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