United States Court of Appeals 

for the Federal Circuit ______________________ 

DOROTHY L. BIERY, JULIA R. CHALFANT ETVIR 

TRUST, K.A.K. FARMS, INC., AMERICAN 

PACKAGING CORPORATION, AND COLLINS 

INDUSTRIES, INC.,

Plaintiffs-Appellants,

GORDON HOLLOWAY, as successor and representative of decedent, GEORGE A. HOLLOWAY, AND 

STACY E. JUDY TRUST,

Plaintiffs,

v.

UNITED STATES,

Defendant-Appellee.

______________________ 

2013-5082

______________________ 

Appeal from the United States Court of Federal 

Claims in No. 07-CV-0693, Judge Nancy B. Firestone.

______________________ 

Decided: June 4, 2014 

______________________ 

MARK F. (THOR) HEARNE, II, Arent Fox, LLP, of Washington, DC, argued for plaintiffs-appellants. With him on 

the brief were MEGHAN S. LARGENT, LINDSAY S.C.

BRINTON, and STEPHEN S. DAVIS. Of counsel was DEBRA J.

ALBIN-RILEY, of Los Angeles, California. 
2 BIERY v. US

NINA ROBERTSON, Attorney, Appellate Section, Environmental and Natural Resources Division, United States 

Department of Justice, of Washington, DC, argued for 

defendant-appellee. With her on the brief was ROBERT G.

DREHER, Acting Assistant Attorney General.

______________________

Before PROST,

∗ Chief Judge, SCHALL and O’MALLEY,

Circuit Judges.

SCHALL, Circuit Judge

Plaintiffs-Appellants Dorothy L. Biery, the Julia R. 

Chalfant Etvir Trust, K.A.K. Farms, Inc., American 

Packaging Corporation, and Collins Industries, Inc., are 

landowners in Kansas. Each of them owns land abutting 

a 2.88-mile stretch of rail corridor near the City of South 

Hutchinson, Kansas. In the late nineteenth and early 

twentieth centuries, their predecessors in interest granted 

various deeds covering that land to the Hutchinson & 

Southern Railroad Company. The Burlington Northern 

and Santa Fe Railway (“BNSF”) eventually succeeded to 

the interests of that railroad. Up until 2004, the corridor 

served the operations of the BNSF. Plaintiffs-Appellants 

brought this action in the United States Court of Federal 

Claims, alleging that the subsequent conversion of the 

corridor to a recreational trail pursuant to the National 

Trail Systems Act (“Trails Act”), 16 U.S.C. § 1247(d), 

constituted a taking of their several property interests in 

the land underlying the corridor. As a result, they 

claimed, they were entitled to compensation under the 

Fifth Amendment.

∗

 Sharon Prost assumed the position of Chief Judge 

on May 31, 2014.

 
BIERY v. US 3

On April 9, 2013, pursuant to Rule 54(b) of the Rules 

of the United States Court of Federal Claims (“RCFC”), 

the Court of Federal Claims entered judgment in favor of 

the government on plaintiffs-appellants’ claims. Biery v. 

United States, Nos. 07-693L, 07-675L (Fed. Cl. Apr. 9, 

2013). The court did so after ruling on summary judgment that none of the plaintiffs-appellants possessed a 

fee-simple property interest in the land underlying the 

rail corridor that could be the subject of a taking. Biery v. 

United States, Nos. 07-693L, 07-675L (Fed. Cl. Aug. 20, 

2009) (“Initial Decision”). The court concluded that the 

land had been conveyed to the BNSF’s predecessor in fee 

simple, contrary to plaintiff-appellants’ claims that the 

several conveyances at issue had only granted easements. 

Plaintiffs-Appellants now appeal from the court’s judgment.1 

For the reasons set forth below, we conclude as follows: (1) The underlying land claimed by plaintiffsappellants Julia R. Chalfant Etvir Trust and K.A.K. 

Farms, Inc. (“Chalfant”) was conveyed to the BNSF’s 

predecessor in fee simple. Chalfant thus has no compensable property interest in the land. (2) The underlying 

land claimed by plaintiff-appellant Dorothy L. Biery 

(“Biery”) was not conveyed to the BNSF’s predecessor in 

fee simple. Rather, the railroad’s predecessor was only 

granted an easement over the land. Biery thus retains 

1 Plaintiffs Gordon Holloway, as Successor and 

Representative of Decedent, George A. Holloway, and the 

Stacy E. Judy Trust also own land abutting the 2.88-mile 

stretch of rail corridor. They too brought a takings claim 

in the Court of Federal Claims. The court found that 

their predecessors had granted only an easement to the 

BNSF’s predecessor. Their claims, therefore, remained in 

the litigation and are not before us on appeal. Initial 

Decision at 2. 

 
4 BIERY v. US

fee-simple title to the land, a compensable property 

interest. (3) On the present record, it is not clear whether 

the underlying land claimed by plaintiffs-appellants 

American Packaging Corporation and Collins Industries, 

Inc. (“American Packaging”) was held by the BNSF’s 

predecessor in fee simple or whether the BNSF’s predecessor simply held an easement over the land. Of the 

three deeds at issue for American Packaging, the first-intime granted the railroad’s predecessor only an easement 

over the land. The two subsequent deeds, though, conveyed fee-simple interests. The effect of these deeds, 

however, is clouded by chain-of-title questions. Thus, we 

cannot presently say whether American Packaging holds 

fee-simple title to the land, a compensable property 

interest. Accordingly, we affirm the judgment of the 

Court of Federal Claims as it relates to Chalfant, but 

reverse it as it relates to Biery and American Packaging. 

The case is remanded to the court for further proceedings.

BACKGROUND

I. 

LEGAL FRAMEWORK

The Fifth Amendment to the Constitution provides 

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

without just compensation.” U.S. Const. amend. V. The 

first issue to be addressed in a takings case is whether the 

claimant has a cognizable interest in the property that 

allegedly was taken. Air Pegasus of D.C, Inc. v. United 

States, 424 F.3d 1206, 1212 (Fed. Cir. 2005). If the claimant does not have such an interest, that is the end of the 

matter. Id. at 1212–13. The court does not then proceed 

to the next step in the analysis, which is to determine 

whether there was a taking. Id. 

As noted, in 2004, the stretch of rail corridor at issue 

was converted to a public trail pursuant to the Trails Act. 

If, prior to the conversion, the BNSF held fee-simple title 
BIERY v. US 5

to the land underlying the corridor, then, for their part, 

plaintiffs-appellants possess no compensable property 

interests. That is because the railroad’s fee-simple title 

would constitute complete ownership in the land. 1 

Tiffany Real Prop. § 27 (3d ed. 2013). If, however, the 

BNSF held only easements over the land, then plaintiffsappellants retained a fee-simple interest in the land. 

Under those circumstances, if the BNSF’s conversion of 

the railroad tracks to a recreational trail was outside the 

scope of the easements and thus constituted abandonment, then the BNSF would have lost its interest because 

“if the beneficiary of [an] easement abandons it, the 

easement disappears, and the landowner resumes his full 

and unencumbered interest in the land.” Marvin M.

Brandt Revocable Trust v. United States, 134 S. Ct. 1257, 

1265 (2014) (citing Smith v. Townsend, 148 U.S. 490, 499 

(1893)). In short, if plaintiffs-appellants hold fee-simple 

title to the land, they may potentially have a compensable 

property interest for purposes of a takings claim. 

The issue in this case is whether the deeds from the 

late nineteenth and early twentieth century, upon which 

the BNSF’s interest was predicated, granted fee-simple 

interests to the railroad’s predecessor, or merely easements. We therefore begin by briefly setting forth the 

conveyances that are relevant to the claim of each of the 

several plaintiffs-appellants. We then turn to the events 

leading up to this lawsuit and the subsequent proceedings 

in the Court of Federal Claims. 

II.

A. CHALFANT APPELLANTS

The Chalfant appellants claim the land referenced in 

the deed from Julia Fair (the “Julia Fair deed”) to the 

Hutchinson & Southern Railroad in the late nineteenth 

century. In 1889, a condemnation decree declared a rightof-way for the Hutchinson, Oklahoma & Gulf Railroad 

across land owned by Thomas Fair. It is undisputed that 
6 BIERY v. US

the railroad took only an easement over the land at that 

time. The condemnation decree does not mention Thomas’s wife, Julia Fair. After the condemnation, the 

Hutchinson, Oklahoma & Gulf Railroad merged with the 

Hutchinson & Southern Railroad Company. In 1899, 

after Thomas Fair had died, Julia Fair executed a quitclaim deed to the Hutchinson & Southern Railroad for the 

same land that was subject to the earlier condemnation 

proceeding. The relevant language from the deed states 

that, for $3,500, Ms. Fair transferred the following interest to the railroad: 

A strip of land one hundred <100> feet wide being 

fifty <50> feet on each side of the center line of the 

railroad of the Hutchinson & Southern Railway as 

the same is now located and constructed2 over and 

across section thirty five <35> township twenty 

three <23> range six <6> with the appurtenances 

and all the estate, title and interest of the said 

parties of the first part therein. 

Joint Appendix (“J.A.”) 703–04, 918. 

B. BIERY APPELLANT

Appellant Biery claims the land referenced in the 

deed from the Phillips Investment Company (the “Phillips 

deed”) to the Hutchinson & Southern Railroad. Similar to 

the land claimed by Chalfant, the land claimed by Biery 

was originally subject to condemnation proceedings. In 

1899, the Phillips Investment Company executed an 

indenture in favor of the Hutchinson & Southern Railroad

2 The legibility of the 1899 deed is insufficient to 

confirm that the word “constructed” is used rather than 

“constricted,” but “constructed” makes the most sense in 

context. Regardless, it does not change the outcome.

 
BIERY v. US 7

on a preprinted form titled “Right of Way Deed.”3 In 

exchange for $117 in consideration, the Phillips deed 

transferred the following property interest to the railroad: 

All that part of the East half of the North West 

quarter of Section twenty three (23) Township 

twenty three (23) South of Range six (6) West, lying South of the South line of Tenth Avenue extended and East of a line thirty-five (35) feet west 

and parallel to the center of the track of the 

Hutchinson and Southern Railway Company, containing 1.16 acres, more or less, and being the 

tract on which condemnation proceedings were 

filed in the County Treasurer’s Office on July 25, 

1899.

J.A. 1482–83. The deed also transfers an interest in land 

described as “Lots one hundred and sixty eight (168) and 

one hundred and seventy (170) Sixth Avenue West in 

Blanchard’s Second Addition to the City of Hutchinson.” 

Id. at 1482. In pre-printed language, the deed recites the 

transfer as being “of an absolute and indefeasible estate of 

inheritance, in fee simple, of and in all and singular the 

above granted and described premises, with the appurtenances . . . .” Id. 

C. AMERICAN PACKAGING APPELLANTS

The American Packaging appellants claim the land 

referenced in the deed from Ella Rowland and H. Edward 

Rowland (the “Rowland deed”) and in two deeds from the 

Irrigation Loan & Trust Company (the “Irrigation Loan 

deeds”) to the Hutchinson & Southern Railroad. 

3 The legibility of the deed is poor, and the word 

“Warranty” appears to have been written over the words 

“Right of Way.” 

 
8 BIERY v. US

An 1891 condemnation decree declared a right-of-way 

for the Hutchinson & Southern Railroad across forty-six 

lots in Blanchard’s Third Addition in South Hutchinson, 

Kansas. Subsequently, in 1896, Ella and H. Edward 

Rowland executed a quitclaim deed to the Hutchinson & 

Southern Railroad that describes a series of lots matching 

those described in the 1891 condemnation decree. After 

listing the lots, the deed states the following language of 

conveyance: “For and in consideration of $1.00 and the 

conveyance4 of all the right of way now occupied by said 

Railroad in Blanchard’s Third Addition to the City of 

South Hutchinson.” J.A. 706, 1436. 

In 1901, the Irrigation Loan & Trust Company executed two quitclaim deeds to the railroad. For $144 in 

consideration, the first deed quitclaims an interest in a 

strip of land described as “[t]he West sixty-six (66) feet of 

the west half (1/2) of the South Quarter (1/4) of Section 

number Twenty-Three (23) . . . .” J.A. 1434. For $65.60 in 

consideration, the second deed quitclaims an interest in a 

series of lots that make up a portion of the lots listed in 

the 1891 condemnation decree and in the 1896 Rowland 

quitclaim deed. 

In 1906, for $5,025 in consideration, the Rowlands executed a quitclaim deed to Harriet B. Hettinger, transferring their interest in the lots described in the 1896 deed, 

but noting that the railroad had a “right of way consisting 

of a strip the width of two lots (60 feet) off of and along 

the west side” of the property. J.A. 982. 

4 The transcription of the hand-written deed uses 

the word “convenience” instead of “conveyance,” but the 

parties agreed during oral arguments that “conveyance” is 

a more proper transcription. J.A. 706, 1436. 

 
BIERY v. US 9

D. THE BNSF’S INTEREST

As noted, the BNSF’s interest in the properties at issue began with condemnation proceedings in the late

nineteenth century brought by the Hutchinson, Oklahoma 

& Gulf Railroad and the Hutchinson & Southern Railroad. Sometime after those condemnation proceedings, 

the two railroads merged into the Atchison, Topeka and 

Santa Fe Railroad, which subsequently merged with the 

Burlington Northern Railroad to become the BNSF. 

In 1983, Congress passed legislation amending the 

Trails Act to “preserve shrinking rail trackage by converting unused rights-of-way to recreational trails.” Preseault 

v. Interstate Commerce Comm’n (Preseault I), 494 U.S. 1, 

5 (1990) (citing 16 U.S.C. § 1241 et seq.). By converting 

unused railways to recreational trails as an interim use, 

the Interstate Commerce Commission could maintain 

control over the right-of-way and prevent it from reverting to landowners under state law, thus preserving it for 

possible future railroad use. Id. at 6–8. Under the law, 

therefore, before abandoning an unused railway, a railroad must seek permission from the Surface Transportation Board (“Board”). Citizens Against Rails-to-Trails v. 

Surface Transp. Bd., 267 F.3d 1144, 1149 (D.C. Cir. 2001). 

If the railroad and the Board reach agreement, the land 

underlying the railway may be transferred to a trail 

operator (e.g., state, political subdivision, or qualified 

private organization) for interim trail use. Id. If no 

agreement is reached, the railroad may abandon the line 

and liquidate its interests. Id. (citing Preseault I, 494 

U.S. at 7). Depending on the scope of the railroad’s interest in the property, the conversion of the railway to a 

recreational trail may constitute a compensable taking 

under the Fifth Amendment. Preseault v. United States

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

banc). 
10 BIERY v. US

In 2004, after having discontinued its use, the BNSF 

sought the Board’s permission to abandon the railway 

that ran across the properties at issue in this case. Soon 

after, the BNSF and the City of South Hutchinson entered into a Trail Use Agreement. In donating its property to the city for trail use, the BNSF noted that it may not 

have held fee-simple title or any other interest in the 

property. Subsequently, plaintiffs-appellants claimed 

ownership of the land underlying the railway and sought 

compensation for a taking. 

III.

PROCEEDINGS IN THE COURT OF FEDERAL CLAIMS

Plaintiffs-Appellants filed suit in the Court of Federal 

Claims in 2007 under the Tucker Act, 28 U.S.C. § 1491, 

alleging a taking and seeking compensation under the 

Fifth Amendment. On cross motions for summary judgment, the court found that neither the Julia Fair deed, 

the Phillips deed, the Rowland deed, nor the Irrigation 

Loan deeds contained any use restrictions or reversionary 

clauses. Initial Decision at 3–4. Accordingly, the court 

held that the BNSF and its predecessor acquired feesimple title in the properties described in the deeds. Id. 

Because the BNSF owned the properties in fee simple 

rather than holding mere easements, the court determined, plaintiffs-appellants had no compensable property 

interests that were subject to a taking. Id. 

Plaintiffs-Appellants appealed to this court immediately after the summary judgment order. Because the 

Court of Federal Claims had not entered a partial judgment under RCFC 54(b), and because claims were still 

pending, we dismissed the Notice of Appeal as premature. 

Biery v. United States, 358 F. App’x 172 (Fed. Cir. 2009). 

In 2013, the court entered final judgment pursuant to 

RCFC 54(b), dismissing the claims of the five plaintiffsappellants. They appealed again. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(3). 
BIERY v. US 11

DISCUSSION

I.

STANDARD OF REVIEW

This appeal stems from a grant of summary judgment. We review de novo the grant of summary judgment. Ladd v. United States, 713 F.3d 648, 651 (Fed. Cir. 

2013). Summary judgment is appropriate “if the movant 

shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of 

law.” RCFC 56(a). We review de novo legal conclusions of 

the Court of Federal Claims. Barclay v. United States, 

443 F.3d 1368, 1372 (Fed. Cir. 2006). 

As noted, the issue on appeal is the nature of the 

BNSF’s property interest in the several strips of land 

underlying its former railroad tracks. More specifically, 

we must determine whether the BNSF’s predecessor took 

fee-simple title in the land or merely an easement. The 

nature and scope of a property interest in a rail corridor is 

a question of state law. Preseault II, 100 F.3d at 1534. 

Under Kansas law, “the interpretation and legal effect of 

written instruments are matters of law.” Stone v. U.S.D. 

No. 222, 91 P.3d 1194, 1203 (Kan. 2004). 

With this background in mind, we turn first to Kansas 

law. We then address the several parcels of land at issue.

II.

KANSAS LAW

Kansas courts have “uniformly held that railroads do 

not own fee titles to narrow strips taken as right-of-way, 

regardless of whether they are taken by condemnation or 

right-of-way deed.” Harvest Queen Mill & Elevator Co. v. 

Sanders, 370 P.2d 419, 423 (Kan. 1962) (analyzing and 

reaffirming the rule laid out in Abercrombie v. Simmons, 

81 P. 208 (Kan. 1905)). To determine whether a railroad 
12 BIERY v. US

took property as a right-of-way, Kansas courts first look to 

the deed itself. Stone, 91 P.3d at 1203–04. 

In construing a deed, the first step is to determine 

whether it is ambiguous. Cent. Natural Res., Inc. v. Davis 

Operating Co., 201 P.3d 680, 687 (Kan. 2009) (citing Wood 

River Pipeline Co. v. Willbros Energy Servs. Co., 738 P.2d 

866 (Kan. 1987)). In making this determination, Kansas

courts “apply the plain, general, and common meaning of 

the terms used in the instrument.” Id. (citing Johnson v. 

Johnson, 645 P.2d 911 (Kan. 1982)). “An instrument is 

ambiguous when the application of pertinent rules of 

interpretation to the whole ‘fails to make certain which 

one of two or more meanings is conveyed by the words 

employed by the parties.’” Id. (quoting Wood v. Hatcher, 

428 P.2d 799 (Kan. 1967)). If the language of a deed is 

ambiguous, we may consider facts surrounding the deed’s

execution in order to clarify the parties’ intent. Id. at 688. 

For example, the size of the land may help in determining 

whether a right-of-way was intended in an ambiguous 

deed. Stone, 91 P.3d at 1204. 

If, however, the language of a deed to a railroad is unambiguous, we look no further than its four corners and 

analyze it according to the general rule in Kansas. Id. at 

1203. “The general rule is that deeds purporting to 

convey to railroads a strip, piece, parcel, or tract of land 

which do not describe or refer to its use or purpose or 

directly or indirectly limit the estate conveyed are generally construed as passing an estate in fee.” Id. at 1203–

04. In simpler terms, when an unambiguous deed to a 

railroad contains no use restrictions, reversionary clause, 

or anything else indicating the land is for a right-of-way, 

the title to the land is granted in fee simple. Id. at 1204.
BIERY v. US 13

III.

A. THE JULIA FAIR DEED

To determine whether the Chalfant appellants have a 

compensable property interest, we consider whether the 

1899 Julia Fair deed granted the Hutchinson & Southern 

Railroad fee-simple title or merely an easement. Finding 

that the deed contained no use restrictions or reversionary clause, the Court of Federal Claims held that the deed 

granted the railroad fee-simple title. Initial Decision at 3. 

As noted, the Julia Fair deed quitclaimed to the 

Hutchinson & Southern Railroad an interest in a strip of 

land 100 feet wide “with the appurtenances and all the 

estate, title and interest” therein. J.A. 703–04. Chalfant 

argues that the Julia Fair deed was undertaken to clarify 

the railroad’s right-of-way easement. According to 

Chalfant, the railroad needed the deed because the earlier 

condemnation decree had listed only Thomas Fair—the 

late husband of Julia. In analyzing the words of the deed, 

Chalfant argues that it describes the conveyance as being 

“over and across” the land described, which, according to 

Chalfant, indicates a right-of-way. The Court of Federal 

Claims erred, Chalfant concludes, by ignoring Kansas law 

and holding that a quitclaim deed in a strip of land to a 

railroad for a right-of-way conveyed fee-simple title. 

The government responds that the 1899 deed from 

Julia Fair expressly and unambiguously conveyed all the 

estate, title, and interest of Ms. Fair. The deed contained 

no use restrictions or other limitations on the interest 

conveyed. On this basis alone, the government argues, 

the deed conveyed fee-simple title. Further, the government argues, the railroad had no need to clarify the 

interest it had taken from Thomas Fair because his wife, 

Julia, did not own the land at the time of the condemnation. According to the government, Julia received Thomas’s interest after he died. She then transferred that 
14 BIERY v. US

interest to the railroad for $3500—more than five times 

the amount the railroad originally paid for its easement. 

We conclude that the Julia Fair deed transferred feesimple title to the Hutchinson & Southern Railroad. 

First, we find the words of the deed to be unambiguous; 

thus, we do not look beyond its four corners. Second, we 

find no language in the deed indicating that the parties 

intended to limit the railroad’s interest to a right-of-way. 

Rather, the deed conveyed “all the estate, title, and interest” of Julia Fair. She retained no reversionary interest. 

Accordingly, the Julia Fair deed transferred fee-simple 

title to the railroad. See Stone, 91 P.3d at 1203–04. 

We are not persuaded by Chalfant’s argument regarding the words “over and across.” Those words reflect the 

simple truth that the railroad tracks run over and across 

the land that Ms. Fair transferred; they do not place a 

limitation on the transfer itself. Further, the fact that the 

railroad paid $3,500 for the land indicates that, contrary 

to Chalfant’s suggestion, the railroad received more than 

just confirmation of an easement. 

Accordingly, because Chalfant has no compensable 

property interest that could have been subject to a taking, 

we affirm the dismissal of its claim.

B. THE PHILLIPS DEED

Next, we consider whether the Biery appellant has a 

compensable property interest. To do so, we must determine whether the Phillips deed granted the Hutchinson & 

Southern Railroad fee-simple title, or merely an easement. Noting that the deed recited the words “fee simple,” and finding that it did not contain any use 

restrictions or reversionary clause, the Court of Federal 

Claims held that it granted the railroad fee-simple title. 

Initial Decision at 3–4. 

As noted, the Phillips deed conveyed an interest in 

two tracts of land. The deed describes the first tract in 
BIERY v. US 15

relation to the centerline of the railway and as “the tract 

on which condemnation proceedings were filed.” It describes the second tract without any reference to the 

railroad or the railway. The deed appears to be titled 

“Right of Way Deed” and contains pre-printed language 

that the estate was granted as “an absolute and indefeasible estate of inheritance, in fee simple.” As noted above, 

however, the word “warranty” appears to have been 

written over the words “Right of Way.”

Biery argues that the Phillips deed granted only an 

easement to the railroad. The document, Biery urges, is 

titled “Right of Way Deed” and describes a strip of land 

that was previously subject to condemnation proceedings. 

According to Biery, the court erred by focusing on the 

words “fee simple” because, under Kansas law, the words 

“fee simple” are not determinative of the right granted. 

The government responds that the descriptive title 

“Right of Way Deed” does not limit the property right to 

an easement because the deed does not contain any use 

limitations. Regarding the “fee simple” language, the 

government responds that Biery cannot meet its burden 

of proof by pointing to a remote possibility that the grantor did not mean “fee simple” when he wrote “fee simple.” 

We conclude that the Phillips deed granted an easement to the Hutchinson & Southern Railroad over the 

first tract of described land and granted the railroad feesimple title to the second tract. The deed was originally

titled “Right of Way Deed,” which would indicate that the 

railroad received only an easement. See Harvest Queen, 

370 P.2d at 424 (“For many years it has been the established law of this state that railroads receive easements 

only in strips taken as rights-of-way, regardless of whether they are taken by condemnation or deed.”). The title is 

illegible, however, and the phrase “Right of Way” appears 

to have been crossed out, making it unclear from the title 

what the parties intended. 
16 BIERY v. US

Although the title of the instrument may be unclear, 

the contents of the Phillips deed are unambiguous and 

make clear the parties’ intent. Under Kansas law, a deed 

grants an easement when it describes or refers to the 

land’s use or purpose, directly or indirectly, as being for a 

right-of-way. Stone, 91 P.3d at 1203–04. The Phillips 

deed describes the first tract of land in relation to the 

centerline of the railway and as the tract on which condemnation proceedings were filed. By describing the first 

tract of land in relation to the condemnation proceedings, 

we believe the parties intended to convey or confirm a 

right-of-way for the railroad, and therefore an easement. 

Regarding the government’s reliance on the pre-printed 

language that uses the words “fee simple,” we note that 

such language is not dispositive. See Abercrombie, 81 P. 

at 210 (“The fact that the deed contains covenants of 

warranty, or that the right acquired is designated as a 

fee, is not necessarily controlling.”). 

Although the pre-printed language is not determinative of the first tract of land, we believe it nonetheless 

may be given meaning. The second tract of land—lots 168 

and 170—was conveyed with no use restrictions, reversionary clause, or anything else limiting its use to a rightof-way. We conclude that the second tract, therefore, was 

conveyed in fee simple to the railroad. See Stone, 91 P.3d 

at 1203–04. 

Because we conclude that the Phillips deed conveyed 

only an easement in the first tract of land described, we 

hold that the Court of Federal Claims erred in dismissing 

Biery’s claim. 

C. THE ROWLAND DEED AND IRRIGATION LOAN DEEDS

To determine whether the American Packaging appellants have a compensable property interest, we consider 

the interests granted to the Hutchinson & Southern 

Railroad in the Rowland deed and in the two Irrigation 

Loan deeds. Like the deeds of the other appellants, the 
BIERY v. US 17

Court of Federal Claims found that the Rowland deed and 

the two Irrigation Loan deeds transferred fee-simple title 

to the railroad because none of the deeds contained any 

use restrictions or reversionary clauses. Initial Decision

at 3. 

The 1896 Rowland deed lists a series of lots—lots that 

were also listed in earlier condemnation proceedings—and

recites that it is for “the conveyance of all the right of 

way” that was occupied at the time by the railroad. J.A. 

706. The two Irrigation Loan deeds likewise list various 

lots—including some of those in the Rowland deed—but 

have no reference to a right-of-way. J.A. 1434–39. 

American Packaging argues that the Court of Federal 

Claims failed to properly apply Kansas law to the deeds. 

Moreover, it argues that no factual basis exists for the 

court’s conclusion that the Irrigation Loan & Trust Company held fee-simple title to the land. If the Irrigation 

Loan & Trust Company never held fee-simple title, American Packaging contends, it could not have conveyed feesimple title to the Hutchinson & Southern Railroad. 

The government counters that the Court of Federal 

Claims correctly held that the three deeds at issue conveyed fee-simple title because none contained use restrictions or reversionary clauses. The government 

further argues that, although the Rowland deed uses the 

term “right-of-way,” it does not do so in a way that restricts use of the land. Regarding American Packaging’s 

argument that the Irrigation Loan & Trust Company did 

not have a fee-simple interest to convey, the government 

contends that the chain of title shows that the Irrigation 

Loan & Trust Company did in fact hold title to the properties at issue.

We conclude that the Rowland deed conveyed only an 

easement to the railroad. Under Kansas law, railroads do 

not acquire fee-simple title to narrow strips of land taken 

as rights-of-way. Harvest Queen, 370 P.2d at 423. As 
18 BIERY v. US

noted, for $1 in consideration, the Rowland deed lists a 

series of lots that match those in the earlier condemnation 

proceedings and states that it is for “the conveyance of all 

the right of way” occupied at that time by the railroad. 

The unambiguous language describes the use as a rightof-way, therefore indicating that the parties expressly, or 

at a minimum, impliedly, intended to convey or confirm 

an easement. See Abercrombie, 81 P. at 210 (“But where 

there is an implied restriction, as is often the case in 

regard to the right of way, or the like, of a railroad company, the grant does not ordinarily vest a fee in the 

company, but vests such an estate—usually an easement—as is requisite to effect the purpose for which the 

property is required.” (quoting 2 Elliott on Railroad, § 

400)). 

Regarding the government’s argument that the term 

“right-of-way” must be used in a way that expressly 

restricts use of the land in order to avoid transferring feesimple title, we do not read Kansas law to be so restrictive. To the extent any ambiguity exists in the deed’s use 

of the term “right-of-way,” however, the Rowland’s subsequent transfer of the land resolves it. In 1906, ten years 

after executing the quitclaim deed at issue in this case, 

the Rowlands executed another deed. For $5,025 in 

consideration, the Rowlands quitclaimed their interest to 

H. B. Hettinger in the same lots as the 1896 deed, noting 

that the land was subject to a right-of-way by the railroad. J.A. 982. In our view, the 1906 deed’s reference to 

an existing right-of-way confirms the conclusion that the 

parties to the 1896 deed intended to convey only an 

easement. See Stone, 91 P.3d at 1203 (noting that extrinsic evidence such as “subsequent deeds referring to a 

right-of-way” may help resolve whether an ambiguous 

deed granted an easement). We therefore hold that the 

Court of Federal Claims erred in ruling that the Rowland 

deed conferred a fee-simple interest. 
BIERY v. US 19

Regarding the Irrigation Loan deeds, they both appear clear and unambiguous. Neither mentions any 

purpose for the land or any limitation on the railroad’s 

use. Both, therefore, conveyed the entire estate owned at 

the time by the Irrigation Loan & Trust Company. See 

Stone, 91 P.3d at 1203–04. We conclude, therefore, that 

the Court of Federal Claims correctly construed the 

Irrigation Loan deeds. 

Nevertheless, because the court erred in construing 

the Rowland deed, it erred in dismissing American Packaging’s claim as to the land described in that deed. The 

chain of title shows that the Rowlands issued a quitclaim 

deed to the Hutchinson & Southern Railroad in 1896, 

which conveyed an easement. The record does not show 

any conveyance from the Rowlands to the Irrigation Loan 

& Trust Company between 1896 and 1901. If the Irrigation Loan & Trust Company did not possess an undivided 

fee-simple interest in the land in 1901, it could not have 

conveyed such an interest to the railroad. Moreover, 

because the Irrigation Loan & Trust Company deeds are 

quitclaim deeds, they may have conveyed no property 

interest at all. See 14 R. Powell, Powell on Real Property 

§ 81A.03[1][c] (Michael Allen Wolf ed., LexisNexis Matthew Bender 2013) (explaining that with a quitclaim 

deed, “[t]he grantor makes no assurance to the grantee 

that he or she actually has good title to, or even any 

interest at all in, the property . . . .”). We remand to the 

Court of Federal Claims to evaluate the chain of title and 

determine the extent to which American Packaging has a 

property interest stemming from the Rowland’s earlier 

property interest.5 

5 The 1906 deed from the Rowlands suggests that 

their interest in the land continued past the Irrigation 

Loan & Trust Company’s transfer in 1901. See J.A. 982. 

We leave it to the Court of Federal Claims on remand to 

 
20 BIERY v. US

CONCLUSION

We affirm the grant of summary judgment with respect to Chalfant, reverse the grant of summary judgment 

with respect to Biery and American Packaging, and 

remand the case to the Court of Federal Claims to determine the merits of Biery’s and American Packaging’s 

claims. 

AFFIRMED-IN-PART, REVERSED-IN-PART, AND 

REMANDED

COSTS

Each party shall bear its own costs.

evaluate how this evidence resolves the chain-of-title 

question.