# In th e United States Court of Federal Cl aims

N o. 14-135L (F iled: J uly

10, 2015)

************************************* J EF F REY MEMMER, GI L B ERT * EF F I NGER, L ARRY GOEB ELAND * SUSAN GOEB EL , OW EN HAL PENY, * MATTHEW HOSTETTL E R, J O SEPH * J ENKI NS, MI CHAEL

MARTI N AND * RI TA MARTI

N, McDONAL D F AMI L Y * Rails-to-Trails; F ifth Amendment Taking ; F ARMS OF EVANSVI L L E, I NC., REI B EL * Convey ing Easements Under I ndiana L aw; F ARMS, I

N C., J AMES SCHMI DT AND * Recreational Trails B ey ond the Scope of ROB I N SCHMI DT, * Railroad Purposes Easements; No Trail Use
* Ag reement Ex ecuted; Ex p iration of NI TU; Plaintiffs, * F ailure to Consummate Abandonment; Offer

* of F inancial Assistance
v. *
* THE UNI TED STATES, *
* Defendant. *
*************************************

Steven M. W ald, St. L o uis, MO, for plaintiffs.
Ty ler L

. B urg ess, United States Department of Justice, W ashing ton, DC, for defendant.

OP INION AND ORDER

SWEENEY , J udg e

I n this Rails-to-Trails case, plaintiffs own real property adjacent to railroad rig

hts-of-way in southwestern Indiana. They contend that the United States violated the J ust Compensation Clause of the F ifth Amendment to the United States Constitution by authoriz ing the conversion of the railroad rig

hts-of-way

into recreational trails pursuant to the National Trail Systems Act (“Trails Act”), thus acquiring their property by

inverse condemnation. B oth plaintiffs and defendant move for partial summary judg ment on the issue of liability . F or the reasons set forth below, the court g rants in part and denies in part the parties’ motions.I. BACK G ROUND
A. Statutory and Regulatory Context During the last century , the United States beg an to ex perience a sharp reduction in rail trackag e . Preseault v. Interstate Commerce Comm’n, 494 U.S. 1, 5 (1990). To remedy this problem, Cong ress enacted a number of statutes, including the Trails Act, 16 U.S.C. §§ 1241- 1251 (2012). The Trails Act, as amended, provides for the preservation of “established railroad rig hts-of-way

for future reactivation of rail service” by authoriz ing the interim use of such rig htsof-way as recreational and historical trails. I d. § 1247(d). This process is referred to as “railbanking ,” and is overseen by the Surface Transportation B oard (“B oard”), id., the federal ag ency with the ex clusive jurisdiction to reg ulate “the construction, acquisition, operation, abandonment, or discontinuance” of most railroad lines in the United States, 49 U.S.C. § 10501(b) (2012).

B e fore railbanking

can occur, the railroad company must seek to abandon its line, either by initiating abandonment proceeding s with the B o ard pursuant to 49 U.S.C. § 10903, or by requestingthat the B o ard ex empt it from such proceeding s pursuant to 49 U.S.C. § 10502. W h ile consideringthe railroad company ’s abandonment application or ex emption request, the B o ard will entertain protests and comments from interested third parties. 49 C.F .R. §§ 1152.25, 1152.29(a) (2010). Of particular relevance in this case, interested third parties may submit requests for the interim use of the railroad line as a trail pursuant to 16 U.S.C. § 1247(d) and make offers of financial assistance (“OF A”) pursuant to 49 U.S.C. § 10904. I d

.
I f an interested third party submits a trail use request to the B oard that satisfies the requirements of 16 U.S.C. § 1247(d), the B oard makes the necessary finding s pursuant to 49 U.S.C. § 10502(a) or 49 U.S.C. §10903(d), and the railroad company ag rees to neg otiate a trail use ag r eement, the B oard will issue one of two documents: if the railroad company initiated abandonment proceeding s, the B oard will issue a Certificate of I nterim Trail Use or Abandonment, and if the railroad company soug ht an ex emption, the B oard will issue a Notice of I nterim Trail Use or Abandonment (“NI TU”). I d. § 1152.29(b)-(d). The effect of both documents is the same: to “permit the railroad to discontinue service, cancel any applicable tariffs, and salvag e track and materials, consistent with interim trail use and rail banking . . . ; and permit the railroad to fully abandon the line if no ag reement is reached 180 day s after it is issued, subject to appropriate conditions . . . .” I d. § 1152.29(d)(1); accord id. § 1152.29(c)(1). The B o ard will entertain requests to ex tend the 180-day deadline to enable further neg otiations. I f the railroad company

and the interested third party ex ecute a trail use ag

r eement, then abandonment of the railroad line is staye d for the duration of the ag reement. I d . § 1152.29(c)-(d); 16 U.S.C. § 1247(d). I f no trail use ag reement is ex ecuted, the railroad company is permitted to fully abandon the line. 49 C.F .R. § 1152.29(c)-(d). To ex ercise its abandonment authority , the railroad company

must “file a notice of consummation with the B oard to sig nify that it has . . . fully abandoned the line” within one y ear of “the service date of the decision permitting the

-2-abandonment . . . .” I d. § 1152.29(e)(2). I n the absence of a timely

filed notice of consummation, the railroad company ’s authority to abandon the line automatically ex pires. I d. Abandonment of a railroad line may also be postponed if an interested third party makes an OF A to subsidiz e or purchase the railroad line to continue rail service. I d . § 1152.27; 49 U.S.C. § 10904. OF As must be made and filed with the B o ard within four months of the railroad company ’s application for abandonment or request for an ex emption, or within ten day s of the B o ard’s decision granting the railroad company ’s application or request, whichever is sooner. 49 U.S.C. § 10904(c); 49 C.F .R. § 1152.27(b). “The B o ard will review each offer submitted to determine if a financially

responsible person has offered assistance. I f that criterion is met, the B o ard will issue a decision postponingthe effective date of” its abandonment authoriz ation or the decision g r anting an ex emption, as appropriate. 49 C.F .R. § 1152.27(e)(1)-(2); accord 49 U.S.C. § 10904(d)(1). Abandonment is postponed until the railroad company and “a financially responsible person have reached an ag reement on a transaction for subsidy or sale of the line” or, if an ag r eement is not reached, the B oard establishes the conditions and amount of compensation for the transaction. 49 U.S.C. § 10904(d)(2). I f an agreement is reached, abandonment of the line will not proceed. 49 C.F .R. § 1152.27(f). I f no ag reement is reached, the B oard will vacate its decision postponing the effective date of its abandonment authoriz a tion or decision g ranting
an ex emption, id. § 1152.27(g )(2), (h)(7), allowing the railroad company

to consummate the abandonment.

I f efforts to ex ecute a trail use ag reement, purchase ag

reement, or subsidy

ag reement are unsuccessful, and the railroad company notifies the B oard that it has fully abandoned the line, the B o ard is divested of jurisdiction over the abandoned railroad line and “state law reversionary property interests, if any , take effect.” Caldwell v. United States, 391 F .3d 1226, 1228-29 (F ed. Cir. 2004).
B. The Initial Acquisition of the Railroad Rights-of

-Way Plaintiffs own real property adjacent to seg ments of railroad rights-of-way in Posey and Vanderburg

h Counties, I ndiana situated between (1) milepost 227.5 at Posey ville, I ndiana and milepost 240.2 near German Township, I n d iana and between (2) milepost 277.5 at Cy nthiana, I ndiana and milepost 282.0 at Posey ville, I ndiana. 1 The rig h ts-of-way were acquired by

the predecessors of the current owner of the railroad lines, I ndiana Southwestern Railway Company (“Indiana Southwestern”). Those predecessor railroad companies acquired a 4.42-acre seg ment of the rig hts-of-way

throug h prescription; plaintiff Reibel F arms, Inc. owns a parcel of land adjacent to this seg ment. The remaining seg ments at issue were acquired by deed. Plaintiffs g roup the deeds, all dated between 1880 and 1882, into four categ ories. The seven deeds in the first g roup (“Ty

pe A deeds”) contain lang uag e that is substantially

similar to the following :

1 The court derives the facts in this decision from the ex h ibits attached to the parties’ cross-motions for partial summary judg ment on liability . The facts are undisputed.

-3-Rig ht of W ay Deed Know all men by

these Presents that [ named landowner] for and in consideration of the construction of the [ railroad] and for the further consideration of [ amount] , do g rant, warrant and convey to the said [ predecessor railroad company ] its successors and assig

n s a strip of land [ number] feet in width, beinga strip [ number] feet wide on each side of the center line of said Railway as it now is located throug h his land . . . described as follows to wit: [ description of land] . I t being distinctly

understood that this g rant is for the purpose of construction, maintenance and operation of said Railway

. Pls.’ Ex . 15; accord Pls.’ Ex s. 16-20; Pls.’ Ex . 21 (containing similar lang uag e, but with the last sentence instead providing : “I t being distinctly understood that the above described Real Estate is to be used ex clusively

for Railroad purposes.”). The amounts of consideration set forth in these deeds and the approx imate land area convey ed are as follows:
Grantor(s) Amount Area
W . Marquis $100 2.75 acres N. Marquis et al. $100.24 Unspecified portion of 3.5 acres
A.H. F retag eot et al. $20.05 Unspecified portion of 3.5 acres
J . Owens et al. $60.14 Unspecified portion of 3.5 acres
M. Endecott $1,000 8.24 acres
L . W illiams and wife $1 1.44 acres
L . W illiams and wife $250 0.97 acres
Plaintiffs Owen Halpeny , J effrey Memmer, and J oseph J enkins own parcels of land adjacent to the land conveyed by

the Ty pe A deeds.

The six deeds in the second group (“Ty pe A-1 deeds”) contain lang uag e that is substantially similar to the following : Know all men by

these Presents that [ named landowners] for and in consideration of the construction of the [ railroad] and for the further consideration of [ amount] , do g rant, warrant and convey to the said [ predecessor railroad company ] , its successors and assig

n s, a strip of L and [ number] feet in width, beinga Strip [ number] feet wide on each side of the center line of said Railway as it now is L ocated throug h his L and . . . , described a follows, to wit:

-4-[ description of land]

I t being distinctly

understood that this g rant is for the purpose of construction, maintenance and operation of said Railway

. Pls.’ Ex . 22; accord Pls.’ Ex s. 23-27. The amounts of consideration set forth in these deeds and the approx imate land area convey e d are as follows:
Grantor(s) Amount Area
H. Hillenbrand and wife $400 4.45 acres
H. Goebel and wife $75 2.04 acres
S. McDonald et al. $100 1.92 acres
A.N. Martin and wife $700 6.04 acres
H.L . Graff and wife $175 3.07 acres
A.R. Grimm $257.50 5.16 acres

Plaintiffs L arry and Susan Goebel; McDonald F amily F arms of Evansville, I nc.; Michael and Rita Martin; Gilbert Effing er; and J ames and Robin Schmidt own parcels of land adjacent to the land conveyed by

the Ty p e A-1 deeds. Plaintiffs include two deeds in a third g roup (“Ty p e B deeds”), but the deeds are not substantially identical. The first Ty p e B deed (“the Smith deed”) provides: Rig ht of W ay

Deed Know all men by

these presents, that Eliz abeth Smith for and in consideration of the B enefits to be derived from the construction of the [ railroad] and for the further consideration of [ $100] do g rant, warrant and Convey to the said [ predecessor railroad company ] its successors and assig ns a Strip of land [ number] feet in width beinga Strip [ number] feet wide on Each Side of the center line of said Rail Road as it now is located throug h her land . . . described as follows to wit: [ description of land.] [ I ]t is hereby understood that Said Rail Road Company

shall make one g ood farm crossing for the use and benefit of Said Eliz abeth Smith said crossing to be made at a point to be designated by the Said Eliz abeth Smith.

Pls.’ Ex . 28. W ith this deed, Ms. Smith convey e d approx imately 1.22 acres, and this acreag e is adjacent to a parcel owned by plaintiff Matthew Hostettler.

-5-The second Ty pe B deed (“the Davis deed”) provides:

Rig ht of W ay

Deed Know all men by

these Presents, That [ J oseph Davis and Mary C. Davis] , for and in consideration of the benefits to be derived from the construction of the [ railroad] , and for the further consideration of [ $175] do g rant, warrant and convey to the said [ predecessor railroad company ] , its successors and assig ns, a strip of L and [ number] feet in width, being a strip [ number] feet wide, in each side of the center line of said Railroad as it now is located throug h his land . . . , described as follows to wit: [ description of land] and it is hereby understood that the said J oseph Davis shall have the rig ht to a water canal along

said line on the south side of said R.R. on said strip of land [ and] that said J o seph Davis reserves the timber on said rig ht of way and that said R.R. Co. shall make one g ood crossing for the use and benefit of said Davis wherever he may desig nate.

Pls.’ Ex . 29. W ith this deed, the Davises convey ed approx imately

2.4 acres, and this acreag e is adjacent to a parcel owned by plaintiff Reibel F arms, Inc. The final categ ory identified by plaintiffs contains one deed (“the side track deed”), which provides:

This I ndenture W itnesseth That [ Abner N. Martin and Cy nthia Martin] Convey and W arrant to [ predecessor railroad company ] for the sum of [ $1] the following Real Estate . . . to wit: [ description of land] . The same to be theirs and their own a[ s] long as said Side track and Depot are in use any failure or removal will make this Deed none and void.

Pls.’ Ex . 30. W ith this deed, the Martins convey ed approx imately 0.66 acres, and this acreag e is adjacent to a parcel owned by plaintiffs Michael and Rita Martin. As of March 1993, no side track or depot ex isted on the acreag e.
C . P roceedings Bef

ore the Board

I ndiana Southwestern decided that it no long er needed the railroad lines at issue in this case. Thus, on October 25, 2010, it submitted to the B oard a notice of ex e mption to abandon the lines. Two interested third parties soug ht to prevent abandonment. I ndiana Trails F und, I nc. filed a request for the interim use of the railroad lines as a trail on November 17, 2010. The following day , the Town of Posey v ille, I ndiana (“Town”) submitted a notice of its intent to file an OF A.

I n a December 23, 2010 decision, the director of the B oard’s Office of Proceeding s concluded that the Town was financially responsible and therefore postponed the effective date

-6-of the ex emption authoriz ing abandonment. W ith respect to the trail use request, the director

noted that because I

ndiana Trails F und, I nc. had satisfied the statutory requirements and that I ndiana Southwestern had ag reed to neg otiate a trail use agreement, the issuance of a NITU “would be appropriate commencing with the effective date of the ex emption.” Def.’s Ex . 6 at 5. “However,” she noted:

an OF A takes priority

over a request for issuance of a NI TU . . . . Therefore, issuance and effectiveness of the NI TU . . . will be delay e d until the OF A process has been completed. I f ag r eement is reached on the sale of the line, the NI TU . . . would be unnecessary

and unavailable. I f

no ag r eement is reached on the OF A, the appropriate decision will be issued.

I d.

I ndiana Southwestern appealed the director’s determination that the Town was a financially

responsible offeror to the B oard. I n a decision bearing

a service date of April 8, 2011, the B oard concluded that the Town was not financially responsible for the purposes of proceeding

with the OF A process. The B oard then declared that its decision would become effective on May 23, 2011, and that it would “impose the trail use condition” on the decision’s effective date. Pls.’ Ex . 1 at 7. Specifically , the B oard ordered:

3. The abandonment ex emption will become effective on May 23, 2011 . . . , for a period of 180 day s from May 23, 2011, until November 19, 2011, to enable any

state or local g overnment ag e ncy , or other interested person, to neg otiate the acquisition of the lines for public use. . . .

. . . .
7. I f an agreement for interim trail use/rail banking is reached by November 19, 2011, and notice [ sic] , trail use may be implemented. I f no ag reement is reached by

that time, [ I ndiana Southwestern] may fully abandon the line . . . .

I d. at 7-8. Thus, the B oard’s decision–served on April 8, 2011 and made effective on May 23, 2011–constituted a NI TU. 2

I ndiana Southwestern and I ndiana Trails F und, I nc. soug ht and received several
ex tensions of the initial 180-day period to neg otiate a trail use ag reement, culminating in a deadline of November 8, 2013. B e c ause the parties neither ex ecuted a trail use ag reement nor soug h t another ex tension of time by that deadline, the NI TU ex pired on its own terms. As a

2 The B oard denied the Town’s request for reconsideration in a September 23, 2011 decision, therefore leaving its April 8, 2011 decision intact.

-7-result, I ndiana Southwestern had one y ear in which to fully abandon the railroad lines. However, it has not filed a notice of consummation with the B oard.

D. P rocedural History

On F e bruary

18, 2014, J effrey

Memmer, for himself and as representative of a class of similarly situated individuals, filed a complaint in this court alleg ing a F ifth Amendment taking

. I n a subsequently

filed amended complaint, Mr. Memmer and twelve other named plaintiffs continue to assert, as their sole claim for relief, a F ifth Amendment taking

. I n particular, plaintiffs alleg e that they

own their property

in fee simple; that prior to the B oard’s issuance of the NI TU, I ndiana Southwestern owned easements across their property ; that their property would no long e r be burdened by those easements if the easements were abandoned or authoriz ed for use bey

ond their scope; and that but for the issuance of the NI TU, they “would have the
ex c lusive rig ht to phy sical ownership, possession, and use of their property free of any

easement for recreational trail use or future railroad use.” 3 Am. Compl. ¶ 17. Plaintiffs according ly request just compensation for the taking

. After eng a g ing in discovery reg arding liability , the parties filed cross-motions for partial summary judg ment on liability . The motions are fully briefed, and the court heard arg ument on J uly 9, 2015.

II. DISCUSSION

B o th plaintiffs and defendant have moved for summary judg ment on the issue of liability pursuant to Rule 56 of the Rules of the United States Court of F ederal Claims (“RCF C”). Summary judg ment is appropriate when there is no g enuine issue of material fact and the moving party is entitled to a judg ment as a matter of law. RCF C 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Entry of summary

judg ment is mandated ag ainst a party who fails to establish “an element essential to that party ’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.

A. F if th Am endm ent Takings and the Trails Act As noted above, the sole claim for relief in plaintiffs’ amended complaint is a F ifth Amendment taking s claim. The F ifth Amendment prohibits the federal g overnment from taking private property

for public use without pay ing just compensation. U.S. Const. amend. V. The United States Court of F ederal Claims (“Court of F ederal Claims”) possesses jurisdiction to entertain F ifth Amendment taking s claims ag ainst the United States, 28 U.S.C. § 1491(a)(1) (2012); Morris v. United States, 392 F .3d 1372, 1375 (F ed. Cir. 2004), such as claims premised upon the conversion of a railroad rig ht-of-way into a recreational trail pursuant to the Trails Act, Preseault, 494 U.S. at 12-13.

3 The amended complaint does not contain class alleg ations.

-8-To establish a taking , a plaintiff must first “identif[ y ] a cog niz a ble F ifth Amendment property interest that is asserted to be the subject of the taking .” Casitas Mun. W ater Dist. v. United States, 708 F .3d 1340, 1348 (F ed. Cir. 2013). In determining whether a plaintiff has demonstrated the ex istence of a valid property interest in a Trails Act case, the court considers: (1) who owned the strips of land involved, specifically d id the Railroad . . . acquire only

easements, or did it obtain fee simple estates; (2) if the Railroad acquired only

easements, were the terms of the easements limited to use for railroad purposes, or did they include future use as public recreational trails; and (3) even if the g

rants of the Railroad’s easements were broad enoug h to encompass recreational trails, had these easements terminated prior to the alleg e d taking so that the property owners at that time held fee simples unencumbered by the easements.
Preseault v. United States, 100 F .3d 1525, 1533 (F ed. Cir. 1996) (en banc). Then, “if the court concludes that a cog

niz able property

interest ex ists, it determines whether the g overnment’s action amounted to a compensable taking of that interest.” Casitas Mun. W ater Dist., 708 F .3d at 1348. I n Trails Act cases, a taking occurs when “g o vernment action destroy s state-defined property rig hts by convertinga railway

easement to a recreational trail, if trail use is outside the scope of the orig inal railway easement.” L add v. United States, 630 F .3d 1015, 1019 (F ed. Cir. 2010). I t is well settled that the B oard’s issuance of “[ t] he NI TU is the g overnment action that prevents the landowners from possession of their property unencumbered by

the easement.” I d.; accord B arclay

v. United States, 443 F .3d 1368, 1374 (F ed. Cir. 2006); Caldwell, 391 F .3d at 1233-34.
B. The Interests Obtained by Indiana Southw estern’s P redecessors The parties’ first dispute concerns the nature of the property interests acquired by

I ndiana Southwestern’s predecessors. Althoug h the parties agree that the right-of-way acquired through prescription constitutes an easement under I ndiana law, see also Hoffman v. Z ollman, 97 N.E. 1015, 1017 (I nd. App. 1912) (“[ A] railroad company only acquires an easement in land . . . by prescription.”), they

disag ree as to the ty

pe of property

interest conveyed by

the six teen deeds at issue. Plaintiffs assert that the deeds convey ed easements to I

ndiana Southwestern’s predecessors, while defendant contends that the deeds convey e d property in fee simple. To determine the nature of the property interests conveyed by

the deeds, the court must
ex amine the deeds in lig h t of the common law and the law of I ndiana at the time that they were ex e cuted. Preseault, 100 F .3d at 1534; Clark v. CSX Transp., 737 N.E.2d 752, 758 (I nd. Ct. App. 2000). At the time the deeds were ex ecuted, I ndiana law provided:
Any convey ance of lands worded in substance as follows: “A.B . convey s and warrants to C.D.” [ here describe the premises] “for the sum of” [ here insert the consideration] the said conveyance being dated and duly

sig ned, sealed and

-9-acknowledg ed by the g rantor, shall be deemed and held to be a convey ance in fee simple to the g rantee, his heirs and assig ns . . . .

I nd. Rev. Stat. ch. 23, § 12 (1852) (recodified at I nd. Rev. Stat. ch. 18, § 2927 (1881)). F urther, “if it be the intention of the g rantor to convey any lesser estate, it shall be so exp ressed in the deed.” I d . § 14 (recodified at I nd. Rev. Stat. ch. 18, § 2929 (1881)). Of course, not all deeds conform to the statutory

lang uag e. W ith respect to such deeds: There are several rules of construction to be used when construing the meaning of a particular deed. The object of deed construction is to ascertain the intent of the parties. I

n so doing , a deed is to be reg a rded in its entirety

and the parts are to be construed tog ether so that no part is rejected. W here there is no ambig uity in the deed, the intention of the parties must be determined from the lang uag e of the deed alone. . . . A deed that convey s a rig ht g enerally convey s only

an easement. The g eneral rule is that a convey ance to a railroad of a strip, piece, or parcel of land, without additional lang uag e as to the use or purpose to which the land is to be put or in other way s limiting the estate convey ed, is to be construed as passing an estate in fee, but reference to a rig h t-of-way in such a convey

ance g enerally

leads to its construction as convey ing only an easement.

B r own v. Penn Cent. Corp., 541 N.E.2d 641, 643-44 (I nd. 1987) (citations omitted); accord Ross, I nc. v. L eg ler, 199 N.E.2d 346, 348 (I nd. 1964) (“A deed, when the interest convey e d is defined or described as a ‘rig

ht of way ,’ convey s only an easement in which title reverts to the g rantor, his heirs or assig ns upon the abandonment of such rig h t-of-way .”); Richard S. B runt Trust v. Plantz , 458 N.E.2d 251, 256 (Ind. Ct. App. 1983) (considering a deed in which the g

rantors “convey [ ed] and quit claim[ ed] . . . , for railroad purposes, the following real estate,” and holding that “[ r] e ference to the intended use of the land indicate[ d] that an easement was convey ed” because “the g

rantors would have no reason to specify the use if convey

ing a fee simple”). B ut see Poz nic v. Porter Cnty . Dev. Corp., 779 N.E.2d 1185, 1190-92 (I nd. Ct. App. 2002) (holding that a deed that convey

ed to the railroad company “F orever, a strip of land for railroad purposes” convey ed a fee simple and, in so holding , declined to treat the phrase “for railroad purposes” as limiting lang uag e, noted that the deed did not include a statement indicating that the deed would be void if the strip of land was not used for railroad purposes, and remarked that the deed did not include the term “righ t-of-way ”). “Deeds g enerally

contain three important clauses: the g ranting clause, the habendum clause, and the descriptive clause.”4 Clark, 737 N.E.2d at 758. Reference to a “rig ht-of-way ”

4 The g ranting clause contains “[ t] he words that transfer an interest in a deed or other instrument,” B lack’s L aw Dictionary 769 (9th ed. 2009); the habendum clause is the part of a deed or other instrument “that defines the ex tent of the interest being

g ranted and any

conditions

- 10-may

appear in any

of them. See, e.g ., Ross, I nc., 199 N.E.2d at 349 (rejecting , as “an overrefinement of the rules of construction,” the contention that use of the term “rig ht-of-way ” in the descriptive clause of a deed is meaning less when the term is not included in the deed’s g ranting clause or habendum clause, and holding that “[ t] he description clause of a deed may be employ e d to describe the quality as well as the dimensions and quantity of the estate convey

ed”); CSX Transp., I n c. v. Rabold, 691 N.E.2d 1275, 1278 (I nd. Ct. App. 1998) (holding that when the term “rig ht-of-way

” is used in the descriptive clause “in reference to the subject matter of the deed,” and the deed does not contain the term “fee simple,” the deed convey s an easement); see also Prior v. Quackenbush, 29 I nd. 475, 478 (1868) (“The office of the habendum is properly to determine what estate or interest is g ranted by the deed, thoug h this may be performed, and sometimes is performed, by the premises, in which case the habendum may lessen, enlarg e, ex p lain, or qualify , but not totally contradict or be repug

nant to the estate g r anted in the premises.” (internal quotation marks omitted)); Claridg e v. Phelps, 11 N.E.2d 503, 504 (I nd. App. 1937) (“[ W ] hen the g ranting clause of a deed is g eneral or indefinite respecting the estate in the lands conveyed, it may be defined, qualified, and controlled by the habendum.”). B ut see Clark, 737 N.E.2d at 758 (remarking that when the term “rig

ht-of-way ” appears “outside of the g ranting clause, the term is of limited value because it has two meaning s[ :] 1) a rig ht to cross over the land of another, an easement, and 2) the strip of land upon which a railroad is constructed”). I

ndeed, even if the g

r anting clause “favors the construction of the deed as convey ing a fee simple absolute to the railroad company , such lang uag e is just a factor in determining whether the parties intended to g rant a fee or an easement”; courts will also ex amine “other parts of the deed to see if the g rantor ex pressed an intention to convey a lesser estate than fee simple.” Taz ian v. Cline, 686 N.E.2d 95, 98 (Ind. 1997).

I n addition to lang uag e ex pressly defining or describing

the interest convey

ed, evidence of the parties’ intent to convey an easement may

appear in the title of the deed. See Clark, 737 N.E.2d at 758 (remarking that althoug h “the cover and title of the instrument” are not considered “where the g

ranting lang uag e is clear and unambig uous[ ,] . . . the title may

provide additional evidence of intent where the lang uag e of the deed is unclear”). Such evidence may also include the amount or ty

pe of consideration described in the deed. See Taz ian, 686 N.E.2d at 99 (“W h en attempting to ascertain the intent of the parties to a convey ance to a railroad, appellate courts of this state look at the consideration paid to the g rantee railroad.”); Richard S. B runt Trust, 458 N.E.2d at 255 (“[ W ] here the consideration is nominal or where the only consideration is the benefit to be derived by

the g rantor from the construction of the railroad rather than the full market value for the interest acquired reflects the intent to create an easement.”). However, neither the title of the deed nor the consideration described therein conclusively establishes the convey ance of an easement. See Clark, 737 N.E.2d at 758 (“[ T] he title . . . is not dispositive of the nature of the convey

ance.”); id. at 759 (“[ L ] ack of consideration or nominal consideration alone is not sufficient cause for setting aside a deed. . . . [ N] o minal monetary consideration,

affecting the g rant,” id. at 778; and the descriptive clause contains “the dimensions and quantity of the estate convey

ed,” Ross, I nc., 199 N.E.2d at 349.

- 11-alone, does not make the instrument ambig uous, nor does it create an easement.”); Richard S. B r unt Trust, 458 N.E.2d at 255 (“Althoug h such consideration is not by itself persuasive that the parties intended to convey an easement, it is just one more factor held to indicate an easement . . . .”). Ultimately , in construing deeds purporting to convey

property interests to a railroad company , courts must be cog niz ant that:

Public policy does not favor the convey a nce of strips of land by

simple titles to railroad companies for rig ht-of-way purposes, either by

deed or condemnation. This policy is based upon the fact that the alienation of such strips or belts of land from and across the primary or parent bodies of the land from which they

are severed, is obviously not necessary

to the purpose for which such convey ances are made after abandonment of the intended uses as ex pressed in the convey ance, and that thereafter such severance g enerally operates adversely

to the normal and best use of all the property involved. Therefore, where there is ambig uity as to the character of the interest or title convey ed such ambiguity

will g enerally be construed in favor of the orig inal g rantors, their heirs and assig ns. Ross, I nc., 199 N.E.2d at 348; see also Penn Cent. Corp. v. U.S. R.R. Vest Corp., 955 F .3d 1158, 1160 (7th Cir. 1992) (“The presumption is that a deed to a railroad . . . convey s a rig h t of way , that is, an easement, terminable when the acquirer’s use terminates, rather than a fee simple.”). Having set forth the relevant rules of deed construction, the court will now ex amine the deeds at issue in this case.
1. The Type A Deeds The seven Ty

p e A deeds identified by

plaintiffs share the following characteristics: (1) they bear the title “Rig ht of W ay Deed”; (2) they

“g rant, warrant and convey . . . a strip of land”; and (3) they

indicate either that the “g rant is for the purpose of construction, maintenance and operation” of a railroad or that the “Real Estate is to be used ex clusively for Railroad purposes.” Plaintiffs assert that because the g rants in these deeds were made for railroad purposes, the g rantors convey

ed easements to I

ndiana Southwestern’s predecessors. They further contend that their position is supported by the public policy

disfavoring convey ances of strips of land in fee simple to railroads, the reference to “Rig ht of W ay ” in the title of the deeds, and the presumption that deeds to railroad companies convey easements. Defendant disag rees with plaintiffs’ construction of the Ty

p e A deeds. I

t arg ues that the g r anting clauses of these deeds unambig uously

reflect that the strips of land were convey e d in fee simple, and that neither the “railroad purposes” lang

uag e nor the title of the deeds alter that unambig uous g rant. Defendant’s position is not sustainable.

- 12-The g ranting clauses in the deeds convey ed strips of land to Indiana Southwestern’s predecessors for vary

ing amounts of consideration. I f the deeds contained nothing more than the g ranting clauses, then they would have convey

ed fee simple interests in the strips of land. See I nd. Rev. Stat. ch. 23, § 12 (1852). However, the deeds also included habendum clauses indicating that the strips of land were to be used for railroad purposes. The habendum clauses qualify , without contradicting , the estates convey ed in the g r anting clauses. See Prior, 29 I nd. at 478; Claridg e , 11 N.E.2d at 504. Indeed, had the parties intended to convey fee simple interests in the strips of land, they

would have had no reason to specify the use of the land in the habendum clauses. See Richard S. B runt Trust, 458 N.E.2d at 256. B e cause deeds should be construed so that no part is superfluous, B r own, 541 N.E.2d at 643, the court concludes that the parties intended to convey easements, and not fee simple interests, in the strips of land. This conclusion is buttressed by the fact that these deeds were recorded with the title “Rig ht of W ay Deed.” 5 See Clark, 737 N.E.2d at 758. Moreover, to the ex tent that the “railroad purposes” lang uag e in the habendum clause renders the deed ambig uous, public policy

favors construing the deeds as convey

ing easements. See Ross, I nc., 199 N.E.2d at 348.

The Indiana Supreme Court’s decision in Taz ian, relied upon by defendant, does not compel a different result. I n Taz ian, the deed’s granting clause provided: “[ The g rantors] do g rant and convey and warrant . . . a strip of land . . . .” 686 N.E.2d at 96. The habendum clause provided that the railroad company was “to have and to hold all and sing ular the said premises in and by these presents released and convey ed unto the [ r a ilroad company ] forever for the uses and purposes therein expressed.” I d. As the I ndiana Supreme Court ex plained, the phrase “for the uses and purposes therein ex pressed” referred to the uses and purposes described in the g ranting clause, and the g

r anting clause contained no limitation on the uses and purposes of the strip of land. I d. at 101; accord id. (“[ T] his deed does not describe the interest convey ed as a railroad rig ht of way n o r does the lang uag e limit the convey ance as for railroad purposes or railroad uses.”). I n contrast, the habendum clauses in the seven Ty pe A deeds specified the uses and purposes of the strips of land that were the subjects of the g ranting clauses. The court in Taz ian found further support for its conclusion that the deed convey ed a fee simple interest to the railroad company

in the use of the word “forever” in the habendum clause. I d. The Ty

pe A deeds do not specify

that the g rant to I ndiana Southwestern’s predecessors was to be in perpetuity . I n sum, the decision in Taz ian does not control the outcome in this case. The Ty pe A deeds convey

ed easements.

5 Plaintiffs contend that the consideration paid by the railroad companies was nominal, supporting their contention that the parties to the deeds intended to convey easements. Aside from the two deeds that describe monetary consideration of one dollar, the court is unable to determine whether the consideration paid was nominal because the record lacks any evidence reg arding the value of land in southwestern I ndiana in the late 1800s.

- 13-2. The Type A-1 Deeds

The six Ty

pe A-1 deeds identified by plaintiffs share the following characteristics: (1) they “g rant, warrant and convey . . . a strip of L and” and (2) they indicate that the “grant is for the purpose of construction, maintenance and operation” of a railroad. B ut for the lack of titles identify ing them as rig h t-of-way deeds, the Ty

pe A-1 deeds are substantially the same as the Ty pe A deeds previously

described. Consequently , the court concludes that the parties to the Ty pe A-1 deeds intended to convey easements, and not fee simple interests, in the strips of land.

3 . The F irst Type B Deed The first Ty

pe B deed identified by

plaintiffs–the Smith deed–possesses the following characteristics: (1) it is titled “Right of W ay Deed”; (2) it reflects that the g rantor did “g rant, warrant and Convey

. . . a Strip of land”; and (3) it does not indicate that the strip of land would be used for railroad purposes. Plaintiffs arg ue that the title of the deed, in conjunction with the public policy

disfavoringfee simple convey ances of strips of land to railroads, support treating the deed as convey

ing an easement to I

ndiana Southwestern’s predecessor. I n response, defendant contends that the title of the deed, without any lang uag e in the body of the deed referring to the g r ant as a rig ht-of-way or limiting the g rant to railroad purposes, is insufficient to treat the deed as convey

ance of an easement. Defendant is correct; this deed is not ambig uous. As defendant notes, the body of the deed–the g

ranting clause, the habendum clause, and the descriptive clause–does not include any lang uag e that describes the strip of land being convey ed as a right-of-way or limits the use of the strip of land to railroad purposes. I n such circumstances, the deed convey s a fee simple estate. See B r own, 541 N.E.2d at 644; accord I nd. Rev. Stat. ch. 23, §§ 12, 14 (1852). The fact that the deed is titled “Rig h t of W ay Deed” does not alter the unambig

uous nature of the convey ance. See Clark, 737 N.E.2d at 758. Nor can public policy override an unambig

uous g rant. See Ross, I nc., 199 N.E.2d at 348. I n short, the Smith deed convey s a fee simple estate in the described strip of land. 6 And because I ndiana Southwestern owns the strip of land in fee simple, the issuance of the NI TU could not have disturbed the property

rig hts of the adjacent property owner–plaintiff Matthew Hostettler. Defendant is therefore entitled to summary judg ment with respect to the Smith deed.

6 Plaintiffs arg ue that the parties to this deed, as well as the parties to the Davis deed and the side track deed, may have unintentionally c onvey ed a fee simple estate due to poor drafting

. I f so, it is unfortunate, but poor drafting cannot overcome unambig uous lang uag e contained within the four corners of the deed. As the I ndiana Supreme Court has held, “[ w] here there is no ambig uity in the deed, the intention of the parties must be determined from the lang u ag e of the deed alone.” B rown, 541 N.E.2d at 643.

- 14-4 . The Second Type B Deed

The second Ty

pe B deed identified by

plaintiffs–the Davis deed–possesses the following characteristics: (1) it is titled “Right of W ay Deed”; (2) it reflects that the g rantors did “g rant, warrant and Convey

. . . a Strip of land”; (3) it indicates in the habendum clause that the g rantors had “the rig ht to a water canal along said line on the south side of said R.R. on said strip of land” and “reserve[ d] the timber on said rig ht of way”; and (4) it does not indicate that the strip of land would be used for railroad purposes. I n contrast to the Smith deed, the Davis deed refers to the strip of land as a right-of-way in the habendum clause. Plaintiffs ig nore the use of the term “rig h t-of-way

” in the body

of the Davis deed, and defendant erroneously asserts that the term was not used at all in the body of either Ty

pe B deed. However, because the court must construe the deed as a whole, B rown, 541 N.E.2d at 643, it cannot disreg ard the term’s presence in the deed. The presence of the term “rig ht-of-way ” in the body

of a deed can sig

nal that the deed convey s an easement. See id. at 644; Ross, I nc., 199 N.E.2d at 348-49; CSX Transp., I nc., 691 N.E.2d at 1278. However, the term “rig h t-of-way ” has two meaning s; it can refer to both the rig ht to cross land and the land itself. Clark, 737 N.E.2d at 758; CSX Transp., I n c., 691 N.E.2d at 1278. I n the Davis deed, the habendum clause indicates that the g rantors reserved the rig

ht to a water canal on the south side of the railroad “on said strip of land,” and the rig ht to the timber “on said rig ht of way .” Thus, a plain reading of the habendum clause reveals that “rig ht of way” is being used as a sy

n ony m for “strip of land,” and therefore refers to the land itself, and not the rig ht to cross it.

B e cause the body

of the deed does not include any lang uag e that describes the strip of land being convey ed as a right-of-way or limits the use of the strip of land to railroad purposes, the deed convey s a fee simple estate. See B rown, 541 N.E.2d at 644; accord I nd. Rev. Stat. ch. 23, §§ 12, 14 (1852). As with the Smith deed, the fact that the Davis deed is titled “Rig ht of W a y Deed” does not alter the unambig uous nature of the convey ance. See Clark, 737 N.E.2d at 758. Nor can public policy override an unambig uous g rant. See Ross, Inc., 199 N.E.2d at 348. I n short, the Davis deed convey s a fee simple estate in the described strip of land. And because I ndiana Southwestern owns the strip of land in fee simple, the issuance of the NI TU could not have disturbed the property rig hts of the adjacent property owner–plaintiff Reibel F arms, Inc. Defendant is therefore entitled to summary judg ment with respect to the Davis deed.

5. The Side Track Deed The side track deed reflects that (1) the g rantors did “Convey

and W a rrant . . . Real Estate” to the railroad company , (2) the consideration paid by the railroad company

was one dollar, (3) the real estate would remain with the railroad company “a[ s] long as said Side track and Depot are in use,” and (4) “any failure or removal will make this Deed none and void.” Plaintiffs, rely ing on the decision in Macy Elevator, I

nc. v. United States, 97 F ed. Cl. 708 (2011), contend that the lang

uag e indicating that the railroad company ’s failure to maintain a side track and depot on the land would nullify the deed reflects that the deed was for railroad purposes, and

- 15-that as a result, the deed convey e d an easement. Plaintiffs further assert that the nominal consideration described in the deed is additional evidence of the parties’ intent to convey an easement. Defendant, citing the dissenting opinion in Ross, I nc., responds that the side track deed convey s a fee simple subject to a condition subsequent; in other words, the deed convey s land that would revert to the gr antors or their successors if the railroad company breached its ag reement to maintain a side track and depot. Defendant arg ues that I ndiana has a statute of repose that operates to prevent plaintiffs from bringing an action to recover the parcel described in the side track deed. Neither plaintiffs’ nor defendant’s arg uments are entirely

persuasive. As an initial matter, plaintiffs’ reliance on Macy Elevator, I

nc. is misplaced. In

that case, one of the deeds at issue provided: “W hen said land herein released Shall cease to be used for Rail Road purposes, it shall revert back to the orig inal tract.” 97 F ed. Cl. at 716. Another deed provided: “Said land 66 feet wide to be held and enjoy ed by Said RailRoad Company So long as it shall be used for a Rail Road & no long er.” I d . However, unlike the side track deed, the g ranting clauses in the Macy Elevator, I

nc. deeds specifically

identified the land being convey ed as rig hts-of-way . I d . Thus, the fact that the parties and the court ag reed that the deeds convey ed easements, see id. at 718, has no bearing o n whether the side track deed convey s an easement.

I ndeed, the side track deed lacks any of the ty pical langu a g e sug g esting that it convey s an easement rather than a fee simple; the term “rig ht-of-way ” is not used, there is no statement that the “Real Estate” being

convey ed is to be used for “railroad purposes,” and the ex istence of nominal consideration, on its own, does not create an easement. See I nd. Rev. Stat. ch. 23, §§ 12, 14 (1852); B rown, 541 N.E.2d at 644; Clark, 737 N.E.2d at 759; Richard S. B r unt Trust, 458 N.E.2d at 255. Instead, the languag e relied upon by plaintiffs–indicating that the railroad company ’s failure to maintain a side track and depot on the land would nullify the deed–subjects the conveyance to a condition. I n g e neral, such conditions are disfavored in I ndiana, “so that ‘nothing short of ex press provisions for forfeiture and either a reverter . . . or a rig ht to retake the property ’” will impose one. Girl Scouts of S. I ll. v. Vincennes Ind. Girls, I n c., 988 N.E.2d 250, 256 (I nd. 2013) (quoting St. Mary ’s Med. Ctr. v. McCarthy , 829 N.E.2d 1068, 1075-76 (I nd. Ct. App. 2005)); see also Sheets v. Vandalia R.R. Co., 127 N.E. 609, 611 (I nd. App. 1920) (“A condition . . . may

be created by

any words which show a clear and unmistakable intention on the part of the g r antor to create an estate on condition; reg ard being had to the whole of the deed in which they

occur. The word ‘condition’ need not necessarily be used, but words importing a condition must be used, or plainly inferred from the instrument, and the ex isting facts.”). However, like the deed at issue in Girl Scouts of Southern I llinois, 7 the side track deed meets

7 The deed in Girl Scouts of Southern I llinois provided:
[ T] he conveya

n ce of which real estate . . . shall be upon and subject to the condition that such real estate . . . shall revert to [ the g rantor] if the same are not used for and as a Girl Scouts camping site and facilities for a period of forty -nine

- 16-these strict requirements. There is an ex press condition for forfeiture–“a[ s] long as said Side track and Depot are in use”–and a reverter–“any failure or removal will make this Deed none and void.” According ly , the side track deed convey s a fee simple subject to a condition subsequent, and not an easement. See also Restatement (F irst) of Property § 45 (1936) (“An estate in fee simple subject to a condition subsequent is created by any limitation which, in an otherwise effective convey

ance of land, (a) creates an estate in fee simple; and (b) provides that upon the occurrence of a stated event the convey or or his successor in interest shall have the power to terminate the estate so created.”). This fact is dispositive of plaintiffs’ F ifth Amendment taking s claim. At some point in time prior to March 1993, one of I ndiana Southwestern’s predecessors removed the side track and depot from the parcel convey e d by the side track deed. The removal constituted a breach of the condition subsequent. However, fee simple title to the parcel did not automatically

revert to the grantors or their successors. See Preston v. B osworth, 55 N.E. 224, 224 (I nd. 1899) (“[ A ] breach [ of a condition subsequent] does not complete a forfeiture. A breach may

be waived, and is not, therefore, self-operative to devest the g r antee’s title.”). Rather, the g rantors or their successors were required to either reenter or demand possession of the parcel and then, if necessary , commence an action to enforce the forfeiture of the estate. See id. (“I f not waived, a breach may be made the occasion of re-entry and enforcement of forfeiture.”); Aetna Life Ins. Co. v. Sellers, 56 N.E. 97, 98 (Ind. 1900) (noting “that in a case for the recovery

of an estate on account of the breach of a condition subsequent in a deed, . . . the complaint must show, not only the breach, but also a forfeiture on account of the breach, effected by re-entry or demand, prior to the filing o f the complaint”); Clark v. Holton, 57 Ind. 564, 567 (1877) (“[ I ] t is well settled, that, to enable the g r antor or his heirs to recover back a tract of land, because of a forfeiture of a condition subsequent, an entry upon, or claim to, the land must be made before the commencement of the action.”). I n this case, there is no evidence that the affected landowners, Michael and Rita Martin, or their predecessors ever reentered (or demanded possession of) the parcel convey ed by the side track deed, and then, if necessary , broug ht suit to recover a fee simple interest in the parcel from I ndiana Southwestern or its predecessors. According ly , when the B oard issued the NI TU, I ndiana Southwestern held fee simple title to the parcel convey

ed by the side track deed. As a result, the issuance of the NI TU could not have disturbed the Martins’ property rig hts. Defendant is therefore entitled to summary judg ment with respect to the side track deed.

C . The Scope of the Easem ents Having concluded that the Ty pe A and Ty

pe A-1 deeds convey

ed easements, the court proceeds to its nex t inquiry : what is the scope of the easements convey ed by the Ty pe A and

y ears from and after the date of such convey ance and transfer, which reversion shall automatically

occur upon such failure of use as aforesaid[ .]

988 N.E.2d at 252-53.

- 17-Ty

pe A-1 deeds and the scope of the easement acquired throug h prescription? See Preseault, 100 F .3d at 1533. More specifically , are the easements limited to use for railroad purposes, or are they broad enough to encompass use for recreational trails? See id. All thirteen of the deeds reflect that the convey ances were for the purposes of constructing , maintaining , and operating a railroad. The I

ndiana Supreme Court has held that recreational trails are not within the scope of easements created for railroad purposes. Howard v. United States, 964 N.E.2d 779, 784 (Ind. 2012). According ly , those plaintiffs who own property adjacent to the easements convey e d by the Ty

pe A and Ty

pe A-1 deeds–Owen Halpeny ; J effrey Memmer; J oseph J enkins; L arry and Susan Goebel; McDonald F amily F arms of Evansville, I nc.; Michael and Rita Martin; Gilbert Effing er; and J ames and Robin Schmidt–have cog niz able F ifth Amendment property

interests. 8

W ith respect to the prescript ive easement obtained by I ndiana Southwestern’s predecessors, defendant does not dispute plaintiffs’ contention that when a railroad company acquires a rig

ht-of-way throug h prescription, it obtains an easement for railroad purposes. See Mey er v. Pittsburg h, Cincinnati, Chi. & St. L ouis Ry

. Co., 113 N.E. 443, 446 (I nd. App. 1916) (“I t is also the g eneral rule that where a railroad rig ht of way is acquired by

prescription, the company takes only

an easement.”); Hoffman, 97 N.E. at 1017 (“A prescriptive rig ht, where there is no color of title, cannot be broader than the claims which the user evidences. Ordinarily there is no user by

a railroad company

bey ond a user for the purposes of a rig h t of way .”); accord Macy Elevator, I

nc., 97 F ed. Cl. at 734-35 (“[ U] n der I ndiana law when a railroad acquires property by prescription or by condemnation, a railroad g enerally obtains an easement for railroad purposes.”). According ly , plaintiff Reibel F arms, Inc., which owns property adjacent to the easement acquired by prescription, has a cog

niz able F ifth Amendment property interest. 9

D. The Ef

f e ct of the NITU on P laintif

f s’ P roperty Interests As noted above, when the United States permits the interim use of a railroad line as a recreational trail, it may

destroy a state-law property

interest possessed by

the adjacent landowners. I

n I ndiana, “easements may terminate and the property interest may revert to the underlying fee owner . . . when the easement holder chang es the use in a way

that g oes far bey o nd the purpose for which the easement was created.” Macy Elevator, I

nc. v. United States,

8 Defendant does not contest that the named plaintiffs’ property ex tends to the centerline of the railroad rig

ht-of-way

. See also Macy Elevator, I

nc., 97 F ed. Cl. at 719-20 (noting that it is well settled in I ndiana that when deeds do not include the railroad rig ht-of-way , the adjoining fee owners own to the centerline of the rig h t-of-way , subject to the easement).

9 Defendant does not contest that Reibel F arms, In c .’s property ex tends to the centerline of the railroad rig

ht-of-way

. See also Macy Elevator, I

nc., 97 F ed. Cl. at 719-20 (noting that it is well settled in I ndiana that when deeds do not include the railroad rig ht-of-way , the adjoining fee owners own to the centerline of the rig h t-of-way , subject to the easement).

- 18-105 F ed. Cl. 195, 199 (2012) (citation omitted); accord L add, 630 F .3d at 1019. Such a chang e

occurred in this case when the B oard issued the NI TU, terminating the railroad purposes easements and creating

easements for recreational trail purposes. See g enerally Macy Elevator, I nc., 105 F ed. Cl. at 199, 201-03. The creation of the new easements prevented the plaintiffs with cog niz able F ifth Amendment property interests from possessing their property unencumbered by

the railroad purposes easements. According ly , the NI TU effected a F ifth Amendment taking . And, as acknowledg ed by plaintiffs during oral arg ument, the taking is temporary , spanning from May 23, 2011, the effective date of the NI TU, to November 8, 2013, the date the NI TU ex pired. See Oral Arg . Tr. 12:02:59-12:03:50, J uly 9, 2015. The affected plaintiffs are therefore entitled to summary judg ment on liability

. Defendant disag

rees with the court’s conclusion, arg uing that under the specific facts of this case, the NI TU did not result in a F ifth Amendment taking . F irst, it contends that this case is disting uishable from most of the Trails Act cases that this court has considered because (1) a trail use ag r eement was not ex ecuted during the time period set forth in the NI TU, as ex tended; (2) the NI TU ex p ired on its own terms on November 8, 2013; and (3) I ndiana Southwestern was entitled to fully

abandon its railroad lines upon the expiration of the NI TU, but never took the required action to consummate the abandonment. B ased on these purportedly disting uishing facts, defendant asserts that the NITU could not have affected plaintiffs’ state law property interests because any

easements convey

ed to I ndiana Southwestern’s predecessors remain in I ndiana Southwestern’s possession. Defendant arg ues that, at best, the NI TU caused a temporary taking , but that plaintiffs have not established that a temporary taking occurred. Defendant’s contentions run afoul of binding precedent.

I n L add, the central issue before the United States Court of Appeals for the F ederal Circuit (“F ederal Circuit”) was “whether the issuance of a NI T Uconstitutes a compensable taking , where no conversion to a recreational trail has occurred.” 630 F .3d at 1015. The F ederal Circuit held:

B e cause according

to our precedent, a taking s claim accrues on the date that a NI TU issues, events arising after that date–including enteringinto a trail use ag reement and converting the railway to a recreational trail–cannot be necessary elements of the claim. Hence it is irrelevant that no trail use ag r eement has been reached and that no recreational trail has been established.

I d. at 1024; accord Caquelin v. United States, No. 14-37L , 2015 W L3799198, at *5-6 (F ed. Cl. J une 17, 2015) (rejecting

the g overnment’s arg

ument that “the question of whether trail use
ex c eeds the scope of the railroad’s easement is ‘irrelevant’ under the circumstances presented because the NI TU . . . ex pired on its own terms, and because no interim trail-use ag r e ement was reached”). The court further ex plained that “where no trail use ag r eement is reached, the taking may be temporary ,” but noted that “[ t] he duration of the taking g oes to damag es, not to whether a compensable taking

has occurred.” L add, 630 F

. 3d at 1025; see also B arclay , 443 F .3d at 1378 (“This is merely

another version of the arg ument–rejected in Caldwell–that the orig inal NI TU

- 19-should not be viewed as the taking because subsequent events mig ht render the NI TU only temporary

. ”). The F e deral Circuit’s holding s are unambig uous: events arising after the B oard issues the NI TU have no effect on the ex istence of a F ifth Amendment taking , but may affect the nature of the taking

to be compensated. According ly , I ndiana Southwestern’s failure to ex ecute a trail use ag reement and failure to consummate the abandonment of its railroad lines do not alter the conclusion that the issuance of the NI TU effected a taking . I nstead, those facts are relevant only to the amount of damag es owed to plaintiffs for the taking

. Defendant’s second arg

u ment ag ainst treating the NI TU as the event that trig g ered a F ifth Amendment taking relates to the effect that an OF A has on a railroad company ’s request for an
ex e mption from abandonment proceeding s. Defendant asserts that because the OF A process takes precedence over a trail use request, the taking alleg ed by

plaintiffs could not have accrued upon the issuance of the NI TU. Rather, defendant contends, the taking did not accrue until the conclusion of the OF A process. Once ag ain, however, the court declines to depart from controlling precedent, namely , the F ederal Circuit’s unambig uous holding in L add that a F ifth Amendment taking s claim accrues on the date that the B oard issues the NI TU, reg a rdless of what mig ht occur afterward. See also B arclay , 443 F .3d at 1374 (noting that even the continued use of a railroad rig

ht-of-way for rail purposes after the issuance of the NI TU does not chang e the fact that the NI TU effected a taking ). Post-NI TU events may affect the duration of, and compensation for, the taking , but they do not foreclose the NI TU from effecting the taking in the first instance.

III. CONCLUSION

As ex plained in more detail above, the court G RANTS plaintiffs’ motion for partial summary judg ment and DENIES defendant’s cross-motion for partial summary judg ment with respect to the parcels adjacent to the rig hts-of-way

convey ed by

the Ty pe A and Ty

pe A-1 deeds and the parcel adjacent to the rig ht-of-way created by

prescription. In addition, the court DENIES plaintiffs’ motion for partial summary judg ment and G R

ANTS defendant’s crossmotion for partial summary judg ment with respect to the parcels adjacent to the rig hts-of-way convey ed by

the Ty pe B deeds and the side track deed. B y no later than F r iday, July 24, 2015 , the parties shall file a joint status report sug g esting further proceeding s.
IT IS SO ORDERED. s/ Marg aret M. Sweeney MARGARET M. SW EENEY J udg e

- 20-