[00:00:02] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

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Thank you.

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Good morning, everyone.

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The first argued case is number 19, 1793, Hardy against the United States.

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Ms.

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Kranz, proceed.

[00:00:24] Speaker 04:
Good morning, and may it please the court.

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My name is Erica Kranz for the United States.

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Now, to prevail in this Fifth Amendment-taking claim, plaintiffs must establish that they hold an interest in the rail corridor that has been converted to trail use.

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In other words, that the railroad acquired only an easement for its corridor, rather than a fee interest, and that plaintiffs, and not someone else, would gain unencumbered fee when the railroad's easement terminated.

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Because the plaintiffs, or sorry, because the parties to the original transfers at issue here made deeds

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the court looks to the words in those deeds to determine their meaning, applying Georgia law.

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Now, we ask the court to reverse the CSC's decision because the court erred in three respects.

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First, because all of the rail corridor deeds that issue in this appeal purport to convey land and they contain no express or even implied limitation on the estate conveyed, those deeds convey the title to the railroads.

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Ms.

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Krantz, this is Judge Laurie, as you probably can figure out.

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These documents

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described a right-of-way of a strip of road.

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And Georgia law indicates that a right-of-way is generally an easement, not a grant of fee simple.

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So there's an important difference between the grant of, quote, a right-of-way and the grant of, quote, a strip of land or land for a right-of-way.

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The Valdosta case is very helpful because it really lays this out and it talks about the wide distinction between these two different senses of the phrase right of way.

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But the problem is that the Court of Federal Claims drew those distinctions very carefully among the various landholders of the various plaintiffs in this class action.

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And yet you're asking us, I gather from your brief

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just for a mass reversal for everything along the corridor or the corridor by the milepost you designated?

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We're asking for a reversal as to basically a set of deeds that all contain the same operative language that does not, as the CFC found, convey an Ethan, it conveys C. The Court of Federal Claims, as a preliminary matter, did not recognize

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the principle in Georgia law that a deed conveys fee, properly executed deed conveys fee, unless it contains an express limitation of the estate conveyed.

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That is a... I don't think that's quite accurate.

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Georgia law, at least as already in the briefs, looks to see the intention of the parties from the transfer.

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Yes, of course it does.

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But the starting place is that

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You are presumed to have the, unless the intention of the parties can be discerned, such that they intended to convey less than C. And you look, of course, to the words in the deed to determine that.

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Now, the cases upon which the plaintiffs are relying here all contain either express limitations on the estate conveyed,

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or some reservations for the grantor, affirmative rights or affirmative requirements placed on the grantee that are inconsistent with that grant policy.

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We don't have any of that here.

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Council, didn't they all involve nominal or minimal consideration?

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Isn't that quite relevant?

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It is one factor, but the CSC effectively treated it as the other factor, the only factor.

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That was really the only

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line upon which the CFD distinguished between a set of deeds that contained the same language, and some of them the court found conveyed the and some the court found conveyed an easement.

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But we see in the woods versus... Ms.

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Grant, this is Judge Stoll.

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This is Judge Stoll.

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Didn't the Court of Federal Claims also rely on the fact that the titles to these deeds are also a right-of-way deed?

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It's not as if the only thing that the Court of Federal Claims emphasized was the small amount of compensation.

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There were other factors that it identified.

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Yes, but that same title, of course, applies to some of the deeds that the court found conveyed fee.

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I understand.

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I was just correcting your overstatement, which was that the only thing the Court of Federal Claims relied on

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was the amount of compensation.

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I don't think that's quite right.

[00:05:16] Speaker 04:
Well, I'm sorry.

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I just meant that the court, that was the only thing that distinguished between certain deeds the court found conveyed easements versus certain deeds that the court found conveyed deeds.

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That was the only difference.

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I want to point to the Woods versus Flanders case because that case, pretty similar to here, had a deed that conveyed a strip of land for just a dollar

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And it's clear from the G that the intended use is for rail line.

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And also, one thing that I hadn't noticed before last night, and I wish I had, is in that case, they actually cite the Georgia statute that recognizes the presumption of a fee transfer.

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And so the idea that that presumption is not alive and well in the railroad context

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I think abundantly clear being without the Woods case, but the Woods case certainly makes it even more clear.

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You know, again, I think one of the critical things that it does not appear that the CFD took into consideration was the different meanings of the phrase right of way.

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Yes, the title of these deeds says right of way, but there is no reason to think that that title means easement deeds.

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as opposed to railroad corridor deeds.

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And our position here is that the phrase right away in these deeds, both in the title and in the text of the deed, the phrase right away is not limiting the estate conveyed.

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It's just describing the purpose of the transfer.

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Under settled Georgia law, an indication of the intended use

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of real estate that's being transferred.

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So it's not an express limitation of the estate.

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We see that in the Holloman versus Board of Education case, and the Knight case, Swanberg, Holloman, sorry Holloman, Valdosta, Jackson versus Rogers.

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These are all cases where the deeds are very, pretty explicit about what the intended use of the property is going to be.

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But that does not limit the estate conveyed.

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If you want to limit the estate conveyed,

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You say so.

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You say, I'm only granting a right of way.

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Not I'm granting land for a right of way.

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Or you create a reservation to the grantor that is inconsistent with the grantor fee.

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Or perhaps you have a clause that says, if you don't use this for specific purposes, it will revert to me.

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These fees don't have any features like that.

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And in the absence of those features,

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the courts of Georgia have consistently found the grant of a fee interest, even in the railroad context.

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Counsel, do you want to address the NTIU issue that you've raised?

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Sure.

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So the court has felt there was an error in the original NITU at issue here.

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The NITU basically used language that the railroad had provided that had the

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starting and ending terminuses of the section of rail line that it intended to propose for abandonment and then later consider converting to trail use.

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One of those endpoints was included in... Although the endpoint terminus was absolutely correct, the mileposts, it included a parenthetical description

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that was incorrect, that stated that the location of that milepost was somewhere that it wasn't.

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Not only did it say something that was incorrect, it said something nonsensical.

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It described the location of a crossing, the railroad's crossing of a highway that it does not appear to cross.

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The CFC found that somehow that error actually resulted in a taking, a physical invasion

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of properties that were passed as permanent.

[00:09:29] Speaker 03:
Hello, this is Judge Soule.

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Could I ask you a question?

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I understand your argument.

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As I understand it, your first argument is that it wasn't reasonable for the Court of Federal Claims to interpret the NICC to include this particular land.

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And your second argument was that debt possession testimony and other evidence demonstrate that the railroad never intended to abandon this portion of the railroad line.

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I would like to ask you some questions about your second point, just because there's not a lot of detail on this in your brief.

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And so I want to make sure I understand the fact correctly.

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So my first question is, when would the railroad have abandoned the land east of milepost 65.8 absent the Nittu?

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It would not have abandoned it.

[00:10:18] Speaker 03:
And do I?

[00:10:19] Speaker 04:
It never would.

[00:10:21] Speaker 03:
Can I continue?

[00:10:23] Speaker 03:
I would like to ask you when... Do I understand correctly that at the time of the NID-2, before the NID-2... Let me just break this down.

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Before the NID-2, CGA had leased this land to a different railroad.

[00:10:37] Speaker 03:
I think it's Squall Creek Southern.

[00:10:39] Speaker 03:
Is that right?

[00:10:39] Speaker 03:
That's correct.

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And after issuance of the NID-2, about six months after, I guess Squall Creek Southern wasn't interested anymore,

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and gave the land back to CGA, which then leaves the land to Carter Perot.

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Is that correct?

[00:10:56] Speaker 03:
Yes, I believe that's right as well.

[00:10:59] Speaker 03:
OK.

[00:11:00] Speaker 03:
I think, is there anything in your brief you suggest maybe that these are undisputed facts?

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Is that true?

[00:11:10] Speaker 04:
Yes, I believe so.

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I don't believe that the plaintiffs have disputed at all that the railroad was

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actively leasing the section of rail line east of milepost 65.80 to other rail lines.

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And those railroads were, you know, taking actions that were totally inconsistent with abandonment or conversion to trail use.

[00:11:36] Speaker 03:
Okay.

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And then that last question I have is that your brief cites the Coughlin case.

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What is the status of that case?

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I think it might be that it's been argued and you're just waiting decisions.

[00:11:49] Speaker 03:
That's correct.

[00:11:50] Speaker 04:
And to be clear, we don't think you need to wait for Coquelin unless you are inclined to find a taking here, in which case that case has the potential to change the analysis for when you have a need-to-only taking claim where there's been no conversion to trial.

[00:12:13] Speaker 04:
I don't think you need to wait for Coquelin.

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I think there are plenty of reasons

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that there's been no taking here totally apart from the issue in Cochlin.

[00:12:24] Speaker 02:
Okay.

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Any more questions from the panel at the moment?

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We'll have rebuttal for Ms.

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Crans.

[00:12:31] Speaker 02:
Okay.

[00:12:32] Speaker 02:
I hear silence.

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We'll hear from Mr. Stewart.

[00:12:36] Speaker 00:
No questions from me.

[00:12:41] Speaker 01:
Hello?

[00:12:42] Speaker 01:
Thank you, Your Honor.

[00:12:44] Speaker 01:
This is Tom Stewart.

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May I please the court?

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The critical issue obviously pertains to the 27 railroad form deeds and whether they conveyed an easement or fee to the railroad.

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In all candor, the government's briefs made it very difficult to analyze that issue due to some major and significant omissions.

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The first one actually probably occurred in their statement of related cases

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under Rule 47.5, where they failed to even mention the Jackson v. United States case, which is a case pending in the CFC where Judge Williams entered an order basically exactly the same as Judge Sweeney did.

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And it's never cited in the government's brief, either their original brief or their reply brief.

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And then more importantly,

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that their briefs contained several omissions.

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First, they failed to present the deeds as a whole, which is a cardinal rule of construction for any court to examine the deeds at issue.

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Second, as the court pointed out, failed to even acknowledge that the deeds were titled right-of-way deed, which frankly should have been conclusive on the railroad's intent anyway.

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Third, they failed to even include the entire granting clause.

[00:14:16] Speaker 01:
They keep referring to it as a grant of land.

[00:14:19] Speaker 01:
But the granting clause is specifically a strip of land for a right of way of said railroad.

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And under a long line of cases from the Georgia Supreme Court, that amounts to a grant of an easement.

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And then also, they failed to include the language and the deeds where they describe the fact that

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the grants were along the line of the recent survey through my lands, thereby attempting to ignore that the deeds were obtained for limited railroad purposes under Georgia's controlling statute.

[00:14:55] Speaker 01:
And on that issue, after totally ignoring the governing statute in their opening brief, then the government totally misinterpreted the issue in their reply brief.

[00:15:04] Speaker 01:
The important provisions of Georgia's controlling statute, which is set out in our brief in detail, is section 1689 I. And under that statute, the railroad could conduct a survey, like they did in this instance, to select the most advantageous route.

[00:15:23] Speaker 01:
The survey was to aid in the construction of the railroad's right-of-way under the statute.

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The railroad could hold and use the right of way as may be necessary for the railroad's operations, which is basically to accept such voluntary grants of real estate to aid in the construction of the railroad.

[00:15:45] Speaker 01:
And those voluntary grants under the statute could be used and retained by the railroad for the purpose of such grant only, which was railroad purposes.

[00:15:56] Speaker 01:
In other words, under all of these deeds and under George's rules of construction, these attendant circumstances are necessary for the court to examine.

[00:16:10] Speaker 01:
And Judge Sweeney did a thorough job of examining them.

[00:16:13] Speaker 01:
And in this instance, those attendant circumstances, where the railroad surveyed it, laid it out, and then got a voluntary grant from the landowners, were all set forth in the deeds themselves.

[00:16:26] Speaker 01:
In the government's reply brief, the government says that Georgia Code section 1689 did not preclude the railroad from purchasing a fee interest.

[00:16:38] Speaker 01:
And we would agree that that's not the point at all.

[00:16:40] Speaker 01:
It totally misstates the issue.

[00:16:43] Speaker 01:
The government focused in their reply brief after not mentioning the statute at all in their opening brief that they said plaintiff's argument is premised on section 1689 L.

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And the short answer to that is no, it's not at all.

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It's premised on 1689 I. Section 1689 L is the condemnation statute.

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And the way this process works is the railroad surveys the land.

[00:17:11] Speaker 01:
And if they get a voluntary grant from the landowner, which is basically defined as nominal consideration, as the court pointed out,

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most if not all of these deeds are $1, and some are $5, and some are $10, that's definitely a voluntary grant because it's minimal consideration under the law.

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So the statute lays out the exact circumstances that were present at the time the form deeds were granted to the railroad.

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And frankly, under authority from this court in pre-SOTU and the Georgia Supreme Court in several cases,

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those circumstances must be taken into consideration.

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Now, although the Georgia statute does not obviate the fundamental obligation of the court to examine the language of the deeds, like Judge Sweeney did in detail, the court should and did give it significant weight.

[00:18:07] Speaker 01:
And it's telling that the government didn't even mention it.

[00:18:11] Speaker 01:
And then after all of these omissions, the government misapplied the law in several respects.

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First, they maintain that there is a presumption of fee under Georgia statutes.

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And in fact, the government wrongly focuses much of its brief on establishing the false premise that Georgia statute mandates that any and all of the deeds, no matter the subject matter or attendant facts and circumstances, are presumed to convey the fee simple.

[00:18:44] Speaker 01:
But under the Georgia Code, even cited by the government,

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The fact is that the statute says that the deeds are presumed to convey the fee simple in land unless they specifically indicate the conveyance of a lesser estate.

[00:19:01] Speaker 01:
And that is not a presumption at all.

[00:19:04] Speaker 01:
It is a mere statement of the standard.

[00:19:07] Speaker 02:
And we want to... Yes, ma'am.

[00:19:10] Speaker 03:
This is Judge Stoll.

[00:19:12] Speaker 03:
I appreciate your argument and understanding.

[00:19:14] Speaker 03:
Could I ask you quickly a few questions about the other issue, which is about the land east of Milepost 65.8?

[00:19:21] Speaker 03:
Yes, yes, Your Honor.

[00:19:24] Speaker 03:
Okay.

[00:19:25] Speaker 03:
I want to ask you the same questions that I asked the government, which is when would the railroad, I mean, assuming that I think the Court of Federal Claims reading of the NITU to include certain land east of Milepost 65.80 was reasonable.

[00:19:42] Speaker 03:
When would the railroad have abandoned the land east of Milepost post 65.80 absent the NITU?

[00:19:49] Speaker 03:
The government says it would not have because that land, the railroad had leased it to another railroad.

[00:19:57] Speaker 03:
Do you dispute that?

[00:20:00] Speaker 01:
I honestly don't know and I'm not in a position to dispute it, Your Honor.

[00:20:04] Speaker 01:
It may very well be the fact.

[00:20:08] Speaker 01:
But what happened here is the government's argument is based on whether or not they actually intended to abandon that portion east of mile post 65.80.

[00:20:23] Speaker 01:
And the fact of the matter is they absolutely intended to abandon it up until the time that the corrected need to was filed.

[00:20:35] Speaker 01:
And the reason is that in all of the documents filed with the STB before the METU was issued, the railroad specifically included their request to abandon just as Judge Sweeney found all that land up to the intersection where the railroad crosses Highway 229.

[00:21:02] Speaker 01:
Now, the government says that that is both a ministerial error and incorrect, but that statement is false.

[00:21:13] Speaker 01:
If you look at a map, the railroad, yes.

[00:21:17] Speaker 03:
Can I just ask you, so your point is that, you know, this, what we'll call a typo or misstatement in the parenthetical and included on the map, that that same mistake was made in the original request to abandon.

[00:21:31] Speaker 03:
So it's your point of view that because it was included in the request to abandon, the railroad would have abandoned the land, even though it perhaps had leased the land to another railroad.

[00:21:45] Speaker 03:
Is that your position?

[00:21:46] Speaker 01:
Yes, that's correct, Your Honor.

[00:21:48] Speaker 01:
That language was specifically repeated from the railroad's own request.

[00:21:53] Speaker 01:
where they filed their original petition for exemption with the Surface Transportation Board requesting to abandon all of that line to mile marker 65.80 at that point where it crossed Highway 29.

[00:22:08] Speaker 03:
Can I ask, do you have a record site for me in the appendix for where the original request to abandon is?

[00:22:16] Speaker 01:
Your Honor, I will look right now and find that it is actually

[00:22:20] Speaker 03:
in both the government's brief and the... I want it in the appendix.

[00:22:29] Speaker 01:
I'd like this to be... I understand you're on the appendix side in there.

[00:22:38] Speaker 01:
Let's see.

[00:22:38] Speaker 01:
Yes.

[00:22:38] Speaker 01:
On July 19th, I believe it's Appendix 1588-1591.

[00:22:43] Speaker 01:
Okay.

[00:22:50] Speaker 00:
Counsel, was this an ITU issue raised in the original briefing, or did it come in only on a motion to reconsider the court's summary judgment?

[00:23:04] Speaker 01:
I believe it was raised based on the motion for reconsideration, Your Honor.

[00:23:10] Speaker 01:
It was fully briefed, and Judge Sweeney issued a separate opinion on that issue.

[00:23:16] Speaker 00:
Right.

[00:23:17] Speaker ?:
OK.

[00:23:17] Speaker 01:
And it's interesting to point out on that particular issue, the government's reply brief says, or asked a rhetorical question, what would have occurred if the government had not acted to file an amended NITU?

[00:23:34] Speaker 01:
And the fact of the matter is, it would have either been abandoned, because that's exactly what the railroad requested,

[00:23:43] Speaker 01:
So if there was no trail use agreement signed, it would have been abandoned pursuant to the need to, the original need to.

[00:23:51] Speaker 01:
And if the original, or excuse me, if the corrected need to had not been issued, then the trail use agreement would have covered it and it would have been included in the second time.

[00:24:04] Speaker 01:
So it was only the second need to that corrected the situation.

[00:24:11] Speaker 03:
Council?

[00:24:13] Speaker 03:
What about the deposition testimony?

[00:24:15] Speaker 03:
There's 30b6 deposition testimony in the records from Carter Perot that says that CGA leased this land, Squall Creek Southern, and then to Carter Perot.

[00:24:24] Speaker 03:
Do you dispute that?

[00:24:26] Speaker 01:
I know, Your Honor.

[00:24:27] Speaker 01:
I attended that deposition.

[00:24:29] Speaker 01:
I recognize and remember that that was his testimony.

[00:24:34] Speaker ?:
OK.

[00:24:34] Speaker 01:
The fact is, though, that what they're really wanting you to do is to change the existing law that's been the law ever since LAD was issued because, as Judge Sweeney pointed out, the issuance of the need to affects the taking at the time the need to is issued.

[00:24:53] Speaker 01:
That's the standing law in the federal circuit right now.

[00:24:58] Speaker 01:
And so the government is basically attempting a collateral attack on all of that precedent to say that,

[00:25:05] Speaker 01:
The need to would not have prevented abandonment and therefore did not constitute a physical taking.

[00:25:12] Speaker 01:
In essence, relying on a reversal of all the federal circuits precedent, which they're hoping for in Kaplan, because absent that, there is no question right now that the rule is that the issuance of the need to triggers

[00:25:31] Speaker 01:
a categorical physical taking at the time that the NITU was issued, irrespective of whether it ultimately turns out to be temporary or not.

[00:25:47] Speaker 01:
Now, if I can, I'm not sure how much time I have left, Your Honor, but I want to go back.

[00:25:53] Speaker 03:
Can I ask you one question?

[00:25:55] Speaker 03:
I just want a question in respect to what you just said.

[00:25:58] Speaker 03:
Doesn't Caldwell say that when a NITU is issued,

[00:26:01] Speaker 03:
and state law reversionary interests that would otherwise take effect, that a taking occurs.

[00:26:07] Speaker 03:
I'm quoting from the case now.

[00:26:09] Speaker 03:
A Fifth Amendment taking, if any, under the Trails Act is accomplished when a NITU is issued and state law reversionary interests that would otherwise take effect pursuant to normal abandonment proceedings are forestalled.

[00:26:25] Speaker 03:
If in fact no abandonment would have occurred, how could those proceedings be forestalled?

[00:26:31] Speaker 01:
Abandonment would have occurred under state law, Your Honor, if the Declaration of Intent to Abandon.

[00:26:38] Speaker 01:
And that is the long line of cases that started in Preso 2, including Caldwell, Barkley, Illig, Ladd, all of the Federal Circuit's precedents since 1996.

[00:26:50] Speaker 01:
And if you go and read Justice O'Connor's dissent in, excuse me, concurring opinion, in Preso 1 back in 1990,

[00:27:00] Speaker 01:
She laid out these exact facts where when the NITU is issued, it interferes with state law reversionary rights on the day that the NITU is issued.

[00:27:13] Speaker 01:
And that's why the taking occurs at that time, whether they actually consummate federal law abandonment at that time or not.

[00:27:24] Speaker 01:
And that's the blocking of the state law reversionary right that occurs when the NITU is issued.

[00:27:35] Speaker 01:
If I can go back just briefly, I want to talk about the long line of cases that came from the Georgia Supreme Court because we're actually fortunate, and Judge Sweeney was fortunate to have a long line of cases to analyze with respect to the deed language.

[00:27:57] Speaker 01:
Starting with the Gaston case in 1904,

[00:28:02] Speaker 01:
All the land necessary for road beds to construct the railroad for railroad purposes, even though it said forever and fee simple, was found to be an easement.

[00:28:12] Speaker 01:
That was a grant of land for railroad purposes was found to be an easement.

[00:28:17] Speaker 01:
In Coffee County in 1921, it was the grant of 100 feet in width of right of way conveyed an easement.

[00:28:26] Speaker 01:
And most importantly, the court pointed out that the use of right of way was not merely descriptive in that sense at all.

[00:28:35] Speaker 01:
And that is one of the arguments the government keeps making here, where they say it's not only a grant of land, which is an incomplete statement, obviously just looking at the deeds, but it's also used in a descriptive sense, which is totally inaccurate as well.

[00:28:53] Speaker 01:
And if you go through the line of cases,

[00:28:55] Speaker 01:
Dugan in 1930, and then primarily Rogers v. Pitchford in 1936.

[00:29:02] Speaker 01:
It contains an almost identical granting clause where it says a grant of a strip of land through the property where the railroad track is now located for a railroad right of way.

[00:29:16] Speaker 01:
And what's interesting about that, the government relies on Valdosta repeatedly, a dozen times or more in their brief.

[00:29:25] Speaker 01:
Because Valdosta was a grant of land that was later described as a railroad right of way.

[00:29:33] Speaker 01:
And this is a grant of a strip of land for a railroad right of way where it's not descriptive at all.

[00:29:41] Speaker 01:
And in fact, in Rogers v. Pitchford, Valdosta was specifically distinguished because of the consideration of $400.

[00:29:50] Speaker 01:
And it was later also

[00:29:54] Speaker 01:
distinguished in Askew v. Spence in 1954 and Jackson v. Sorrels in 1956, cases that Judge Sweeney correctly analyzed and reviewed and relied on in reaching the conclusion that these deeds conveyed an easement to the railroad.

[00:30:15] Speaker 01:
And if I might briefly in my minute that's left, I want to talk just briefly about County Road 213.

[00:30:22] Speaker 01:
Because this is a situation where, once again, the government has unfortunately tried a complete sleight of hand argument.

[00:30:32] Speaker 01:
They basically tried to set out a prototypical deed, but they failed to even include the pertinent language from the applicable deeds that clearly establishes that the applicable deeds conveyed in the easement

[00:30:44] Speaker 01:
And then the government also failed to even mention that each deed was entitled right of way deed and that each deed was specifically granted as a state aid road.

[00:30:55] Speaker 01:
And what's important is the one case they cite, the Knight case, has major differences because it was not a state aid road at all, but was instead a granted pursuant to a limited access highway act

[00:31:11] Speaker 01:
which is like gaining access to a federal highway or a federal interstate, which is conveyed in fee, whereas state-aid roads pursuant to Georgia's statute are the grants of easements only.

[00:31:28] Speaker 01:
And so unless the court has any additional questions, then I believe my time is up.

[00:31:37] Speaker 02:
Any more questions from the panel?

[00:31:40] Speaker 00:
No.

[00:31:42] Speaker 02:
Okay.

[00:31:43] Speaker 02:
Thank you, Mrs. Stewart.

[00:31:45] Speaker 02:
Ms.

[00:31:45] Speaker 02:
Krauss, you have three minutes.

[00:31:48] Speaker 02:
Thank you.

[00:31:48] Speaker 04:
I'll start with the 65.80 issue first.

[00:31:54] Speaker 04:
The terminus, the Myelopolis terminus here is the terminus.

[00:31:57] Speaker 04:
The parents' article is included.

[00:32:00] Speaker 04:
for convenience, but an error in the parenthetical does not change the definitive terminus of the rail line that was plated for abandonment.

[00:32:08] Speaker 04:
The Seventh Circuit has directly addressed this issue in the Montezuma grain case, and there's no need for you to create a different rule.

[00:32:15] Speaker 04:
The railroad couldn't have and did not intend to abandon any section of rail line east of Milepost 65.80, as it was undisputedly actively leased to another railroad

[00:32:29] Speaker 04:
Even under LAD and the other Federal Circuit precedent described, I'm not, I don't think we need to get into whether opposing counsel correctly described that precedent.

[00:32:40] Speaker 04:
But even under all that precedent, as it actually is, there's nothing here that could have constituted a physical taking.

[00:32:46] Speaker 04:
There was no physical invasion and there was no abandonment that could have been floored.

[00:32:52] Speaker 04:
Turning to the deed issues.

[00:32:59] Speaker 04:
The Valdosta, the Rogers, and the Woods case we think are the most similar cases that you should focus on.

[00:33:08] Speaker 04:
And they absolutely rebut the idea that plaintiffs are pushing here, that a railroad basically can't take a fee interest in a rail corridor.

[00:33:20] Speaker 00:
Did those cases recite a right of way?

[00:33:25] Speaker 04:
The Valdosta case grants a strip of land for a right-of-way.

[00:33:32] Speaker 04:
The Rogers case also grants land, and it's for railroad purposes.

[00:33:38] Speaker 04:
And the Woods case grants a strip of land, just like here, and indeed, it's clear that the intended use is for a rail corridor, yes.

[00:33:50] Speaker 04:
Now, the big difference in

[00:33:54] Speaker 04:
The long list of cases that plaintiffs are relying on here is that in each, the cases that they rely on that do purport to grant, quote, a strip of land contain explicit statements in the deed that rebut

[00:34:14] Speaker 04:
the idea that they would be conveying a fee simple.

[00:34:17] Speaker 04:
They are inconsistent with the grant of fee simple.

[00:34:19] Speaker 04:
So, in the Pitchford deed, you have reserving the right to cultivate any of the above described land until needed for railroad purposes.

[00:34:27] Speaker 04:
There's also no warranty clause, and it's not the successors and assigns of the rail company, like the deeds were here.

[00:34:34] Speaker 04:
In ASCU, they have reserving the right to cross and cultivate

[00:34:38] Speaker 04:
And there's a statement that if work is not commenced in two years, the property will revert and there's no warranty.

[00:34:44] Speaker 04:
We don't have a reservation here.

[00:34:46] Speaker 04:
We don't have that kind of reversion clause here.

[00:34:48] Speaker 04:
And we do have a warranty.

[00:34:50] Speaker 04:
In the soils case, again, there's a reserved right to cultivate the land and the railroad is required to keep up stock debt.

[00:35:00] Speaker 04:
These deeds not to contain any of those types of

[00:35:04] Speaker 04:
explicit reservations or affirmative requirements that would be inconsistent with the grant of fee.

[00:35:09] Speaker 04:
Therefore, the purported grant of a strip of land must be a grant of fee here.

[00:35:17] Speaker 04:
I believe that was my time up.

[00:35:19] Speaker 02:
It was.

[00:35:19] Speaker 02:
Any more questions from the panel?

[00:35:21] Speaker 00:
No.

[00:35:22] Speaker 02:
Okay.

[00:35:24] Speaker 02:
Thank you both.

[00:35:25] Speaker 02:
This is well argued.

[00:35:27] Speaker 02:
It's taken under submission.

[00:35:29] Speaker 02:
Thank you.