# United States **Court of Appeals**  **for the Federal Circuit**

______________________ DOROTHY L. BIERY, JU LIA R. CHALFANT ETVI R TRUST, K.A.K. FARMS, INC., AMERICAN PACKAGING CORPORATIO N, AND COLLINS INDUSTRIES, INC., Plaintiffs

- Appellants,

GORDON HOLLOWAY, as suc c essor and repr esentative 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

______________________

M ARK F. (T HOR ) H EARNE , II, Arent Fox, LLP, of Was hington, DC, argued for plaintiffs

- appellants. With him on the brief were M EGHAN S. L ARGENT , L INDSAY S.C. B RINTON , and S TEPHEN S. D AVIS

. Of counsel was D EBRA J. A LBIN -R ILEY , of Los Angeles, California.BIERY v. US 2

N INA R OBERTSON , Attorney, Appellate Section, Env ironment al and Natural Resources Division, United States Department of Justice, of Washington, DC, argued for defendant

- appellee. With her on the brief was R OBERT G. D REHER , Acting Assistant Attorney General.

______________________

Before P ROST , ∗ Chief Ju dge

, S CHALL and O’M ALLEY , Circuit Judges.

S CHALL , 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 & Sout hern R ailroad Company . The Burlington Northern and Santa Fe Railway (“BNSF”) eventually succeeded to the interests of th at 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”),
t he Court of Federal Claims entered judgment in favor of the government on p laintiffs -a ppellants ’ claims. Biery v. United States , Nos. 07

- 693L, 07

- 675L ( Fed. Cl. Apr. 9, 2013 ). The court did so after ruling on summary jud gment that none of the p laintiffs -a ppellants 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 ”) . T he court concluded that the land had been conveyed to the BNSF’s predecessor in fee simple, contrary to p laintiff -a ppellants’ claims that the several conveyances at issue had only granted easements. Plaintiffs

- Appellants now appeal from the court’s jud gment. 1
For the reasons set forth below, we conclude as fo llows: (1) The underlying land claimed by p laintiffs

a ppellants Julia R. Chalfant Etvir Trust and K.A.K. Farms, Inc. (“Chalfant”) was conveyed to the B NSF’s predecessor in fee simple. Chalfant thus has no compe nsable property interest in the land. (2) The underlying land claimed by p laintiff -a ppellant 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 taki ngs 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.BIERY v. US 4

fee

- simple title to the land, a compensable property interest. (3) On the present record, it is not clear whether
t he underly ing land claimed by p laintiffs -a ppellants American Packaging Corporation and Collins Industries, Inc. (“American Packaging”) was held by the BNSF’s predecessor in fee simple or whether the BNSF’s pred ecessor simply held an easement over the land

. O f the three deeds at issue for American Packaging

, the first

- in

time granted the railroad’s predecessor only an easement over the land. The two subsequent deeds, though, co nveyed fee

- simple interests. The effect of these deeds, however, is cloud ed by chain -of- title questions. Thus, we cannot presently say whether American Packaging hold s fee

- simple title to the land, a compensable property i nterest. 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.

B ACKGROUND

I.

L EGAL F RAMEWOR K 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 inte rest 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 clai mant 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 wheth er 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 t o the conversion, the BNSF held fee

- simple titleBIERY v. US 5

to the land underlying the c orridor, then, for their part,

p laintiffs -a ppellants possess no compensable property interests. Th at is because the railroad’s fee- simple title would constitute complete ownership in the land. 1 Tiffany R eal Prop. § 27 (3d ed. 2013 ). I f, however, the BNSF held only easement s over the land, then p laintiffs

a ppellants retained a fee

- simple interest in the land. Under those circumstances, i f the BNSF’s conversion of the railroad tracks to a recreational tra il wa s outside the scope of the easement s and thus constitute d abando nment
, 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 p laintiff s-a ppellants hold f ee- simple title to the land, they may poten tially have a compensable property interest for purposes of a takings claim.

T he issue in th is 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 eas ements. We therefore begin by briefly setting forth the

conveyances that are relevant to the claim of each of the several p laintiffs -a ppellants. We then turn to the events leading up to this lawsuit and the subsequent proceedings in the Court of Federal Claims

. II.

A. C HALFANT A PPELLANTS

T he Chalfant appellants claim the land referenced in the deed from Julia Fair (the “Julia Fair deed”) to the Hutchinson & Southern R ailroad in the late ninet eenth century

. In 1889, a condemnation decree declared a right

of- way for the Hutchinson, Oklahoma & Gulf R ailroad across land owned by Thomas Fair. It is undisputed thatBIERY v. US 6

the railroad took only an easement over the land at that time. The condemnation decree does not mention Tho mas’s wife, Julia Fair. After the condemnation, the Hutchinson, Oklahoma & Gulf Railroad merged with the Hutchinson & Southern Railroad Company

. I n 1899, after Thomas Fair had died , Julia Fair executed a qui tclaim deed to the Hutchinson & South ern 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 inte rest 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 constructed 2 over and across section thirty five <35> t ownship t we nty three <23> r ange s ix <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. B IERY A PPELLANT Appellant Biery claims the land referenced in the deed from the Phillips Investment Company ( the “ Phillips deed ”) to the Hutchinson & Southern R ailroa d

. Similar to the land claimed by Chalfant

, the land claimed by Biery was originally subject to condemnation proceedings . I n 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, l ying South of the South line of Tenth Avenue e xtended 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, co ntaining 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 appurt enances . . . .” Id.

C. A MERICAN P ACKAGING A PPELLANTS
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 R ailroad

.

3 The legibility of the deed is poor, an d the word “Warranty” appears to have been written over the words “Right of Way.”BIERY v. US 8

An 1891 condemnation decree declared a right -of- way for the Hutchinson & Southern R ailroad across forty

- six lots in Blanchard’s Third Addition in South Hutchinson, K ansas

. Subsequently, i n 1896, Ella and H. Edward Rowland executed a quitclaim deed to the Hutchin son & Southern R ailroad th at 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: “F or and in consideration of $1.00 and the

conveyance 4 of all t he 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 ex ecuted two quitclaim deeds to the railroad

. For $14 4 in consideration, t he 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 qu itclaims an interest in a series of lots that make up a portion of the l ots listed in the 1891 condemnation decree and in the 1896 Rowland quitclaim deed.
In 1906, for $5,025 in consideration, the Rowlands e xecuted a quitclaim deed to Harriet B. Hettinge r, transfe rring 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. T HE BNSF’ S I NTERES T As noted, the BNSF’s interest in the properties at i ssue began with condemnation proceedings in the la te nineteenth century brought by the Hutchinson, Oklahoma & Gulf Railroad and the Hutchinson & Southern Rai lroad

. Sometime after those condemnation pro ceedings

, the two railroads merged into the Atchison, Topeka and Santa Fe Railroad, which subsequently merged with the Burlington Northern Railroad to beco me the BNSF.
In 1983, Congress passed legislation amending the Trails Act to “preserve shrinking rail trackage by conver ting 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 us e, the Interstate Commerce Commission c ould maintain control over the right -of- way and prevent it from rever ting to landowners under state law, thus preserv ing it for possible future railroad use

. Id. at 6 –8

. Under the law, therefore, before abandoning a n unused railway , a rai lroad must seek permission from the Surface Transport ation 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 unde rlying 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 inte rest 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 ( Pres eault II ) , 10 0 F.3d 1525, 1552 (Fed. Cir. 1996) (en banc).BIERY v. US 10

In 2004, after having discontinued its use

, the BNSF sought the Board’s permission to abandon t he railway that ran across the properties at issue in this case

. Soon after

, the BNSF and the City of South Hutchinson e ntered into a Trail Use Agreement. In donating its prope rty 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, p laintiffs -a ppellants claimed

owner ship of the land underlying the railway and sought compensation for a taking

. III.

P ROCEEDINGS IN THE C OURT OF F EDERAL C LAIMS
Plaintiffs

- Appellants filed suit in the Court of Federal Claims in 2007 under the Tucke r Act, 28 U.S.C. § 1 491
, alleging a taking and seeking compensation under the Fifth Amendment. On cross motions for summary jud gment, the court found that neither the Julia Fair deed, the Phillips deed, the Rowland deed, nor the Irrigation Loan deeds contained any use restricti ons or reversionary clauses. Initial Decision at 3

– 4. Accordingly, the court held that the BNSF and its predecessor acquired fee

simple title in the properties described in the deeds. Id. Because the BNSF owned the propert ies in fee s imple rather than holding mere easement s , the court dete rmined, p laintiffs -a ppellants had no compensable property interests that w ere subject to a taking. Id.

Plaintiffs

- Appellants appealed to this court immed iately after the summary judgment order. Because the Court of Federal Claims had not entered a partial jud gment 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 o f the five p laintiffs

a ppellants. They appealed again. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).BIERY v. US 11

D ISCUSSION

I.

S TANDARD OF R EVIEW

Th is appeal stems from a grant of summary jud gment

. We review de novo the grant of summary jud gment. 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 th is background in mind, we turn first to Kansas law . We then address the several parcels of land at issue.

II.

K

ANSAS L AW 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 rail roadBIERY v. US 12

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 pa rties.’” 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

execu tion 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 u nambiguous, we look no further than its four corners and analyze it according to the general rule in Kansas. Id. at 1203

. “T he 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 gene rally con strued 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. T HE J ULIA F AIR D EED To determine whether the Chalfant appellants have a compensable property interest, we consider whether the 1899 Julia Fair deed granted the Hutchinson & Southern R ail road fee

- simple title or merely an easement. Finding that the deed contained no use restrictions or reversio nary 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 t o 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
argue s that the Julia Fair deed was undertaken to clarify the railroad’s righ t-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 describe s the conveyance as being “over and across” the land described , which , according to Chalfant, indicates a right -of- way. The C ourt of Federal C laims erred, Chalfant conclude s , by ignoring Kansas law and holding that a quitclaim deed in a strip of land to a railroad for a righ t-of- way conveyed fee

- simple title.
The government respond s 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 int erest conveyed. On this basis alone, the government argues , the deed con veyed fee

- simple title

. Further, the gover nment argues, the rail road 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 condemn ation

. According to the government, Julia received Tho mas’s interest after he died. She then transferred thatBIERY v. US 14

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 trans ferred fee

simple title to the Hutchinson & Southern R ailroad. 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 inte rest” 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 regar ding the words “over and across.” Those words reflect the simple truth that the railroad tracks run over and across the land t hat Ms. Fair transferred ; t hey 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 easeme nt

. Accordingly, because Chalfant has no compensable property interest that could have been subject to a taking, we affirm the dismissal of its claim.

B. T HE P HILLIPS D EED Next, we consider whether the Biery appellant has a compensable property interest. To do so , we must dete rmine whether the Phillip s deed granted the Hutchinson & Southern R ailroad fee

- simple title, or merely an eas ement. Noting that the deed recited the words “fee si mple

, ” and finding that it did not contain any use restrictions or reversionary clause, the Court of Federal Claims held t hat 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 inBIERY v. US 15

relation to the centerline of the railway and as “the tract on which condemnation proceedings were filed.” It d escribes the second tract without any reference to the railroad or the railway. The deed appears to be titled “Righ t of Way Deed ” and contains pre

- printed language that the estate was granted as “an absolute and indefe asible 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 a rgue s that the Phillips deed granted only an
easement to the railroad

. T he 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, t he 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 ri ght to an easement because the deed does not contain any use limitations. Regarding the “fee simple” lan guage, the government responds that Biery cannot meet its burden of proof by pointing to a remote possibility that the gra ntor did not mea n “fee simple” when he wrote “fee simple. ”
We conclude that the Phillips deed granted an eas ement to the Hutchinson & Southern R ailroad over the first tract of described land and granted the railroad fee

simple title t o the second tract

. The deed was origi nally 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 esta blished law of this state that railroads receive easements only in strips taken as rights -of- way, regardless of whet her they are taken by condemnation or deed

. ”). The title is illegible , however, and the phrase “Right of Way” appear s to have been crossed out

, making i t unclear from the title what the parties intended.BIERY v. US 16

Although the tit le of the instrument may be unclear, the content s 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 bei ng 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 co ndemnation 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 languag e is not determin ative of the first tract of land, we believe it nonetheless may be given meaning

. The second tract of land

— lots 168 and 170 —w as conveyed with no use restrictions, reve rsionary clau se, or anything else limiting its use to a right

of- way

. We conclude that t he second tract, therefore, was conveyed in fee simple to the railroad

. S ee Stone , 91 P.3d at 1203

– 04

. B ecause 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. T HE R OWLAND D EED AND I RRIGATION L OAN D EEDS

T o determine whether the American Packaging appe llants have a compensable property interest, we consider the interest s granted to the Hutchinson & Southern R ailroad in the Rowland deed and in the two Irrigation Loan deeds

. Like the deeds of the other appellants, theBIERY v. US 17

Court of Federal Claims found that the Rowland deed and the two Irrigati on Loan deeds transferred fee

- simple title to the railroad because none o f the deeds contained any use restrictions or reversionary clause s

. Initial Decision at 3.

The 1896 Rowland deed list s 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 th ose in the Rowland deed

— but have no reference to a right -of- way. J.A. 1434

– 39. American Packaging argu es that the C ourt of Federal Claims failed to properly apply Kansas la w to the deeds. Moreover, it argues that no factual basis exist s for the court’s conclusion that the Irrigation Loan & Trust Co mpany held fee

- simple title to the land

. If the Irrigatio n Loan & Trust Company never held fee

- simple title, Ame rican Packaging contends , i t could not have conveyed fee

simple title to the Hutchinson & Southern R ailroad.
The government counters that the C ourt of Federal Claims correctly held that the three deeds at issue co nveyed fee

- simple title because none contained use r estrictions or reversionary clauses. T he government further argues that

, although the Rowland deed uses the term “right -of- way ,” it does not do so in a way that r estricts 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 p roperties 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 right s-of- way. Harvest Queen , 370 P.2d at 423

. AsBIERY v. US 18

noted, for $1 in consideration, t he Rowland deed lists a series of lots that match those in the earlier condemnation proceedings and states that it is for “the conv eya nce of all the right of way” occupied at that time by the railroad. The unambiguous language de scribes the use as a right

of- 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

r egard to the right of way, or the like, of a railroad co mpany, the grant does not ordinarily vest a fee in the company, but vests such an estate

— usually an eas ement

— 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 t hat expressly restrict s use of the land in order to avoid transferring fee

simple title, we do not read Kansas law to be so restri ctive

. To the extent any ambiguity exists in the deed’s use of the term “right -of- way ,” however, the Rowland’s subs equent transfer of the land resolves it. In 1906, t en years after executing the quitclaim deed at issue in this case, the Rowlands executed another de ed. 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 s ubject to a right -of- way by the rai lroad. 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 extri nsic 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 a ppear 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 concl ude, 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 Pac kaging’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 R ailroad in 1896, which conveyed an easement. The record does not show any conveyance from the Rowlands to the Irrigation Loan & Trust Company between 1896 a nd 1901. If the Irrig ation 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 d eeds, 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 Ma tthew Bender 2013) (explaining that with a quitclaim deed, “[t]he grantor makes no assurance to the gr antee 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 s temming 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 toBIERY v. US 20

C ONCLUSION
We affirm the grant of summary judgment with r espect to Chalfant, revers e t he grant of summary judgment with respect to Biery and American Packaging

, and remand the case to the Court of Federal Claims to dete rmine the merits of Biery’s and American Packaging’s claims

.

AFFIRMED

- IN

- PART, REVERSED

- IN

- PART, AND REMANDED

C OSTS Each party shall bear its own costs.

evaluate how this evidence resolves the chain -of- title question.