In the United States Court of Federal Claims 

No. 15-421L 

(E-Filed: April 2, 2021) 

NOT FOR PUBLICATION

DAVID H. & ARLINE M. 

BEHRENS, et al., 

 Plaintiffs, 

v. 

THE UNITED STATES, 

 Defendant. 

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Interpretation of Deeds; Scope of 

Easements; Missouri State Law. 

ORDER 

 Plaintiffs in this case allege that they have suffered a Fifth Amendment taking of 

their property. See ECF No. 24 (fourth amended complaint). Plaintiffs’ motion for 

partial summary judgment, ECF No. 96, and defendant’s cross-motion for partial 

summary judgment, ECF No. 97, are currently before the court. 

 In reviewing and evaluating the arguments made by the parties, the court has 

concluded that this case requires the resolution of tension between various precepts of 

Missouri law. Specifically, the parties in this case agree that the conveyances at issue 

should be treated as easements under Missouri law because they were made for nominal 

consideration. See ECF No. 35 at 19; ECF No. 36 at 39. And under Missouri law, an 

easement must have a definable scope. Maasen v. Shaw, 133 S.W.3d 514, 518 (Mo. Ct. 

App. 2004) (“By definition, an easement is ‘the mere right of a person to use for a 

definite purpose another [person]’s land in connection with his [or her] own land.’” 

(quoting Mahnken v. Gillespie, 43 S.W.2d 797, 800-01 (Mo. 1931))). The motions now 

before the court are directed at resolving the scope of the easements at issue. See ECF 

No. 96 at 8, 31; ECF No. 97 at 6; see also ECF No. 52 (opinion granting motion for 

reconsideration on the issue of the scope of the easements). 
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 The problem, however, is that neither the terms of the conveyances themselves nor 

the extrinsic evidence presented by the parties allow the court to decisively define the 

scope of the easements. First, the deeds do not include language explaining the 

limitations of the conveyance. For example, the Schoening Deed reads, in relevant part, 

as follows: 

[T]he said parties of the first part, . . . do by these presents grant[,] bargain[,] 

and sell, convey and confirm unto the said party of the second part the 

following described real estate . . . . 

To have and to hold the same, together with all the rights, immunities, 

privileges and appurtenances to the same belonging unto the said party of the 

second part, and to its successors and assigns forever; the parties of the first 

part hereby covenanting that they, their heirs, executors and administrators 

shall and will warrant and defend the title to the premises unto the said party 

of the second part and unto its successors and assigns forever, against the 

lawful claims of all persons whomsoever. 

ECF No. 111-2 at 2-3. The language of each of the deeds at issue is substantially the 

same. See generally id. Such language is generally found to indicate a fee conveyance, 

see Burnett v. United States, 139 Fed. Cl. 797, 805-06, 812 (2018), and Missouri law 

counsels against reading any additional limitations into the language as written. See 

Copanas v. Loehr, 876 S.W.2d 691, 696 (Mo. Ct. App. 1994) (noting that Missouri courts 

“are hesitant to impose” restrictions on easements “[a]bsent a provision which 

specifically limits an easement’s use”). Thus it appears that, under Missouri law, the 

court is asked to accomplish the difficult task of defining the scope of easements created 

by broad language, without imposing any limitations that do not already exist. 

 When the scope of an easement is unclear, Missouri courts will consider extrinsic 

evidence. See Maasen, 133 S.W.3d. at 519. Relevant evidence may include the 

circumstances surrounding creation of the easement, its location, and its prior use. See 

id. (citing Hoelscher v. Simmerock, 921 S.W.2d 676, 679 (Mo. Ct. App. 1996)). In 

accordance with this approach, the parties engaged in discovery in an effort to develop 

the record in that regard. See ECF No. 62 (discovery scheduling order). Unfortunately, 

the evidence submitted by the parties in the briefs now before the court is inconclusive. 

Plaintiffs point to the fact that the grantee was a railroad, see ECF No. 96 at 32, and the 

long, narrow shape of the property at issue, see id. at 33, neither of which are facts that 

compel the conclusion that the conveyance is limited to what plaintiff defines as railroad 

purposes. For its part, defendant points to relatively recent uses of the property that are 

quite far removed in time from the execution of the deeds—including the installation of 

fiber optic cable, and the use of recreational vehicles on the property—raising doubts 

about how probative of the grantors’ intent those activities are. See ECF No. 97 at 19-20. 
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 In the court’s view, the most appropriate tribunal to determine how the deeds at 

issue here would be interpreted under Missouri law is the Supreme Court of Missouri. 

The court has considered certifying a question of law to the Supreme Court of Missouri, 

but it does not appear as though a mechanism to do so exists. The Missouri code does 

include a statute that addresses the certification of questions of law, but it does not 

include this court among those permitted to submit questions. See MO. ANN. STAT. 

477.004(1). And even if this court were included in the statutory language, the Supreme 

Court of Missouri has declined to answer certified questions, finding that such authority 

is beyond its constitutional remit. See Grantham v. Mo. Dept. of Corrections, Case No. 

72576, 1990 WL 602159 (Mo. July 13, 1990). This court has previously noted the 

barriers to certification in Missouri. In Glosemeyer v. United States, this court 

encountered a novel question of Missouri property law and noted that: 

Normally, we would prefer to certify such an important and undecided 

question directly to the highest court of the state. Unfortunately, Missouri 

does not have a process by which federal courts can certify questions for 

decision by the Missouri Supreme Court. Thus, we must apply Missouri law 

as we find it. 

45 Fed. Cl. 771, 780 n.19 (2000) (citations omitted). Thus, the court will not pursue such 

certification. 

 It may be possible, and indeed advisable, however, for the parties to seek guidance 

from the Supreme Court of Missouri before the court rules on the pending motions. 

 Absent such guidance, and on the record currently before it, the court believes that 

the best course is to hew closely to the rule articulated in Hinshaw v. M-C-M Props., 

LLC, 450 S.W.3d 823 (Mo. Ct. App. 2014). Under Missouri law, “[t]he cardinal rule 

regarding an interpretation of a deed is to ascertain the intention of the parties and to give 

that intention effect.” Id. at 827 (citing Dean Mach. Co. v. Union Bank, 106 S.W.3d 510, 

520 (Mo. Ct. App. 2003)). In this case, the best evidence available of the grantor’s intent 

remains the language of the deeds themselves, which indicates a broad grant to the 

railroad. 

 Before ruling on the pending motions for summary judgment, however, the court 

will give the parties an opportunity to consider whether they wish to seek guidance from 

the Supreme Court of Missouri with regard to the issues of Missouri law implicated here. 

The court will stay this case in the interim. 

 Accordingly, 

 (1) The clerk’s office is directed to STAY this case, pending further order of 

 the court; and 
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 (2) On or before June 4, 2021, the parties are directed to CONFER and FILE 

 a joint status report informing the court as to whether they intend to seek 

 guidance from the Supreme Court of Missouri on the interpretations of 

 Missouri law at issue in the case, and proposing a plan for proceeding. 

IT IS SO ORDERED. 

 

 s/ Patricia Campbell-Smith 

PATRICIA CAMPBELL-SMITH 

Judge