LOVERIDGE et al v. USA

Filing 116

REPORTED OPINION DENYING 102 Partial Summary Judgment Motion on Adjacency Issues filed by Plaintiffs; GRANTING 107 Cross Motion and Response on Adjacency Issues filed by USA; DENYING 94 Motion for Partial Summary Judgment on Compensation of Eas ements Limited to Railroad Purposes filed by USA; GRANTING 91 Motion for Partial Summary Judgment on Parcels With No Identified Conveyance Deed filed by Plaintiffs. USA's Response to Motion on Abandonment [ECF No. 115] Due July 13, 2020. Signed by Senior Judge Nancy B. Firestone.

In the United States Court of Federal Claims
No. 16-912L and
No. 16-1565L and No. 18-375L Consolidated
No. 18-983L
(Filed: June 22, 2020)

PERRY LOVERIDGE, et al.,
Plaintiffs,
v.
THE UNITED STATES,
Defendant.
_______________________________
ALBRIGHT, et al.,
Plaintiffs,
and
THE UNITED STATES,
Defendant.
_______________________________
STIMSON LUMBER COMPANY,
Plaintiff,
and
THE UNITED STATES,
Defendant

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Motion for Summary Judgment; Railsto-Trails; Oregon Law; Abandonment;
Adjacency; Centerline Presumption;
Valuation Maps; Condemnation;
Registrar of Title

Thomas S. Stewart, Kansas City, MO, for Loveridge and Stimson Lumber plaintiffs.
Elizabeth G. McCulley, Kansas City, MO, of counsel.
Meghan S. Largent, St. Louis MO, for Albright plaintiffs. Lindsay S.C. Brinton, St. Louis
MO, of counsel.
James H. Hulme, Washington DC for Aeder plaintiffs. Laurel LaMontagne and Morgan
Pankow, Washington DC, of counsel.
David W. Gehlert, Environment and Natural Resources Division, United States
Department of Justice, Washington DC, with whom was Prerak Shah, Acting Deputy
Assistant Attorney General, for defendant.
OPINION
FIRESTONE, Senior Judge.
I.

INTRODUCTION
This is the court’s fourth opinion arising from the parties’ cross motions for partial

summary judgment in Albright v. United States (Case No. 16-1565L), Aeder v. United
States (Case No. 18-375L), Loveridge v. United States (Case No. 16-912L), and Stimson
Lumber v. United States (Case No. 18-983L). The plaintiffs in these related cases claim
they are entitled to just compensation under the Fifth Amendment for a taking of their
property in connection with the creation of the Salmonberry Trail in Oregon. The
Salmonberry Trail was established under the National Trails System Act, 16 U.S.C.
§ 1247(d), after the Port of Tillamook Bay Railroad (“POTB”) ceased operations over
portions of its railways in 2007. The POTB obtained its property interest over the
portions of the railways from the Pacific Railway & Navigation Company (“Railroad”).
Authorization to establish the Salmonberry Trail was issued by the government in a
Notice of Interim Trail Use (“NITU”) dated July 26, 2016. A final trail use and rail
2

banking agreement was reached between the POTB and the Salmonberry Trail
Intergovernmental Agency (“STIA”) on October 27, 2017. The plaintiffs claim to own
property underlying the POTB’s railroad right of way and assert that the creation of the
Salmonberry Trail gave rise to a “taking” of their property. The extensive history of this
litigation can be found in the court’ prior decisions and will not be repeated here. See
Loveridge v. United States, 139 Fed. Cl. 122 (2018), recons. partially granted, 2019 WL
495578 (2019).
The court’s first two opinions addressed whether deeds granted to the Railroad by
prior landowners granted a fee rather than an easement for the right of way at issue.
Where the Railroad obtained a fee interest and thus owned the right of way, the court
found that the plaintiffs could not establish a taking. See Loveridge, 139 Fed. Cl. 122;
Loveridge, 2019 WL 495578. In the court’s recently-issued third opinion, Loveridge v.
United States, 2020 WL 2301463 (Fed. Cl. May 8, 2020), the court determined whether
the trail use and railbanking authorized by the NITU fit within the scope of certain
easements.
In this fourth opinion, the court addresses the remaining three issues raised in the
parties’ pending cross motions for partial summary judgment: (1) whether plaintiffs must
establish that their easements were abandoned under Oregon law prior to issuance of the
NITU to receive just compensation for a new trail easement on plaintiffs’ fee land rather
than compensation for a trail easement on top of a continuing rail easement; (2) where an
easement for a road, street or other pathway was established between plaintiffs’ property
and the Railroad right of way before the plaintiffs acquired their property and where these
3

plaintiffs’ deeds identify that road, street or other pathway as their property boundary,
can the plaintiffs claim a property interest across the road, street or other pathway to the
centerline of the railroad right of way under Oregon law; and (3) whether plaintiffs who
could not produce a deed or other instrument identifying the interest conveyed to the
Railroad may rely on other evidence and Oregon state law presumptions to prove that the
Railroad obtained an easement and that these plaintiffs own the property underlying the
easement.
For the reasons discussed below, the parties’ cross motions for partial summary
judgment are GRANTED-IN-PART and DENIED-IN-PART.
II.

LEGAL STANDARDS
Summary judgment is proper “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). A genuine dispute is one that could permit a reasonable jury to enter a verdict in
the non-moving party’s favor, and a material fact is one that “might affect the outcome of
the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The party moving for summary judgment bears the initial burden of showing the
“absence of evidence to support the non-moving party’s case.” Crown Operations Int’l,
Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)).
Once the moving party has met its burden, the party opposing summary judgment
must respond and “demonstrate by specific factual allegations that a genuine issue of
material fact exists for trial.” Crown Operations, 289 F.3d at 1388 (citing Celotex Corp.,
4

477 U.S. at 322-23. “[M]ere allegations of a genuine issue of material fact without
supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank,
F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009). The court must view the
inferences to be drawn from the underlying facts in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986).
III.

DISCUSSION
The facts and law relevant to each of the three issues are discussed in the separate

sections of the opinion.1
A.

Abandonment of a Railroad Easement Under Oregon Law

The court first turns to the government’s argument that the plaintiffs whose
property was burdened by a railroad purpose easement prior to the NITU must
demonstrate that the railroad purpose easement was abandoned prior to the issuance of
the NITU to receive just compensation for the imposition of a trail use easement on
unencumbered land. The court holds, as discussed below, that these plaintiffs need not do
so under well-settled law.
1.

Undisputed Facts

The right of way segment at issue involves the POTB railroad line located
between Milepost 775.01 near Banks, Washington County, Oregon, and Milepost 856.08
near Tillamook, Tillamook County, Oregon (“Railroad Line”). See Loveridge, 139 Fed.

1

Briefing of these issues was completed on April 3, 2020. The parties have not requested oral
argument, and the court has determined that oral argument is not necessary.

5

Cl. at 129. The POTB has not run trains on the relevant portions of the right of way since
at least 2007. See Albright, ECF No. 20 at 3; Albright, ECF No. 24 at 4.
On May 26, 2016, the POTB filed with the Surface Transportation Board (“STB”)
a “Notice of Intent to Partially Terminate (Abandon) Service” for the railroad segment at
issue here. Loveridge, 139 Fed. Cl. at 129. The Notice stated that “a portion of the rail
line suffered catastrophic damage due to severe storms” and that “POTB has
unsuccessfully sought funding for repairing the line.” See Albright, ECF No. 20-1 at 2. It
further stated “POTB does not believe that it will be able to obtain the necessary funding
to repair and rehabilitate the line” and therefore “POTB is giving this notice of its intent
to terminate service over (fully abandon) the Subject Line.” Id.
On or about June 17, 2016, the STIA filed with the STB a Statement of
Willingness to Assume Financial Responsibility (“Statement”) to operate a trail on the
relevant segment of the right of way. 139 Fed. Cl. at 129. In its Statement, the STIA
stated that the relevant railroad segment “is suitable for railbanking” and requested that
the STB issue a Public Use Condition and NITU under the National Trails System Act,
16 U.S.C. § 1247(d). Id.
On July 26, 2016, the STB issued a NITU. Id. After two extensions of the NITU,
on October 27, 2017 POTB and STIA notified the STB that they had entered into a final
trail use and rail banking agreement regarding the relevant railroad segment. Id.
2.

Relevant Federal and Oregon Law

“[T]he [STB’s] issuance of a NITU effects a taking . . . when state law
reversionary property interests are blocked . . . .” Caquelin v. United States, No. 20196

1385, 2020 WL 2781657, at *3 (Fed. Cir. May 29, 2020) (quotation and citation omitted).
Thus, to find a taking, the court must determine whether issuance of the NITU in this
case blocked the plaintiffs’ state law reversionary interests, meaning that, but for the
NITU, the railroad’s easement would have been abandoned and the property returned
unencumbered by the railroad’s easement. Castillo v. United States, 952 F.3d 1311, 1315
(Fed. Cir. 2020) (“If, in the absence of a conversion to trail use, state law would provide
for return to a person of full rights in the land, a taking occurs when, pursuant to the
Trails Act, state law reversionary interests are effectively eliminated in connection with a
conversion to a railroad right-of-way to trail use.” (internal quotations and alterations
omitted)).
The property rights of the parties in this case are analyzed under Oregon law. See
Castillo, 952 F.3d at 1319 (“We analyze the property rights of the parties in a rails-totrails case under the relevant state’s law . . . .”). Under Oregon law, an easement can be
terminated by consent, prescription, abandonment, or merger. Cotsifas v. Conrad, 905
P.2d 851, 852 (Or. Ct. App. 1995). “A party claiming abandonment [of an easement]
must show in addition to non-use ‘either [a] verbal expression of an intent to abandon or
conduct inconsistent with an intention to make further use.’” Conner v. Lucas, 920 P.2d
171, 174 (Or. Ct. App. 1996) (quoting Abbot v. Thomson, 641 P.2d 652, 654 (Or. Ct.
App. 1982) (alterations in original)).
3.

Analysis

In all four cases before the court for parcels where the Railroad obtained an
easement for railroad purposes, the government has moved for partial summary judgment
7

arguing that if the plaintiffs cannot show that the POTB terminated its railroad easement
by abandonment before the NITU was issued, the NITU simply adds a new easement on
top of the existing railroad easement and just compensation is limited. Albright Def.’s
Mot. for Part. Summ. J. on Scope of Easements (“Albright Def.’s Aband. Mot.”) at 14-15
(ECF No. 120); Loveridge Def.’s Mot. for Part. Summ. J. on Scope of Easements
(“Loveridge Def.’s Aband. Mot.”) at 14-15 (ECF No. 94); Stimson Lumber Def.’s Mot.
for Part. Summ. J. on Scope of Easements (“Stimson Lumber Def.’s Aband. Mot.”) at 1011 (ECF No. 24).2 In support, the government argues that, in Oregon, “an easement
holder may be liable in trespass for use of an easement that is inconsistent with its scope”
but that Oregon “easements are not extinguished by inconsistent uses.” See Albright
Def.’s Aband. Mot. at 15 (citing Conner, 920 P.2d at 175 and Cotsifas, 905 P.2d at 852.).
The government therefore contends that if the plaintiffs cannot demonstrate prior
abandonment of the right of way by the POTB under state law before issuance of the
NITU, the plaintiffs are only entitled to just compensation for a railbanking and trail use
easement on a land still encumbered by a railroad purposes easement. Id.
Plaintiffs respond that the government has misconstrued the law regarding the
Trails Act. Specifically, the plaintiffs argue that they do not have to provide evidence that
the railroad easements had actually terminated through abandonment under state law “to

Although the court’s prior decision addressed the scope of easements conveyed to the Railroad,
it deferred judgment on the above issue. See Loveridge, 2020 WL 2301463, at *14 (indicating
that the court will address “whether under Oregon law the United States is liable for imposing a
new easement on the properties already encumbered by an easement or whether the easements
were terminated prior to the alleged taking” in its subsequent decision).
2

8

either establish a taking or to prove the nature of their property interest prior to the
NITU.” See Albright Pls’ Resp. at 13 (ECF No. 125) (quoting Rogers v. United States,
101 Fed. Cl. 287, 293 (2011)). Rather, the plaintiffs contend that they are entitled to
compensation for a railbanking and trail use easement on unencumbered land if they can
show that the POTB’s railroad purposes easements would have been extinguished by
abandonment under Oregon law but for the United States’ issuance of the NITU. Id.; see
id. at 4 n.8.
The court agrees with the plaintiffs that whether the easements were legally
terminated prior to issuance of the NITU is not relevant to determining the nature of the
property interest taken by the United States in connection with the easements limited to
railroad purposes. The plaintiffs’ claim before the court is rooted in the Trails Act’s
preemption of state property laws for terminating easements through abandonment. See
Caquelin, 2020 WL 2781657, at *9 (holding that the taking occurs at “the time as of
which, had there been no NITU, the railroad would have abandoned the rail line, causing
termination of the easement that the NITU continued by law”). This is because upon
issuance of the NITU, “the STB retains jurisdiction for possible railroad use and the
abandonment of the corridor is blocked.” Caldwell v. United States, 391 F.3d 1226, 1229
(Fed. Cir. 2004). Therefore, where plaintiffs can show that POTB would have abandoned
its easement but for the Trails Act, the plaintiffs’ “measure of damages for just
compensation must be the difference between the value of plaintiffs’ land unencumbered
by a railroad easement and the value of plaintiffs’ land encumbered by a perpetual trail

9

use easement subject to possible reactivation as a railroad.” Raulerson v. United States,
99 Fed. Cl. 9, 12 (2011).
This court has uniformly rejected the government’s contention to hold otherwise.
See, e.g., Ladd v. United States, 110 Fed. Cl. 10, 13 (2013) (“Plaintiffs’ reversionary
interests are determined in this court by subtracting the value of plaintiffs’ land with
easements for recreational trails, from their land without easements––unencumbered
property.”); see also Balagna v. United States, 138 Fed. Cl. 398, 405 n.4 (2018) (“The
government is thus wrong to suggest that, when it comes to valuation, it is somehow
relevant that Plaintiffs’ land has long been encumbered by a railroad corridor. . . . For
valuation purposes, the Court treats the property as though the railroad easement never
existed.” (quotation omitted)).3 The court declines to depart from this approach.
Having determined that plaintiffs need only demonstrate that the easements
limited to railroad purposes would have been terminated by abandonment, the court
considers the undisputed facts under the Oregon law governing abandonment. It is
undisputed that the POTB has not operated rail traffic on the relevant railroad track since
at least 2007. On May 26, 2016, the POTB filed with the STB a Notice of Intent to
Partially Terminate (Abandon) Service for the railroad segment at issue here. It is also
undisputed that the Notice indicated that the POTB would not be able to repair damage to

3

Indeed, the government acknowledges that this court has considered and rejected this argument
in several cases. See Albright Def.’s Aband. Mot. at 14 (citing Toscano v. United States, 107
Fed. Cl. 179 (2012); Geneva Rock Prods, Inc. v. United States, 107 Fed. Cl. 166 (2012)).

10

the Railroad Line at issue and rehabilitate the Line and declared the POTB’s “intent to
terminate service over (fully abandon) the Subject Line.” Albright, ECF No. 20-1 at 2.
The POTB’s failure to operate trains on the segment since 2007, together with its
statement to the STB of its intent to “fully abandon” the segment for rail service, would
have been sufficient to terminate the easements limited to railroad purposes by
abandonment under Oregon law because no other use of the segment would have
remained. In Oregon, “[a] party claiming abandonment [of an easement] must show in
addition to non-use ‘either [a] verbal expression of an intent to abandon or conduct
inconsistent with an intention to make further use.’” Conner, 920 P.2d at 174. Here, the
POTB has not used the relevant railroad purposes easements for years, and expressed its
intent to abandon rail service in the STB Notice. Id.; see also Caquelin, 2020 WL
2781657, at *9 (applying Iowa law, and holding that “[t]he railroad filed an application to
abandon, indicating an affirmative intent to abandon”). Thus, the court finds that the
plaintiffs have presented sufficient evidence of an expression of an intent to abandon the
rail line prior to the issuance of the NITU and that issuance of the NITU interfered with
the POTB’s intent to abandon the rail line. The government has not identified “any
evidence at all affirmatively indicating that the railroad would have delayed abandonment
. . . had there been no NITU to interfere with the grant of authority of abandonment” that
would otherwise have taken effect. Caquelin, 2020 WL 2781657, at *9. Thus, plaintiffs
have established a taking as of the issuance of the NITU.
In view of the foregoing, it is irrelevant that inconsistent use is not grounds for
termination of an easement in Oregon. Here, the evidence established that POTB had
11

ceased to operate the line in 2007 and after consideration had decided to finally terminate
operations and to fully abandon railroad use on the relevant segment. The government
has not presented any evidence that the POTB would not have abandoned rail service
over the segment. Rather, all evidence supports that the POTB would have abandoned
rail use over the segment and that any railroad purpose easements would have reverted
back to the plaintiffs that granted them, but for the issuance of the NITU. The
government’s motion for partial summary judgment regarding the measure of just
compensation therefore is denied. Just compensation must be measured assuming the
subject property was not encumbered by a railroad easement.
B.

Properties Where There Is an Intervening Road Between the Plaintiffs’
Property and the Railroad Right of Way

The court now turns to the plaintiffs that own properties where there is an
intervening road, street, or other boundary between the plaintiffs’ property and the
railroad right of way. As discussed below, the court finds that, under Oregon law, these
plaintiffs own only to the centerline of the intervening road, street, or other boundary and
have not established a property interest in the railroad right of way to pursue a takings
claim.
1.

Undisputed Facts

The Loveridge plaintiffs’ motion for summary judgment claims that they own the
underlying fee to the centerline of the right of way for the below-listed properties.
Loveridge Pls.’ Supp. Summ. J. Mot. and Mem. On Adj. Issues (“Loveridge Pls.’ Adj.
Mot.) (ECF No. 102). Plaintiffs support their claims with undisputed evidence of the

12

conveyance deeds granted by prior landowners to the Railroad for the right of way
between 1900 and 1910, as well as later documentation regarding the creation of a public
road, street or other pathway adjacent to the Railroad’s right of way in the form of
resolutions providing notice to the public about the County’s plan to construct the road
and recommendations that a road be established with damages paid to the abutting
landowner. Plaintiffs contend that under Oregon law even if their property is bounded by
a road and not the railroad right of way, so long as a prior landowner granted an easement
to the railroad and owned the property at the time the public road was created, the
plaintiffs can claim ownership across the intervening road up to the railroad right of way.
The government argues in its cross motion that plaintiffs whose property boundary
is a road, street, or other pathway and not the railroad right of way cannot prove a taking
based on deeds that show their predecessor deeded property to the Railroad and for the
road or street. Def.’s Opp. & Cross Mot. for Part. Summ. J. on Adjacency Issues
(“Loveridge Def.’s Adj. Mot.”) (ECF No. 107). The government argues that under
Oregon law current landowners who own property bounded by a road, street, or pathway
own only to the centerline of the road or street and cannot claim any ownership of the
railroad right of way.
The following chart summarizes the undisputed evidence:
Claimant and Conveyance
Claim No.
Deed and
Date to the
RR
Bay Air LLC Whitney Co.
7/84 (5.29.1907)
Claim No.
47.D

Intervening
Property Description in
Road and
Modern Deed or Plat
Documentation Describing Property
Boundary
Idaville Rd.
“along the Northerly Right of
Way boundary of the County
Journal J/Page
Road to Idaville . . .”

13

Stephen C.
and Genene
A. Grimes
Claim No. 77

Hammond
Lumber
23/308
(3.11.1910)

Terry and
Hammond
Michelle Hart Lumber
Claim No. 78 23/308
(3.11.1910)

250 (10.12.1920)
Foss Rd.

The deed describes the property
as “Parcel 2, Partition Plat 199222, Tillamook County, Oregon.”
Road SurveyBook B/Pg. 194 Plat 1992-22 describes the
boundary as follows:
(4.8.1908)
“Commencing at a point which is
Road Book 3/Pg. . . . on the north right-of-way line
250 (11.4.1908) of Foss-Batterson County Road;
thence along said North right-ofway line ……….”
Foss Rd.
“on the North right-of-way line of
Foss-Batterson
Road SurveyCounty Road, . . . thence along
Book B/Pg. 194 said North Right-of Way
(4.8.1908)
line……..”
Road Book 3/Pg.
250 (11.4.1908)
Highway 101
“to the North right-of-way line of
Highway 101, thence
Road Resolution Northwesterly along the North
388 (12.1.1926) right-of-way line of Highway
101……….”

Joseph
Cadwell
Claim No.
130

Prescriptive
Easement (no
source deed
identified) &
Chance 5/449
(fee)
Keith Chartier Hammond
Foss Rd.
Lumber 23/308 (constructed in
Claim No.
(3.11.1910)
1920)
134
Kunz 13/15

Deborah
Nitzche
Claim No.
170

Road SurveyBook B/Pg. 194
(4.8.1908)

“true point of beginning of this
parcel . . . being on the Northerly
right-of-way line of the County
Road, . . . along the North rightof-way line of the County
Road………”

Road Book 3/Pg.
250 (11.4.1908)
Hammond
Foss Rd.
“lying North of the Northerly right
Lumber 23/308 Road Surveyof way of Foss-Batterson County
(3.11.1910)
Book B/Pg. 194 Road[.]”
(4.8.1908)
Road Book 3/Pg.
250 (11.4.1908)

Lawrence
Wood
Claim No.
201

Hammond
Foss Rd.
The deed describes the
Lumber 23/308 Road Surveyproperty as “Parcel 1,
(3.11.1910)
Book B/Pg. 194
Partition Plat 1992-022 in
(4.8.1908)
Tillamook, County,
Road Book 3/Pg. Oregon ......... ”
250 (11.4.1908) Plat 1992-022 describes the
property boundary as
“[c]ommencing at a point

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David P.
Reber,
Claim No.
204.B

Whitney Co.
7/84
(5.29.1907)

Birthe
Schweter
Claim No.
205

Byrom 5/310

Lori J. &
Richard K.
Ruffo Trust
Claim No.
103.A

Beals 18/41

Carol
Woodbridge
Claim No.
202

Beals 18/41

Idaville Rd.

Journal J/Page
250
(10.12.1920)
Highway 101 (E. “Beginning at a point . . .
Garibaldi Dr.)
on the Northerly line of
the Coast Highway.”
Road Resolution
175, parcel 2
NARA map 23,
parcel 31
N. Miller Street
Plat

Florian Davis J.F. Carstens
Claim No.
72/530
210

which is . . . . . . .on the north
right-of-way line of FossBatterson County Road; thence
along said North right-of-way
line. . . . . . .”
“Beginning at ¾ inch iron pipe in
the apparent centerline of County
Road, . . . thence continuing along
the apparent centerline of said
road…….”

N. Miller Street
Plat

Banks-Veronia
State Trail
J.F. Carstens
72/5304

The deed describes the property as
“Lot 1 and the North 5 feet of Lot
2, Block 49, BEALS’ ADDITION
TO LAKE LYTLE.” The plat for
Beals’ Addition shows a street
(Davis Avenue) as the border for
parcel 103.A.
The deed describes the property as
“Lot 5, Block 49, BEALS’
ADDITION TO LAKE LYTLE[.]”
The plat for Beals’ Addition shows
a street (Davis Avenue) as the
border for parcel 202.
“to the Northeasterly
right-of-way line of
[Burlington
Northern] Railroad”

Loveridge Pls.’ Adj. Mot. at 2, 4-5 and Loveridge Def.’s Adj. Mot. at 2-3.

4

The Carstens deed granted a right of way to the Railroad and a second right of way which
became the Banks-Veronia State Trail in 1974. See Loveridge Pls.’ Adj. Mot. at 10.

15

The disputed issues of fact include whether the property interest conveyed to
create the intervening road or street was a fee interest or easement. The plaintiffs claim
that they have provided sufficient evidence to presume that an easement was conveyed
for the establishment of a public road or street under Oregon law. Loveridge Pls.’ Adj.
Mot. at 6 (citing Lankin v. Terwilliger, 29 P. 268 (Or. 1892)). The government disputes
whether the evidence relied upon by plaintiffs indicates that conveyance for the
intervening road was an easement. Loveridge Def.’s Adj. Mot. at 7. As discussed below,
the court need not address this dispute and assumes without holding that the conveyances
for these roads or streets was an easement.
2.

Relevant Federal and Oregon Law

“To demonstrate a cognizable property interest in a Trails Act case, a plaintiff
must establish ownership in land adjacent to the railroad line described in the NITU and
that ownership in that land can be traced to the railroad company’s acquisition.”
Anderson v. United States, 147 Fed. Cl. 661, 671 (2020) (citing Brooks v. United States,
138 Fed. Cl. 371, 377 (2018)). The above-noted plaintiffs can show that a prior owner of
their land granted a deed to the Railroad for a right of way. However, the deed from the
plaintiffs’ predecessor to the plaintiffs identifies a road, street or other pathway as the
boundary of their property.
Under Oregon law, statutory and common law presumptions apply regarding the
ownership of property underlying a road or street adjacent to a property. Oregon law’s
centerline presumption provides that the adjacent landowners on either side of the road
each own the underlying fee to the centerline of the road. See Or. Rev. Stat. § 93.310(4)
16

(“When a road or stream of water not navigable is the boundary, the rights of the grantor
to the middle of the road, or the thread of the stream, are included in the conveyance,
except where the road or bed of the stream is held under another title.”).
The centerline presumption in Oregon statutory law is consistent with Oregon
common law. See Howe v. Greenleaf, 320 P3d 641, 646 (Or. Ct. App. 2014) (recognizing
that the statute is a codification of common law). As relevant here, the presumption
applies where a road is dedicated through the property of a single owner by creating
distinct parcels: “The creation of any dedicated road through the property of a single
owner has the practical effect of creating distinct parcels, although in common
ownership, on both sides of the dedicated road.” Id. at 648. In this situation, the
conveyance of one of the distinct parcels includes only to the the centerline of the road.
Id. at 648; see also Coussens v. Stevens, 113 P.3d 952, 959-60 (Or. Ct. App. 2005) (citing
cases).
Oregon law recognizes an exception to the centerline presumption “where the
dedicated road runs between two tracts of land under different ownership and the road
was wholly dedicated from only one of the owners’ tracts.” Howe, 320 P.3d at 647
(emphasis added). In that case, “the entire width of the road transfers with the abutting
property from which it was wholly dedicated.” Id. (emphasis added); see id. at 648
(declining to apply this exception because “[a]t the time that Skyland Drive was
dedicated, the Smiths owned all of the property on both sides of the road and owned the
entire fee underlying the road” (emphasis added)).
3.

Analysis
17

Here, the plaintiffs argue that so long as they can establish that the prior
landowner conveyed the entire interest necessary for the road placed between their
property and the railroad right of way, the court should presume that the current owner
owns the land under the entire road – not just to the centerline. Therefore, plaintiffs
argue, they can establish that they own the property adjacent to the railroad right of way,
a necessary condition for just compensation. Loveridge Pls.’ Adj. Mot. at 3; Loveridge
Pls.’ Adj. Reply at 3-5 (ECF No. 108). The plaintiffs contend that the presumption in
Oregon law that two parcels are created––one on either side of the roadway when the
road was created––should not bar their claim if their predecessor owned the entire tract at
the time the road was established. In support of their position, the plaintiffs cite cases in
this court applying the law of other states that also involved intervening roadways. Id. at
5 (citing Haggart v. United States, 108 Fed. Cl. 70 (2012) (applying Washington law)
and Hardy v. United States, 127 Fed. Cl. 1 (2016) (applying Georgia law)). In both of
those cases, this court held that where an intervening road was granted by the plaintiffs’
predecessors as an easement, the plaintiffs, although not directly adjacent to the railroad
right of way, were presumed to own the railroad right of way to the centerline. Haggart,
108 Fed. Cl. at 85; Hardy, 127 Fed. Cl. at 15-16.
The government responds that the plaintiffs’ reading of Oregon law is
unsupported. Loveridge Def.’s Adj. Mot. at 7. The government argues that for 11 of the
parcels with an intervening boundary5 the plaintiffs have established only a presumption

5

Bay Air LLC (47.D), Stephen C. and Genene A. Grimes (77), Terry and Michelle Hart (78),
Joseph Cadwell (130), Keith Chartier (134), Deborah Nitzche (170), Lawrence Wood (201),

18

that they own to the centerline of the road.6 The government argues that these plaintiffs
have not established that they own the entire roadway and thus have failed to show that
their properties are adjacent to the railroad right of way.
According to the government, under Oregon law, if property is acquired for a road
then two distinct parcels are created, with one parcel on each side of the road owning up
to road’s centerline. Def.’s Adj. Mot. at 4. The government further contends that, under
Oregon law, the conveyance of one parcel does not include the conveyance of the other
unless expressly stated. Id. This view is consistent, the government argues, with the
plaintiffs’ ownership deeds which “explicitly use the intervening roads as boundaries or
convey only to the centerline of the intervening roads.” Id. at 4-5.
The government argues that the pending case is similar to BHL Properties LLC v.
United States, 135 Fed. Cl. 222 (2017), which involved Wisconsin law. In BHL
Properties, the plaintiff sought to show that he owned the entirety of the property
underlying an intervening road by relying, in part, on the deed of a prior landowner
conveying the easement for the entire road. Id. at 229. The court found that the prior deed

David P. Reber (204.B), Birthe Schweter (205), Lori J. & Richard K. Ruffo Trust (103.A), and
Carol Woodbridge (202).
6

The government contends that the tax documents provided regarding the Florian Davis (210)
parcel and the intervening state trail indicate that the landowner does not own fee title of land
underlying the state trail easement and thus cannot establish a taking claim. Def.’s Adj. Mot. at
8. The plaintiffs respond that whether the easement is under a separate tax parcel is “nonresponsive and irrelevant” under their application of the centerline presumption to their
predecessor’s land. See Loveridge Pls’ Adj. Reply at 3 n.9. The court agrees with the government
that the tax documents are relevant in determining the bounds of plaintiffs’ current property and
prove that plaintiffs have not established ownership of any land directly adjacent to the railway
for this parcel.

19

was “sufficient to establish that [the prior owner] once owned the land under [the road] in
fee simple” but that “nothing in the record show[ed] that [the current plaintiff] is in the
chain of title as successor-in-interest to [the prior landowner] with respect to the land
underlying [the road.]” Id. Even if the centerline presumption was applied, the court
concluded that the plaintiff could claim ownership to the center of the intervening road
only. Id. The court concluded that it did not matter that a prior individual owned the
entire parcel under the road adjacent to the railroad right of way without chain of title
linking the plaintiff to that predecessor. Id. The court explained that without “evidence of
conveyances that link [the prior owner’s] retained interest” in the land underlying the
road to the plaintiff, “it is thus entirely possible that someone other than [the plaintiff]
(such as, for example, a neighbor whose land also abuts [the road] either to the north or
the south) is the successor-in-interest . . . as to the land [the plaintiff] claims he owns.” Id.
Here, as well, the government argues, it is entirely possible that a neighbor whose land
also abuts the intervening road owns the land at issue or that ownership was reserved by a
prior landowner.
After considering the applicable Oregon law, the court finds that the aboveidentified plaintiffs have established only that they own to the centerline of the road,
street or pathway on the boundary of their property and not to the railroad right of way.
To begin, the court rejects the plaintiffs’ contention that the centerline presumption
should be applied “at the time the railroad’s right-of-way was constructed,” regardless of
the establishment of the intervening roadway. Loveridge Pls.’ Adj. Reply at 4. A Trails
Act taking occurs “when a railroad right-of-way is converted to interim trail use” and
20

state law reversionary property interests “that would otherwise vest in the adjacent
landowners are blocked from so vesting.” Caldwell, 391 F.3d at 1233. Therefore, only the
ownership interests of the plaintiffs at the time the NITU was issued is relevant to
deciding liability.
In considering the ownership interests of the plaintiffs at the time the NITU was
issued, and assuming but not deciding that the intervening roads, streets, or other
pathways granted by the prior landowners are easements, the court finds that plaintiffs
have failed to show that they own more than to the centerline of the intervening road,
street or pathway identified as a boundary in their deeds. As discussed above, Oregon law
presumes that where a road is built on a single grantor’s land, two parcels are created
with one parcel on each side of the road’s centerline. See Howe, 320 P.3d at 648. Only
where there are two owners, where each owns a parcel on either side of the road and
where only one provides the land for the road, does Oregon law presume that the party
that provided the land for the entire road owns all of the property underlying the road. Id.
at 647. Here, plaintiffs presented no evidence of two owners at the time the roads were
created. Without this evidence, it must be presumed that the parcel closest to the railroad
right of way is now owned by someone other than the plaintiffs. Id. (“[T]itle to half the
road continues to presume to pass with the conveyance of an abutting property whether
the conveyance is made while the road is in existence or after the abutting road is
vacated.”); Coussens, 113 P.3d at 959-60 (concluding that where the plat shows a road as
a western boundary, the grantor reserved for himself the land underlying the western half
of the road and land west of the road).
21

To defeat to the government’s motion for summary judgment, these plaintiffs
needed to do more than produce documents regarding the creation of a public road on a
prior landowner’s property. Contrary to plaintiffs’ contentions, the court cannot presume
that the property underlying the entire road belongs to them because it once belonged to a
prior landowner where the modern deeds show that the property conveyed to the
plaintiffs is bounded by the intervening road. Plaintiffs had to produce evidence to show
that the land on the other side of the centerline of the road and directly adjacent to the
railroad right of way was also conveyed to them. See BHL Props., 135 Fed. Cl. at 229.
Plaintiffs have failed to do so for any of the subject deeds, which show only that their
property is bounded by a road and do not expressly state that the land underlying the road
was conveyed to them. For this reason, the court cannot find that the plaintiffs’ own
property adjacent to the railroad right of way or to the centerline of the railroad right of
way. Plaintiffs’ motion for partial summary judgment on this issue is denied and the
government’s motion for partial summary judgment is granted.
C.

Properties Where a Source Deed for the Railroad’s Right of Way Is
Not Before the Court

The court now turns to the five Albright parcels and ten Loveridge parcels where
the parties have not identified an instrument of conveyance of a right of way to the
Railroad. As discussed below, the court finds that under Oregon law, where the only
available evidence indicates that the property was acquired by condemnation, adverse
possession, franchise, or vacation, the Railroad is presumed to only have acquired an
easement for Railroad purposes, but where the only available evidence indicates that the
22

Railroad possessed its right of way in fee, the Railroad is presumed to have acquired its
interest in fee.
1.

Undisputed Facts

At issue in Albright are five parcels belonging to James A. Smejkal, Bel Cochran,
LLC, Cochran 2 LLC, Three Bridges, LLC, and Oregon Coast Hospitality Investments,
LLC, for which the parties have not identified an instrument of conveyance of a right of
way to the Railroad.7 Albright Mot. for Partial Summ. J. (ECF No. 118) (“Albright Pls.’
Mot.”). These plaintiffs have instead provided the court with (a) the bounds of the
plaintiffs’ modern deeds, (b) tax records showing that the plaintiff owned the land on July
26, 2016 (the date the NITU was issued), and (c) a copy of any maps kept by the National
Archives and Records Administration prepared by the Interstate Commerce Commission
(“ICC”), referred to as “Val Maps,” noting the basis for the Railroad’s property interest.
The Val Maps state “Registrar of Title” in connection to the James A. Smejkal, Bel
Cochran LLC, and Cochran 2 LLC parcels and “No Record” in connection to the Three
Bridges, LLC and Oregon Coast Hospitality Investments LLC parcel.
In addition, before the court is the Washington County Department of Assessment
and Taxation Certificate of Withdrawal dated June 28, 1972, which describes the
Railroad as the owner “in fee simple” of portions of its corridor adjacent to the James A.
Smejkal, Bel Cochran, LLC, and Cochran 2 LLC parcels. See Albright Def.’s Resp. in

The government now concedes that the Howell Tree Farm’s Parcel 3N400C005700 was
acquired through a condemnation proceeding which conveyed an easement limited in scope to
railroad purposes. See Albright J. Stipulation Regarding Title Matter (Dec. 10, 2019) (ECF No.
134).
7

23

Opp. to Pls.’ Mot. (“Albright Def.’s Resp.) at 3 (ECF No. 126). The Certificate of
Withdrawal states “[a]s the owner in fee simple of the . . . real property [described in the
certificate] . . . The Pacific Railway and Navigation Company . . . has filed application
for the withdrawal of title to said real property from the registry system, and for restoring
or changing the same back to the recording system.” Id. at 3 (citing ECF No. 24-11).
Ten parcels are at issue in Loveridge. Loveridge Mot. for Partial Summ. J. (ECF
No. 91) (“Loveridge Pls.’ Mot.”). These parcels belong to Daniel Yeoman (39.A-C), Old
Mill Investment LLC (43.D), Carol H. Trustee (59.A), Leonard C. & Kathleen A. Parker
(101), Harvey Strong (112.B), John & Margie Anderson Living Trust (121), Douglas F.
Brown (126), and Joseph Cadwell (130). The plaintiffs have prepared a map for each
parcel from an overlay of the applicable Val Map with the county’s parcel report. Id. at 2.
The Val Maps state “No Record at Hand” for the Old Mill Investment LLC (43.D),
Harvey Strong (112.B), Douglas F. Brown (126), and Joseph Cadwell (130) parcels. Id.
at 3-4. The Val Maps reference a “Condemnation” proceeding in connection to the Daniel
Yeoman (39.A-C), Leonard C. & Kathleen A. Parker (101), and John & Margie
Anderson Living Trust (121) parcels. Id. at 7. The Val Map also states “Vacation” for a
portion of the Leonard C. & Kathleen A. Parker (101) parcel. Id. at 9. Finally, the Val
Map states “Franchise” for portions of the Carol H. Trustee (59.A) parcel. Id. The
plaintiffs subpoenaed the POTB to request all service conveyance instruments listed on
the Val Maps, and the POTB provided a list of all the conveyance instruments it had
related to the railroad line. Loveridge Pls.’ Mot. at 6. POTB’s list did not include any
conveyance instruments for the parcels at issue. Id. In addition, the plaintiffs provide a
24

letter from the Fidelity National Title Insurance Company indicating that a search was
conducted regarding the three Loveridge condemnation claims, and no documents could
be provided after a “reasonably diligent search of available records.” Id. at Ex. I (ECF
No. 91-9).
2.

Relevant Federal and Oregon Law

One of the “determinative issues for takings liability” is “who owns the strip of land
involved, specifically, whether the railroad acquired only an easement or obtained a fee
simple estate.” Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir.
2009). The court has already determined in these cases whether the Railroad acquired an
easement or fee for properties where there is a source deed conveying the right of way to
the Railroad. See Loveridge, 139 Fed. Cl. at 127. The liability issue for the properties
described in this section of this opinion is whether the Railroad is presumed to have
acquired no more than an easement under Oregon law where there is no source deed and
the Val Maps for the parcels at issue reference condemnations, no record, franchise,
vacation, or a registrar of title.
Oregon courts have recognized that the “general rule regarding the interest taken
in a right-of-way condemnation proceeding by a railroad is that, unless otherwise
expressly provided by statute or in the instrument of taking, only an easement is
acquired.” Egaas v. Columbia Cty., 673 P.2d 1372, 1375 (Or. Ct. App. 1983) (citing
Cappelli v. Justice, 496 P.2d 209 (Or. 1976) and 3 Nichols, Law of Eminent Domain 9-6
to 9-10, § 9.2 (3d ed rev. 1975)). In addition, where Oregon statutes governing railroad
right of way condemnations allowed railroad companies to take “whatever estate was
25

necessary to accomplish the railroad’s purpose,” the Oregon (and other) courts have
determined what the railroad acquired at a condemnation proceeding in light of what was
necessary for the railroad’s purpose, based on the language of the condemnation
judgment. Egaas, 673 P.2d at 1375.
When a railroad acquires a right of way through a franchise agreement or the
vacation of a public road, the railroad appropriates its property interest from a public
road. This arises from the local government’s power to grant “exclusive privileges or
franchises” over public rights of way. Parkhurst v. City of Salem, 32 P. 304, 304-05 (Or.
1893); see also McQuaid v. Portland & V. Ry. Co., 22 P. 899, 902 (Or. 1889) (explaining
that a governmental body is the owner of the “franchise” in a public right of way).8 In
addition, when the local government acquires property for a public road, Oregon courts
presume that the government acquired only an easement. Lankin v. Terwilliger, 29 P.
268, 269 (Or. 1892) (“By the location of [a] county road over the lands of [private
property owners], the public [acquires] no more than a right of way as an easement or
servitude, with the powers and privileges incident thereto.”).
3.

Analysis

8

The authority of a railroad to appropriate public roads is set forth by Or. Rev. Stat.
§ 772.105(1):
When it is necessary or convenient in the location of any railway to appropriate any part
of any public road, street, alley or public grounds not within the corporate limits of a
municipal corporation, the county court of the county wherein such road, street, alley or
public grounds is located, may agree with the corporation constructing the road, upon the
extent, terms and conditions upon which the same may be appropriated or used, and
occupied by such corporation. If the parties are unable to agree, the corporation may
appropriate so much thereof as is necessary and convenient in the location and
construction of the road.

26

The plaintiffs in Albright and Loveridge have moved for partial summary
judgment regarding the fifteen parcels for which no instrument of transfer from the
landowner to the Railroad has been located. Instead, the plaintiffs rely on secondary
evidence in the form of Val Maps prepared by the ICC. The plaintiffs argue that pursuant
to these Val Maps, where (1) the Railroad acquired its property through “condemnation,”
(2) where there is “no record” of an instrument of transfer, (3) where the Railroad
acquired its property through “vacation” or “franchise”, and (4) where the Railroad’s
conveyance is held in the “Registrar of Title,” Oregon law presumes that the Railroad
acquired at most an easement. Albright Pls.’ Mot. at 4-5; Loveridge Pls.’ Mot. at 4, 7, 9.
The government has moved for partial summary judgment for all of these parcels
claiming that the Val Maps are insufficient to establish the Railroad’s interest in its right
of way, and that plaintiffs have misconstrued the presumptions applicable under Oregon
law. Albright Def.’s Resp. at 6-7, Loveridge Def.’s Resp. at 2-3. In addition, for the three
parcels in Albright where the government has found the Railroad’s 1972 Certificate of
Withdrawal, the government argues the evidence establishes that the Railroad obtained a
fee interest and thus plaintiffs cannot establish liability. Albright Def.’s Resp. at 2-4.
Before turning to the plaintiffs’ arguments, the court must address the
government’s threshold contention that Val Maps are not by themselves sufficient to
establish the scope of the Railroad’s interest and thus government liability. See Albright
Def.’s Resp. at 7 (citing Amaliksen v. United States, 55 Fed. Cl. 167, 175 (2003)). While
the court agrees that it may be inappropriate to rely on Val Maps to determine ownership
where the language in an available source deed is clear, Amaliksen, 55 Fed. Cl. at 172,
27

this court has relied on Val Maps to determine takings liability where “neither party has
provided any evidence of a deed.” See, e.g., Mills v. United States, 147 Fed. Cl. 339, 348
(2020). In addition, the plaintiffs have sought additional documentary evidence by
issuing a subpoena to the POTB and having the Fidelity National Title Insurance
Company conduct a search regarding the condemnation claims. The “[p]laintiffs have
done what they can, and it is thus inappropriate to speculate, as defendant does, that the
railroads might have obtained their interest by fee.” Id. As such, the court may rely on
Val Maps as the only available evidence of the Railroad’s property interest and thus the
government’s potential liability.
Having agreed to accept the Val Maps as evidence of the Railroad’s property
interest, the court turns first to the Daniel Yeoman (39.A-C), Leonard C. & Kathleen A.
Parker (101), and John & Margie Anderson Living Trust (121) parcels for which the Val
Maps reference condemnation. Relying on Egaas, 673 P.3d at 1374, the plaintiffs argue
that the Railroad is presumed to have obtained only an easement in condemnation
proceeding where there is “no evidence to suggest the railroad” acquired or needed more
than an easement. Loveridge Pls.’ Mot. at 7. The government argues that the plaintiffs’
reliance on Egaas is misplaced because that case involved the interpretation of an actual
condemnation judgment and thus the holding does not apply to the current case. See
Loveridge Def.’s Resp. at 4-5. The government contends that where there is no
condemnation judgment in evidence, there are no applicable presumptions regarding the
Railroad’s ownership interest and the plaintiffs have failed to meet their burden of proof.
Id.
28

The court agrees with the plaintiffs that Egaas articulates the “general rule” in
Oregon that a railroad acquires only an easement in a condemnation proceeding “unless
otherwise expressly provided by statute or in the instrument of taking.” 673 P.2d at 1375.
The Egaas court recognized that this general rule is consistent with Oregon statutes
which “authorized a railroad to take whatever interest, fee or easement, in the
appropriated land that was necessary to accomplish its purposes.” Id. (emphasis added).9
The Egaas court then applied this presumption to interpret ambiguous language in a
condemnation judgment. Id. Eventually, the Oregon court concluded that an easement
was acquired because “[a]n easement was all that was necessary for railroad purposes in
this instance.” Id.
The court finds that the reasoning in Egaas is applicable to this case. Although
there is no record of the condemnation judgment before the court for the properties
identified as having been “condemned” on the Val Map, the court can presume absent
any evidence to the contrary that the Railroad acquired only that which was necessary for
its railroad purpose, namely an easement. See id. (“[T]he condemnation statutes limit the
nature of the estate taken to that necessary to accomplish railroad purposes.”). The court
thus holds that the Railroad is presumed to have acquired at most an easement through
condemnation in connection to the Daniel Yeoman (39.A-C), Leonard C. & Kathleen A.
Parker (101), and John & Margie Anderson Living Trust (121) parcels. The plaintiffs’

9

The court in Egaas explained that this limitation on a railroad company did not necessarily
apply in cases of a voluntary conveyance. 673 P.2d at 1375. Where there is a voluntary
conveyance, the extent of the property interest is based on the intent of the parties. Id.

29

motion for partial summary judgment regarding these parcels is granted and the
government’s motion is denied.
The court next turns to the Three Bridges, LLC, Oregon Coast Hospitality LLC,
Old Mill Investment LLC (43.D), Strong Harvey (112.B), Douglas F. Brown (126), and
Joseph Cadwell (130) parcels where the Val Map indicates that “no record” is available
regarding a conveyance to the Railroad. Here, the plaintiffs argue if no evidence of a
conveyance instrument exists, the court should presume that the Railroad obtained a
prescriptive easement over the right of way. Plaintiffs argue that this result is consistent
with the presumption applied in other states,10 and is a proper extension of the
presumptions applied by Oregon courts regarding other rights of way.11 See Loveridge
Pls.’ Mot. at 4; Albright Pls.’ Mot. at 10-11. The government responds that because no
Oregon case has addressed the rights of a railroad where there is no source deed, the
court cannot presume the Railroad obtained at most an easement. See Loveridge Def.’s
Resp. at 3. As such, the government argues that even if there is no deed, plaintiffs have
failed to identify sufficient evidence to meet their burden of proof. Id.

10

In other jurisdictions, a right of way obtained by prescriptive use of land for railroad purposes
has been held to provide only an easement. See Schulenberg v. United States, 137 Fed. Cl. 79, 98
(2018) (railroad obtained prescriptive easement where parties could not locate any original
source deed under Indiana law); Dana R. Hodges Trust v. United States, 101 Fed. Cl. 549, 560
(2011) (finding that where no documents existed, the railroad could not obtain any interest
greater than a prescriptive easement under Michigan law); Ybanez v. United States, 98 Fed. Cl.
659, 666 (2011) (applying Texas law to conclude that “[a] railroad that uses a strip of land for
railroad operations only, as if it had condemned the land for railway use, cannot acquire more
than an easement for railroad purposes”).
11

As discussed above, where the public acquires a right of way for a road, it is presumed that
only an easement was acquired. See Lankin, 29 P. at 269.

30

Having carefully considered the parties’ arguments, the court concludes that the
Railroad is presumed to have only acquired an easement where the Railroad acquired its
right of way through prescription. The court finds it appropriate to extend the statutory
limitations relied on in Egaas, regarding the condemnation of railroad right of ways, to
circumstances where a railroad acquires its right of way through prescription. See 673
P.2d at 1375. To hold otherwise would mean that a railroad company could acquire title
through prescription where it could not through a condemnation proceeding. Moreover,
as the plaintiffs argue, limiting the interest conveyed to an easement is consistent with
Oregon law applicable to other right of ways. See Lankin, 29 P. at 269. Here, where the
available evidence in the form of Val Maps indicates that there was no record of a
conveyance to the Railroad, the plaintiffs have presented sufficient evidence through the
Val Map to rely on the Egaas presumption in connection the Three Bridges, LLC,
Oregon Coast Hospitality LLC, Old Mill Investment LLC (43.D), Strong Harvey (112.B),
Douglas F. Brown (126), and Joseph Cadwell (130) parcels. The plaintiffs’ motion for
partial summary judgment for these parcels is granted, and the government’s motion is
denied.
The court now considers the Kathleen A. Parker (101) and Carol H. Trustee (59.A)
parcels, where the Val Maps state that the Railroad acquired its property rights by
“Franchise” or “Vacation.” The plaintiffs argue that “the purpose of a franchise
agreement or vacation was to allow the railroad to construct its line over what were then
public streets or county roads.” Loveridge Pls.’ Mot. at 9. These streets and roads, the
plaintiffs argue, were held as easements and thus the property acquired through the
31

vacation of a public street or road is also only an easement. Id. The government argues
that while the Val Maps indicate that the Railroad acquired its rights by vacation or
franchise agreement, the plaintiffs have not met their burden because they have not
provided copies of the applicable conveyance documents for those segments. Loveridge
Def.’s Resp. at 6.
As discussed above, the Val Maps constitute the available evidence and the
plaintiffs are entitled to rely on them to demonstrate what property interest the Railroad
acquired. In Oregon, where a railroad acquires its right of way through franchise or
vacation, the railroad is given a right of way over a public road. See Parkhurst, 32 P. at
304-05; McQuaid, 22 P. at 902. Because the road holds only an easement under Oregon
law, see Lankin, 29 P. at 269, it is logical to presume that the Railroad acquired at most
an easement to operate over the road. As such, the Loveridge plaintiffs’ motion for partial
summary judgment in connection to the parcels for Kathleen A. Parker (101) and Carol
H. Trustee (59.A) is granted, and the government’s motion is denied.
Finally, the court turns to the motions regarding the James A. Smejkal, Bel
Cochran LLC, and Cochran 2 LLC parcels for which the Val Maps state that the Railroad
obtained its right of way through a “Registrar of Title” and for which the government has
provided a Certificate of Withdrawal from June 28, 1972.
The government argues that the Val Maps reference to “Registrar of Titles” means
a “certificate showing title to the land was registered with the County’s Registrar of

32

Deeds through the Torrens system.” Albright Def.’s Resp. at 2.12 In addition, the
government references the Certificate of Withdrawal from June 28, 1972, which states
“[a]s the owner in fee simple of the . . . real property [described in the certificate] . . . The
Pacific Railway and Navigation Company . . . has filed application for the withdrawal of
title to said real property from the registry system, and for restoring or changing the same
back to the recording system.” Id. at 3 (citing ECF No. 24-11). Thus, the government
argues that there is evidence of a “recorded instrument that conclusively shows” that the
Railroad owed the property in fee and plaintiffs claim to ownership of the underlying
Railroad right of way fails as a matter of law. Id. at 3-4.
The plaintiffs concede the Railroad’s Certificate of Withdrawal from the registry
system indicates that the Railroad held “some interest in the land.” Albright Pls.’ Reply
at 6 (ECF No. 128). Plaintiffs respond that the Certificate of Withdrawal is not
“conclusive evidence” that the Railroad owned a fee estate interest and without such
conclusive evidence it is presumed that the Railroad obtained an easement. Id. In
addition, the plaintiffs argue that because their title company could not find a deed to the
Railroad immediately preceding or following the Certificate of Withdrawal, further
factual development is warranted. Id. at 6 n.1.
In a Trails Act case, “[t]o be entitled to compensation, a plaintiff must demonstrate
that she or he is the owner of the burdened estate . . . .” BHL Props., 135 Fed. Cl. at 228.

12

In Oregon, the Torrens system, a system of land title registration, was established by statute
and was in effect from 1901 until the early 1970s. Albright Def.’s Resp. at 2-3 (citing Or. Rev.
Stat. §§ 94.0054-99.990, repealed by Or. Laws 1971, c. 478, § 1.).

33

Fact discovery in this case closed on August 7, 2017, and the evidence the government
relies on was obtained prior to the close of discovery. The plaintiffs had an opportunity
but have failed to produce any evidence to show that there is a disputed issue of material
fact regarding the Railroad’s fee ownership. The court therefore agrees with the
government that the plaintiffs have failed to demonstrate ownership of the burdened land
adjacent to the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels. While
not conclusive, the Certificate of Withdrawal and the Val Maps are the only available
evidence, and this evidence indicates that the Railroad owned the land in fee. No
competing evidence has been presented to show plaintiffs’ ownership in the underlying
right of way. While plaintiffs suggest there could be more evidence, “mere allegations of
a genuine issue of material fact without supporting evidence will not prevent entry of
summary judgment.” Republic Sav. Bank, F.S.B. v. United States, 584 F.3d 1369, 1374
(Fed. Cir. 2009); see Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1166
(Fed. Cir. 2017) (holding that “speculation cannot prevent the entry of summary
judgment”). The plaintiffs have failed to demonstrate ownership of the right of way in
connection to the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels as a
matter of law. As such, the government’s motion for partial summary judgment regarding
the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels is granted and the
plaintiffs’ motion for partial summary judgment is denied.
CONCLUSION
For the reasons stated above, the plaintiffs’ and the government’s motions for
partial summary judgment are GRANTED-IN-PART and DENIED-IN-PART.
34

Specifically, the government’s motions for partial summary judgment regarding the
appropriate measure of just compensation is DENIED. The plaintiffs’ partial motion for
summary judgment on applying the centerline presumption to the railway where there is
an intervening road, street, or trail is DENIED and the government’s cross motion that
the plaintiffs are only presumed to own up to half of the intervening road, street, or trail is
GRANTED. The plaintiffs’ motions for partial summary judgment that the Railroad is
presumed to have acquired no more than an easement in connection to the Three Bridges,
LLC, Oregon Coast Hospitality LLC, Old Mill Investment LLC (43.D), Strong Harvey
(112.B), Douglas F. Brown (126), Joseph Cadwell (130), Kathleen A. Parker (101), and
Carold H. Trustee (59.A) parcels are GRANTED. Finally, the government’s motion for
partial summary judgment regarding the James A. Smejkal, Bel Cochran LLC, and
Cochran 2 LLC parcels is GRANTED and the plaintiffs’ motion for partial summary
judgment is DENIED.
The plaintiffs filed additional motions for partial summary judgment on June 19,
2020. Albright, ECF No. 52, Loveridge, ECF No. 115, Stimson Lumber, ECF No. 33. The
government will file its response briefs to these motions by Monday, July 13, 2020.
IT IS SO ORDERED.
s/Nancy B. Firestone
NANCY B. FIRESTONE
Senior Judge

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