[00:00:00] Speaker 03:
We will hear argument next in number 22-1381, Barlow versus United States.

[00:00:07] Speaker 03:
Whenever you are ready, Mr. Smith.

[00:00:11] Speaker 02:
May I please support?

[00:00:14] Speaker 02:
In Illinois, use of the phrase right-of-way in the Deeds Granting Clause to a railroad for its right-of-way is, without fail, always interpreted as a grant of an easement.

[00:00:25] Speaker 02:
This is the rule.

[00:00:26] Speaker 02:
No matter if the Deeds set forth a grant that conveys

[00:00:29] Speaker 03:
A right of way?

[00:00:30] Speaker 03:
I'm sorry, just to stop you.

[00:00:32] Speaker 03:
Was that true in the Chicago Coding case?

[00:00:39] Speaker 02:
In Illinois.

[00:00:41] Speaker 03:
Was that decided under Illinois law?

[00:00:43] Speaker 02:
It was decided under Illinois law.

[00:00:45] Speaker 02:
My point was an Illinois court has never interpreted the grant of a right of way.

[00:00:50] Speaker 02:
But to more fully answer that question, in Chicago Coding, I believe that that decision

[00:00:55] Speaker 02:
hinged upon the grant conveyed being of real estate, said real estate being the right-of-way.

[00:01:01] Speaker 02:
And they interpret that grant as not a direct grant of a right-of-way, but instead the grant at which played.

[00:01:07] Speaker 03:
plus the waiver of homestead exemption, which played a, I thought, actually decisive role.

[00:01:13] Speaker 02:
Exactly.

[00:01:14] Speaker 02:
That seemed to be the tipping point in the Chicago voting decision.

[00:01:18] Speaker 03:
We don't have any homestead exemption.

[00:01:19] Speaker 02:
We don't have any homestead exemption here, none whatsoever.

[00:01:21] Speaker 02:
And I won't go into exactly why it's important, but it is a common feature of fee civil conveyances to railroads.

[00:01:32] Speaker 02:
Now, there is no permutation of the grant of a right of way.

[00:01:37] Speaker 02:
that has ever been interpreted as anything other than a grant of an easement in Illinois.

[00:01:42] Speaker 02:
And again, it doesn't matter if that grant to convey is a right of way, it's for the right of way, or the right of way.

[00:01:49] Speaker 02:
It is always a grant of an easement in Illinois.

[00:01:52] Speaker 03:
Would it be fair to say, you say in the granting clause, is it more precise to say it's always an easement subject to some

[00:02:06] Speaker 03:
rare exception, like Chicago coding, when right-of-way is the direct object of the verb that does the convey, like convey or grant.

[00:02:17] Speaker 02:
So the direct object of convey and warrant, or grant convey, is the right-of-way.

[00:02:24] Speaker 02:
Right-of-way is easement.

[00:02:26] Speaker 02:
And it is consistently applied that way.

[00:02:30] Speaker 02:
Right-of-way, when using the grantee clause as a direct object, is not interpreted

[00:02:34] Speaker 02:
as a grant of land in Illinois.

[00:02:36] Speaker 02:
It is intended as a grant of a right of passage.

[00:02:41] Speaker 02:
That's it.

[00:02:42] Speaker 02:
And that is such a total and complete rule that, in fact, this court could actually disregard the various other easement factors that are present in the right of way agreements and still arrive at that correct conclusion.

[00:02:56] Speaker 02:
In Illinois.

[00:02:57] Speaker 00:
So just so I could make sure I understand your argument, I think you're saying that just looking at the granting clause alone gets us to the conclusion that you're saying with respect to Eastbound right of way.

[00:03:05] Speaker 00:
We don't even have to look at the title or any other form.

[00:03:08] Speaker 02:
Is that right?

[00:03:08] Speaker 02:
No.

[00:03:09] Speaker 02:
That's exactly right.

[00:03:10] Speaker 02:
But if the court wants to go there, too, I mean, there's obvious grants of easements, and then there's slam dunk grants of easements.

[00:03:18] Speaker 02:
And when you have the granting clause saying what it says, plus you have the title, plus you have in the second paragraph in the Habitum Clause of D,

[00:03:26] Speaker 02:
a reference back to said right of way in fee simple.

[00:03:29] Speaker 02:
And then you have the homestead exemption.

[00:03:31] Speaker 02:
I mean, these factors are just piling on at this point.

[00:03:34] Speaker 01:
And the cases you're relying on are in cases like Diaz and McVeigh and Tolman.

[00:03:40] Speaker 02:
And all the other 12 to 20 cases in our brief.

[00:03:45] Speaker 01:
You have, I think, a more difficult argument that the next category of documents, the purpose agreements?

[00:03:52] Speaker 01:
I don't think so.

[00:03:53] Speaker 01:
OK, so tell me why those you have this.

[00:03:58] Speaker 03:
One final thing about the right of way agreement.

[00:04:00] Speaker 03:
This second clause about, and I promise and agree to make all proper and necessary deeds to convey in fee simple to set company set right of way.

[00:04:12] Speaker 03:
Remind me what you make of that so that it doesn't undo your main.

[00:04:17] Speaker 02:
So in fee simple, set right of way.

[00:04:20] Speaker 02:
OK.

[00:04:21] Speaker 03:
And that's because there's Illinois law that says you can hold an easement in fee simple.

[00:04:26] Speaker 02:
That is exactly right.

[00:04:27] Speaker 02:
OK.

[00:04:27] Speaker 02:
And that is an indication of the method.

[00:04:32] Speaker 02:
I should say how it's long lasting and exclusive to that railroad.

[00:04:38] Speaker 02:
Like another railroad can't go in there and put another right of way on.

[00:04:42] Speaker 02:
a railway on that strip of land.

[00:04:45] Speaker 02:
But I was going to say that the reason why the right of way agreements are kind of slam dunk really helps out the

[00:04:52] Speaker 02:
or actually makes the railroad purpose agreements turn the same way.

[00:04:55] Speaker 02:
And that is because where those purpose statements are located within the deed.

[00:05:00] Speaker 02:
That is also in the granting clause.

[00:05:02] Speaker 02:
Granting and debate for railroad purposes.

[00:05:04] Speaker 01:
I agree with you that the cases that seem to be relied on by the government and discussed by the Court of Federal Claims, Penn, Central, Keene, Sowers, they all had

[00:05:17] Speaker 01:
the purpose mentioned in the consideration clause, right?

[00:05:21] Speaker 02:
Either in the consideration clause or later in the deed, I believe it was referenced to be and that have been in clause two.

[00:05:27] Speaker 01:
And your view is, because this says, I convey for real-world purposes the following, that that results in a different outcome.

[00:05:36] Speaker 01:
Yes, it results in a different outcome.

[00:05:37] Speaker 01:
Are there any cases that support that?

[00:05:39] Speaker 01:
Are there any cases?

[00:05:40] Speaker 01:
I haven't been able to find any cases other than maybe Magnolia, where the road purpose.

[00:05:45] Speaker 01:
That is the case I was going to identify.

[00:05:46] Speaker 01:
OK.

[00:05:47] Speaker 01:
Yes.

[00:05:47] Speaker 02:
So in Magnolia, the data is grant and convey the felon-described real estate to wit a strip of land to be used for road purposes.

[00:05:57] Speaker 02:
So excuse me, to be used for road purpose.

[00:06:01] Speaker 02:
But the key aspect of Magnolia is that it's all contained within the grant and cause of that deed.

[00:06:06] Speaker 02:
The purpose language, what's being identified as being conveyed, is this purpose, the railroad purpose.

[00:06:12] Speaker 02:
That's what gives it this special meaning.

[00:06:14] Speaker 03:
And Magnolia held that that was an easement, is that right?

[00:06:18] Speaker 02:
Yes, that was an easement.

[00:06:19] Speaker 02:
Now, full disclosure, that wasn't a railroad right away is in that case.

[00:06:25] Speaker 02:
But nonetheless, that purpose language

[00:06:30] Speaker 02:
that the court had to give that language meaning because of where it is.

[00:06:37] Speaker 02:
Because if we're going to give any way to, well, we must give some way to purpose language at some point time if we're interpreting deeds in Illinois.

[00:06:47] Speaker 02:
If we're not going to say it has any meaning whatsoever, or it's not going to have the meaning in the granting clause, then really, truth be told, it's not going to have any meaning anywhere for any purpose.

[00:06:57] Speaker 02:
So again, it's because of where these terms are located in these transactions, in these deeds, that gives the meaning.

[00:07:07] Speaker 02:
And you're out of reference to the cases.

[00:07:09] Speaker 03:
I guess I'm not remembering whether it's in any of the deeds in this case, or the transfer documents in this case, or in some of the precedents.

[00:07:18] Speaker 03:
I thought that there were some conveyance documents that talk about purpose.

[00:07:28] Speaker 03:
nevertheless, grant a fee simple and say, the reason we're doing it is this.

[00:07:35] Speaker 03:
But then they go on to say, by the way, if you stop using it as a railroad, we're going to undo this.

[00:07:42] Speaker 03:
So it is fee simple, but it's undoable if the stated purpose is no longer satisfied.

[00:07:49] Speaker 02:
You've got a much closer call there, I think.

[00:07:52] Speaker 02:
So let's explore that a little bit, an example.

[00:07:56] Speaker 03:
Because I'm asking about that because it seems to me that that would be an example where there would be meaning given to saying what the purpose was even in a fee simple grant if later provisions say

[00:08:09] Speaker 03:
Once you stop using it as a railroad, you lose all your interest in this, and it goes back to the grantor.

[00:08:17] Speaker 02:
Probably like some sort of a fee simple, determinable, or some other transaction like that.

[00:08:23] Speaker 02:
But I think when we're talking about strictly about easement versus fee, in a somewhat similar example,

[00:08:31] Speaker 02:
Let's say they grant convey a strip of land.

[00:08:34] Speaker 02:
That strip of land is in this area.

[00:08:37] Speaker 02:
To having to hold said strip of land for rarer purposes and then revert later on if it's not used for rarer purposes anymore.

[00:08:45] Speaker 02:
I think in that situation, you've got a closer call there, Your Honor, in terms of whether that's going to be a fee simple or an easement conveyance in Illinois.

[00:08:52] Speaker 02:
I think it probably still comes out of leasement.

[00:08:55] Speaker 02:
But we don't have that in these.

[00:08:56] Speaker 02:
We don't have that.

[00:08:57] Speaker 02:
We've got it for railroad purposes as part of the grant.

[00:09:00] Speaker 03:
So your point about for what purpose would that clause, for railroad purposes, be in there?

[00:09:06] Speaker 03:
Here, the answer, I think you're saying, is no purpose unless it is altering the nature of the interest conveyed.

[00:09:17] Speaker 02:
Yes, I think that's close.

[00:09:22] Speaker 02:
I think that once you start having, I mean,

[00:09:28] Speaker 02:
I think you kind of get into the other concept, too, that that introduces is what is to be given more weight?

[00:09:34] Speaker 02:
What's being said in the granting clause or what's being said in the haventum clause?

[00:09:38] Speaker 02:
And the haventum is never going to be allowed to override or contradict what's in the granting clause.

[00:09:44] Speaker 02:
So I think that concept plays into it as well and controls more or less.

[00:09:53] Speaker 00:
When would you say the granting clause ends?

[00:09:55] Speaker 00:
I just want to make sure that I'm on the same page as to kind of exactly the scope of the granting clause on the speaker.

[00:10:01] Speaker 00:
How would you describe that?

[00:10:02] Speaker 02:
So I would say the words grant and convey is the verb for it.

[00:10:08] Speaker 02:
OK, what is grant and convey?

[00:10:09] Speaker 02:
And the direct object is whatever follows that.

[00:10:12] Speaker 02:
In this case, the direct object for the right-of-way agreements is the right-of-way.

[00:10:17] Speaker 02:
In the railroad purpose agreements, it's for railroad purposes.

[00:10:20] Speaker 02:
So whatever terms or concepts follow directly from grant and convey.

[00:10:27] Speaker 01:
Sorry to interrupt you, but isn't it also a grant and convey for railroad purposes such and such land?

[00:10:34] Speaker 01:
It's all of that.

[00:10:34] Speaker 01:
It doesn't stop at for railroad purposes, right?

[00:10:37] Speaker 02:
Grant and convey for railroad purposes a strip of land over and across or

[00:10:44] Speaker 02:
I'm looking at the other example right now.

[00:10:47] Speaker 03:
I'm not sure, is it a grammar matter, where you would say for railroad purposes is the direct object of the verb grant and convey?

[00:10:57] Speaker 02:
I think that's the way to read it, because you have to, not just because of that feature too, but also, again, where it's being placed in the deed.

[00:11:06] Speaker 02:
It's being stressed because it's in this portion of the deed.

[00:11:10] Speaker 02:
OK, it's not taken as sort of a recital for why they're making the transaction, a recital clause, or just a reference back to something else.

[00:11:21] Speaker 02:
It's being distressed by the parties that this land is going to be used for rarer purposes.

[00:11:28] Speaker 02:
And I don't understand what your honor is saying.

[00:11:31] Speaker 02:
But in the Magnolia case, too, grants convey the filing of real estate to a strip of land.

[00:11:37] Speaker 02:
I mean, that even has more details

[00:11:40] Speaker 02:
prior to the purpose statement than our needs do here.

[00:11:43] Speaker 01:
Do you know of any cases in Illinois in which something was interpreted as a fee simple deed, but then

[00:12:01] Speaker 01:
if the deed wasn't used for the purposes specified in the agreement, and therefore that fee simple reverted back to the original ownership?

[00:12:12] Speaker 02:
I can't think of a case like that.

[00:12:16] Speaker 02:
The cases, looking back at the facts of a lot of these, a lot of these fee versus these my deed cases, a lot of them are a situation where the railroad's abandoned its use of the land,

[00:12:30] Speaker 02:
And then they've got an argument against the adjacent landowner vote.

[00:12:33] Speaker 02:
We still own the fee simply, even though we left the land.

[00:12:36] Speaker 02:
That land is still ours.

[00:12:37] Speaker 02:
But the adjacent landowner is saying, no, no, no.

[00:12:38] Speaker 02:
The railroad just had an easement.

[00:12:40] Speaker 02:
And that's why I get my land back.

[00:12:41] Speaker 02:
So the issues seem to revolve more around what happens when a railroad is abandoned and not necessarily what happens when they start using the land for some other purpose than a railroad.

[00:12:53] Speaker 01:
And the only case where I saw this purpose around that was that Walker case involving

[00:13:00] Speaker 01:
Stephen Douglas's land.

[00:13:01] Speaker 01:
That one?

[00:13:02] Speaker 01:
Do you know which one I'm talking about?

[00:13:04] Speaker 01:
I'm not super familiar with that one.

[00:13:06] Speaker 01:
The purpose language is interpreted to not be binding.

[00:13:14] Speaker 02:
Right.

[00:13:14] Speaker 02:
OK.

[00:13:14] Speaker 02:
But I think that what still gets us there, gets the court there nonetheless, is magnolia.

[00:13:20] Speaker 02:
And just the simple reality that it's just a rare arrangement.

[00:13:24] Speaker 02:
The landowners certainly own the adjacent land.

[00:13:27] Speaker 02:
And pursuant to the Illinois Still Land Presumption,

[00:13:30] Speaker 02:
They get the land when the railroad right-of-way land is abandoned.

[00:13:35] Speaker 00:
And do you also look at cases like Keene and Sowers and Penn Central to kind of support your point in terms of the placement of where that for railroad purposes is put, or similar language?

[00:13:46] Speaker 02:
Absolutely, your honor.

[00:13:47] Speaker 02:
And the CFC relied on those cases to rule against plaintiffs.

[00:13:51] Speaker 02:
But those plaintiffs fully support plaintiff's position, which is that the location of the term

[00:13:59] Speaker 02:
in the granting clause carries the day.

[00:14:03] Speaker 02:
That's what's critical.

[00:14:06] Speaker 02:
So those cases, even though they were interpreted against us, actually do help plaintiff's case.

[00:14:13] Speaker 02:
Now, with respect to the third batch, we have the areas of the right of way where there is no conveyance instrument.

[00:14:21] Speaker 02:
In 2015, the court was faced with the same evidence, essentially, that I had in 2020.

[00:14:28] Speaker 02:
In 2015, the evidence before the court was that there was no fee simple conveyance located.

[00:14:36] Speaker 02:
There was no easement conveyance located.

[00:14:38] Speaker 02:
On that basis, the court ruled in two ways, one which was wrong and one which was particularly incorrect.

[00:14:47] Speaker 02:
One was that the court ruled that,

[00:14:51] Speaker 02:
Plaintiffs did not carry the burden for summary judgment, and therefore, they're not entitled to have summary judgment granted in their favor.

[00:14:58] Speaker 02:
But the second error was that the court also said, just because the plaintiffs have not carried the burden, they also, and that there was a genuine issue of material fact, the plaintiffs also lose their case.

[00:15:08] Speaker 02:
And that wasn't right.

[00:15:09] Speaker 02:
That's not how summary judgment works.

[00:15:12] Speaker 02:
I see my time is up, Your Honor.

[00:15:13] Speaker 03:
OK.

[00:15:13] Speaker 03:
Thank you all for your rebuttal time.

[00:15:19] Speaker 04:
May I please the court?

[00:15:22] Speaker 04:
I'd like to begin with the parcels for which there are conveying instruments.

[00:15:28] Speaker 01:
I'm sorry to interrupt you before you start.

[00:15:29] Speaker 01:
There was something in your red brief that concerned me.

[00:15:33] Speaker 01:
And I just haven't seen you fix it.

[00:15:35] Speaker 01:
And so I just want to bring it to your attention, which is on page 31 of your brief, you say this court has referred to McVeigh as a relative outlier.

[00:15:45] Speaker 04:
No, and it was magnolia.

[00:15:47] Speaker 04:
Appellants pointed that in their reply brief.

[00:15:49] Speaker 04:
That is a mistake.

[00:15:50] Speaker 04:
It was magnolia that this court referred to as an outlier.

[00:15:53] Speaker 04:
Yes, I apologize for that.

[00:15:57] Speaker 04:
Where I'd like to begin is the premise of Appellant's argument is that the rules of construction for railroad deeds are governed by a bright line absolute rule under which the mere presence of the phrase right of way

[00:16:11] Speaker 04:
dictates the type of a state that's been conveyed.

[00:16:15] Speaker 04:
And based on that premise, they make two overarching arguments, which is that right of way is capable of only one meaning, and that it can convey only an easement.

[00:16:25] Speaker 04:
And their second argument is that if the term right of way appears in the deed,

[00:16:29] Speaker 04:
particularly in the Grant and Clause, then it must be construed as conveying only an easement.

[00:16:35] Speaker 04:
But this court in Chicago, Coding, and the Illinois state courts in Arbatis and Sowers have made unequivocally clear that under Illinois law, there is, and I'm going to quote this, no per se rule that the mere inclusion of the term right of way in any deed to a railroad negates the possibility

[00:16:57] Speaker 04:
that title in fee simple was conveyed.

[00:17:00] Speaker 03:
And the reason- I guess I take their argument, or at least the argument I'm interested in on the other side, to be that this is for the right of way group of cases, that when the phrase right of way is the direct object of the granting verbs convey, then every single case in Illinois lines up

[00:17:25] Speaker 03:
and says, that's the grant of an easement, unless somehow negated later.

[00:17:31] Speaker 03:
And that seems to me to be true, as I read the cases, subject only to what this court said about the Jones deed.

[00:17:43] Speaker 03:
in Chicago coding, where, as I read our opinion, it really depends on this reference to the waiver of the homestead exemption.

[00:17:53] Speaker 04:
Well, Your Honor, we have a reading that there's no per se rule about the phrase right of way.

[00:17:59] Speaker 03:
No, what you read was the phrase right of way being used anywhere in the deed.

[00:18:05] Speaker 03:
That's a much broader category than used as the direct object of a granting verb.

[00:18:13] Speaker 04:
I understand, Your Honor, you're placing significance on the location.

[00:18:17] Speaker 04:
And I understand that there are cases in which the word right of way has been found in what one could categorize as the granting clause.

[00:18:26] Speaker 04:
But there is no law that says the location is determinative, that if it is the direct object or if it is in the granting clause, then it must be a right-of-way.

[00:18:35] Speaker 04:
And the reason relying on the term right-of-way by itself and giving it ultimate weight is that the Sowers Court, the Illinois Court, has stated, has held, that it is settled that the term right-of-way has twofold significance.

[00:18:51] Speaker 04:
So when we see the term right-of-way, though one might, in your mind, think, oh, that's an easement.

[00:18:55] Speaker 04:
We now know that under Illinois law, and Chicago coding understands that as well.

[00:19:01] Speaker 04:
That's why there's no per se rule about the use of the term right of way.

[00:19:05] Speaker 01:
Even if there isn't a per se rule, how do we not look at cases like Diaz-McBey and Tolman, which have language very similar to the language at issue here, and therefore conclude that the right of what's been typed as the right of way agreement are, in fact, conveying an easement?

[00:19:20] Speaker 04:
Well, first we have to remember that Herbatis, which is a Supreme Court decision out of Illinois, supersedes all of those.

[00:19:27] Speaker 04:
It's a 1991 decision.

[00:19:29] Speaker 04:
All of the other cases that you've spoken to are much earlier cases or appellate court cases out of the Illinois state courts.

[00:19:35] Speaker 04:
So what we have is the binding precedent as of 1991 out of Illinois that's saying there is no per se rule about seeing the phrase right of way.

[00:19:47] Speaker 04:
What this court has to do is when it sees the phrase right of way,

[00:19:50] Speaker 04:
Look for accompanying language.

[00:19:53] Speaker 04:
What tells me that this, of the two acceptable meanings for the phrase right of way, what tells me that this meaning is for the use only of the land versus for the land itself?

[00:20:06] Speaker 04:
So what we need to look for, right now what we have in the right of way agreements here is unadorned reference to right of way.

[00:20:12] Speaker 04:
This court has to determine, what did the parties intend?

[00:20:15] Speaker 04:
Because though we have no right rule about what right-of-way means, what this court does know is we have three principles of rules of construction under Illinois state law.

[00:20:26] Speaker 00:
The first is we... Why don't we put all of it together, at least for the right-of-way agreements?

[00:20:30] Speaker 00:
We've got a title, we've got a granting clause language, we've got something else.

[00:20:34] Speaker 04:
Why doesn't all of that together lead to the conclusion that opposing counsel... Because you can't know for certain what the words right-of-way mean.

[00:20:43] Speaker 04:
You can't say, well, I see the phrase right away, so it must mean easement.

[00:20:49] Speaker 04:
We know that under Illinois state law that's not the case.

[00:20:52] Speaker 04:
It's settled that it has two meanings.

[00:20:54] Speaker 04:
The court has to decide what is the meaning in these agreements.

[00:20:58] Speaker 04:
And again, I say you can't simply, we know we can't begin and end with just the phrase.

[00:21:03] Speaker 04:
So you look for other language within the agreement.

[00:21:06] Speaker 04:
And again, that brings me back to what the rules of construction are in the Illinois state courts.

[00:21:11] Speaker 04:
We begin, as the court must, that the fee has been conveyed.

[00:21:15] Speaker 04:
All of these agreements, purpose and right of way, are in statutory form.

[00:21:20] Speaker 01:
So we begin with a fee.

[00:21:22] Speaker 01:
Do you agree, though, that in your betas,

[00:21:25] Speaker 01:
Right away, language was not in the grant clause.

[00:21:30] Speaker 01:
It was, I believe, it was in the conditions clause.

[00:21:33] Speaker 04:
And, Your Honor, I'm not remembering, but assuming that is the case, that still doesn't request, does not

[00:21:41] Speaker 01:
stand as a standard.

[00:21:43] Speaker 01:
Even if it's not a standard, then your betas doesn't necessarily mean that these other cases were wrong, or that they aren't law for us to look to to resolve the issue in front of us.

[00:22:00] Speaker 04:
I'm simply indicating that based on the case law, what the court has to do is to make sure when it sees the phrase right of way,

[00:22:07] Speaker 04:
that it understands what it means, and it doesn't come to that phrase with the presumption that it's... I don't think I'll do that.

[00:22:15] Speaker 04:
I apologize.

[00:22:16] Speaker 04:
I certainly did not mean that.

[00:22:18] Speaker 04:
But to get back to the rules that we do know are in place, because there are no absolute rules about location, there are no absolute rules about the meaning of the phrase right of way, what we do have

[00:22:28] Speaker 04:
is rules of construction for these deeds.

[00:22:33] Speaker 04:
The first of which is, as I said, we begin with the presumption that the fee was conveyed.

[00:22:38] Speaker 04:
The second is to look to the intention of the parties.

[00:22:41] Speaker 04:
And we do that, the courts hold, by looking at the conveying instrument in its entirety.

[00:22:48] Speaker 04:
That is not only accepted by this court in Chicago coding.

[00:22:52] Speaker 04:
It's accepted by the Illinois courts, for example, in Arbatis and Keen and Sowers.

[00:22:57] Speaker 04:
It's in the Illinois Conveyances Act that you look to the entirety plaintiffs, I mean, appellants themselves in the opening brief at page 16.

[00:23:06] Speaker 03:
So I'm sorry.

[00:23:07] Speaker 03:
So what are the portions that might support your view, not

[00:23:14] Speaker 03:
and the phrase, for the right of way, being the direct object, which was not in her veins.

[00:23:19] Speaker 04:
We go to the second paragraph, where the grantors have clarified that to the extent I'm not clear in the first paragraph, I'm clear in the second paragraph that what I will convey or what I will do is take care of all of the ministerial tasks to convey to you in fee simple

[00:23:40] Speaker 04:
What I have addressed in paragraph one, if we look at paragraph two, it can't stand alone.

[00:23:45] Speaker 01:
Isn't there a case law in Illinois that says that you can convey a, oh, maybe I'm getting confused.

[00:23:54] Speaker 01:
Convey an easement in fee simple?

[00:23:56] Speaker 03:
Yes.

[00:23:56] Speaker 01:
That's exactly what I said.

[00:23:57] Speaker 04:
Certainly, an easement can be held in fee, but that has to, first we have to have that there's an easement.

[00:24:03] Speaker 04:
So first we have to establish here that by clear language,

[00:24:07] Speaker 04:
express clear language, the only thing that's been conveyed is use of the land and not the land itself.

[00:24:13] Speaker 03:
Well, I guess I took there to be two points on the other side about what to make of this second paragraph.

[00:24:20] Speaker 03:
One is that Illinois law makes clear that you can convey an easement in fee simple.

[00:24:27] Speaker 03:
Second, by its language, this is about an act that is to be taken in the future

[00:24:35] Speaker 03:
which is not the act already been done by the first paragraph.

[00:24:40] Speaker 03:
And I don't think there has been any proof or even offering of such future acts to make all proper and necessary deeds to convey in fee simple.

[00:24:55] Speaker 03:
So that this just doesn't end up altering the message we would take away from the title and the first paragraph.

[00:25:03] Speaker 04:
The second paragraph speaks to what the grantor will do when the railroad tracks go down.

[00:25:10] Speaker 04:
There is no dispute the railroad tracks went down.

[00:25:12] Speaker 04:
So we have to assume that then what was followed through is what the grantor did was the ministerial tasks of simply getting the deeds.

[00:25:21] Speaker 04:
And the reason the grantor was getting deeds to convey and fee simple, it's all of the language thereafter refers back to paragraph one.

[00:25:29] Speaker 04:
It's to give a fee simple to said company in paragraph one, said right of way in paragraph one, as soon as said railway in paragraph one is located on across said described premises in paragraph one.

[00:25:45] Speaker 04:
Paragraph two cannot exist without paragraph one.

[00:25:47] Speaker 04:
And what it says is, I will do the ministerial task to complete the conveyance that has been given in paragraph one.

[00:25:56] Speaker 00:
Can you talk about the non-instrument parcels as well?

[00:26:00] Speaker 04:
I'm sorry, the non-instrument?

[00:26:01] Speaker 00:
Parcels, yes.

[00:26:03] Speaker 04:
Appellant's theory is that they were that, let me get the exact language.

[00:26:09] Speaker 04:
Their theory is that there were no grants for those lands.

[00:26:18] Speaker 03:
So I thought that the theory was there

[00:26:23] Speaker 03:
Could well have been conveyances.

[00:26:25] Speaker 03:
We don't have the documents showing what the conveyances were.

[00:26:30] Speaker 03:
In the absence of those documents, the abutting landowner's fee simple interest has not been shown to have been transferred away from the abutting landowners.

[00:26:41] Speaker 03:
Full stop.

[00:26:44] Speaker 04:
Your Honor, no, I apologize.

[00:26:46] Speaker 04:
And I should have been looking at you.

[00:26:47] Speaker 03:
And then there's reference to,

[00:26:49] Speaker 03:
the Illinois Constitution, of all places, in the Bill of Rights, that a non-voluntary transfer to a railroad transfers nothing more than an easement.

[00:27:05] Speaker 03:
So that if you don't have a conveyance, there is no other way that the fee simple interest could have been conveyed.

[00:27:15] Speaker 04:
OK, to begin with, for

[00:27:18] Speaker 04:
They convey the parcels for which there's no conveying instrument.

[00:27:23] Speaker 04:
If you look at appendix page 673, it's appellant's position that the land was never granted to the railroad.

[00:27:31] Speaker 04:
It's their position.

[00:27:32] Speaker 04:
that those lands were acquired by the real world only by adverse possession?

[00:27:37] Speaker 03:
Well, it depends whether you're emphasizing in that phrase the word land, which I think is their emphasis, or the other parts of it.

[00:27:47] Speaker 03:
I take it their position to be fee simple interest in the land was never granted.

[00:27:53] Speaker 03:
And we know that, or rather, we don't know the contrary.

[00:27:58] Speaker 03:
We do not have any granting document that

[00:28:03] Speaker 03:
overrides the pre-existing fee simple interest of the abutting landowner.

[00:28:12] Speaker 04:
The position of the appellants is that those lands were acquired by adverse possession.

[00:28:18] Speaker 03:
Well, I don't actually remember that that is their position.

[00:28:21] Speaker 03:
But in any event, it's not necessary.

[00:28:24] Speaker 03:
I took it that their references to adverse possession were that without a conveying document,

[00:28:32] Speaker 03:
There is no other way the railroad could have gotten fee simple title, because the other ways in which transfers occur, the involuntary ways, like adverse possession or condemnation, by law do not give fee simple title.

[00:28:47] Speaker 04:
that it's not been stated that's the law in Illinois, that that's the only thing that the railroads can get.

[00:28:54] Speaker 04:
But I don't know of any authority that they decided to.

[00:28:57] Speaker 03:
Isn't that in the Illinois Constitution in Section 13 or something?

[00:29:04] Speaker 04:
If you don't mind, I don't know what the theory is, though.

[00:29:07] Speaker 04:
And the reason that the CFC ruled against them was because their theory is adverse possession.

[00:29:16] Speaker 04:
And then their briefs, that's what they argue.

[00:29:20] Speaker 03:
Suppose that I do not read their theory to be that, but I read it to be that we know that the abutting, weep to the plaintiffs, the abutting landowners started with fee simple title.

[00:29:36] Speaker 03:
There is no voluntary conveyance that took that away from us.

[00:29:40] Speaker 03:
None has been in evidence.

[00:29:43] Speaker 03:
Now, the only question is, well, could the railroad have gotten it without a voluntary conveyance?

[00:29:48] Speaker 03:
Answer, if you look at Illinois law, no, they couldn't have.

[00:29:52] Speaker 04:
The only thing I have to offer is for these, the three parcels that don't have conveying instruments,

[00:29:58] Speaker 04:
As the CFC found and appellants haven't disputed this, they haven't shown who owns the parcels of land, not the abutting land.

[00:30:06] Speaker 04:
They haven't shown who owns the parcels.

[00:30:08] Speaker 04:
They haven't shown how they were.

[00:30:10] Speaker 01:
When you say the parcels, you mean?

[00:30:12] Speaker 04:
The parcels of land on which the corridor is located.

[00:30:15] Speaker 01:
Right, which is adjoining the landowner's land on which they have a fee simple title, right?

[00:30:21] Speaker 04:
I don't know that there's anything in the record that shows that it's adjoining at a bus and the parcels are owned.

[00:30:29] Speaker 04:
I believe it's right in the court's order.

[00:30:31] Speaker 04:
Well, as the CFC found then, they haven't established who owns the land on which the corridor is located.

[00:30:39] Speaker 03:
Can I just ask you?

[00:30:40] Speaker 03:
You have a sentence on page 48 of your brief.

[00:30:43] Speaker 03:
But plaintiffs fail to establish as a threshold matter that they themselves own the land adjoining the parcels.

[00:30:51] Speaker 03:
No citation.

[00:30:52] Speaker 03:
I can't find anything in the CFC order that says that at all.

[00:30:58] Speaker 03:
If they were abutting land owners,

[00:31:00] Speaker 03:
You know, game over.

[00:31:03] Speaker 03:
And you just, I think, I read the sentence to say they're not abutting land owners.

[00:31:09] Speaker 03:
And I don't know where that comes from.

[00:31:11] Speaker 04:
If that's how it reads, that's a mistake.

[00:31:14] Speaker 04:
You didn't mean that?

[00:31:15] Speaker 04:
If you read the CFC's order, they haven't shown who owns the parcels of land on which the corridor.

[00:31:20] Speaker 01:
But they do say right at page 843 that the plaintiffs have put forward documents showing that they own the land abutting the disputed parcels.

[00:31:28] Speaker 01:
The disputed parcels.

[00:31:30] Speaker 01:
They haven't shown ownership of the disputed parcels.

[00:31:32] Speaker 01:
I understand.

[00:31:33] Speaker 01:
But I think if the presumption is that they own that land or had it in fee simple until some sort of agreement was made where they conveyed it either by easement or fee simple.

[00:31:49] Speaker 01:
And there is no agreement to show what happened, right?

[00:31:54] Speaker 01:
So in other words, there is no agreement showing that they conveyed

[00:31:59] Speaker 01:
anything, right?

[00:32:02] Speaker 01:
So isn't that then bad for the railroad if necessary?

[00:32:05] Speaker 04:
Well, it doesn't establish that they have a legally cognizable interest, which is the ultimate test here.

[00:32:11] Speaker 04:
Simply this meaning that there's a vacuum and there's nothing doesn't get them a takings claim if they haven't established their interest.

[00:32:18] Speaker 04:
And I'm sorry, I am perhaps misunderstanding.

[00:32:21] Speaker 04:
The disputed parcels in my mind are the corridor and a budding cart

[00:32:24] Speaker 04:
parcels are adjacent to it.

[00:32:27] Speaker 04:
And so I'm speaking of that there is no proof of ownership of the disputed parcels themselves.

[00:32:35] Speaker 04:
OK, thank you.

[00:32:37] Speaker 03:
Mr. Smith, three minutes.

[00:32:40] Speaker 02:
I won't take up much time.

[00:32:40] Speaker 02:
I was just going to

[00:32:42] Speaker 02:
I'll just come back for a second to the Tolland case.

[00:32:45] Speaker 02:
And just reiterate that that case is still a good Illinois law, Illinois Supreme Court case from the 1940s.

[00:32:56] Speaker 02:
And that's interpreting the interplay between the Illinois Conveyances Act

[00:33:00] Speaker 02:
And in this concept of deed interpretation, recognizing that every term and every deed is to be given away.

[00:33:09] Speaker 02:
Here's what I just want to read to the court what the Talman case says here.

[00:33:13] Speaker 02:
It says, the principle to be derived from the prior decisions of this court on this question, that question being, how do we deal with right of way and the Illinois Conveyances Act,

[00:33:24] Speaker 02:
Impressively derived from the prior decisions of this court on this question is that words indicating that a right of way arrearsment is granted will limit the effect of words of general warranty.

[00:33:34] Speaker 02:
That is the Illinois Supreme Court case saying that the phrase right of way will limit the estate to an easement.

[00:33:41] Speaker 02:
I just want to make that clear.

[00:33:43] Speaker 00:
I have a housekeeping question, sir.

[00:33:45] Speaker 00:
If we agree with you on, let's say, the right of way agreements, for example, do you feel strongly about reversal versus vacatur?

[00:33:53] Speaker 00:
Do you feel strongly about the outcome being reversed or vacated?

[00:34:00] Speaker 00:
If we agree with you.

[00:34:01] Speaker 02:
The decision would be reversed, because there is no genuine issue of material fact that plaintiffs do own the adjacent land.

[00:34:11] Speaker 02:
And we were just talking about who has the fee-simple ownership of the rare right-of-way adjacent to the parcels.

[00:34:18] Speaker 02:
The right-of-way agreements prove that the rare only held a decent for rare purposes.

[00:34:23] Speaker 02:
Therefore, there's absolutely nothing that can overcome the Illinois Supreme Court assumption.

[00:34:28] Speaker 02:
It's not a fee-simple conveyance.

[00:34:29] Speaker 02:
And that's the only thing that could put the ownership of the fee simple into the possession of the railroad.

[00:34:33] Speaker 02:
If there's a document that says the railroad owns the fee simple, that's the only thing that wins the day for the government.

[00:34:39] Speaker 00:
So if you can, what, if anything, is there for the court to do in light of the decision that we would, let's say we agree with you, we remand.

[00:34:47] Speaker 00:
What would the court need to do next with the next steps?

[00:34:50] Speaker 02:
What the court would need to do next is,

[00:34:53] Speaker 02:
Well, the court would need to hold an evaluation trial, or the parties would have to settle the matter of just compensation.

[00:35:00] Speaker 02:
Because that would be a presale taking at that point.

[00:35:04] Speaker 02:
Thank you very much.

[00:35:05] Speaker 02:
Thanks to all counsel.

[00:35:06] Speaker 02:
The case is submitted.