i am counsel for kansas property owners who are bringing this appeal this is a trails act takings case in which the government's liability turns upon an issue of kansas state law of the particular right of way in this case was established by condemnation in the late eighteenth hundreds eight hundred eighty one yet i just two questions about sort of pulling nary questions you need decision of of federal claims at page two there's a reference to a certification to the kansas supreme court i assume i didn't and i could be wrong i didn't see any mention of this in either your brief or the government's  so this is something that's no longer put at least for purposes of our the question the judge firestone certified was a different issue ok these this questions before the court today was not certified to just the question that was certified and i think your honor that's a very good point because certification would be appropriate under kansas statute they allow certification but they don't allow it from a court of federal claims judge firestone did certify a different question we actually briefed it in argue those issues to the kansas supreme court and then they on for reflection concluded they didn't have jurisdiction under their staff so we don't have to worry about that no but this court could certify the question to the kansas supreme court should you wish to do so when we do believe that that would be an appropriate hora one other question we have in the record here these various these deeds and in some cases we have been to the original photocopies of what's at page fourteen thirty six we have the type of version of that correct there would be looking at my appendix to mention drowner fourteen thirty six to seven zero six and then fourteen thirty six yes i believe that is correct just looking at that right so it's the same instrument one is transferred now it says on fourteen thirty six a says for and in consideration of one dollar and the convenience of all the right of way correct but if you don't back then and i'm only speaking for myself i look at seventy six and i don't see the word convenience there looks to me like warning consideration of one dollar and the  that word looks more like conveyance and i'm only speaking for myself i could be totally wrong but i read that we're to be at the end of the line the conveyance because you have what looks like a y coming in terms of the principles of kansas law that has been defined on terms of the principles of kansas law but in terms of what it means at least for the property that issue that is controlled by the in part by the role of the correct i would conveyance which i think those appear to me looking at the appendix to be the correct reading of that word i think that's just affirms a point that we've made in this case which is that kansas law it's an attic in terms of conveyances of strips of land to a railroad conveyance easement they do not convey the fi title and that doesn't matter in the court has said it doesn't matter i'm quoting now even from the stone court's most recent conveyance had words that said see say you ever stand where we're drilling down into the details of the document so much because i as i see it you don't really dispute the law i mean you seem to sort of citations to kansas was were inferring somewhat but the language the judge firestone used says that because the deeds don't contain a reversionary provision therefore she's going to conclude that it conveys the fetus state that is entirely backwards with how kansas supreme court has described it why it's not a defendant from of a legal standpoint your argument is that that those are factors that the court could consider but that they're not determinative so the  mere fact that their absence doesn't answer the question correct that in fact when you look at kansas law again particularly the abercrombie decision in the harvest queen decision the law is in fact that kansas has a public policy of defining pauline that these conveyances are easements where the land goes back to the adjoining property owners when it is no longer used for railroads and particularly as this court impresario noted kansas has the same view of condemnation which these conveyances were executed in the context of the condemnation of the court of the court always condemned within about a ten year period you have these quitclaim deed from a explicit it could be done there's no legal bar to it being done or if if this description is a strip of land use for right of way then i would say they can't even do it under the cans of statute that we quote because it specifically limits the railroad for use of something other than a railroad right of way well that's a different case these are cases where we're caught concerned with today when we have a narrow hundred foot wide or sixty six foot wide strip of land that was described as a strip of land to the marrow to be used for a right of way i would interpret kansas statute which is sixty six five to one it used to be called nine zero one thirteen sixteen it's an eight hundred sixty eight statute it's been the same  reenacted sense that and it says that the railroad corporations power our to hold the title to our voluntary grants of real estate it says and i'm quoting but the real estate received by voluntary grandchild be held and used for the purpose of such grants only and that's by the river now the railroad would it doesn't affect the railroad in that hypothetical has really has no need for a fee of state in the strip of land it is simply acquiring that  operate rail lines so it achieves its full need in the full public policy of building being able to operate a rare road with just an easement and i could reserve five minutes powers railroad two to hold and take voluntary grants as well as to purchase and hold with the power to convey real estate and the railroad in this case was operating pursuant already and there was no restriction on it billy to acquire the simple interest  general rule is that these purporting to convey around for a to a strip piece parcel or tract of land that does not subscribe or for to reuse the purpose or directly in or indirectly limit estate or generally construed as passing in the state and see  does not control the legal analysis of what actual right was conveyed what we point to when our brief and your honor may recall is that in the sergi where this consideration was considerable for thirty five hundred dollars and that amount was in it was quite a bit larger than what the railroad had paid to condemn the easement such that the property owners had a ready a seed payment for in condemnation for the acquisition of even interest and do it rather than go through the condemnation proceeding a second time they want religion real would want to just to make sure that it had that property it didn't need to your honor as a kid will that in the fair cases we point out in our brief thomas there was a small gran then his wife would have inherited that entire property so they didn't need to be additional clarification perhaps or would have been had they been co owners it isn't an issue and is as an initial matter but subsequent to that there was no need for clarification one dollar hundred seventeen one forty four sixty five they're not legally signify your honor they they don't they don't they said they were in a legal way what's important is that consideration was made the the conveyance valid and what's important is to look at actually the property that was conveyed and as as the deeds reveal there are no limitations on the interests conveyed and under kansas a background presumption understand the statute and as i understand  it does seem that there is a public policy statement that the supreme court of kansas has made that says we don't want a situation in which you know that that you know we we as a government have encouraged people to give up these rights away so we could have an efficient rail system across the country and then have to have a situation where someone could transfer that property in a way that is antithetical to the other uses so for instance you've got a hundred strip of land maybe in the middle of farmland and we're going to allow then the railroad to transfer it to somebody who would do something that would effectively destroy the appropriate use of that farmland and so i mean every comment makes clear  that given that overlay that it's got to be very clear that that you didn't intend to limit ever how we actually doesn't state as much honor it doesn't shift the presumption in any way it highlights in one  public policy interests are of transferring uses to some sort of potential of noxious use that the neighbors might perceive but it never states that that consideration is controlling in fact over and over again it has a supreme return to the language in this case it doesn't seem so vile to have to have it transferred to a school i can just the one where you get the best facts best best discussion for you and the other side would say bad facts make bad law all the other cases where the transfers were or the seem to be that where the real root was trying to really just profit or to do things that would would hurt the landowner that can the supreme court seem to say no respectfully understood then that the second  title and those those courts again do not find and find important at all to the second use of the land and they don't take that public policy considerations into account at all and addition your honor appendix seven eighteen you'll see the non continuous parcels and as well as day seven nineteen and those are two parcels that were established against prior to the condemnation and they are not just want to underscore that point because i know in the brief there's some disagreement about that and the plan to bear the ultimate burden of persuading the support that the taking has occurred and to do that they must be they must meet the around it they relied on it again for the first time in their reply they so i apologize that i haven't analyzed it or briefed this issue because it was race for the first time in reply but i believe what the claimant meant to demonstrate here is that somehow the irrigation one trusts chain of two of two additional losses are we concerned with all of the property mentioned in that deed or just the property in the deed that is referred to as having been subject to condemnation yeah all right and again your honor i would just just in concluding and building off the point i was making that the plaintiffs bear the burden of showing that these across language and references to the right of way none of that language is in the banging it person of the do that conveys the actual right those that over an across language only as a descriptive term it doesn't at all followed by the right that was conveyed burden this is a motion for summary judgment that was filed by the and under the standard the inferences would be drawn in favor of the opposing party in that case the landowners it's not our burden to disprove the government's argument in terms of the nature of the interest conveyed they are the ones who brought these deeds into court and contended that on the basis of these deeds the government is excused from their liability or obligation to pay the therefore the government would be liable for the taking because the railroad had not did not own the land of the condemnation so we relied on that the government is the one who came in with the deeds and then said by reason of these deeds we actually find that railroad own land and that is particularly relevant with those issues about the irrigation trustee because there's nothing in the record to connect those to an actual ownership of the land as opposed to a presumed release of your choice so that that the irrigation trust deed for example there's nothing in the record to show that they ever owned of the interest in the land that would be a factual issue that would be potentially a topic for we manned or certainly it's not a basis  support for the government contention but in terms of the cases that the government relies on they really fall into under kansas law when you harmonize them two categories you have the general rule the government spoke of a presumption that the fetus conveyed that is not true that is the opposite is the presumption for railroad rights of way conveyance to the railroad we've read and again i quote because it is such a in phatic by the kansas supreme court which says this court has uniformly help that railroads do not own fee titles to narrow strips taken us right away regardless of whether they were taken by condemnation or right away deeds the rules in conformity with the state's longstanding public policy and gives in effect the intention of the parties who execute right away deeds rather than going through lengthy expensive condemnation proceedings so t m has in both abercrombie and even before that in alan case that though the rule quoted in stone was a citation to an l r article and what you find the cases in kansas your honor fall into two categories you have the cases we're talking about a strip and generally a hundred feet wide or less where it's in the context of either a condemnation or the railroad actually building an operating or rail line across those conveyances are always conveyances of easements never have they been held to be a conveyance of a fee the of state conveyances which would be danielson and not both of which by the way were decided before harvest screen and the case the government relies on stone and then the mention challenge for all of those cases involve the conveyance of a large tract of land  that was in some cases used later for a portion of it for railroad but in all those cases there was no condemnation there was no connection between the railroad condemning an interest or a strip of land they were the prices on these deeds i think the prices are telling me it is the railroad right when they acquire an easement is an exclusive right to use this property so that's a valuable property right and it would affect the property interest with julie affair that is a case where the railroad came back to her after her husband died she was widowed and there was a significant section of property that they never acquired her interest  now my friend makes the point that well she would have been here to that for her from her husband true but the problem isn't that the problem is that the original condemnation never condemned her interest it only condemned his address so she had a significant interest that was in her property that the railroad would have wanted to compensate her for because whether it's an easement or whether it's a fee transfer the consideration does tell us something about what's being given but certainly like the rolands for a dollar those are the kind of nominal transactions that often would happen cleaning up title as anybody familiar with wheels leave religion is robertson to the extent of saying that it's not the term but that the dollar amount can is for the analysis i think that's correct that the dollar amount would inform certainly for a dollar i'm not going to give you it's much of a status i would you know what the role in the the one nine hundred sixty eight is when the rowlands went and sold the property a large tract of property not just the right of way but all their property to another buyer and when they described the property they sold and that the they said but it subject to this right of way for the railroad so when they describe the property by the time they referenced it as a railroad right of way that was certainly their understanding that this was their property was in cumbered by right away which would be an eas scale i'm sorry your honor to the final yet say well we did mention that if there is no court in kansas is ever construed deeds like this to be a conveyance of a fee of state and if the court were inclined to look at that that