and are therefore readily

distinguishable from that at issue here. In Quinn, this

Court held that a deed conveying a “‘parcel of land’” “‘to

be used for railroad purposes only’” conveyed a fee

estate.33 Not only did that deed omit any reference to a

“right of way,” but it specifically conveyed “all the

estate, right, title, claim and demand whatsoever of the

[grantor], both legal and equitable, in and to the said

premises . . . .”34 This language unambiguously showed the

grantors’ intent to convey their entire estate.

Similarly, the Court of Appeals held that the deed in

O’Dess v Grand Trunk W R Co35 concerned a fee. In that

case, the deed at issue conveyed “all the estate, right,

title, claim, and demand of the party of the first part,

32
Mahar, supra at 139-140 (emphasis added).
33
Quinn, supra at 146.
34
Id. (emphasis added).
35
218 Mich App 694; 555 NW2d 261 (1996).
21
both legal and equitable.” Again, this language

unequivocally manifested an intent to convey all the

grantor’s rights to the property.

This Court also held that the instrument at issue in

Epworth Assembly v Ludington & Northern Railway36 conveyed a

fee determinable. That conveyance purported to be a

“quitclaim” deed:

“Provided, however, if, for any reasons, the
property . . . above described shall, for one
year or longer, cease to be used for railroad
purposes and trains shall not be run over the
railroad track built or to be built on the land
described, then and in that case all of the land
herein described, together with all and singular
the hereditaments and appurtenances belonging or
in anywise appertaining thereto shall revert to
the Epworth Assembly, of Ludington, Michigan, its
heirs and assigns, and this quitclaim deed become
null and void and of no effect and all rights,
title and interest in and to the lands above
described remain the same as would have been the
case if this quitclaim deed had never been
executed.”[37]

A quitclaim deed is, by definition, “[a] deed that conveys

a grantor’s complete interest or claim in certain real

property but that neither warrants nor professes that the

title is valid.”38 Again, then, the deed at issue in

Epworth showed the grantor’s intent to convey all its

36
236 Mich 565; 211 NW 99 (1926).
37
Id. at 573 (emphasis added).
38
Black’s Law Dictionary (7th ed) (emphasis added).
See also Putnam v Russell, 86 Mich 389; 49 NW 147 (1891).
22
interest in the property and lacked any language indicating

that the grantor intended to convey merely an easement.

In short, we have consistently held that deeds

conveying a right-of-way transferred an easement. And we

have reached a contrary conclusion only in cases in which

the deed unmistakably expressed the grantor’s intent to

convey a fee simple. As shown above, the deed at issue

here falls squarely within the first group.

B. THE NATURE OF THE GRANTEE’S RIGHT-OF-WAY

Although we have determined that the 1873 deed

conveyed an easement rather than a fee estate, our inquiry

into the scope of the interest conveyed to Mineral Range

Railroad, plaintiff’s predecessor in interest, is not yet

complete. An easement is, by nature, a limited property

interest. It is a right to “use the land burdened by the

easement” rather than a right to “occupy and possess [the

land] as does an estate owner.”39 Accordingly, an easement,

39
Bruce & Ely, The Law of Easements and Licenses in
Land, § 1:1 (2004). See also Rusk v Grande, 332 Mich 665,
669; 52 NW2d 548 (1952), quoting Morrill v Mackman, 24 Mich
279, 284 (1872), and McClintic-Marshall Co v Ford Motor Co,
254 Mich 305, 317; 236 NW 792 (1931) (“‘An easement is a
right which one proprietor has to some profit, benefit or
lawful use, out of, or over, the estate of another
proprietor. * * * It does not displace the general
possession by the owner of the land, but the person
entitled to the easement has a qualified possession only,
so far as may be needful for its enjoyment.’”).
23
whether appurtenant40 or in gross,41 is generally confined to

a specific purpose.42

40
An easement appurtenant is one “created to benefit
another tract of land, the use of easement being incident
to the ownership of that other tract.” Black’s Law
Dictionary (7th ed).
41
An easement in gross is one “benefiting a particular
person and not a particular piece of land.” Black’s Law
Dictionary (7th ed).
42
See St Cecelia Society v Universal Car & Service Co,
213 Mich 569, 576-577; 182 NW 161 (1921), quoting 9 RCL,
Easements, § 2 (“‘An easement has been defined as a
liberty, privilege or advantage in land without profit,
existing distinct from the ownership of the soil. It is a
right which one person has to use the land of another for a
specific purpose.’”); 28A CJS, Easements, § 2, pp 166-167
(“Generally, an easement is a right that one has to use
another’s land for a specific purpose that is not
inconsistent with the other’s ownership interest . . . .”);
25 Am Jur 2d, Easements and Licenses, § 71, p 568 (“The
rights of any person having an easement in the land of
another are measured and defined by the purpose and
character of the easement.”).

The dissent asserts that “[w]e infer also that the
parties intended that the permitted use of an easement will
change over time absent language to the contrary in the
deed.” Post at 7. For this proposition, it cites
Restatement Property, 3d, § 4.10, p 592. This passage
provides:

Except as limited by the terms of the
servitude determined under § 4.1, the holder of
an easement or profit as defined in § 1.2 is
entitled to use the servient estate in a manner
that is reasonably necessary for the convenient
enjoyment of the servitude. The manner,
frequency, and intensity of the use may change
over time to take advantage of developments in
technology and to accommodate normal development
of the dominant estate or enterprise benefited by
the servitude. Unless authorized by the terms of
the servitude, the holder is not entitled to
24
 In order to determine whether the easement at issue

here is limited to a specific purpose, we must discern the

parties’ intent as shown by the plain language of the

deed.43 Here, the parties conveyed a right-of-way “for the

railroad” of the original grantee. This language shows

quite clearly that the parties intended to convey an

easement for a railroad. Even the paragraph reserving the

grantor’s rights to extract minerals from the strip of land

at issue states that such extraction must be performed “in

such manner as not to interfere with the construction or

operation of said railroad.” Finally, the deed’s habendum

clause expressly states that the right-of-way is the

grantee’s “to have and to hold . . . for the purpose and

uses above stated and subject to the reservations aforesaid

. . . .” The only purpose and use mentioned in the

instrument is the construction and operation of a railroad.

cause unreasonable damage to the servient estate
or interfere unreasonably with its enjoyment.

This passage suggests that the “manner, frequency, and
intensity” of the grantee’s use of the easement may change
through time; this is an assertion with which we have no
quarrel. But, where a deed grants an easement limited to
railroad purposes, it is only the “manner, frequency, and
intensity” of railroad uses that may change over time. The
Restatement does not suggest that the fundamental nature of
an easement may change through time. Moreover, while the
dissent acknowledges that specific language in the deed may
curb the extent to which an easement adapts to changing
circumstances, post at 7, it fails to recognize the limits
imposed by the specific language in the deed at issue here.
43
Purlo, supra at 487-488.
25

We conclude, therefore, that the easement conveyed by the

1873 deed is limited to railroad purposes.44

Plaintiff maintains that the interest conveyed by the

1873 deed is not limited to railroad purposes, referring us

to Quinn, supra, as support for its argument. In Quinn, we

held that the landowners had conveyed a fee simple (rather

than an easement) to the defendant railway company and,

thus, that the defendant was entitled to drill for oil and

gas in the subject property. Justice Fead, writing for the

Court, reasoned, “Where the land itself is conveyed,

although for railroad purposes only, without specific

designation of a right of way, the conveyance is in fee and

not of an easement.”45 He then rejected the proposition

that the fee was limited to a specific use: “Had the grant

contained a reverter clause the title would have been a

determinable fee upon condition subsequent.”46 Plaintiff

argues, therefore, that the lack of a defeasance clause in

44
The dissenting opinion concludes that “the deed
created a right-of-way for a transportation corridor where
the grantee could run a railroad.” Post at 8. We can find
no mention of a “transportation corridor” in the deed, and
cannot locate any “broad language,” id., that would support
such a reading (nor does the dissent cite any such
language). We simply see no principled way to justify the
dissent’s reading in light of the applicable rules of
construction.
45
Quinn, supra at 150-151.
46
Id. at 152.
26

the 1873 deed indicates, as shown by Quinn, that the

interest conveyed was not intended to be limited to

railroad purposes.

Plaintiff’s reliance on Quinn is misplaced, for that

case is distinguishable in an important sense from the case

at bar. At issue in Quinn was a fee simple—an estate in

land. Here, we are concerned with the scope of an

easement—an interest in land.47 Fee simple estates revert

to the grantor only if they contain language providing for

reversion. Easements, on the other hand, are inherently

limited estates in land.48 Thus, the principles applicable

to the fee simple in Quinn do not translate to the easement

under consideration in this case.

We conclude, therefore, that the plain language of the

1873 deed limited the easement conveyed to the original

grantee to railroad purposes.

C. ABANDONMENT OF THE EASEMENT

Finally, we turn to the question whether plaintiff has

a valid interest in this easement limited to railroad

47
See Kitchen v Kitchen, 465 Mich 654, 659; 641 NW2d
245 (2002). The dissenting opinion makes similar errors,
first relying on Quinn to (mis)interpret the language of
the deed at issue here, post at 4-5, and then citing the
absence of “defeasance or reverter language” to argue that
the easement was not limited to railroad purposes. Id. at
8.
48
See note 33.
27

purposes. This easement, limited as it is to a particular

purpose, will “terminate[] as soon as such purpose ceases

to exist, is abandoned, or is rendered impossible of

accomplishment.”49 In this case, defendant alleges that the

easement was terminated because of the actions of

plaintiff’s predecessor in interest. Thus, we must

determine whether plaintiff’s predecessor in interest

abandoned its interest in the Houghton County right-of-way.

Before determining whether plaintiff’s predecessor in

interest abandoned the easement, however, a brief overview

of federal and state rails-to-trails legislation is

necessary. The Sixth Circuit Court of Appeals succinctly

summarized the applicable federal legislation in RLTD R

Corp v Surface Transportation Bd:50

In the Transportation Act of 1920, Congress
gave the Interstate Commerce Commission (“ICC”)
jurisdiction over railroad track abandonments.
Pursuant to the ICC Termination Act of 1995, the
ICC ceased to exist. Authority over abandonment
applications is now held by the [Surface
Transportation Board (STB)].

Prior to the enactment of the Transportation
Act, state and local authorities constrained
railroad companies in their efforts to abandon
unprofitable tracks. In giving the ICC/STB
authority to grant or deny applications for
abandonment, Congress sought to balance the
railroad companies’ need to dispose of trackage
that was no longer profitable with the public’s

49
25 Am Jur 2d, Easements and Licenses, § 96, p 594.
50
166 F3d 808 (CA 6, 1999).
28
 need for a working interstate track system. If a
railroad track falls within its jurisdiction, the
ICC/STB has exclusive authority to determine
whether abandonment will be permitted. The
ICC/STB may approve an abandonment after a full
administrative proceeding, or it may authorize
abandonment by granting an exemption from the
section 10903 process for “out-of-service” rail
lines. The ICC/STB loses its jurisdiction over a
rail line once the line is abandoned pursuant to
an ICC/STB authorization. Actual abandonment
pursuant to authorization is known as
[51]
“consummation.”

The 1976 Michigan State Transportation Preservation

Act (MSTPA) works in concert with the federal legislation.

It declares that the “preservation of abandoned railroad

51
Id. at 810-811 (citations omitted). In 1983,
Congress amended the National Trails System Act to create a
“railbanking” program. See 16 USC 1247(d); Wright and
Hester, supra at 356-357 (“The rails-to-trails program was
born after President Johnson signed the National Trails
System Act in 1968 and Congress, responding to the alarming
increase in railroad abandonments and the growing need for
alternative transportation corridors, implemented what has
come to be called its “railbanking” policy through its
amendment of the Trails Act in 1983.”). Federal law, as
the Sixth Circuit Court of Appeals noted, now

allows a railroad wishing to cease operations
along a stretch of track to negotiate with the
state, municipality, or private group concerning
the transfer of financial and managerial
responsibility for the railroad corridor and the
maintenance of the corridor for possible future
rail use—called “railbanking”. Railbanking is an
alternative to abandonment. With railbanking,
the railroad maintains ownership of the rail
corridor, a third party makes interim use of the
rail corridor, and the ICC/STB’s jurisdiction
over the rail corridor continues. When a track
is abandoned, however, ICC/STB jurisdiction
ceases, and, in the usual case, reversionary
interests in the rail corridor become effective.
[RLTD R Corp, supra at 810-811.]
29
rights of way for future rail use and their interim use as

public trails” is a “public purpose.”52 The act therefore

requires railroad companies wishing to abandon a railway to

notify the state Department of Transportation and

authorizes the Department of Transportation or the MDNR to

acquire abandoned railways.53 If a right-of-way is acquired

under the MSTPA, the acquiring department “may preserve the

right-of-way for future use as a railroad line and, if

preserving it for that use, shall not permit any action

which would render it unsuitable for future rail use.”54

With this background in the applicable federal and

state law, we turn now to the question whether Soo Line,

plaintiff’s predecessor in interest, abandoned the right-

of-way at issue here.

On September 29, 1982, the ICC authorized Soo Line’s

abandonment, for purposes of federal law, of the railway at

issue in this case. The ICC “certificate and decision”

reports that the Michigan Department of Transportation

originally provided financial assistance to Soo Line on

terms established by the ICC. After the financial

assistance agreement expired on October 1, 1982, the ICC

52
MCL 474.51(3).
53
MCL 474.56, 474.58.
54
MCL 474.60(11).
30
granted Soo Line permission to abandon the railway. The

ICC’s decision included the following terms:

Soo Line shall keep intact all of the right-
of-way underling [sic] the track, including all
the bridges and culverts, for a period of 120
days from the decided date of this certificate
and decision to permit any state or local
government agency or other interested party to
negotiate the acquisition for public use of all
or any portion of the right-of-way. In addition,
Soo Line shall maintain the Houghton Depot for
120 days from the decided date of this
certificate and decision. During this time, Soo
Line shall take reasonable steps to prevent
significant alteration or deterioration of the
structure and afford to any public agency or
private organization wishing to acquire the
structure for public use the right of first
refusal for its acquisition.

Soo Line followed the procedures necessary to abandon

the railroad and, after the 120-day period ordered by the

ICC, was free to abandon its right-of-way. That is not to

say, however, that the easement, a creature of state law

distinct from the rail that physically occupied the right-

of-way, was necessarily abandoned at the end of the 120-day

period prescribed by the ICC.

An easement holder abandons a railroad right-of-way

when “non-user is accompanied by acts on the part of the

owner of either the dominant or servient tenement which

manifest an intention to abandon, and which destroy the

object for which the easement was created or the means of

31

its enjoyment . . . .”55 This principle was recently

summarized by the Court of Appeals in Ludington & Northern

Railway v Epworth Assembly:

To prove abandonment, both an intent to
relinquish the property and external acts putting
that intention into effect must be shown.
Nonuse, by itself, is insufficient to show
abandonment. Rather, nonuse must be accompanied
by some act showing a clear intent to abandon.[56]

In this case, it is clear that the railway is no

longer used. The question, therefore, is whether Soo Line

manifested an intent to abandon the underlying easement and

not simply the railway that utilized the easement.

This intent cannot necessarily be inferred from the

fact that a railroad company sought and obtained permission

from the ICC/STB to abandon a railway and took action

consistent with that federal authorization.57 A railway

55
Van Bochove, supra at 101.
56
188 Mich App 25, 33; 468 NW2d 884 (1991) (citations
omitted).
57
On this point, we agree with the dissent. We part
company, of course, in assessing the legal significance of
Soo Line’s petition to abandon its railroad under Michigan
real property law.

The majority and dissent also differ on a related
point. The dissenting opinion presumes that we may rely on
the views of Congress and federal agencies on questions of
state real property law such as abandonment. See post at 9
(“Congress has made clear that use of a rail line as a
recreational trail after the issuance of a certificate of
abandonment should not be equated with abandonment of the
easement."). Assuming the dissent’s assertions about the
32
located on an easement is analytically distinct, after all,

from the easement itself. But as already shown, the

easement in this case is itself limited to railroad

purposes under the 1873 deed. Therefore, in both seeking

federal permission to abandon its railroad and removing the

rails themselves, Soo Line manifested an intent to abandon

the underlying easement (which was limited to railroad

uses) and took action consistent with that intent.58

The United States District Court for the Western

District of Michigan reached a similar conclusion in Belka

views of Congress are correct, we believe that Justice
Kelly’s reliance on those views is misplaced. Unless
federal law expressly or implicitly preempts state law in
this area, we see no reason to defer to Congress in
determining when an easement is abandoned for purposes of
Michigan’s common law of real property. See Crosby v Nat'l
Foreign Trade Council, 530 US 363, 372-373; 120 S Ct 2288;
147 L Ed 2d 352 (2000) (describing federal preemption
principles).
58
Plaintiff’s argument to the contrary relies largely
on the Court of Appeals opinion in Strong v Detroit & M R
Co, 167 Mich App 562; 423 NW2d 266 (1988). Read
carefully, Strong does little to advance plaintiff’s cause.
In that case, there was no indication that the easement was
limited to railroad purposes as was the right-of-way at
issue here. It is not surprising that the Court of Appeals
would not hold that mere removal of a railroad track
constituted abandonment of an underlying property interest
when the interest was not limited to railroad purposes.
Moreover, the easement holder in Strong filed notice of its
easement under the marketable record title act, MCL
565.103. This filing “indicated that [the easement holder]
intended to preserve its interest.” Strong, supra at 569.
33
v Penn Central Corp.59 In Belka, the plaintiffs argued that

the easement possessed by Penn Central was limited to

railroad purposes60 and, therefore, that Penn Central

59
1993 US Dist LEXIS 15836 (WD Mich, 1993)
(unpublished), aff’d without opinion 74 F3d 1240 (CA 6,
1996).
60
The conveyance at issue in Belka provided:

This indenture, Made this day of
A.D. 18 , BETWEEN of in the County of
, and State of Michigan, of the first part,
and the Kalamazoo, Allegan and Grand Rapids Rail
Road Company, of the second part, Witnesseth,
That the said parties of the first part, in
consideration of the sum of , to them in hand
paid, the receipt whereof is hereby acknowledged,
do grant, bargain, sell and confirm unto the said
party of the second part, and to their assigns
FOREVER, a RIGHT OF WAY in and over a certain
strip of LAND, situate, lying and being in [legal
description] reference being made, for more
certain description of said strip, to the map of
the route of said Company, on file in the offices
of the Register of Deeds for the Counties of
Kalamazoo and Allegan and Kent respectively, for
the said party of the second part, and their
assigns and their servants and agents to build,
construct and maintain a Rail Road in and over
the said strip of land, and at all times freely
to pass and re-pass by themselves, their
servants, agents and employees, with their
engines, carts, horses, cattle, carts, wagons and
other vehicles, and to transport freight and
passengers, and to do all other things properly
connected with or incident to the location,
building, maintaining, and running the said Road,
and to use the earth and other materials within
said strip of land, for that purpose, TO HAVE AND
TO HOLD the said easements and privileges to the
said party of the second part, and to their
assigns, FOREVER. And the said parties of the
first part for themselves and their heirs, doth
covenant and agree that they will WARRANT AND
34
abandoned the underlying easement when it manifested its

intent to abandon all railroad operations. The court held

that, in abandoning its easement with STB permission,

removing its tracks, and attempting to sell its easement,

Penn Central had abandoned its railway under state property

law. Penn Central’s contention that it intended to keep

the underlying easement, even as it abandoned the railway,

was rejected:

This argument has superficial appeal, but it
breaks down under scrutiny. The flaw in this
argument is that while Defendants claim no intent
to abandon their “property interest” they do not
specify what that property interest is. Whether
Defendants intended to abandon their property
rights cannot be determined without consideration
of the nature of that property interest.
Defendants did not own a fee simple interest in
the railroad corridor. They had an easement to
use it “for railroad purposes.” Accordingly, the
issue for this Court is not whether Defendants
intended to abandon some nebulous concept of
“property rights”, but whether they intended to
abandon their right to use the property “for
railroad purposes”.[61]

We find the district court’s analysis in Belka

persuasive. The easement originally granted to Mineral

Range Railroad, subsequently transferred to Soo Line

Railroad, and finally conveyed to plaintiff was limited to

railroad purposes. Therefore, Soo Line’s decision to seek

DEFEND the above granted RIGHT OF WAY in the
peaceable and quiet possession of the said party
of the second part, and their assigns, FOREVER.
[Id. at *2 n 2.]
61
Id. at *14-*15.
35

federal permission to cease all rail operations on the

right-of-way, its subsequent cessation of those activities

after the 120-day period prescribed by the ICC, and its

removal of all railroad tracks on the strip of land

constituted an abandonment of the underlying property

interest.

We have determined, therefore, that the 1873 deed

conveyed an easement limited to railroad uses and that Soo

Line abandoned that easement for state property law

purposes when it sought, obtained, and acted on the ICC’s

permission to abandon the railway in 1982. Consequently,

Soo Line did not have a valid property interest in the

Houghton County right-of-way to convey to plaintiff in

1988. Defendant has an unencumbered fee simple interest in

the right-of-way and, as any property owner in Michigan may

do with its property, may limit its use as it sees fit.

D. RESPONSE TO THE DISSENT

The dissenting opinion insists that we should not have

entertained defendant’s appeal at all because the ICC/STB

has exclusive jurisdiction over what is left of Soo Line’s

railroad in this area.62 The dissent’s argument, in

essence, is this:

The record in this case contains nothing
that shows that the Soo Line ever advised the ICC

62
Post at 8.
36

 that it had completed abandonment as the
certificate required. It appears that no notice
of consummation was filed with the ICC or the
STB. Consequently, in 1983, a year after the
certificate was issued, the abandonment
authorization would have expired. The rail line
cannot be abandoned without a new proceeding.[63]

As an initial matter, we note that the dissent does

not argue that Soo Line actually failed to notify the ICC,

but argues instead that the record contains no evidence

that Soo Line provided notice. Of course, it would be just

as accurate to say that the record contains no evidence

that Soo Line failed to provide notice because, in fact,

neither party has raised the notice issue on which the

dissent now relies. It is hardly surprising, therefore,

that there is a gap in the evidentiary record on this

question.64 We would be unwise indeed to draw sweeping

inferences from this sort of evidentiary “gap.”

Even if there were a factual basis for the dissent’s

argument, its legal rationale is deeply flawed. First and

foremost, the dissenting opinion relies on a provision of

the Code of Federal Regulations that was enacted almost

63
Post at 7-8.
64
That is not to say that the parties may waive or
concede the question of subject-matter jurisdiction. To
the contrary, subject-matter jurisdiction cannot be waived.
Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 204;
631 NW2d 733 (2001).
37
fifteen years after Soo Line’s application to abandon its

railroad and is, therefore, inapplicable here.65

The dissent also relies on the fact that the ICC had a

“practice”66 of requesting notice of abandonment in the

early 1980s67 and that the ICC operated on the belief that

it lacked jurisdiction once a notice of abandonment had

been filed. We believe that the dissent misconstrues the

legal significance of this “practice.”

While the ICC has determined that its jurisdiction

terminated once notice of abandonment was filed, neither

the ICC nor the STB has ever concluded, as the dissent

does, that state courts lack jurisdiction as a matter of

law until notice of abandonment is filed or until the

65
See post at 8, citing 49 CFR 1152.29(e)(2). 49 CFR
1152.29, which provides that notice to the STB is necessary
in order to consummate a railway abandonment, did not exist
until 1997. See, e.g., Becker v Surface Transportation Bd,
328 US App DC 5, 6 n 2; 132 F3d 60 (1997).
66
See Consolidated Rail Corp v Surface Transportation
Bd, 320 US App DC 130, 135; 93 F3d 793 (1996), citing St
Louis Southwestern R Co—Abandonment—in Smith & Cherokee
Cos, Tx, 9 ICC 2d 406, 410 n 8 (1992) (noting that the
“practice” of requiring notice ended in 1984).
67
Post at 7 n 6, citing 363 ICC 132, 142 n 2 (1980).
The authority cited is an ICC opinion that states: “When a
rail line has been fully abandoned, it is no longer rail
line and the transfer of the line is not subject to our
jurisdiction.” Id. at 135. The opinion provides in
footnote 2 that “[a] line is fully abandoned after a
certificate of public convenience and necessity has been
issued, and when operations have ceased, tariffs have been
canceled and a letter has been filed with the Commission
that the abandonment has been consummated.”
38

ICC/STB has declared that its jurisdiction has ended.68

Indeed, even now that notice is actually required by STB

regulations, notice of abandonment is not necessary to

terminate the STB’s jurisdiction.69 It is simply conclusive

evidence that the railroad has consummated its

abandonment.70 Abandonment may occur—and, thus, the STB’s

jurisdiction may terminate—even in the absence of written

notice.71

68
Although the STB “retains exclusive, plenary
jurisdiction to determine whether there has been an
abandonment sufficient to terminate its jurisdiction,”
Lucas v Bethel Twp, 319 F3d 595, 603 (CA 3, 2003),
plaintiff has not requested such a determination from the
STB and the STB itself has not intervened in this case.
69
See 49 CFR 1152.29(e)(2) (“Notices will be deemed
conclusive on the point of consummation if there are no
legal or regulatory barriers to consummation . . . .”).
70
See, e.g., Consolidated Rail Corp, supra, at 798
(“In its October 5, 1995 Decision, the ICC also suggested
that Conrail’s failure to notify the Commission that the
line had been abandoned was evidence of Conrail’s
uncertainty of purpose [regarding abandonment].”) (emphasis
added); 61 FR 11174, 11177-11178, which included the
following explanation of the proposed rule that became 49
CFR 1152.29:

[U]nder our proposal, notices that are filed
would be deemed conclusive on the point of
consummation if there are no legal or regulatory
barriers to consummation . . . . If no notice of
consummation of abandonment has been filed, we
would continue to look at the other facts and
circumstances to determine if consummation of the
abandonment had occurred.
71
See 49 CFR 1152.29(e)(2) (providing that notice is
“deemed conclusive” on the point of consummation in the
39
 In short, the dissent has offered neither a factual

nor legal basis to support its assertion that the STB has

exclusive jurisdiction over the present dispute. We

conclude, therefore, that the dissenting opinion’s

jurisdictional argument is in error.

IV. CONCLUSION

We conclude that the Court of Appeals erred in holding

that plaintiff is entitled to summary disposition. The

limited easement owned by plaintiff’s predecessor in

interest had been abandoned by the time the predecessor

purported to sell that property interest to plaintiff. We

therefore reverse the judgment of the Court of Appeals and

remand the matter to the trial court for entry of summary

disposition in defendant’s favor.

Robert P. Young, Jr.
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman

absence of “legal or regulatory barriers to consummation.”
See also Lucas v Bethel Twp, 319 F3d 595, 603 n 11 (CA 3,
2003) (“Historically, the STB determined whether an
abandonment was consummated by evaluating the carrier's
objective intent to cease permanently or indefinitely all
transportation service on the line. This test leaves a
great deal of uncertainty as to the rail line's status,
however. Since 1997, the STB has taken steps to alleviate
this problem by renewing a requirement that railroads file
with the agency a letter confirming consummation of
abandonment.”) (citation omitted).
40
 S T A T E O F M I C H I G A N

SUPREME COURT

MICHIGAN DEPARTMENT OF
NATURAL RESOURCES,

Plaintiff-Appellee,
Cross-Appellant

v No. 124413

CARMODY-LAHTI REAL ESTATE, INC.,
a Michigan corporation,

Defendant-Appellant,
Cross-Appellee.
_______________________________

KELLY, J. (dissenting).

I agree with the majority’s conclusion that

plaintiff’s property interest is an easement rather than a

fee simple. However, I conclude that this Court should not

find that the easement was abandoned.

Defendant has not shown that plaintiff’s predecessor,

the Soo Line Railroad Company, completed the federal

regulatory process for abandonment. Therefore, it appears

that the rail line remains under the jurisdiction of the

Surface Transportation Board1 for future reinstatement of

1
The Surface Transportation Board (STB) assumed the
functions of the Interstate Commerce Commission (ICC)
effective January 1, 1996. 49 USC 10101-16106; 49 USC
10903; 49 USC 10501(a)(1). Railroad Ventures, Inc v Surface
Transportation Bd, 299 F3d 523, 530 (CA 6, 2002). For
simplification, I refer to them both as the ICC because
service. If that is the case, defendant may not circumvent

federal jurisdiction by obtaining a state court judgment of

abandonment.

Even if abandonment of the line were consummated with

the ICC, we should conclude that the Soo Line never

abandoned the underlying easement before conveying it to

plaintiff for a trail. The mere fact of the sale

demonstrates that the Soo Line intended to retain dominion

over the easement until disposing of it. If the company

believed in 1982 that it was abandoning this property

interest, it would not have sold a portion of it to

plaintiff in 1985.

Moreover, the parties who originally created the

easement did not intend to limit its use to a rail line.

Rather, they created a right-of-way to last forever, one

that can be used today as a recreational trail.

Therefore, the result reached by the trial court and

the Court of Appeals should be affirmed.

FACTUAL BACKGROUND

In 1873, the Quincy Mining Company granted an easement

for a right-of-way to the Mineral Range Railroad Company.

that was the agency that governed the Soo Line at the time
in question.

2

Defendant now owns a portion of the mining company’s former

property through which this right-of-way runs.

The Mineral Range Railroad built and for many years

operated a rail line on the right-of-way. It then

transferred the rail line and right-of-way to the Soo Line

Railroad. In the 1980s, the Soo Line discontinued running

trains on the rail line. Sometime after 1986, it removed

some of the tracks and, in 1988, sold the right-of-way to

plaintiff Michigan Department of Natural Resources.

Plaintiff maintained the former railway grade as a

recreational trail. But, nine years later, defendant

installed a fence across the trail, blocking its use as a

trail.

PROCEEDINGS BELOW

Plaintiff filed suit seeking an injunction to force

removal of the fence. The trial court initially held that

Mineral Range had an unrestricted fee simple interest that

it passed to plaintiff by deed. The Court of Appeals

reversed that holding and remanded the case. Unpublished

opinion per curiam, issued June 5, 2001 (Docket No.

222645). It held that the deed conveyed an easement, not a

fee simple interest, and remanded the case to the circuit

court for a determination whether the easement remained in

existence.

3

 On remand, the circuit court granted plaintiff’s

motion for summary disposition. It held that the easement

was not limited to use as a rail line. Moreover, it found

that the Soo Line had not abandoned the easement. Thus,

plaintiff was entitled to maintain the right-of-way as a

recreational trail. The Court of Appeals affirmed that

decision. Unpublished opinion per curiam, issued June 3,

2003 (Docket No. 240908). We granted defendant’s

application for leave to appeal. 470 Mich 868 (2004).

STANDARD OF REVIEW

The existence of an easement is a question of law.

Mahar v Grand Rapids T R Co, 174 Mich 138, 142; 140 NW 535

(1913); Epworth Assembly v Ludington & N R, 236 Mich 565;

211 NW 99 (1926). In contrast, the permissible use of an

easement is a question of fact. Hanselman v Grand Trunk W

R Co, 163 Mich 496, 499; 128 NW 732 (1910); 65 Am Jur 2d,

Railroads, § 60, pp 247-248.

Trial courts may draw inferences of fact. MCR

7.316(A)(6). They are presumed correct2 and may not be set

aside unless found to be clearly erroneous. MCR 2.613(C).

We review actions to establish title de novo. Farmer v

Fruehauf Trailer Co, 345 Mich 592, 595; 76 NW2d 859 (1956).

2
Beason v Beason, 435 Mich 791, 804; 460 NW2d 207
(1990).

4

 A STATE COURT MAY NOT DECLARE A RAILROAD EASEMENT ABANDONED BEFORE
ABANDONMENT OF THE RAIL LINE HAS BEEN CONSUMMATED WITH THE ICC

Under federal transportation law involving rail lines,

abandonment has a specific meaning. Bingham Twp v RLTD R

Corp, 463 Mich 634, 635-636; 624 NW2d 725 (2001), citing

RLTD R Corp v Surface Transportation Bd, 166 F3d 808, 810-

811 (CA 6, 1999). It refers to removal of a rail line from

the national transportation system. Nat’l Ass’n of

Reversionary Prop Owners v Surface Transportation Bd, 332

US App DC 325, 327; 158 F3d 135 (1998) (NARPO), citing

Preseault v Interstate Commerce Comm, 494 US 1, 5-6 n 3;

110 S Ct 914; 108 L Ed 2d 1 (1990) (unanimous).

Under the federal Transportation Act,3 a rail carrier

may not remove a rail line from national service until it

obtains a certificate of abandonment from the ICC. 49 USC

10903(a)(1)(B). Hayfield N R Co v Chicago & N W

Transportation Co, 467 US 622, 628; 104 S Ct 2610; 81 L Ed

2d 527 (1984) (unanimous). The certificate verifies that

future public convenience and necessity will accommodate

cessation of the company’s rail service on the line. Id.

It reflects the ICC’s determination that the line is no

longer needed for interstate rail service. Railroad

3
Transportation Act of 1920, ch 91, § 402(18)-(22), 41
Stat 477-478, recodified at 49 USC 10903(a) (1976 ed, Supp
III).

5

Ventures, Inc v Surface Transportation Bd, 299 F3d 523, 531

n 4 (CA 6, 2002), citing Preseault at 6 n 3.

Years ago, the ICC developed a mechanism to retain

jurisdiction over a rail line if a carrier did not realize

its stated intent to abandon the line. It imposed

conditions on its issuance of a certificate of abandonment,4

maintaining jurisdiction over the rail line until the

conditions were met. Preseault at 8. A line no longer in

use, but not officially abandoned, could be reactivated

later. In the meantime, it was termed “discontinued.”

NARPO at 328.

In this case, the Soo Line sought, and in 1982 was

issued, a certificate of abandonment. It expressly stated:

1. This certificate and decision is
effective October 1, 1982. . . .

2. If the authority granted by this
certificate and decision is exercised, Soo Line
shall advise this Commission in writing,
immediately after abandonment of the line of
railroad, of the date on which the abandonment
actually took place.

3. If the authority granted in this
certificate and decision is not exercised within
one year from its effective date, it shall be of
no further force and effect. [ICC Certificate and
Decision, Soo Line Railroad Company, Docket No.
AB-57 (Sub-No. 7) (Decided September 29, 1982).]

4
The ICC could even impose postabandonment conditions.
Hayfield at 633.

6

 The majority erroneously states that the “Soo Line

followed the procedures necessary to abandon” the rail

line. Ante at 34. The record in this case contains

nothing showing that the Soo Line ever advised the ICC that

it had completed abandonment as the certificate explicitly

required. It appears that no notice of consummation was

filed with the ICC or the STB.5 Consequently, in 1983, a

year after the certificate was issued, the abandonment

authorization would have expired. The rail line cannot be

5
As early as 1980, an ICC Notice of Final Rules and
Exemptions made clear that the ICC retains jurisdiction of
a rail line for which the notification of abandonment has
not been submitted. 363 ICC 132, n 2 (1980). For a period
in the mid-1980s, the ICC did not require the notice of
consummation of abandonment. This period was after the
abandonment certificate in this case expired. Also, the
ICC later reinstated and codified the requirement to
eliminate uncertainty over whether a line has been
abandoned and is no longer under the jurisdiction of the
ICC. This served to preclude a rail carrier from holding a
track indefinitely in an uncertain status. Becker v
Surface Transportation Bd, 328 US App DC 5; 132 F3d 60, 61
n 2, 63 n 4 (1997). See 49 CFR 1152.24(f), 1152.29(e)(2),
1152.50(e).

7

abandoned without a new proceeding. 49 CFR 1152.29(e)(2);6

NARPO at 329 n 7.7

Moreover, defendant may not divest the ICC of its

jurisdiction over the rail line through a collateral state

court proceeding. Phillips Co v Southern Pacific R Corp,

902 F Supp 1310, 1317 (D Colo, 1995). ICC jurisdiction

over a rail line precludes a state court from making a

finding that a state property law interest has been

extinguished by evidence of abandonment. Preseault at 8.

Therefore, it appears that this Court lacks

jurisdiction to find that the Soo Line abandoned its

easement.

EVEN IF THE SOO LINE ABANDONED THE RAIL LINE,
IT DID NOT ABANDON THE EASEMENT

However, the majority is unpersuaded and finds that

the Soo Line did abandon the easement. I believe that,

even if the Soo Line consummated abandonment of the rail

6
The majority asserts that I rely “First and foremost”
on this provision. Ante at 41. Actually, I rely primarily
on the explicit terms of the certificate issued to the Soo
Line. I cite the regulation to substantiate my conclusion
that, because the authorization to abandon granted to the
Soo Line appears to have lapsed, a new proceeding is
required.
7
I note that the federal railbanking program was but a
glimmer in Congress’s eye when the STB issued its
certificate of abandonment to the Soo Line in 1982. The
Soo Line could not have used this program at that time
because it did not exist.

8

line with the ICC, it did not abandon the easement on which

the line was built.

Abandonment, like the scope of an easement, is a

question of fact. McMorran Milling Co v Pere Marquette R

Co, 210 Mich 381, 391, 393-394; 178 NW 274 (1920). Whether

it has occurred is determined by the actions of the

parties. Van Slooten v Larsen, 410 Mich 21, 50; 299 NW2d

704 (1980), app dis sub nom Craig v Bickel, 455 US 901

(1982).

Congress has made clear that use of a rail line as a

recreational trail after the issuance of a certificate of

abandonment should not be equated with abandonment of the

easement. The ICC’s regulatory authority over rail

corridors includes conserving them for future use for

commerce and for current use as recreational trails. The

Railroad Revitalization and Regulatory Reform Act of 1976

(4-R Act)8

provided for mandatory transfers of corridors
proposed for abandonment to other carriers, and
directed the ICC to impose conditions barring the
disposition of railroad rights-of-way for 180
days in order to allow for possible transfers for
public use, including for trails. [H R Subcomm
on Com and Admin L of the Jud Comm, Litigation
and Its Effect on the Rail-to-Trails Program,
107th Cong at 57 (June 20, 2002) (statement of

8
Pub L 94-210, 90 Stat 144, as amended, 49 USC 10906
(1982 ed).

9

 Andrea Ferster, General Counsel, Rails-to-Trails
Conservancy).]

See Preseault at 5-6.

The Rails-to-Trails Act9 gave the ICC oversight

authority in the conversion of railroad rights-of-way to

recreational trails when a rail carrier seeks permission

from the ICC to cease service. Id. at 59-60. This

authority extends to rights-of-way that are not in use for

railroad transportation. Preseault at 6; Caldwell v United

States, 391 F3d 1226, 1229-1230 (CA Fed Cir, 2004).

The United States Supreme Court has stated that, when

a railroad company “abandons” a line, it does nothing more

than divest the ICC of authority over the line. The Court

said that Congress intended, when writing the act,

that interim use of a railroad right-of-way for
trail use, when the route itself remains intact
for future railroad purposes, shall not
constitute an abandonment of such rights-of-way
for railroad purposes. This finding alone should
eliminate many of the problems with this program.
The concept of attempting to establish trails
only after the formal abandonment of a railroad
right-of-way is self-defeating; once a right-of-
way is abandoned for railroad purposes there may
be nothing left for trail use. This amendment
would ensure that potential interim trail use
will be considered prior to abandonment.
[Preseault at 8, citing H R Rep No. 98-28, pp 8-9
(1983); S Rep No. 98-1, p 9 (1983).]

9
National Trails System Act Amendments of 1983, Pub L
98-11, § 208, 97 Stat 42, 48 (1983) (codified as amended at
16 USC 1247(d) (Supp II, 1996).

10

 The Court opined that every rail line is “a

potentially valuable national asset that merits

preservation even if no future rail use for it is currently

foreseeable.” Preseault at 19. Thus, rail-to-trail

conversions do not constitute abandonment of a property

right under state law, even if the easement was

specifically created for railroad purposes only. Preseault

at 8.10

The majority states that the Rails-to-Trails Act

requires a railroad company to “bank” its right-of-way in

order to preserve its property interest. This is untrue.

Buffalo Twp v Jones, 571 Pa 637, 651; 813 A2d 659 (2002),

cert den Jones v Buffalo Twp, 540 US 821 (2003).

Authorization by the ICC to put a railway right-of-way into

interim use as a trail is not required as a matter of law.

10
Accordingly, courts have not considered the ICC’s
certification of a railroad company’s abandonment of a line
as evidence that the company abandoned its easement. See
Rail Abandonments–Use of Rights-of-Way as Trails; Rail
Abandonments–Use of Rights-of-Way as Trails–Supplemental
Trail Act Procedures, 5 ICC 2d 370, 3 (1989) (“Once a
carrier exercises the authority granted in a regular
abandonment certificate the line is no longer part of the
national transportation system.”); Barney v Burlington N R
Co, Inc, 490 NW2d 726, 729, 730 (SD, 1992), cert den sub
nom Kaubisch v South Dakota, 507 US 914 (1993); Chevy Chase
Land Co v United States, 355 Md 110, 169-171; 733 A2d 1055
(1999), cert den 531 US 957 (2000); State of Minnesota, by
Washington Wildlife Preservation, Inc v Minnesota, 329 NW2d
543, 548 (Minn, 1983), cert den 463 US 1209 (1983).

11

Citizens Against Rails-to-Trails v Surface Transportation

Bd, 347 US App DC 382, 391; 267 F3d 1144 (2001); Southern

Pacific Transportation Co—Exemption—Abandonment of Service

in San Mateo Co, Ca, 1991 WL 108272 (ICC, 1991).

THERE IS ABUNDANT EVIDENCE THAT THE
SOO LINE DID NOT ABANDON THE EASEMENT

The trial court found that the Soo Line had no intent

to give up its easement. Because there was ample evidence

supporting this ruling, it was not clearly erroneous.

The Soo Line did not immediately remove its tracks.

They remained in place on this parcel at least through 1986

when it was appraised. Some of the tracks remain today, as

do other structures elsewhere on the right-of-way, such as

bridges.

The facts of the Belka v Penn Central Corp11 decision

cited by the majority, and Becker, contrast with the facts

in this case. In Belka, the transportation corridor was no

longer intact. The land had been broken into segments that

could not be restored for future rail service. Belka at

18-19.

In contrast, the right of way in this case remained a

viable transportation corridor in use by recreational

11
1993 US Dist LEXIS 15836 (WD Mich, 1993)
(unpublished), aff’d without opinion 74 F3d 1240 (CA 6,
1996).

12

vehicles until defendant erected its fence. Although its

path may have been difficult for some to identify during

the litigation, ante at 7, it is without question that

plaintiff identified and maintained it as a corridor for

recreational vehicles.

In Becker, the rail carrier refused to negotiate to

sell the rail line. It preferred to walk away from its

property interest. The Soo Line’s conduct, on the other

hand, demonstrates an intent not to abandon its property

interest in the right-of-way. Three years after filing its

notice of abandonment with the ICC, the Soo Line sold a

utility easement over the land to the Michigan Bell

Telephone Company.

In other cases, perhaps in this one, a rail line would

file a notice of abandonment with the ICC as a first step

in obtaining financial assistance. The intent might be to

secure a means of maintaining operation rather than

abandoning it. Chevy Chase Land Co v United States, 355 Md

110, 172-173; 733 A2d 1055 (1999).

Intent to abandon is ascertained by examining the

totality of the circumstances.12 The Soo Line stopped using

12
In Glosemeyer v United States, 45 Fed Cl 771 (2000),
the United States Court of Federal Claims held that an
application to the ICC for authority to abandon was clear
evidence of intent to abandon an easement only if

13

the right-of-way for a period in this case. However, that

may not have signified an intent to abandon it. McMorran

at 394. Ceasing operation, removing track, and canceling

tariffs are consistent with an intent to retain the right

to resume service. Becker at 62, quoting Birt v Surface

Transportation Bd, 319 US App DC 357, 362-363; 90 F3d 580

(1996). See also Strong v Detroit & M R Co, 167 Mich App

562, 569; 423 NW2d 266 (1988). More is needed in order to

conclusively prove an intent to abandon a property right.

That evidence is lacking here. Because there was ample

evidence supporting the trial court’s factual findings,

they should be upheld.

THE EASEMENT WAS NOT PERPETUALLY RESTRICTED TO USE AS A RAIL LINE

Even if the Soo Line retained its property interest in

the easement until conveying it to plaintiff, the easement

cannot be used for a trail unless its scope includes

trails. The majority finds that the easement was for

railroad purposes only. It is incorrect.

Where an easement is granted and the scope of its use

is in question, we attempt to discern the parties’ intent.

Intent is determined by applying principles similar to

“confirmed by conduct.” Id. at 777. The Pennsylvania
Supreme Court has also held that filing a certificate “must
be coupled with external acts in furtherance of
abandonment.” Buffalo Twp v Jones, 571 Pa 637, 647; 813
A2d 659 (2002).

14

those used when contracts are construed. 1 Restatement

Property, 3d, § 4.1, comment d, p 499. First, the terms of

the conveyance itself are examined. Epworth at 575; Quinn

v Pere Marquette R Co, 256 Mich 143, 150; 239 NW 376

(1931).

In this case, the conveyance was by deed. Under its

terms, Quincy gave Mineral Range and “its successors and

assigns forever a right of way for the railroad of” Mineral

Range. It later stated that Mineral Range would have and

hold the strip of land “for the purpose and uses above

stated . . . .”

This Court has held that such a statement of purpose

in a conveyance for a railroad does not mean that the land

can be used only for a railroad. In Quinn, a warranty deed

conveyed a parcel “‘to be used for railroad purposes

only.’” Id. at 146. Like the deed in this case, the deed

in Quinn did not contain a reverter clause. After

considering the circumstances surrounding the conveyance,

the Court concluded that the statement in the deed was

merely a declaration of the purpose of the grant. It did

not prevent the right-of-way from being used later for

other purposes. Id. at 151. Accord 65 Am Jur 2d,

Railroads, § 61, p 248, and § 68, p 252.

15

 By contrast, a right-of-way can be limited to use only

for a railroad where it is explicitly stated in the

conveyance. In Epworth, supra at 568, the deed to the

railroad recited that the parcel was “‘to be used for

railroad purposes only.’” It continued, “If, for any

reason, the property . . . shall . . . cease to be used for

railroad purposes and trains shall not be run over the

railroad track,” then the property reverts to the grantor.

Id. at 573. In that case, the Court held that the parties

clearly intended the property never to be used for anything

other than a railroad.

These principles apply also to deeds creating

easements. In Hickox v Chicago & C S R Co,13 the deed for a

right-of-way stated that if the property ceased “‘to be

used and operated as a railroad . . . then . . . the right-

of-way . . . shall terminate.’” Id. at 619. The Court

held that the land had to be used to operate a railway,

even though it was not limited to running trains, or the

easement ceased. Id. at 620-621.14

13
78 Mich 615; 44 NW 143 (1889).
14
See also MacLeod v Hamilton, 254 Mich 653; 236 NW
912 (1931). In that case, a right-of-way to build a drain
was granted “‘for no other purpose whatever . . . .’” Id.
at 656. When it ceased to be used for a drain, the right-
of-way ceased to exist. Id. at 656-657. Contrary to the

16

 It is not uncommon for a deed creating an easement to

describe the scope of the easement in general terms. When

a controversy over scope of usage arises, it falls to

courts to determine whether the parties intended to allow

the land to be put to uses not specified in the deed. 1

Restatement Property, 3d, § 4.1, comment b, pp 498-499.

As a general statement, the easement holder is said to

enjoy all rights reasonably necessary and proper to fully

use the easement. Unverzagt v Miller, 306 Mich 260, 265;

10 NW2d 849 (1943), citing 9 RCL, p 784; 1 Restatement

Property, 3d, § 4.10, p 592; 5 Restatement Property, § 450,

comment e, pp 2904-2905.

If the wording in a deed is not definitive, we infer

from the circumstances surrounding the conveyance what

unspecified uses the parties intended to allow. Newaygo

Mfg Co v Chicago & W M R Co, 64 Mich 114, 122-123; 30 NW

910 (1887); 1 Restatement Property, 3d, § 4.10, comment a,

p 592, and comment d, p 595. We bear in mind that

easements are permanent rights. 1 Restatement Property,

3d, § 4.1, comment b, p 498. Also, the rights of the

easement holder are superior to those of the owner in fee

majority’s assertion, before today’s decision, this Court
has consistently applied these principles both to deeds for
fee simple interests and to easement interests. Ante at
27.

17

simple. Cantieny v Friebe, 341 Mich 143, 146; 67 NW2d 102

(1954), quoting Hasselbring v Koepke, 263 Mich 466, 475;

248 NW 869 (1933), quoting Harvey v Crane, 85 Mich 316,

322; 48 NW 582 (1891), citing Herman v Roberts, 119 NY 37;

23 NE 442 (1890), East Tennessee, V & G R Co v Telford’s

Executors, 89 Tenn 293; 14 SW 776 (1890), and Kansas C R Co

v Allen, 22 Kan 285 (1879).

We infer also that the parties intended that the

permitted use of an easement will change over time absent

language to the contrary in the deed. This inference

effectuates the intent, which we presume the parties

entertained, that the right-of-way remain viable. 1

Restatement Property, 3d, § 4.10, p 592.

In this case, the deed created a right-of-way for a

transportation corridor, a kind of highway available for

public use. See Elliott on Roads and Streets, § 1,

Marthens v B & O R Co, 170 W Va 33, 38; 289 SE2d 706

(1982), citing Eckington & Soldiers’ Home R Co v McDevitt,

191 US 103; 24 S Ct 36; 48 L Ed 112 (1903), and United

States v Trans-Missouri Freight Ass’n, 166 US 290; 17 S Ct

540; 41 L Ed 1007 (1897).15 The deed assigned the right-of-

15
Thus, it would have been redundant for the parties
to describe the easement as both a right-of-way and as a
transportation corridor, as the majority seems to require.
Ante at 26 n 44.

18

way “forever,” thus creating a permanent interest. Its

initial purpose was to permit the Mineral Range Railroad to

build and run a railroad artery. It contains no defeasance

or reverter language suggesting that the parties intended

to forever limit the use of the right-of-way to a railroad.

The parties had to know that easements are

transferable and binding on subsequent owners. The fact

that they used broad language suggests that they intended

to create a corridor that over time might accommodate modes

of transportation other than railroads.16 Thus, I would

hold that this deed created a right-of-way that the parties

intended not to limit to a railroad.17 It was not

extinguished as a matter of law when it ceased to be used

for railroad purposes.

PLAINTIFF’S RIGHT-OF-WAY MAY BE USED AS A RECREATIONAL TRAIL

This Court has held that, where broad language in an

easement permits uses not stated, those uses must not

16
This is similar to the concept that a right-of-way
for a road to be used by horse-drawn buggies might later be
used by automobiles. “[A]n easement holder may utilize
such technological improvements as are reasonably necessary
to carry out the purpose of the grant . . . .” 25 Am Jur
2d, Easements and Licenses, § 76, p 575 (2004).
17
Defendant likely understood this at the time it
acquired the servient estate. It did not object later when
the Soo Line granted a utility easement in the right-of-
way. Nor did it object during the first nine years that
plaintiff used the right-of-way as a recreational trail.

19

impose an additional or increased burden on the servient

estate. Crew’s Die Casting Corp v Davidow, 369 Mich 541,

546; 120 NW2d 238 (1963), quoting Delaney v Pond, 350 Mich

685, 687; 86 NW2d 816 (1957). Use for recreational travel

may include foot travel, bicycles, horses, and recreational

vehicles. All have been adjudged to be within the scope of

a right-of-way. See WWP, supra.

Uses of a right-of-way interfere with the enjoyment of

servient estates to varying degrees. With respect to

recreational uses, hikers, equestrians, and bicyclists pose

little interference. Snowmobiles and other off-road

vehicles are more intrusive. But the most intrusive of

recreational vehicles is less intrusive than trains.

Trains may travel all hours of the day or night.

Defendant’s argument that the easement is more heavily

used as a recreational trail than it was as a railroad

misunderstands the scope of the easement. Defendant

assumes that trains may run intermittently merely because

that had been the custom. However, the easement here put

no restrictions on the scheduling of Mineral Range’s

trains. They could have run incessantly and still been

within the scope of the easement.

Trains are loud and cause damaging vibration.

Snowmobiles and recreational vehicles are less noisy and

20

cause less vibration. Also, they are used on a seasonal

basis. Other remedies are available to address problems

associated with excessive speed or traffic volume on a

recreational trail, such as speed limits and permit

requirements.

Trains have at least as great a capacity as have

recreational vehicles to serve as a means of transportation

for lawbreakers. Trains can be boarded or departed from at

locations where they must pass slowly. This case involves

such a location, in a town near a bridge. A public

recreational trail represents no greater safety hazard to

adjacent landowners than trains that vagrants ride. Trains

do not impose a substantially different burden on adjacent

landowners than highways or harbors. Hence, recreational

use of the right-of-way here does not substantially

increase the burden on plaintiff’s estate over its use by a

railroad.

CONCLUSION

From the record in this case, it appears that the

section of the Soo Line railway corridor involved remains

under the jurisdiction of the Surface Transportation Board.

As a consequence, this Court is without jurisdiction to

determine whether the easement on which it was built has

been abandoned.

21

 Moreover, even if the Soo Line consummated abandonment

of the line through the STB’s predecessor, it does not

follow that it abandoned the underlying easement. The

trial court made the finding based on ample evidence that

it did not. The Court of Appeals agreed. I have reached

the same conclusion.

In addition, I agree with the lower courts that the

easement was not restricted to use for a railroad. Quincy

Mining Company and the Mineral Range Railroad intended to

create a perpetual easement for a right-of-way. Initially,

it was for a rail line, but it was not explicitly limited

to that use. Also, the deed did not provide that the

property right would revert to Quincy or its successor if

the railroad abandoned its line. Consequently, I would

find that the parties intended to create a transportation

corridor that would remain viable “forever” as the easement

holder’s transportation needs developed.

Today’s use of the right-of-way for recreational

travel is consistent with its former use as a railway. The

burden on the servient estate was not increased when the

change occurred. In fact, recreational travel imposes a

lesser burden.

22

 Thus, I would affirm the result of the trial court and

the Court of Appeals and hold that plaintiff may use the

right-of-way for its trail.

Marilyn Kelly

23