BACON et al v. USA
Filing
50
REPORTED OPINION (Status Report due by 2/26/2025) granting in part and denying in part 41 Motion for Partial Summary Judgment filed by Plaintiffs; granting in part and denying in part 44 Motion for Partial Summary Judgment filed by USA. Signed by Judge Philip S. Hadji. (idb) Service on parties made.
In the United States Court of Federal Claims
f
RUSSELL L. BACON, et al.,
Plaintiffs,
No. 22-1724
(Filed: January 27, 2025)
v.
THE UNITED STATES,
Defendant.
Meghan S. Largent, Lindsay S.C. Brinton, T. Hunter Brown, Lewis Rice, LLC, St. Louis,
Missouri, for Plaintiffs.
Daniel Pinkston, Senior Trial Attorney, Denver, Colorado, Todd Kim, Assistant Attorney
General, Environment & Natural Resources Division, Washington, D.C., United States
Department of Justice, for Defendant.
OPINION AND ORDER
HADJI, Judge.
Plaintiffs seek just compensation under the Fifth Amendment for the Government’s
alleged appropriation of their land for recreational trail use under the National Trail
Systems Act, 16 U.S.C. §§ 1241-51 (Trails Act). See generally Third Am. Compl., ECF
19. The core dispute is whether Plaintiffs have a property interest in the disputed land.
Plaintiffs allege that their predecessors in title, through certain “source deeds” dating from
the late nineteenth and early twentieth centuries, granted the previous railroad operator
easements across their property to build a railway corridor, and these easements terminated
when the land ceased to be used for railroad purposes. Pls.’ Mot. Summ. J. at 1-2, ECF 41.
The Government argues that the source deeds relied on by Plaintiffs conveyed fee simple
title to the original railroad operator such that Plaintiffs do not have any property interest
in the land at issue. Def.’s Mem. at 2, ECF 45.
Before the Court is Plaintiffs’ Partial Motion for Summary Judgment (ECF 41) and
the Government’s Cross-Motion for Partial Summary Judgment (ECF 44). For the
following reasons, Plaintiffs’ Partial Motion for Summary Judgment is GRANTED IN
PART AND DENIED IN PART, and the Government’s Cross-Motion for Partial
Summary Judgment is GRANTED IN PART AND DENIED IN PART.
BACKGROUND
This action is brought by several plaintiffs who own homes, farms, and businesses
in Franklin County, Missouri. Third Am. Compl. ¶¶ 19-39; Pls.’ Mot. Summ. J. at 1, ECF
41. The instant motion is brought by 16 of those plaintiffs.1 The parties stipulate that
Plaintiffs own various parcels of land adjacent to the railroad corridor at issue in this case,
ECF 40 at 1, which is currently owned by V and S Railway, LLC (V&S). Pls. Ex. 1 at 2,
ECF 19-1. Plaintiffs allege that their predecessors in title, through certain source deeds
from approximately 120 years ago, granted the St. Louis, Kansas City & Colorado Railroad
Co. (the Original Railroad) an easement across their property to build a railway corridor.
Pls.’ Mot. Summ. J. at 1-2, ECF 41.
In September 2022, V&S filed a petition with the Surface Transportation Board
(STB), seeking exemption authority for the abandonment of a section of rail line between
Union, Missouri and Beaufort, Missouri (the Corridor). Pls. Ex. 1 at 1, ECF 19-1. Pursuant
to the Trails Act, 16 U.S.C. § 1247(d), the Missouri Department of Natural Resources
requested issuance of a Notice of Interim Trail Use or Abandonment (NITU), so that it
could negotiate with V&S for an interim trail use agreement pursuant to which the Corridor
could be developed as a trail. Pls. Ex. 3, ECF 19-3. The STB issued a NITU on November
17, 2022, effective for one year, Id., which was later extended twice through November
18, 2025. Pls. Ex. 4, ECF 41-4; ECF 47. Negotiations continue over a permanent trail use
agreement. ECF 47; Pls.’ Mot. Summ. J. at 3, ECF 41.2
The parties agree on the identification of the applicable source deeds. ECF 40.
Specifically, the parties do not dispute that: (1) Plaintiffs owned property adjacent to the
Corridor at the time of the NITU, and (2) those properties correspond to the tax parcel
numbers and applicable source deeds listed below:
The moving Plaintiffs are referred to simply as “Plaintiffs” and comprise: David and Diana Aguilar;
Russell Bacon, Harry Duane and Anna L. Campbell; the Carol A. Eckstein Irrevocable Trust; DNZ
Jeffriesburg, LLC; Barbara and Robert Differ; Dorothea Harrison; David and Elona Hoerr; Marquardt
Brothers LLC; Kenneth and Diana Otzenberger; Judy and Dominick Rivara III; the Stanley and Gail
Sleeman Trust; Voss Family Farm; Dean E. Whitworth; Michael Lottman; and Randal and Sonja
Maciejewski. Plaintiffs’ Motion addresses only those Plaintiffs’ parcels where the parties dispute whether
the source deed conveyed an easement or fee estate in the land.
1
Despite the ongoing negotiations, the parties do not dispute that Plaintiffs’ claims are ripe. It is well settled
that a takings claim accrues upon the issuance of a NITU. Barclay v. United States, 443 F.3d 1368, 1373
(Fed. Cir. 2006). Accrual does not depend on the execution of a trail use agreement or the trail operator
taking physical possession of the right-of-way. Id.
2
2
Plaintiff(s)
1.
2.
3.
4.
5.
6.
7.
8.
9.
Russell Bacon
David and Diana
Aguilar
Harry Duane and
Anna L. Campbell
Carol A. Eckstein
Irrevocable Trust
DNZ Jeffriesburg,
LLC
Barbara and Robert
Duffer
Dorothea Harrison
David and Elona
Hoerr
Marquart Brothers
Franklin County
Parcel Number(s)
23-1-02.0-000-007.000
17-9-29.0-008-050.000
Source Deed Grantor
Name (Book/Page)
Siese (53/247)
A. Rapps (53/268)
17-9-29.0-0-000-060.000
A. Rapps (53/268)
23-1-01.0-0-000-016.000
G. Rapps (53/284)
16-7-25.0-0-000-026.000;
16-7-25.0-0-000-026.010
23-1-02.0-0-000-008.000;
23-1-02.0-0-002-029.000
17-9-30.1-0-000-022.300
23-1-02.0-0-000-030.000;
23-1-02.0-0-002-027.000
23.2.04.0-0-000-009.200
Beckman (31/71)
Erni (53/610)
Siese (53/247)
Erni (53/348)
Siese (53/247)
Crowe (53/428)
Crowe (30/498)
Koeln (53/314)
10.
Kenneth and Diana
Otzenberger
23-2-03.0-002-017.400
11.
Judy and Dominick
Rivara III
17-9-29.0-0-006-050.300; A. Rapps (53/268)
17-9-29.0-0-007-050.500
12.
Stanley and Gail
Sleeman Trust
Voss Family Farm
Dean E. Whitworth
Michael Lottman
Randall and Sonja
Maciejewski
23-2-03.0-0-002-017.300
Koeln (53/314)
23-3-06.0-1-000-030.000
17-9-30.2-0-000-015.000
17-9-30.1-0-000-022.100
17-9-30.1-0-000 029.000
Robertson (36/300)
Fink (53/250)
Jonathan (58/507)
Gilla (53/38)
Erni (53/348)
Jonathan (58/507)
13.
14.
15.
16.
ECF 40.
Plaintiffs filed this action in November 2022, alleging that the NITU resulted in a
taking of their property. ECF 1. Plaintiffs amended their complaint three times. ECF 4,
ECF 9, ECF 19. Plaintiffs filed their Motion for Partial Summary Judgment in July 2024,
seeking summary judgment on the threshold liability issues of whether, pursuant to the
disputed source deeds, Plaintiffs have a reversionary interest in the land within the railroad
right of way subject to the NITU, and if so, whether recreational trail use exceeds the scope
3
of the easements. ECF 41 at 8, 15. The Government filed its Motion for Partial Summary
Judgment on September 12, 2024, opposing Plaintiffs’ entitlement to summary judgment
on these issues. ECF 44; ECF 45.
LEGAL STANDARD
According to the Rules of the United States Court of Federal Claims, summary
judgment is appropriate “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.” Rule 56(a).3 “[A]ll
evidence must be viewed in the light most favorable to the nonmoving party, and all
reasonable factual inferences should be drawn in favor of the nonmoving party.” Dairyland
Power Co-op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994).
The Supreme Court has instructed that “the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis omitted). Disputes
over facts that are not outcome-determinative will not preclude the entry of summary
judgment. Id. at 248. A dispute about a material fact is genuine “if the evidence is such that
a reasonable [trier of fact] could return a verdict for the nonmoving party.” Id.
A summary judgment motion is properly granted against a party who fails to make
a showing sufficient to establish the existence of an essential element to that party’s case
and for which that party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). A nonmovant will not defeat a motion for summary judgment
“unless there is sufficient evidence favoring the nonmoving party for [the fact-finder] to
return a verdict for that party.” Anderson, 477 U.S. at 249. “A nonmoving party’s failure
of proof concerning the existence of an element essential to its case on which the
nonmoving party will bear the burden of proof at trial necessarily renders all other facts
immaterial and entitles the moving party to summary judgment as a matter of law.”
Dairyland Power, 16 F.3d at 1202.
DISCUSSION
To establish a Fifth Amendment taking, a plaintiff must possess a protectable
property interest in the subject of the taking. Palmyra Pac. Seafoods, L.L.C. v. United
States, 561 F.3d 1361, 1364 (Fed. Cir. 2009). In determining whether a landowner has met
this requirement in Trails Act cases, the Court considers the following three factors:
(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
3
Court of Federal Claims Rule 56(a) is the same as Federal Rule of Civil Procedure 56(a). Compare RCFC
56(a) with Fed. R. Civ. P. 56(a).
4
did they include future use as public recreational trails; and (3)
even if the grants of the Railroad’s easements were broad
enough to 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 v. United States (Preseault II), 100 F.3d 1525, 1533 (Fed. Cir. 1996).
Plaintiffs seek summary judgment as to the first two Preseault II factors, asking the
Court to find as a matter of law that V&S obtained easements in the land at issue and that
recreational trail use and railbanking exceed the scope of those easements. Pls.’ Mot.
Summ. J. at 21, ECF 41. For its part, the Government only disputes the first issue, stating:
“If the Court holds that some or all of the interests conveyed through the source deeds were
easements, Defendant, for the purposes of this case only, does not contest that interim trail
use and railbanking are outside the scope of those easements.” Def.’s Mem. at 34, ECF 45.
Thus, the sole issue before the Court is whether the Original Railroad, and
subsequently V&S, obtained easements or fee simple title in the land subject to the NITU.
To ascertain Plaintiffs’ interest in the land at issue, the Court looks to the source deeds
conveyed to the Original Railroad by Plaintiffs’ predecessors in title. If the source deeds
underlying the Plaintiffs’ present ownership interests conveyed fee simple title to the
Original Railroad, then Plaintiffs no longer own a property interest in the Corridor that
could have been affected by the NITU. See Preseault II, 100 F.3d at 1533.
Three of the relevant deeds were recently addressed by the undersigned in Henley
v. United States, No. 22-1716, 2024 WL 4719154 (Fed. Cl. Nov. 7, 2024). There, the Court
determined that the Siese and Fink deeds conveyed fee simple title, while the contested
Crowe source deed conveyed only an easement for railroad purposes.4 Id. at *6-7. Having
carefully considered Plaintiffs’ amicus briefing in Henley and their briefing here, the Court
sees no reason to depart from its previous treatment of those deeds. Nevertheless, the Court
will explain its rationale here as well for clarity.
Turning to the case at hand, the deeds at issue in this case can be grouped into two
categories: (1) deeds containing a reference to “right of way” (Erni, A. Rapps, G. Rapps,
Siese, Koeln, Fink, and Jonathan); and (2) deeds that were conveyed for nominal amounts
(Crowe, Beckmann, and Robertson).
I.
Group One: The Erni, A. Rapps, G. Rapps, Siese, Koeln, Fink, and
Jonathan Source Deeds
Each deed in the first group contains language of a “right of way” or “right-of-way.”
The key question is whether this language limits each conveyance to an easement. The
4
The parties seemingly agree that the Crowe (53/428) source deed conveyed an easement, though they
incorrectly refer to it as the Crowe (30/428) deed. ECF 40 at 3.
5
Siese source deed is illustrative of this group and conveys to the Original Railroad the
following:
A strip of land over one hundred (100) feet in width, having a
uniform width of fifty (50) feet on each side of the center line
of the Railroad of said corporation, as the parcel is now located,
described and marked out on and across the following
described tracts and parcels of land to wit: The west half (1/2)
of Lot One (1) of the Northeast quarter (1/4) and the East half
of Lot One (1) of the Northwest quarter (1/4) Southeast quarter
(1/4) of Southwest quarter (1/4) and the West half (1/2) of the
Southwest quarter (1/4) all of section two (2) Township Forty
Two (42) North range Two (2) West. Also an additional strip
of land twenty five (25) feet wide on each side of the above
described Right-of-way, and adjacent and parallel thereto, to
be unsecured from a point where said located line crosses the
south side of the Jaques Prairie Road. Thence in a
southwesterly direction, a distance of 1000 feet. Also another
additional strip of land twenty five (25) feet on each side of
said located line and adjacent and parallel thereto . . . .
Pls. Ex. 10a, ECF 41-16. The other deeds in this group are similar. Pls. Ex. 8a, ECF 41-12
(A. Rapps); Pls. Ex. 9a, ECF 41-14 (G. Rapps); Pls. Ex. 11a, ECF 41-18 (Erni); Pls. Ex.
12a, ECF 41-20 (Koeln); Pls. Ex. 13a, ECF 41-22 (Fink); Pls. Ex. 14a, ECF 41-24
(Jonathan). Each deed, except the Jonathan deed, includes a primary conveyance of a strip
of land centered on the railroad line and a secondary conveyance of additional strips of
land on either side of the primary conveyance. The Jonathan deed contains only a primary
conveyance. Pls. Ex. 14a, ECF 41-24. Further, each source deed includes a broad
habendum clause conveying the estate “[t]o Have And To Hold the same[,] together with
all the rights, immunities, privileges and appurtenances to the same belonging” unto the
grantee “and to its successors and assigns forever.” See, e.g., Pls. Ex. 10a, ECF 41-16.
Finally, each deed recites significant consideration for the time (approximately 120 years
ago): $50 was paid for the Erni deed, $375 for Siese, $350 for Fink, $440 for A. Rapps,
$175 for G. Rapps, $100 for Koeln, and $50 for Jonathan.5
To aid its interpretation of these deeds, the Court applies the law of the state in
which the property is located. See Preseault II, 100 F.3d at 1540. Because the rail line at
issue is in Missouri, the Court applies Missouri law. Id. Under Missouri law, the cardinal
method for deed interpretation is “to ascertain the intention of the parties and to give that
5
Adjusting for inflation based on the Consumer Price Index from 1913, the earliest year such data is available, these
amounts approximately equal: $1,610 for the Erni deed, $12,076 for Siese, $11,271 for Fink, $14,170 for A. Rapps,
$5,635 for G. Rapps, $3,220 for Koeln, and $1,610 for Jonathan. See https://data.bls.gov/cgi-bin/cpicalc.pl (last
visited Jan. 15, 2024).
6
intention effect.” Hinshaw v. M-C-M Props., LLC, 450 S.W.3d 823, 827 (Mo. Ct. App.
2014). The courts of Missouri have consistently reviewed the following three factors to
determine whether a deed to a railroad passes fee title or merely an easement: (1) whether
the deed includes language conveying a “right of way;” (2) the amount of consideration;
and (3) language in the deed limiting the use of the land for railroad purposes. Moore v.
Mo. Friends of Wabash Trace Nature Trail, Inc. (Danny Moore), 991 S.W.2d 681, 685-86
(Mo. Ct. App. 1999).
Here, the parties do not dispute that the last two factors favor a fee simple
conveyance. Each deed recites significant consideration for the time and contains no
express language limiting the use of the land for railroad purposes. Nevertheless, Plaintiffs
argue that the first factor—the inclusion of “right of way” language—is sufficient to limit
the interest conveyed. Pls.’ Mot. Summ. J. at 14, ECF 41.
Under Missouri law, “right of way” language may indicate that the grantor intended
to convey a right of passage rather than fee simple absolute. See City of Columbia v.
Baurichter, 729 S.W.2d 475, 479 (Mo. Ct. App. 1987). However, Missouri courts do not
automatically construe “right of way” language to effect a limitation on a deed.
Schuermann Enter., Inc. v. St. Louis, 436 S.W.2d 666, 669 (Mo. 1969). According to the
Missouri Supreme Court, the phrase “right of way” has “been accorded two meanings in
railroad parlance—the strip of land upon which the tract is laid—and the legal right to use
such strip.” Id. “[W]here the interest conveyed is limited to right of way or for right of way
the estate conveyed is an easement only.” Id.
Based on this distinction, the Court finds that the deeds in this section can be further
divided into two groups. The deeds in the first group (Group A) employ “right of way”
language merely in a descriptive sense with respect to locating the primary and secondary
conveyances in relation to one another or the center line of the railroad. The deeds in the
second group (Group B) use more purpose-oriented “right of way” language suggesting
that the interest conveyed is in fact “for” right of way. The chart below illustrates the two
groups and the operative “right of way” language:
Source Deed
A. Rapps
(53/368)
Siese
(53/247)
Fink
(53/250)
Jonathan
(58/507)
Exhibit
No.
8a
Group
10a
A
13a
A
14a
A
Exemplar Excerpt
A
“Also an additional strip of land
twenty-five (25) feet wide on each
side of the above described Rightof-way….” (C. Siese)
“[T]wo strips of land each fifty feet wide, having a
uniform width of fifty (50) feet on each side of the
7
G. Rapps
(53/284)
9a
B
Erni
(53/348)
11a
B
Koeln
(53/314)
12a
B
right-of-way of the railroad… being parallel with
and adjacent to said right of way….”
“[A]nd also an additional strip of land for right of
way, of fifty (50) feet in width on each side of, and
adjacent to the above described right of way, and
extending from the North line of said Lot Two (2)
above described….”
“And also the additional strip of land for right of
way described as follows, to wit: A strip of land
fifty (50) feet in width on each side of and adjacent
to the above described right of way….”
“[A]nd also, the following described additional
strips of land for extra right of way as followed to
wit: A strip land on each side of and adjacent to, the
foregoing described right of way….”
Regarding Group A, it does not appear that the use of “right of way” language was
intended to limit the nature of the interest conveyed. In the Siese deed, for example, the
phrase “right of way” is wholly absent from the granting clause of the primary
conveyance—which is described in fee simple terms as a “strip of land over one hundred
(100) feet in width.” Pls. Ex. 10a, ECF 41-16. Instead, the phrase appears alongside the
granting clause of the secondary conveyance and only in the context of locating the position
of the secondary conveyance in relation to the primary conveyance. Id. The A. Rapps, Fink,
and Jonathan deeds similarly only reference the railroad’s right of way in the context of
positioning the parcel. For each deed, the phrase “right of way” is used merely as a
description of the location of the land conveyed and, therefore, is not indicative of an
easement or any other limitation on the conveyances.
The Court’s decision in Hubbert v. United States, 58 Fed. Cl. 613 (2003) (Bruggink,
J.), supports this conclusion. Hubbert construed a source deed under Missouri law which
recited consideration of seventy-five dollars. Id. at 615. The deed in question included
language stating that the grantor was conveying “[a] strip of Land One hundred feet wide
over and through the [described section] said strip of Land being fifty feet on each side of
the center line of the Springfield and Northern Railway as the same is now Located and
partly constructed over and through said land, the same being the right of way for said
[Railroad].” Id. The Court found that the deed conveyed a fee simple interest to the railroad:
The use of the “right of way” language in the deed is simply
descriptive and not intended to limit the interest conveyed. The
Missouri Supreme Court has recognized that the phrase “right
of way” has “been accorded two meanings in railroad parlance
– the strip of land upon which the tract [is] laid – and the legal
8
right to use such strip.” Schuermann Enter., Inc. v. St. Louis,
436 S.W.2d 666, 669 (Mo.1969).
The right-of-way language here appears at the end of the body
of the document, textually removed from the granting clauses.
The granting clauses themselves express the conveyance of
“lots, tracts or parcels of Land” and “a strip of land.” The
location of the “right of way” language therefore describes the
location of the strip of land and is not a limitation on the
interest conveyed.
Id. at 615-16.
The deeds in Group A warrant the same treatment. For each deed in Group A, the
primary conveyance expresses the conveyance in fee simple terms such as a “strip of land
one hundred (100) feet in width,” while the placement of the “right of way” language
seemingly describes the location of the strip of land. Indeed, in the Siese and Fink deeds,
the “right of way” language is entirely removed textually from the primary conveyance.
Under these circumstances, the use of “right of way” does not indicate an intention to
convey an easement, and any faint signal to that effect is more than drowned out by the
abundance of fee simple language both before (“grant, bargain and sell”) and after (“To
Have and to Hold the same…”). See Nixon v. Franklin, 289 S.W.2d 82, 88 (Mo. 1956)
(holding that the words “grant, bargain and sell” are evidence of a conveyance in fee
simple); Bayless v. Gonz, 684 S.W.2d 512, 513 (Mo. Ct. App. 1984) (holding that language
stating “to have and to hold the same together with all singular rights, immunities,
privileges and appurtenances to the same” conveys a fee simple interest).
Resisting this reasoning, Plaintiffs ask this Court to disregard Hubbert and instead
follow Abbott v. United States, 162 Fed. Cl. 445 (2022) (Davis, J.). Pls.’ Mot. Summ. J. at
15, ECF 41. In Abbott, the Court interpreted deeds with similar primary and secondary
conveyances to those at issue here and found that they conveyed easements under Missouri
law. The Court summarized those deeds as follows:
[E]ach representative deed contains a primary conveyance of a
strip of land 100 feet in width, and a secondary conveyance for
a 25-foot-wide strip of land on each side of and running parallel
to the land described in the primary conveyance. ECF No. 1622 at 21, 24, 27. Each of the secondary conveyances is “for extra
right of way,” followed by a description of its location. Id.
(emphasis added). The antecedent “for” clearly indicates that
“right of way” limits the interest acquired in the secondary
conveyance, and is not merely a description of the land
conveyed or its location. This language is sufficient to show
that the deeds’ secondary conveyances transferred an easement
9
under Missouri law. See G.M. Morris, 631 S.W.2d at 88 (citing
Schuermann, 436 S.W.2d at 669).
Abbott, 162 Fed. Cl. at 461. However, those deeds differ from the ones presently at issue.
In interpreting the Abbott deeds, the Court placed particular emphasis on the word “for”
preceding the “right of way” language in each deed. Id. This makes sense because the word
“for” is used as a function word to indicate purpose. For, Merriam-Webster’s Collegiate
Dictionary (11th ed. 2003). By contrast, none of the deeds in Group A specify that the
primary or secondary conveyances are “for” right of way. See, e.g., Pls. Ex. 8a, ECF 4112. Rather, each Group A deed, with the exception of the Jonathan deed, refers to the
primary conveyance as the “above described right of way” in the context of locating the
position of the secondary conveyance relative to the primary one. Id. Likewise, the
reference to “right of way” in the primary conveyance of the A. Rapps deed appears only
in the context of locating the position of the primary conveyance to the center line of the
railroad. Id.
The Jonathan deed is slightly different as it contains only a primary conveyance.
That deed conveyed the following to the Original Railroad:
Two strips of land each fifty feet wide, having a uniform width
of fifty (50) feet on each side of the right-of-way of the railroad
of said Company, and Nine Hundred and Seventy Five feet
long, Each strip being parallel with and adjacent to said right
of way as the same is now located and constructed over upon
and across the following described tract of land, to wit: all that
part of the South West quarter of the North East quarter section
30 Township 43 Range One West, which lies west of a line
drawn North and South through said right of way at a distance
of 400 feet west of point of intersection of the East line of said
quarter section with the center line of said right of way.
Pls. Ex. 12a, ECF 41-24. Like the A. Rapps deed, “right of way” language appears in the
Jonathan deed within the granting clause of the primary conveyance. Nevertheless, the
Court concludes that the references to “right of way” in the Jonathan deed do not refer to
either the location or purpose of the primary conveyance itself but to land that is “parallel
with and adjacent” to the primary conveyance. That land, which is described as part of the
South West quarter of the North East quarter section 30 Township 43 Range One West,
appears to be the secondary conveyance in the Erni deed, which this Court addresses below.
Regarding Group B, the analysis runs the other way. The Koeln deed states that the
secondary conveyance is “for extra right of way.” Pls. Ex. 12a, ECF 41-20 (emphasis
added). Not only does the predicate “for” limit the secondary conveyance to that of right
of way only, but the term “extra” indicates that the primary conveyance is “for” right of
way as well. Accordingly, both the primary and secondary conveyances in the Koeln deed
are limited to an easement only. Analysis of the G. Rapps and Erni deeds are a bit more
10
nuanced. Although they describe the secondary conveyance as “for right of way” they do
not include the instructive “extra” to suggest that the relevant primary conveyances are
“for” right of way as well. In this regard, the G. Rapps and Erni deeds are similar to the
deeds in Group A with respect to their primary conveyances. The G. Rapps and Erni deeds
refer to the relevant primary conveyance only as the “above described right of way.” See
Pls. Ex. 9a, ECF 41-14; Pls. Ex. 11a, ECF 41-18. Accordingly, the Court concludes that
the G. Rapps and Erni deeds convey an easement only with respect to the secondary
conveyance in each deed.
The Court’s nuance here is merely the result of applying Schuermann, which
contemplates that there must be some category of deeds where the use of “right of way”
language does not transform the conveyance into an easement and the Court believes that
the A. Rapps, Siese, Fink, and Jonathan source deeds not only fit into this category but
exemplify it. For those deeds, the phrase “right of way” is used merely as a description of
the location of the land conveyed and, therefore, is not indicative of an easement or any
other limitation on the conveyances.
In sum, the A. Rapps, Siese, Fink, and Jonathan deeds contain all the indications of
a fee simple conveyance. These deeds all recite significant consideration for the time,
contain no language limiting the use of the land for railroad purposes, and employ the
phrase “right of way” merely as a location descriptor. Danny Moore, 991 S.W.2d at 68586. The Court concludes that these deeds conveyed fee simple title to the Original Railroad
and, therefore, Plaintiffs fail the first prong of Preseault with respect to these deeds.
Accordingly, the claims of Plaintiffs Russell Bacon, David and Diana Aguilar, Harry
Duane and Anna L. Campbell, Judy and Dominick Rivara III, Barbara and Robert Duffer,
David and Elona Hoerr, Dean E. Whitworth, and Michael Lottman are dismissed.6 The
portion of the claim of Randall and Sonja Maciejewski underlain by the Jonathan deed
(58/507) is also dismissed. The Court grants the Government’s Motion for Partial Summary
Judgment and denies Plaintiffs’ Motion for Partial Summary Judgment as to these claims.
The Court concludes as a matter of law that the Koeln deed, as well as the secondary
conveyances in the Erni and G. Rapps deeds, conveyed easements to the Original Railroad,
which terminated when the Corridor ceased to be used for railroad purposes. The Court
thus grants Plaintiffs’ Motion for Partial Summary Judgment and denies the Government’s
Motion for Partial Summary Judgment as to the claims based on the Koeln deed as well as
the secondary conveyances in the Erni and G. Rapps deeds. Having found that the primary
conveyances in the Erni and G. Rapps deeds conveyed fee simple interests, the portions of
6
According to the parties’ Joint Stipulations, ECF 40, the claim of Michael Lottman is underlain solely by
the Jonathan deed (58/507). Nevertheless, Plaintiffs contend at one point in their briefings that “the source
deed for the Lottman property is the J. Erni 53/348 deed for the main corridor and the [Jonathan] 58/507
deed for the additional width outside the main corridor.” ECF 46 at 13 n.10. The Court prioritizes the
representations in the Joint Stipulations, ECF 40, as that document was entered into and signed by all
parties. Because the Lottman claim is underlain solely by the Jonathan deed (58/507), which conveyed fee
simple title to the Original Railroad, the Lottman claim is dismissed.
11
the claims of Dorothea Harrison and Randall and Sonja Maciejewski underlain by the
primary conveyance in the Erni deed (53/348) are dismissed. The portion of the claim of
the Carol A. Eckstein Irrevocable Trust underlain by the primary conveyance in the G.
Rapps deed (53/284) is also dismissed. The Court grants the Government’s Motion for
Partial Summary Judgment and denies Plaintiffs’ Motion for Partial Summary Judgment
as to these portions of these claims.
II.
Group Two: The Crowe, Beckman, and Robertson Source Deeds
The Court turns to the second group of deeds—the Crowe, Beckman, and Robertson
source deeds—which underlie the Marquardt Brothers claim (Crowe), the DNZ
Jeffriesburg, LLC claim (Beckman), and the Voss Family Farms claim (Robertson). Unlike
the first group, these deeds do not contain any “right of way” language. Rather, the pivotal
characteristic of these deeds is that they were each conveyed for consideration of “one
dollar and the building, maintaining, and operating of a Railroad.” Pls. Ex. 5a, ECF 41-6;
Pls. Ex. 6a, ECF 41-8; Pls. Ex. 7a, ECF 41-10. Plaintiffs argue that the apparent lack of
valuable consideration renders each conveyance a voluntary grant (and therefore an
easement) under Missouri law. Pls.’ Mot. Summ. J. at 9-11, ECF 41. The Government
argues that the added condition of “building, maintaining, and operating of a railroad”
constitutes valuable, non-monetary consideration under Missouri law sufficient to convey
fee simple title. Def.’s Mem. at 30-32, ECF 45.
Mo. Rev. Stat. § 388.210(2) (2022), whose predecessor was in effect when the deeds
in question were created,7 gives railroad companies the ability to take and hold voluntary
grants. Specifically, the statute provides that railroads may:
[T]ake and hold such voluntary grants of real estate and other
property as shall be made to it to aid in the construction,
maintenance and accommodation of its railroads; but the real
estate received by voluntary grant shall be held and used for
the purpose of such grant only[.]
“The term ‘voluntary’ grant has been construed to mean a conveyance without valuable
consideration.” Danny Moore, 991 S.W.2d at 685. A sum of one dollar is considered
nominal consideration, not valuable consideration, under the law of conveyancing. Brown
v. Weare, 152 S.W.2d 649, 653 (1941). The exchange of mere nominal consideration, even
if paired with unconditional language indicative of a fee simple conveyance, results only
in a voluntary grant to the railroad. See, e.g, G.M. Morris Boat Co., Inc. v. Bishop, 631
S.W.2d 84, 88 (Mo. Ct. App. 1982); Moore v. United States, 58 Fed. Cl. 134, 136-37
(2003). If the conveyance to the railroad is determined to be a voluntary grant, “the effect
of the statute [is] that the railroad acquired only an easement, no matter what interest the
deed purported to convey.” Danny Moore, 991 S.W.2d at 685.
7
Mo. Rev. Stat. § 1035 (1899).
12
As the Government points out, valuable consideration may be non-monetary in
nature. Def.’s Mem. at 9, ECF 45. For example, in Bagby v. Missouri-Kansas-Texas R.
Co., the Missouri Supreme Court found valuable consideration where land was conveyed
to a railroad on the condition that the railroad build its car and coach shops there. 171
S.W.2d 673, 676 (Mo. 1943). The Court also recognized as valuable consideration
“benefits accruing to property owners from the location of public buildings, military
headquarters, or manufacturing plants or other private buildings.” Id.
However, no Missouri court has found valuable consideration where land was
conveyed, as here, for the consideration of one dollar and “the building, maintaining, and
operating of a railroad.” In fact, the only Missouri court to directly address the question
held the opposite. In Danny Moore, the Missouri Court of Appeals, Western District, found
that a deed stating consideration of “one dollar and the building[,] maintaining[,] and
operating of a railroad by the [railroad], its successors and assigns” amounted to “merely
nominal” consideration. 991 S.W.2d at 687.
This Court recently applied Danny Moore in its decision in Abbott, 162 Fed. Cl. at
461. Based on the clear holding in Danny Moore, Mo. Rev. Stat. § 388.210(2), along with
the “absence of any conflicting, on-point Missouri case law,” this Court concluded that
“‘one dollar and the building, maintaining, and operating of a railroad’ does not constitute
valuable consideration” under Missouri law. Abbott, 162 Fed. Cl. at 461 (citing Danny
Moore, 991 S.W.2d at 685).
This Court explained its reasoning in Abbott in two additional ways, which are
applicable here as well. First, unlike the construction of a building such as a shop or depot,
the mere construction and operation of a railroad right of way does not confer any clear
tangible benefits to nearby property owners. Id. at 460. In this regard, Bagby is not on point
as this Court explained in Abbott. Id. “The conveyance at issue there was part of an
arrangement between a city in Missouri and a railroad company” and “[t]he city enticed
the railroad to locate its car and coach shops in its town by subsidizing the building of
railway company shops with $100,000.” Id. (citing Bagby, 171 S.W.2d at 674). The
benefits to the city were readily apparent in the form of “employment opportunities for
local citizens resulting from the building and operating” of the shops. Id. (citing Bagby,
171 S.W.2d at 676). This Court concluded that “[w]hile the community benefits in Bagby
are apparent, it is less obvious what tangible benefits are conferred upon an individual
landowner … by a railroad right of way running across his/her land … nor does Defendant
make such a showing.” Id.
Second, construing the “building, maintaining, and operating of a railroad” as
valuable consideration would essentially render Mo. Rev. Stat. § 388.210(2) all but useless.
As discussed, that statute gives railroads the authority to accept voluntary grants of land
(i.e., easements) “to aid in the construction, maintenance and accommodation of its
railroads.” Mo. Rev. Stat. § 388.210(2). The fact “[t]hat the parties clearly shared an intent
that the Railroad use the land to build, maintain, and operate (i.e., construct, maintain, and
accommodate) the rail line is what, in part, makes it an easement by operation of law.”
13
Abbott, 162 Fed. Cl. at 460. By contrast, the Government proposes a scheme where the
very act of building, maintaining, and operating the rail line would constitute valuable
consideration to the property owners and thus convert the voluntary grant into a fee simple
conveyance. Such a scheme would be wholly antithetical to the operation of voluntary
grants under Section 388.210(2).
Consistent with Abbott, which is directly supported by Missouri law, the Court finds
that the Original Railroad conveyed only nominal consideration to Plaintiffs’ predecessors.
And, because Missouri law holds that conveyances to railroads for nominal consideration
are voluntary grants (and therefore easements), Danny Moore, 991 S.W.2d at 685-86, the
Court concludes as a matter of law that the Crowe, Beckman, and Robertson source deeds
conveyed easements to the Original Railroad, which terminated when the Corridor ceased
to be used for railroad purposes. The Court grants Plaintiffs’ Motion for Partial Summary
Judgment and denies the Government’s Motion for Partial Summary Judgment as to the
claims based on those deeds.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Partial Motion for Summary Judgment (ECF
41) is GRANTED IN PART and DENIED IN PART, and the Government’s Partial
Motion for Summary Judgment (ECF 44) is GRANTED IN PART and DENIED IN
PART. The claims of Plaintiffs Russell Bacon, David and Diana Aguilar, Harry Duane
and Anna L. Campbell, Judy and Dominick Rivara III, Barbara and Robert Duffer, David
and Elona Hoerr, Dean E. Whitworth, and Michael Lottman are DISMISSED. The
following claims are also dismissed: (1) the portion of the claim of Randall and Sonja
Maciejewski underlain by the Jonathan deed (58/507) and the primary conveyance in the
Erni deed (53/348); (2) the portion of the claim of Dorothea Harrison underlain by the
primary conveyance in the Erni deed (53/348); and (3) the portion of the claim of the Carol
A. Eckstein Irrevocable Trust underlain by the primary conveyance in the G. Rapps deed
(53/284). The parties SHALL submit a joint status report on or before February 26, 2025,
including a proposal for further proceedings.
IT IS SO ORDERED.
_______________
PHILIP S. HADJI
Judge
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?