ROGERS et al

Filing 548

OPINION and ORDER granting in part and denying in part 220 Cross-Motions The parties shall file a joint status report on or before 10/15/2012. Signed by Judge Mary Ellen Coster Williams. (tb1) Copy to parties.

In the United States Court of Federal Claims
No. 07-273L
No. 08-198L
(Filed: September 25, 2012)

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STEPHEN J. ROGERS, et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.

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Motion for Partial Summary
Judgment; RCFC 56; Class
Action; Fifth Amendment
Takings; Rails-to-Trails Act, 16
U.S.C. §§ 1241-51 (2006); Florida
Law; Fee Simple; Right-of-Way;
Easement Under Florida Law;
Fee Simple Determinable;
Prescriptive Easement; Adverse
Possession.

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Mark (Thor) Hearne, II, Lindsay Brinton, Meghan Largent, Debra Albin-Riley, and
Joseph Cavinato, Arent Fox LLP, 112 S. Hanley Drive, Suite 200, Clayton, MO 63105, for
Plaintiffs.
Ignacia S. Moreno and Kristine S. Tardiff, United States Department of Justice,
Environment & Natural Resources Division, 53 Pleasant Street, 4th Floor, Concord, NH 03301,
for Defendant.
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OPINION AND ORDER
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WILLIAMS, Judge.
In these consolidated “rails-to-trails” actions, Plaintiffs claim that the Government
effected a taking of their properties when, pursuant to the National Trails System Act
Amendments of 1983 (“Trails Act”), it converted a 12.43-mile railroad right-of-way, extending
from Sarasota to Venice, Florida, into a recreational trail.1 This matter comes before the Court
on the parties’ cross-motions for partial summary judgment on liability.
In two prior opinions, this Court resolved issues of liability with respect to a majority of
the named Plaintiffs. At issue in this opinion are the claims of 55 landowners in Rogers v.
1

The Court uses the term “right-of-way” to describe this strip of land for convenience
and not as a legal determination of the parties’ property interests or rights.

United States, No. 07-273L, and Bay Plaza Properties, LLC v. United States, No. 08-198L.
These landowners seek just compensation for the Government’s alleged taking of property
subject to five written conveyances -- the Palmer, Blackburn, Frazer, Knight, and Phillips
conveyances -- as well as property for which no written conveyance has been found to exist. For
the reasons described below, the Court grants Defendant’s motion for partial summary judgment
with respect to the alleged taking of property subject to the Phillips, Frazer, Blackburn, and
Knight conveyances. The Court grants Plaintiffs’ motion for partial summary judgment with
respect to claims arising from the taking of property subject to the Palmer conveyance. The
Court denies the parties’ cross-motions for summary judgment concerning property for which no
written conveyance has been found to exist.
Background2
The Seaboard Right-of-Way
Beginning in 1910, the Seaboard Air Line Railway (“Seaboard”) acquired the right to
operate a railroad line between the cities of Sarasota and Venice, Florida, via a series of
conveyances with multiple landowners.3 The railroad line was used for, among other things, the
operation of trains for the Ringling Brothers Circus. No railroad traffic has moved over this
railroad line since March 2002.
On April 2, 2004, the Surface Transportation Board (“STB”) issued a Notice of Interim
Trail Use or Abandonment (“NITU”). Under the terms of the NITU, Seminole Gulf Railway and
CSX -- as successors and assigns of Seaboard -- granted the Trust for Public Land (“the Trust”),
a national, nonprofit, land conservation organization, an option to acquire the railway right-ofway for conversion to a trail. The Trust agreed to work with Sarasota County to convert the
right-of-way into a public access recreational trail. On January 13, 2005, CSX and the Trust, in
reliance upon the NITU, executed a quitclaim deed stating that the premises covered by the deed
“remain subject to the jurisdiction of the STB for purposes of reactivating rail service.” Pls.’
Proposed Findings of Uncontroverted Fact (“PFUF”), Exs. D, L, & M (STB Docket No. AB-400
(Sub No. 3X)).
Over 100 landowners subsequently filed complaints alleging that the NITU preempted
their reversionary interests in the Seaboard right-of-way.4 Some of these landowners trace their
titles to one of several grantors who, in the early twentieth century, conveyed Seaboard an
2

This background is derived from the Court’s November 23, 2009 and June 28, 2010
opinions, and the attachments and exhibits to the motion papers.
3

Seaboard is the railroad company that operated rail service along the subject railway
corridor in the early-to-mid-twentieth century. It is the predecessor in interest to CSX and the
Seminole Gulf Railway, which, in 2003, petitioned to abandon the railway corridor. Rogers, 90
Fed. Cl. at 421.
4

Consistent with Federal Circuit precedent, the Court uses the term “reversionary
interest” to refer to “a fee simple burdened by an easement.” Preseault v. United States, 100
F.3d 1525, 1533-34 (Fed. Cir. 1996) (en banc) (“Preseault II”).
2

interest in the right-of-way. Because these parcels were conveyed to the railroad via several
different instruments, the Court examines each instrument to determine what interest the railroad
held in the right-of-way. Other landowners do not trace their titles to these deeds. Instead,
Seaboard constructed the right-of-way across these parcels without a recorded conveyance.
The two prior opinions regarding liability for takings involving the Seaboard right-of-way
addressed a single conveyance. In Rogers v. United States, 90 Fed. Cl. 418 (2009) (“Rogers”),
the Court interpreted a 1910 deed from Adrian C. Honore to Seaboard (“Honore conveyance”),
stating in pertinent part:
ADRIAN C. HONORE . . . does hereby remise, release, and
forever quit claim unto the SEABOARD AIR LINE RAILWAY
. . . a right of way for railroad purposes over and across the
following described parcels of land . . . .
...
This conveyance is made upon the express condition, however that
if the Seaboard Air Line Railway shall not construct upon said land
and commence the operation thereon [within] one year of the date
hereof of a line of railroad, or, if at any time thereafter the said
Seaboard Air Line Railway shall abandon said land for railroad
purposes then the above described pieces and parcels of land shall
ipso facto revert to and again become the property of the
undersigned, his heirs, administrators and assigns.
Rogers, 90 Fed. Cl. at 422. The Court read the conveyance as granting Seaboard an easement
solely for rail use, and therefore found that Plaintiffs whose land was subject to the Honore deed
would have obtained fee simple estates in the corridor upon discontinuance of railroad use if the
taking had not occurred. Id. at 429-33.
In the second opinion, Rogers v. United States, 93 Fed. Cl. 607 (2010) (“Bird Bay”), the
Court interpreted a conveyance to Seaboard from B.L.E. Realty Corporation (“B.L.E.
conveyance”) as granting Seaboard a fee simple in the right-of-way, and because the abutting
landowners had no property interest in the corridor, denied liability for a taking. Id. at 621. The
Court therefore entered summary judgment on liability in Defendant’s favor with respect to the
B.L.E. conveyance. Id. at 625.
At issue in this opinion is the Government’s liability with respect to two additional
categories of landowners abutting the rail corridor. Both categories of landowners claim they
acquired their parcels before the STB issued the NITU on April 2, 2004.
Property Seaboard Obtained Via Deed
Landowners in the first category possess property with rights-of-way that Seaboard
acquired from one of five grantors. The parties agree that these landowners can trace their title
to the same five grantors: (i) Pauline and Potter Palmer, Jr.; (ii) A.E. and Mollie Blackburn; (iii)
Lula and Clement Phillips; (iv) H.M. and Bertie Frazer; and (v) Jesse and F.R. Knight. See Joint
Status Reports Feb. 17, 2010, Apr. 21, 2010, and May 19, 2010. The Palmer conveyance was
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executed on November 10, 1910, the Knight conveyance on September 3, 1910, and the
remaining three conveyances on September 5, 1910. Deeds for four of the conveyances -Knight, Blackburn, Phillips, and Frazer -- contain the same operative language.5 The Palmer
deed uses the same language as the Honore deed, which was the subject of Rogers. 90 Fed. Cl.
at 422. These deeds are determinative because they convey the property interest in the subject
corridor to Seaboard that Seaboard’s successors-in-interest possessed when the STB issued the
NITU.
These five grantors owned the underlying land in fee simple at the time they executed
conveyances to Seaboard. Ultimately, Plaintiffs claim that 31 of the properties at issue were
obtained based on chains of title that originate with these deeds.6 The parties dispute whether the
instruments conveyed an easement or a fee simple to the railroad. Additionally, Plaintiffs’
claims involve 19 tracts of land that Defendant argues the railroad obtained via adverse
possession. See id. Whether Plaintiffs have a present property interest in the land underlying the
right-of-way depends upon the nature of the original conveyance. Preseault II, 100 F.3d at 153233 (citing Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 16, 20 (1990) (“Preseault I”)).
Property Seaboard Obtained By Possession
The second category of landowners possess property with rights-of-way that Seaboard
acquired “by possession.” Defendant submitted three pieces of evidence to support its claim that
Seaboard possessed the portions of Plaintiffs’ land that are encumbered by the corridor. First,
Defendant submitted a table prepared by the Interstate Commerce Commission (“ICC”) in 1918,
which states that Seaboard “owned or used” multiple sections of its railway corridor as they
existed at that time, including a section crossing several of Plaintiffs’ properties.7 Def.’s CrossMot. for Partial Summ. J., Opp’n to Pls.’ Mot. for Partial Summ. J., and Mem. in Supp. Thereof
(“Def.’s Mot.”), Ex. F. The ICC valuation table concerns “lands owned or used for purposes of a
common carrier.” Id. No written instruments conveying these rights-of-way to Seaboard have
been located. Second, Defendant submitted a 1916 map of Seaboard’s railway system. Def.’s
Supp. Br., Ex. I, June 13, 2012. Finally, Defendant offered an excerpt from the 1921 edition of
Poor’s Manual, which provides information about the history of Seaboard, its financial
operations, and its routes. 8 Def.’s Supp. Br., Ex. J, June 13, 2012. Plaintiffs did not submit any
5

The precise language of the deeds is quoted below in the Discussion.

6

Plaintiffs submitted a table indicating the conveyance to which each Plaintiff traces his
or her title. See Pls.’ Supp. Br., Ex. A, June 13, 2012. The table also identifies parcels where
Plaintiffs allege the railroad held a prescriptive easement.
7

The ICC was the predecessor of the Surface Transportation Board. See Barclay v.
United States, 443 F.3d 1368, 1371 n.1 (Fed. Cir. 2006).
8

Poor’s Manual, written by Henry Poor -- a founder of Standard & Poor’s Corporation,
contains a report on the financial and operational details of railroads in the United States. Pls.’
Supp. Br. 19 (citing A History of Standard & Poor’s: 1860-1940 Beginnings,
Standardandpoors.com, http://www.standardandpoors.com/about-sp/timeline/en/us/ (last visited
Sept. 18, 2012)).
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evidence concerning the extent or characteristics of Seaboard’s use or possession of the land.
With respect to property acquired absent a written conveyance, the parties dispute whether
Seaboard obtained an easement by prescription or, instead, a fee simple via adverse possession.
Discussion
Summary Judgment Standard
Summary judgment is appropriate where the evidence demonstrates that there is “no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Rule 56(a) of the Rules of the United States Court of Federal Claims (“RCFC”); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine dispute is one that
“may reasonably be resolved in favor of either party.” Liberty Lobby, 477 U.S. at 250. A fact is
material if it “might affect the outcome of the suit.” Id. at 248.
The moving party bears the burden of establishing the absence of any material fact, and
any doubt over factual disputes will be resolved in favor of the non-moving party. Mingus
Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). Once this burden is
met, the onus shifts to the non-movant to point to sufficient evidence to show a dispute over a
material fact that would allow a reasonable finder of fact to rule in its favor. Liberty Lobby, 477
U.S. at 256-57. A court does not weigh each side’s evidence when considering a motion for
summary judgment, but “the inferences to be drawn from the underlying facts . . . must be
viewed in the light most favorable to the party opposing the motion.” United States v. Diebold,
Inc., 369 U.S. 654, 655 (1962) (per curiam). When opposing parties both move for summary
judgment, “the court must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.” Mingus Constructors, 812 F.2d at 1391. In adjudicating a motion for summary
judgment, “the Court may neither make credibility determinations nor weigh the evidence and
seek to determine the truth of the matter. Further, summary judgment is inappropriate if the
factual record is insufficient to allow the Court to determine the salient legal issues.” Mansfield
v. United States, 71 Fed. Cl. 687, 693 (2006) (citation omitted). Cross-motions for summary
judgment “are not an admission that no material facts remain at issue.” Massey v. Del Labs.,
Inc., 118 F.3d 1568, 1573 (Fed. Cir. 1997) (citing United States v. Fred A. Arnold, Inc., 573 F.2d
605, 606 (9th Cir. 1978)). “Each party carries the burden on its own motion to show entitlement
to judgment as a matter of law after demonstrating the absence of any genuine disputes over
material facts.” Id.
Takings Claims Under the Rails to Trails Act
Congress enacted the Trails Act to preserve shrinking rail trackage by converting unused
rights-of-way to recreational trails. Preseault I, 494 U.S. at 5. The operation of the Trails Act is
subject to the Fifth Amendment to the United States Constitution, which provides that private
property shall not “be taken for public use, without just compensation.” U.S. Const. amend. V.
Accordingly, when private property interests are taken by the Government pursuant to the Trails
Act, the property owners are entitled to just compensation. See Preseault I, 494 U.S. at 12.
Because property rights arise under state law, Florida law governs whether the landowners in this
case have a compensable property interest. See Ruckelshaus v. Monsanto Co., 467 U.S. 986,
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1001 (1984) (citing Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S. 151, 161 (1980));
Preseault I, 494 U.S. at 20-25 (O’Connor, J., concurring).
In a rails-to-trails case, a taking, if any, occurs when “state law reversionary interests are
effectively eliminated in connection with a conversion of a railroad right-of-way to trail use.”
Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir. 2004). The Trails Act prevents a
common law abandonment of the railroad right-of-way from being effected, thus precluding state
law reversionary interests from vesting. Id. at 1229. Stated in traditional property law parlance,
upon abandonment or termination of a railroad easement, “the burden of the easement would
simply be extinguished, and the landowner’s property would be held free and clear of any such
burden.” Toews v. United States, 376 F.3d 1371, 1376 (Fed. Cir. 2004). By preventing the
abandonment and concomitant restoration of a fee simple unburdened by the easement, the Trails
Act effects a taking. See Barclay v. United States, 443 F.3d 1368, 1371 (Fed. Cir. 2006). As the
Federal Circuit has explained, the taking occurs when the Surface Transportation Board (“STB”),
the regulatory body that oversees construction, operation, and abandonment of most railroad
lines in the United States, issues a Notice of Interim Trail Use or Abandonment (“NITU”):
Abandonment is suspended and the reversionary interest is blocked
“when the railroad and trail operator communicate to the STB their
intention to negotiate a trail use agreement and the agency issues
an NITU that operates to preclude abandonment under section
8(d)” of the Trails Act. We concluded [in Caldwell] that “[t]he
issuance of the NITU is the only government action in the
railbanking process that operates to prevent abandonment of the
corridor and to preclude the vesting of state law reversionary
interests in the right of way.” Thus, a Trails Act taking begins and
a takings claim accrues, if at all, on issuance of the NITU.
Barclay, 443 F.3d at 1373 (quoting Caldwell, 391 F.3d at 1233-34) (emphasis in original)
(citations spacing omitted).
In another sense -- the dominant consideration in these types of taking cases -- the taking
occurs when the government, pursuant to the Trails Act, creates a new easement for a
recreational use over land that had been encumbered by an easement limited to railroad purposes.
See Preseault II, 100 F.3d at 1550 (describing the conversion of a railroad easement to a
recreational trail as “a new easement for [a] new use, constituting a physical taking of the right of
exclusive possession that belonged to the [owners of the servient estates]”). The statutory
imposition of this recreational easement, which otherwise had not been granted, is a taking.
Whether a plaintiff possesses a compensable property interest in a rails-to-trails case
depends on three determinative issues:
(1) who owned the strips of land involved, specifically did the Railroad . . .
acquire only easements, or did it obtain fee simple estates; (2) if the Railroad
acquired only easements, were the terms of the easements limited to use for
railroad purposes, or did they include future use as public recreational trails; and
(3) even if the grants of the Railroad’s easements were broad enough to
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encompass recreational trails, had these easements terminated prior to the alleged
taking so that the property owners at that time held fee simples unencumbered by
the easements.
Preseault II, 100 F.3d at 1533.
Principles of Deed Construction under Florida Law
Whether Plaintiffs possessed a property interest at the time of the NITU depends upon the
nature of the original conveyance that established the railroad’s right to operate a railroad on the
property at issue. See Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373-74 (Fed. Cir.
2009); Toews, 376 F.3d at 1375-76.
Under Florida law, “the intention of the parties . . . governs the interpretation of a
document.” Thrasher v. Arida, 858 So. 2d 1173, 1175 (Fla. Dist. Ct. App. 2003). A court should
“consider the language of the entire instrument in order to discover the intent of the grantor, both
as to the character of [the] estate and the property attempted to be conveyed, and to so construe
the instrument as, if possible, to effectuate such intent.” Reid v. Berry, 112 So. 846, 852 (Fla.
1927); see also 19 Fla. Jur. 2d Deeds § 107 (2012) (“The primary consideration in the
construction of a deed is the intention of the parties thereto.”).
“If there is no ambiguity in the language employed then the intention of the grantor must
be ascertained from that language.” Saltzman v. Ahern, 306 So. 2d 537, 539 (Fla. Dist. Ct. App.
1975); see also Gendzier v. Bielecki, 97 So. 2d 604, 608 (Fla. 1957) (“The test of the meaning
and intention of the parties is the content of the written document.”). When interpreting a deed
under Florida law, “[t]he Court’s function in interpreting and enforcing a contract is to determine
the parties’ intent from the express text of the Contract.” Fin. Healthcare Assocs., Inc. v. Pub.
Health Trust, 488 F. Supp. 2d 1231, 1239 (S.D. Fla. 2007) (interpreting Florida law); see also
Mason v. Roser, 588 So. 2d 622, 624 (Fla. Dist. Ct. App. 1991) (“With respect to deeds of
conveyance, the general rule is that if there is no ambiguity in the language employed then the
intention of the grantor must be ascertained from that language.”).
Seaboard Obtained an Easement via the Palmer Conveyance
The Palmer deed granted Seaboard:
[A] right-of-way for railroad purposes over and across the following described
parcel of land . . . A strip of land one hundred (100) feet wide, being fifty (50) feet
on each side of the center line of the Seaboard Air Line Railway as located across
lands owned by said grantors herein . . . .
THIS conveyance is made upon the express condition, however, that . . . if the
Seaboard Air Line Railway shall not construct upon said land and commence
operation thereon within one year from the date hereof, a line of railroad, or if at
any time thereafter the said Seaboard Air Line Railway shall abandon said land
for railroad purposes, then the above described piece and parcel of land shall ipso

7

facto revert to and again become the property of the undersigned, their heirs,
administrators, and assigns.
Pls.’ PFUF Ex I. In Rogers, this Court construed identical language in the Honore conveyance
and held that Seaboard obtained an easement. 90 Fed. Cl. at 431.9 As this Court explained:
The Honore conveyance does not refer to the outright transfer of land; it refers to
“a right of way for railroad purposes over and across the . . . parcels of land,”
thereby indicating that the grantor retained an interest in the land referenced in the
conveyance and granted an easement to Seaboard. See Trailer Ranch, Inc. v. City
of Pompano Beach, 500 So. 2d 503, 506 (Fla. 1986) (explaining that the words
“across, over, and under” in a conveyance were indicative of an easement, not a
fee simple estate); Irv Enterprises, Inc. v. Atl. Island Civic Ass’n, 90 So. 2d 607,
609 (Fla. 1956) (construing deed as granting an easement where deed contained
restrictions on use and stipulated reversion upon discontinuance of said use).
...
Here, the words of the Honore conveyance indicate that the parties intended to
create an easement. The Honore conveyance transferred a “right of way for
railroad purposes over and across the . . . described parcels of land.” Def. Mot.
Ex. 7. Further, like the deed in Irv Enterprises, the Honore conveyance placed an
explicit limitation on the use of the property interest conveyed and contained an
unequivocal stipulation that title would revert to the grantor upon discontinuance
of the use of the parcel for its intended railroad purpose. See Irv Enters., 90 So.
2d at 609. The Honore conveyance has no language that suggests that title to
described parcel was conveyed outright, i.e. that the transfer was made “in fee
simple.”
Id. at 429-31.
As such, for the reasons stated in this Court’s November 23, 2009 opinion construing the
identical Honore language, Seaboard obtained an easement under the Palmer deed. Moreover, as
in Rogers, the Palmer deed limited the terms of the easement to railroad purposes -- and provided
that title to the property would revert to the grantor if such use terminated. As the Federal
Circuit explained, when examining a right-of-way acquired in the original conveyance, the usage
of a right-of-way as a recreational trail is “clearly different” from the usage of the same parcel of
land as a railroad corridor. Preseault II, 100 F.3d at 1542. Here, as in Rogers, the use of the
right-of-way as a recreational trail while preserving the right-of-way for future railroad activity
was not contemplated by the original parties when the Palmer deed was signed. Thus, the
governmental action converting the railroad right-of-way to a public trail right-of-way imposed a
new easement on the landowners and effected a Fifth Amendment taking of their property. Id. at

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Other than the location of the strip of railroad right-of-way, the Palmer conveyance
contains language identical to that of the Honore conveyance. Pls.’ PFUF ¶ 29 & Ex. I.
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1550. The Court therefore grants Plaintiffs’ motion for partial summary judgment as to claims
arising from property subject to the Palmer conveyance.
Seaboard Obtained Fee Simple Title via the Frazer, Blackburn, and Phillips Conveyances
The Frazer, Blackburn, and Phillips conveyances are identical except for the descriptions
of the grantors, grantees, dates, consideration paid, and locations of the parcels of land. The
granting provision of the Blackburn conveyance, which is substantively identical to those in the
Phillips and Frazer conveyances, reads:
THIS DEED, Made this fifth day of September 1910, between A.E. BLACKBURN AND
WIFE, parties of the first part, and Seaboard Air Line Railway, party of the second part,
WITNESSETH, That for and in consideration of the sum of Two Hundred Dollars
($200.00) in hand paid, the receipt whereof is hereby acknowledged, and other valuable
considerations, the parties of the first part hereby grant, bargain, sell and convey unto the
party of the second part, all their right, title and interest, of any nature whatsoever, in and
to the following property, to wit:
All those certain pieces or parcels of land, lying and being in the County of Manatee and
State of Florida, and being described as follows:
A strip of land one hundred (100) feet wide, being fifty (50) feet on each side of the center
line of the Seaboard Air Line Railway as located across lands owned by the said parties of
the first part . . . .
...
Said strip of land contains 3.15 acres, more or less.
TOGETHER WITH all and singular the tenements, heriditaments, and appurtenances
thereunto belonging or appertaining, and every right, title or interest, legal or equitable, of
the said party of the first part in and to the same. . . .
Pls.’ PFUF, Ex. E; see also Pls.’ PFUF, Ex. F, G.10 There is no dispute that the grantors held fee
simple title to the lands conveyed to Seaboard in 1910. The Phillips signed their deed on
September 5th for consideration of $100 and the Blackburns signed their deed on September 5th
for consideration of $200. Because the conveyances are unambiguous, the Court must ascertain
10

The Frazer conveyance omits the phrase “the parties of the first part hereby grant,
bargain,” from the second paragraph. Despite this omission, the Frazer deed is substantively the
same as the other deeds because the property is still conveyed to Seaboard. The first paragraph
of the conveyance identifies the Frazers as the parties to the first part and Seaboard as the party
to the second part. The second paragraph states that “all their right, title, and interest, of any
nature whatsoever” is conveyed unto “the party of the second part.” From the face of the
instrument, it is unambiguous that “their right, title, and interest” refers to the Frazers’ right, title
and interest.
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the parties’ intent from the face of the deeds. See Saltzman, 306 So. 2d at 539 (“there is no room
for judicial construction of the language nor interpretation of the words used” when the deed’s
wording is clear). Based on the plain language of the conveyances, the Frazers, Blackburns, and
Phillips intended to convey fee simple title in their respective parcels of land to Seaboard.
The deeds’ granting clauses, which purport to convey a strip of land outright to the
railroad without limitation state: “the parties of the first part hereby grant, bargain, sell and
convey unto the party of the second part, all their right, title and interest, of any nature
whatsoever, in and to the following property. . . .” Def.’s Mot., Ex. B, C, D (emphasis added).
The language could not be clearer -- the property owners were conveying all of their interest. As
this Court held in Bird Bay, this language, granting all rights, conveys a fee title. 93 Fed. Cl. at
619. The language used in these three conveyances differs substantially from the Honore
conveyance at issue in Rogers. In Rogers, the Honore deed granted a “right of way for railroad
purposes,” and provided that if Seaboard failed to construct a railway and commence operations,
the property would revert to the grantor. See Rogers, 90 Fed. Cl. at 422. The Frazer, Blackburn,
and Phillips conveyances do not reference an easement or a right-of-way. Rather, the deeds
describe the corridor as a “strip of land” and set forth its dimensions, and do not contain any
language that limits or restricts the interests conveyed as is typical with easements.
Moreover, the Frazer, Blackburn, and Phillips conveyances do not contain a reversionary
clause, as the Honore deed did. The Honore conveyance stated that if a railroad was not built
and its operation was not commenced within one year from the date of the deed, or if Seaboard
abandoned the land for “railroad purposes,” “then the [conveyed] pieces and parcels of land
[would] ipso facto revert to and again become the property of [the Honores].” Rogers, 90 Fed.
Cl. at 422. Imposing an express limit on how the property can be used suggests an intent to
create an easement or convey something less than a fee estate. See Irv Enters., Inc. v. Atl. Island
Civic Ass’n, 90 So. 2d 607, 609 (Fla. 1956) (interpreting a deed with restrictions on use and a
reversion provision as granting an easement). Here, as in Bird Bay, the lack of reversionary
clauses, in conjunction with the expansive granting clauses -- granting all right, interest and title
-- unambiguously indicate that the Frazer, Blackburn, and Phillips conveyances intended to grant
fee simple title to Seaboard. See 93 Fed. Cl. at 612.
Plaintiffs’ argument that the conveyors granted an easement to the railroad is
unpersuasive. First, Plaintiffs note that the deeds convey “strip[s] of land . . . as located across
lands owned by said parties of the first part . . . .” Citing Rogers, Plaintiffs argue that a
conveyance of land “across” a second parcel of land shows that the grantors intended to convey
an easement. However, in Rogers, this Court found that other language in the Honore
conveyance -- the phrases “a right of way” and “for railroad purposes” -- as well as “over and
across . . . the parcels of land,” reflected the grantor’s intent to convey an easement. 90 Fed. Cl.
at 429-31. In Bird Bay, this Court rejected the plaintiffs’ contention that the phrase “through the
lands of the grantor,” without more, demonstrated intent to convey an easement. 93 Fed. Cl. at
621 (emphasis added). This Court held instead that “through the lands of the grantor” merely
described the location of the strip of land conveyed, and did not define, characterize, qualify, or
limit the nature of the property interest conveyed. Id. at 621-22. The Blackburn, Frazer, and
Phillips conveyances purport to convey a “strip of land . . . as located across lands owned by said
parties of the first part . . . .” Pls.’ PFUF Ex. E-G (emphasis added). The word “across,” in
conjunction with the words “as located,” merely describes the location of the subject parcel and
10

does not qualify or limit the property interest the grantors conveyed. As in Bird Bay, the deeds
specify the location of the land conveyed and contain no limitations on the use of the land -- such
as “for railroad purpose” -- and do not characterize the conveyance as a “right of way.” See also
Whispell Foreign Cars, Inc. v. United States, 97 Fed. Cl. 324, 337 (2011) (amended on
reconsideration in non-relevant part by, 100 Fed. Cl. 529 (2011)) (applying Florida law and
interpreting conveyance as an estate in fee because the deed conveyed land, warranted title, and
did not have any use restrictions).
Plaintiffs also argue that because many jurisdictions prohibit railroads from acquiring fee
simple title in property, Seaboard could not have been granted a fee simple estate in the corridor.
This Court squarely rejected this identical argument in Rogers and Bird Bay. The Rogers court
quoted Florida Power Corporation v. McNeely, which acknowledged that a railroad could be
granted an easement, stating: “[t]his is not to say that a railroad by arrangement or otherwise
could not under any circumstances operate by virtue of an easement.” 90 Fed. Cl. at 430
(quoting 125 So. 2d. 311, 317 (Fla. Dist. Ct. App. 1960)). In Bird Bay, this Court again held that
under Florida law a railroad could acquire fee simple title to the strip of land on which it
operates, stating:
The fact that Seaboard was a railroad, which may or may not have possessed the
power of eminent domain, does not, as Plaintiffs argue, inhibit its right to acquire
fee simple title to lands, even when it was in receivership. Under Florida law,
railroad companies may acquire land over which to construct rails and operate
locomotive trains either as an estate in fee or they may acquire a right to cross
over such land with an easement. In Florida, the term right-of-way, as it relates to
railroads, can refer either to a “right of crossing” -- an easement -- or to “a strip of
land which a railroad takes, upon which to construct its railroad” -- an estate in
fee. Whether the railroad obtains a “right” or “land” depends on the intent of the
parties as reflected by the deed of conveyance.
93 Fed. Cl. at 622-23 (citations omitted). As in Bird Bay, the intent of the parties in the Frazer,
Blackburn, and Phillips conveyances is clear. The deeds conveyed a “strip of land . . . and every
right, title or interest” -- not a right-of-way. Moreover, the deeds did not limit Seaboard’s use of
the land to railroad purposes. Railroads were permitted to obtain fee estates under Florida law
in 1910, and the Frazer, Blackburn, and Phillips deeds unambiguously conveyed fee estates.
In sum, Seaboard acquired a fee simple title in the portions of the right-of-way subject to
the Frazer, Blackburn, and Phillips conveyances. As the adjoining landowners never possessed a
property interest in the subject corridor, no taking has occurred. Defendant’s motion for partial
summary judgment is granted as to the claims relating to the Frazer, Blackburn, and Phillips
conveyances.
The Knight Deed Conveyed a Fee Simple Title to the Right-of-Way
The Knight conveyance is identical in almost all respects to the Frazer, Blackburn, and
Phillips conveyances. The Knight conveyance warrants a separate discussion, however, because
it contains a hand-written notation nullifying the grant unless a railroad were built within five
11

years. The Knight deed, including this handwritten notation, which is in bold and bracketed,
reads:
THIS DEED, Made this third day of September 1910, between JESSE KNIGHT,
WIDOWER, and F.R. KNIGHT unmarried, parties of the first part, and Seaboard Air Line
Railway, party of the second part.
WITNESSETH, That for and in consideration of the sum of Ten Dollars ($10.00) in hand
paid, the receipt whereof is hereby acknowledged, and other valuable considerations, the
parties of the first part hereby grant, bargain, sell and convey unto the party of the second
part, all their right, title and interest, of any nature whatsoever, in and to the following
property, to wit:
All those certain pieces or parcels of land, lying and being in the County of Manatee and
State of Florida, and being described as follows:
A strip of land one hundred (100) feet wide, being fifty (50) feet on each side of the center
line of the Seaboard Air Line Railway as located across lands owned by the said parties of
the first part . . . .
…
Said strip of land contains 6.3 acres, more or less. [Provided the said railroad is built
within five years from [the] date hereof, otherwise this deed becomes null [and] void.]
TOGETHER WITH all and singular the tenements, heriditaments, and appurtenances
thereunto belonging or appertaining, and every right, title or interest, legal or equitable, of
the said parties of the first part in and to the same.
...
Pls.’ PFUF Ex. H; see also Def.’s Mot., Ex E.
Defendant interprets the deed coupled with the handwritten language as creating a fee
simple subject to a condition subsequent. Plaintiffs claim that the handwritten note’s language is
instead evidence that the Knights conveyed an easement. Plaintiffs argue that the “null and
void” language in the handwritten note contemplates a process akin to an extinguishment of an
express easement, rather than a reversion of a fee simple. Specifically, Plaintiffs contend:
A condition rendering a fee estate “null and void” is inconsistent with the very
nature of a fee conveyance. And, while such a ‘null and void’ provision is
contrary to the very nature of a conveyance, such a provision is commonly found
in a grant of an easement.
Pls.’ Supp. Br. 23 (Jan. 19, 2011). From this premise, Plaintiffs argue that the Knight
conveyance could not have established a fee estate, relying primarily on Dean v. MOD
Properties, 528 So. 2d 432 (Fla. Dist. Ct. App. 1988). Plaintiffs claim that in Dean, “[t]he court
noted that the lack of any right of reversion eliminated the possibility that a defeasible fee simple
estate was created, and instead, found, the terminating language more consistent with an
12

easement.” Pls.’ Supp. Br. 25 (Jan. 19, 2011). However, the mere presence of “terminating
language” did not drive the Dean Court’s finding that the conveyance there was an easement.
Rather, the Dean Court found the use of the words “reversion of reversions thereof,” “inept” in
the conveyance at issue because they implied conveyance of a fee simple title. The Dean Court
explained:
The draftsman of the “road right-of-way easement” to the City of Sanford in 1974
was certainly not clear as to the legal differences and distinctions as to landed
estates, easements, and licenses. However, the implication of a conveyance of the
fee simple title raised by the inept words “the reversion or reversions thereof” is,
in our opinion, clearly overwhelmed by the repeated qualified phrases limiting the
interest conveyed to be for the “purpose of road right-of-way” and “for public
road right-of-way purposes,” as well as the title of the document, and constituted
the creation and granting to the City of Sanford of an easement for a right-of-way
for a public road and did not convey the fee simple title, nor did it convey a
conditional, qualified, or determinable fee estate subject to any right of reverter in
the grantor MOD.
Thus, Dean does not stand for the proposition that mention of a right of reversion eliminates the
possibility of conveyance of a defeasible fee simple estate. Rather, Dean held that a conveyance
of a “road right-of-way easement” for the “purpose of road right-of-way” and “for public road
right-of-way purposes” conveyed an easement and not a fee simple. Id. at 434.
Contrary to Plaintiffs’ argument, it is well recognized that a fee estate may be limited by
a proviso that the estate shall expire upon a specified occurrence. See e.g. Restatement (First) of
Property, § 44 (1936). The Restatement defines a fee simple determinable as a conveyance
“created by any limitation which, in an otherwise effective conveyance of land, (a) creates an
estate in fee simple; and (b) provides that the estate shall automatically expire upon the
occurrence of a stated event.” Id. Florida courts have long recognized the property interest
known as a fee simple determinable. See Richardson v. Holman, 33 So. 2d 641, 642 (Fla. 1948)
(in “a fee simple determinable . . . the words creating it limit the continuation of the estate to the
time preceding the happening of the contingency”).
Analyzing the language of the Knight conveyance leads to the conclusion that the deed
conveyed a fee simple determinable. Like the Frazer, Blackburn, and Phillips deeds, the original
language of the Knight conveyance in its entirety indicates an intent to transfer a fee simple. The
addition of the handwritten phrase -- “Provided the said railroad is built within five years from
[the] date hereof, otherwise this deed becomes null [and] void” -- does not alter the fundamental
character of the property interest -- the fee conveyance. Rather, while the notation defined an
event that would terminate Seaboard’s fee -- failure to build a railroad within five years -- the
notation did not change the nature of the fee or somehow convert the fee estate into an easement.
As in the Blackburn, Phillips, and Frazer conveyances, the granting clause of the Knight deed
conveyed “the tenements, hereditaments, and appurtenances thereunto belonging or appertaining,
and every right, title or interest, legal or equitable” in the corridor -- not a right-of-way limited to
certain enumerated uses. Unlike the conveyances in Dean and Rogers, the Knight conveyance
contains no references to easements, rights-of-way, or any purposes.
13

Because Seaboard built a railroad within five years of the conveyance, at the time of the
NITU, CSX held the strip of land at issue in fee simple absolute, and the abutting landowners
had no interest in the right-of-way. The Court therefore grants Defendant’s motion for partial
summary judgment with respect to the Knight conveyance.
Property Acquired “By Possession”
Plaintiffs claim that “for land upon which Seaboard built and operated the rail line
without any conveyance from the land owner, the greatest interest Seaboard could have obtained
was a prescriptive easement.” Pl.’s Resp. at 3, Oct. 12, 2010. Defendant claims that Seaboard
satisfied the requirements for adverse possession in effect in 1910, thus acquiring a fee simple
estate, and that nothing in Florida law prohibited a railroad from obtaining title through adverse
possession.
A Railroad Can Acquire Fee Simple Title by Adverse Possession
Seaboard built its rail corridor in 1910, but for multiple portions of the corridor, there was
no written conveyance granting the right to construct and operate a railbed. According to an
“ICC Valuation Table” dated June 30, 1918, multiple sections of Seaboard’s railway corridor as
they existed in 1918 had been “held or used” “by possession.” Def.’s Cross-Mot. for Partial
Summ. J, Ex. F. The Table does not indicate whether the nature of Seaboard’s interest was a fee
simple estate acquired by adverse possession or an easement acquired by prescription.
The Florida Supreme Court, in Downing v. Bird, 100 So. 2d 57, 64-65 (Fla. 1958)
(citations omitted), elaborated on the difference between establishing title by adverse possession
and acquiring an easement by prescription:
The establishment of a public highway by prescription, or long user, is based on
the presumption of a prior grant. A prescriptive right is an incorporeal
hereditament in land.
The establishment of title by adverse possession is based on the theory that the
owner has abandoned the land to the adverse possessor. Title so acquired is a
corporeal right, and it is the nature of the right acquired which marks the principal
difference between a prescriptive right and title by adverse possession.
The trend of modern authorities is to abandon the theory that prescriptive rights
are based on the presumption of a prior grant, and to treat the acquisition thereof
as being rights acquired by methods substantially similar to those by which title is
acquired by adverse possession. We agree with these authorities.
In either prescription or adverse possession, the right is acquired only by actual,
continuous, uninterrupted use by the claimant of the lands of another, for a
prescribed period. In addition the use must be adverse under claim of right and
must either be with the knowledge of the owner or so open, notorious, and visible
that knowledge of the use by and adverse claim of the claimant is imputed to the
owner. In both rights the use or possession must be inconsistent with the owner’s
14

use and enjoyment of his lands and must not be a permissive use, for the use must
be such that the owner has a right to a legal action to stop it, such as an action for
trespass or ejectment.
Further in either prescription or adverse possession, the use or possession is
presumed to be in subordination to the title of the true owner, and with his
permission and the burden is on the claimant to prove that the use or possession is
adverse. This essential element as well as all others must be proved by clear and
positive proof, and cannot be established by loose, uncertain testimony which
necessitates resort to mere conjecture.
....
While there are slight differences in the essentials of the two actions, they are not
great. In acquiring title by adverse possession, there must of course be
‘possession’. In acquiring a prescriptive right this element is use of the privilege,
without actual possession. Further, to acquire title the possession must be
exclusive, while with a prescriptive right the use may be in common with the
owner, or the public.
Adverse possession during the period in question -- 1910 -- was governed by General
Statutes of Florida § 1722 (1906), titled “Adverse possession without color of title.” 1910 is the
relevant year because Seaboard began building the railroad in that year, and the law in effect
when an adverse possession claim begins to run governs the claim.11 Baugher v. Boley, 58 So.
980, 982 (Fla. 1912). The pertinent Florida adverse possession statute provides:
1. To Be Land in Actual Occupation Only. -- Where it shall appear that there has
been an actual continued occupation for seven years of premises under a claim of
title exclusive of any other right, but not founded upon a written instrument, or a
judgment or decree, the premises so actually occupied, and no other, shall be
deemed to have been held adversely.
2. Definition of Occupation and Possession Required. -- For the purpose of
constituting an adverse possession by a person claiming title not founded upon a
written instrument, judgment or decree, land shall be deemed to have been
possessed and occupied in the following cases only: 1. Where it has been
protected by a substantial enclosure, or 2., where it has been usually cultivated or
improved.

11

There is no dispute that “work on a sixteen-mile extension of the Seaboard railroad line
began in January 1910 and the project was completed in full by 1911.” Def.’s Supp. Br. 6, Jan.
19, 2011; see also Pls.’ Resp. 1, Oct. 12, 2010 (“The present motion requires this Court to apply
this analysis to land upon which the Seaboard Air Line Railway (“Seaboard”) built a railway in
1910.”).
15

Gen. Stat. Fla. § 1722 (1906).12 See also Baugher v. Boley, 58 So. at 984 (upholding finding of
adverse possession under General Statutes of Florida § 1722 where there was “conspicuous
effort to maintain a fence” around uncultivated land for the full seven-year period). There was
no similar statute governing prescriptive easements in effect at this time. However, at common
law, 20 years of continuous and uninterrupted use established an easement by prescription.
Zetrouer v. Zetrouer, 103 So. 625, 626-27 (Fla. 1925) (en banc) (“Where the common law
obtains, 20 years’ continuous and uninterrupted use has always created a prescriptive right as
well in the public as private individuals.”).
Plaintiffs argue that General Statutes of Florida § 1722 is inapposite because, in several
jurisdictions, railroads may not acquire rights-of-way in fee simple through adverse possession.
“[O]rdinary [railroad] right of way use creates an easement by prescription only” and not “fee
title by adverse possession.” 10 Thompson on Real Property, 2d Thomas Ed., § 87.17 (1998).
“The principal reason advanced in support of the rule is that the nature of the user by the railroad
requires no more than an easement in the right of way and does not, therefore, amount to an
occupancy adverse to the claim of another to the fee.” Md. & Pa. R.R. Co. v. Mercantile-Safe
Deposit & Trust Co., 166 A.2d 247, 249 (Md. 1960); see also People v. Ocean Shore R.R., 196
P.2d 570, 577 (Cal. 1948) (“usually there is no user beyond the purposes of a right of way and no
notice to the owner that any greater right is claimed”); see generally Penn Cent. Corp. v. U.S.
R.R. Vest Corp., 955 F.2d 1158, 1160 (7th Cir. 1992) (explaining economic benefits resulting
from presumption that railroad acquires an easement instead of fee simple).
Florida law, however, does not follow the majority rule. At least two Florida courts have
upheld findings that a railroad obtained title to a right-of-way through adverse possession. See
Seaboard Air Line Ry. Co. v. Atl. Coast Line R.R. Co., 158 So. 459 (Fla. 1935) (en banc)
(“Seaboard”); Tassapoulos v. Seaboard Coastline R.R. Co., 353 So. 2d 867 (Fla. Dist. Ct. App.
1977). In Seaboard Air Line, Atlantic Coast Line brought an action to quiet title to the land
where its right of-way crossed that of Seaboard. The chancellor found that Atlantic had acquired
the right-of-way via adverse possession under color of title, and the Florida Supreme Court
affirmed. Seaboard, 158 So. at 461. The Seaboard Court provided no description of the
evidence for Atlantic Coast Line’s “actual and notorious possession” other than to say there was
a “great amount.” Id.
In Tassapoulos, the Florida Court of Appeals issued the following opinion, quoted below
in its entirety:
The record titleholders to certain land in Clay County appeal from a judgment
holding that the appellee railroad obtained title by adverse possession, without
color of title, to a strip along one boundary of the tract. While the record supports
the trial court’s judgment concerning a small parcel actually occupied by the
railroad’s roadbed, the record does not support the railroad’s claim to a wider strip
parallel to its track, the boundary of which is marked not by a substantial
enclosure but only by power poles and lines on appellants’ land. Section 95.18,
Florida Statutes (1975); Downing v. Bird, 100 So. 2d 57 (Fla. 1958). The case
will be remanded for entry of a conforming judgment.
12

The 1906 version of § 1722 remained in effect until 1918.
16

353 So. 2d at 867.13 A dissenting opinion reads, in its entirety:
In my opinion, there was competent, substantial evidence to support the trial
judge’s finding that appellee Seaboard acquired the disputed property by adverse
possession. Kiser v. Howard, 133 So. 2d 746 (Fla. Dist. Ct. App. 1961).
Id.
Tassapoulos, like Seaboard Air Line, indicates that under Florida law, a railroad can
acquire fee simple title to a right-of-way through adverse possession. So too does the Fifth
Circuit’s decision in Dunscombe v. Loftin, 154 F.2d 963, 967 (5th Cir. 1946) (“Under Florida
law, a railroad, having the power of eminent domain, can also acquire title by adverse
possession.”). Accord Whispell Foreign Cars, Inc. v. United States, 100 Fed. Cl. 529, 543-45
(2011). This proposition is further supported by Florida Power Corp., 125 So. 2d at 311. In
Florida Power, the court considered whether the power company had obtained an easement and
contrasted the power company’s use of the corridor with that of a railroad:
By comparative analysis of physical aspects of a railroad right of way and the
ordinary power line easement as these aspects lend themselves to use of lands, we
perceive a difference. By the construction of its road bed, the installation of its
ties and tracks, and through its railroading operations, a railroad adversely using
land excludes the owner from and prevents his use of that land, and so exercises
dominion over it and has possession. This is not to say that a railroad by
arrangement or otherwise could not under any circumstances operate by virtue of
an easement; but for the reasons stated, the usual adverse situation negates mere
user. On the other hand, a power line principally utilitizes a space-way and is not
terrestrially located as is a railroad right of way. Beneath the suspended power
line many activities entirely consistent with use by the power company may be
carried on. These activities may be of a productive nature; ordinary observation
discloses a variety of instances wherein the lands beneath power lines are utilized
for purposes of the owners of the lands involved. The nature of an easement
depends upon its purpose, and the right to use the land beneath a power line for
other purposes not conflicting nor interfering with the easement of the power
corporation remains with the landowner.
Id. at 316-17 (emphasis added) (citing Annotation, 6 A.L.R. 2d (205)). Thus, the Florida Power
Court found that the power company had used the land in concert with the property owners -- as
opposed to in exclusion of them -- because the power company and the line did not occupy the
land except for occasional inspections and infrequent clearing. Id. at 317. The court observed
that unlike a power line, the presence of an active railway could prevent a landowner from using
the occupied land, and such exclusive use would indicate a fee interest by adverse possession.
13

The Tassapoulos court upheld a finding of adverse possession under Florida General
Statutes 95.18 (1975). The only significant difference between that statute and Florida General
Statutes § 1722 (1906), was the requirement in Florida General Statutes 95.18 that the adverse
possessor begin paying property taxes within one year after taking possession of the property and
continue to do so throughout the period of possession.
17

See also 2 Fla. Jur. 2d Adverse Possession § 56 (2011) (citing Dunscombe, 154 F.3d at 967). As
such, Florida precedent does not foreclose the possibility of a railroad acquiring a fee interest via
adverse possession.
Plaintiffs argue that the weight of Florida cases equate open and notorious seizure of
rights-of-way with prescriptive easements. Even if this observation were true, this does not
mean that the property interest that Seaboard acquired in 1910 “by possession” must necessarily
be legally defined as a prescriptive easement. Rather, as the Florida Supreme Court recognized
in Downing v. Bird, the critical difference between adverse possession and prescriptive easement
is whether the railroad actually possessed the property for the requisite period, indicating adverse
possession, or merely used it, giving rise to a prescriptive easement for the purpose of railroad
use. 100 So. 2d at 64-65. Whether a user of land meets the requirements for adverse possession
or prescriptive easement is a fact intensive inquiry. Either property right must be proved by the
claimant “by clear and positive proof.” Id. at 65. The cases Plaintiffs cite do not persuade the
Court that the property interest Seaboard obtained in 1910 was necessarily a prescriptive
easement as a matter of law. See Pls.’ Supp. Br. 15-19, June 13, 2012. Plaintiffs have not
identified any Florida case holding that a railroad cannot obtain fee title through adverse
possession, while Dunscombe, Seaboard Air Line, and Tassapoulos indicate a railroad can obtain
fee ownership through adverse possession.
Summary Judgment Is Inappropriate
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a). “[S]ummary judgment is inappropriate if the factual record is insufficient to allow the
Court to determine the salient legal issues.” Mansfield v. United States, 71 Fed. Cl. 687, 693
(2006); see also Blue Lake Forest Products, Inc. v. United States, 86 Fed. Cl. 366, 381-82 (2009)
(denying cross-motions for summary judgment when the record did not contain clear evidence
regarding the motives of decision-makers or the evidence of their decisions).
In this case, neither party has met its burden. To establish title through adverse
possession, Defendant must meet the requirements of Florida General Statutes § 1722, which
provides: there has been an actual continued occupation for seven years of premises under a
claim of title exclusive of any other right and land shall be deemed to have been possessed and
occupied in the following cases only: (1) where it has been protected by a substantial enclosure,
or (2) where it has been usually cultivated or improved.
On the current record, Defendant has not offered clear and positive proof that Seaboard
continually occupied the land underlying the right-of-way for seven years or that it made the
requisite enclosures or improvements on the land. Defendant has submitted a 1916 map of the
southeastern United States depicting Seaboard’s railroad network, with an inset providing a
detailed map for the routes radiating from Tampa. Def.’s Supp. Br., Ex. I, June 13, 2012. The
inset map shows a route running from Tampa south to Venice -- and through Sarasota.
Defendant also submitted an excerpt from Poor’s Manual indicating that Seaboard operated a rail
line over from Fruitvale to Venice, for a total of 16.53 miles in 1921. Def.’s Supp. Br., Ex. J,
June 13, 2012 (listing the Fruitvale to Venice branch as one of the rail lines Seaboard operated as
of December 31, 1921). Poor’s Manual provides a list of the routes where Seaboard provided
18

service and the mileage of those routes. Poor’s Manual does not contain any detailed maps or
routes to establish whether the Fruitvale to Venice route occupied the entire corridor at issue.
While these materials indicate that Seaboard owned some type of rail service network in the area
in 1916 and in 1921, the materials do not provide details showing that Seaboard operated
continuous, open, and notorious rail service for seven years as required under Florida law. Even,
assuming arguendo, that Defendant has established that Seaboard maintained and operated a
railroad in 1916, and 1921, such a showing does not meet the strict requirements necessary to
prove adverse possession under Florida law. See Drawdy Inv. Co. v. Leonard, 29 So. 2d 198,
203 (Fla. 1947) (holding that barbed wire fence and natural barriers enclosing grazing land “fails
entirely to show such an actual continued, open and notorious possession of the lands under a
claim of right by the plaintiff”); Tassapoulos, 353 So. 2d at 867 (overturning the trial court’s
determination that the railroad had adversely possessed land parallel to the railbed “marked not
by a substantial enclosure but only by power poles and lines on appellants’ land.”). Further,
Defendant has not articulated the dimensions of the area on each parcel to which it claims
Seaboard obtained a fee interest.
Similarly, in order to demonstrate that Seaboard acquired a prescriptive easement by
possession, Plaintiffs must demonstrate by clear and positive proof that the railroad’s use was
adverse, open, and notorious for a 20 year period -- and must demonstrate the location and
dimensions of the property. Zetrouer v. Zetrouer, 103 So. at 626-27; Downing, 100 So. 2d at 65.
Here, Plaintiffs did not offer such proof. Rather, they merely attempted to rebut Defendant’s
claims of adverse possession by citing chains of title that show the landowners did not record any
conveyances to Seaboard. Pls.’ Supp. Br. 12, June 13, 2012 (“The chain of title confirms that for
certain segments of the right-of-way, the railroad did not obtain any recorded interest in the land.
. . . Numerous state courts have reached the prevailing conclusion that a railroad acquires only a
prescriptive easement, rather than an estate in fee in circumstances such as these.”). Plaintiffs’
allegations are insufficient to establish a prescriptive easement.
While Plaintiffs are correct that Defendant must show that Seaboard satisfied the
statutory requirements to obtain fee title via adverse possession, Plaintiffs fail to acknowledge
that a party claiming a prescriptive easement must also show actual, continuous, uninterrupted,
and adverse use for the requisite period. J.C. Vereen & Sons, Inc. v. Houser, 167 So. 45, 48 (Fla.
1936) (finding no prescriptive easement when the claimant could not show use of property for
the full prescriptive period); Guerard v. Roper, 385 So. 2d 718, 720 (Fla. Dist. Ct. App. 1980)
(while appellee showed continuous use for 20 years, court found no prescriptive easement
because there was no evidence to support adversity). It is fundamental that Plaintiffs must
establish their property rights because in any takings case, “only persons with a valid property
interest at the time of the taking are entitled to compensation.” Wyatt v. United States, 271 F.3d
1090, 1096 (Fed. Cir. 2001).
Neither party has set forth sufficient evidence on whether Seaboard obtained a fee simple
via adverse possession or a prescriptive easement by open and notorious use. Both parties’ briefs
contain bare assertions of fact without any evidentiary support. See Whispell Foreign Cars, 100
Fed. Cl. at 546 (holding neither the plaintiff landowners nor the defendant set forth sufficient
evidence on the issue of whether a Florida railroad met the statutory requirements to obtain title
via adverse possession). On this record, the Court cannot determine whether Seaboard acquired

19

fee simple title via adverse possession to the property acquired “by possession” or a prescriptive
easement.
Conclusion
1. Defendant’s motion for partial summary judgment is GRANTED on the claims relating
to the portion of the railroad corridor subject to the Blackburn, Frazer, Knight, and
Phillips conveyances, and Plaintiffs’ motion is DENIED.
2. Plaintiffs’ motion for partial summary judgment on the claims relating to the portion of
the railroad subject to the Palmer conveyance is GRANTED, and Defendant’s motion is
DENIED.
3. Based on the current record, the Court DENIES Plaintiffs’ and Defendant’s crossmotions for summary judgment on the claims of the Plaintiffs whose land abuts the
railroad corridor where Seaboard acquired its property interest “by possession.”
On or before October 15, 2012, the parties shall file a joint status report and propose
further proceedings to resolve the claims relating to property interests Seaboard acquired by
possession.

s/Mary Ellen Coster Williams
MARY ELLEN COSTER WILLIAMS
Judge

20