NANCY B. FIRESTONE, Senior District Judge.
The Albright and Loveridge plaintiffs have asked this court to reconsider its rulings in its August 13, 2018 Opinion regarding 57 of the 132 deeds at issue in this case.
The Albright and Loveridge plaintiffs move for reconsideration under Rule 59(a)(1) of the Rules of the United States Court of Federal Claims. Under that Rule, this court, "in its discretion, `may grant a motion for reconsideration [,]'" but only if "`there has been an intervening change in the controlling law, newly discovered evidence, or a need to correct clear factual or legal error or prevent manifest injustice.'" Biery v. United States, 818 F.3d 704, 711 (Fed. Cir. 2016) (quoting Young v. United States, 94 Fed. Cl. 671, 674 (2010)). Accordingly, "[a] motion for reconsideration must also be supported `by a showing of extraordinary circumstances which justify relief.'" Id. (citing Caldwell v. United States, 391 F.3d 1226, 1235 (Fed. Cir. 2004)). The Supreme Court has held that motions for reconsideration "may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment." Exxon Shipping Co. v. Baker, 554 U.S. 471, 485 n.5 (2008) (quoting 11 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2810.1 (2d ed. 1995)). See also Lone Star Indus., Inc. v. United States, 111 Fed. Cl. 257, 259 (2013) ("A Rule 59 motion `must be based upon manifest error of law, or mistake of fact, and is not intended to give an unhappy litigant an additional chance to sway the court.'" (quoting Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999))). "A court . . . will not grant a motion for reconsideration if the movant `merely reasserts . . . arguments previously made . . . all of which were carefully considered by the Court.'" Ammex, Inc. v. United States, 52 Fed. Cl. 555, 557 (2002) (quoting Principal Mut. Life Ins. Co. v. United States, 29 Fed. Cl. 157, 164 (1993)). Rather, "the movant must point to a manifest (i.e., clearly apparent or obvious) error of law or a mistake of fact." Id. (citing Principal Mut. Life Ins. Co., 29 Fed. Cl. at 164); Lucier v. United States, 138 Fed. Cl. 793, 798-99 (2018). "`Manifest,' as in `manifest injustice,' is defined as clearly apparent or obvious," Lucier, 138 Fed. Cl. at 799 (quoting Ammex, 52 Fed. Cl. at 557), and therefore, as the court recently explained, a party "seek[ing] reconsideration on the ground of manifest injustice, . . . cannot prevail unless it demonstrates that any injustice is apparent to the point of being almost indisputable." Id. (citations and internal quotation marks omitted). The plaintiffs contend that there has been a manifest injustice on the grounds that the court misapplied Oregon law and that its rulings are inconsistent with this court's prior rulings in Boyer v. United States, 123 Fed. Cl. 430 (2015), a different rails to trails case arising in Oregon.
Both the Albright and Loveridge plaintiffs argue that in its August 13, 2018 Opinion, the court did not properly consider the factors the Oregon Supreme Court laid out in Bernards v. Link, 248 P.2d 341 (Or. 1952), opinion adhered to on reh'g, 263 P.2d 794 (Or. 1953) (Mem.), and Bouche v. Wagner, 293 P.2d 203 (Or. 1956) when seeking to determine whether a conveyance of a strip of land to a railroad conveyed an easement or a fee simple interest. In Bernards the Oregon Supreme Court, in finding that an easement had been conveyed to a railroad, identified eight factors courts have looked at to determine the intent of the parties to convey an easement or a fee when the intent is not clear from the face of the deed. The factors examined include: 1) whether the deed is entitled a right of way; 2) whether the interest conveyed is described as a strip of land for use as a right of way; 3) whether the deed contains a reverter clause that makes clear that the property will be returned to the grantor if it no longer will be used as a right of way; 4) whether the consideration is nominal; 5) whether the grantees have to provide crossings; 6) whether the phrase "strip of land" is used repeatedly to describe the interest being conveyed; 7) whether the property conveyed is described with precision (if not it is more likely an easement); and 8) whether fencing is required to be maintained by the railroad. Bernards 248 P.2d at 343. In Bernards, the Oregon Supreme Court found that a deed conveyed only an easement when the deed was labeled a right of way deed, nominal consideration was paid, the grant was for a strip of land to be used as a right of way for a railroad, the right of way was not described with precision, the grant was by its terms for the construction of a railroad and the property would revert back to the grantors if a railroad line was not built. Id.
Later in Bouche the Oregon Supreme Court was asked to decide whether a different deed conveyed an easement or fee to the railroad. In that decision, the Oregon Supreme Court explained that courts, in endeavoring to ascertain the intent of parties where the intent is not express, but the phrase "right of way" is used, will generally find an easement when the grant references the use to be made of the property in the granting or habendum clause. Bouche, 293 P.2d at 209. Thus in Bouche, the Oregon Supreme Court held that a deed conveyed a fee to the railroad where the deed: 1) described the conveyance as a strip of land without identifying the grant as only a right; 2) did not include a statement of purpose; 3) described the land to be conveyed with precision; and 4) used language in the habendum clause consistent with the grant of fee. In reaching this conclusion, the Bouche court explained that the fundamental task of a court in deciding whether a deed conveys a fee or an easement to the railroad is "to ascertain the intent of the original parties by considering the language of the deed in its entirety and the surrounding circumstances." Bouche, 293 P.2d at 208. See also Doyle v. Gilbert, 469 P.2d 624, 626 (Or. 1970); U.S. Nat'l Bank of LaGrande v. Miller, 258 P.2d 205, 209 (Or. 1927)).
In this case, after looking at the language of all of the deeds, including the ones not in dispute, the court found that certain of the Bernards/Bouche factors were not very helpful in discerning whether a deed conveyed a fee or easement because the parties had agreed that deeds with these factors conveyed both fees and easements. For example, the Alderman 11/614, Bryden 74/274, Cone 7/339, Handley 21/99, Hobson 7/39, and Illingworth 7/164 deeds, which the parties stipulated conveyed a fee to the railroad, all contained the phrase "strip of land" and language such as "through" and "across". Relying on the parties stipulations and comparing the language of the deeds that the parties agreed conveyed either an easement or a fee, the court concluded that although it would consider the phrase "strip of land" as an indication of an intent to convey an easement under Oregon law, the phrase "strip of land" without more was not very helpful in determining the parties' intent in most instances. The court also found that use of the word "through," which the Albright plaintiffs contend is interchangeable with "over and across," was also of limited value in discerning the original parties' intent because virtually all of the fee and easement deeds used "through" to describe the location of the "strip of land" conveyed on the grantor's property. Furthermore, the court also found that the precision used to describe fee interest conveyed was not consistent between the properties the parties agreed were conveyed in fee and thus the court did not give that factor much weight. The Alderman 11/614 deed contained a far more precise description of the land being conveyed which included specific references to boundary markers and precise metes and bounds description while the Cone 7/339 deed only described the land being conveyed as a land which runs through certain parcels.
In the court's view limiting the use of certain factors that were not helpful in discerning the parties' intent was in keeping with the Oregon Supreme Court's decision in Bouche. In that case, the Oregon Supreme Court explained that under Oregon law, ORS 93.120, "any conveyance of real estate passes all the estate of the grantor, unless the intent to pass a lesser estate appears by express terms, or is necessarily implied in the terms of the grant." Thus, the Oregon Supreme Court went on to explain that in deciding what was conveyed to a railroad, courts must pay special attention to whether the deed limits the railroad's use of the property to only a right:
In view of the foregoing, the court does not find that reconsideration is warranted solely on the grounds that the court did not give equal weight or sufficient weight to all of the eight Bernards/Bouche factors in deciding whether the original grantor conveyed a fee or easement to the railroad. This court examined each deed and applied the Bernards/Bouche factors as appropriate. Only to the extent that plaintiffs can show that these factors were misapplied will the court consider whether reconsideration is warranted.
Both the Loveridge and Albright plaintiffs also argue that this court's rulings in the August 13 Opinion are contrary to, and inconsistent with, the court's rulings three years ago in Boyer v. United States, 123 Fed. Cl. 430 (2015) and for this reason the court's rulings must be reconsidered. As discussed below, the court finds that any inconsistencies between the decisions do not warrant reconsideration of any ruling.
First, the Boyer and Loveridge and Albright cases involve different railroad lines and deeds and therefore the Boyer decision is of limited value in discerning the intent of the original parties to the deeds in this case.
Plaintiffs' motions for reconsideration of specific deeds are divided into the five categories the court asked the parties to use on reconsideration. See Oct. 22, 2018 Order. In its order, the court noted that the five categories may overlap and in that instance, the court explained that all of a plaintiffs' objections to the court's determination should "be addressed in the first category where the deed appears." Id.
Category I includes 10 deeds: Brinn 6/328; Cummings 77/262; DuBois 22/40; Gattrel 13/311; Goodwin 81/147; Large 5/536; Rinck 77/454; Slattery 94/161; Wheeler Lumber Co. 16/3; and Wheeler Lumber Co. 16/5.
For each of these 10 deeds in Category I, the Albright plaintiffs argue based on the language quoted above ("right to build, maintain, and operate language") that although the deeds do not include any right of way language that under Bouche these deeds must be read to convey only an easement. Specifically, the plaintiffs argue that under the standard set forth in Bouche any deed containing language relating to the use of the property being conveyed for railroad use must be construed to convey an easement.
The government argues in support of the court's previous ruling that the subject deeds in Category I convey a fee that plaintiffs have mis-read Bouche. Bouche states that
The government argues that because the right to build, maintain, and operate language does not appear in either the granting or habendum clauses of the 10 deeds and because there is no right of way language in any of the deeds, the court was correct in determining that the right to build, maintain, and operate language does not indicate an intent by the original parties to grant an easement.
The court agrees with the government and sees no reason to re-examine its holding concerning the relevance of the right to build, maintain, and operate language unless that language appears in connection with the grant of the property interest being conveyed. In other words, if the right to build, maintain, and operate language does not appear to affect the interest being conveyed, the court sees no reason to change its holding that such language indicates that the original parties intended to convey a fee to the railroad. However, the court will reevaluate each of these deeds to determine if the right to build, maintain, and operate language can be read in connection with the grant of the property interest and thus is better read as a limitation of that interest.
In further support of their motion for reconsideration of eight of the ten deeds
The
The court had found that the Brinn 6/328 deed conveyed fee simple title to the railroad because the language confirming the right to build a railroad did not limit the railroad's use of the grant to only railroad purposes, the amount of consideration was substantial ($150), there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the Brinn 6/328 deed mandates that the court find the Brinn 6/328 deed conveyed an easement. The Brinn 6/328 deed does not contain any of the other factors to suggest that the original parties intended to convey an easement. Therefore, the motion for reconsideration is denied.
The
The court had found that the Cummings 77/262 deed conveyed fee simple title to the railroad because the language confirming that the right to build a railroad did not limit the railroad's use of the grant to only railroad purposes, the amount of consideration was substantial ($217), there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Cummings 77/262 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine where that land was and the deed specifically states how many acres of land was conveyed to the railroad. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339
The
The court had found that the Du Bois 24/40 deed conveyed fee simple title to the railroad despite the nominal consideration ($1) because the language confirming the right to build a railroad did not limit the railroad's use to only railroad purposes, there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Du Bois 24/40 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine its precise location. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339, Handley 21/99, Hobson 7/39, Illingworth 7/164. Furthermore, in the description of the location of the property interest being conveyed the parties indicate that the land had already been surveyed which when read in conjunction with Restatement (First) of Property §471, cmt. c. (1944) shows sufficient precision in the description of the location of the conveyed land to conclude that the parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Du Bois 24/40 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Gattrell 13/311 deed conveyed fee simple title to the railroad despite the nominal consideration ($1) because the language confirming the right to build a railroad did not limit the railroad's use to only railroad purposes, there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Gattrell 13/311 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine its precise location. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339, Handley 21/99, Hobson 7/39, Illingworth 7/164. Furthermore, in the description of the location of the property interest being conveyed the parties indicate that the land had already been surveyed which when read in conjunction with Restatement (First) of Property §471, cmt. c. (1944) shows sufficient precision in the description of the location of the conveyed land to conclude that the parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards/Bouce factors weighed in favor of finding that the Gattrell 13/311 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Goodwin 81/147 deed conveyed fee simple title to the railroad because the language confirming the right to build a railroad did not limit the railroad's use to only railroad purposes, the amount of consideration was substantial ($350), there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Goodwin 81/147 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine its precise location. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339, Handley 21/99, Hobson 7/39, Illingworth 7/164. Furthermore, in the description of the location of the property interest being conveyed the parties indicate that the land had already been surveyed which when read in conjunction with Restatement (First) of Property §471, cmt. c. (1944) shows sufficient precision in the description of the location of the conveyed land to conclude that the parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Goodwin 81/147 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Large 5/536 deed conveyed fee simple title to the railroad because the language confirming the right to build a railroad did not limit the railroad's use to only railroad purposes, the amount of consideration was substantial ($250), there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the Large 5/536 deed mandates that the court find the Large 5/536 deed conveyed an easement. Therefore, the motion for reconsideration is denied.
The
The court had found that the Rinck 77/454 deed conveyed fee simple title to the railroad despite the nominal consideration ($1) because the language confirming the right to build a railroad did not limit the railroad's use to only railroad purposes, there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Rinck 77/454 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine its precise location. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339, Handley 21/99, Hobson 7/39, Illingworth 7/164. Furthermore, in the description of the location of the property interest being conveyed the parties indicate that the land had already been surveyed which when read in conjunction with Restatement (First) of Property §471, cmt. c. (1944) shows sufficient precision in the description of the location of the conveyed land to conclude that the parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that Rinck 77/454 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Slattery 94/161 deed conveyed fee simple title to the railroad because the language confirming the right to build a railroad did not limit the railroad's use to only railroad purposes, the amount of consideration was substantial ($10), there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Slattery 94/161 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine its precise location. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339, Handley 21/99, Hobson 7/39, Illingworth 7/164. Furthermore, in the description of the location of the property interest being conveyed the parties indicate that the land had already been surveyed which when read in conjunction with Restatement (First) of Property §471, cmt. c. (1944) shows sufficient precision in the description of the location of the conveyed land to conclude that the parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Slattery 94/161 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Wheeler Lumber Co. 16/3 deed conveyed fee simple title to the railroad despite the nominal consideration ($1) because the language confirming that the right to build a railroad did not limit the railroad's use to only railroad purposes, there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Wheeler Lumber Co. 16/3 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine its precise location. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339, Handley 21/99, Hobson 7/39, Illingworth 7/164. Furthermore, in the description of the location of the property interest being conveyed the parties indicate that the land had already been surveyed which when read in conjunction with Restatement (First) of Property §471, cmt. c. (1944) shows sufficient precision in the description of the location of the conveyed land to conclude that the parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Wheeler Lumber Co. 16/3 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Wheeler Lumber Co. 16/5 deed conveyed fee simple title to the railroad despite the nominal consideration ($1) because the language confirming that the right to build a railroad did not limit the railroad's use to only railroad purposes, there was no "right of way" language used in the title or body of the deed nor any right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Given these findings, which are not disputed, the court rejects plaintiffs' contention that the right to build, maintain, and operate language in the final portion of the deed mandates that the court find the Wheeler Lumber Co. 16/5 deed conveyed an easement.
The plaintiffs also argue that the description of the property conveyed is not precise and thus the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the description of the location of the land being conveyed to the railroad is sufficient to determine its precise location. Additionally, the description of the land is nearly identical to the description provided for in several other deeds that both the plaintiffs and the government agreed conveyed a fee to the railroad. See Cone 7/339, Handley 21/99, Hobson 7/39, Illingworth 7/164. Furthermore, in the description of the location of the property interest being conveyed the parties indicate that the land had already been surveyed which when read in conjunction with Restatement (First) of Property §471, cmt. c. (1944) shows sufficient precision in the description of the location of the conveyed land to conclude that the parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards factors weighed in favor of finding that the Wheeler Lumber 16/5 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
Category II includes the following deeds: Batterson 12/163, Easom 11/515, McMillan 11/328, Ostrander 9/205, Roy 11/516, and Shrader & Groat 11/354. The Albright plaintiffs make two separate legal arguments as to why the court should reconsider its determination that these six deeds conveyed a fee to the railroad. Each of these legal arguments will be addressed in turn.
The Albright plaintiffs contend that these six deeds should be interpreted as having conveyed only easements. Plaintiffs argue that "railway" in the title of a deed, is the same as, or interchangeable with, "right of way," Albright Mot. at 8, and that the title of the deed alone, regardless of whether "Right-of Way Deed" or "Railway Deed," is "enough under Oregon law to find an easement." Id. at 9.
The Albright plaintiffs did not raise this argument in their summary judgment motion or reply, but rather raised the issue for the first time in their objections to the Court's Preliminary Findings on summary judgment, ECF No. 49. The United States therefore maintains, as it did in oral argument, Oral Arg. Tr. 99:11-20, that the Albright plaintiffs have waived this argument.
Plaintiffs cite no Oregon law or other controlling authority in support of their argument, and the court is aware of no Oregon cases that hold, or even suggest, that a deed entitled "Railway Deed" cannot convey a fee. Indeed, to the contrary, as the United States previously noted, Def.'s XMSJ at 14-15, Oregon law is clear that railroads can own strips of land in fee. See Bouche, 293 P.2d at 206, 210. And the Oregon Supreme Court has held that, in conveyances to railroads, the phrase "right of way" can refer to the land itself and not be an indication of the estate being conveyed. Id. at 209. In this case, the Category II deeds do not use either the terms "right-of way" or "railway" in the body of the deed, but only in the title. Thus, because railroads can hold either fee title or easements in strips of land on which they construct a right of way, the title, "Railway Deed," does not dictate that the property interest being conveyed is an easement, rather it merely indicates that the deed is a form that can be used when a railroad is a party to a land conveyance.
In sum, as to this issue, particularly in light of the substantial consideration for each of the six conveyances (Batterson — $800; Easom — $800; McMillan — $300; Ostrander — $550; Roy — $1,000; Shrader & Groat — $200),
The Albright plaintiffs also challenge each of the Category II deeds on other grounds the deeds' use of "strip of land," and "through," and the lack of precision in their descriptions of the property being conveyed, which they claim are "additional indicia" indicating that the deeds were intended to convey easements and not fees as the court had previously determined. The court will review each deed in turn for reconsideration.
The
The court found that the Batterson 12/163 deed granted fee simple title to the railroad because "Railway Deed" on its own did not indicate an intent to convey an easement, the amount of consideration was substantial ($800), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I deeds the Batterson 12/163 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Batterson 12/163 deed conveyed a fee to the railroad. The court disagrees. First "strip of land" only indicates an intent to convey an easement when it is used in connection with language limiting its use. In this instance it is clear that "strip of land" is describing the property being conveyed. Similarly, deeds which contain the word "through" when describing the location of the "strip of land" does not indicate an intent by the original parties to convey an easement. The use of the word "through" is not the same as "over and across" which the Oregon Supreme Court found indicated an intent to convey an easement, and the use of "through" not in connection with a right to cross does not indicate an intent to convey an easement but rather is a description of the location of the property interest being conveyed. As such, the use of "through" in the Batterson 12/163 deed is not used in connection with a right and as such does not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Batterson 12/163 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court found that the Easom 11/515 deed granted fee simple title to the railroad because "Railway Deed" on its own did not indicate an intent to convey an easement, the amount of consideration was substantial ($800), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I deeds the Easom 11/515 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Easom 11/515 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the courts analysis of the Batterson 12/163 deed in Category II, the use of "strip of land" and through in the Easom 11/515 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Easom 11/515 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court found that the McMillan 11/328 deed granted fee simple title to the railroad because "Railway Deed" on its own did not indicate an intent to convey an easement, the amount of consideration was substantial ($300), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I deeds the McMillan 11/328 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the McMillan 11/328 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the courts analysis of the Batterson 12/163 deed in Category II, the use of "strip of land" and through in the McMillan 11/328 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the McMillan 11/328 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court found that the Ostrander 9/205 deed granted fee simple title to the railroad because "Railway Deed" on its own did not indicate an intent to convey an easement, the amount of consideration was substantial ($550), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I deeds that the Ostrander 9/205 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Ostrander 9/205 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the courts analysis of the Batterson 12/163 deed in Category II, the use of "strip of land" and through in the Ostrander 9/205 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Ostrander 9/205 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court found that the Roy 11/516 deed granted fee simple title to the railroad because "Railway Deed" on its own did not indicate an intent to convey an easement, the amount of consideration was substantial ($1000), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I deeds the Roy 11/516 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that Roy 11/516 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the courts analysis of the Batterson 12/163 deed in Category II, the use of "strip of land" and through in the Roy 11/516 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Roy 11/516 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court found that the Schrader & Groat 11/354 deed granted fee simple title to the railroad because "Railway Deed" on its own did not indicate an intent to convey an easement, the amount of consideration was substantial ($200), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I deeds the Schrader & Groat 11/254 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Schrader & Groat 11/354 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the courts analysis of the Batterson 12/163 deed in Category II, the use of "strip of land" and through in the Schrader & Groat 11/354 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Schrader & Groat 11/354 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
With respect to the twenty-eight deeds in Category III, plaintiffs argue that under Oregon law, this court should have determined that deeds which contained the phrase "strip of land" and the words "through," "over," "on," or "across" convey an easement. These are the same arguments made for the deeds in Category II except that the Category II deeds were all entitled "Railway Deed". As explained in the court's analysis of the Category II deeds the phrase "strip of land" when not used in connection with limiting language does not indicate an intent by the original parties to convey an easement. Additionally, the court's analysis of the deeds use of the word through also applies to similar words offered by the plaintiffs including "over," "on," and "across". Applying these standards, the court will review each deed in Category III in turn for reconsideration.
The
The court had found that the Beals 18/40 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Beals 18/40 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Beals 18/40 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Beals 18/40 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Beals 18/40 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Bigelow 13/312 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Bigelow 13/312 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Bigelow 13/312 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Bigelow 13/312 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Bigelow 13/312 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Burgholzer 83/99 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Burgholzer 83/99 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Burgholzer 83/99 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Burgholzer 83/99 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Burgholzer 83/99 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Campbell 85/208 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Campbell 85/208 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Campbell 85/208 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Campbell 85/208 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Campbell 85/208 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Cook 15/83 deed conveyed fee simple title because the amount of consideration was substantial ($10), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Cook 15/183 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing across the land, the court incorrectly concluded that the Cook 15/83 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and across in the Cook 15/83 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Cook 15/83 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Davidson 11/509 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Davidson 11/509 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that Davidson 11/509 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Davidson 11/509 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Davidson 11/509 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Galvani 77/37 deed conveyed fee simple title even though the amount of consideration was nominal ($1) and the grantor reserved the right to two farm crossings because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, and no right of reverter if the railroad discontinued railroad use.
Plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as across the land, the court incorrectly concluded that the Galvani 77/37 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and across in the Galvani 77/37 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Galvani 77/37 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Goodspeed 9/200 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Goodspeed 9/200 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Goodspeed 9/200 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Goodspeed 9/200 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Goodspeed 9/200 deed conveyed a fee was correct and therefore the plaintiff's motion for reconsideration is denied.
The
The court had found that the Hagen 75/279 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing across the land, the court incorrectly concluded that the Hagen 75/279 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and across in the Hagen 75/279 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Hagen 75/279 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Hamblin 85/284 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Hamblin 85/284 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Hamblin 85/284 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Hamblin 85/284 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Hamblin 85/284 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Haugen 9/204 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Haugen 9/204 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Haugen 9/204 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Haugen 9/204 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Haugen 9/204 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Jeffries 85/70 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Jeffries 85/70 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Jeffries 85/70 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Jeffries 85/70 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Jeffries 85/70 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Maroney 11/513 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Maroney 11/523 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Maroney 11/513 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Maroney 11/513 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Maroney 11/513 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Noland 74/108 deed conveyed fee simple title because the consideration was substantial ($79.20), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest
Plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing across the land, the court incorrectly concluded that the Noland 74/108 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and across in the Noland 74/108 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Noland 74/108 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Petrzilka 72/203 deed conveyed fee simple because the consideration was substantial ($100), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Petrzilka 72/203 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing across the land, the court incorrectly concluded that the Petrzilka 72/203 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and across in the Petrzilka 72/203 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Petrzilka 72/203 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Rockaway Beach 12/342 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Rockaway Beach 12/342 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Rockaway Beach 12/342 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Rockaway Beach 12/342 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Rockaway Beach 12/342 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Rupp 13/245 deed conveyed fee simple title because the amount of consideration was substantial ($10), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Rupp 13/245 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Rupp 13/245 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Rupp 13/245 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Rupp 13/245 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Stanley 11/113 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Stanley 11/113 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Stanley 11/113 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Stanley 11/113 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Stanley 11/113 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Thayer 11/355 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Thayer 11/355 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Thayer 11/355 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Thayer 11/355 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Thayer 11/355 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Thayer 18/39 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Thayer 18/39 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Thayer 18/39 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Thayer 18/39 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Thayer 18/39 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Watt 12/343 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Watt 12/343 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Watt 12/343 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Watt 12/343 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Watt 12/343 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Watt 12/344 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Watt 12/344 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Watt 12/344 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Watt 12/344 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Watt 12/344 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Watt 12/345 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Watt 12/345 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Watt 12/345 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Watt 12/345 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Watt 12/345 deed conveyed a fee as correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Westinghouse 85/39 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Westinghouse 85/39 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Westinghouse 85/39 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Westinghouse 85/39 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Westinghouse 85/39 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Williams 6/607 deed conveyed fee simple title because the amount of consideration was substantial ($10), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Williams 6/607 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Williams 6/607 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Williams 6/607 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Williams 6/607 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Wilson 75/244 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Wilson 75/244 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Wilson 75/244 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Wilson 75/244 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Wilson 75/244 deed conveyed a fee esd correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Woodbury 16/481 deed conveyed a fee simple title because the amount of consideration was substantial ($10), there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Woodbury 16/481 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Woodbury 16/481 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Woodbury 16/481 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Woodbury 16/481 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Woodbury 23/399 deed conveyed a fee simple title even though the amount of consideration was nominal ($2) because there was no "right of way" language in the title or body of the deed, no limitation on the use of the land for railroad purposes only, no right of reverter if the railroad discontinued railroad use, nor any requirement for the railroad to build structures such as crossings, cattle guards, or fences, nor any revert language.
Plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds the Woodbury 23/399 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee.
Next, the plaintiffs argue that because the deed refers to the property as a "strip of land" and describes it as passing through the land, the court incorrectly concluded that the Woodbury 23/399 deed conveyed a fee to the railroad. The court disagrees. For the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Woodbury 23/399 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Woodbury 23/399 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The nine deeds identified in Category IV, like the deeds in Category III above, conveyed a "strip of land" and used either the words "across", "through", or "over" in reference to that strip of land. Unlike the Category III deeds, however, the deeds in this category do use the term "right of way" either in the body or title of the deed. Again, however, as the United States has previously argued the significance of the term "right of way" in a deed conveying a property interest to a railroad is not that the term is used, but how it is used. Def's XMSJ 27-29, Def's Obj. Prelim. Findings 1-6, Oral Arg. Tr. 7-9. As the Oregon Supreme Court explained in Bouche, if a deed to a railroad grants "a use to be made of the property, usually, but not invariably, described . . . as a right of way in the grant," courts then have "little difficulty" in determining that the deed conveyed an easement. Bouche, 293 P. at 209. In Bernards, the deed the court determined conveyed an easement used "right of way" in the granting clause, stating that the grantors "do hereby grant, bargain, sell and convey unto the said grantee and . . . its successors, for its use as a right of way, a strip of land . . ." Bernards, 248 P.2d at 342 (emphasis added). The Category IV deeds use the term "right-of-way" within the bodies of the deeds, but not in the granting clauses. As the court has done in the previous three Categories, the court will examine the Bernards/Bouche factors again.
The
The court had found that the Beals Land Co. 18/41 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because the "right of way" language in the title of the deed described the geographic location of the property and not the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
The plaintiffs argue that the court was incorrect in determining that the Beals Land Co. 18/41 deed conveyed a fee to the railroad because in part this court improperly discounted the importance of the deed being entitled "Right of Way Deed". As support for their argument concerning this deed, the Albright plaintiffs cite on a case decided under Kansas law support that the title is an indication that the railroad received only an easement. Albright Mot. 13 n.5 (citing Biery v. United States, 753 F.3d 1279, 1289 (Fed. Cir. 2014)). The Loveridge plaintiffs make similar arguments and they compare the Beals Land Company 18/41 deed to the Wilhelm deed in Boyer where this court found that a deed entitled right of way, that used the phrase "over and across" and strip of land, that requires the railroad to build and maintain fences and crossings, and the reflects only nominal consideration as paid conveyed an easement to the railroad and not a fee. Additionally, the plaintiffs argue that the consideration provided is nominal and the deed contains the phrases "strip of land" and "through", the property being conveyed is not described with precision, each of which is a factor that weighs into concluding that the Beals Land Co. 18/41 deed conveyed an easement and not a fee.
In response, the government argues that the standards set forth in Bernards and Bouche do not suggest that because the deed is entitled "Right of Way Deed" it must be construed as conveying an easement without other indicia to suggest that the original parties intended to convey an easement. The government maintains that because the deed does not mention any railroad purpose or contain any language limiting the use of the land to only railroad purposes the court was correct in determining that a fee was conveyed to the railroad.
The court agrees with the plaintiffs that the court was incorrect when it previously determined that the deed conveyed a fee to the railroad rather than an easement. Although the issue of the nature of the conveyance is a close call, the court agrees with the plaintiffs that the balance of the Bernards/Bouche factors indicate that the original parties intended to convey an easement to the railroad. The combination of the use of "right of way" in the title of the deed as well as the nominal consideration indicate that the original parties intended to convey an easement to the railroad. Additionally, although as explained above, the singular use of the phrase "strip of land" and words such as through do not necessarily indicate in and of themselves an intent to convey an easement when read together with the title of the Beals Land Co. 18/41 deed, they do suggest an intent to convey an easement. Therefore, the plaintiffs' motion for reconsideration is granted on the Beals Land Co. 18/41 deed.
The
The court had found that the Bryden 74/273 deed conveyed fee simple title because the amount of consideration was substantial ($22.05), the "right of way" language in the body of the deed described the geographic location of the property and not the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrase "strip of land" and uses the word across, the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct when it determined that the use of the phrase "right of way" in this deed described the geographic location of the property and not the property interest itself. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and across in the Bryden 74/273 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Bryden 74/273 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Friday 72/526 deed conveyed fee simple title because the amount of consideration was substantial ($25), the "right of way" language in the body of the deed described the geographic location of the property and not the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and "located on" the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Friday 72/526 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards factors weighed in favor of finding that the Friday 72/526 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Hannan 99/354 deed conveyed fee simple title even though the grantee was required to build a hog-tied fence because the amount of consideration was substantial ($500), the "right of way" language in the body of the deed described the geographic location of the property and not the nature of the interest being conveyed, and there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and "across", the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. This is further supported by an inclusion of a specific amount of acreage that is being conveyed which indicates that the use of the term "right of way" was describing the geographic location of the interest being conveyed. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Hannan 99/354 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Hannan 99/354 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Hannan 72/549 deed conveyed fee simple title even though the amount of consideration was nominal ($1) because the "right of way" language in the body of the deed described the geographic location of the property and not of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and "across" the court should have found that the deed conveyed an easement and not a fee. The court agrees with the plaintiffs that the court was incorrect when it previously determined that the deed conveyed a fee to the railroad rather than an easement. Although the issue of the nature of the conveyance is a close call, the court agrees with the plaintiffs that the balance of the Bernards/Bouche factors indicate that the original parties intended to convey an easement to the railroad. The combination of the use of "right of way" in the title of the deed as well as the nominal consideration indicate that the original parties intended to convey an easement to the railroad. Additionally, although as explained above, the singular use of the phrase "strip of land" and words such as through do not necessarily indicate in and of themselves an intent to convey an easement when read together with the use "right of way" in the B Hannan 72/549 deed, they do suggest an intent to convey an easement. Therefore, the plaintiffs' motion for reconsideration is granted on the Hannan 72/549 deed.
The
The court had found that the Harter 29/115 deed conveyed fee simple title because the amount of consideration was substantial ($375), the "right of way" language in body of the deed described the geographic location of the property and not the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's interest.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and across the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. This is further supported by an inclusion of a specific amount of acreage that is being conveyed which indicates that the use of the term "right of way" was describing the geographic location of the interest being conveyed. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Harter 29/115 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Harter 29/115 deed conveyed a fee were correct and therefore the plaintiff's motion for reconsideration is denied.
The
The court had found that the Stowell 75/32 deed conveyed fee simple title because the amount of consideration was substantial ($50), the "right of way" language in the body of the deed described the geographic location of the property and not of the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and across the court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. This is further supported by an inclusion of a specific amount of acreage that is being conveyed which indicates that the use of the term "right of way" was describing the geographic location of the interest being conveyed. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and across in the Stowell 75/32 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Stowell 75/32 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Smith, Lloyd 16/515 deed conveyed fee simple title because the amount of consideration was substantial ($150)
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and through this court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Smith, Lloyd 16/515 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Finally, plaintiffs argue that the description of the property conveyed by this deed is not precise and thus this court should have found that the deed conveyed an easement and not a fee. The court disagrees and finds for the same reasons as explained in the court's analysis of the Category I and II deeds that the Smith, Lloyd 16,515 deed describes the location of the land being conveyed by the grantor with sufficient precision to conclude that the original parties intended to convey a fee. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Smith, Lloyd 16/515 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Wheeler 16/2 deed conveyed fee simple title although the amount of consideration was nominal ($1), the "right of way" language in the body of the deed described the geographic location of the property and not of the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and "across" at least three of the eight Bernards/Bouche factors are present and thus the court should have found that the deed conveyed an easement and not a fee.
The court agrees with the plaintiffs that the court was incorrect when it previously determined that the deed conveyed a fee to the railroad rather than an easement. Although the issue of nature of the conveyance is a close call, the court agrees with the plaintiffs that the balance of the Bernards/Bouche factors indicate that the original parties intended to only convey a fee to the railroad. The combination of the use of "right of way" in the granting clause of the deed as well as the nominal consideration indicate that the original parties intended to convey an easement to the railroad. Additionally, although as explained above, the singular use of the phrase "strip of land" and words such as through do not necessarily indicate in and of themselves an intent to convey an easement when read together with the use of "right of way" in the Wheeler 16/2 deed, they do suggest an intent to convey an easement to the railroad. Therefore, the plaintiffs' motion for reconsideration is granted on the Wheeler 16/2 deed.
Category V deeds consist of five deeds which only the Loveridge plaintiffs are seeking reconsideration. The arguments for reconsideration are nearly identical to the arguments made concerning the Category IV except that the Loveridge plaintiffs' primary arguments as to why reconsideration is warranted is that the court misconstrued the use of the phrase "right of way" and should have found that "right of way" was describing the interest being conveyed and that the deeds conveyed an easement to the railroad rather than a fee. As the court has done in the previous four Categories, the court will examine the Bernards/Bouche factors again.
The
The court had found that the Byrom 5/310 deed conveyed fee simple title although the amount of consideration was nominal ($5), because the "right of way" language in the body of the deed described the geographic location of the property and not of the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains only nominal consideration the court should have found that the deed conveyed an easement rather than a fee.
The court agrees with the plaintiffs that the court was incorrect when it previously determined that the deed conveyed a fee to the railroad rather than an easement. Although the issue of nature of the conveyance is a close call, the court agrees with the plaintiffs that the balance of the Bernards/Bouche factors indicate that the original parties intended to only convey an easement to the railroad. The combination of the use of "right of way" in the granting clause of the deed as well as the nominal consideration indicate that the original parties intended to convey an easement to the railroad. Additionally, although as explained above, the singular use of the phrase "strip of land" and words such as through do not necessarily indicate in and of themselves an intent to convey an easement when read together with the use of "right of way" in the Byrom 5/310 deed, they do suggest an intent to convey an easement. Therefore, the plaintiffs' motion for reconsideration is granted on the Byrom 5/310 deed.
The
The court had found that the Goodspeed 16/487 deed conveyed fee simple title because the amount of consideration was substantial ($3416.60), the "right of way" language in body of the deed described the geographic location of the property and not of the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and through this court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Goodspeed 16/487 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Goodspeed 16/487 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Hobson 13/331 deed conveyed fee simple title because the amount of consideration was substantial ($300), the "right of way" language in body of the deed described the geographic location of the property and not of the nature of the interest being conveyed, z there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and through this court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. This is further supported by an inclusion of a specific amount of acreage that is being conveyed which indicates that the use of the term "right of way" was describing the geographic location of the interest being conveyed. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Hobson 13/331 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards factors weighed in favor of finding that the Hobson 13/331 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
The
The court had found that the Johnson 9/610 deed conveyed fee simple title because the amount of consideration was substantial ($25), the "right of way" language in body of the deed described the geographic location of the property and not of the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and through this court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Johnson 9/610 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards/Bouche factors weighed in favor of finding that the Johnson 9/610 deed conveyed a fee were correct and therefore the plaintiff's motion for reconsideration is denied.
The
The court had found that the Paquet 5/316 deed conveyed fee simple title because the amount of consideration was substantial ($202.60), the "right of way" language in the body of the deed described the geographic location of the property and not of the nature of the interest being conveyed, there was no limitation on the use of the land for railroad purposes only nor a right of reverter if the railroad discontinued railroad use, and there was no requirement for the railroad to build structures such as crossings, cattle guards, or fences to protect the grantor's land.
The plaintiffs argue that the court incorrectly determined that the phrase "right of way" did not indicate the original parties' intention to convey an easement because it described the land being conveyed and not the nature of the property interest. Instead, plaintiffs argue the court should have determined that the use of the term "right of way" in this deed referenced the interest being conveyed and thus indicated an intention to convey an easement. Furthermore, the plaintiffs argue that because the deed contains the phrases "strip of land" and through this court should have found that the deed conveyed an easement and not a fee. The court disagrees. First, the court finds that it was correct that the use of the phrase "right of way" was describing the geographic location of the property and not the property interest itself. This is further supported by an inclusion of a specific amount of acreage that is being conveyed which indicates that the use of the term "right of way" was describing the geographic location of the interest being conveyed. Second, for the same reasons as explained in the court's analysis of the Category II deeds, the use of "strip of land" and through in the Paquet 5/316 deed are not made in reference to any language limiting the use of the land and thus do not indicate an intent by the original parties to convey an easement. Thus, the court finds that its original conclusion that the Bernards factors weighed in favor of finding that the Paquet 5/316 deed conveyed a fee was correct and therefore the plaintiffs' motion for reconsideration is denied.
For the foregoing reasons, the Albright and Loveridge plaintiffs' motion for reconsideration is hereby