In the United States Court of Federal Claims

No. 15-417L

(Filed: March 18, 2020)

* * * * * * * * * * * * * * * * * * * * *

EYVONNE ANDREWS, et al.,

 

Plaintiffs, 

 

v. 

 

THE UNITED STATES, 

 

Defendant.

* * * * * * * * * * * * * * * * * * * * * 

Royce Deryl Edwards, Sr., Joplin, MO, for plaintiffs, with whom was 

James F.B. Daniels. 

Barbara M.R. Marvin, who was at the time with the United States 

Department of Justice, Environment & Natural Resources Division, 

Washington, DC, with whom was Jean E. Williams, Deputy Assistant 

Attorney General. 

OPINION

BRUGGINK, Judge.

This is an action brought under the Tucker Act1 for an alleged failure 

to pay just compensation owed under the Fifth Amendment. Plaintiffs are 

Florida landowners adjoining a railroad which has ended its operations. 

Plaintiffs allege that, but for the operation of the Trails Act,

2 the railroad 

 1 The Tucker Act provides that the United States Court of Federal Claims has 

jurisdiction “to render judgment upon any claim against the United States 

founded either upon the Constitution, or any Act of Congress or any 

regulation of an executive department, or upon any express or implied 

contract with the United States.” 28 U.S.C. § 1491(a)(1) (2012). 

2 The Trails Act “preserve[s] shrinking rail trackage by converting unused 

rights-of-way to recreational trails” and is subject to the Fifth Amendment 

Fifth Amendment Taking; 

Rails-to-Trails; Motion for 

Partial Summary Judgment; 

RCFC 56; Trails Act; Florida 

Law; Right-of-Way
2

would be deemed to have abandoned the track and their underlying fee 

interests would no longer be burdened by an easement. Pending before the 

court is defendant’s April 26, 2019 motion for partial summary judgment 

under Rule 56 of the Rules of the United States Court of Federal Claims and 

plaintiffs’ June, 24, 2019 cross-motion for partial summary judgment on the 

issue of plaintiffs’ cognizable and compensable property interests. Although 

styled as a motion for partial summary judgment, defendant’s motion in fact 

seeks judgment in its favor with respect to all claims by all plaintiffs. 

We held oral argument on October 1, 2019. Because issues raised 

during oral argument had not been addressed in the parties’ briefing, we 

directed supplemental briefing. That briefing is now complete. As explained 

below, because plaintiffs lack a property interest in the land underlying the 

railroad, we grant defendant’s motion and deny plaintiffs’ cross-motion for 

partial summary judgment. 

BACKGROUND3

This rails-to-trails case arises out of actions taken by the Surface 

Transportation Board (“STB”), an agency of the United States, that permitted 

the railroad CSX Transportation (“CSXT”) to “abandon an approximately 

11.62-mile rail line on CSXT’s Southern Region, Jacksonville Division, . . .

at High Springs in Alachua Country, Florida.” Am. Compl. ¶¶ 1–2. CSXT is 

the successor in interest to the Live Oak, Tampa and Charlotte Railway 

(“LOTCHR”), which received transfers of interests in land from plaintiffs’ 

predecessors in interest in the 1880’s. The nature of those interests is at issue 

in the pending motions. 

In 2014, and again in 2015, the STB issued a Notice of Interim Trail 

Use (“NITU”), as discussed below, which plaintiffs allege effected a taking 

of a new easement in their land without compensation in violation of the Fifth 

Amendment. Specifically, plaintiffs claim that Eyvonne Andrews, Michael

and Belinda Robinson, A.O.C., LLC, Christine Kelly, John Boland and Gail 

Bisbee, and Ann Butler, Michael Thomas, Jr., and Mary Holmes, owned fee 

interests in real property located within Alachua County on which the 

abandoned railroad ran, and that the effect of the NITU was to forestall 

 

Takings Clause. Preseault v. I.C.C. (“Preseault I”), 494 U.S. 1, 4 (1990).

3 These facts are derived mainly from the Plaintiffs’ Amended Complaint 

(“Am. Compl.”) (ECF No. 22), Pls.’ Statement of Uncontroverted Facts in 

Supp. of their Cross-Mot. for Partial Summ. J. (“Pls.’ Facts”) (ECF No. 66), 

and the accompanying exhibits.
3

plaintiffs’ reversionary rights and to reimpose a new easement.4

Defendant’s primary answer to the complaint is that CSXT’s 

predecessor in interest purchased the land in fee in 1883 from Mary Shuford. 

Plaintiffs dispute that assertion. They argue, in the first instance, that the deed 

on which the government relies, as well as other subsequent, alternative 

deeds on which the government also relies, conveyed easements for a 

railroad purpose, and not a fee. In addition, they argue that, even if one or 

more of the deeds on which defendant relies granted a fee, the original 

railroad company, LOTCHR, did not legally exist at the time of acquisition;

so those attempted transfers failed. Moreover, subsequent to the Shuford 

deed, the railroad commenced condemnation proceedings for the same 

property that it would appear it already owned in fee. Plaintiffs contend that 

this condemnation proceeding intervened between these attempted transfers, 

resulting in the railroad’s acquisition of an easement. 

After the condemnation proceeding, which seems not to have been 

finalized, there were two other deeds to the railroad (both of which defendant 

argues transferred a fee): one from Syntha C. Moore with respect to some of 

the land and another from George E. Foster for most of the balance. 

Defendant’s alternative argument is that these deeds conveyed a fee to the 

railroad. 

A. Relevant Historical Facts

Defendant has presented a copy of LOTCHR’s articles of 

incorporation, dated July 1, 1881. It also offers the court an excerpt from the 

official records of the Florida Secretary of State which reflects that on July 

23, 1881, those articles were filed with the Secretary. We deal below with 

plaintiffs’ challenges to the articles. 

The next event offered by the parties occurred on July 5, 1883, when 

Mary Shuford, as grantor, “bargained sold conveyed and [q]uitclaimed . . . 

forever [a]ll [t]hat [c]ertain [t]ract or parcel of land” to LOTCHR “for and in 

consideration of the sum of five dollars” in what appears to be a typical deed 

in fee. Def.’s Mot. For Partial Summ. J., Ex. 1 (ECF No. 60-2). The land 

conveyed in the Shuford Deed encompasses all of the properties now owned 

by plaintiffs. 

 4 Plaintiffs filed a stipulation for dismissal without prejudice of plaintiff 

Charles Reshard’s (Heirs) claim pursuant to RCFC 41(a)(1)(A)(ii). Joint 

Stipulation for Dismissal Without Prejudice (ECF No. 75). 
4

Shortly after the Shuford Deed was executed, on September 18, 1883, 

the directors of LOTCHR commenced a condemnation proceeding in the 

Fifth Judicial Circuit of the State of Florida, Alachua County, directed at land 

embraced within the Shuford deed. The government offers no explanation 

for why the proceeding would be necessary other than mistake. The 

condemnation petition alleges that LOTCHR was a company “legally 

incorporated . . . under the laws of the state of Florida”, that “the abovenamed defendants,” D.B. Dibble, Geo E. Foster and “Mrs. Shuford are 

claimants to and owners” of land which LOTCHR was seeking to condemn 

for railroad purposes. It also recites that the “Railway Company ha[d] not 

acquired titles to the right of way through the said described lands[.]” Pls.’ 

Facts ¶ 2.5

Subsequently, on September 19, 1883, the court appointed three 

commissioners “to appraise the compensation to be made to the owners of 

the lands described in the petition[.]” Pls.’ Facts ¶ 3. On December 12, 1883, 

the commissioners filed their appraisal, which was “recorded [on] December 

24th, 1883 in Judgment Book D at pages 366 and 367.” Id. ¶¶ 5–6. In this 

report, the commissioners stated they would “recommend that said 

petitioners do pay into the Register of [the] court the sum of seventy-six 

dollars as damages to said defendants for the right of way of said railway 

company[.]” Id. ¶ 7. The parties have been unable to find any proof that this 

condemnation proceeding resulted in an award. The parties dispute the effect 

of the appraisal petition and report, an issue addressed below. 

Further confusing matters, a few months after the commissioners filed 

their appraisal report, on April 16, 1884, Syntha C. Moore “granted 

bargained sold alienated remised released conveyed and confirmed” a parcel 

of land to LOTCHR “for and in consideration of the sum of [t]wenty four 

[d]ollars[.]” Def.’s Mot. For Partial Summ. J., Ex. 2 (ECF No. 60-3). It is 

undisputed that the property conveyed in the Moore Deed includes some of 

the property conveyed to LOTCHR in the Shuford Deed. The parties have 

been unable to find a deed from Mrs. Shuford to Ms. Moore. 

 5 In plaintiffs’ recitation of facts, they assert that at some point in 1883, not 

specified, LOTCHR received authority from the Fifth Judicial Circuit Court 

of the State of Florida to file suits against Florida landowners seeking to 

condemn private property for railroad purposes, “including the action titled 

H.S. Haines ex rel. Live Oak, Tampa & Charlotte Harbor Railway Company, 

et al. v. C.B. Dibble, Geo E. Foster and Mary E. Shuford, Circuit Court for 

the 5th Judicial Circuit of Florida – Alachua Country, Bk. 1–D, p. 366-67.” 

Pls.’ Facts ¶ 1 (emphasis omitted). 
5

Almost a year after the execution of the Moore Deed, on July 18, 

1885, George E. Foster and his wife Florence A. Foster “granted bargained 

sold aliened remised released conveyed and confirmed” a tract or parcel of 

land to LOTCHR “for and in consideration of the sum of [s]eventy three 

95/100 (73.95).” Def.’s Mot. For Partial Summ. J., Ex. 3 (ECF No. 60-4). 

The property conveyed in the Foster Deed includes that portion of the 

property conveyed to LOTCHR in the Shuford Deed which is now owned by 

Christine Kelly, John Boland and Gail Bisbee, and the Thomas Heirs. Once 

again, the parties are unable to trace a grant from Mrs. Shuford to the Fosters. 

In sum, despite the parties’ diligent efforts to provide a complete 

picture of the relevant deeds, condemnation proceedings, and incorporation 

documents, the result is a mare’s nest of inconsistent documentation. 

B. Present Day Facts

On June 18, 2012, CSXT filed an “Environmental Report” with the 

STB pursuant to 49 CFR § 1105.6(e) and 1105.8(d) that announced its 

intention to file a “Petition of Exemption” for the purpose of abandoning the 

approximately 11.62-mile rail line. Subsequently, on November 20, 2013, 

CSXT filed a “Verified Notice of Exemption” with the STB, stating that the 

purpose of this action was “to abandon, discontinue service, salvage the track 

and improvements, and subsequently lease or sell the property.” Pls.’ Facts 

¶¶ 16–17.

According to National Trails System Act (codified beginning at 16 

U.S.C. § 1641 (2018)), the STB may convert unneeded railroad corridors to 

publicly-accessible trails. In other words, the “issuance of [a] NITU is the 

only governmental action in the rail banking process that operates to prevent 

abandonment of the corridor and to preclude the vesting of state law 

reversionary interests in the right-of-way. Thus, a Trails Act taking begins 

and a takings claim accrues, if at all, on issuance of the NITU.” Am. Compl. 

¶ 104 (quoting Barclay v. United States, 443 F.3d 1368, 1373 (Fed. Cir. 

2006)).

In a letter to the STB dated June 11, 2014, the Georgetown and High 

Line Railroad Company (“GHLRC”) proposed to convert the railbed to trail 

use and requested the issuance of a NITU pursuant to 16 U.S.C. § 1247(d).

The STB issued a NITU to GHLRC on July 15, 2014; however, the 

negotiating period expired on January 12, 2015, without a final agreement 

with CSXT regarding such conversion. Concurrently, on January 8, 2015, 

Alachua County, Florida, also requested issuance of a NITU, which 

ultimately issued to Alachua County from the STB on March 6, 2015. 
6

At this time, Alachua County and CSXT have not reached a final 

interim trail use agreement. Plaintiffs allege, however, that the issuance of 

this NITU constitutes the imposition of a new easement. Thus, plaintiffs each 

seek monetary compensation from the United States for the Fifth 

Amendment “taking” of their respective property interests, pursuant to 

Section 8(d) of the NTSA, 16 U.S.C. § 1247(d). 

Pending are the parties’ cross motions for summary judgment. 

Plaintiffs argue that, at the time that LOTCHR purported to acquire rights in 

the railroad corridor, it did not exist as a valid Florida corporation and 

therefore acquired nothing. Plaintiffs argue, in the alternative, that LOTCHR 

acquired its rights in the railroad corridor through condemnation 

proceedings, which only resulted in easements and not a fee transfer, leaving 

plaintiffs with a legal right to unimpeded access to their land. 

Defendant argues that the Shuford deed is sufficient to prove that 

LOTCHR acquired its interests in the portions of the corridor adjacent to 

plaintiffs’ properties in fee, prior to the condemnation, and that sufficient 

proof exists that LOTCHR had corporate existence at the time. Alternatively, 

defendant argues that, if the Shuford deed is discounted, the condemnation 

was never completed and that the later Moore and Foster deeds conveyed fee 

simple title to LOTCHR, leaving plaintiffs no rights in the land. 

DISCUSSION

A. The Trails Act and Fifth Amendment Takings Clause

The Trails Act “preserve[s] shrinking rail trackage by converting 

unused rights-of-way to recreational trails” and is subject to the Fifth 

Amendment Takings Clause. Preseault v. Interstate Commerce Comm’n, 

494 U.S. 1, 4 (1990) (“Preseault I”). If the government takes private property 

pursuant to the Trails Act, the government must provide just compensation.

Id. In a rails-to-trails takings case, a “taking occurs when, pursuant to the 

Trails Act, state law reversionary interests are effectively eliminated in 

connection with a conversion of a railroad right-of-way to trail use [i.e. a 

NITU].” Caldwell v. Untied States, 391 F.3d 1226, 1228 (Fed. Cir. 2004) 

(citations omitted). In other words, when “the railroad and prospective trail 

operator reach an agreement, . . . the STB retains jurisdiction for possible 

future railroad use and the abandonment of the corridor is blocked even 

though the conditions for abandonment are otherwise met.” Id. at 1229 

(internal quotations and citations omitted). Thus, “the Trails Act prevents the 

operation of state laws that would otherwise come into effect upon 
7

abandonment.” Id.

The Federal Circuit has explained that a rails-to-trails takings claim 

presents three determining questions: 

(1) who owned the strips of land involved, specifically did 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 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. 

Preseault v. United States 100 F.3d 1525, 1533 (Fed. Cir. 1996) (“Preseault 

II”). In the present case, for reasons we discuss below, we need not move 

beyond the first inquiry. 

The court analyzes property rights of the parties in rails-to-trails cases 

under the relevant state law, in this case, Florida. Rogers v. United States, 

814 F.3d 1299, 1305 (Fed. Cir. 2015) (citing Preseault II, 100 F.3d at 1543).

Under Florida law, the “language of the deed determines the nature of the 

estate conveyed.” Rogers v. United States, 184 So.3d 1087, 1097 (Fla. 2015) 

(“Rogers II”). Moreover, the Florida Supreme Court has stated the following 

well-established rule: 

[w]hen the language of a deed is clear and certain in meaning 

and the grantor’s intention is reflected by the language 

employed, there is no room for judicial construction of the 

language nor interpretation of the words used . . . If there is no 

ambiguity in the language employed then the intention of the 

grantor must be ascertained from that language. 

Id. at 1095. If the language of the deed is not clear, a court should “consider 

the language of the entire instrument in order to discover the intent of the 

grantor, both as to the character of estate and the property attempted to be 

conveyed, and to so construe the instrument as, if possible, to effectuate such 

intent.” Castillo v. United States, 138 Fed. Cl. 707, 732 (2018) (quoting Reid 

v. Barry, 112 So. 846, 863 (Fla. 1927)). 

This court has found, under Florida law, that “[a] deed which contains 
8

restrictions on land use or reversionary clauses ‘suggests an intent to create 

an easement or convey something less than a fee estate.’” Id. (quoting Rogers

v. United States, 107 Fed. Cl. 387, 396 (2012)). “Conversely, an instrument 

that lacks any restrictive or reversionary clauses, but instead has expansive 

granting clauses, granting all right, interest and title suggests that the grantor 

intended to grant title to the grantee.” Id. (citations omitted). Moreover, “[i]f 

a railroad owns in fee simple the land underlying and immediately 

surrounding a railroad right of way at the time of the alleged taking, another 

party cannot be owed just compensation for the taking of that land.” Whispell 

Foreign Cars, Inc. v. United States, 97 Fed. Cl. 324, 330 (2011).

B. The Shuford Deed and the Condemnation Proceeding

The Shuford deed is critical to the entire case because it is first in time 

and, as the parties agree, whatever interest LOCHTR obtained in 1883 from 

Mrs. Shuford is comprehensive of all the plaintiffs. The two subsequent 

deeds are not. Defendant created the following chart for reference:

Conveyance

to LOTCHR

Corresponding Property Owners and Parcel 

Numbers

Shuford

Deed

Eyvonne Andrews 

Michael and Belinda Robinson 

Charlie Reshard 

AOC LLC 

Christine Kelly 

John Boland and Gail Bisbee 

The Thomas Heirs (Ann Butler, Michael Thomas, 

Jr., and Mary Holmes)

Moore Deed AOC LLC 

Foster Deed Christine Kelly 

John Boland and Gail Bisbee 

The Thomas Heirs (Ann Butler, Michael Thomas, 

Jr., and Mary Holmes)

Def.’s Mot. For Partial Summ. J. at 7 (ECF No. 60). 
9

The Shuford Deed recites that on July 5, 1883, Mary E. Shuford, the 

grantor, “for and in consideration of the sum of five dollars” paid by 

LOTCHR,

has bargained sold conveyed and Quitclaimed and by these 

presents does bargain sell convey and quit claim unto 

[LOTCHR] . . . forever All That Certain Tract or parcel of land 

200 feet in width one hundred feet on each side of the center 

line of the road bed of the Live Oak and Charlotte Harbor 

Railway extending through the following lands . . . 

NW 1/4 & SE 1/4 of sec. thirty-three (33) in Township seven 

(7) south and Range seventeen (17) East and SW 1/4 of Section 

thirty-four (34) Township seven (7) South and Range 

Seventeen (17) East & NE 1/4 of Section Three (3) and NW 

1/4 of Section two (2) Township Eight (8) south and Range 

Seventeen (17) East. 

Together with all and singular the tenements hereditaments and 

appurtenances thereunto belonging or in anywise appertaining 

and the reversion and reversions remainder and remainders 

rents issues and profits thereof and also all the estate right title 

interest property possession claim and demand whatsoever . . . 

. 

To have and to hold . . . the above mentioned and described 

premises together with the appurtenances . . . forever. 

Def.’s Mot. For Partial Summ. J., Ex. 1, (ECF No. 60-2). The deed refers to 

a parcel of land, not a right of way. The right given is “[t]o [h]ave and to hold 

. . . forever;” there is no limiting language, nor are there any reversionary 

interests. There can be no reasonable argument that this conveys something 

other than a fee. Indeed plaintiffs do not seriously contend otherwise. 

Instead they argue that, since LOTCHR filed a petition for 

condemnation against Mrs. Shuford after the date of the Shuford Deed,

wherein it declared it had not acquired title to the right of way though her 

property, that LOTCHR acquired title to the property by condemnation and 

that it therefore only obtained easements. Plaintiffs conclude that LOTCHR 

sought condemnation because it believed it had no title or a defective title to 

Mrs. Shuford’s property, although no evidence of either belief is offered. 

They also rely on Florida law creating a presumption that railroad 

condemnations result in easements for railroad purposes, not fee estates. 
10

The Government admits that a petition in condemnation was initiated 

by LOTCHR and that a report of appraisal was recorded. What is missing is 

evidence that LOTCHR ever paid the amount that the commissioners 

recommended as compensation.

There is no question that the state of the title record of this property is 

perplexing, to put it mildly. However, the earliest transfer we can establish 

with certainty is the Shuford deed, which clearly sold a fee estate to 

LOCHTR with respect to all the relevant land. In this respect it is helpful to 

the government that we are not confronted with clear proof that the 

condemnation was effectuated, but this is not determinative. It goes without 

saying that land can only be legally transferred once by the grantor. Every 

subsequent conveyance was a nullity. The same was true of the Moore and 

Foster deeds. They could not give what they did not have. It is therefore 

unnecessary to accommodate the condemnation proceedings or parse the 

language of the Moore and Foster deeds. If the railroad could take property, 

then the Shuford deed was effective thereafter.

C. LOTCHR’s Corporate Existence

In plaintiffs’ amended complaint, they recite that LOTCHR “was 

incorporated under the general laws of Florida on July 23, 1881.” Am. 

Compl. ¶ 23. Despite that admission, in briefing the cross motions for 

summary judgment, plaintiffs assert that LOTCHR had no juristic existence 

as a corporation due to its failure to satisfy the statutory requirements to 

operate as a Florida railroad corporation, and that it therefore could not 

acquire anything in the way of easements or fee interests. 

Plaintiffs cite to Chapter 1987 of the Act of the Florida Legislature of 

February 19, 1874 for the proposition that, at the time when LOTCHR 

acquired rights in the railroad corridor, in order to “take and hold” or “to 

purchase and use” real estate, LOTCHR must have filed articles of 

association or an affidavit with the Florida Secretary of State. Pls.’ Supp. 

Mem. in Opposition to Def.’s Mot. for Partial Summ. J. at 12 (ECF No. 84)

In its summary judgment briefing, defendant attached a copy of 

articles of association6 for LOTCHR which were dated July 23, 1881. A 

 6 Defendant filed a substitute Ex. A on August 2, 2019, including the copy 

of articles of association and a certification from Amy L. Johnson of the 

Florida Department of State certifying “that records of the Live Oak, Tampa 

and Charlotte Harbor Railroad Company were transferred to the custody of 
11

Report of the Florida Secretary of State for activities between January 17, 

1881 through December 31, 1882, reflects that the articles of association for 

LOTCHR were filed with the Secretary of State’s office.8 Id.

Plaintiffs are not persuaded, however, because they obtained a 

certificate from the current Florida Secretary of State to the effect that “the 

records of this office do not disclose a corporation by the name of LIVE 

OAK, TAMPA, AND CHARLOTTE HARBOR RAILWAY COMPANY, 

foreign or domestic, active or dissolved.” Pls.’ Ex. 28. 

Finally, plaintiffs argue that nothing in the report of the Florida 

Secretary of State for 1881-82 proves that a “certificate” or “letters parent” 

were ever issued to LOTCHR, which plaintiffs contend were typically 

received after a railroad filed its Articles. Without a certificate under the great 

seal of the state of Florida signed and countersigned by the Secretary of State 

and the Governor, we have no proof that the railroad was actually duly 

incorporated in Florida, according to plaintiff. 

In sum, what we have by way of affirmative direct proof of the 

existence of LOCHTR, is a certified copy of the railroad’s articles of 

association, a report verifying that LOTCHR’s articles of association were 

filed in the Secretary of State’s office, and plaintiffs’ earlier concession in 

their amended complaint that LOTCHR was incorporated under the general 

laws of Florida. What is missing is a certificate or letters patent from the State 

of Florida stating that letters of incorporation were issued to the railroad.9

 

the State Archives of Florida.” Ms. Johnson is the official custodian of those 

records. Def.’s Notice of Filing Substitute Ex. 1 (ECF. No. 72). 7 We deem frivolous plaintiffs argument that this statement is objectively 

false because the Florida Senate was not in session on January 1, 1883, rather 

it was called to order only on January 2. 

8 Defendant filed a notice of errata on August 29, 2019, providing notice of 

a citation error in its Opposition to Pls.’ Cross-Mot. for Partial Summ. J.,

filed on July 25, 2019, (ECF No. 71). We also deem frivolous plaintiffs’

objection to this notice of September 9, 2019, in which they argue, among 

other things, that the purported “Exhibit A” was not accompanied by any 

declaration or certificate of authentication, that the government’s attempt to 

add to the summary judgment record was untimely, and that it fails to show 

that LOTCHR ever received a charter from the State of Florida. Pls.’ Resp. 

and Objection to Def.’s Notice of Errata Filed 8/29/19 [Doc. 76] (ECF No. 

77). 9 We view as not determinative in this respect the certification plaintiffs 

obtained from the Florida Secretary of State that no records of such a 
12

We also, however, have indirect proof of the railroad’s corporate 

existence. For instance, the condemnation proceedings were instituted in the 

Fifth Judicial Circuit of the State of Florida in the name of the directors of 

LOTCHR , who alleged that LOTCHR was a company “legally incorporated 

. . . under the laws of the state of Florida.” And plaintiffs themselves recite

that at some point in 1883, LOTCHR received authority from the Fifth

Judicial Circuit Court of the State of Florida to file suits against Florida 

landowners seeking to condemn private property for railroad purposes. See

note 5, supra.

The court’s own search of Florida’s Reports of the Secretary of State 

for the years 1883-84 discloses additional indirect proof of the corporation’s 

existence. 10 On March 12, 1884, there was recorded the change of the name 

of LOCHTR to the “Savannah, Florida and Western Railway Company

(“Savannah Railway”).” On May 16, 1884, a “certificate” for the “Live Oak, 

Tampa and Charlotte Harbor Railway Company” was recorded for “Lake 

City Branch.” On May 28, 1884, an “Original Certificate of Consolidation” 

was filed for the Savannah Railway and several other railroads, including 

LOCHTR. We will not undertake to harmonize these latter seemingly 

inconsistent documents. They are probably a reflection of what plaintiffs 

document in their initial brief of the wild west conditions in Florida in the 

1880’s when land speculators and competing railroads were buying land and 

laying track with abandon and no doubt little concern about a foolish 

consistency. We do not insert them for comic relief, however. They are 

further indication that there was a railroad company operating in central 

Florida under the name LOCHTR with the apparent approval of state 

government.

Even if plaintiffs are correct that failure to produce evidence of a 

“certificate” or “letters patent” for LOTCHR draws into question the legal 

existence of the corporation at that time, we nonetheless believe that 

LOTCHR met the elements required for a “de facto corporation,” which, at 

that time included (1) a law or charter authorizing such a corporation, (2) an 

 

corporation could be located. Either the Secretary’s search merely confirms 

that no letters of patent incorporation were issued, or the search failed to 

disclose what we know did exist: articles of incorporation, filed with the 

Secretary of State. 

10 The court takes judicial notice of such public records. Report of the 

Secretary of State for the Years 1883-84, available at 

http://archive.flsenate.gov/data/Historical/Senate%20Journals/1880s/1885/

Other%20stuff/12-secretary_1883-84.pdf. 
13

attempt in good faith to comply with the law authorizing its incorporation, 

(3) unintentional omission of essential requirements of the law and charter, 

and (4) exercise in good faith of corporate functions under the law or charter. 

Richmond v. Town of Largo, 19 S. 2d 791, 793 (Fla. 1944). A somewhat less

lofty test was set out in Duke v. Taylor, 19 So. 172 (Fla. 1896), where the 

Florida Supreme Court stated that a “corporation is a de facto corporation 

where there is a law authorizing such corporations, and where the company 

has made an effort to organize under that law, and is transacting business in 

a corporate name.” Id. at 176. 

We find that LOTCHR demonstrated sufficient compliance with 

Chapter 1987 by filing its articles of association for incorporation, officially 

recording some of its corporate actions, and by conducting business in its 

corporate name.11 Requiring more proof than this nearly 140 years later is 

unrealistic. The effect of that finding is that there is no impediment to the 

Shuford conveyance to LOTCHR because a de facto corporation could

convey and receive title under Florida law. See Booske v. Gulf Ice Co., 5 So. 

247, 251-52 (Fla. 1888) (“It is settled that a conveyance by a corporation will 

not be treated as invalid merely because the corporation was not formed 

under authority of law, and the same rule applies to transfers of personal 

property and choses in actions by corporations de facto.”). We thus find that 

the transfer to LOTCHR is not void and that the railroad obtained a fee from 

Mrs. Shuford.

CONCLUSION

Because the first recorded conveyance was effective to transfer a fee 

interest to the railroad and is determinative of all of the properties now at 

issue, we grant defendant’s motion for summary judgment (ECF No. 60) and 

deny plaintiffs’ cross-motion for partial summary judgment (ECF No. 64). 

The clerk is directed to dismiss the complaint and enter judgment for 

defendant. No costs. 

s/Eric G. Bruggink 

ERIC G. BRUGGINK

Senior Judge

 11 Plaintiffs argue that Florida appears to have abrogated the doctrine of “de 

facto incorporation” decades ago. Even if Florida has abandoned this 

doctrine, however, it was place during the events that matter.