NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

GARY E. ALBRIGHT, ET AL.,

Plaintiffs-Appellants

CLAUDE J. ALLBRITTON, ET AL.,

Plaintiffs

v.

UNITED STATES,

Defendant-Appellee

-------------------------------------------

PERRY LOVERIDGE, ET AL.,

Plaintiffs

NEAL ABRAHAMSON, ET AL.,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

-------------------------------------------

GARY E. ALBRIGHT, ET AL.,

Plaintiffs

DANIEL EARL HIGGINS, III, MICHAEL J. OPOKA, 

Case: 19-2078 Document: 130 Page: 1 Filed: 12/01/2020
2 ALBRIGHT v. UNITED STATES

ZELDA L. OPOKA,

Plaintiffs-Appellants

v.

UNITED STATES,

Defendant-Appellee

______________________

2019-2078, 2019-2080, 2019-2090, 2019-2316

______________________

Appeals from the United States Court of Federal 

Claims in Nos. 1:16-cv-00912-NBF, 1:16-cv-01565-NBF, 

1:18-cv-00375-NBF, Senior Judge Nancy B. Firestone.

______________________

Decided: December 1, 2020

______________________

THOMAS SCOTT STEWART, Stewart Wald & McCulley, 

LLC, Kansas City, MO, argued for all plaintiffs-appellants. 

Plaintiffs-appellants Neal Abrahamson, Randy Anderson, 

Judy Anderson, Braukman Loving Trust, Hannelore 

Drugg, James Haley, Deslee Kahrs, Donna Kahrs, Won 

Wha Kim, Jeong Ho Kim, Terry Kline, Debbie Kline, Mascott, LLC, Terry S. McCamman, Cheryl A. McCamman, 

Sharon Newman, Cheryl D. Runnels Trust, Barbara L. 

Thompson Revocable Living Trust, William E. Waibel Living Trust and Pamela A. Waibel Living Trust, Diane Walters, Richard Young, Advance Resorts of America, Inc., 

William Appleton, Jacqueline Appleton, Berrie Beach, 

LLC, Maureen Berrie-Lawson, Angelina Best, Brecht Family Trust, Neil Brown, Randall S. Burbach Trust, Douglas 

Burrows, Chastain Family Limited Partnership, Gary L. 

Dowen, Mary E. Dowen, Scott Ford, Rosalie Gehlen, Lenhart A. Gienger Trust, Rick Hass, Barbara Hass, Cheri 

Heath-Rickert, James Henriksen, David Hirschfield, 

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ALBRIGHT v. UNITED STATES 3

Roberta J. Hoffard Revocable Living Trust, Claudia Jameson, Darleen Johnson, Betsy A. King Revocable Trust, William Neuman, Ruffo Family Revocable Living Trust, 

Patricia Shotwell, Kevin Thomas, Carol Thomas, Shirley 

M. Thomas Revocable Living Trust, Zapp Family Revocable Living Trust, Paul D. Ancheta, Donald Aten, Linda 

Aten, Brummund Family Revocable Living Trust, David 

William Bruneau Trust, Kim Kristina Bruneau Trust, 

Daniel Stokes, Judith Stokes, Franklin Byrnes, Alice 

Yetka, Mark Escriva, Maryann Escriva, Falconer Family 

Trust, Farmington Hubbard Adams Enterprises, LLC, Eileen George, Martha Lynn Trost Gray, James Harper, 

Georgia Gettman, Stephan Jones, Teresa Jones, Ronald 

Koch, Julie Koch, LOLA OTT IV, LLC, Ebben McCarty, 

James McDonald, Sally McDonald, Synthia McIver, Zhiming Mei, Oregon Conference of the Methodist Church, Oregon-Idaho Annual Conference of the United Methodist 

Church, Oregon Writers Colony, Inc., Ardyce K. Osborn 

Revocable Living Trust, Rockaway Sandwood Ltd., Michael 

Sabin, Jerry Schlegel, Van's Camp LLC, Fred Wale, Andrea Lynn Wallace, Mary Judith Upright Living Trust also 

represented by ELIZABETH MCCULLEY; MICHAEL JAMES 

SMITH, STEVEN WALD, St. Louis, MO. 

 JAMES H. HULME, Arent Fox LLP, Washington, DC, for 

plaintiffs-appellants Edward J. Bates, Judith A. Bates, 

Todd A. Bridge, Rebecca A. Bridge, Sherry D. Crocker, 

Howard N. Dietrich, Sr., Bradley C. Donohue, Erickson Realty, Ltd., Joseph A. Evers, Beverly J. Evers, Evers Family 

Farms, Inc., Roderick Michael Gordon Living Trust, Daniel 

Earl Higgins, III, Jason Hitz, Christy Hitz, Mark Beer, 

Carol Beer, JC Purinton Group, LLC, Dmitri Kosten, Kurt 

Langeberg, Linda Langeberg, Lardner Family Revocable 

Trust, M& GT Land Management LLC, James E. 

McConnell, Rita J. McConnell, Michael J. Opoka, Zelda L. 

Opoka, Lyal T. Purinton, Sandra K. Purinton, Barbara 

Reimers Family Trust, Schwietert Enterprises II, LLC, 

Brady A. Smith, Patrick Toews, Dominique Toews, Upper 

Case: 19-2078 Document: 130 Page: 3 Filed: 12/01/2020
4 ALBRIGHT v. UNITED STATES

Crust Real Estate, LLC, Eric P. Williams, Karen J. Williams, Charles Winders, James P. Calpin Trust, Carla C. 

Albright, Gary E. Albright. Also represented by DONALD 

B. MITCHELL, JR. 

 MEGHAN S. LARGENT, LewisRice, St. Louis, MO, for 

plaintiffs-appellants Carole J. Bellisario, Martha Bush, 

George W. DeGeer, Tracy J. Keegan, David L. Hubbell, 

Gregory K. Hulbert Trust, Jamieson Land and Timber, 

LLC, Gail M. Kessinger, James A. Kliewer, Susan M. 

Kliewer, Little Family Trust, James C. Miller, Diane 

Foeller Miller, Daniel Mathias Foeller, Thomas Charles 

Foeller, Thomas J. Rinck and Sandra Gift Trust, Switzer 

Family Trust, Steven Michael Van Doren, Linda Ann Van 

Doren, Willa Worley, Richard John Vidler, Jr., Arlene 

Frances Wolever Trust. Also represented by LINDSAY 

BRINTON.

 ANNA KATSELAS, Environment and Natural Resources 

Division, United States Department of Justice, Washington, DC, argued for defendant-appellee. Also represented

by JEFFREY B. CLARK, ERIC GRANT. 

 MARK F. HEARNE, II, True North Law Group, LLC, St. 

Louis, MO, for amicus curiae National Association of Reversionary Property Owners. Also represented by STEPHEN 

S. DAVIS.

 ______________________

Before PROST, Chief Judge, LINN and TARANTO, Circuit 

Judges.

PROST, Chief Judge.

These consolidated appeals stem from a “rails-to-trails” 

conversion in Oregon. The Court of Federal Claims determined that the twenty-six deeds at issue each conveyed fee 

simple title, not an easement, from Appellants’ 

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ALBRIGHT v. UNITED STATES 5

predecessors-in-interest to the railroad.1 See generally 

Loveridge v. United States, No. 16-912L, 2019 WL 495578 

(Fed. Cl. Feb. 8, 2019) (“Reconsideration”); Loveridge v. 

United States, 139 Fed. Cl. 122 (2018) (“Decision”). For 

that reason, the Court of Federal Claims concluded that

Appellants have no compensable property interest in the 

land to which the deeds pertain. Appellants appealed. We 

affirm.

I

The United States Surface and Transportation Board 

(“STB”) has regulatory authority over rail carriers who 

wish to discontinue or abandon any part of their railroad 

line. 49 U.S.C. §§ 10501(b), 10903. Discontinuance “allows 

a railroad to cease operating a line for an indefinite period 

while preserving the rail corridor for possible reactivation 

of service in the future.” Preseault v. Interstate Commerce 

Comm’n, 494 U.S. 1, 4 n.3 (1990) (“Preseault I”). Abandonment “removes the line from the national rail system and 

1 Like the parties, we identify the deeds by the grantor’s name or, if the grantor executed more than one deed, 

by both the grantor’s name and the book and leading page 

number. The deeds at issue on appeal are Beals 18/40 

(J.A. 20, 1219); Bryden (J.A. 24, 1234); Burgholzer 83/99 

(J.A. 26, 1238); Cummings (J.A. 35, 1263); DuBois 24/40 

(J.A. 41, 1281); Friday (J.A. 44, 1296); Galvani (J.A. 45, 

1300); Gattrell (J.A. 46, 1302); Goodwin (J.A. 50, 1310); 

Hagen (J.A. 51, 1312); Jeffries (J.A. 63, 1357); Rinck 

(J.A. 88, 1438); Rupp (J.A. 92, 1446); Slattery (J.A. 96, 

1462); Smith (J.A. 97, 4871); Stowell (J.A. 100, 1473); 

Thayer 11/355 (J.A. 103, 1478); Watt 12/343 (J.A. 112, 

1478); Watt 12/344 (J.A. 113, 1502); Watt 12/345 (J.A. 114, 

1504); Westinghouse 85/39 (J.A. 117, 1504); Wheeler Lumber 16/3 (J.A. 119, 2133); Wheeler Lumber 16/5 (J.A. 120, 

4773); Wilson 75/244 (J.A. 122, 1524); Woodbury 16/481 

(J.A. 123, 4864); and Woodbury 23/399 (J.A. 124, 4829).

Case: 19-2078 Document: 130 Page: 5 Filed: 12/01/2020
6 ALBRIGHT v. UNITED STATES

terminates the railroad’s common carrier obligation for the 

line.” Chi. Coating Co., LLC v. United States, 892 F.3d 

1164, 1166 (Fed. Cir. 2018). A railroad seeking to abandon 

any part of its railroad line must either file a standard 

abandonment application under 49 U.S.C. § 10903 or seek 

an exemption under 49 U.S.C. § 10502. See Caldwell v. 

United States, 391 F.3d 1226, 1228 & n.3 (Fed. Cir. 2004).

A provision of the National Trails System Act Amendments of 1983, Pub. L. No. 98-11, sec. 208(1), 97 Stat. 42, 

48 (codified as amended at 16 U.S.C. § 1247(d)), provides 

an alternative to abandonment called “railbanking,” which

preserves the possibility of future use of the land for railroad purposes but permits a trail sponsor to both take responsibility for the land and convert it in the interim to a 

recreational trail. Preseault I, 494 U.S. at 6–7; Chi. Coating, 892 F.3d at 1167. To initiate this process, a prospective trail sponsor must first notify the STB of its interest to 

repurpose the land to interim trail use. Preseault I, 

494 U.S. at 7 n.5; Chi. Coating, 892 F.3d at 1167 & n.3. If 

the railroad agrees to negotiate an interim trail use/railbanking agreement with the prospective trail sponsor, the 

STB issues a Certificate of Interim Trail Use (“CITU”) or, 

in the case of exemption proceedings, a Notice of Interim 

Trail Use (“NITU”). See 49 C.F.R. § 1152.29(c)–(d);

Caquelin v. United States, 959 F.3d 1360, 1363 (Fed. Cir. 

2020); Chi. Coating, 892 F.3d at 1167. The CITU or NITU

provides the parties with a period of time to negotiate a 

trail use agreement. See 49 C.F.R. § 1152.29. If the parties 

reach an agreement, upon notifying the STB, the corridor 

is railbanked, and the trail sponsor may convert the rail 

segment to a trail. See Preseault I, 494 U.S. at 7. 

Turning now to this case, on May 26, 2016, the Port of 

Tillamook Bay Railroad (“POTB”) filed an exemption notice 

with the STB to abandon the portion of its rail line located 

between milepost 775.1 (near Banks, Oregon) and milepost 

856.08 (near Tillamook, Oregon). On June 7, 2016, the 

Salmonberry Trail Intergovernmental Agency (“STIA”) 

Case: 19-2078 Document: 130 Page: 6 Filed: 12/01/2020
ALBRIGHT v. UNITED STATES 7

asked the STB to issue a NITU for the segment. The STB 

issued the NITU on July 26, 2016, after POTB expressed 

its willingness to negotiate with STIA for interim trail use 

and railbanking. STIA and POTB ultimately reached an 

interim trail use agreement and notified the STB of the 

agreement on October 23, 2017.

Shortly after the NITU issued, Plaintiffs-Appellants 

filed the underlying action in the Court of Federal Claims, 

alleging that the conversion of the land to interim trail use

amounted to a Fifth Amendment taking. One hundred 

thirty-two deeds were initially at issue in the case. 

Twenty-six deeds remain at issue in this appeal. Appellants contend that “their predecessors-in-interest granted

only easements to the railroad which terminated when the 

railroad became dormant” and, as a result, “conversion of 

the rail corridor gave rise to a” compensable Fifth Amendment taking. See Decision, 139 Fed. Cl. at 127. In response, the government argued that there was no 

compensable taking because the deeds at issue “conveyed 

the property within the rail corridor to the railroads in fee 

simple absolute.” Id. The Court of Federal Claims agreed 

with the government, concluding on partial summary judgment that the twenty-six deeds at issue conveyed fee simple title to the railroad and that, therefore, no Fifth 

Amendment taking occurred. 

Appellants appealed. We have jurisdiction under 

28 U.S.C. § 1295(a)(3). 

II

We review de novo the decision of the Court of Federal 

Claims on summary judgment. Cienega Gardens v. United 

States, 331 F.3d 1319, 1328 (Fed. Cir. 2003); see also Chi. 

Coating, 892 F.3d at 1169. “Summary judgment is appropriate where there is no genuine dispute as to any material 

fact and the moving party is entitled to judgment as a matter of law.” Arko Exec. Servs., Inc. v. United States, 

553 F.3d 1375, 1378 (Fed. Cir. 2009) (citing Anderson v. 

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8 ALBRIGHT v. UNITED STATES

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)); see also R. 

Ct. Fed. Cl. 56(a).

The Fifth Amendment of the Constitution provides 

that “private property [shall not] be taken for public use, 

without just compensation.” U.S. CONST. amend. V, cl. 4. 

Here, the only issue on appeal is whether the twenty-six

deeds at issue conveyed to the railroad an estate in fee simple absolute or an easement. If the deeds conveyed only an 

easement, then the Appellants might have a valid takings 

claim. See Preseault v. United States, 100 F.3d 1525, 1533

(Fed. Cir. 1996) (en banc) (“Preseault II”); see also Chi. 

Coating, 892 F.3d at 1170; Ellamae Phillips Co. v. United 

States, 564 F.3d 1367, 1373 (Fed. Cir. 2009). But if the 

railroad “obtained fee simple title to the land over which it 

was to operate, and that title inures, as it would, to its successors, the [Appellants] would have no right or interest in 

those parcels and could have no claim related to those parcels for a taking.” Preseault II, 100 F.3d at 1533; see also 

Chi. Coating, 892 F.3d at 1170; Ellamae Phillips, 564 F.3d 

at 1373. To determine the nature of the conveyance, we 

apply Oregon law as it is “the law of the state where the 

property interest[s] arise[].” Chi. Coating, 892 F.3d 

at 1170. 

For the reasons below, we agree with the Court of Federal Claims that each of the twenty-six deeds conveyed fee 

simple title to the railroad and, accordingly, Appellants 

have no compensable Fifth Amendment takings claim relating to these deeds.

A

Under Oregon law, “[w]hether an instrument conveys 

ownership of land or only an easement depends upon the 

intention of the parties.”2 Bouche v. Wagner, 293 P.2d 203,

2 The parties dispute whether, under Oregon law, it 

is presumed that the parties intended to convey a fee 

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ALBRIGHT v. UNITED STATES 9

208 (Or. 1956) (internal quotation marks omitted); see also 

Bernards v. Link, 248 P.2d 341, 344 (Or. 1952).

In Wason v. Pilz, a case that did not involve a railroad 

deed, the Oregon Supreme Court considered a deed conveying a parcel of land for road purposes. 48 P. 701, 701–02

(Or. 1897). The court concluded that because the conveyance granted land only for limited purposes, the language 

of the conveyance was “indicative of an easement only” and 

was “controlling as the measure of the estate granted.” Id. 

In Bernards, the Oregon Supreme Court held that the 

railroad deed at issue granted an easement, not a fee simple estate, and stated:

It will be observed from the deed that (1) it was entitled “Right of Way Deed”; (2) a conveyance of the 

strip was made “for use as a right of way”; (3) the 

consideration was only $1 [i.e., the consideration 

was nominal]; (4) the conveyance was subject to a 

condition subsequent which revested all title in the 

grantors in the event the stipulated condition occurred; (5) the grantees were required to construct 

for the use of the grantors a cattle crossing; (6) the 

description included the phrase “over and across 

and out of the land of the grantors”; (7) the phraseology employed repeatedly the term “strip of land”; 

[and] (8) the grantee was required to “build and 

keep in repair a good and substantial fence along 

each side of the strip.”

Bernards, 248 P.2d at 343–44. Although “[v]arious tests 

ha[d] been suggested by the commentators for facilitating 

simple estate unless the intent to pass a lesser estate was 

expressly stated or necessarily implied. We need not decide this issue to resolve the case, as we conclude that the 

deeds at issue convey a fee simple estate even if there is no 

presumption that they did so.

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10 ALBRIGHT v. UNITED STATES

a determination whether a deed like the one before [the

court] grants an easement or conveys the fee,” the court 

“deem[ed] it unnecessary to set forth . . . a review of the 

many authorities cited by the parties” because “the [Wason] decision is determinative of the issues under consideration.” Id. at 343–44. In particular, like the deed in Wason, 

the deed in Bernards similarly conveyed land only for a 

limited purpose: specifically, the deed “convey[ed] . . . for 

its use as a right of way for a railroad, a strip of land.” Id. 

at 342 (emphasis added.

The Oregon Supreme Court considered another railroad deed in Bouche but this time concluded that the deed 

conveyed fee simple title. 293 P.2d at 210. As in Bernards, 

the court stressed the importance of what the deed purports to convey. Specifically, the court explained:

A study of the cited cases suggests that the courts

have little difficulty, where a railroad company is 

the grantee, in declaring that the instrument creates only an easement whenever the grant is a use 

to be made of the property, usually, but not invariably, described as for use as a right of way in the 

grant. 

On the other hand, . . . [c]onveyances to railroads, 

which purport to grant and convey a strip, piece, 

parcel, or tract of land, and which do not contain 

additional language relating to the use or purpose 

to which the land is to be put or in other ways cutting down or limiting, directly or indirectly, the estate conveyed, are usually construed as passing an 

estate in fee.

Id. at 209 (internal quotation marks omitted). 

The court further remarked that courts had “express[ed] a divergence of opinion when the conveyance 

merely has a reference to the use or purpose to which the 

land is to be put, and which is contained in either the 

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ALBRIGHT v. UNITED STATES 11

granting or habendum clause, and, except for the reference, 

would uniformly be construed as passing title in fee.” Id. 

The court explained that the “confusion . . . arises for the 

most part in the failure to distinguish the twofold meaning 

of the words ‘right of way.’” Id. Specifically, the term right 

of way is “sometimes used to describe a right belonging to 

a party, a right of passage over any tract; and it is also used 

to describe that strip of land which railroad companies take 

upon which to construct their road-bed.” Id. (quoting Joy 

v. City of St. Louis, 138 U.S. 1, 44 (1891) (emphasis omitted)).

In considering the 1921 deed at issue in the case, the 

court concluded that “it was the intention of the parties 

that the fee in the land should pass,” reasoning:

The conveyance is not entitled (1) a “right of way 

deed”; (2) the granting clause conveys land, not a 

right; (3) the consideration was substantial ($650); 

(4) there is no reverter provided for; (5) the words 

“over and across the lands of the grantors” do not 

appear; and (6) the land conveyed is described with 

precision. 

Id. at 206, 209–10. The court explained further that “[t]he 

only indication that the parties may have intended an easement should pass is the incidental reference to a ‘right of 

way’ in the covenant following the granting and habendum 

clause,” but that term “could have referred to either the 

right of passage or to the land itself,” and there was nothing in the deed that limited the use the grantee might make 

of the land. Id. at 209. 

The court also concluded that the 1919 deed at issue 

“conveyed the fee simple title to the land involved,” reasoning:

[The deed] contained no mention of a right of way; 

it described the subject of the grant as “a strip of 

land,” not as a “right,” and there was no statement 

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12 ALBRIGHT v. UNITED STATES

of the purposes for which it was granted; it described the land conveyed with a relatively high degree of precision; and the habendum clause is of the 

type usually employed to convey a fee simple title.

Id. at 206–07, 210.

B

We conclude that each of the twenty-six deeds conveyed fee simple title, not merely an easement, and we thus 

affirm the decision of the Court of Federal Claims.

Importantly, the granting clauses of all twenty-six

deeds at issue purport to convey land—not an easement, 

not a right of way, and not property for specified purposes. 

Seventeen of the deeds provide, with at most minor and

immaterial grammatical differences: “[The grantors] bargain, sell, grant, convey, and confirm” to the railroad company “and to its successors and assigns forever, all of the 

following described real property . . . to wit: a strip of land 

. . . .” (emphasis added).3 Four deeds provide, again with 

at most minor and immaterial grammatical differences:

“[The grantors] grant, bargain and sell, convey[,] and confirm . . . all that certain lot, piece, parcel and tract of land

. . . .” (emphasis added).4 Four more deeds provide, yet 

again with at most minor immaterial grammatical differences: “[The grantors] bargain, sell, grant, convey[,] and 

confirm . . . a strip of land . . . .” (emphasis added).5 And 

3 These deeds are Beals 18/40, Burgholzer 83/99, 

Cummings, DuBois 24/40, Goodwin, Jeffries, Rinck, Slattery, Smith, Thayer 11/355, Watt 12/343, Watt 12/344, 

Watt 12/345, Westinghouse 85/39, Wheeler Lumber 16/3, 

Wheeler Lumber 16/5, and Wilson 75/244. 

4 These deeds are Friday, Galvani, Hagen, and Stowell.

5 These deeds are Gattrell, Rupp, Woodbury 16/481, 

and Woodbury 23/399.

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ALBRIGHT v. UNITED STATES 13

the remaining deed—Bryden—provides: “[The grantors]

grant, bargain, sell and convey . . . all of the following 

bounded and described real property . . . a strip of land 

. . . .” (emphasis added). 

Although four of the deeds—Bryden, Friday, Smith, 

and Stowell—include the word “right of way,” the deeds do 

so only in their descriptions of the property conveyed and 

only to describe the land itself, not to describe what was 

being conveyed. Reconsideration, 2019 WL 495578, 

at *51–52, 56–57; see Bouche, 293 P.2d at 209 (discussing 

the “twofold meaning” of right of way). 

In addition, although seven deeds—DuBois, Gattrell, 

Goodwin, Rinck, Slattery, Wheeler Lumber 16/3, and 

Wheeler Lumber 16/5—further indicate that the right to 

operate a railroad is conveyed, this language is clearly employed merely to confirm that the conveyance includes that 

right, not to limit the interest conveyed to that right. E.g., 

J.A. 50–51, 1310 (providing that “real property” is conveyed to the railroad “and to its successors and assigns forever[,] . . . together with the appurtenances[,] tenements[,] 

and hereditaments thereunto belonging or in anywise appertaining, together also with the right to maintain and operate a railroad thereover” (emphasis added)); J.A. 120–

121, 4773 (providing that “real property” is conveyed to the 

railroad “and to its successors and assigns forever . . . 

[t]ogether with the appurtenances, tenements[,] and hereditaments thereunto belonging or in anywise appertaining[,] . . . grantors confirming also to the grantee, its 

successors and assigns, the right to build, maintain and operate a line of railway thereover” (emphasis added)).

In addition, none of the deeds provide for a reverter or 

otherwise contain language limiting the use that the 

grantee could make of the land. To the contrary, each of 

the deeds purport to convey land to the grantee and “to its 

successors and assigns forever.” And twenty-five of the 

twenty-six deeds specify that the land is conveyed with all 

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14 ALBRIGHT v. UNITED STATES

appurtenances, tenements and hereditaments. The deeds 

at issue are thus much more akin to the 1921 deed in 

Bouche than to the deed in Bernards. Compare Bouche, 

293 P.2d at 209 (concluding that the 1921 deed conveyed a 

fee simple in part because “there [was] no reverter provided 

for”), with Bernards, 248 P.2d at 342 (deed at issue providing that “should [the grantee] fail so to build such railroad, 

this grant shall become null and void, and the title to said 

strip so conveyed shall revert to said grantors and their 

successors in interest”). 

In sum, like the granting clause at issue in Bouche, the 

granting clauses in all the deeds at issue here plainly purport to convey real property. And the deeds state that the 

property is conveyed to the grantee and its successors and 

assigns “forever.” The granting clauses do not purport to 

convey an easement, a right of way, or something else that 

would indicate an intent to convey an easement, such as 

property for specific purposes like the deed at issue in Bernards. Nor do the deeds provide for reverter or otherwise 

limit the uses the grantee can make of the land. These observations strongly support the conclusion that the deeds 

transferred fee simple absolute title to the land. See 

Bouche, 293 P.2d at 209–10; Bernards, 248 P.2d at 342–44.

Nothing points us to a different conclusion. Appellants 

argue that the deeds’ use of the phrase “strip of land” evidences that the deeds conveyed only an easement. Appellants rely on Bernards’s “observation” that the deed at 

issue, which the court construed as conveying an easement,

“employed repeatedly the term ‘strip of land.’” Bernards, 

248 P.2d at 343. 

Appellants’ argument is unpersuasive. For starters, 

the Bouche court stated that “[c]onveyances to railroads, 

which purport to grant and convey a strip . . . of land” and 

do not otherwise limit the estate conveyed “are usually construed as passing an estate in fee.” Bouche, 293 P.2d

at 209. The Bouche court also specifically concluded that 

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ALBRIGHT v. UNITED STATES 15

the 1919 deed at issue conveyed fee simple title in part because “it described the subject of the grant as ‘a strip of 

land,’ not as a ‘right.’” Id. at 210. Accordingly, although 

the deeds describe the land conveyed as a strip, that fact, 

standing alone, does not evidence that the parties to the 

deed intended to convey only an easement. 

Even assuming Appellants are correct that Bernards 

attached significance to the deeds’ use of the term “strip of 

land,” Bouche appears to have reduced or eliminated such 

significance. And it is not at all clear that Bernards did 

attach great significance to the term, considering Bernards 

merely observed that the deed included the term but otherwise rested heavily on Wason—which did not relate to

the significance of the term strip of land—in reaching its 

decision. See Bernards, 248 P.2d at 343–44. Furthermore,

at most Bernards attached significance to “repeated[]” use 

of the term strip of land, but here the deeds use the term 

infrequently: most use the term only once to describe the 

land being conveyed, and the deeds that more often use the 

term do so only because they describe more than one strip 

of land. 

Appellants further point to a number of Oregon Supreme Court cases stating that it is against public policy to 

have numerous strips of land all held separately in fee simple absolute. See, e.g., Cross v. Talbot, 254 P. 827, 828 

(Or. 1927). This argument is also unpersuasive. Our decision relies on the relevant Oregon case law, including Bernards and Bouche. Appellants have failed to persuade us 

that Bernards and Bouche are not good law or otherwise do 

not already account for this public policy, particularly considering that the Oregon Supreme Court announced this 

public policy long before Bernards and Bouche. Furthermore, we note that it is beyond question that, under Oregon 

law, railroads sometimes obtained fee simple title to strips 

of land used for their rail lines. See, e.g., Bouche, 293 P.2d 

203. This is such a case. 

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16 ALBRIGHT v. UNITED STATES

In addition, Appellants contend that the deeds do not 

describe the land with precision, which favors finding that 

the deeds convey an easement. This argument falls short

because each of the deeds describes the land conveyed with 

at least some precision. In particular, each deed identifies 

the boundaries of the strip of land conveyed in reference to 

the centerline of the railroad that had been surveyed and 

located before executing the deeds. Under such circumstances, it can hardly be said that the deeds failed to adequately specify the boundaries of the land conveyed. See, 

e.g., Restatement (First) of Property § 471 (1944) (observing that “a conveyance creating an estate” can describe the 

land conveyed “in any of many different ways,” including 

“by reference to an area to be located by survey with reference to a known point or points”). 

Appellants also highlight that many of the deeds use 

the term “through” or “across,” which they contend is similar to the Bernards deed’s usage of “over and across and out 

of the land of the grantors.” Bernards, 248 P.2d at 342–43. 

We are not convinced. The deed in Bernards used that

phrase in the granting clause to describe what was conveyed, and the usage suggested that the deed conveyed not

a possessory interest in the property itself but rather a 

nonpossessory right of way over and across the land. See 

id. In contrast, here the deeds do not use “through” and 

“across” to limit what was conveyed by the deed. Rather, 

the deeds use the terms only in the description of the property conveyed and merely to communicate that the railroad 

had been located through certain property. 

Furthermore, Appellants argue that, for many of the 

deeds, the stated consideration was nominal, which Appellants contend evidences that the parties intended to convey 

only an easement. Under these circumstances, reciting 

nominal consideration is insufficient to overcome the other 

factors supporting a determination that the deeds convey 

an estate in fee simple absolute. We also note that, on at 

least one occasion, an Oregon appellate court gave little 

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ALBRIGHT v. UNITED STATES 17

weight to a pre-1967 deed’s recitation of nominal consideration of $1 on the basis that “[i]t was not until 1967 that 

the legislature” began “requiring that conveyances state 

true and actual consideration,” and there was “no evidence 

that one dollar was the true consideration.” Realvest Corp. 

v. Lane Cnty., 100 P.3d 1109, 1118 & n.6 (Or. Ct. App. 

2004). Likewise, the deeds at issue here were all executed 

prior to 1967, and there is no evidence that the recited consideration is the true consideration.

Finally, Appellants contend that we should construe 

the deeds as passing an easement because each deed specifically states that the railroad had already surveyed and 

located a railway across the grantor’s land prior to executing the deed. Appellants rely on our decision in Preseault 

II. There, we interpreted Vermont law as providing that 

where a railroad company’s survey and location of the railway precedes the execution of a written instrument, the 

survey and location, not the subsequent written instrument, “is the operative determinant.” Preseault II, 

100 F.3d at 1536–37. We explained that railroads in Vermont had eminent domain power to acquire easements in 

land necessary to operate rail lines. Id. We reasoned that 

where a railroad company surveys and locates its right of 

way prior to any written agreement, such action evidences 

the company’s intent to acquire only an easement pursuant 

to its eminent domain authority, and any subsequent written conveyance “retain[s] [that] eminent domain flavor.” 

Id. 

Appellants’ reliance on Preseault II is unpersuasive. 

Preseault II applied Vermont law, not Oregon law, and we 

are unaware of any authority in Oregon that supports Appellants’ position. To the contrary, the 1921 deed construed in Bouche plainly indicated that it was executed 

after the railroad was “located and established,” and the 

Bouche court gave no significance whatsoever to that. 

Bouche, 206 Or. at 206, 209. We do not accept Appellants’ 

invitation to depart from Bouche. 

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18 ALBRIGHT v. UNITED STATES

Furthermore, even the Supreme Court of Vermont has 

not interpreted Preseault II to support Appellants’ position. 

In Old Railroad Bed, LLV v. Marcus, the Supreme Court 

of Vermont explained that “[t]o the extent that . . . Preseault [II] holds that a location survey automatically converts a subsequent fee-simple conveyance into an 

easement, we know of no law in Vermont or elsewhere to 

support such a claim.” 196 Vt. 74, 79 (2014). Indeed, a location survey does not “preclude[] a railroad from subsequently purchasing, or the landowner from subsequently 

conveying, a deeded fee-simple interest.” Id. at 81. For at 

least these reasons, we do not read Preseault II as broadly 

as Appellants, and even if we did, Preseault II would nevertheless not justify departing from Bouche and Bernards.

In short, we conclude that the twenty-six deeds at issue 

here each conveyed an estate in fee simple absolute, not an 

easement, to the railroad company. Importantly, each of 

the deeds purports to convey land, not an easement, right 

of way, or property for specified purposes. In addition, the 

deeds purport to convey the land forever and do not provide 

for reverter or otherwise restrict the use the grantee could 

make of the land. Even though some of the deeds recite 

only nominal consideration and the deeds were executed 

after the railroad was surveyed and located, on balance and 

under these circumstances, we conclude that the parties 

conveyed estates in fee simple absolute to the railroad company.6 

6 We further note that even if we were to conclude, 

for one or more deeds, that there was irreconcilably conflicting language between the granting clause and other 

parts of the deed, the granting clause—which purports to 

convey land, not a right of way or property for specified 

purposes—would control. Palmateer v. Reid, 254 P. 359, 

361 (Or. 1927); see also First Nat’l Bank of Or. v. Townsend, 

555 P.2d 477, 478 (Or. Ct. App. 1976) (“There is also 

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ALBRIGHT v. UNITED STATES 19

III

We have considered Appellants’ remaining arguments 

but find them unpersuasive. For the foregoing reasons, we 

affirm the decision of the Court of Federal Claims.

AFFIRMED

authority for the more technical proposition that if the intent of the parties cannot be discerned from the deed and 

there is, as here, an irreconcilable conflict between the 

granting clause and other parts of the deed, the estate conveyed in the granting clause will prevail.”). 

Case: 19-2078 Document: 130 Page: 19 Filed: 12/01/2020