[00:00:00] Speaker 04: The argument this morning is 21-1445 Anderson versus United States. [00:00:28] Speaker 02: May it please the court. [00:00:30] Speaker 02: My name is Bob Sears, and I represent the plaintiff appellants in this matter who are landowners in Waco, Texas, who for the day in their antecedents and title have been waiting for to see if a railroad abandoned its right-of-way, and then they would get their land back. [00:00:48] Speaker 02: Essentially, that's the crux of the case. [00:00:50] Speaker 02: In order to prove that case, though, they have to show that they own the land under the railroad right-of-way. [00:00:58] Speaker 02: And to do that, they have to show that the railroad then owned an easement. [00:01:02] Speaker 02: So they presented the three deeds that are applicable to the segments of the right of way in this case. [00:01:10] Speaker 02: And they're all extremely similar deeds in their operative way. [00:01:14] Speaker 04: Let me just get to that. [00:01:14] Speaker 04: I mean, there's a lot of interesting discussion here comparing case law in Texas, which I have not been intimately familiar, and a lot of very, very young cases. [00:01:24] Speaker 04: If we disagree with your position, which I understand to be that Loco might present [00:01:29] Speaker 04: pronouncing that correctly? [00:01:31] Speaker 02: Yes, I think so. [00:01:32] Speaker 04: Didn't overrule Neil. [00:01:34] Speaker 04: So we've got the precedence of Neil and Brightwell, et cetera. [00:01:38] Speaker 04: Is that the end of the case for you? [00:01:41] Speaker 04: I mean, this case seems very, very close to Neil and Brightwell. [00:01:44] Speaker 04: So if those opinions have not been dislodged, in our view, does that end the case? [00:01:52] Speaker 02: No. [00:01:53] Speaker 02: In fact, the respondent has for the [00:01:59] Speaker 02: Epley here has rather misconstrued our argument, which is not that Neil was overturned. [00:02:08] Speaker 02: In fact, Neil applies here in full. [00:02:13] Speaker 02: What Luckle did was it was the Supreme Court's [00:02:18] Speaker 02: statement that Neil did not represent a change in the law, which for centuries or a century in Texas had been that you look at the entire deed and it doesn't matter where a grant occurs in the deed. [00:02:35] Speaker 02: We aren't locked into particular clauses or where words appear on the document. [00:02:40] Speaker 02: So Neil sounded very strict. [00:02:44] Speaker 02: But Luckle said, which is also the later Supreme Court decision, said, we're looking at the entire deed. [00:02:54] Speaker 02: And then it's the Chevron case. [00:02:55] Speaker 03: Can I just clarify for a minute? [00:02:57] Speaker 03: Sure. [00:02:58] Speaker 03: I didn't think Luckle actually mentioned Neil. [00:03:01] Speaker 03: Just to be clear, it doesn't, right? [00:03:03] Speaker 02: No, it doesn't. [00:03:05] Speaker 02: What it did, though, was expand [00:03:10] Speaker 02: didn't expand anything. [00:03:11] Speaker 02: What it did was reinforce what the law in Texas had been through Neal and everything else, which is to look at the entire deed. [00:03:21] Speaker 02: And that's my point. [00:03:22] Speaker 02: Neal applies because Neal says if there's, all Neal says is if there's a grant of land, it's going to be a right of way. [00:03:34] Speaker 02: If there's a grant of a right of way, it's going to be an easement. [00:03:40] Speaker 02: Okay. [00:03:41] Speaker 02: If there's a grant of land, it's going to be in fee. [00:03:44] Speaker 02: Okay. [00:03:44] Speaker 02: And if there's a grant of a right of way, it's going to be easement. [00:03:48] Speaker 02: Now, what we have here is an unusual situation where the parties split the granting clause. [00:03:58] Speaker 02: And that's what's unique about the case. [00:04:00] Speaker 00: That's why we have a dispute. [00:04:04] Speaker 02: I think there are only two, Your Honor. [00:04:06] Speaker 02: One is a split granting clause, which says, I convey land. [00:04:13] Speaker 02: By the way, it should be recognized that I think it's at page 87 of the appendix, where you can see a form of the deed. [00:04:25] Speaker 02: And I think it's important to notice. [00:04:27] Speaker 00: Let's go back. [00:04:30] Speaker 00: There seems to me to be one granting clause. [00:04:35] Speaker 00: And then the other clause is a right. [00:04:38] Speaker 00: A right to take and use all the stone and earth. [00:04:42] Speaker 00: Are you arguing that that's a granting clause? [00:04:46] Speaker 02: That's the second granting clause. [00:04:49] Speaker 00: But that argument doesn't stand under Texas law, does it? [00:04:53] Speaker 00: You have to use the word granting, and then the grant itself has to be unambiguous. [00:05:03] Speaker 02: Your Honor, if I may, the grant here is [00:05:08] Speaker 02: a conveyance of land for a right-of-way. [00:05:13] Speaker 02: Now, before the words for a right-of-way, there is the property description. [00:05:19] Speaker 02: Okay? [00:05:20] Speaker 00: And that's what I was pointing... It doesn't say a grant of land for a right-of-way. [00:05:28] Speaker 00: It says, uh... I'm looking at the hawkwood deed. [00:05:38] Speaker 02: Okay. [00:05:40] Speaker 02: The Faulkner deed is at, in the appendix, must be at 90, must be the last one. [00:05:54] Speaker 02: Yeah, 84. [00:05:57] Speaker 02: So, and here's the point I've been trying to make, and this is why this case is not simple, okay. [00:06:06] Speaker 02: It says, a grant, bargain, sell, and convey to the railroad, all that piece, parcel of land, and then it describes the land. [00:06:16] Speaker 02: And then very tellingly, it says, this, after the property, after the description, this conveyance is made for a right of way. [00:06:27] Speaker 02: Now, that to me, and what we have been arguing. [00:06:32] Speaker 04: Isn't this language very close to what was in Neil? [00:06:35] Speaker 04: I mean, reading Neil, I think it had very similar right-of-way language. [00:06:39] Speaker 04: And the Texas Supreme Court said that right-of-way can mean the right of passage itself or the strip of land. [00:06:47] Speaker 04: And it didn't say that that in any way superseded the fact this was a grant. [00:06:52] Speaker 04: It seems to me this case had right. [00:06:54] Speaker 04: Am I wrong? [00:06:54] Speaker 04: Am I misremembering that the language of the documents themselves were very, this was very close to Neil? [00:07:02] Speaker 02: It's not in that Neil is different. [00:07:05] Speaker 02: in that there's a reference later to a right-of-way, and Neil goes to great lengths to say that right-of-way has two meanings. [00:07:17] Speaker 02: Now, there's other, the Strawbridge case says that when, I'm sorry, it's not the Strawbridge case, I believe it was Chevron that said when the right is not defined, when right-of-way is not defined, it means an easement. [00:07:35] Speaker 02: what a railroad typically would hold. [00:07:38] Speaker 04: But doesn't that dislodge Neil? [00:07:40] Speaker 04: Are you saying Neil isn't precedent or allowed to follow? [00:07:45] Speaker 02: No, Neil is precedent that I hope you follow. [00:07:50] Speaker 04: And how is this case different from Neil? [00:07:54] Speaker 02: Because this doesn't just merely refer to a right of way later in the deed in the abstract. [00:08:01] Speaker 02: It says it's a grant of land for a right of way. [00:08:04] Speaker 03: Okay, so just to clarify, the Faulkner Deed says this conveyance is made to the Texas Central Railroad Company for a right of way. [00:08:13] Speaker 03: And in NEAL, the language that you find is, however, this deed is made for a right of way deed. [00:08:23] Speaker 03: How is that different? [00:08:25] Speaker 03: I'm following up specifically on Judge Pro's point. [00:08:29] Speaker 02: I think because of the language that we have here, which is they've set up this flag that says, this conveyance is made for a right of way. [00:08:38] Speaker 03: But this says this deed is made for a right of way. [00:08:43] Speaker 03: How is that different? [00:08:44] Speaker 03: This conveyance is made for a right of way? [00:08:46] Speaker 03: And Neil says this deed is made for a right of way. [00:08:49] Speaker 02: A conveyance is a grant. [00:08:51] Speaker 02: And so the use of the word conveyance is very important. [00:08:56] Speaker 02: As opposed to deed. [00:08:57] Speaker 02: This deed is for a right of way means that we all understand that what we're talking about here in this deed is a right of way in the sense that it's a railroad. [00:09:08] Speaker 02: passage line, but not the right. [00:09:11] Speaker 02: Here we say this conveyance is for a right. [00:09:14] Speaker 02: So I think that distinguishes it from Neil. [00:09:17] Speaker 03: And Neil, if I remember correctly, the Texas Supreme Court, Neil described this language about this deed is made for right away as describing the use of the grant. [00:09:33] Speaker 02: That's right. [00:09:33] Speaker 03: And whereas, and you would say that the language this conveyance is made for right of way is not describing the grant, it's further elaborating on the grant. [00:09:44] Speaker 02: It's, I liken it to the Chevron, yes, I agree with you. [00:09:49] Speaker 02: I liken it to the Chevron case which says, [00:09:53] Speaker 02: This is a grant for right of way of land. [00:09:59] Speaker 02: So the court there was dealing with this confusing conveyance. [00:10:04] Speaker 02: Actually, I used the word grant. [00:10:06] Speaker 02: I should have said conveyance. [00:10:07] Speaker 02: It says this conveyance is for right of way. [00:10:10] Speaker 03: What if we disagree with you on the importance of the difference between the words conveyance and deed? [00:10:17] Speaker 02: If you agree that the, if you agree with the court below, that you're stuck with [00:10:23] Speaker 02: the just the clause and you have to stop before the proper description begins? [00:10:29] Speaker 03: No, no. [00:10:29] Speaker 03: I specifically was saying, what if we disagree with you on the difference between the use of the word deed and the use of the word conveyance? [00:10:40] Speaker 02: Well, and that's the point I was trying to get to, that if you believe that [00:10:48] Speaker 02: There's no, that it's not a continuation of a granting clause, well then we don't have, we don't succeed. [00:10:56] Speaker 02: Because we have to have a grant of a right of way, and this is a grant of land, and then this conveyance, which is important. [00:11:07] Speaker 02: I believe, under Texas law, this convenience is for a right of way. [00:11:12] Speaker 02: And then, you know, I might say the other language that I go into is not just, you know, language like over and across and the other grant we were talking about, the grant to remove stone and timber from the easement, are not, I'm not arguing that those words alone make this an easement. [00:11:36] Speaker 02: What I'm pointing out is that those words are further indication as a test to see if I'm right, that they intended to convey a right of way. [00:11:51] Speaker 02: So if you ask me, well, all right, we're on the margins here. [00:11:55] Speaker 02: What else can we look at? [00:11:58] Speaker 02: And I would say the grant removes stone and timber from within a feet. [00:12:04] Speaker 02: Why would they have to grant that? [00:12:05] Speaker 02: Because that's already transferred with the fee. [00:12:08] Speaker 03: I understand your logic. [00:12:10] Speaker 03: I really, truly do. [00:12:11] Speaker 03: But what do I do about Brightwell? [00:12:14] Speaker 03: I mean, Brightwell, as I read it, had the following language. [00:12:18] Speaker 03: I do further grant to said company, such earth, material, timber, and rock, as may be found on my lands herein mentioned, and granted herein as right of way, which may be required for the construction of said railroad. [00:12:31] Speaker 03: But in Brightwell, that very agreement had language similar to yours as the first clause. [00:12:38] Speaker 03: I don't buy grants this language that is then describing the land. [00:12:44] Speaker 03: the Texas Supreme Court, well, I guess it wasn't the Supreme Court, but this court in Brightwell, which then was cited in Neal, held that this was, in fact, a transfer of the land and not a right of way. [00:13:01] Speaker 02: I would ask you to treat Brightwell as Chevron did, which was to distinguish it because [00:13:13] Speaker 02: Brightwell concluded that the deed conveyed a fee, even though it had that statement about the right to take materials. [00:13:23] Speaker 02: But first, that court, the Brightwell court, interpreted, and this is according to Chevron, interpreted the clause to mean that the grantor would allow the railroad to go on his other land outside of the right of way. [00:13:38] Speaker 02: So that's the first point that he distinguished it, where here we don't have that issue. [00:13:45] Speaker 02: We are conveying an easement strip, or governments are doing a fee strip, and it makes no sense to grant other things within the right of way. [00:13:56] Speaker 02: And second, in Brightwell, there was a clear, clean grant of land. [00:14:03] Speaker 02: So the court. [00:14:05] Speaker 02: It didn't have the mixed language that they were facing in Chevron. [00:14:11] Speaker 02: So distinguish it in those two instances. [00:14:14] Speaker 04: Okay. [00:14:14] Speaker 04: You're in theory, but also want to hear from the government. [00:14:17] Speaker 02: Well, thank you very much. [00:14:31] Speaker 01: May it please the court, Jeffrey Hall for the United States. [00:14:35] Speaker 01: As your honors have shown, I think that there are really two important points here. [00:14:39] Speaker 01: And the first is that Neal still does control this case. [00:14:43] Speaker 01: We agree with petitioners in that regard. [00:14:46] Speaker 01: And I want to be very clear on what the rule in Neal says. [00:14:50] Speaker 01: It's not just a general point about what language you find in the granting clause. [00:14:55] Speaker 01: It's very specific in what it says. [00:14:57] Speaker 01: And it says, it relies on what the deed says in terms of grants, sells, and conveys, and after that, what the direct object is. [00:15:07] Speaker 01: The direct object, if it is [00:15:09] Speaker 01: a strip of land, then it is a fee. [00:15:12] Speaker 01: If it's a right of way as the direct object after that phrase, then it's an easement. [00:15:20] Speaker 01: And Neil also stands for the proposition that if you look at the rest of the deed, and it uses the word right of way, that's not going to necessarily mean that it's an easement, because it can be a description of the land. [00:15:30] Speaker 01: And in fact, it says you should take it as a description of the land. [00:15:33] Speaker 01: So that's the general point of Neil. [00:15:38] Speaker 01: I wanted to point out that there are other [00:15:42] Speaker 01: statements in other deeds that are even arguably stronger than any statements here about in terms of putting right of way next to the term conveyance or grant. [00:15:56] Speaker 01: So as you already mentioned in Neil, it says the deed is made for a right of way deed. [00:16:02] Speaker 01: It also says the right of way here and above conveyed. [00:16:05] Speaker 01: Nevertheless, it was still a fee conveyance because it was that notion of the right of way was after. [00:16:11] Speaker 01: The granting clause in Brightwell, as the court in Brightwell said, granted herein as right of way, still a fee of conveyance, because what mattered was in the granting clause, not in that later statement. [00:16:24] Speaker 01: And there's also a statement in Brighton Well and Calcasieu about releasing for damages for the right of way of said railroad. [00:16:31] Speaker 01: All of those statements link a conveyance or grant pretty closely a right of way, but because it's found later in the deed, what it's talking about is the description of the land, not of the type of conveyance. [00:16:44] Speaker 01: And I also wanted to note that as we say in our brief, even if there's a description of the land as a right-of-way in the granting clause, you have to look at how it sort of says it. [00:16:55] Speaker 01: If it says for a right-of-way, then it would still be a purpose clause, and it wouldn't reduce the fee. [00:17:02] Speaker 01: We cited several cases in our brief that NEO relied on in making its general statement that when the purpose is talked about as a right-of-way, it doesn't reduce it from a fee estate. [00:17:14] Speaker 01: point you to the Texas V Martin case in particular, we're right in the granting clause that says for depot purposes that didn't reduce it because afterward the direct object was strip of land. [00:17:25] Speaker 01: And then two, the important point here is also that not only does the rule in new control, but the Texas Supreme Court has dealt with all of the provisions in these deeds at various points in cases and determined that each of them nevertheless comprehensively lead to a fee conveyance. [00:17:46] Speaker 01: In terms of one point that was made on over, [00:17:55] Speaker 01: petitioner, I'm sorry, appellant, has asked, based on Lockele, to look at the rest of the deed, the over and across point that somehow indicates that it's a right of way. [00:18:08] Speaker 01: Brightwell directly contradicts that. [00:18:10] Speaker 01: The Stone and Materials Clause, Chevron didn't really distinguish it, but Brightwell controls that. [00:18:15] Speaker 01: Brightwell's in no way in force with it. [00:18:18] Speaker 01: So those are the points I wanted to make. [00:18:20] Speaker 01: I don't know if you're on or sending questions. [00:18:22] Speaker 04: Thank you. [00:18:23] Speaker 01: Thank you very much. [00:18:26] Speaker 01: request that the court affirm the judgment of the court of federal points. [00:18:30] Speaker 01: Thank you. [00:18:30] Speaker 01: Thank you. [00:18:36] Speaker 02: Thank you. [00:18:37] Speaker 02: I think I'll only talk about just one point that he raised, which is that this other language over and across, and I explained this before, and the right to me was stone. [00:18:50] Speaker 02: Those things would not change a fee grant [00:18:56] Speaker 02: to an easement, right? [00:18:58] Speaker 02: I would agree with that. [00:19:00] Speaker 02: What I'm saying is that this is an easement grant when the granting clause is read properly without the intervening property description. [00:19:12] Speaker 02: So I just want to [00:19:15] Speaker 02: make that clear that these are indicators that it's an easement, but we first have to have this question about whether it's an easement or fee deed as opposed to knowing it's a fee deed. [00:19:27] Speaker 02: Thank you very much. [00:19:28] Speaker 04: Thank you.