the united states court of appeals for the federal nd is now open and in session god save the united states and this honorable court reasons st in order to ascertain the intent of the parties the court must look to the law and the surrounding circumstances when the deeds were executed and that includes the statutes that existed in organise the time the common after the railroad surveys located in staked out the right of way pursuant to the railroads power of eminent domain and as this court specifically stated pretty so too an because the deeds were all executed under the compulsion of imminent domain and the clear purpose of each deed was to merely confirm a grant to utilize the strip of land for the construction and operation of the railroad which is a limited purpose under oregon law that creates a presumption of an easement by itself and that is something that the c s c never considered either and then finally in addition to the compulsory consent  about the more or less self evident fact that voluntary deeds are entered into under the shadow of arose eminent domain power but is there any oregon in the organ railway case where the supreme court of oregon specifically stated that the land is taken for a particular use for what you just saw to be appropriated that is in this case for the purpose of the it has been held that the rights of the company of the same is where they take their land under their compulsory powers quote which is exactly what we have here and in fact numerous organ supreme court decisions  want the fee simple interest and the railroad says sure we'll pay you a very large sum of money for that that that would still would how would hundred and fifty dollars and obviously under that scenario the court would still have to look at the factors one of the factors being a consideration but it is illogical and defies common sense to  that landowners would grant a substantial portion of their land particularly crossing or through their land for one dollar and assume that the railroad is acquiring a fee ownership in that what  the make of that i gather a number of the twenty six deeds at issue have facially nominal consideration others have patiently not nominal consideration how are we applied in all of these deeds and in frankly all of these cases and certainly is applied in in oregon and so i believe the court has to conclude that the stated consideration of one dollar is exactly what it is  consideration there a case that the two away from the state is one dollar consideration i think there are cases out there your honor that recognize that on occasion  the railroad would actually pay something more than was actually stated in the deed we don't dispute that but there's no evidence of that in these cases at all and in fact that's why i think the oregon supreme court when confronted with issue is always treated the consideration of one dollar as being one of the factors to consider not conclusive but one of the factors to consider and similarly like in the bush case where the consideration was six hundred and fifty dollars that is also one of the factors to consider misters or can i just ask you a question and in great brief i think your great brief there is a reference to how  the world of property interests may not be neatly divided between fee simple on one hand and easement on the other hand there are terminable interests the state interest something that may be referred to in is at the capelli footnote one of the one of the cases this case was fully framed in the court of federal claims and i think at least until the reply brief in terms of a binary choice easements versus fee simple what am i to make of a reference to terminable as a state interest when when the state interest is on condition of some use i'm a little confused about whether we need to address that or not well i don't believe you need to even if it's an easement is a substantial thing because a generally has the right to exclude others and in frankly all of the cases when you send was not actually a deed to a railroad but it was a strip of land for a road that that was confirmed by the organ supreme court a door will be gilbert and then also confirmed by the organ supreme court and hall the mire where they said the general prevailing attitude is favorable to the finding of an easement whenever that type of interest s contending that the oregon statute creates a presumption in favor of a fee conveyance and if it doesn't create a presumption presumption it certainly reads like it at least tips decidedly toward the conveyance in the absence of some compelling circumstance or indication otherwise and that seems to me to be consistent with the the way the factories are set forth and for an arts every one of those factories is whether something tips tips toward an easement twell if you're talking about whether something tips toward an easement then presumably you're starting fact of the supreme court of oregon specifically rejected that false premise into pearling where instructed the parties not to be overly technical to determine the meaning of the deed from the surrounding circumstances and the organ supreme court recognize the whole concept of compulsory consent but this case presents a rather obvious and any breach just error because number one ordinance the supreme court has repeatedly stated that the court must consider the surrounding circumstances at the time the deed was executed and the organ supreme court recognized the compulsory consent issue frankly between seven and nine times between eighteen million six hundred and ninety one  directed by the oregon supreme court ignored the common law of oregon ignored waste from oregon railway meals treatise and even the railroad charter ignored the wording of the de d but i don't believe the record is specifically clear on that on the ultimate conclusion that the railroad absolutely drafted them and if i can go back to  sure it's particularly relevant because the reality is that did not involve the deed to a railroad it involved ag to a lumber company and if you look at the boosh opinion carefully there were two different sections involved one section and one section twelve your original deed in section twelve was not even presented for the court to review and the deed in section seven did not contain any language concerning a strip of land so the only thing we can say for sure is that seven of the eight factors in bernards were not present in boucher and there was no compulsory consent either on the other hand in this case in addition to compulsory narrow strip of land which is tractor a's and bernard and i do want to say one thing about that because oregon has a very strong public policy against construing deeds conveying long and narrow strips of land gran of land is running across or through the grand tours land which is a factor three in bernards all of the deeds of issue described agreement without specificity which is specter six and bernard's almost all of the d's include nominal consideration which is specter seven in bernard's and many of the did use the phrase right of way in the body of the deed to describe the interest which is factor to in bring art and so in reality what we have is a situation where  almost all of the deep had at least four of the factors in the large plus compulsory consent nine of them have five factors plus compulsory consent five of them that the right to build maintain and operate a line of what do you do with the statement in capelli that said that statutory language is i think the language is not helpful and as far as i can tell even though that's almost fifty years old one hundred and seventy two i think it was that discounting of the significance of the statutory is another thing where does that leave us well your honor i think that the the statement and capelli i mean ultimately i mean the practical consequence when you look at the statute the practical consequence of abolishing the ancient rule is to create a presumption in favor of she can vance's and i think you know that the tipping statute is significant is obvious and evident from it particularly significant interpretating the deed rather move away from technical considerations look at what you can infer about the intent based on the substance of surrounding circumstances what does that leave of a statute as opposed that this is the organ supreme court pronouncing on the statute and i take it we are obliged to follow the or supreme court's pronouncement about the role of the statute not simply follow what would appear on the face of the language to be something different from that considerations governing intent and i'm trying to figure out what we do with that and not just ignore it your honor i think that when you look at capelli the way that the court analyze the deed before it is entirely consistent with the way that the court analyzed the deed before it and boosh with respect to how the court analyzed the deed before it bernard so our position of how the the court must analyze the deed is entirely consistent with what capelli in fact did in capelli found most significantly the court explained that the deed before it purports to grant only a right of way and also and that's very consistent with what we have said and with respect to boucher and bernard the most significant factor i mean the these these must be analyzed and the court must determine whether the intent to limit the conveyance to something these before the court do that they all in the granting clause they land none of them convey a right and of course the granting clause is the most significant clause in the deeds of the plaintiff in these cases are relying almost entirely on the descriptions of the parcels that are conveyed now if you look at capelli if you look at boucher if you look at barnard that the description of the parcel is not significant in determining and then there's the next paragraph says a grant of land and i think there's some language i don't have it in front of me but without any further language and here's a broad term capacious term seemingly relating to the use or purpose that's not that that's and work a patience description of the what you characterize as the land grant cases than saying that there has to be explained and clarified an error bruce really establishes that the way that the words are used in the detail the context in which they use the words are used in the deed must be given  effect and goose explained this with respect to the phrase right of way it has a twofold meaning the court explained and it can be used to describe a parcel of land or to describe of rights and that it is not it is it does not limit the interests conveyed when it is used in the form or respect respectfully or on our after boosh the court cannot this regard the age of the words are used and where the words are used in the deeds you know the boucher stablish is quite clearly that under oregon law the context must be given a fact and in these cases we have gone through each of these deeds very carefully in our brief your honor if you look if the court looks at the granting clause it will not find any limitation to a use any language restricting u paragraph on the other as a general rule concerning the grant of land this is the following the previous paragraph about the grant used and we clearly have a grant of land no question about that to a railroad cetera which do not contain additional language relating to the use or purpose it said or i'm not sure that we  purpose conceding for purposes of this question that they don't contain language restricting the use or parcel there is this language but i think when you look at who's and bernard's and how they analyze the deeds they are not you know bernard didn't even set forth the description of the land in that case and in that and analyzing the deed that's not where i mean where language restricting use would be found would be in the conveyance or in or possibly in  husband and clause that is also the the law in oregon that the grant in the granting clause controls and to the extent there is any inconsistency with another provision of a deed the grant what is granted in the controls so the way that the language and we submit your honor that under the way that the language is used must be given effect the context must be considered explained the courts that have not done that have have got the law have got it wrong so while they use the you know describe the parcel you know and it's quite reasonable for you know the the scription to describe the parcel in relation to the survey because it's very clear very precise where the where the land is but that isn't language that is restricting the use or demonstrating  this i'm not sure your honor because i guess part of part of what i took away from some of the cases was to the extent that they talk about how precisely defined the land is or  precisely or precisely there's a kind of concern that i at least one of the one of the plaintiffs briefs talks about this to the extent that the land that the interest transferred is defined only as a certain a strip certain number of feet on either side of the tracks that at some point if the tracks disappear how is the public to know what the definition of the property interest is and one answer would be if the surveys are publicly available then people would know but if that would not be available maybe that points a little bit in the direction of what's contemplated is an interest that is tied to the temporally defined use we're on our there is absolutely no support in oregon law for the proposition that parties have to anticipate future changes and structures or the landscape and you know we've explained in our brief that the restatement specifically  identify survey a prospective survey as an example of one way that a c can be identified in a deed this is even more than that because it's of course a completed survey so you know the and a said that the land that was at issue was not itself being used as a railroad can you clarify what this half is and who's well it was a lumber company but it was a railroad your honor so i don't think that at all significant the silverton lumber company constructed a railroad running through the strip of land in dispute so it was i mean there's no this is of course it's a it's a it's a railway clearly not form needs parties chose this ific words and parties chose very you know some different words and some different respects you know and we actually think it would be quite helpful  for the court to look at some of the deeds that we conceded conveyed an easement because parties certainly and of course it is definitely the rule in oregon that that any ambiguity is construed against the grant tore of the land so the sexually so clear to me in the language of grant or i forget which cases comes from is very specifically tied to the land the language of  the draft or because in the context that was that case was talking about it there is a grant or was the one who was reserving the easement and i took that just on the on the assumption that principle is for deeds as for contracts and similar things language is construed against the drafter it conceivably could matter whether the railroad was the one drafting  so i think there was an attempt to introduce them confusion but this is they are plainly the grand tours they weren't reserving anything but even in that circumstance and i think you know they there was cited  grant tore but again if i may your honor but you do use and parties chose very different language so for example some of these we conceded conveyed an easement hammon lumber this is that lumber conveyed quote the rights upon conditions here in express to enter upon such premises and to make the necessary survey and measurements so parties very different terms the parties the plaintiff no support in oregon law and judge toronto that goes to your question there is no implied limitation or any significance at all to the fact that the railroad surveyed and located  distinctive properties but i don't i guess i'm not being from oregon or student of oregon law i don't know if organ treats decisions as having stronger presidential effect than non gorgon supreme court decisions do you know i'm not i'm afraid i'm not sure of the answer to that question your honor but i do think you know you don't even it doesn't even matter here because you know when you look i mean to some burn ours are very helpful cases i mean this court was in a much more difficult position and preside because vermont law the court acknowledged uncertainty because the cases were very old and not entirely clear and there was no mechanism to get an answer from the armont supreme court but here you have two cases two oregon supreme court cases material respects judge protest to return to your point you are correct that the oregon court of appeals and results corporation attached no significance to a recitation of nominal consideration because it is not evidence that that was the actual consideration given and as we have explained in our brief that is the only respect that any of the deeds before the court today are steeds conveyed with feet and judge firestone went through them carefully and correctly correctly applied oregon law which looks to whether the intent to restrict the interest as can is in the word in bernards had the power of eminent domain and the lumber company in boosh did not which by definition basically throws out the entire concept of compulsory consent furthermore done pursuant to the eminent domain statute that the where will have the benefit of and what has happened over time unfortunately is many courts particularly when examining deeds that are well over one hundred years old the courts tend to ignore or forget about these basic principles about reviewing the circumstances the parties the timing the power within the domain etc but you can't really ignore going in oregon because they are specifically adopted and in turn this court actually referred to them and adopted them in pre show to they do you think the fact of the matter is that although the government referred to the detail in which the c s e  pretty clear that the common law borgen clearly recognizes compulsory consent i also want to talk just briefly about the response to want to judge toronto's questions about the use and purpose in the language  boosh itself instructs the courts to specifically look for additional language relating to the use or purpose to which the land is to be put or in any other way cutting down or limiting directly or indirectly via state to the lumber company who already own the surrounding lines i'm sorry i think i'm like i'm not hearing an answer to my question was that's used and under the deed to be used for a rail  and they later then abandoned it and basically made a road out of it that may be the other thing that i want to refer to as the factors and i went through them of itself which when you combine that with the fact that there was no discussion about the surrounding circumstances of the time or the use and purpose that these deeds were going to be put to