[00:00:03] Speaker 00:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:08] Speaker 00:
God save the United States and this honorable court.

[00:00:14] Speaker 01:
First case for argument this morning is 19-2078 Albright versus United States.

[00:00:21] Speaker 01:
Mr. Stewart, whenever you're ready.

[00:00:25] Speaker 04:
Thank you, Your Honor.

[00:00:26] Speaker 04:
This is Tom Stewart for the appellants.

[00:00:30] Speaker 04:
This consolidated appeal pertains to 26 deeds in the aggregate that were issued to the railroad in the first decade of the 1900s.

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And the only issue is whether the deeds conveyed an easement or fee under Oregon law.

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Combined, the 26 deeds apply to 119 landowners who collectively own 136 parcels.

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Since the only issue on appeal presents a pure question of law,

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The standard of review for this court is a de novo review, which is particularly significant in this case because the CFC never even considered the surrounding circumstances at the time the deeds were executed, which is a requirement under Oregon law.

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All of the plaintiffs asked this court to reverse the CFC's determination that the deeds conveyed a fee interest to the railroad for three primary reasons.

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First, in order to ascertain the intent of the parties, the court must look to the law and the surrounding circumstances when the deeds were executed.

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And that includes the statutes that existed in Oregon at the time, the common law of Oregon, and the railroad's charter, something the CFC completely failed to do.

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Second, all of the deeds that issue specifically state

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that the deeds were granted to the railroad after the railroad surveyed, located, and staked out the right of way pursuant to the railroad's power of eminent domain.

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And as this court specifically stated in preso 2 in an en banc ruling, because the deeds were all executed under the compulsion of eminent domain and the clear purpose of each deed was to merely confirm a grant

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to utilize the strip of land for the construction and operation of the railroad, which is a limited purpose under Oregon law, that creates a presumption of an easement by itself.

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And that is something that the CFC never considered either.

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And then finally, in addition to the compulsory consent, the railroad's charter, the existing statutes and common law of Oregon, each of the deeds at issue contains several other indicia

[00:02:52] Speaker 04:
that indicate and confirm, frankly, that the grantor is merely intended to grant an easement under the leading case in Oregon, which is the Bernards case, which was also cited by this court as authority in Preso 2.

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The CSC erred in holding that the deeds at issue conveyed fee title because the deeds conveyed easements to the railroad under the compulsion of eminent domain.

[00:03:17] Speaker 02:
first, in order to determine the... Mr. Stewart, this is Judge Toronto.

[00:03:22] Speaker 02:
Can I ask you, I know that what we said in the en banc persulpt citing Vermont law about the more or less self-evident fact that voluntary deeds are entered into under the shadow of the railroad's eminent domain power, but is there any Oregon case

[00:03:46] Speaker 02:
that relies on that background power of the railroad together with the idea that that power, namely eminent domain judgment, would be limited to an easement, that that influences how the voluntary deed is to be interpreted?

[00:04:08] Speaker 04:
Yes, Your Honor.

[00:04:10] Speaker 04:
And it's frankly all the way back to 1882 in the Oregon Railway case where the Supreme Court of Oregon specifically stated that the land taken for a particular use for which it is thought to be appropriated, that is in this case for the purpose of a railroad granted an easement only, and specifically

[00:04:35] Speaker 04:
The Oregon Railway case cited the treatise of Redfield on railways and specifically stated that in such a case, it has been held that the rights of the company are the same as where they take their land under their compulsory powers, end quote, which is exactly what we have here.

[00:04:55] Speaker 04:
And in fact, numerous Oregon Supreme Court decisions have shown a reliance.

[00:05:00] Speaker 02:
Just to be clear, the case that you just cited,

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was a voluntary deed case or a compulsory eminent domain judgment case?

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Just on the fact.

[00:05:10] Speaker 04:
It was a compulsory eminent domain case, Your Honor.

[00:05:14] Speaker 02:
So you rely on the citation to Redfield as supplying that.

[00:05:19] Speaker 02:
And would that mean that if the railroad says, we can go and get your land or get an easement on your land through the court,

[00:05:31] Speaker 02:
But let's make this easier and the landowner says, okay, but you sure are going to have to pay if you want the entire to be done with us, right, to want the fee simple interest.

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And the railroad says, sure, we'll pay you a very large sum of money for that, that that would still would

[00:05:58] Speaker 02:
How would that be treated in terms of interpreting the voluntary deed that results?

[00:06:09] Speaker 04:
I think that's an example like Boosh, Your Honor, where the consideration was substantial, $650.

[00:06:14] Speaker 04:
And obviously, under that scenario, the court would still have to look at the factors, one of the factors being the consideration.

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illogical and defies common sense to think that landowners would grant a substantial portion of their land, particularly crossing or through their land for one dollar, and assume that the railroad is acquiring a fee ownership in that.

[00:06:43] Speaker 02:
What are we to make of the... I gather a number of the 26 deeds at issue have

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facially nominal consideration, others have facially not nominal consideration.

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How are we to assess the role of that here, particularly because we don't know whether the stated consideration was the full consideration?

[00:07:10] Speaker 04:
Well, I think the stated consideration is always applied in all of these deeds, and frankly in all of these cases, and certainly is applied in Oregon.

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And so I believe the court has to conclude that the stated consideration of one dollar is exactly what it is.

[00:07:26] Speaker 01:
Isn't there a 2004 case called Real Vest Corporation where the Oregon Appellate Court said, no, no, no, even though it's one dollar, we're not clear at all that this was the true consideration?

[00:07:45] Speaker 01:
Isn't there a case that this sort of

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leads you away from the stated $1.00 consideration?

[00:07:53] Speaker 04:
I think there are cases out there, Your Honor, that recognize that on occasion the railroad would actually pay something more than what's actually stated in the deed.

[00:08:04] Speaker 04:
We don't dispute that.

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But there's no evidence of that in these cases at all.

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And in fact, that's why I think

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The Oregon Supreme Court, when confronted with this issue, has always treated the consideration of $1 as being one of the factors to consider.

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Not conclusive, but one of the factors to consider.

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And similarly, like in the Bush case, where the consideration was $650, that is also one of the factors to consider.

[00:08:33] Speaker 02:
Mr. Zuer, can I just ask you a question?

[00:08:36] Speaker 02:
In the gray brief, I think your gray brief,

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there is a reference to how the world of property interests may not be neatly divided between fee simple on one hand and easement on the other hand.

[00:08:53] Speaker 02:
There are terminable state interests, something that may be referred to in, is it the Capelli footnote?

[00:09:04] Speaker 02:
One of the cases.

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This case was fully framed

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in the Court of Federal Claims and I think at least until the reply brief in terms of a binary choice, easement versus fee simple.

[00:09:22] Speaker 02:
What am I to make of the reference to terminable estate interests when the estate interest is on condition of some use?

[00:09:36] Speaker 02:
I'm a little confused about whether we need to address that or not.

[00:09:42] Speaker 04:
Well, I don't believe you need to address it in this particular case, but to clarify that point, I believe it was in a brief file by Aaron Fox, and it specifically refers to fee-simple determinable as another alternative to either fee-simple absolute or easements.

[00:10:01] Speaker 04:
And that's what really Capelli was talking about in the previous notes.

[00:10:05] Speaker 02:
I'm sorry, I was not precise enough.

[00:10:07] Speaker 02:
Was there any reference in the Court of Federal Claims or in any of the blue briefs here to that notion or is this as properly presented to us a pure binary choice, easement or fee simple?

[00:10:19] Speaker 04:
I believe it's a pure binary choice, Your Honor.

[00:10:22] Speaker 02:
And have we or the Oregon courts used the term easement in such a way as to encompass

[00:10:31] Speaker 02:
the kind of terminable fee interest discussed in that Capelli footnote?

[00:10:37] Speaker 04:
Yes, I think repeatedly, Your Honor.

[00:10:39] Speaker 04:
I mean, the Capelli footnote just recognizes that a grant to a railroad, even if it's an easement, is a substantial thing, because it generally has the right to exclude others.

[00:10:49] Speaker 04:
And in frankly all of the cases, Wason was not actually a deed to a railroad, but it was a strip of land for a road.

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That was the purpose.

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Frankly, in Capelli and EGOS and Bernard's and the Oregon Railway case and frankly anything where there is a statement about the manifest purpose of the grant, that is meant to be an easement.

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And here, the manifest purpose is

[00:11:25] Speaker 04:
the construction and operation of the railroad.

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That's exactly what Capelli, Wason, and Bernards all say.

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And the courts basically say that you're supposed to give controlling significance to language of use and purpose in a deed.

[00:11:42] Speaker 04:
That was confirmed by the Oregon Supreme Court in Doyle v. Gilbert, and then also confirmed by the Oregon Supreme Court in Hall v. Meyer.

[00:11:52] Speaker 04:
where they said the general prevailing attitude is favorable to the finding of an easement whenever that type of interest serves the manifested purpose of the parties.

[00:12:01] Speaker 04:
And that's precisely what we have here.

[00:12:04] Speaker 03:
Mr. Stewart, this is Judge Lynn.

[00:12:08] Speaker 03:
I know you disagree with the government's position on this, but the government is contending that the Oregon statute creates a presumption in favor of a fee conveyance.

[00:12:21] Speaker 03:
And if it doesn't create a presumption, it certainly reads like it at least tips decidedly toward a fee conveyance in the absence of some compelling circumstance or indication otherwise.

[00:12:38] Speaker 03:
And that seems to me to be consistent with the way the factors are set forth in Bernard's, that every one of those factors is whether something tips

[00:12:50] Speaker 03:
tips toward an easement?

[00:12:51] Speaker 03:
Well, if you're talking about whether something tips toward an easement, then presumably you're starting with the presumption that it's not.

[00:13:02] Speaker 03:
What's your comment?

[00:13:04] Speaker 04:
I believe, Your Honor, that the government's reliance on a presumption of fees is totally fictitious.

[00:13:13] Speaker 04:
In fact, the Supreme Court of Oregon specifically rejected that false premise in Capelli.

[00:13:19] Speaker 04:
where it instructed the parties not to be overly technical to determine the meaning of the deed from the surrounding circumstances.

[00:13:26] Speaker 04:
And the Oregon Supreme Court specifically stated that the statute is not even helpful in that regard.

[00:13:32] Speaker 04:
And similarly instructed against over-reliance on any reading of a deed that was highly technical and told all the parties that the intent of the grant or for the language of the deed itself must be derived from the surrounding circumstances.

[00:13:49] Speaker 04:
If you take a step back, and I won't go through all of the quotes in preso two that specifically recognize the whole concept of compulsory consent, but this case presents a rather obvious and egregious error because, number one, Oregon Supreme Court has repeatedly stated that the court must consider the surrounding circumstances at the time the deed was executed.

[00:14:15] Speaker 04:
And the Oregon Supreme Court recognized the compulsory consent issue, frankly, between seven and nine times between 1869 and 1911.

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This court specifically addressed the concept in 1996 in preso two, and even cited the Oregon Supreme Court's decision in Bernard's.

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And every one of the deeds specifically incorporate Oregon statutory scheme.

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because the right of way was already surveyed, located, staked out, and even constructed.

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Now, this issue was fully briefed before the CFC.

[00:14:50] Speaker 04:
And then the CFC completely ignored the issue, didn't address the surrounding circumstances as directed by the Oregon Supreme Court, ignored the common law of Oregon, ignored Wason, Oregon Railway, Redfield's treatise, and even the railroad's charter, ignored the wording of the deeds,

[00:15:11] Speaker 04:
and ignore this court's en banc opinion in preso 2.

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And frankly, that failure is a very significant error and must be corrected by this court's de novo review.

[00:15:24] Speaker 04:
Now, if I can talk back to Judge Lynn's question for just... I'm sorry.

[00:15:29] Speaker 02:
Mr. Stewart, can I ask a specific question?

[00:15:32] Speaker 02:
Does the record show who drafted the deeds at issue?

[00:15:37] Speaker 04:
Not precisely, Your Honor.

[00:15:39] Speaker 04:
I don't believe there's any clear indication of who exactly drafted them, although many of them were formed deeds that were typed up.

[00:15:48] Speaker 04:
Many of them are the same.

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And I think there are some cases that specifically say that it can be inferred that the railroad drafted the deeds.

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But I don't believe the record is specifically clear on the ultimate conclusion that the railroad absolutely drafted them.

[00:16:09] Speaker 04:
And if I can go back to Judge Lynn's question for just a moment about the factors, I think it's important to note that all of these deeds at issue possess multiple factors that the Oregon Supreme Court has looked to be indicative of an easement.

[00:16:27] Speaker 04:
And I won't go through all the factors in Bernard's or the factors in Bush.

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But I think it's important to know that, frankly, the decision in Bush is an aberration.

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Oregon courts don't even cite to it.

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And I'm not even sure it's particularly relevant, because the reality is that that did not involve a deed to a railroad.

[00:16:46] Speaker 04:
It involved a deed to a lumber company.

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And if you look at the Bush opinion carefully, there were two different sections involved, one section seven and one section 12.

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The original deed in section 12 was not even presented for the court's review.

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And the deed in section seven did not contain any language concerning a strip of land.

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So the only thing we can say for sure is that seven of the eight factors in Bernard's were not present in Bush, and there was no compulsory consent either.

[00:17:20] Speaker 04:
On the other hand, in this case, in addition to compulsory consent, these deeds all possessed multiple factors that the Oregon Supreme Court looked to in Bernard's and Bush to be indicative of an easement.

[00:17:34] Speaker 04:
In this case, in addition to the compulsory consent,

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All of the deeds at issue describe a narrow strip of land, which is factor eight in Bernard's.

[00:17:43] Speaker 04:
And I do want to say one thing about that because Oregon has a very strong public policy against construing deeds conveying long and narrow strips of land granted to a railroad as pre-simple absolute deeds.

[00:17:58] Speaker 04:
In light of the desirability of having such strips returned to the adjacent owners at the end of the railroad use,

[00:18:05] Speaker 04:
That is State Department of Transportation, the TOLCI, in the briefs at 586 Pacific Second, 591.

[00:18:14] Speaker 04:
And that basically is a statement of Oregon's public policy on the use of strips of land.

[00:18:20] Speaker 04:
In addition, all of the deeds at issue say that the strip of land is running across or through the grantor's land, which is factor three in Bernard's.

[00:18:29] Speaker 04:
All of the deeds at issue describe the grant without specificity, which is factor six in Bernard's.

[00:18:36] Speaker 04:
Almost all of the deeds include nominal consideration, which is factor seven in Bernard's.

[00:18:41] Speaker 04:
And many of the deeds use the phrase right of way in the body of the deed to describe the interest, which is factor two in Bernard's.

[00:18:49] Speaker 04:
And so in reality, what we have is a situation where almost all of the deeds have at least four of the factors in Bernard's plus compulsory consent.

[00:19:00] Speaker 04:
Nine of them have five factors plus compulsory consent.

[00:19:04] Speaker 04:
Five of them had the right to build, maintain, and operate a line of railway thereover, which frankly should be dispositive under Oregon law.

[00:19:13] Speaker 04:
Four of them are entitled to railway deed, which should also be dispositive and is at least a fifth factor under Bernard.

[00:19:21] Speaker 04:
And one deed, the Lloyd Smith deed, has six factors, counting the fact that it was a grant of a right of way hereby conveyed.

[00:19:29] Speaker 04:
And we believe that should be dispositive as well.

[00:19:36] Speaker 04:
I did not hear a ding on my time, but I believe my time has got to be up, at least for this portion.

[00:19:42] Speaker 04:
If there aren't any other questions at this point, I'd like to reserve my time for rebuttal.

[00:19:47] Speaker 01:
I agree.

[00:19:47] Speaker 01:
It feels like it might be close.

[00:19:49] Speaker 01:
Thank you.

[00:19:49] Speaker 01:
We'll reserve the time for rebuttal.

[00:19:52] Speaker 01:
Let's hear from the government.

[00:19:56] Speaker 00:
Good morning, and may it please the court.

[00:19:58] Speaker 00:
My name is Anna Katzelis, and I represent the United States in these appeals.

[00:20:03] Speaker 00:
The Court of Federal Claims correctly ruled that the plaintiff's takings claims cannot proceed because the plaintiffs failed to establish that they actually possess compensable property interests under Oregon law.

[00:20:16] Speaker 00:
And to be clear, this case requires the court to apply Oregon law, not Vermont law, which this court applied in pre-SALT II.

[00:20:26] Speaker 00:
And in Oregon, the law is quite clear, and it does, in fact,

[00:20:32] Speaker 00:
contain a clear, long-standing statutory presumption in favor of fee, simple conveyances.

[00:20:41] Speaker 02:
This is just Toronto.

[00:20:43] Speaker 02:
What do you do with the statement in Capelli that said that statutory language is, I think the language is not helpful?

[00:20:57] Speaker 02:
And as far as I can tell, even though that's

[00:21:02] Speaker 02:
almost 50 years old, 1972, I think it was, that discounting of the significance of the statutory language has not been modified since then.

[00:21:18] Speaker 02:
And there was a reason for it, right, which had to do with the removal of the AIRS language.

[00:21:23] Speaker 02:
But the statutory language is one thing.

[00:21:26] Speaker 02:
Compeli is another thing.

[00:21:28] Speaker 02:
Where does that leave us?

[00:21:30] Speaker 00:
Well, Your Honor, I think that the statement in Capelli, I mean, ultimately, I mean, the practical consequence when you look at the statute, the practical consequence of abolishing the ancient rule is to create a presumption in favor of fee conveyances.

[00:21:49] Speaker 00:
And I think, you know, that the statute is significant is obvious and evident from its application in Bush.

[00:21:59] Speaker 00:
Bush set forth that statute at the beginning of its analysis.

[00:22:03] Speaker 02:
And if it were irrelevant.

[00:22:05] Speaker 02:
I just want to follow up.

[00:22:06] Speaker 02:
It seems to me you just shifted away from an answer to my question.

[00:22:10] Speaker 02:
Capelli says the statute is not particularly significant in interpreting the deed.

[00:22:17] Speaker 02:
Rather, move away from technical considerations.

[00:22:20] Speaker 02:
Look at what you can infer about the intent based on the substance of surrounding circumstances.

[00:22:28] Speaker 02:
What does that leave of the statute?

[00:22:31] Speaker 02:
This is the Oregon Supreme Court pronouncing on the statute, and I take it we're obliged to follow the Oregon Supreme Court's pronouncement about the role of the statute, not simply follow what would appear on the face of the language to be something different from that.

[00:22:56] Speaker 00:
Correct, Your Honor.

[00:22:57] Speaker 00:
I mean, the court in Capelli did not abolish or overturn the statute.

[00:23:02] Speaker 00:
The statute remains in effect.

[00:23:03] Speaker 02:
No, of course not.

[00:23:04] Speaker 02:
But it said that it was not helpful precisely because the focus should be on the substantive considerations governing intent.

[00:23:13] Speaker 02:
And I'm trying to figure out what we do with that and not just ignore it.

[00:23:18] Speaker 00:
Your Honor, I think that when you look at Capelli, the way that the court analyzed the deed before it

[00:23:24] Speaker 00:
is entirely consistent with the way that the court analyzed the deed before it in Boosh with respect to how the court analyzed the deed before it in Bernard.

[00:23:33] Speaker 00:
So our position of how the court must analyze the deed is entirely consistent with what Capelli, in fact, did in that case.

[00:23:42] Speaker 00:
So Capelli found most significantly the court explained that the deed before it purports to grant only a right of way and also in that

[00:23:54] Speaker 00:
very consistent with what we have said with respect to Bush and Bernard, the most significant factor.

[00:24:01] Speaker 00:
I mean, these deeds must be analyzed and the court must determine whether the intent to limit the conveyance to something less than the fee appears by the words of the conveyance.

[00:24:14] Speaker 00:
Capelli undertook the same analysis and in the deed before it, the parties did express that intent because they only granted a right.

[00:24:24] Speaker 00:
Now, we have explained in our brief that none of the deeds before the court do that.

[00:24:28] Speaker 00:
They all, in the granting clause, convey land.

[00:24:31] Speaker 00:
None of them convey a right.

[00:24:33] Speaker 00:
And, of course, the granting clause is the most significant clause in the deeds.

[00:24:38] Speaker 00:
The plaintiffs in these cases are relying almost entirely on the descriptions of the parcels that are conveyed.

[00:24:46] Speaker 00:
Now, if you look at Capelli, if you look at Bush, if you look at Bernard, the description of the parcel

[00:24:53] Speaker 00:
is not significant in determining intent, and Bush went, you know, clarified the general rule in Oregon that, you know, grants of land convey the fee, whereas grants of rights convey an easement, and explained... I thought that the language in Bush, which is striking in talking about the railroad thing, saying

[00:25:20] Speaker 02:
There's a class of cases about granting a right, and those are easily easements.

[00:25:26] Speaker 02:
And then the next paragraph says, a grant of land, and there's some language, I don't have it in front of me, but without any further language, and here's a broad term, capacious term seemingly, relating to the use or purpose.

[00:25:42] Speaker 02:
That's a more capacious description of what you

[00:25:48] Speaker 02:
characterizes the land grant cases than saying that there has to be a restriction to the use.

[00:25:58] Speaker 02:
It's language relating to the use or purpose.

[00:26:03] Speaker 02:
Go ahead.

[00:26:06] Speaker 00:
Yes.

[00:26:06] Speaker 00:
Respectfully, Your Honor, and Bush is quite clear on this point and actually explained and clarified an error.

[00:26:14] Speaker 00:
So Bush really establishes that

[00:26:17] Speaker 00:
the way that the words are used in the deed, the context in which the words are used in the deed must be given effect.

[00:26:26] Speaker 00:
And Bush explained this with respect to the phrase right of way.

[00:26:31] Speaker 00:
It has a twofold meaning, the court explained, and it can be used to describe a parcel of land or to describe a right, and that it does not limit the interest conveyed when it is used in the form of respect.

[00:26:48] Speaker 00:
Respectfully, Your Honor, after Bush, the court cannot disregard the way that the words are used and where the words are used in the deed.

[00:26:57] Speaker 00:
You know, Bush establishes quite clearly that under Oregon law, the context must be given effect.

[00:27:08] Speaker 00:
And in these cases, we have gone through each of these deeds very carefully in our brief, Your Honor.

[00:27:14] Speaker 00:
If the court looks at the granting clause, it will not find any limitation to a use, any language restricting use in any of these deeds.

[00:27:28] Speaker 02:
Can I just focus on this once again?

[00:27:32] Speaker 02:
It seems to me that the language that Bush uses, this is the on the other hand paragraph.

[00:27:40] Speaker 02:
On the other hand, the general rule concerning the grant of land

[00:27:44] Speaker 02:
This is following the previous paragraph about the grant is a use.

[00:27:49] Speaker 02:
And we clearly have a grant of land, no question about that, to a railroad, as distinguished from the grant of a right or use thereof is stated in the following ALR annotation.

[00:28:05] Speaker 02:
But what that then quotes is that conveyances to railroads of a strip, et cetera,

[00:28:11] Speaker 02:
which do not contain additional language relating to the use or purpose, et cetera.

[00:28:22] Speaker 02:
I'm not sure that we don't have language in deeds that, let me put it more positively, why doesn't the language in the deeds here contain language relating to the use or purpose

[00:28:40] Speaker 02:
conceding, for purposes of this question, that they don't contain language restricting the use or purpose.

[00:28:52] Speaker 02:
All of them talk about the rail line, don't they?

[00:28:59] Speaker 00:
Well, Your Honor, I think this doesn't.

[00:29:01] Speaker 00:
They describe the parcel.

[00:29:03] Speaker 00:
In the descriptions of the parcel,

[00:29:08] Speaker 00:
There is this language, but I think when you look at Bush and Bernards and how they analyze these deeds, they are not, you know, Bernards didn't even set forth the description of the land in analyzing the deed.

[00:29:25] Speaker 00:
That's not where, I mean, where language restricting use would be found would be in the conveyance.

[00:29:33] Speaker 00:
or possibly in the habendum clause.

[00:29:37] Speaker 00:
It is also the law in Oregon that the grant in the granting clause controls, and to the extent there is any inconsistency with another provision of a deed, what is granted in the granting laws controls.

[00:29:53] Speaker 00:
So the way that the language, and we submit, Your Honor, that under BOOSH, the way that the language is used must be

[00:30:02] Speaker 00:
given effect, the context must be considered.

[00:30:06] Speaker 00:
Bush explained that courts that have not done that have got it wrong.

[00:30:12] Speaker 00:
So while these deeds describe the parcel, and it's quite reasonable for the description to describe the parcel in relation to the survey because it's very clear, it's very precise where the land is, but that isn't language that is

[00:30:32] Speaker 00:
restricting the use or demonstrating an intent to limit the interest conveyed.

[00:30:39] Speaker 00:
And I think perhaps that's helpful.

[00:30:41] Speaker 00:
The question is that the parties use language that signifies their intent to restrict what they are conveying to the railroad.

[00:30:49] Speaker 02:
And nearly by referring to... Can I ask two, I guess, rather specific questions?

[00:30:55] Speaker 02:
One is, is the survey in

[00:31:01] Speaker 02:
the publicly discoverable property records upon the entry of a deed like this?

[00:31:09] Speaker 00:
I'm not sure, Your Honor.

[00:31:10] Speaker 02:
Because I guess part of what I took away from some of the cases was to the extent that they talk about how precisely defined the land is, or imprecisely or precisely,

[00:31:25] Speaker 02:
there's a kind of concern, and at least one of the plaintiffs briefs talks about this, to the extent that the land that the interest transferred is defined only as a certain strip, certain number of feet on either side of tracks, that at some point if the tracks disappear, how is the public to know what the definition of the property interest is?

[00:31:54] Speaker 02:
And one answer would be if the surveys are publicly available, then people would know.

[00:32:01] Speaker 02:
But if that would not be available, maybe that points a little bit in the direction of what's contemplated is an interest that is tied to the temporally defined use.

[00:32:19] Speaker 00:
Well, Your Honor, there's absolutely no support in Oregon law for the proposition that parties have to anticipate future changes in structures or the landscape.

[00:32:31] Speaker 00:
And, you know, we've explained in our brief that the restatement specifically identifies survey, a prospective survey, as an example of one way that a fee can be identified in a deed.

[00:32:46] Speaker 00:
This is even more than that because it's, of course, a completed survey.

[00:32:51] Speaker 00:
So, you know, in construing these deeds, the court must apply Oregon law as it is established.

[00:32:57] Speaker 00:
There is no support.

[00:32:58] Speaker 02:
One other question.

[00:32:59] Speaker 02:
I think Mr. Stewart, if I heard him, and I may not have heard him correctly, in discussing Bush,

[00:33:07] Speaker 02:
said that the land that was at issue was not itself being used as a railroad.

[00:33:15] Speaker 02:
Can you clarify what this path is in Boosh?

[00:33:20] Speaker 00:
Well, it was a lumber company, but it was a railroad, your honor.

[00:33:23] Speaker 00:
So I don't think that's at all significant.

[00:33:25] Speaker 00:
The Silverton Lumber Company constructed a railroad running through the strip of land in dispute.

[00:33:31] Speaker 00:
So it was, I mean, there's no, this is, of course, it's a railway

[00:33:37] Speaker 00:
case.

[00:33:39] Speaker 00:
So I don't know that it matters that it's a railroad for lumber as opposed to a railroad for something else.

[00:33:47] Speaker 00:
I don't think there's any significance of that at all.

[00:33:52] Speaker 02:
Can I just ask you the same question I asked him?

[00:33:54] Speaker 02:
Does the record tell us or is it disputed who wrote these deeds?

[00:34:01] Speaker 00:
It's not clear, Your Honor, but I think some helpful points on that are that

[00:34:06] Speaker 00:
They're clearly not form deeds.

[00:34:10] Speaker 00:
Parties chose specific words and parties chose very, you know, some different words in some different respects.

[00:34:19] Speaker 00:
You know, and we actually think it would be quite helpful for the court to look at some of the deeds that we conceded conveyed an easement because parties certainly, and of course it is definitely the rule in Oregon that

[00:34:36] Speaker 00:
any ambiguity is construed against the grantor of the land.

[00:34:41] Speaker 02:
Well, that wasn't actually so clear to me.

[00:34:43] Speaker 02:
The language of grantor, I forget which case this comes from, is very specifically tied to the language of the drafter, because in the context that case was talking about it, there the grantor was the one who was reserving the easement.

[00:35:02] Speaker 02:
And I took that, just on the assumption,

[00:35:06] Speaker 02:
On the assumption that the principle is for deeds as for contracts and similar things, language is construed against the drafter, it conceivably could matter whether the railroad was the one drafting or not.

[00:35:24] Speaker 00:
No, Your Honor.

[00:35:25] Speaker 00:
If I may, the rule is clearly that the ambiguities are resolved against the grantor.

[00:35:34] Speaker 00:
First of all, this isn't a case where the plaintiffs have reserved easements.

[00:35:38] Speaker 00:
So I think there was an attempt to introduce some confusion, but this is, they are plainly the grantors.

[00:35:45] Speaker 00:
They weren't reserving anything.

[00:35:47] Speaker 00:
But even in that circumstance, and I think, you know, they were cited in one of the reply briefs, this Verziano v. Carpenter case for the proposition that the rule is different when you're talking about a reservation.

[00:36:01] Speaker 00:
But if I could point the court to Tipper-Mindy

[00:36:03] Speaker 00:
964 P2D 1015 1019 note 3, the Supreme Court of Oregon said that that court got the rule wrong and ultimately the rule is that the seller, the ambiguities reserved against the seller, regardless of whether they are reserving or granting, you know, they said the seller who reserves an easement is the grantor and ambiguities are resolved against

[00:36:33] Speaker 00:
them.

[00:36:34] Speaker 00:
But in this case, it's, you know, you don't even have that question.

[00:36:37] Speaker 00:
It's clearly the grantor.

[00:36:39] Speaker 00:
But again, if I may, Your Honor, these deeds and parties chose very different language.

[00:36:46] Speaker 00:
So for example, some of the deeds we conceded conveyed an easement, ham and lumber.

[00:36:52] Speaker 00:
This is that Appendix 1317 to 1323 grants, quote, an easement to it, a perpetual right of way for the purpose of building and thereafter maintaining and operating

[00:37:03] Speaker 00:
a railroad on.

[00:37:06] Speaker 00:
You know, Miami Lumber conveyed, quote, the right upon conditions here in express to enter upon such premises and to make the necessary survey and measurements.

[00:37:16] Speaker 00:
So parties chose very different terms.

[00:37:20] Speaker 00:
The parties, the plaintiffs, predecessors and interests before the court did not choose to limit their conveyances.

[00:37:28] Speaker 00:
And if I could just respond to one or two more points that plaintiffs made, first and foremost, there is no support in Oregon law, and Judge Toronto, this goes to your question.

[00:37:43] Speaker 00:
There is no implied limitation or any significance at all to the fact that the railroad surveyed and located its route prior to that.

[00:37:54] Speaker 00:
The Oregon courts analyze eminent domain cases and voluntary conveyance cases differently.

[00:38:02] Speaker 00:
This is clear from Bush in which set forth the applicable analysis that it is the intent with the presumption of a fee in the voluntary conveyance case.

[00:38:13] Speaker 00:
The Oregon Court of Appeals made this clear in EGOS v. Columbia County when it rejected the county's reliance on Bush because Bush's voluntary conveyance.

[00:38:24] Speaker 00:
So plaintiffs relied a lot on Oregon Railway.

[00:38:28] Speaker 00:
It's in opposite because it's also an eminent domain case.

[00:38:31] Speaker 00:
The analysis is different here.

[00:38:33] Speaker 02:
And there is... Can I ask one other question about, I guess, about Oregon law?

[00:38:40] Speaker 02:
Is the fact that Bush is an en banc decision relevant to whether to the, to how much to weigh it

[00:38:51] Speaker 02:
I don't remember seeing an argument in your brief or in any of the briefs about whether it matters that Bernard is a panel decision and Bush is an en banc decision.

[00:39:07] Speaker 00:
Well, we didn't make that point, but that is correct.

[00:39:10] Speaker 00:
It is an en banc decision.

[00:39:12] Speaker 00:
Bernard is not.

[00:39:14] Speaker 00:
So that is a distinction.

[00:39:17] Speaker 02:
Obviously, in our world, an en banc decision does have distinctive properties, but I guess I'm not being from Oregon or a student of Oregon law.

[00:39:29] Speaker 02:
I don't know if Oregon treats en banc decisions as having stronger

[00:39:36] Speaker 02:
a more precedential effect than non-en banc Oregon Supreme Court decisions.

[00:39:41] Speaker 02:
Do you know?

[00:39:42] Speaker 00:
I am not, I'm afraid I'm not sure of the answer to that question, Your Honor, but I do think, you know, you don't even, it doesn't even matter here because, you know, when you look, I mean, Bush and Bernard are very helpful cases.

[00:39:58] Speaker 00:
I mean, this court was in a much more difficult position in pre-sault because

[00:40:03] Speaker 00:
Vermont law, you know, the court acknowledged uncertainty because the cases were very old and not entirely clear and there was, you know, no mechanism to get an answer from the Vermont Supreme Court.

[00:40:15] Speaker 00:
But here you have two cases, two Oregon Supreme Court cases construing essentially opposite deeds.

[00:40:25] Speaker 00:
And respectfully, Your Honors, this is quite, it is not a close question.

[00:40:30] Speaker 00:
because the deeds before the court are analogous to the deed in Booth in all material respects.

[00:40:39] Speaker 00:
Judge Prost, to return to your point, you are correct that the Oregon Court of Appeals and Reveals Corporation attached no significance to a recitation of nominal consideration because it is not evidence that that was the actual consideration given.

[00:40:55] Speaker 00:
And as we have explained in our brief,

[00:40:59] Speaker 00:
That is the only respect that any of the deeds before the court today are similar to the Bernard's deeds, and that's not even true of all of them.

[00:41:10] Speaker 00:
But all of these deeds grant land.

[00:41:13] Speaker 00:
None of them contain a reverter.

[00:41:16] Speaker 00:
These are just on their face.

[00:41:19] Speaker 00:
These deeds convey the fee.

[00:41:22] Speaker 00:
And Judge Firestone went through them carefully and correctly.

[00:41:27] Speaker 00:
She correctly applied Oregon law, which looked to whether the intent to restrict the interest is in the words of the deed.

[00:41:35] Speaker 00:
There is no support, again, for this idea that a survey and location is significant.

[00:41:42] Speaker 00:
It occurred in Boosh and the court didn't even mention it.

[00:41:45] Speaker 00:
If it were significant, if that were, yes.

[00:41:50] Speaker 01:
I think you're beyond your time unless my colleagues have any further questions.

[00:41:55] Speaker 01:
I think we'll turn back to Mr. Stewart, but thank you.

[00:41:59] Speaker 01:
And Mr. Stewart, you were correct.

[00:42:02] Speaker 01:
There was something wrong with our tone here.

[00:42:06] Speaker 01:
So I think you exceeded your time, but certainly to even it out, we'll restore five minutes of rebuttal and patience if needed.

[00:42:13] Speaker 04:
Thank you, Your Honor.

[00:42:14] Speaker 04:
I want to start with the fact that throughout the government's 22 minutes or whatever it was,

[00:42:21] Speaker 04:
they still did not talk about the surrounding circumstances at the time of the execution of these deeds.

[00:42:27] Speaker 04:
And that is not only a part of Oregon's common law.

[00:42:33] Speaker 04:
It's actually statutory in Oregon, because section 42.220 specifically says that the circumstances under which a deed was made, including the situation of the subject and the parties, may be shown that the judge is placed in the position of those whose language the judge is interpreting.

[00:42:51] Speaker 04:
There was also some discussion about Bush and whether it was a railroad or a lumber company.

[00:43:00] Speaker 04:
The important distinction there is that the railroad in Bernard had the power of imminent domain and the lumber company in Bush did not, which by definition basically throws out the entire concept of compulsory consent.

[00:43:18] Speaker 04:
Furthermore, in Boosh, there's no question they used a very extensive meets and bounds description describing it with particularity.

[00:43:27] Speaker 04:
I won't go through all the quotes in preso two, but one of them is particularly significant, particularly since this was an en banc ruling of this court.

[00:43:38] Speaker 04:
And the court directly cited the Oregon Supreme Court's opinion in Bernards and preso two for the proposition that, quote,

[00:43:48] Speaker 04:
Practically without regard to the documentation and manner of acquisition, when a railroad for its purposes acquires an estate and land for laying track and operating railroad equipment thereon, the estate acquired is no more than that needed for the purposes.

[00:44:04] Speaker 04:
And that typically means an easement, not a fee simple estate," end quote.

[00:44:09] Speaker 04:
That is the purpose.

[00:44:11] Speaker 04:
of all of these deeds at issue because they were done pursuant to the eminent domain statute that the railroad had the benefit of.

[00:44:25] Speaker 04:
And what has happened over time, unfortunately, is many courts, particularly when examining deeds that are well over 100 years old, the courts tend to ignore or forget about these basic principles

[00:44:37] Speaker 04:
about reviewing the circumstances of parties at the time and the power of them in a domain, et cetera.

[00:44:43] Speaker 04:
But you can't really ignore them in Oregon because they are specifically adopted.

[00:44:48] Speaker 04:
And in turn, this court actually referred to them and adopted them in preso two.

[00:44:52] Speaker 04:
The fact of the matter is that although the government referred to the detail in which the CFC reviewed these deeds,

[00:45:03] Speaker 04:
The CSC made no effort whatsoever, as I mentioned before, to actually discuss or analyze the surrounding circumstances at the time.

[00:45:15] Speaker 04:
And it's pretty clear that the common law of Oregon clearly recognizes compulsory consent.

[00:45:22] Speaker 04:
I also want to talk just briefly about, in response to one of Judge Toronto's questions about the use and purpose in the language,

[00:45:30] Speaker 04:
Bush itself instructs the courts to specifically look for additional language relating to the use or purpose to which the land is to be put, or in any other way, cutting down or limiting directly or indirectly the estate conveyed.

[00:45:47] Speaker 04:
And in all of these deeds, frankly, the use and purpose is obvious and undeniable.

[00:45:54] Speaker 04:
When a railroad acquires a narrow strip to operate its rail line, frankly, what else is needed?

[00:46:00] Speaker 04:
What else is there?

[00:46:01] Speaker 04:
And that's exactly what this court said in preso two.

[00:46:06] Speaker 02:
And just remind me, why would that not have been equally true in Bush?

[00:46:14] Speaker 04:
It was true, Your Honor, except it wasn't a strip for a railroad company, it was a strip for a lumber company.

[00:46:21] Speaker 02:
I'm sorry, but it was a strip for a railroad, a rail line, let's call it, right?

[00:46:27] Speaker 04:
It was actually a strip that was already there, that was deeded to the lumber company who already owned the surrounding land.

[00:46:34] Speaker 02:
I'm sorry, I think I'm not hearing an answer to my question.

[00:46:38] Speaker 02:
Was that strip used and under the deed to be used

[00:46:44] Speaker 02:
for a rail line, no matter the legal identity of the company that was running that rail line?

[00:46:55] Speaker 04:
Yes.

[00:46:56] Speaker 04:
They transported their logs by rail.

[00:46:59] Speaker 04:
OK.

[00:47:00] Speaker 04:
Yeah.

[00:47:01] Speaker 04:
And they later then abandoned it and basically made a road out of it.

[00:47:05] Speaker 04:
And the other thing that I want to refer to is,

[00:47:12] Speaker 04:
the factors, and I went through them before, about all the deeds contain at least four, five, or six of the Bernard's factors, but inexplicably, the CFC first considered all of the factors in Bernard's in its preliminary ruling, and then when the final ruling was issued, the CFC completely disregarded three of the factors.

[00:47:34] Speaker 04:
And specifically, the CFC disregarded factors three, six, and eight, ostensibly because,

[00:47:40] Speaker 04:
virtually all of the disputed deeds, end quote, possessed them.

[00:47:46] Speaker 04:
And the CFC's decision to completely discard three of the eight factors listed by the Oregon Supreme Court as being essential to the inquiry as to whether the grantor conveyed an easement of fee is a monumental and fundamental error in and of itself, which when you combine it with the fact that there was no discussion about the surrounding circumstances at the time,

[00:48:08] Speaker 04:
or the use and purpose that these deeds were going to be put to is significant error.

[00:48:16] Speaker 04:
And then finally, not only, I'm sorry?

[00:48:19] Speaker 01:
If you have one final point, I think I heard the bell go off.

[00:48:22] Speaker 01:
I'm not positive, but I think that's on his run.

[00:48:25] Speaker 01:
So make your final point.

[00:48:26] Speaker 04:
I'll just make one last point, Your Honor, very briefly.

[00:48:28] Speaker 04:
And that is, not only is the CSC's decision to completely disregard three of the eight factors listed by the Oregon Supreme Court

[00:48:36] Speaker 04:
as being essential to the inquiry, a monumental and fundamental error in our opinion.

[00:48:41] Speaker 04:
The CFC's decision is inconsistent and contrary to Oregon law and contradicts the CFC's earlier decision in Boyer.

[00:48:49] Speaker 04:
And although we recognize that the CFC's ruling in Boyer is not precedent for this court, there is no question but that the rulings are inconsistent.

[00:48:59] Speaker 04:
And in this case, it actually results in a manifest injustice has occurred where

[00:49:05] Speaker 04:
Landowners in this case would have prevailed based on the CFC's prior ruling in Boyer, and the landowners in Boyer would have lost under this analysis just a couple of years later.

[00:49:15] Speaker 04:
Thank you.

[00:49:18] Speaker 04:
With that, I appreciate it.

[00:49:19] Speaker 04:
Thank you, Your Honor.

[00:49:20] Speaker 01:
Thank you.

[00:49:21] Speaker 01:
We thank both sides, and the case is submitted.