In the United States Court of Federal Claims

No. 19-047L 

(Filed: April 3, 2020) 

JOHN CARPENTER et al.,

Plaintiffs, 

v. 

UNITED STATES,

Defendant. 

Keywords: rails-to-trails, 

easements, Fifth Amendment,

Vermont, takings, railroad, 

right-of-way, merger doctrine, 

partial summary judgment, 

railbanking, RCFC 56(a) 

Adam Riley, and Ethan Flint, Flint Law Firm, LLC, Edwardsville, IL, for Plaintiffs.

Christopher Chellis, United States Department of Justice, Environment & Natural Resources 

Division, Natural Resources Section, with whom were Jean Williams, United States Department 

of Justice, Environment & Natural Resources Division, Deputy Assistant Attorney General, 

Washington, D.C., for Defendant. 

MEMORANDUM OPINION AND ORDER

TAPP, Judge. 

This case arises under the National Trails System Act of 1968 (Trails Act) and concerns 

several parcels of land along a railway line in Bennington, Vermont. Before the Court are the 

parties’ cross-motions for partial summary judgment. On November 9, 2019, Plaintiffs moved 

for partial summary judgment on one claim by Amory Pacific, LLC,

1 alleging that the United 

States Surface Transportation Board’s (“STB” or the “Board”) conversion of the railway corridor 

into recreational trail, by operation of the Trails Act, effected a taking of Plaintiffs’ property.

(Pls. Mot., ECF No. 21). On December 6, 2019, the United States responded and filed a crossmotion seeking partial summary judgment on five parcels, including the Amory Pacific claim 

that is the subject of Plaintiffs’ motion, arguing that Amory Pacific has no ownership interest on 

which to base its takings claim. (Def. Mot. at 1, ECF No. 24). On December 27, 2019, and 

January 10, 2020, the parties filed their respective replies. (Pls. Reply, ECF No. 26; Def. Reply, 

ECF No. 27). This matter is now fully briefed and ripe for decision. 

For the reasons set forth below, the Court GRANTS Plaintiffs’ Motion for Partial 

Summary Judgment with respect to the claim brought by Amory Pacific, LLC; DENIES-INPART the United States’ Cross-Motion for Partial Summary Judgment as it relates to the Amory 

Pacific claim; and GRANTS-IN-PART the United States’ Cross-Motion for Summary 

1 Parcel No. 051-015-66122.

Corrected
2

Judgment as it relates to the claims brought by John and Sylvia Carpenter,2 Dwayne Scott 

Dupee,3 and SEALL, INC.4 Finally, Plaintiffs’ motion requesting oral argument (ECF No. 28) is 

DENIED AS MOOT. 

I. Background

The property at issue is a 1.57-mile segment of a railroad right-of-way corridor running 

through the Town of Bennington, Vermont. (Def. Mot. at 5). This segment is part of a 131-mile 

rail line owned by the State of Vermont and currently operated by Vermont Railway, Inc. 

(“VTR”), but has been owned or used by several railroad companies over the years.5 (See Def. 

Mot, Ex. 1). Vermont’s acquisition and VTR’s operation of this line was authorized by the 

Interstate Commerce Commission (“ICC”)—a predecessor agency to the STB— in 1964. (Id., 

Ex. 2). In 2004, the STB authorized VTR to operate the line under a modified certificate, which 

exempted VTR from the requirements of 49 U.S.C. § 10903 regarding termination of operations. 

(Id.). 

On July 5, 2018, VTR filed a 49 C.F.R. § 1152.50 Notice of Exemption to abandon rail 

service over the 1.57-mile segment of rail line and pursue a public use and interim trail use 

agreement with the Town of Bennington. (Id., Ex. 1). On September 14, 2018, pursuant to 

VTR’s Notice and the Town of Bennington’s request, the STB issued a Notice of Interim Trail 

Use (“NITU”). (Id., Ex. 2). On October 16, 2018, the Town of Bennington, State of Vermont, 

and VTR filed their interim trail use agreement with the STB. (Id., Ex. 4). Under the terms of the 

agreement, the Town of Bennington assumed responsibility for the management of the right-ofway corridor, as well as the associated legal and tax liabilities. (Id.). 

On November 9, 2019, Plaintiffs moved for Partial Summary Judgment on a single parcel 

belonging to Amory Pacific, LLC. (Pls. Mot. at 2). On December 6, 2019, the United States filed 

its Response and Cross-Motion for Partial Summary Judgment on five parcels: John Carpenter 

and Sylvia Carpenter; Dwayne Scott Dupee; Amory Pacific, LLC; and SEALL, INC. (Def. Mot. 

at 10, 12, 14; see also Stipulations, ECF No. 18). In their response and reply, Plaintiffs conceded 

the Carpenter, Dupee, and one of the SEALL claims should be dismissed.6 (Pls. Reply at 3). 

 2 Parcel Nos. 051-015-66938 and 051-015-66925.

3 Parcel No. 051-015-66944.

4 Parcel No. 051-015-66933.

5 Successive ownership of the right-of-way is not at issue in this case. For the sake of brevity, this Opinion 

occasionally refers to the owner of the rail line as simply “the railroad” without denoting which company owned and 

operated the line in the relevant time period. 

6 The United States has agreed to proceed to valuation on two other parcels owned by SEALL, INC. (Pls. Mot. at 26 

n. 2). Plaintiffs maintain that a small portion of Parcel No. 051-015-66933 relates to the same source deed (44/151) 

and should therefore proceed to valuation with the remainder of SEALL’s claims. (Id.). Plaintiffs have not 

expounded on the meaning of this footnote after conceding dismissal in the body of their Reply. As the United 

States has supported its motion, the Court finds this claim appropriate for dismissal.
3

The subject of the parties’ remaining dispute is whether the railroad source deed 

(“Patchin deed”) recorded at Book 31, Page 489 (the “31/489 deed”) in Bennington County, 

Vermont, conveys property in fee simple or merely an easement. 

II. Summary Judgment Standard

The jurisdiction of the Court of Federal Claims is primarily found in the Tucker Act, 

which allows the Court “to render any judgment upon any claim against the United States 

founded either upon the Constitution, or any Act of Congress or any regulation of an executive 

department, or upon any express of implied contract with the United States . . . in cases not 

sounding in tort.” 28 U.S.C. § 1491(a)(1). Under the Tucker Act, the United States waives its 

sovereign immunity for certain claims founded on another source of substantive law. United 

States v. Testan, 424 U.S. 391, 298 (1976); Fisher v. United States, 402 F.3d 1167, 1172 (Fed. 

Cir. 2005). “Rails-to-rails” claims based on the Fifth Amendment’s takings clause fall squarely 

within this Court’s jurisdiction. See Preseault v. I.C.C., 494 U.S. 1 (1990).

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC

56(a). A “genuine dispute” exists where a reasonable factfinder “could return a verdict for the 

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Material facts” 

are those which might significantly alter the outcome of the case; factual disputes which are not 

outcome-determinative will not preclude summary judgment. Id. In determining whether 

summary judgment is appropriate, the court should not weigh the credibility of the evidence, but 

simply “determine whether there is a genuine issue for trial.” Id. at 249. In so deciding, the Court 

must draw all inferences in the light most favorable to the nonmoving party. Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 578–88 (1986).

III. Discussion

The parties agree that, in 1852, the Western Vermont Railroad (“WVR”) acquired a 

parcel from Lyman Patchin by quitclaim deed for use in railroad operation. (See Stipulations at 

2; Pls. Mot, Ex. F). The parties further agree that Amory Pacific is the current owner of the 

parcel conveyed in this transaction. (See Stipulations at 2). The parties disagree whether this 

deed conveyed an easement or conveyed the corridor in fee simple. (See Pls. Mot. at 10; Def. 

Mot. at 12–13). 

Plaintiffs argue the Western Vermont Railroad company obtained only an easement in the 

Patchin transaction and that easement expired once rail operations ceased. (Pls. Mot. at 1). If the 

transaction conveyed only an easement, Plaintiffs argue, Amory Pacific assumed full ownership 

in the land once railroad operations ceased and the parcel was converted to recreational trail use. 

(Id.). Consequently, Plaintiffs argue Amory Pacific is entitled to compensation under the Fifth 

Amendment takings clause. (Id. at 2). The United States argues the railroad acquired the parcel 

from Amory Pacific’s predecessors-in-interest in fee simple, thus Amory Pacific has no standing 

to pursue a takings claim. (Def. Mot. at 1–2). Resolution of these arguments requires an analysis 

of several different bodies of law, as explained below.
4

a. The Trails Act

The Interstate Commerce Act of 1887 vested the ICC with excusive authority over the 

construction, operation, and abandonment of most railroad lines in the United States. Chicago & 

N.W. Transp. Co. v. Kalo Brick & Tile Co., 450 U.S. 311 (1981); Caldwell v. United States, 391 

F.3d 1226, 1228 (Fed. Cir. 2004). The STB, as a successor agency to the ICC, was vested with 

this exclusive and plenary authority in 1996. 49 U.S.C. § 1302. 

A railroad under the jurisdiction of the STB cannot discontinue service without the 

consent of the Board. Caldwell, 391 F.3d at 1228. To terminate service along a rail line, the 

railroad “must either (1) file a standard abandonment application that meets the requirements of 

49 U.S.C. § 10903; or (2) seek an exemption, under 49 U.S.C. § 10502.” Id. The Trails Act 

provides a third option, colloquially known as “railbanking,” whereby the railroad negotiates 

with a “trail operator” (usually a state or local municipality) to “assume financial and managerial 

responsibility for operating the railroad right-of-way as a recreational trail.” Id. at 1229; 

16 U.S.C. § 1247. When a right-of-way is “railbanked,” the abandonment proceedings are 

stayed, and the STB retains jurisdiction over the corridor with the option to restart rail service at 

later date. Caldwell, 391 F.3d at 1229; 49 C.F.R. § 1121.4. Because the abandonment 

proceedings are stayed, so too is the operation of state property law which might “result in 

extinguishment of easements for railroad purposed and reversion of rights of way to abutting 

landowners.” Id. (quoting 2 I.C.C.2d 591, 1986 WL 68617 (1986)). Therefore, a Fifth 

Amendment “taking” occurs “if the original easement granted to the railroad under state property 

law is not broad enough to encompass a recreational trail.” Id. (citing Preseault v. United States, 

100 F.3d 1525, 1552 (Fed. Cir. 1996) (“Preseault II”)).

The railbanking process begins when the railroad either files an abandonment application 

under 49 U.S.C. § 10903 or a notice of exemption under 49 U.S.C. § 10502. Id. at 1229–30. A 

potential trail operator then files a railbanking petition which must include: (1) a map and 

description of the right-of-way; (2) a statement assuming managerial, financial, and legal 

responsibility for the right-of-way; and (3) an acknowledgment the right-of-way could be 

reactivated for rail service. 49 C.F.R. § 1152.29. A successful petitioner who shows reciprocal 

interest from the railroad will then receive a Notice of Interim Trail Use (“NITU”) from the STB. 

49 C.F.R. §§ 1152.29(b)(2) and (d). The NITU “permits the railroad to discontinue service, 

cancel tariffs, and salvage track and other equipment, ‘consistent with interim trail use and rail 

banking’ without consummating an abandonment and the NITU extends indefinitely to permit 

interim trail use once an ‘agreement’ is reached between the railroad and the trail operator.” 

Caldwell, 391 F.3d at 1230 (quoting 49 C.F.R. § 1152.29(d)(1)). If the railroad and trail operator 

reach a railbanking and interim trail use agreement, the STB’s jurisdiction over the rail line is 

preserved. Caldwell, 391 F.3d at 1229; 49 C.F.R. § 1121.4. When the trail agreement is reached, 

a permanent Fifth Amendment taking occurs since the abandonment procedures are effectively 

blocked. Caldwell, 391 at 1235 (citing Preseault II, 100 F.3d at 1552).

b. Vermont Law 

The threshold issue in a takings analysis is whether the plaintiff “has a compensable 

property interest in the land allegedly taken[.]” Chicago Coating Co. v. United States, 892 F.3d 

1164, 1167 (Fed. Cir. 2018) (internal citations omitted). In making this determination, courts
5

“look to the law of the state in which the property is located.” Barlow v. United States, 123 Fed. 

Cl. 186, 194 (2015) (citing Preseault II, 100 F.3d at 1540). Here, because the parcels in question 

are located in Vermont, the Court will follow Vermont law.

Under Vermont law, if the railroad acquired title to the land in fee simple, then the

successors-in-interest “have no right or interest in those parcels” and thus do not have standing to 

maintain a takings action. Preseault II, 100 F.3d at 1533. However, a plaintiff does have standing 

to bring a takings claim if (1) the Railroad acquired only an easement; (2) the easement “imposed 

on the property owners’ underlying fee simple estates”; and (3) the easement was “limited to 

uses that did not include public recreational hiking and biking trails[.]” Id. Under Vermont law, 

when a railroad acquires property through formal eminent domain procedures, the railroad 

acquires only an easement that reverts to the grantor. Old Railroad Bed, LLC v. Marcus, 196 Vt. 

74, 78 (2014) (citing Dessureau v. Maurice Mem’ls, Inc., 132 Vt. 350, 351 (1974)).

The nature of the property interest can often be resolved “by analyzing the original deeds 

that conveyed the property to the railroad[.]” Chicago Coating, 892 F.3d at 1167. However, the 

deed is not always determinative of the scope of the property interest the railroad acquired. Troy 

& Boston R.R. v. Potter, 42 Vt. 265 (1869); see also Old Railroad Bed, 196 Vt. at 81 (citing 

Barre R.R. v. Montpelier & Wells River R.R., 61 Vt. 1 (1889)).

If an eminent domain proceeding occurred before the deed was recorded, the language of 

the deed deserves more scrutiny to determine whether the railroad obtained merely an easement 

or acquired the parcel in fee simple. See Old Railroad Bed, 196 Vt. at 79. In addition to the deed, 

courts may rely “on the location survey, together with all of the other surrounding 

circumstances” to determine whether a parcel has been taken by eminent domain or acquired in a 

fee simple transaction. See id.

According to the Vermont Supreme Court, an eminent domain taking occurs “when the 

initial steps, pointed out by the [Vermont eminent domain statute], were taken, [and] there only 

remained for the company to acquire [the parcel] through purchase or through proceedings in 

invitum.”7 Barre R.R., 61 Vt. at 6. For example, in Troy & Boston R.R. v. Potter, the Vermont 

Supreme Court held that a survey and location selection for the railroad’s right-of-way were 

sufficient “initial steps” to effectuate the taking, despite the absence of a recorded deed 

memorializing the right-of-way rights. 42 Vt. at 272. In Old Railroad Bed, however, the 

Vermont Supreme Court made clear that a location survey does not transform a fee-simple 

conveyance into an easement. 196 Vt. at 79, 82 (“[M]erely by virtue of the location survey 

referenced in the original deeds, the properties here were [not] necessarily acquired by eminent 

domain.”). These cases, when read together, highlight that the nature of the estate described in 

the deed does not always control. 

 7 “In invitum” means “against an unwilling person.” Black’s Law Dictionary 903 (10th ed. 2014). The phrase is 

often invoked in connection with eminent domain condemnation proceedings. See, e.g., City of Winooski v. State 

Hwy. Bd., 124 Vt. 496, 500 (1965). 
6

When there is no clear indication of the scope of the interest acquired by the railroad, 

Vermont courts have looked to the eminent domain authority granted to the railroad as 

encapsulated in its corporate charter. For a railroad to acquire a parcel in fee simple through 

eminent domain, it must explicitly possess such authority in its corporate charter. Preseault v. 

United States, 24 Cl. Ct. 818, 829 (1992) (“Preseault I”) (citing Hill v. Western Vermont 

Railroad Co., 32 Vt. 68 (1859) and Page v. Heineberg, 40 Vt. 81 (1868)). In either a sale or 

condemnation proceeding where the railroad has the power to acquire a parcel compulsorily, 

“there is this implied limitation upon the power, that the company will take only so much land or 

estate therein as is necessary for their public purposes.” Hill, 32 Vt. at 76. “Where no articulation 

of such power exists, more than 100 years of well-settled Vermont law supports the presumption 

that a railroad may only take what is ‘necessary’ to its purpose, namely, an easement.” Preseault

I, 24 Cl. Ct. at 829. 

The Court recognizes that questions of the interpretation of Vermont law may be best 

addressed by the state courts of Vermont. However, Vermont courts have declared themselves 

without subject matter jurisdiction to involve themselves in railroad abandonment disputes. See 

Trustees of the Diocese of Vermont v. Vermont, 145 Vt. 510 (1985). Further, Vermont has 

previously advised that it lacks any mechanism to resolve such questions on referral from federal 

courts. Preseault II, 100 F.3d at 1534. Like the Federal Circuit in Preseault II, “[w]e have no 

choice, then, but to determine this question of state law ourselves.” Id.; see Meredith v. City of 

Winter Haven, 320 U.S. 228, 234 (1943) (“[I]t has from the first been deemed to be the duty of 

the federal courts, if their jurisdiction is properly invoked, to decide questions of state law 

whenever necessary to the rendition of a judgment.”). 

c. The Nature of Amory Pacific’s Property Interest

Plaintiffs contend Amory Pacific is a successor-in-interest to land acquired by the 

Western Vermont Railroad Company in a quitclaim deed (the Patchin deed), and that the survey 

and location selection recorded prior to the Patchin deed constituted a taking by eminent domain. 

(Pls. Mot. at 10–16). Thus, Plaintiffs argue, the railroad acquired only an easement. (Pls. Mot. at 

15). The United States argues the Patchin deed conveyed property in fee simple, precluding 

Amory Pacific from asserting the property interest necessary to maintain its takings claim. (Def. 

Mot. at 12). As explained below, the Court agrees with the Plaintiffs.

d. The Patchin Deed

The railroad formally acquired its interest in the parcel at issue through a purchase

transaction, encapsulated in the Patchin deed. (Pls. Mot., Ex. F). The deed provides:

Know all men by these presents [sic], that we, Syman [sic] Patchin, Samuel 

H. Blackman, Sylvia Black-man his wife, D[illegible] Squires and Newell 

Squires, all of Bennington in the County of Bennington and State of Vermont, 

for the consideration of one hundred and sixty two dollars [$162.00] received 

to our full satisfaction of the Western Vermont Railroad Company of in the 

County of and State of Vermont, have remised and released and by these 
7

presents do remise and quit claim to the said Western Vermont Rail-road 

Company, their heirs and assigns forever, all our right, title, interest or 

demand in or unto a piece or parcel of land lying and being in Bennington. . 

. . being the same piece of land surveyed and taken by said Western 

Vermont Railroad Company to build their Railroad upon 

. . .

To have and to hold the above remised and quit-claimed premises, with the 

appurtenances thereof unto the said Western Vermont Railroad Company and 

their heirs and assign forever, to their own proper use, benefit, and behoof

. . . .

(Id. (emphasis added) (errors in original); see also Def. Mot. at 12; Pls. Mot. at 4)). Importantly, 

as Plaintiffs repeatedly highlight and the United States does not dispute, this deed was recorded 

following a survey and recording of the location selection. (Pls. Mot. at 13; see Def. Mot. at 15).

Two provisions of this deed support Plaintiffs’ argument that Amory Pacific retained a 

reversionary interest in the parcel because the railroad only acquired an easement. First, the deed 

indicates the parcel it conveys is the “same piece of land surveyed and taken” by the railroad. 

(Pls. Mot., Ex. F). In other words, the railroad had already exercised its eminent domain power 

over the parcel prior to execution of the deed, acquiring an easement. Second, the grantors remit 

the parcel to the railroad for “their own proper use, benefit, and behoof,”8 which indicates the 

interest was an easement rather than a fee simple estate. (Id.). The deed makes no mention of the 

estate conveyed, stopping short of granting a fee simple estate. Instead, the deed limits the 

conveyance to the railroad’s “use, benefit, and behoof[.]” (Id.). In interpreting whether Amory 

Pacific’s predecessors-in-interest retained a reversionary interest through the recording of the 

deed, we are guided by the decisions of the Federal Circuit and alternatively, the Vermont 

Supreme Court. 

e. Preseault II 

This Court is bound by decisions of its predecessor, the Court of Claims, as well as 

decisions by the Federal Circuit and the Supreme Court of the United States. S. Corp. v. United 

States, 690 F.2d 1368 (Fed. Cir. 1982) (en banc). Because the Preseault line of cases contains 

controlling law that bears on the outcome of the present dispute, the Court addresses those cases 

before analyzing Vermont law. See, e.g., Preseault v. I.C.C., 494 U.S. 1 (1990); Preseault II, 100 

F.3d 1525 (Fed. Cir. 1996); Preseault I, 24 Cl. Ct. 818 (1992).

At issue in Preseault II were three parcels acquired by the railroad—two through 

commissioner awards and one via warranty deed. 100 F.3d at 1534–35. The Federal Circuit 

summarized the warranty deed as follows:

 8 “Behoof” is an archaic term that means a “use, profit, or advantage that is part of a conveyance.” Black’s Law 

Dictionary (10th ed. 2014).
8

The operative instrument is a warranty deed, dated August 2, 1899, from 

Frederick and Mary Manwell to the Railroad. The deed contains the usual 

habendum clause found in a warranty deed, and purports to convey the 

described strip of land to the grantee railroad “[t]o have and to hold the 

above granted and bargained premises ... unto it the said grantee, its 

successors and assigns forever, to its and their own proper use, benefit 

and behoof forever.” The deed further warrants that the grantors have “a 

good, indefeasible estate, in fee simple, and have good right to bargain and 

sell the same in manner and form as above written. . . . 

Id. at 1535 (emphasis added). The Federal Circuit held that despite the language purporting to 

create a fee simple interest, “[u]nder well-settled Vermont law, the property interests in the 

parcel . . . conveyed following survey and location by warranty deed, amounted to [an] 

easement[ ]....” Id. (citing Preseault I, 24 Cl. Ct. at 830). In its decision, the trial court considered 

a trio of Vermont Supreme Court cases: Hill v. Western Vermont Railroad Co., 32 Vt. 68 (1859), 

Page v. Heineberg, 40 Vt. 81 (1868), and Troy & Boston Railroad Co. v. Potter, 42 Vt. 265 

(1869). Preseault I, 24 Cl. Ct. at 827–30.

In discussing Hill, the Preseault I court analyzed the corporate charter of the Western 

Vermont Railroad Company, the same railroad charter relevant to the instant proceedings. See 

Preseault I, 24 Cl. Ct. at 828. The court held that its charter did not grant the Western Vermont 

Railroad Company power to acquire land in fee simple and therefore, the interest acquired could 

only have been an easement. Id. at 829, aff’d, Preseault II, 100 F.3d at 1537. In affirming, the 

Federal Circuit cited profusely to Vermont law holding “the act of survey and location is the 

operative determinant, and not the particular form of transfer, if any.” Preseault II, 100 F.3d at 

1537. Thus, because the survey and location initiated the exercise of the railroad’s eminent 

domain power, “the proceeding retained its eminent domain flavor, and the railroad acquired 

only that which it needed, an easement for its roadway.” Id.

When the Federal Circuit issues a decision, this Court is not free to ignore it absent (1) 

intervention from the U.S. Supreme Court or (2) abrogation by statute. See Strickland v. United 

States, 423 F.3d 1335, 1338 n. 3 (Fed. Cir. 2005). Neither has occurred here. The facts material 

to a decision in the instant case are nearly indistinguishable from those examined by the Federal 

Circuit in Preseault II. Both involved the same railroad charter, similar deed language, and the 

same process of conveyance—survey and recording of location prior to recorded deed. 

In Preseault II, conveyance of the parcel to the railroad for its “own proper use, benefit 

and behoof” is language identical to that of the Patchin deed. See 100 F.3d at 1535. In fact, the 

Preseault II deed goes further than the Patchin deed to identify the estate it purportedly created: a 

fee simple interest. Id. Nevertheless, the Preseault II court held that, under Vermont law, an 

easement was created. Id. at 1537. Like Preseault II, the Patchin deed followed the recording of 

a survey and location selection and contained language that conveyed only what the railroad 

required for its “own proper use, benefit and behoof[.]” Therefore, through the recording of the 

Patchin deed, “the proceeding retained its eminent domain flavor, and the railroad acquired only 

that which it needed, an easement for its roadway” rather than land in fee simple. Id.
9

Consequently, the Court must grant the Plaintiffs’ motion for partial summary judgment on the 

Amory Pacific claim and deny the United States’ motion with respect to the same. 

f. Consistency With Vermont Law

Even if this Court were not bound by the decision in Preseault II, the conclusion that the 

railroad acquired only an easement is supported on alternative grounds by Vermont law. 

Specifically, the railroad obtained an easement when it surveyed and recorded the location of the 

right-of-way, an exercise of its eminent domain power. Further, the Patchin deed does not 

purport to convey the parcel in fee simple, and even if it did, the Western Vermont Railroad 

would have been prohibited by its corporate charter from exercising its eminent domain power to 

acquire a fee simple interest. Several cases from the Vermont Supreme Court support this 

conclusion. 

The parties chiefly disagree on what effect, if any, Old Railroad Bed v. Marcus, 196 Vt. 

74 (2014), has on this case. The United States argues Old Railroad Bed holds that a fee simple 

deed is not converted to an easement simply because the survey and location selection were 

recorded prior to execution of the deed. (Def. Mot. at 16–17). Plaintiffs, on the other hand, argue 

that Old Railroad Bed does not control Amory Pacific’s claim because in Old Railroad Bed, the 

fee simple deed was recorded before the survey or location was recorded. (Pls. Reply at 6).

However, Old Railroad Bed makes clear that we must examine the location survey “together 

with all of the other surrounding circumstances” to find evidentiary support that a parcel was 

taken by eminent domain. Old Railroad Bed, 196 Vt. At 79.

Old Railroad Bed emphasizes that recording of a location survey does not automatically 

mean the parcel was acquired by eminent domain. Id. at 81. However, Old Railroad Bed only 

resolves whether a recording of a location survey can change the character of the estate described 

in an already-recorded deed. Id. Several other cases inform the Court’s analysis of Vermont law. 

In Hill v. Western Vt. R.R., the parties failed to record a conveyance instrument for a 

transaction between the Western Vermont Railroad and a Vermont landowner. 32 Vt. at 69. The 

Court found the location selection constituted the act of a taking using the eminent domain 

power. Id. at 69–72. The Vermont Supreme Court then reviewed the corporate charter of the 

Western Vermont Railroad Company to determine the nature of the land estate the railroad

acquired, ultimately holding the railroad’s eminent domain power was limited to acquisition of 

easements. Id. at 74.

In Page v. Heineberg, the Vermont Supreme Court addressed whether the Vermont 

Central Railroad acquired property in fee simple, or whether the railroad was only permitted to 

exercise eminent domain to acquire easements. 40 Vt. at 84–85. The court relied on the broad 

authority in the railroad’s charter to find the railroad had the power to acquire the entire estate

through an ordinary purchase transaction. Id. at 86.

Under Vermont law, the selection of a location constitutes exercise of the eminent 

domain power to take land for public use. Hill, 32 Vt. at 69–72 (“After the [right-of-way] is once 
10

located and finished, the right to acquire land by statute proceedings cannot be exercised 

further.”); see also Troy & B.R Co. v. Potter, 42 Vt. at 272. All that is left is to determine 

whether through that exercise, the railroad acquired an easement or a fee simple. Hill, 32 Vt. at

73. Without an instrument—either deed or contract—that specifies the character of the taking

(which occurs at the time of the location selection), Vermont law is clear that the estate taken is 

the maximum property interest allowed under the railroad’s eminent domain power. Id. at 75 

(“[W]here [railroads] have by their charter the power to [take land] compulsorily, there is this 

implied limitation upon the power, that the [railroad] will take only so much land or estate 

therein as is necessary for their public purposes.”) (emphasis added).

To find the extent of that power, we look to the railroad’s charter. Id. (“[W]here the 

quantity of estate is not defined, that it should be construed . . . according to the object and 

purport of the grant, and the necessities or wants of the corporation thereby created.”) (emphasis 

added). The power to exercise eminent domain to acquire in fee simple must be delineated 

explicitly in the corporate charter, or else the railroad has only the power to exercise its eminent 

domain power to acquire an easement. See Page, 40 Vt. at 86 (distinguishing Hill by holding “in 

this charter we think [Vermont Central R.R.] have this comprehensive signification, and clothe 

the company with the power or capacity to take the entire estate[.]”) (emphasis added); Troy & 

B.R Co., 42 Vt. at 273. The Page court took pains to stress the acquisition power depended 

“mainly[ ] upon the provisions of the charter of the company[.]” Page, 40 Vt. at 86.

As explained above, the corporate charter of the Western Vermont Railroad indicates the 

railroad was not capable of exercising its eminent domain power to acquire land in fee simple. 

Here, the survey and location selection took place before the Patchin deed was recorded, and 

nothing in the Patchin deed purports to evidence a purchase transaction of a fee simple estate. 

(See Pls. Mot., Ex. F). Instead, the deed refers to the same estate already “surveyed and taken,” 

indicating it attempts to capture the eminent domain proceedings exercised in the location 

selection. (See id.). The Patchin deed grants the premises to the railroad for its “use, benefit, and 

behoof” rather than explicitly identifying a fee simple estate. (Id.). Although unavailable to this 

Court, both parties rely on Hill’s interpretation of the WVR’s corporate charter. (Def. Mot. at 

17–18; Pls. Mot. at 15, n. 8). 

In Hill, the Vermont Supreme Court analyzed the eminent domain power afforded to the 

Western Vermont Railroad, the railroad which surveyed and recorded the location of the parcel it 

later acquired via the Patchin deed:

The charter of the Western Vermont Railroad Company provided that their 

directors might cause such examinations and surveys of the road to be made 

as they should deem necessary; and that the road, when so surveyed and the 

survey recorded, should be deemed the line on which the road was to be 

constructed; and that the corporation might enter upon and take possession of 

such lands as were necessary for the construction and maintenance of 

their railroad, and the requisite accommodations appertaining thereto, 

with a provision for the appraisal, by commissioners, of the land so taken, if 

the parties should disagree as to the price.
11

Hill, 32 Vt. at 70 (emphasis added). The court found the WVR only had the power to exercise its 

eminent domain power to acquire easements. Id. at 74 (“[This charter] was not intended to give 

[the railroad] power to acquire any more land or any greater estate in such land, for the purposes 

of a road bed or stations[.]”). Neither the survey and location selection, nor the Patchin deed 

purport to convey more than an easement in the parcel now owned by Amory Pacific. Further, 

under Hill, the railroad, through its corporate charter, lacked the necessary authority to acquire 

the parcel from Amory Pacific’s predecessors-in-interest in fee simple. 

Therefore, the railroad obtained only an easement in the parcel and Amory Pacific, as a 

successor-in-interest to the Patchin deed, has the necessary ownership interest to maintain its 

takings claim. As discussed below, the NITU exceeds the scope of that easement, ripening 

Amory Pacific’s claim and entitling it to compensation. 

g. Scope of the NITU

As the Western Vermont Railroad acquired only an easement for railroad purposes, its 

successors cannot hold more than an easement. The successors, including the most recent

railroad—Vermont Railway, Inc.—continuously used the easement for railroad operations. (Pls.

Mot., Ex. A). Therefore, the easement remained with the successive railroad operators for these 

purposes, without reverting to the landowners, until the parcel was converted into a trail. (See 

id.).

When the STB issues the NITU pursuant to the Trails Act, the NITU severed the 

Vermont Railway’s claim to the land because recreational use falls outside the scope of the 

easement. Caldwell, 391 F.3d at 1229; Preseault II, 100 F.3d at 1552. The burdens of the 

easement run with the land. Coggeshall Development Corp. v. United States, 23 Cl. Ct. 739 

(1991); Public Utility Dist. No. 1 of Ferry County, Wash. v. United States, 20 Cl. Ct. 696 (1990). 

Upon severance, all reversionary rights vested with the successors-in-interest to the original 

grantors in the Patchin deed. Amory Pacific is one of those successors. (See Stipulations, ECF 

No. 18). 

As successors abutting the corridor, Amory Pacific retained the rights to disputed 

property. Therefore, conversion of the rail corridor to recreational trail exceeded the scope of the 

easement, constituting a Fifth Amendment taking of Amory Pacific’s land. The United States is 

liable for the taking, and Amory Pacific is entitled to just compensation. 

IV. Conclusion

Whether relying on the controlling authority of Preseault II, or undertaking an analysis of 

Vermont law, the Court reaches the same result—the railroad obtained only an easement. 

Therefore, the Court holds as follows:

1. Partial summary judgment in favor of the United States is GRANTED with respect to 
12

the claims Plaintiffs concede should be dismissed: John and Sylvia Carpenter, 9

Dwayne Scott Dupee,10 and SEALL, INC. 11 The clerk is directed to enter judgment 

pursuant to RCFC 54(b), there being no just reason for delay. 

2. The United States’ Cross-Motion for Partial Summary Judgment with respect to the 

claim brought by Amory Pacific, LLC is DENIED.

3. Partial summary judgment is GRANTED in favor of the Plaintiffs with respect to the 

claim brought by Amory Pacific, LLC. 12

4. Plaintiffs’ motion requesting oral argument (ECF No. 37) is DENIED AS MOOT. 

The clerk is directed to enter partial judgment accordingly. The parties are ordered to file a joint 

status report on or before April 24, 2020, advising the Court as to the status of the remaining 

claims and proposing a schedule for further proceedings. 

IT IS SO ORDERED.

s/ David A. Tapp

 DAVID A. TAPP, Judge

 9 Parcel Nos. 051-015-66938 and 051-015-66925.

10 Parcel No. 051-015-66944.

11 Parcel No. 051-015-66933.

12 Parcel No. 051-015-66122.