[00:00:34] Speaker 04:
Ms.

[00:01:00] Speaker 04:
Largent?

[00:01:01] Speaker 05:
Good morning, Your Honor.

[00:01:03] Speaker 05:
May it please the court.

[00:01:04] Speaker 05:
I'm Megan Largent with the law firm Lewis Rice, and I'm here today on behalf of all 22 appellants in this case.

[00:01:11] Speaker 05:
These appellants all own property in Miami, Florida, just south of the Miami airport.

[00:01:16] Speaker 05:
13 of these landowners own lots in a neighborhood called Princess Park Manor.

[00:01:21] Speaker 05:
Nine own lots in a neighborhood directly south called Xena Gardens.

[00:01:25] Speaker 05:
All of these owners' lots back up to the abandoned Florida East Coast railway right of way.

[00:01:32] Speaker 05:
The east side of the easement runs along the west side of their property.

[00:01:36] Speaker 05:
None of these owners own on the west side of the Florida East Coast right-of-way.

[00:01:41] Speaker 05:
The portion of the right-of-way was created by a series of condemnation orders against then owners of the property at the time the railroad was created.

[00:01:51] Speaker 05:
That fact is not disputed in the court below.

[00:01:54] Speaker 05:
on summary judgment.

[00:01:55] Speaker 05:
The government agreed that the railroad held only an easement for railroad purposes in these portions, in this portion of the Florida East Coast Railroad right-of-way.

[00:02:04] Speaker 04:
Let me ask you to clarify some, what I understand is some facts, okay?

[00:02:12] Speaker 04:
Am I correct that the Princess Park Manor Platt provided only that the railway right-of-way and not the land underlying the right-of-way was to be excluded from the subdivision?

[00:02:24] Speaker 05:
So the Princess Park Manor Platt stated in the legal description in one place that it was less the Florida East Coast Railway right of way, and in another section of Princess Park, the southern block, that it was east of the Florida East Coast Railway right of way.

[00:02:41] Speaker 05:
Florida law directly on points states that that language in the legal description when referencing an easement does not operate to exclude the underlying fee from the land being conveyed.

[00:02:54] Speaker 05:
Rather, in Dean versus M.O.D., the Florida court said that language indicates

[00:02:59] Speaker 05:
that that land is subject to a superior right of an easement holder.

[00:03:03] Speaker 05:
And that is absolutely true here.

[00:03:05] Speaker 05:
The Florida East Coast Railroad right of way.

[00:03:07] Speaker 04:
Hang on.

[00:03:07] Speaker 04:
I have another question for you.

[00:03:08] Speaker 04:
And that's about Zena Gardens.

[00:03:10] Speaker 04:
I want to clarify these.

[00:03:14] Speaker 04:
The Zena Gardens plant accepted a strip of land from the subdivision.

[00:03:20] Speaker 04:
But it seems to me it explicitly provided that the strip of land it accepted is the right of way.

[00:03:28] Speaker 05:
Absolutely, Your Honor.

[00:03:30] Speaker 05:
I believe it said exactly that it is accepting a strip of land off the westerly side, which is the right of way of the Florida East Coast Railroad.

[00:03:41] Speaker 05:
Again, the Dean versus MoD case, the Florida court had the language less and accept in front of it and found that insufficient to show that the grantor had withheld the underlying fee.

[00:03:53] Speaker 05:
Rather, that language, again, put the grantee on notice that there were superior rights in that land.

[00:03:59] Speaker 05:
I would also note to the court that both plaques, which are in the record, maintain the exact dimensions of the condemnation orders dating back to the original owners, Russo, Johnson, Piles, and Owens,

[00:04:10] Speaker 05:
who are listed in the court below.

[00:04:12] Speaker 05:
The Court of Federal Claims held that this accept, east of, unless the railroad right-of-way operated two ways, to both or either withhold conveyance of the underlying V.S.

[00:04:25] Speaker 05:
state or to explicitly reserve the reversionary interest in the grand tour.

[00:04:34] Speaker 03:
correct the following view of what has happened in this case.

[00:04:40] Speaker 03:
Initially, pre-reconsideration, what the CFC held, as I understand it, and what the government argued was that the 1947 Platt on the Zena side and the November 1949 Platt on the Princess side

[00:05:03] Speaker 03:
did not grant, by reserving or otherwise, the under-the-corridor estate.

[00:05:15] Speaker 03:
On reconsideration, as a result partly of evidence you submitted, the government argued, and this is now its overwhelmingly prior primary argument,

[00:05:29] Speaker 03:
that is something quite different, which is not what happened in 1947 Platt and the November 1949 Platt, but rather that the Mervitzers and Mosses at that time simply never owned the land under the railway corridor.

[00:05:49] Speaker 03:
Am I understanding correctly that

[00:05:55] Speaker 03:
Essentially, the ground on which the government now says there's no takings has shifted.

[00:06:01] Speaker 03:
They do have like three pages at the end of their brief making the argument that the CFC adopted in the opening opinion.

[00:06:10] Speaker 03:
Have I misunderstood what has happened?

[00:06:13] Speaker 05:
No, Your Honor.

[00:06:14] Speaker 05:
I think you correctly understand what the government's arguing and what the CFC held.

[00:06:18] Speaker 05:
We did introduce chains of title on reconsideration.

[00:06:21] Speaker 05:
The Court of Federal Claims explicitly said, I'm not going to consider those chains of title in my reconsideration.

[00:06:28] Speaker 05:
And then it did.

[00:06:29] Speaker 05:
And found without any support, and again, for the key holdings that the Court of Federal Claims bases both its opinion on summary judgment and its motion for reconsideration opinion on, there is no Florida case law cited supporting

[00:06:42] Speaker 05:
those opinions, that those holdings, those fundamental holdings, that this fee conveyance, or this fee property was not owned by the Mosses and Merowitzers.

[00:06:50] Speaker 04:
Well, we don't know that.

[00:06:51] Speaker 04:
I'm going to give the government a chance to cite some.

[00:06:54] Speaker 05:
And Your Honor, I would note that there is none cited in the brief.

[00:06:57] Speaker 05:
The parties here cite the same cases.

[00:07:01] Speaker 01:
We rely on... But just so I understand your theory of the case, if it is, just accept the hypothetical

[00:07:10] Speaker 01:
Marowitzers and the Mosses were never conveyed the corridor amount of property.

[00:07:21] Speaker 01:
Then, do you still have the theory for how you can prevail?

[00:07:26] Speaker 05:
Well, Your Honor, we wouldn't concede they were never conveyed the corridor.

[00:07:29] Speaker 05:
And in fact, Florida law presumes that they in fact did own it absent a rebuttal of clear evidence of clear intent otherwise.

[00:07:38] Speaker 01:
Let's assume for the moment that, you know, the court reads the deeds of granting the properties to the Merowitzers and the Mosses in the same way the claims court appeared to, which is to say that

[00:07:55] Speaker 01:
There was a conveyance of property to each of those parties, but none of the land underneath the railroad corridor was part of the conveyance in those deeds.

[00:08:08] Speaker 01:
Is there still a theory that you have for why you would believe that your clients are entitled to the centerline presumption out to halfway through the corridor?

[00:08:21] Speaker 05:
accepting the court's hypothetical that it is proven that there was no interest in the fee estate underlying the railroad corridor, then no, because under the Emerald Equities case in Florida, the entire point of the centerline presumption is to get back that this was originally carved out of someone's property.

[00:08:37] Speaker 05:
We're going to assume it was evenly carved out of the owners on either side, absent proof to the contrary.

[00:08:44] Speaker 01:
If we were to conclude that it's your burden to establish that somebody owned that title, whether it was the Marowitzers or the Mosses or the people that granted or conveyed those properties to the Marowitzers and Mosses.

[00:09:04] Speaker 01:
And it's your burden to establish at some point in time to chain the title, there were owners that

[00:09:11] Speaker 01:
owned not only these particular flats, but all the way out into halfway into the corridor.

[00:09:18] Speaker 01:
What would you point to that could show us that, in fact, the Merowitzers and Mosses or the previous owners, in fact, owned the land out to the central line of the corridor?

[00:09:34] Speaker 05:
Your Honor, if you were to conclude that, contrary to Florida law, we did in fact have a burden to prove all the way back to the original owner, the chain of title on reconsideration does in fact for Zena Gardens go back to the Russos, the original owner.

[00:09:45] Speaker 05:
That's how we would prove that we have an interest in that land because in fact their chain of title does relate back to the original owner.

[00:09:52] Speaker 05:
We don't have a chain of title on all of these properties.

[00:09:54] Speaker 05:
If this court were to conclude that we had that burden and didn't accept that under Florida law, which does apply here, that we do not have that burden, that we have met that burden by the presumption, because we enjoy a presumption under Florida law, we would ask for the opportunity to go and do the title work to trace them all the way back to the beginning.

[00:10:11] Speaker 05:
I think that contravenes Jacksonville.

[00:10:13] Speaker 04:
But under Florida law, you can't have a race know us, something that's not owned by anyone.

[00:10:21] Speaker 05:
Exactly.

[00:10:22] Speaker 05:
Your honor, that's the Strips and Gores doctrine, which this court did previously certify a question to the Florida Supreme Court.

[00:10:28] Speaker 05:
Different facts in that case, but the issue of the Strips and Gores doctrine, of course the Strips and Gores doctrine is the presumption we don't want to have uneconomic remnants of property.

[00:10:37] Speaker 01:
But what if it's just not clear on this record?

[00:10:41] Speaker 01:
who actually is the owner of the property that makes up the railroad corridor.

[00:10:49] Speaker 01:
Maybe it's just on this record it's not clear whether

[00:10:54] Speaker 01:
that it's the railroad company.

[00:10:56] Speaker 01:
I know there's this 1937 deed lurking in the record, but let's say that that's unreadable.

[00:11:03] Speaker 01:
But there's also, likewise, nothing that ever suggests that at least half of that railroad corridor was ever connected to these other properties that were, once upon a time, owned by the mayoral officers and mosses.

[00:11:15] Speaker 01:
So yes, even though there is a strong principle in not reading

[00:11:23] Speaker 01:
certain lands to just be not owned by anybody, maybe just for purposes of this case, right now we don't have anything that can convince us one way or another that it's unowned or it's owned by a particular party.

[00:11:38] Speaker 01:
Then what do we do?

[00:11:39] Speaker 05:
Well, Your Honor, I do believe that if that is the case, then absolutely the court's summary judgment opinion cannot stand, because what the court summary judgment opinion found was that the government had affirmatively rebutted the presumption that our owners were entitled to the presumption that they own the land underneath the condemned portion of the right-of-way.

[00:11:58] Speaker 05:
Thereby saying that there's no way our owners could own it and ending their Fifth Amendment claims for compensation.

[00:12:04] Speaker 05:
If the court believes it's unclear and that we don't enjoy that presumption, then remand would be possible to further develop the factual record.

[00:12:14] Speaker 05:
We could pull chains of title for everyone.

[00:12:16] Speaker 05:
Again, though, I would point to Florida courts explicitly in Jacksonville said the very point of the presumption is so that in every case we don't have to derail or prove title back to the original owner.

[00:12:25] Speaker 05:
We certainly could do that, though.

[00:12:33] Speaker 05:
Your honors, I would point to the fact that, again, in the Court of Federal Claims opinion, on the key holdings that it bases its opinion on, there is not one single Florida case cited to support the holding that the language except, less than, and east of the Florida East Coast Railroad Radaway would operate either to reserve any interest in the grantor or to indicate that that fee of state was not conveyed in the grant.

[00:13:00] Speaker 04:
And in fact... I don't know why you complain.

[00:13:01] Speaker 04:
There are a lot of other citations.

[00:13:03] Speaker 05:
there are several citations there are to be sure the court's like a lot but there's not in the key holdings of the case i would also point to the bishop the walker case your honor and that simply that your honors that simply says in a case that says east of a canal at the centerline presumption applies and that that language east of

[00:13:24] Speaker 05:
indicates that the land goes to the center line, not just at the edge of the right of way.

[00:13:29] Speaker 03:
I've gone into my rebuttal.

[00:13:30] Speaker 03:
Do any of the documents in this case, either the plat documents or any of the chain of title documents, use language that refer to, say, east of the eastern border of the corridor, something that refers to the one-dimensional edge of the corridor?

[00:13:52] Speaker 05:
No.

[00:13:52] Speaker 05:
In fact, the portion in Princess Park that says that just says east of the Florida East Coast right of way.

[00:13:57] Speaker 05:
Your Honor, I've gone into my rebuttal time and I'll reserve the remainder.

[00:14:00] Speaker 04:
You may.

[00:14:01] Speaker 04:
Thank you.

[00:14:05] Speaker 04:
Let's hear from the United States.

[00:14:08] Speaker 00:
Good morning.

[00:14:08] Speaker 00:
Kevin Depardle on behalf of the United States and may it please the Court.

[00:14:13] Speaker 00:
The first and dispositive question here is whether the Murwitters or the Mosses owned any portion of the rail corridor.

[00:14:19] Speaker 04:
Well, before you get going,

[00:14:21] Speaker 04:
I want to give you the opportunity to give us those Florida case sites.

[00:14:27] Speaker 04:
On page one of the gray brief, the landowners say, if the government's arguments were correct, one would expect it to cite at least one Florida case in which the owners, and by the way, the district or the court law, in which the owners of parcels unbudding and abandoned right away were denied ownership of the underlying land.

[00:14:47] Speaker 04:
because somewhere in their chain of title there were documents or records describing earlier conveniences made, quote, subject to less or accepting, close quote, the right way.

[00:14:59] Speaker 04:
But it does not because no such case exists.

[00:15:02] Speaker 04:
So can the government give us such a case?

[00:15:04] Speaker 00:
Well, and then the plaintiffs proceed to cite a list of cases in which ownership of the feet of the railroad wasn't disputed.

[00:15:11] Speaker 00:
So the question is, is there a case under Florida law that says one way or the other what a subdivision owner has to say in his plat to indicate that he doesn't own a particular strip of land?

[00:15:23] Speaker 00:
And the answer is no.

[00:15:25] Speaker 00:
So common sense principles apply, plain language applies.

[00:15:28] Speaker 00:
Let's take the Zena Garden Platts.

[00:15:29] Speaker 00:
And let's keep in mind, too, it's important to keep in mind, it's summary judgment.

[00:15:33] Speaker 00:
The only evidence that the court had

[00:15:35] Speaker 00:
about the extent of the Merwitzers and Moss's land ownership were the plots that the government introduced.

[00:15:41] Speaker 00:
The plaintiffs didn't produce any evidence on that critical question.

[00:15:44] Speaker 00:
And the Zena Gardens plot is clear, as Your Honor noted.

[00:15:47] Speaker 00:
It says that the Merwitzers owned a very specific parcel of land, excepting they're from a strip of land on which the right of way is located.

[00:15:57] Speaker 03:
Is that the one that says strip of land?

[00:15:58] Speaker 00:
That's the one?

[00:16:00] Speaker 00:
Yes, sorry, Your Honor.

[00:16:01] Speaker 03:
Which is the right of way?

[00:16:03] Speaker 00:
Yes, but they...

[00:16:05] Speaker 03:
against a whole bunch of Florida cases.

[00:16:10] Speaker 03:
And my pretty strong impression, correct me if I'm wrong, is that that's the kind of language that would be pretty sensibly interpreted to refer to that interest which the railroad had, which was indisputably only an easement.

[00:16:24] Speaker 00:
I would say that's not accurate, Your Honor, because let's take the case of Dean-Mod properties.

[00:16:28] Speaker 00:
The language there, when it was a conveyance, not a description of ownership, the conveyance said less than accept and easement.

[00:16:35] Speaker 00:
This doesn't say less than acceptance.

[00:16:37] Speaker 03:
Oh, so there are, of course, there are clearer ways to say it, but the question is what do you do with a language that says, except a strip of land, which is a right of way, and it's undisputed what the limited interest the railroad had, which was not an estate interest in the ground.

[00:16:55] Speaker 00:
Well, it's only undisputed as of 1924.

[00:16:59] Speaker 00:
We, we stipulated that the 19th.

[00:17:01] Speaker 03:
I'm sorry, but see, now it seems to me we're shifting grounds again.

[00:17:05] Speaker 03:
I thought we were just talking about the ground that the CFC relied on in its initial opinion, which is what does the plat say about what's being given?

[00:17:17] Speaker 03:
And then there's now, and you get to that argument for the last few pages of your brief, you now have

[00:17:23] Speaker 03:
The argument that I think was developed only on reconsideration, which is by the time the plat was written, the plats 47 and November 49 these people didn't own this at all.

[00:17:35] Speaker 00:
Well, yeah.

[00:17:35] Speaker 03:
How do you make that argument.

[00:17:37] Speaker 03:
while simultaneously saying that the material submitted on reconsideration should not be considered.

[00:17:43] Speaker 00:
Because the Platte tells us what the Murwitzers and the Mosses owned at the time they platted the subdivisions.

[00:17:48] Speaker 00:
And both the narrative in the Platte and the other markings in the Platte indicate that they did not own the rail corridor.

[00:17:55] Speaker 00:
That is why they didn't include it in the Platte.

[00:17:57] Speaker 00:
Everyone here agrees that the platted subdivisions don't include the rail corridor.

[00:18:02] Speaker 00:
Why?

[00:18:02] Speaker 00:
Because they didn't own it.

[00:18:03] Speaker 00:
The Platte's include a reservation and dedication as to...

[00:18:07] Speaker 04:
Everyone agrees.

[00:18:09] Speaker 00:
Everyone agrees that the rail corridor was not a part of the plaque.

[00:18:14] Speaker 00:
The easement.

[00:18:16] Speaker 00:
The rail corridor.

[00:18:18] Speaker 00:
The rail corridor.

[00:18:19] Speaker 00:
The judge's reconsideration order at 61 and 62 citing the plaintiff's arguments.

[00:18:23] Speaker 00:
They submitted multiple declarations to make the point.

[00:18:27] Speaker 00:
that the rail corridor is not part of the platted lands.

[00:18:30] Speaker 00:
Why?

[00:18:31] Speaker 00:
Because the grantors didn't own it, and were in no position to plot it.

[00:18:35] Speaker 00:
And that's confirmed by the boundary of the subdivision, which is unequivocally at the edge of the rail corridor, by the narrative description, which excludes the strip of land in the rail corridor.

[00:18:47] Speaker 00:
And I think, Your Honor, the language difference is critical.

[00:18:49] Speaker 04:
I'm going to ask your opposing council, because they're someone, too, if they agree

[00:18:57] Speaker 04:
with their proposition that there is no interest in real property in that land underlying the real corridor?

[00:19:08] Speaker 00:
Well, I would direct the Court to, regardless of what's said, to page 61 and 62 of the reconsideration order, quoting from the declarations that the plaintiffs submitted, where the declarants say, of course this corridor is not part of the platted lands.

[00:19:23] Speaker 00:
So that's an undisputed proposition.

[00:19:25] Speaker 03:
Does the Court of Federal Claims original opinion say that the Merwitzers and Mosses did not own the land under the railroad corridor at the time of their platting?

[00:19:38] Speaker 00:
Your Honor, the court briefly noted that the plaintiffs had simply assumed that they owned it and presented no supporting evidence and then proceeded to address the second and separate question of whether the corridor was included in the conveyance.

[00:19:51] Speaker 00:
So Your Honor is correct.

[00:19:53] Speaker 00:
The court did not hold

[00:19:54] Speaker 00:
explicitly, other than that notation I just said, did not base her holding on the lack of ownership in the first instance.

[00:20:02] Speaker 00:
But we made that point in our initial summary judgment brief, albeit briefly, and you can infer them on any basis that's supported by the record.

[00:20:11] Speaker 00:
And no one has argued that we forfeited that argument.

[00:20:13] Speaker 00:
So in fact, the forfeiture argument is forfeited.

[00:20:16] Speaker 00:
So that issue is precisely before the court, and it's dispositive.

[00:20:19] Speaker 00:
And it's dispositive based on the evidence that was before the court at summary judgment, which is the two plaques.

[00:20:27] Speaker 00:
In the Xena Gardens, the narrative excluding the strip of land, the plain meaning of that.

[00:20:31] Speaker 03:
I'm sorry, just so that this stuff is all clearer in your head than mine.

[00:20:37] Speaker 03:
When you say excluding the strip of land, the longer phrase is excluding the strip of land, which is the right of way.

[00:20:44] Speaker 00:
Correct.

[00:20:45] Speaker 00:
But what we're saying is that... As you can tell, that seems pretty significant.

[00:20:48] Speaker 00:
That's troubling you, but I would say it's even more significant that they specified the strip of land.

[00:20:54] Speaker 00:
Every word has to be given meaning.

[00:20:56] Speaker 00:
They didn't just say, and here's a good counterpoint.

[00:20:58] Speaker 00:
How would you know?

[00:21:01] Speaker 04:
How would one know unless it said this piece of land has the right of way on it?

[00:21:09] Speaker 00:
How would one know what land they were referring to?

[00:21:11] Speaker 04:
Yeah.

[00:21:11] Speaker 00:
Right.

[00:21:12] Speaker 00:
So that inclusion of the right of way is to clarify that what we talk, the strip of land that's excluded from our ownership.

[00:21:18] Speaker 00:
No.

[00:21:19] Speaker 04:
No, you're turning it on its head.

[00:21:21] Speaker 04:
That's the whole point of reversionary interest when one obtains an easement.

[00:21:32] Speaker 04:
I mean, your whole argument is,

[00:21:39] Speaker 04:
that A grants an easement to a railroad on property they own.

[00:21:48] Speaker 04:
And then they convey the property, but let's say they don't say anything about that easement.

[00:21:54] Speaker 04:
That's one situation.

[00:21:57] Speaker 04:
Secondarily, they say, hey, we're conveying you this property, but we don't want to be sued.

[00:22:02] Speaker 04:
So we need to tell you that there's an easement over this property.

[00:22:07] Speaker 04:
That seems to me.

[00:22:09] Speaker 04:
to be where they're going with that language.

[00:22:12] Speaker 04:
But in any case, supposing they do nothing with that, they just say, we're conveying this piece of land, less the easement property.

[00:22:23] Speaker 04:
But by the way, as a matter of law, you know and we know that if the easement goes away, you have a reversionary interest.

[00:22:33] Speaker 00:
Well, Your Honor, but they didn't say that.

[00:22:35] Speaker 00:
And I would say that Dean... The law is the law.

[00:22:38] Speaker 00:
Right, but there's nothing in Florida law that says, if I describe my ownership as excluding a strip of land, it means that I own the strip of land.

[00:22:45] Speaker 00:
What else could they have possibly said to indicate that they didn't own the strip of land that was excluded from the description of the land that they owned?

[00:22:53] Speaker 00:
And it's important to contrast that with Dean.

[00:22:57] Speaker 03:
You know what they could have said.

[00:22:59] Speaker 03:
For one thing, they could have skipped the which is the right of way.

[00:23:02] Speaker 03:
For another thing, they could have done meets and bounds language.

[00:23:06] Speaker 03:
For another thing, they could have said the eastern border of the corridor is the western border of the land that we are conveying.

[00:23:17] Speaker 03:
My understanding from the treatises and the cases that I've looked at is that how you describe things makes a big difference.

[00:23:26] Speaker 03:
And this is essentially a monument case where the boundary is a two-dimensional figure referred to as such for which there's a default rule about what you do when you need to translate into a one-dimensional boundary a two-dimensional monument boundary.

[00:23:46] Speaker 00:
Well, I would point the court to the Princess Park Plan as a counterpoint.

[00:23:51] Speaker 00:
Because there, when the landowners

[00:23:53] Speaker 00:
wanted to indicate that they owned land subject to an easement, they did that.

[00:23:58] Speaker 00:
On the northern boundary of that plat is a 37-foot easement for drainage purposes, and the Mozzies made that clear on the plat.

[00:24:07] Speaker 00:
But they didn't use the same language to describe the railcarter.

[00:24:11] Speaker 00:
They said three different ways in the narrative that they didn't own the railcarter, that they owned the land east of the railcarter.

[00:24:19] Speaker 00:
And they had a boundary line very straight along the side that says east right of way of the rail line, which was the boundary of the subdivision.

[00:24:28] Speaker 00:
And as I said before, everyone agrees that the rail corridor, you'll find out, I guess.

[00:24:34] Speaker 00:
But if you look at what they filed on reconsideration, everyone agrees that the rail corridor was not part of the plaque.

[00:24:40] Speaker 03:
Can I ask you a question about what you have a description

[00:24:46] Speaker 03:
which I think, of the Florida cases, which I think says that the two cases, right, Smith versus, you say the Smith versus Horn and the Jacksonville case are gonna have two different rules.

[00:25:04] Speaker 03:
And I don't really understand that.

[00:25:06] Speaker 03:
I guess I would have thought that they both articulate exactly the same rule, which is that when you have a land grant

[00:25:16] Speaker 03:
with a boundary stated in terms of a waterway or a road, and let's assume for current purposes it includes a railroad corridor, then there's a presumption that can be overcome about where the one-dimensional boundary is.

[00:25:39] Speaker 03:
And I don't understand why you think there's any daylight between those two cases.

[00:25:45] Speaker 00:
Well, there's a really big difference, actually, Your Honor.

[00:25:48] Speaker 00:
The first is not the Jacksonville expression.

[00:25:51] Speaker 00:
It's simply a presumption of ownership.

[00:25:53] Speaker 00:
You're presumed to own the middle of a roadway simply by virtue of owning an adjacent lot.

[00:26:00] Speaker 03:
The second... If the boundary is one of these natural things.

[00:26:04] Speaker 00:
Correct.

[00:26:05] Speaker 00:
The second version in Smith, in Southern Railway, Kobe Brown, in Rogers, and other cases, it's a rule for construing a conveyance.

[00:26:14] Speaker 00:
It's not a presumption of ownership.

[00:26:16] Speaker 00:
It's a rule for reading a deed.

[00:26:18] Speaker 00:
And it only applies if the grantor who executed the deed actually had a property interest in the railway in the first place.

[00:26:27] Speaker 02:
But I don't see why Jacksonville is any different from that.

[00:26:30] Speaker 00:
Because that's a presumption of ownership.

[00:26:33] Speaker 00:
And the second version is a rule for construing a conveyance that only applies if it's first established that the grantor had something to convey.

[00:26:40] Speaker 03:
But the established, Smith does not say if it's established.

[00:26:44] Speaker 03:
Smith does it?

[00:26:45] Speaker 03:
It just says, obviously you can't give away what you don't own.

[00:26:49] Speaker 03:
So the rule applies only if you don't own it.

[00:26:51] Speaker 03:
It doesn't say anything about who has the burden of establishing one way or the other.

[00:26:56] Speaker 03:
And I would have thought,

[00:26:57] Speaker 03:
that in a deed like the kind of thing that's in Smith, if you want to know who owns it, you then trace back in history to the transactions that either did or did not give it to the later grantor.

[00:27:13] Speaker 03:
But in this situation, those documents themselves are subject to the very same rule because they have boundaries, monument boundaries.

[00:27:25] Speaker 03:
So I just don't see what the daylight is between these two things.

[00:27:28] Speaker 00:
Well, the Smith version makes clear, it sets off by a comma, that the presumption is one for construing a conveyance that applies if the grantor owns that bar.

[00:27:39] Speaker 00:
It's not part of the presumption.

[00:27:41] Speaker 00:
So then it should be, just as the Colorado Supreme Court said in Asmussen, that it's the plaintiff's burden.

[00:27:47] Speaker 00:
Since it's not part of the presumption, it's the plaintiff's burden.

[00:27:50] Speaker 03:
But the plaintiff says, how do we know they

[00:27:52] Speaker 03:
they own these things.

[00:27:54] Speaker 03:
If somebody is questioning it, go back to where the ownership came from, and those are subject to the very same rule.

[00:28:03] Speaker 00:
Correct.

[00:28:03] Speaker 03:
Which then puts you, the challenger, in the position of having to overcome the presumption as to those transfers.

[00:28:10] Speaker 00:
That's correct, but you first have to produce the change of title dating back to the original Grantor of Deisman.

[00:28:16] Speaker 04:
Are you wandering into the first year law students' netherworld of future interest?

[00:28:23] Speaker 00:
I don't think so, Your Honor.

[00:28:24] Speaker 00:
Is the railroad a usufruct?

[00:28:27] Speaker 00:
Excuse me?

[00:28:29] Speaker 00:
Yeah, I don't...

[00:28:31] Speaker 00:
I do want to make one more point on the second issue, separate from the ownership issue, whether the Merwitzes and Mosses intended to convey.

[00:28:40] Speaker 00:
We pointed out that they did not intend to convey precisely because they excluded the rail carter from the plat.

[00:28:46] Speaker 00:
So it makes no sense to say that someone who buys a lot by reference to the plat obtains a property interest in a rail carter that's not even in the plat.

[00:28:55] Speaker 00:
That defeats the whole purpose of demarketing the boundary of the plat.

[00:28:58] Speaker 00:
And lastly,

[00:29:00] Speaker 00:
Florida Supreme Court v. Brown includes a note at the end setting out the parameters of the centerline rule.

[00:29:05] Speaker 00:
That's the first case that I'm aware of the Florida side of that and I'll finish this up.

[00:29:12] Speaker 00:
Florida Southern Railway code v. Brown.

[00:29:14] Speaker 00:
And it says, when the land is described as being bounded by the sideline of the street, it is so bounded and not by the center line.

[00:29:24] Speaker 00:
That's exactly what we have on the Platts here.

[00:29:26] Speaker 00:
The Platts are bounded by the sideline of the railcarter, not by the center line.

[00:29:31] Speaker 00:
So the center line presumption is rebutted.

[00:29:35] Speaker 05:
I would like to first address the government's assertion that everyone here agrees that the railroad was not part of the plot.

[00:29:57] Speaker 05:
The appellants in no way agree that the railroad was not part of the plot.

[00:30:01] Speaker 05:
First and most obvious, the railroad is on the plot.

[00:30:04] Speaker 05:
The railroad itself is pictured on the plot in actually very specific dimensions, including those exact dimensions of the condemnation orders are on the plot.

[00:30:11] Speaker 03:
Mr. McArdle's, I think, said that briefly, at least in the government's summary judgment motion, the government did assert that

[00:30:26] Speaker 03:
the Merwitzers and Mosses in 47 and November 49 did not own any part of the rail corridor.

[00:30:38] Speaker 03:
First, is that true?

[00:30:38] Speaker 03:
And if so, what did you say in response to that?

[00:30:42] Speaker 03:
Not what do you say, but it do say.

[00:30:45] Speaker 05:
Your Honors.

[00:30:47] Speaker 05:
I would have to go back and look at the briefing, but we always maintained that they owned it because they were the predecessors and interest to the original condom needs in that case.

[00:30:59] Speaker 05:
the the language I believe the government's always agreed on is this accept less than and east of the right of way and they've always asserted that that took that without any support that that removed the underlying fee from the conveyance.

[00:31:13] Speaker 03:
And your view is that unlike the is to disagree with the very last thing I think Mr. McArdle said which is that this is a case in which the thing that is being identified in the relevant document is a line rather than

[00:31:29] Speaker 03:
a two-dimensional object like the rail.

[00:31:33] Speaker 03:
He had the eastern boundary of or something like that.

[00:31:37] Speaker 05:
I disagree with that, Your Honor.

[00:31:38] Speaker 05:
I think the language is clear that they're talking about a right of way here, an actual right of passage for the railroad over the land.

[00:31:46] Speaker 05:
And the last thing I'd like to address is the government contrast this with the language used to accept the canal or to make it subject to the canal in Princess Park.

[00:31:53] Speaker 05:
There's a very good explanation why you would use different language for a drainage easement than a railroad easement.

[00:31:59] Speaker 05:
The U.S.

[00:31:59] Speaker 05:
Supreme Court has been clear in Western Telegraph versus Pennsylvania Railroad, railroad easements are exclusive.

[00:32:04] Speaker 05:
The public, unlike the streets, the alleys, the canal, the drainage... You're out of time, counsel, so wrap it up.

[00:32:09] Speaker 05:
Your Honor, the public, no one except the railroad can use the easement, which is very different from the other types of easements in these plots where the owner did have some use of those rights of way.

[00:32:19] Speaker 05:
Your honor, I would just in conclusion say that on this record, the government has not produced any evidence to rebut the clear presumption in Florida law that these owners own the land underneath those condemned portions of the right of way.

[00:32:31] Speaker 05:
And we ask that this court reverse the CFC's opinion and remand this for future proceedings to determine just compensation.

[00:32:38] Speaker 05:
Thank you.

[00:32:39] Speaker 04:
Thank you, counsel.