Also before the Court is a brief in support of Defendant’s motion for summary 1

judgment submitted by Amicus Curaie Rails-to-Trails Conservancy (“RTC”).

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT TROHA and FREDERICK BIGNALL, )

on behalf of themselves and all others similarly )

situated, )

)

Plaintiffs, )

v. ) C.A. No. 05-191 Erie

) District Judge McLaughlin

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

)

MEMORANDUM OPINION

McLAUGHLIN, SEAN J., J.

I. INTRODUCTION

The Plaintiffs, a certified class pursuant to Fed. R. Civ Pro. 23(b)(3), consist of individuals

who own land that abuts or is traversed by a recreational trail in Elk and Cameron Counties,

Pennsylvania. In this action, brought pursuant to the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2),

they contend that by virtue of the operation of the National Trails System Act, 16 U.S.C. § 1241 et

seq., they have been deprived of reversionary property interests in various portions of the recreational

trail without just compensation in violation of the Fifth Amendment of the United States

Constitution. Presently pending before the Court are the parties’ cross-motions for summary

judgment. For the reasons which follow, the Defendant’s motion for summary judgment will be 1

granted and the Plaintiffs’ motion denied. 

II. BACKGROUND

Case 1:05-cv-00191-SJM Document 74 Filed 02/25/10 Page 1 of 20
The Surface Transportation Board (“STB”) is the agency charged under the 2

Interstate Commerce Act, 49 U.S.C. 10101, with regulating rail carriers that

provide transportation over any part of the interstate rail network. Prior to the

creation of the STB by Congressional act effective January 1, 1996, this role

was filled by the Interstate Commerce Commission (“ICC”). 

2

This case concerns a railroad right-of-way formerly operated by Allegheny & Eastern

Railroad, Inc., (“A&E”) in Cameron and Elk Counties, Pennsylvania. (Joint Statement of Facts, ¶

1). The portion of the right-of-way at issue totals 18.9 miles in length and was originally constructed

in 1864 by the Philadelphia and Erie Railroad Company. (Joint Statement, ¶ 3). A&E acquired its

ownership interest in the right-of-way in 1985. (Joint Statement, ¶ 4). Following the acquisition,

A&E did not utilize the line for common carrier freight services. (Joint Statement, ¶ 20). However,

other railroad carriers occasionally used the line for special contract services through approximately

late 2000. (Joint Statement, ¶¶ 21-22).

On August 8, 2003, A&E stated in an Environmental/Historic Report filed with the Surface

Transportation Board (“STB”) that “[n]o service has been provided on this line by Applicant for 2

over two years. Abandonment of the line will allow Applicant to salvage the track and materials.

At this time, there appears to be no alternative to the proposed action.” (Joint Statement, ¶ 23).

A&E also noted that “[a]ll track removal work will be done on top of the road bed. Nothing beneath

the road bed will be distrubed.” A&E further stated that it would leave in place, unaltered, certain

structures along the right-of-way, such as archways, culverts, and bridges. (Joint Statement, ¶ 24).

On September 11, 2003, A&E filed a Notice for Exemption of Abandonment seeking

authorization from the STB to abandon rail service over the right-of-way. (Joint Statement, ¶ 7).

The STB issued an exemption authorizing abandonment of the line, with the exemption set to

become effective on October 31, 2003. (Joint Statement, ¶ 8). Prior to that date, however, Elk

County and Cameron County each filed a request to “railbank” the railway corridor pursuant to

Section 8(d) of the National Trails Systems Act, 16 U.S.C. § 1247(d) (hereinafter, the “Railbanking

Act”) (Joint Statement, ¶ 9). 

Case 1:05-cv-00191-SJM Document 74 Filed 02/25/10 Page 2 of 20
3

The Railbanking Act, designed to preserve the country’s rapidly disappearing railway

corridor infrastructure for future rail service and energy efficient transportation uses, permits inactive

railroad corridors to be used on an interim basis as trails. The Railbanking Act is triggered when a

railroad desires to terminate its common carrier obligation to provide freight rail service on a line,

an action requiring approval from the STB. When a qualified entity desires to negotiate with the

railroad concerning the preservation of a corridor for future rail and interim trail use, it must request

that the STB issue a railbanking order (known as a Certificate of Interim Trail Use (“CITU”) or a

Notice of Interim Trail Use (“NITU”)) by filing a statement of willingness to assume legal or

financial responsibility over the corridor until such time as it is needed again for rail service. 49

C.F.R. § 1152.29(a). Where a NITU or CITU is issued and a railbanking agreement is reached

between a railroad and a trail sponsor, the corridor is “railbanked” and remains subject to the federal

authority of the STB for so long as the trail use continues, and the corridor remains intact and

potentially available for reactivated rail service. Birt v. STB, 90 F.3d 580, 583 (D.C. Cir. 1996). 

In this case, the STB issued a NITU for the subject right-of-way on October 30, 2003,

granting A&E and Elk and Cameron Counties 180 days within which to negotiate a railbanking and

interim trail use agreement. (Joint Statement, ¶ 12). From 2003 through 2008, the parties sought

and obtained numerous extensions of this negotiating window from the STB. (Joint Statement, ¶¶

29-42). On November 7, 2006, in the midst of the ongoing negotiations, Elk County filed a notice

with the STB indicating that the West Creek Recreational Trail Association (“WCRTA”) had been

substituted as the proposed trail sponsor. On November 15, 2006, A&E indicated that it had no

objection to the substitution of the WCRTA as trail sponsor. (Joint Statement, ¶ 18). A&E

eventually reached an agreement with the trail sponsor and the right-of-way was railbanked on or

about September, 2008. 

Plaintiffs advance two arguments in support of their contention that a “taking” has occurred.

First, Plaintiffs contend that A&E’s property interest in the railroad right-of-way would have been

deemed to have been abandoned under state law but for the operation of the Railbanking Act.

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The nature of the specific deeds at issue will be discussed more fully below. 3

4

Alternatively, Plaintiffs contend that the utilization of the right-of-way as a recreational trail exceeds

the scope of the use permitted in some of the original conveyances resulting in a reversion of the

Plaintiffs’ property interests. 

3

This matter is fully briefed and is now ripe for disposition. I address each of the Plaintiffs’

contentions in turn below. 

II. STANDARD FOR REVIEW

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). A factual dispute is “material” only if it might affect the outcome of the case. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). For an issue to be “genuine,” a reasonable fact-finder

must be able to return a verdict in favor of the non-moving party. Id.

On summary judgment, it is not the court’s role to weigh the disputed evidence and decide

which is more probative, or to make credibility determinations. Boyle v. County of Allegheny, 139

F.3d 386, 393 (3 Cir.1998) (citing Petruzzi’s IGA Supermarkets, Inc. v. Darling-Del. Co. Inc., 998 rd

F.2d 1224, 1230 (3 Cir.1993). Rather, the court must consider the evidence, and all reasonable rd

inferences which may be drawn from it, in the light most favorable to the non-moving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States

v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361

(3 Cir.1987). If a conflict arises between the evidence presented by both sides, the court must

rd

accept as true the allegations of the non-moving party, and “all justifiable inferences are to be drawn

in his favor.” Anderson, 477 U.S. at 255.

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5

Although the moving party bears the initial burden of showing an absence of a genuine

issue of material fact, it need not “support its motion with affidavits or other similar materials

negating the opponent’s claim.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can meet its

burden by “pointing out ... that there is an absence of evidence to support the nonmoving party’s

claims.” Id. at 325. Once the movant has carried its initial burden, the opposing party “must do more

than simply show that there is some metaphysical doubt as to material facts.” Matsushita Elec., 475

U.S. at 586. “There must ... be sufficient evidence for a jury to return a verdict in favor of the

nonmoving party; if the evidence is merely colorable or not significantly probative, summary

judgment should be granted.” Arbruster v. Unisys Corp., 32 F.3d 768, 777 (3 Cir.1994), abrogated rd

on other grounds, Showalter v. Univ. of Pittsburgh Med. Ctr., 190 F.3d 231 (3 Cir.1999). rd

Notably, “[t]he rule is no different where there are cross-motions for summary judgment.”

Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3 Cir.2008). As stated by the Third Circuit,

rd

“‘[c]ross-motions are no more than a claim by each side that it alone is entitled to summary

judgment, and the making of such inherently contradictory claims does not constitute an agreement

that if one is rejected the other is necessarily justified or that the losing party waives judicial

consideration and determination whether genuine issues of material fact exist.’” Id. (quoting Rains

v. Cascade Indus., Inc., 402 F.2d 241, 245 (3 Cir.1968)). rd

III. ANALYSIS

In Preseault v. United States, 494 U.S. 1, 22 (1990) (“Presault I”), the owners of a

reversionary interest in a railbanked right-of-way challenged the constitutionality of the Railbanking

Act as an invalid exercise of Congressional power and sought compensation on the grounds that it

“takes private property without just compensation.” Preseault I, 494 U.S. at 10. Although the Court

rejected the Preseault’s constitutional challenge, it acknowledged that the operation of the

Railbanking Act might give rise to a takings claim if properly brought pursuant to the Tucker Act.

Preseault I, 494 U.S. at 16. In a frequently cited concurrence, Justice O’Connor explained the

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6

circumstances under which a takings claim might be successfully advanced. In this regard, Justice

O’Connor stated:

The scope of the [ICC’s] authority to regulate abandonments,

thereby delimiting the ambit of federal power, is an issue quite

distinct from whether the Commission’s exercise of power over

matters within its jurisdiction effected a taking of petitioner’s

property. Although the Commission’s actions may pre-empt the

operation and effect of certain state laws, those actions do not

displace state law as the traditional source of the real property

interests. The Commission’s actions may delay property owners’

enjoyment of their reversionary interests, but that delay burdens

and defeats the property interest rather than suspends or defers the

vesting of those property rights. Any other conclusion would

convert the ICC’s power to pre-empt conflicting state regulation

of interstate commerce into the power to pre-empt the rights

guaranteed by state property law, a result incompatible with the

Fifth Amendment. 

* * * * * * *

The ICC may possess the power to postpone enjoyment of

reversionary interest, but the Fifth Amendment and wellestablished doctrine indicate that in certain circumstances the

Government must compensate owners of those property interests

when it exercises that power. . . . [T]he existence of a taking will

rest upon the nature of the state-created property interest that

petitioners would have enjoyed absent the federal action and upon

the extent that the federal action burdened that interest.

Id. at 22-24 (O’Connor, J., concurring) (internal citations omitted). 

Following the Supreme Court’s decision in Preseault I, the Preseaults brought a

compensation claim pursuant to the Tucker Act. Preseault v. United States, 100 F.3d 1525 (Fed. Cir.

1996) (“Preseault II”). The Preseaults contended that the railroad right-of-way at issue had been

abandoned under state law prior to railbanking because rail service had not operated over the line

in more than a decade and all railroad equipment, including tracks, switches, and bridges had been

removed. Consequently, they argued that the railroad’s ownership interest in the right-of-way had

been extinguished and that the right-of-way would have reverted to the holders of reversionary

property rights but for the operation of the Railbanking Act. Id. at 1529-33.

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7

Relying in part on Justice O’Connor’s concurrence in Preseault I, the Court of Appeals for

the Federal Circuit set forth the appropriate analytical approach in determining whether a taking has

occurred as a result of the operative effect of the Railbanking Act: 

The determinative issues in the case, then, are three: (1) who

owned the strips of land involved, specifically did the Railroad by

the 1899 transfers 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 grants of the Railroad’s easements were broad enough

to encompass recreational trails, had these easements terminated

prior to the alleged taking so that the property owners at that time

held fee simples unencumbered by the easements.

* * * * * * *

Clearly, 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 Preseaults today would have no right or interest in

those parcels and could have no claim related to those parcels for

a taking. If, on the other hand, the Railroad acquired only

easements for use, easements imposed on the property owners'

underlying fee simple estates, and if those easements were limited

to uses that did not include public recreational hiking and biking

trails (“nature trails” as Justice Brennan referred to them), or if the

easements prior to their conversion to trails had been extinguished

by operation of law leaving the property owner with unfettered fee

simples, the argument of the Preseaults becomes viable.

Id. The Court then examined the original instruments of conveyance to determine, under Vermont

law, the nature of the property interest conveyed to the railroad. After a detailed review of applicable

Vermont law, the Court determined that the railroad’s property interest consisted of an easement “for

railroad purposes.” Id. at 1537. It next addressed the scope of that property interest in order to

determine whether an easement for railroad purposes was sufficiently broad to encompass use as a

recreational trail:

When the easements here were granted to the Preseaults’

predecessors in title at the turn of the century, specifically for

transportation of goods and persons via railroad, could it be said

that the parties contemplated that a century later the easements

would be used for recreational hiking and biking trails, or that it

was necessary to so construe them in order to give the grantee

railroad that for which it bargained? We think not. Although a

public recreational trail could be described as a roadway for the

transportation of persons, the nature of the usage is clearly

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Since the inquiry as to whether property has been abandoned and/or whether the 4

scope of a railroad easement encompasses recreational trail use is state law

driven, courts in various jurisdictions have reached different conclusions in this

regard. See, e.g., Toews v. United States, 376 F.3d 1371, 1376-77 (Fed. Cir.

2004) (concluding under California law that use as a recreational trail “for

walking, hiking, biking, picnicking, frisbee playing . . . is not the same use

made by a railroad, involving tracks, depots, and the running of trains.”); Chevy

Chase Land Co. v. United States, 230 F.3d 1375, 13 (Fed. Cir. 1999) (applying

Maryland law and rejecting a takings claim “on the state law ground that the

original easement authorizes the recreational trail use” and because “the

activities of the railroad . . . did not work an abandonment of the easement.”).

8

different. In the one case, the grantee is a commercial enterprise

using the easement in its business, the transport of goods and

people for compensation. In the other, the easement belongs to the

public, and is open for use for recreational purposes, which happens

to involve people engaged in exercise or recreation on foot or on

bicycles. It is difficult to imagine that either party to the original

transfers had anything remotely in mind that would resemble a

public recreational trail.

Id. at 1542-43. In a plurality decision, the Court ultimately concluded that the Preseaults’

reversionary property interest had been “taken” as a result of the federal Railbanking Law. Id. at

1552.4

For our purposes, however, as will be discussed more fully below, the critical import of

Preseault II is not the result of the case but the analytical framework utilized in reaching that result

(i.e., determining what interests were acquired by the railroad in the original transaction, whether

those interests have been extinguished through abandonment, and/or whether the current intended use

exceeds the scope of those acquisitions). Each ofthese determinationsis governed by applicable state

law. Id. at 1534; (“Determining what interest petitioners would have enjoyed under Vermont law,

in the absence of the ICC’s recent actions, will establish whether petitioners possess the predicate

property interest that must underlie any takings claim.”); see also Preseault I, 494 U.S. at 20 (“State

law generally governs the disposition of reversionary interests.”). Accord Lucas v. Township of

Bethel, 319 F.3d 595, 603 (3 Cir. 2003) (holding that state property law controls the disposition of rd

a railroad right-of-way). 

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9

A. Did railbanking forestall an abandonment that would have otherwise occurred

under state law?

Given that state law governs the disposition of reversionary interests, an analysis of

Plaintiffs’ claim that A&E abandoned their interest in the right-of-way properly begins with an

examination of Buffalo Township v. Jones, 813 A.2d 659 (Pa. 2002), and Moody v. Allegheny Valley

Land Trust, 976 A.2d 484 (Pa. 2008). 

In Buffalo Township, the township sought a permanent injunction preventing the owners of

property adjacent to a railbanked former railroad right-of-way from erecting barriers to prevent access

to newly developed recreational trails. Buffalo Township, 813 A.2d at 662. The property owners,

each of whom held reversionary interests in the land comprising the right-of-way, argued that the

right-of-way had been abandoned by the railroad prior to railbanking, causing a reversion of their

property interests. Id. at 663. The trial court granted the requested injunction, holding that the

railroad had not abandoned the right-of-way by converting it from a railroad to a recreational trail.

The Commonwealth Court upheld the grant of the injunction, and the property owners appealed to

the Pennsylvania Supreme Court. Id. at 662. 

The Court described the relevant inquiry as to whether property has been abandoned under

Pennsylvania law as follows:

In evaluating whether the user abandoned the property, the court

must consider whether there was an intention to abandon the

property interest, together with external acts by which such

intention is carried into effect. Lawson v. Simonsen, 490 Pa. 509,

417 A.2d 155, 160 (1980); see also Burnier v. Dep't of Envtl.

Resources, 148 Pa.Cmwlth. 530, 611 A.2d 1366, 1368 (1992). In

order to establish the abandonment of a right-of-way, the evidence

must show that the easement holder intended to give up its right to

use the easement permanently. Thompson v. R.R. Preservation

Society, 417 Pa.Super. 216, 612 A.2d 450, 453 (1992). “Such

conduct must consist of some affirmative act on his part which

renders use of the easement impossible, or of some physical

obstruction of it by him in a manner that is inconsistent with its

further enjoyment.” Id. (emphasis in original); see also Piper v.

Mowris, 466 Pa. 89, 351 A.2d 635, 640 (1976). Mere nonuse by the

railroad does not amount to abandonment. Lawson, 417 A.2d at

160; see also Burnier, supra.

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10

Id. at 664-65. The Court acknowledged that the railroad had taken some action consistent with an

intent to abandon the right-of-way, “such as filing a request to abandon rail service with the ICC and

entering into an agreement . . . for salvage of the rails.” Id. at 665. However, the Court ultimately

held that the evidence supported the conclusion that the railroad had not exhibited an intent to

abandon based on the fact that the railroad had “participat[ed] in ongoing negotiations with Buffalo

Township for the use of the land and expressly retain[ed] the right to reenter the land for future

railroad use in the deed.” Id. The Court concluded that the latter factors “demonstrated [the

railroad’s] intent to retain an interest in the right-of-way,” rather than abandon it. Id at 666 (emphasis

in original).

A similar result was reached in Moody, wherein the plaintiffs, owners of parcels of land

abutting a railroad right-of-way, sought a declaratory judgment that the right-of-way had been

abandoned, triggering their reversionary interests. Active rail service across the subject right-of-way

had been abandoned with ICC permission in 1984. Id. In 1992, the railroad, Conrail, transferred

the right-of-way to the Allegheny Valley Land Trust in order to railbank and preserve the corridor as

an interim recreational trail and for future rail service. The railbanking agreement, however, did not

explicitly bind the railroad to “resuscitate rail service on the right-of-way in the future if directed to

do so.” Id. at 488. The plaintiffs argued that Conrail’s abandonment of active rail service on the line,

coupled with the railroad’s failure to agree to be bound to restore service, demonstrated the requisite

intent to abandon the right-of-way. The trial court agreed and entered an order declaring that the

right-of-way had been abandoned and that the servient estates were no longer subject to the

easements. Id. at 488. The Superior Court reversed, holding that evidence of cessation of rail service

accompanied by a transfer of the right-of-way to a railbanking sponsor did not support a finding of

abandonment under Pennsylvania law. Id. Following an appeal, the Supreme Court of Pennsylvania

affirmed.

Citing Buffalo Township, the Court reiterated that, under Pennsylvania law, a property is not

deemed to have been abandoned unless the evidence demonstrates both “an intention to abandon the

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11

property interest” and “external acts bywhich such intention is carried into effect.” Moody, 976 A.2d

at 488 (citing Buffalo Township, 813 A.2d at 664-65). The Court then rejected the plaintiffs’

argument that Conrail’s abandonment of active service on the line demonstrated an intent to abandon

the right-of-way entirely:

Importantly, Conrail’s intent to abandon rail service on the

right-of-way must not be confused with Conrail’s alleged intent to

abandon the right-of-way itself, an intent that is incompatible with

the actions Conrail took in selling the right-of-way. It is beyond

dispute that Conrail intended to abandon its rail service on the

right-of-way, and took steps to effectuate that by, among other

things, selling the right-of-way to AVLT. However, as the Superior

Court wisely observed, the evidence presented cannot support both

the conclusion that Conrail meant to extinguish the right-of-way

via abandonment and that it meant to sell the right-of-way to a

qualified railbanking organization such as AVLT.

Moody, 976 A.2d at 491 (emphasis added). The Court also determined that Conrail’s failure to agree

to be bound to revive service on the line was not inconsistent with “the goals and procedures of

private railbanking.” Id. at 488. Consequently, the Court held that the right-of-way had not been

abandoned under Pennsylvania law:

Viewing the transactions in the instant case in their entirety, we

hold that Conrail’s sale of the right-of-way to a qualified

railbanking organization like AVLT, that filed a Declaration of

Railbanking at the time the deed was recorded, did not result in

abandonment of the right-of-way. Conrail owned a right-of-way; it

sold that right of way to an organization that a) planned to use it as

a right-of-way and b) planned to hold it subject to revitalization of

rail lines in accordance with the requirements of Section 1247(d) of

the National Act and consistent with the railbanking requirements

established in Buffalo Township, 813 A.2d at 670.

Moody, 976 A.2d at 488-89. Against the backdrop of Buffalo Township and Moody, I now turn to

examine the actions taken by A&E to determine whether an abandonment occurred.

As an initial matter, Plaintiffs argue that “in determining whether the Railroad in this case

abandoned the right-of-way under Pennsylvania law, the Court must analyze whether abandonment

would have occurred absent, or but for the Trails Act, under a ‘normal abandonment proceeding.’”

See Plaintiffs’ Supplemental Reply Memorandum, p. 3 (citing Caldwell v. United States, 391 F.3d

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5

In Caldwell, the Federal Circuit held that a Fifth Amendment takings claim

accrues for purposes of the six-year statute of limitations under the Tucker Act

when a NITU is issued by the STB. Id. at 1236. The Court had no occasion to

address or consider whether any taking had actually occurred in that case. Id.

12

1226 (Fed. Cir. 2004)). Relying on dicta in Caldwell, Plaintiffs contend that the Court must “exclude 5

from consideration acts taken under the Trails Act in determining whether abandonment occurred

under Pennsylvania law.” See Plaintiffs’ Supplemental Brief, p. 10. I disagree. On a practical level,

such an approach is unworkable and would require the court to disregard the actions that A&E

actually took in connection with the railbanking process and, instead, speculate as to what actions

A&E might have taken in the absence of the Railbanking Act. Moreover, Plaintiffs’ approach is

inconsistent with the methodology utilized in Moody and Buffalo Township where the courts

specifically considered actions taken by the railroad in conjunction with the railbanking process as

part of their overall calculus relative to abandonment. Moody, 976 A.2d at 488-89; Buffalo

Township, 813 A.2d at 665-66. 

Plaintiffs next contend that A&E demonstrated the requisite intent to abandon and took

action consistent therewith when it sought authorization to abandon service on the rail corridor,

transferred the right-of-way to WCRTA, and removed rails and ties from the railroad bed. (See

Plaintiffs’ Supplemental Memorandum, Dkt. #58, pp. 7-8). As noted above, however, Moody flatly

rejected the argument that discontinuing active rail service across a right-of-way is conclusive of a

permanent intent to abandon the right-of-way itself. Moody, 976 A.2d at 491. Likewise, the Buffalo

Township decision makes clear that the act of removing and salvaging tracks, ties, and other railroad

materials is not sufficient in and of itself to establish an abandonment. Buffalo Township, 813 A.2d

at 666. 

In contrast, Defendants point out that A&E continuously negotiated with several potential

trail sponsors in an attempt to reach an agreement to railbank and preserve the right-of-way. (Joint

Statement, ¶¶ 29-47). Moreover, A&E expressly retained the right to reacquire the land from the

WCRTA and reactivate rail service at any time in the future that it should choose to do so, as required

Case 1:05-cv-00191-SJM Document 74 Filed 02/25/10 Page 12 of 20
The parties have categorized the deeds relevant to the right-of-way into the 6

following seven categories and have stipulated as to the nature of the property

interest acquired by the railroad for each:

Category One - Warranty deeds

Category Two - Warranty deeds with “as long as” language

Category Three - Grant deeds with release language

Category Four - Donation and/or release deeds

Category Five - Unrecorded or lost deeds

Category Six - Condemnation awards

Category Seven - Parcels with no known conveyance documentation

With regards to those deeds in Category One (Warranty Deeds), Category Four

(Donation and/or Release Deeds), and Category Five (Unrecorded or lost

deeds), Plaintiffs do not contest entry of summary judgment in favor of

Defendants. Similarly, in light of the decision in Moody, Plaintiffs have

conceded summary judgment as to 3 of the 4 deeds in Category Three (Grant

Deeds With Release Language). The remaining deed categories, and the

Category Three deed identified as parcel 4-2, are analyzed more fully below.

13

by the Railbanking Act. (Joint Ex. 35, p. 12). The Railbanking Agreement further protects A&E’s

ongoing interest in the right-of-way by requiring that WCRTA retain bridges, roadbeds, and other

structures necessary for rail service to resume in the future. (Joint Ex. 35, p. 3). Collectively, these

actions support the conclusion that A&E intended to preserve and retain the right to make use of the

right-of-way at a future time, rather than abandon it. Moody, 976 A.2d at 488-89; Buffalo Township,

813 A.2d at 665-66. Indeed, the facts here present even stronger evidence of non-abandonment given

that A&E, unlike the railroad in Moody, explicitly preserved the right to reactive service in the future.

Consequently, consistent with Moody and Buffalo Township, I find that the evidence described above

demonstrates that A&E’s actions were at all times consistent with an intent to preserve the right-ofway for future rail use rather than to abandon it.

B. Do railbanking and interim trail use exceed the scope the easements?

Alternatively, Plaintiffs contend that the scope of the property right conveyed to the railroad

in the original instruments of conveyance was not sufficiently broad, in certain instances, to

encompass railbanking and interim trail use. See Preseault II, 100 F.3d at 1533. Because we “look 6

Case 1:05-cv-00191-SJM Document 74 Filed 02/25/10 Page 13 of 20
14

to state law to determine the scope of the easement in question,” the Pennsylvania Supreme Court’s

decision in Moody is again instructive. See Moody, 976 A.2d at 490 (recognizing that “both Preseault

cases look to state law to determine the scope of the easement . . .”) (citing Preseault II, 100 F.3d at

1534). In Moody, the instrument of conveyance referred to the easement as a “right of way” and

contained the following habendum clause: 

To have and to hold the said rights and privileges to the use of [the

railroad], so long as the same shall be required for the uses and

purposes of said Road, in as full, perfect and ample a manner as

may be necessarily required for the purposes hereby intended.

Id. at 490-91. Addressing the scope of that easement, the Court held:

The plain language of the deed’s habendum clause refers to the

right-of-way over Appellants’ land as a “Road.” It is this property

interest in the “Road” that Conrail conveyed to the AVLT. A road

is “[a]n open, generally public way for the passage of vehicles,

people, and animals,” “[t]he surface of a road; a roadbed,” “[a]

course or path,” or “a railroad.” By the plain language of the deed’s

habendum clause, there is no reason to confine our understanding

of the easement grant as allowing rail service, but not preservation

for future rail service. Fundamentally, the deed and its habendum

clause create an easement to allow travel through the servient

estates. Subsequent holders of the easement may not transgress its

boundaries, but they do not transgress the use for which it was

granted when they use it for hiking and biking. Interim trail use is

consistent with the terms of the easement grant.

Id. at 491 (footnotes omitted). The Moody Court concluded that an easement for railroad purposes

and a future use as a public recreational trail were not necessarily mutually exclusive. Moody, 976

A.2d at 490. The Court emphasized that “characterizing the right-of-way in question as a ‘railroad

right-of way’ does not so limit it, no more than characterizing a right-of-way as a driveway limits the

owner of such a thing to driving on it, rather than walking or biking on it.” Id. In concluding that

no taking had occurred, the Court observed:

Railbanking, properly conceived, is a method of rail maintenance

and preservation rather than a departure from the intentions and

purposes of the easement at the time it was granted. The deed’s

habendum clause grants the easement for “so long as the same shall

be required for the use and purposes of said Road, in as full, perfect

and ample a manner as may be necessarily required for the purposes

hereby intended.” Railbanking provides conservation of this

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15

right-of-way in a rail-ready state during a period when rail service

is not feasible, and this is not a departure from the intended “use

and purposes” of the easement. On the contrary, consistent with the

terms of the easement and the policies behind the National Act,

railbanking preserves rail networks for the purposes of rail service

in the future. Preservation of a resource for the purposes of using

that resource as it was used initially is not a departure from the

broadly-stated terms of the easement. This would be true if Conrail

were simply halting train service for a period of years in order to

update track hardware, and it remains true here. The fact that hikers

and bikers will be allowed to use the easement in the interim period

is not only beneficial from a policy perspective, it also allows

investment in the upkeep of rail networks-for rail purposes-that

would not otherwise be available. Although we . . . wish to protect

the constitutional rights of the Appellants, we cannot agree that

those rights are transgressed when the language of the deed’s

habendum clause is broad and the purposes of railbanking are so

beneficial for rail service, which is of course the very purpose for

which the easement was sought and granted in the first place. The

property rights of the Appellants have in no way been changed by

this railbanking. No taking has occurred.

Id. at 492. Since a determination as to whether trail use exceeds the scope of the original easements

is dependent on the specific language in the conveyances, I will now address, in turn, each of the

respective deed categories. See Moody, 976 A.2d at 490 (quoting Preseault II, 100 F.3d at 1533). 

Category Two (Warranty Deeds With “So Long As” Language)

 There are two deeds contained in this category. The first, referred to as the Halsey deed,

provides as follows: 

I do for myself, my heirs and assigns, covenant and agree to grant

and convey to the said [Railroad], a strip of land four rods in width,

(as long as the same is used as a Rail Road and when not so used

to revert back to Halsey his heirs and assigns.) – and such

additional width as may be required and necessary in the

construction and use of said road at cuttings and embankments,

one-half thereof on each side of the centre line of said Railroad,

extending as far in length as the said Railroad may pass over my

land, as soon as said conveyance may be demanded by said

Company, or its agent, giving and granting to the said Company,

their officers, agents and workmen, until the said conveyance shall

be executed, the full right to enter upon, use and occupy said land

for the purposes of said Railroad, after said road shall have been

permanently located through the land now owned by me as

aforesaid.

Case 1:05-cv-00191-SJM Document 74 Filed 02/25/10 Page 15 of 20
Black’s Law Dictionary defines a fee simple determinable as “[a]n estate that 7

will automatically end and revert to the grantor if some specified event occurs

. . .”

16

(Plaintiff’s Second Supplemental Memorandum, Dkt. #70, Ex. A) (emphasis added). The second,

the Keystone Powder deed, contains the following habendum clause:

TO HAVE AND HOLD ALL and singular the rights, liberties, and

privileges above described and hereby granted or mentioned and

intended so to be, the appurtenances, unto the said [Railroad], its

successors and assigns forever: IT BEING UNDERSTOOD AND

AGREED, by and between the parties hereto, that in the event of

the said Railroad Company ceasing to use said strip of land above

described for railroad purposes, the same shall thereupon revert to

the said Keystone Manufacturing Company, its successors and

assigns . . .

(Plaintiff’s Second Supplemental Memorandum, Dkt. #70, Ex. B) (emphasis added). The parties have

stipulated that these deeds conveyed a fee simple determinable to the railroad, with the grantors 7

retaining a reversionary interest that is triggered if the grantee railroad company or its successors

cease to use the land “for railroad purposes.” (Joint Appendix, Ex. 2). 

With respect to the Halsey and the Keystone Powder deeds, Plaintiffs contend that the

easements that were granted for railroad purposes were not sufficiently broad to encompass use as

a recreational trail. As made clear in Moody, however, “there is no reason to confine our

understanding of the easement grant as allowing rail service, but not preservation for future rail

service.” Id. at 491. Rather, “[r]ailbanking provides conservation of this right-of-way in a rail-ready

state during a period when rail service is not feasible, and this is not a departure from the intended

‘use and purposes’ of the easement.” Id. Use by “hikers and bikers . . . allows investment in the

upkeep or rail networks - for rail purposes - that would not otherwise be available.” Id. at 492

(emphasis added). As such, “the purposes of railbanking are . . . beneficial for rail service, which is

of course the very purpose for which the easement was sought and granted in the first place.” Id.

Therefore, consistent with Moody, I conclude that an easement for railroad purposes is sufficiently

broad to encompass use as a recreational trail. 

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17

With respect to the Halsey deed, Plaintiffs highlight the following language: “as long as the

same is used as a Rail Road and when not so used to revert back to Halsey his heirs and assigns.”

Plaintiffs also point to language in Moody where the court observed that the deed contained no

language “specifying that the easement terminates upon cessation of rail service,” implying the

possibility of a reversion under those circumstances. Id. at 492. They argue that the language in the

Halsey reversionary clause and the hypothetical in Moody set forth above are synonymous and,

consequently, the recreational trail use exceeded the scope of the easement. I disagree.

First, the language in Moody relied upon by the Plaintiffs is clearly dicta. More

fundamentally, however, the hypothetical posited in Moody envisions the cessation (presumably

permanent) of active rail traffic on the right-of-way. In contrast, the phrase “used as a Rail Road” in

the Halsey deed is, in my view, broader in scope and more akin to the language of the actual deed in

Moody which granted the easement for “so long as the same shall be required for the uses and

purposes of said Road.” Railbanking and rail preservation were found to be consistent with “use as

a Road” in Moody. For the same reason, I conclude that railbanking and trail use do not exceed the

scope of the easement in the Halsey deed.

Category Three (Grant Deeds With Release Language)

Plaintiffs concede summary judgment on all of the deeds in this category except for that

originally conveyed by Jonathan Campbell. The Campbell deed states:

KNOW ALL MEN THESE PRESENTS that we Jonathan W.

Campbell and George Thayer of Shippen Township Cameron

County and State of Pennsylvania for in consideration of the sum

of fifty dollars to us in hand paid by the said [Railroad] the receipt

whereof is hereby acknowledged have granted, bargained sold

released and transferred and by these presents do grant, bargain, sell

and transfer to the said [Railroad] its successors and assigns a strip

of land across that certain piece of land situate in the said Township

of Shippen, County of Cameron and State of Pennsylvania

adjoining the lands of James Piersoll on the West and other lands

of George Thayer on the East and across which the said Company

have located its Railroad, this strip being about seventy rods in

length more or less, and four rods in width, and such additional

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18

width as may be necessary at Cuttings and embankments for the

uses and purposes of said Road . . . 

(Plaintiffs’ Second Supplemental Memorandum, Dkt. #70, Ex. C). In Brookbank v. Benedum-Tress

Oil Co., 131 A.2d 103, 107 (Pa. 1959), the Pennsylvania Supreme Court interpreted a similar deed

containing the following language as conveying a right of way for railway purposes:

Know All Men By These Presents, That, J.J. Ingraham and Anna

Ingraham parties of the first part, for and in consideration of the

sum of Three Hundred Dollars, lawful money of the United States,

duly paid by the railroad company hereinafter mentioned, to us,

receipt of which is hereby acknowledged, have granted, bargained,

sold, released and conveyed unto the Susquehanna and Southern

Railroad Company, a corporation organized under the laws of

Pennsylvania, its successors and assigns, a strip of land four rods

in width, and, through cuts and fills such additional width as may

be needed for slopes, one-half thereof on either side of the center

line as now located, of the Susquehanna and Southern Railroad,

leading from Sinnemahoning, Pennsylvania, to DuBois, Sykesville,

&c., through lands of the parties above mentioned, situate in

Gibson Township, Cameron County, Pennsylvania.

SeeBrookbank, 131 A.2d at 111 (examining the “agreement in its entirety” and concluding that “[a]ll

that the railroad acquired was a ‘right of way’ for railroad purposes”). The parties agree that the

Campbell deed, like that in Brookbank, conveyed a right-of-way for railroad purposes. Here, as in

Moody, no taking occurred since the conversion to interim trail use for the preservation of future rail

service did not exceed the scope of the easement. See Moody, 976 A.2d at 490-92. 

3) Category Six (Condemnation Awards) and Category Seven (Parcels

With No Known Conveyance Documentation)

The parties have stipulated that those portions of the right-of-way that were acquired by the

railroad pursuant to condemnation proceedings conveyed a right of way for railroad purposes to the

railroad company with a possibility of reversion should it cease to be used for that purpose. (Joint

Appendix, Ex. 2). The parties also have stipulated that those portions of the corridor acquired by the

railroad without any known instrument of conveyance are treated under Pennsylvania law as if they

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19

had been obtained by condemnation. Thus, Moody’s holding that railbanking and interim trail use

qualify as railroad purposes under Pennsylvania law controls. See Moody, 976 A.2d at 490-92. 

IV. CONCLUSION

For the reasons stated herein, Plaintiffs’ motion for summary judgment is denied and

Defendant’s motion for summary judgment is granted. This action is hereby dismissed. An

appropriate order follows. 

Case 1:05-cv-00191-SJM Document 74 Filed 02/25/10 Page 19 of 20
20

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROBERT TROHA and FREDERICK BIGNALL, )

on behalf of themselves and all others similarly )

situated, )

)

Plaintiffs, )

v. ) C.A. No. 05-191 Erie

) District Judge McLaughlin

THE UNITED STATES OF AMERICA, )

)

Defendant. )

)

)

ORDER

AND NOW, this 25 day of February, 2010, and for the reasons set forth in the accompanying th

Memorandum Opinion, 

IT IS HEREBY ORDERED that Plaintiffs’ motion for summary judgment is DENIED and

Defendant’s motion for summary judgment is GRANTED. Judgment is entered in favor of Defendant

and against Plaintiffs. This action is hereby DISMISSED. 

/s/ Sean J. McLaughlin 

United States District Judge

cm: All parties of record. ___

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