In the United States Court of Federal Claims

No. 16-912L and 

No. 16-1565L and No. 18-375L Consolidated

No. 18-983L

(Filed: June 22, 2020)

PERRY LOVERIDGE, et al., 

 Plaintiffs,

v.

THE UNITED STATES,

Defendant.

_______________________________

ALBRIGHT, et al., 

 Plaintiffs,

and

THE UNITED STATES, 

 Defendant. 

_______________________________

STIMSON LUMBER COMPANY, 

 Plaintiff,

and

THE UNITED STATES, 

 Defendant

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

Motion for Summary Judgment; Railsto-Trails; Oregon Law; Abandonment; 

Adjacency; Centerline Presumption; 

Valuation Maps; Condemnation; 

Registrar of Title
2

Thomas S. Stewart, Kansas City, MO, for Loveridge and Stimson Lumber plaintiffs. 

Elizabeth G. McCulley, Kansas City, MO, of counsel.

Meghan S. Largent, St. Louis MO, for Albright plaintiffs. Lindsay S.C. Brinton, St. Louis 

MO, of counsel.

James H. Hulme, Washington DC for Aeder plaintiffs. Laurel LaMontagne and Morgan 

Pankow, Washington DC, of counsel.

David W. Gehlert, Environment and Natural Resources Division, United States 

Department of Justice, Washington DC, with whom was Prerak Shah, Acting Deputy 

Assistant Attorney General, for defendant. 

O P I N I O N

FIRESTONE, Senior Judge.

I. INTRODUCTION

This is the court’s fourth opinion arising from the parties’ cross motions for partial 

summary judgment in Albright v. United States (Case No. 16-1565L), Aeder v. United 

States (Case No. 18-375L), Loveridge v. United States (Case No. 16-912L), and Stimson 

Lumber v. United States (Case No. 18-983L). The plaintiffs in these related cases claim 

they are entitled to just compensation under the Fifth Amendment for a taking of their 

property in connection with the creation of the Salmonberry Trail in Oregon. The 

Salmonberry Trail was established under the National Trails System Act, 16 U.S.C. 

§ 1247(d), after the Port of Tillamook Bay Railroad (“POTB”) ceased operations over 

portions of its railways in 2007. The POTB obtained its property interest over the 

portions of the railways from the Pacific Railway & Navigation Company (“Railroad”). 

Authorization to establish the Salmonberry Trail was issued by the government in a 

Notice of Interim Trail Use (“NITU”) dated July 26, 2016. A final trail use and rail 
3

banking agreement was reached between the POTB and the Salmonberry Trail 

Intergovernmental Agency (“STIA”) on October 27, 2017. The plaintiffs claim to own 

property underlying the POTB’s railroad right of way and assert that the creation of the 

Salmonberry Trail gave rise to a “taking” of their property. The extensive history of this 

litigation can be found in the court’ prior decisions and will not be repeated here. See 

Loveridge v. United States, 139 Fed. Cl. 122 (2018), recons. partially granted, 2019 WL 

495578 (2019). 

The court’s first two opinions addressed whether deeds granted to the Railroad by 

prior landowners granted a fee rather than an easement for the right of way at issue. 

Where the Railroad obtained a fee interest and thus owned the right of way, the court 

found that the plaintiffs could not establish a taking. See Loveridge, 139 Fed. Cl. 122; 

Loveridge, 2019 WL 495578. In the court’s recently-issued third opinion, Loveridge v. 

United States, 2020 WL 2301463 (Fed. Cl. May 8, 2020), the court determined whether 

the trail use and railbanking authorized by the NITU fit within the scope of certain 

easements.

In this fourth opinion, the court addresses the remaining three issues raised in the 

parties’ pending cross motions for partial summary judgment: (1) whether plaintiffs must 

establish that their easements were abandoned under Oregon law prior to issuance of the 

NITU to receive just compensation for a new trail easement on plaintiffs’ fee land rather 

than compensation for a trail easement on top of a continuing rail easement; (2) where an 

easement for a road, street or other pathway was established between plaintiffs’ property 

and the Railroad right of way before the plaintiffs acquired their property and where these 
4

plaintiffs’ deeds identify that road, street or other pathway as their property boundary, 

can the plaintiffs claim a property interest across the road, street or other pathway to the 

centerline of the railroad right of way under Oregon law; and (3) whether plaintiffs who 

could not produce a deed or other instrument identifying the interest conveyed to the 

Railroad may rely on other evidence and Oregon state law presumptions to prove that the 

Railroad obtained an easement and that these plaintiffs own the property underlying the 

easement.

For the reasons discussed below, the parties’ cross motions for partial summary 

judgment are GRANTED-IN-PART and DENIED-IN-PART. 

II. LEGAL STANDARDS

Summary judgment is proper “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). A genuine dispute is one that could permit a reasonable jury to enter a verdict in 

the non-moving party’s favor, and a material fact is one that “might affect the outcome of 

the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). The party moving for summary judgment bears the initial burden of showing the 

“absence of evidence to support the non-moving party’s case.” Crown Operations Int’l, 

Ltd. v. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002) (quoting Celotex Corp. v. 

Catrett, 477 U.S. 317, 325 (1986)). 

Once the moving party has met its burden, the party opposing summary judgment 

must respond and “demonstrate by specific factual allegations that a genuine issue of 

material fact exists for trial.” Crown Operations, 289 F.3d at 1388 (citing Celotex Corp., 
5

477 U.S. at 322-23. “[M]ere allegations of a genuine issue of material fact without 

supporting evidence will not prevent entry of summary judgment.” Republic Sav. Bank, 

F.S.B. v. United States, 584 F.3d 1369, 1374 (Fed. Cir. 2009). The court must view the 

inferences to be drawn from the underlying facts in the light most favorable to the 

nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 

(1986). 

III. DISCUSSION 

The facts and law relevant to each of the three issues are discussed in the separate 

sections of the opinion.1

A. Abandonment of a Railroad Easement Under Oregon Law

The court first turns to the government’s argument that the plaintiffs whose 

property was burdened by a railroad purpose easement prior to the NITU must 

demonstrate that the railroad purpose easement was abandoned prior to the issuance of 

the NITU to receive just compensation for the imposition of a trail use easement on 

unencumbered land. The court holds, as discussed below, that these plaintiffs need not do 

so under well-settled law.

1. Undisputed Facts

The right of way segment at issue involves the POTB railroad line located 

between Milepost 775.01 near Banks, Washington County, Oregon, and Milepost 856.08 

near Tillamook, Tillamook County, Oregon (“Railroad Line”). See Loveridge, 139 Fed. 

 

1 Briefing of these issues was completed on April 3, 2020. The parties have not requested oral 

argument, and the court has determined that oral argument is not necessary. 
6

Cl. at 129. The POTB has not run trains on the relevant portions of the right of way since 

at least 2007. See Albright, ECF No. 20 at 3; Albright, ECF No. 24 at 4. 

On May 26, 2016, the POTB filed with the Surface Transportation Board (“STB”)

a “Notice of Intent to Partially Terminate (Abandon) Service” for the railroad segment at 

issue here. Loveridge, 139 Fed. Cl. at 129. The Notice stated that “a portion of the rail 

line suffered catastrophic damage due to severe storms” and that “POTB has 

unsuccessfully sought funding for repairing the line.” See Albright, ECF No. 20-1 at 2. It 

further stated “POTB does not believe that it will be able to obtain the necessary funding 

to repair and rehabilitate the line” and therefore “POTB is giving this notice of its intent 

to terminate service over (fully abandon) the Subject Line.” Id.

On or about June 17, 2016, the STIA filed with the STB a Statement of 

Willingness to Assume Financial Responsibility (“Statement”) to operate a trail on the 

relevant segment of the right of way. 139 Fed. Cl. at 129. In its Statement, the STIA 

stated that the relevant railroad segment “is suitable for railbanking” and requested that 

the STB issue a Public Use Condition and NITU under the National Trails System Act, 

16 U.S.C. § 1247(d). Id.

On July 26, 2016, the STB issued a NITU. Id. After two extensions of the NITU, 

on October 27, 2017 POTB and STIA notified the STB that they had entered into a final 

trail use and rail banking agreement regarding the relevant railroad segment. Id.

2. Relevant Federal and Oregon Law

“[T]he [STB’s] issuance of a NITU effects a taking . . . when state law 

reversionary property interests are blocked . . . .” Caquelin v. United States, No. 2019-
7

1385, 2020 WL 2781657, at *3 (Fed. Cir. May 29, 2020) (quotation and citation omitted). 

Thus, to find a taking, the court must determine whether issuance of the NITU in this 

case blocked the plaintiffs’ state law reversionary interests, meaning that, but for the 

NITU, the railroad’s easement would have been abandoned and the property returned 

unencumbered by the railroad’s easement. Castillo v. United States, 952 F.3d 1311, 1315 

(Fed. Cir. 2020) (“If, in the absence of a conversion to trail use, state law would provide 

for return to a person of full rights in the land, a taking occurs when, pursuant to the 

Trails Act, state law reversionary interests are effectively eliminated in connection with a 

conversion to a railroad right-of-way to trail use.” (internal quotations and alterations 

omitted)). 

The property rights of the parties in this case are analyzed under Oregon law. See 

Castillo, 952 F.3d at 1319 (“We analyze the property rights of the parties in a rails-totrails case under the relevant state’s law . . . .”). Under Oregon law, an easement can be 

terminated by consent, prescription, abandonment, or merger. Cotsifas v. Conrad, 905 

P.2d 851, 852 (Or. Ct. App. 1995). “A party claiming abandonment [of an easement]

must show in addition to non-use ‘either [a] verbal expression of an intent to abandon or 

conduct inconsistent with an intention to make further use.’” Conner v. Lucas, 920 P.2d 

171, 174 (Or. Ct. App. 1996) (quoting Abbot v. Thomson, 641 P.2d 652, 654 (Or. Ct. 

App. 1982) (alterations in original)). 

3. Analysis

In all four cases before the court for parcels where the Railroad obtained an 

easement for railroad purposes, the government has moved for partial summary judgment 
8

arguing that if the plaintiffs cannot show that the POTB terminated its railroad easement 

by abandonment before the NITU was issued, the NITU simply adds a new easement on 

top of the existing railroad easement and just compensation is limited. Albright Def.’s 

Mot. for Part. Summ. J. on Scope of Easements (“Albright Def.’s Aband. Mot.”) at 14-15

(ECF No. 120); Loveridge Def.’s Mot. for Part. Summ. J. on Scope of Easements 

(“Loveridge Def.’s Aband. Mot.”) at 14-15 (ECF No. 94); Stimson Lumber Def.’s Mot. 

for Part. Summ. J. on Scope of Easements (“Stimson Lumber Def.’s Aband. Mot.”) at 10-

11 (ECF No. 24).

2

In support, the government argues that, in Oregon, “an easement 

holder may be liable in trespass for use of an easement that is inconsistent with its scope” 

but that Oregon “easements are not extinguished by inconsistent uses.” See Albright

Def.’s Aband. Mot. at 15 (citing Conner, 920 P.2d at 175 and Cotsifas, 905 P.2d at 852.). 

The government therefore contends that if the plaintiffs cannot demonstrate prior 

abandonment of the right of way by the POTB under state law before issuance of the 

NITU, the plaintiffs are only entitled to just compensation for a railbanking and trail use 

easement on a land still encumbered by a railroad purposes easement. Id.

Plaintiffs respond that the government has misconstrued the law regarding the 

Trails Act. Specifically, the plaintiffs argue that they do not have to provide evidence that 

the railroad easements had actually terminated through abandonment under state law “to 

 

2 Although the court’s prior decision addressed the scope of easements conveyed to the Railroad, 

it deferred judgment on the above issue. See Loveridge, 2020 WL 2301463, at *14 (indicating 

that the court will address “whether under Oregon law the United States is liable for imposing a 

new easement on the properties already encumbered by an easement or whether the easements 

were terminated prior to the alleged taking” in its subsequent decision). 
9

either establish a taking or to prove the nature of their property interest prior to the 

NITU.” See Albright Pls’ Resp. at 13 (ECF No. 125) (quoting Rogers v. United States, 

101 Fed. Cl. 287, 293 (2011)). Rather, the plaintiffs contend that they are entitled to 

compensation for a railbanking and trail use easement on unencumbered land if they can 

show that the POTB’s railroad purposes easements would have been extinguished by 

abandonment under Oregon law but for the United States’ issuance of the NITU. Id.; see 

id. at 4 n.8. 

The court agrees with the plaintiffs that whether the easements were legally 

terminated prior to issuance of the NITU is not relevant to determining the nature of the 

property interest taken by the United States in connection with the easements limited to 

railroad purposes. The plaintiffs’ claim before the court is rooted in the Trails Act’s 

preemption of state property laws for terminating easements through abandonment. See 

Caquelin, 2020 WL 2781657, at *9 (holding that the taking occurs at “the time as of 

which, had there been no NITU, the railroad would have abandoned the rail line, causing 

termination of the easement that the NITU continued by law”). This is because upon 

issuance of the NITU, “the STB retains jurisdiction for possible railroad use and the 

abandonment of the corridor is blocked.” Caldwell v. United States, 391 F.3d 1226, 1229 

(Fed. Cir. 2004). Therefore, where plaintiffs can show that POTB would have abandoned

its easement but for the Trails Act, the plaintiffs’ “measure of damages for just 

compensation must be the difference between the value of plaintiffs’ land unencumbered 

by a railroad easement and the value of plaintiffs’ land encumbered by a perpetual trail 
10

use easement subject to possible reactivation as a railroad.” Raulerson v. United States, 

99 Fed. Cl. 9, 12 (2011).

This court has uniformly rejected the government’s contention to hold otherwise. 

See, e.g., Ladd v. United States, 110 Fed. Cl. 10, 13 (2013) (“Plaintiffs’ reversionary 

interests are determined in this court by subtracting the value of plaintiffs’ land with 

easements for recreational trails, from their land without easements––unencumbered 

property.”); see also Balagna v. United States, 138 Fed. Cl. 398, 405 n.4 (2018) (“The 

government is thus wrong to suggest that, when it comes to valuation, it is somehow 

relevant that Plaintiffs’ land has long been encumbered by a railroad corridor. . . . For 

valuation purposes, the Court treats the property as though the railroad easement never 

existed.” (quotation omitted)).

3 The court declines to depart from this approach.

Having determined that plaintiffs need only demonstrate that the easements 

limited to railroad purposes would have been terminated by abandonment, the court 

considers the undisputed facts under the Oregon law governing abandonment. It is 

undisputed that the POTB has not operated rail traffic on the relevant railroad track since 

at least 2007. On May 26, 2016, the POTB filed with the STB a Notice of Intent to 

Partially Terminate (Abandon) Service for the railroad segment at issue here. It is also 

undisputed that the Notice indicated that the POTB would not be able to repair damage to 

 

3

Indeed, the government acknowledges that this court has considered and rejected this argument 

in several cases. See Albright Def.’s Aband. Mot. at 14 (citing Toscano v. United States, 107 

Fed. Cl. 179 (2012); Geneva Rock Prods, Inc. v. United States, 107 Fed. Cl. 166 (2012)).
11

the Railroad Line at issue and rehabilitate the Line and declared the POTB’s “intent to 

terminate service over (fully abandon) the Subject Line.” Albright, ECF No. 20-1 at 2. 

The POTB’s failure to operate trains on the segment since 2007, together with its 

statement to the STB of its intent to “fully abandon” the segment for rail service, would 

have been sufficient to terminate the easements limited to railroad purposes by

abandonment under Oregon law because no other use of the segment would have 

remained. In Oregon, “[a] party claiming abandonment [of an easement] must show in 

addition to non-use ‘either [a] verbal expression of an intent to abandon or conduct 

inconsistent with an intention to make further use.’” Conner, 920 P.2d at 174. Here, the 

POTB has not used the relevant railroad purposes easements for years, and expressed its 

intent to abandon rail service in the STB Notice. Id.; see also Caquelin, 2020 WL 

2781657, at *9 (applying Iowa law, and holding that “[t]he railroad filed an application to 

abandon, indicating an affirmative intent to abandon”). Thus, the court finds that the 

plaintiffs have presented sufficient evidence of an expression of an intent to abandon the 

rail line prior to the issuance of the NITU and that issuance of the NITU interfered with 

the POTB’s intent to abandon the rail line. The government has not identified “any 

evidence at all affirmatively indicating that the railroad would have delayed abandonment 

. . . had there been no NITU to interfere with the grant of authority of abandonment” that 

would otherwise have taken effect. Caquelin, 2020 WL 2781657, at *9. Thus, plaintiffs 

have established a taking as of the issuance of the NITU.

In view of the foregoing, it is irrelevant that inconsistent use is not grounds for 

termination of an easement in Oregon. Here, the evidence established that POTB had 
12

ceased to operate the line in 2007 and after consideration had decided to finally terminate 

operations and to fully abandon railroad use on the relevant segment. The government 

has not presented any evidence that the POTB would not have abandoned rail service 

over the segment. Rather, all evidence supports that the POTB would have abandoned

rail use over the segment and that any railroad purpose easements would have reverted 

back to the plaintiffs that granted them, but for the issuance of the NITU. The 

government’s motion for partial summary judgment regarding the measure of just 

compensation therefore is denied. Just compensation must be measured assuming the 

subject property was not encumbered by a railroad easement. 

B. Properties Where There Is an Intervening Road Between the Plaintiffs’ 

Property and the Railroad Right of Way

The court now turns to the plaintiffs that own properties where there is an 

intervening road, street, or other boundary between the plaintiffs’ property and the 

railroad right of way. As discussed below, the court finds that, under Oregon law, these 

plaintiffs own only to the centerline of the intervening road, street, or other boundary and 

have not established a property interest in the railroad right of way to pursue a takings 

claim. 

1. Undisputed Facts

The Loveridge plaintiffs’ motion for summary judgment claims that they own the 

underlying fee to the centerline of the right of way for the below-listed properties. 

Loveridge Pls.’ Supp. Summ. J. Mot. and Mem. On Adj. Issues (“Loveridge Pls.’ Adj. 

Mot.) (ECF No. 102). Plaintiffs support their claims with undisputed evidence of the 
13

conveyance deeds granted by prior landowners to the Railroad for the right of way

between 1900 and 1910, as well as later documentation regarding the creation of a public 

road, street or other pathway adjacent to the Railroad’s right of way in the form of 

resolutions providing notice to the public about the County’s plan to construct the road 

and recommendations that a road be established with damages paid to the abutting 

landowner. Plaintiffs contend that under Oregon law even if their property is bounded by 

a road and not the railroad right of way, so long as a prior landowner granted an easement 

to the railroad and owned the property at the time the public road was created, the 

plaintiffs can claim ownership across the intervening road up to the railroad right of way. 

The government argues in its cross motion that plaintiffs whose property boundary 

is a road, street, or other pathway and not the railroad right of way cannot prove a taking 

based on deeds that show their predecessor deeded property to the Railroad and for the 

road or street. Def.’s Opp. & Cross Mot. for Part. Summ. J. on Adjacency Issues 

(“Loveridge Def.’s Adj. Mot.”) (ECF No. 107). The government argues that under 

Oregon law current landowners who own property bounded by a road, street, or pathway 

own only to the centerline of the road or street and cannot claim any ownership of the 

railroad right of way. 

The following chart summarizes the undisputed evidence: 

Claimant and 

Claim No.

Conveyance 

Deed and 

Date to the 

RR 

Intervening 

Road and 

Documentation

Property Description in 

Modern Deed or Plat 

Describing Property 

Boundary

Bay Air LLC

Claim No. 

47.D

Whitney Co. 

7/84 (5.29.1907)

Idaville Rd. “along the Northerly Right of 

Way boundary of the County 

Road to Idaville . . .” Journal J/Page 
14

250 (10.12.1920)

Stephen C.

and Genene 

A. Grimes

Claim No. 77

Hammond 

Lumber

Foss Rd. The deed describes the property 

as “Parcel 2, Partition Plat 1992-

22, Tillamook County, Oregon.” 

Plat 1992-22 describes the 

boundary as follows: 

“Commencing at a point which is 

. . . on the north right-of-way line 

of Foss-Batterson County Road;

thence along said North right-ofway line ..........”

23/308 

(3.11.1910)

Road SurveyBook B/Pg. 194

(4.8.1908)

Road Book 3/Pg. 

250 (11.4.1908)

Terry and

Michelle Hart

Claim No. 78

Hammond 

Lumber

Foss Rd. “on the North right-of-way line of 

Foss-Batterson

County Road, . . . thence along 

said North Right-of Way 

line........”

23/308 

(3.11.1910)

Road SurveyBook B/Pg. 194

(4.8.1908)

Road Book 3/Pg. 

250 (11.4.1908)

Joseph 

Cadwell

Claim No. 

130

Prescriptive 

Easement (no 

source deed 

identified) & 

Chance 5/449 

(fee)

Highway 101

Road Resolution 

388 (12.1.1926)

“to the North right-of-way line of 

Highway 101, thence 

Northwesterly along the North 

right-of-way line of Highway 

101..........”

Keith Chartier

Claim No. 

134

Hammond 

Lumber 23/308 

(3.11.1910)

Kunz 13/15

Foss Rd. 

(constructed in 

1920)

“true point of beginning of this 

parcel . . . being on the Northerly 

right-of-way line of the County 

Road, . . . along the North rightof-way line of the County 

Road.........”

Road SurveyBook B/Pg. 194

(4.8.1908)

Road Book 3/Pg. 

250 (11.4.1908)

Deborah 

Nitzche

Claim No. 

170

Hammond 

Lumber 23/308 

(3.11.1910)

Foss Rd. “lying North of the Northerly right 

of way of Foss-Batterson County 

Road[.]”

Road SurveyBook B/Pg. 194

(4.8.1908)

Road Book 3/Pg. 

250 (11.4.1908)

Lawrence 

Wood

Claim No. 

201

Hammond 

Lumber 23/308 

(3.11.1910)

Foss Rd. 

Road SurveyBook B/Pg. 194

(4.8.1908)

Road Book 3/Pg. 

250 (11.4.1908)

The deed describes the 

property as “Parcel 1, 

Partition Plat 1992-022 in 

Tillamook, County, 

Oregon.........”

Plat 1992-022 describes the 

property boundary as 

“[c]ommencing at a point
15

which is . . . . . . .on the north

right-of-way line of FossBatterson County Road; thence 

along said North right-of-way

line. . . . . . .”

David P. 

Reber,

Claim No. 

204.B

Whitney Co. 

7/84

Idaville Rd. “Beginning at 3⁄4 inch iron pipe in 

the apparent centerline of County 

Road, . . . thence continuing along 

the apparent centerline of said 

road.......”

(5.29.1907)

Journal J/Page 

250

(10.12.1920)

Birthe 

Schweter

Claim No. 

205

Byrom 5/310 Highway 101 (E. 

Garibaldi Dr.)

Road Resolution 

175, parcel 2

NARA map 23, 

parcel 31

“Beginning at a point . . . 

on the Northerly line of 

the Coast Highway.”

Lori J. & 

Richard K. 

Ruffo Trust

Claim No. 

103.A

Beals 18/41 N. Miller Street

Plat

The deed describes the property as 

“Lot 1 and the North 5 feet of Lot 

2, Block 49, BEALS’ ADDITION 

TO LAKE LYTLE.” The plat for 

Beals’ Addition shows a street 

(Davis Avenue) as the border for 

parcel 103.A.

Carol 

Woodbridge

Claim No. 

202

Beals 18/41 N. Miller Street

Plat

The deed describes the property as 

“Lot 5, Block 49, BEALS’ 

ADDITION TO LAKE LYTLE[.]” 

The plat for Beals’ Addition shows 

a street (Davis Avenue) as the 

border for parcel 202.

Florian Davis

Claim No. 

210

J.F. Carstens 

72/530

Banks-Veronia 

State Trail

J.F. Carstens 

72/5304

“to the Northeasterly 

right-of-way line of 

[Burlington

Northern] Railroad”

Loveridge Pls.’ Adj. Mot. at 2, 4-5 and Loveridge Def.’s Adj. Mot. at 2-3.

 

4 The Carstens deed granted a right of way to the Railroad and a second right of way which 

became the Banks-Veronia State Trail in 1974. See Loveridge Pls.’ Adj. Mot. at 10. 
16

The disputed issues of fact include whether the property interest conveyed to 

create the intervening road or street was a fee interest or easement. The plaintiffs claim 

that they have provided sufficient evidence to presume that an easement was conveyed 

for the establishment of a public road or street under Oregon law. Loveridge Pls.’ Adj. 

Mot. at 6 (citing Lankin v. Terwilliger, 29 P. 268 (Or. 1892)). The government disputes 

whether the evidence relied upon by plaintiffs indicates that conveyance for the 

intervening road was an easement. Loveridge Def.’s Adj. Mot. at 7. As discussed below, 

the court need not address this dispute and assumes without holding that the conveyances 

for these roads or streets was an easement. 

2. Relevant Federal and Oregon Law

“To demonstrate a cognizable property interest in a Trails Act case, a plaintiff 

must establish ownership in land adjacent to the railroad line described in the NITU and 

that ownership in that land can be traced to the railroad company’s acquisition.” 

Anderson v. United States, 147 Fed. Cl. 661, 671 (2020) (citing Brooks v. United States, 

138 Fed. Cl. 371, 377 (2018)). The above-noted plaintiffs can show that a prior owner of 

their land granted a deed to the Railroad for a right of way. However, the deed from the 

plaintiffs’ predecessor to the plaintiffs identifies a road, street or other pathway as the 

boundary of their property.

Under Oregon law, statutory and common law presumptions apply regarding the 

ownership of property underlying a road or street adjacent to a property. Oregon law’s 

centerline presumption provides that the adjacent landowners on either side of the road 

each own the underlying fee to the centerline of the road. See Or. Rev. Stat. § 93.310(4) 
17

(“When a road or stream of water not navigable is the boundary, the rights of the grantor 

to the middle of the road, or the thread of the stream, are included in the conveyance, 

except where the road or bed of the stream is held under another title.”). 

The centerline presumption in Oregon statutory law is consistent with Oregon

common law. See Howe v. Greenleaf, 320 P3d 641, 646 (Or. Ct. App. 2014) (recognizing 

that the statute is a codification of common law). As relevant here, the presumption

applies where a road is dedicated through the property of a single owner by creating 

distinct parcels: “The creation of any dedicated road through the property of a single 

owner has the practical effect of creating distinct parcels, although in common 

ownership, on both sides of the dedicated road.” Id. at 648. In this situation, the 

conveyance of one of the distinct parcels includes only to the the centerline of the road. 

Id. at 648; see also Coussens v. Stevens, 113 P.3d 952, 959-60 (Or. Ct. App. 2005) (citing 

cases).

Oregon law recognizes an exception to the centerline presumption “where the 

dedicated road runs between two tracts of land under different ownership and the road 

was wholly dedicated from only one of the owners’ tracts.” Howe, 320 P.3d at 647 

(emphasis added). In that case, “the entire width of the road transfers with the abutting 

property from which it was wholly dedicated.” Id. (emphasis added); see id. at 648 

(declining to apply this exception because “[a]t the time that Skyland Drive was 

dedicated, the Smiths owned all of the property on both sides of the road and owned the 

entire fee underlying the road” (emphasis added)). 

3. Analysis
18

Here, the plaintiffs argue that so long as they can establish that the prior 

landowner conveyed the entire interest necessary for the road placed between their 

property and the railroad right of way, the court should presume that the current owner 

owns the land under the entire road – not just to the centerline. Therefore, plaintiffs 

argue, they can establish that they own the property adjacent to the railroad right of way, 

a necessary condition for just compensation. Loveridge Pls.’ Adj. Mot. at 3; Loveridge

Pls.’ Adj. Reply at 3-5 (ECF No. 108). The plaintiffs contend that the presumption in 

Oregon law that two parcels are created––one on either side of the roadway when the 

road was created––should not bar their claim if their predecessor owned the entire tract at 

the time the road was established. In support of their position, the plaintiffs cite cases in 

this court applying the law of other states that also involved intervening roadways. Id. at 

5 (citing Haggart v. United States, 108 Fed. Cl. 70 (2012) (applying Washington law) 

and Hardy v. United States, 127 Fed. Cl. 1 (2016) (applying Georgia law)). In both of 

those cases, this court held that where an intervening road was granted by the plaintiffs’ 

predecessors as an easement, the plaintiffs, although not directly adjacent to the railroad 

right of way, were presumed to own the railroad right of way to the centerline. Haggart, 

108 Fed. Cl. at 85; Hardy, 127 Fed. Cl. at 15-16. 

The government responds that the plaintiffs’ reading of Oregon law is 

unsupported. Loveridge Def.’s Adj. Mot. at 7. The government argues that for 11 of the 

parcels with an intervening boundary5the plaintiffs have established only a presumption 

 

5 Bay Air LLC (47.D), Stephen C. and Genene A. Grimes (77), Terry and Michelle Hart (78), 

Joseph Cadwell (130), Keith Chartier (134), Deborah Nitzche (170), Lawrence Wood (201), 
19

that they own to the centerline of the road.6 The government argues that these plaintiffs 

have not established that they own the entire roadway and thus have failed to show that 

their properties are adjacent to the railroad right of way.

According to the government, under Oregon law, if property is acquired for a road 

then two distinct parcels are created, with one parcel on each side of the road owning up 

to road’s centerline. Def.’s Adj. Mot. at 4. The government further contends that, under 

Oregon law, the conveyance of one parcel does not include the conveyance of the other

unless expressly stated. Id. This view is consistent, the government argues, with the 

plaintiffs’ ownership deeds which “explicitly use the intervening roads as boundaries or 

convey only to the centerline of the intervening roads.” Id. at 4-5.

The government argues that the pending case is similar to BHL Properties LLC v. 

United States, 135 Fed. Cl. 222 (2017), which involved Wisconsin law. In BHL 

Properties, the plaintiff sought to show that he owned the entirety of the property 

underlying an intervening road by relying, in part, on the deed of a prior landowner 

conveying the easement for the entire road. Id. at 229. The court found that the prior deed 

 

David P. Reber (204.B), Birthe Schweter (205), Lori J. & Richard K. Ruffo Trust (103.A), and 

Carol Woodbridge (202).

6 The government contends that the tax documents provided regarding the Florian Davis (210) 

parcel and the intervening state trail indicate that the landowner does not own fee title of land 

underlying the state trail easement and thus cannot establish a taking claim. Def.’s Adj. Mot. at 

8. The plaintiffs respond that whether the easement is under a separate tax parcel is “nonresponsive and irrelevant” under their application of the centerline presumption to their 

predecessor’s land. See Loveridge Pls’ Adj. Reply at 3 n.9. The court agrees with the government 

that the tax documents are relevant in determining the bounds of plaintiffs’ current property and 

prove that plaintiffs have not established ownership of any land directly adjacent to the railway 

for this parcel. 
20

was “sufficient to establish that [the prior owner] once owned the land under [the road] in 

fee simple” but that “nothing in the record show[ed] that [the current plaintiff] is in the 

chain of title as successor-in-interest to [the prior landowner] with respect to the land 

underlying [the road.]” Id. Even if the centerline presumption was applied, the court 

concluded that the plaintiff could claim ownership to the center of the intervening road

only. Id. The court concluded that it did not matter that a prior individual owned the 

entire parcel under the road adjacent to the railroad right of way without chain of title 

linking the plaintiff to that predecessor. Id. The court explained that without “evidence of 

conveyances that link [the prior owner’s] retained interest” in the land underlying the 

road to the plaintiff, “it is thus entirely possible that someone other than [the plaintiff] 

(such as, for example, a neighbor whose land also abuts [the road] either to the north or 

the south) is the successor-in-interest . . . as to the land [the plaintiff] claims he owns.” Id.

Here, as well, the government argues, it is entirely possible that a neighbor whose land 

also abuts the intervening road owns the land at issue or that ownership was reserved by a 

prior landowner. 

After considering the applicable Oregon law, the court finds that the aboveidentified plaintiffs have established only that they own to the centerline of the road, 

street or pathway on the boundary of their property and not to the railroad right of way. 

To begin, the court rejects the plaintiffs’ contention that the centerline presumption 

should be applied “at the time the railroad’s right-of-way was constructed,” regardless of 

the establishment of the intervening roadway. Loveridge Pls.’ Adj. Reply at 4. A Trails 

Act taking occurs “when a railroad right-of-way is converted to interim trail use” and 
21

state law reversionary property interests “that would otherwise vest in the adjacent 

landowners are blocked from so vesting.” Caldwell, 391 F.3d at 1233. Therefore, only the 

ownership interests of the plaintiffs at the time the NITU was issued is relevant to 

deciding liability.

In considering the ownership interests of the plaintiffs at the time the NITU was 

issued, and assuming but not deciding that the intervening roads, streets, or other 

pathways granted by the prior landowners are easements, the court finds that plaintiffs 

have failed to show that they own more than to the centerline of the intervening road, 

street or pathway identified as a boundary in their deeds. As discussed above, Oregon law 

presumes that where a road is built on a single grantor’s land, two parcels are created 

with one parcel on each side of the road’s centerline. See Howe, 320 P.3d at 648. Only 

where there are two owners, where each owns a parcel on either side of the road and 

where only one provides the land for the road, does Oregon law presume that the party 

that provided the land for the entire road owns all of the property underlying the road. Id.

at 647. Here, plaintiffs presented no evidence of two owners at the time the roads were 

created. Without this evidence, it must be presumed that the parcel closest to the railroad 

right of way is now owned by someone other than the plaintiffs. Id. (“[T]itle to half the 

road continues to presume to pass with the conveyance of an abutting property whether 

the conveyance is made while the road is in existence or after the abutting road is 

vacated.”); Coussens, 113 P.3d at 959-60 (concluding that where the plat shows a road as 

a western boundary, the grantor reserved for himself the land underlying the western half 

of the road and land west of the road). 
22

To defeat to the government’s motion for summary judgment, these plaintiffs 

needed to do more than produce documents regarding the creation of a public road on a 

prior landowner’s property. Contrary to plaintiffs’ contentions, the court cannot presume 

that the property underlying the entire road belongs to them because it once belonged to a 

prior landowner where the modern deeds show that the property conveyed to the 

plaintiffs is bounded by the intervening road. Plaintiffs had to produce evidence to show 

that the land on the other side of the centerline of the road and directly adjacent to the 

railroad right of way was also conveyed to them. See BHL Props., 135 Fed. Cl. at 229.

Plaintiffs have failed to do so for any of the subject deeds, which show only that their 

property is bounded by a road and do not expressly state that the land underlying the road 

was conveyed to them. For this reason, the court cannot find that the plaintiffs’ own 

property adjacent to the railroad right of way or to the centerline of the railroad right of 

way. Plaintiffs’ motion for partial summary judgment on this issue is denied and the 

government’s motion for partial summary judgment is granted.

C. Properties Where a Source Deed for the Railroad’s Right of Way Is 

Not Before the Court

The court now turns to the five Albright parcels and ten Loveridge parcels where 

the parties have not identified an instrument of conveyance of a right of way to the 

Railroad. As discussed below, the court finds that under Oregon law, where the only 

available evidence indicates that the property was acquired by condemnation, adverse 

possession, franchise, or vacation, the Railroad is presumed to only have acquired an 

easement for Railroad purposes, but where the only available evidence indicates that the 
23

Railroad possessed its right of way in fee, the Railroad is presumed to have acquired its 

interest in fee.

1. Undisputed Facts

At issue in Albright are five parcels belonging to James A. Smejkal, Bel Cochran, 

LLC, Cochran 2 LLC, Three Bridges, LLC, and Oregon Coast Hospitality Investments, 

LLC, for which the parties have not identified an instrument of conveyance of a right of 

way to the Railroad.

7 Albright Mot. for Partial Summ. J. (ECF No. 118) (“Albright Pls.’ 

Mot.”). These plaintiffs have instead provided the court with (a) the bounds of the 

plaintiffs’ modern deeds, (b) tax records showing that the plaintiff owned the land on July 

26, 2016 (the date the NITU was issued), and (c) a copy of any maps kept by the National 

Archives and Records Administration prepared by the Interstate Commerce Commission 

(“ICC”), referred to as “Val Maps,” noting the basis for the Railroad’s property interest. 

The Val Maps state “Registrar of Title” in connection to the James A. Smejkal, Bel 

Cochran LLC, and Cochran 2 LLC parcels and “No Record” in connection to the Three 

Bridges, LLC and Oregon Coast Hospitality Investments LLC parcel. 

In addition, before the court is the Washington County Department of Assessment 

and Taxation Certificate of Withdrawal dated June 28, 1972, which describes the 

Railroad as the owner “in fee simple” of portions of its corridor adjacent to the James A. 

Smejkal, Bel Cochran, LLC, and Cochran 2 LLC parcels. See Albright Def.’s Resp. in 

 

7 The government now concedes that the Howell Tree Farm’s Parcel 3N400C005700 was 

acquired through a condemnation proceeding which conveyed an easement limited in scope to 

railroad purposes. See Albright J. Stipulation Regarding Title Matter (Dec. 10, 2019) (ECF No. 

134). 
24

Opp. to Pls.’ Mot. (“Albright Def.’s Resp.) at 3 (ECF No. 126). The Certificate of 

Withdrawal states “[a]s the owner in fee simple of the . . . real property [described in the 

certificate] . . . The Pacific Railway and Navigation Company . . . has filed application 

for the withdrawal of title to said real property from the registry system, and for restoring 

or changing the same back to the recording system.” Id. at 3 (citing ECF No. 24-11). 

Ten parcels are at issue in Loveridge. Loveridge Mot. for Partial Summ. J. (ECF 

No. 91) (“Loveridge Pls.’ Mot.”). These parcels belong to Daniel Yeoman (39.A-C), Old 

Mill Investment LLC (43.D), Carol H. Trustee (59.A), Leonard C. & Kathleen A. Parker 

(101), Harvey Strong (112.B), John & Margie Anderson Living Trust (121), Douglas F. 

Brown (126), and Joseph Cadwell (130). The plaintiffs have prepared a map for each 

parcel from an overlay of the applicable Val Map with the county’s parcel report. Id. at 2. 

The Val Maps state “No Record at Hand” for the Old Mill Investment LLC (43.D), 

Harvey Strong (112.B), Douglas F. Brown (126), and Joseph Cadwell (130) parcels. Id.

at 3-4. The Val Maps reference a “Condemnation” proceeding in connection to the Daniel 

Yeoman (39.A-C), Leonard C. & Kathleen A. Parker (101), and John & Margie 

Anderson Living Trust (121) parcels. Id. at 7. The Val Map also states “Vacation” for a 

portion of the Leonard C. & Kathleen A. Parker (101) parcel. Id. at 9. Finally, the Val 

Map states “Franchise” for portions of the Carol H. Trustee (59.A) parcel. Id. The 

plaintiffs subpoenaed the POTB to request all service conveyance instruments listed on 

the Val Maps, and the POTB provided a list of all the conveyance instruments it had 

related to the railroad line. Loveridge Pls.’ Mot. at 6. POTB’s list did not include any

conveyance instruments for the parcels at issue. Id. In addition, the plaintiffs provide a 
25

letter from the Fidelity National Title Insurance Company indicating that a search was 

conducted regarding the three Loveridge condemnation claims, and no documents could 

be provided after a “reasonably diligent search of available records.” Id. at Ex. I (ECF 

No. 91-9). 

2. Relevant Federal and Oregon Law

One of the “determinative issues for takings liability” is “who owns the strip of land 

involved, specifically, whether the railroad acquired only an easement or obtained a fee 

simple estate.” Ellamae Phillips Co. v. United States, 564 F.3d 1367, 1373 (Fed. Cir. 

2009). The court has already determined in these cases whether the Railroad acquired an 

easement or fee for properties where there is a source deed conveying the right of way to 

the Railroad. See Loveridge, 139 Fed. Cl. at 127. The liability issue for the properties 

described in this section of this opinion is whether the Railroad is presumed to have 

acquired no more than an easement under Oregon law where there is no source deed and

the Val Maps for the parcels at issue reference condemnations, no record, franchise, 

vacation, or a registrar of title.

Oregon courts have recognized that the “general rule regarding the interest taken 

in a right-of-way condemnation proceeding by a railroad is that, unless otherwise 

expressly provided by statute or in the instrument of taking, only an easement is 

acquired.” Egaas v. Columbia Cty., 673 P.2d 1372, 1375 (Or. Ct. App. 1983) (citing 

Cappelli v. Justice, 496 P.2d 209 (Or. 1976) and 3 Nichols, Law of Eminent Domain 9-6 

to 9-10, § 9.2 (3d ed rev. 1975)). In addition, where Oregon statutes governing railroad 

right of way condemnations allowed railroad companies to take “whatever estate was 
26

necessary to accomplish the railroad’s purpose,” the Oregon (and other) courts have

determined what the railroad acquired at a condemnation proceeding in light of what was 

necessary for the railroad’s purpose, based on the language of the condemnation 

judgment. Egaas, 673 P.2d at 1375.

When a railroad acquires a right of way through a franchise agreement or the 

vacation of a public road, the railroad appropriates its property interest from a public 

road. This arises from the local government’s power to grant “exclusive privileges or 

franchises” over public rights of way. Parkhurst v. City of Salem, 32 P. 304, 304-05 (Or. 

1893); see also McQuaid v. Portland & V. Ry. Co., 22 P. 899, 902 (Or. 1889) (explaining 

that a governmental body is the owner of the “franchise” in a public right of way).8In 

addition, when the local government acquires property for a public road, Oregon courts 

presume that the government acquired only an easement. Lankin v. Terwilliger, 29 P. 

268, 269 (Or. 1892) (“By the location of [a] county road over the lands of [private 

property owners], the public [acquires] no more than a right of way as an easement or 

servitude, with the powers and privileges incident thereto.”). 

3. Analysis

 

8 The authority of a railroad to appropriate public roads is set forth by Or. Rev. Stat. 

§ 772.105(1):

When it is necessary or convenient in the location of any railway to appropriate any part 

of any public road, street, alley or public grounds not within the corporate limits of a 

municipal corporation, the county court of the county wherein such road, street, alley or 

public grounds is located, may agree with the corporation constructing the road, upon the 

extent, terms and conditions upon which the same may be appropriated or used, and 

occupied by such corporation. If the parties are unable to agree, the corporation may 

appropriate so much thereof as is necessary and convenient in the location and 

construction of the road.
27

The plaintiffs in Albright and Loveridge have moved for partial summary 

judgment regarding the fifteen parcels for which no instrument of transfer from the 

landowner to the Railroad has been located. Instead, the plaintiffs rely on secondary 

evidence in the form of Val Maps prepared by the ICC. The plaintiffs argue that pursuant 

to these Val Maps, where (1) the Railroad acquired its property through “condemnation,”

(2) where there is “no record” of an instrument of transfer, (3) where the Railroad 

acquired its property through “vacation” or “franchise”, and (4) where the Railroad’s 

conveyance is held in the “Registrar of Title,” Oregon law presumes that the Railroad 

acquired at most an easement. Albright Pls.’ Mot. at 4-5; Loveridge Pls.’ Mot. at 4, 7, 9.

The government has moved for partial summary judgment for all of these parcels 

claiming that the Val Maps are insufficient to establish the Railroad’s interest in its right 

of way, and that plaintiffs have misconstrued the presumptions applicable under Oregon 

law. Albright Def.’s Resp. at 6-7, Loveridge Def.’s Resp. at 2-3. In addition, for the three 

parcels in Albright where the government has found the Railroad’s 1972 Certificate of 

Withdrawal, the government argues the evidence establishes that the Railroad obtained a 

fee interest and thus plaintiffs cannot establish liability. Albright Def.’s Resp. at 2-4.

Before turning to the plaintiffs’ arguments, the court must address the 

government’s threshold contention that Val Maps are not by themselves sufficient to 

establish the scope of the Railroad’s interest and thus government liability. See Albright

Def.’s Resp. at 7 (citing Amaliksen v. United States, 55 Fed. Cl. 167, 175 (2003)). While 

the court agrees that it may be inappropriate to rely on Val Maps to determine ownership 

where the language in an available source deed is clear, Amaliksen, 55 Fed. Cl. at 172, 
28

this court has relied on Val Maps to determine takings liability where “neither party has 

provided any evidence of a deed.” See, e.g., Mills v. United States, 147 Fed. Cl. 339, 348 

(2020). In addition, the plaintiffs have sought additional documentary evidence by 

issuing a subpoena to the POTB and having the Fidelity National Title Insurance 

Company conduct a search regarding the condemnation claims. The “[p]laintiffs have 

done what they can, and it is thus inappropriate to speculate, as defendant does, that the 

railroads might have obtained their interest by fee.” Id. As such, the court may rely on 

Val Maps as the only available evidence of the Railroad’s property interest and thus the 

government’s potential liability.

Having agreed to accept the Val Maps as evidence of the Railroad’s property 

interest, the court turns first to the Daniel Yeoman (39.A-C), Leonard C. & Kathleen A. 

Parker (101), and John & Margie Anderson Living Trust (121) parcels for which the Val 

Maps reference condemnation. Relying on Egaas, 673 P.3d at 1374, the plaintiffs argue 

that the Railroad is presumed to have obtained only an easement in condemnation 

proceeding where there is “no evidence to suggest the railroad” acquired or needed more 

than an easement. Loveridge Pls.’ Mot. at 7. The government argues that the plaintiffs’ 

reliance on Egaas is misplaced because that case involved the interpretation of an actual

condemnation judgment and thus the holding does not apply to the current case. See 

Loveridge Def.’s Resp. at 4-5. The government contends that where there is no 

condemnation judgment in evidence, there are no applicable presumptions regarding the 

Railroad’s ownership interest and the plaintiffs have failed to meet their burden of proof. 

Id.
29

The court agrees with the plaintiffs that Egaas articulates the “general rule” in 

Oregon that a railroad acquires only an easement in a condemnation proceeding “unless 

otherwise expressly provided by statute or in the instrument of taking.” 673 P.2d at 1375. 

The Egaas court recognized that this general rule is consistent with Oregon statutes 

which “authorized a railroad to take whatever interest, fee or easement, in the 

appropriated land that was necessary to accomplish its purposes.” Id. (emphasis added).

9

The Egaas court then applied this presumption to interpret ambiguous language in a 

condemnation judgment. Id. Eventually, the Oregon court concluded that an easement 

was acquired because “[a]n easement was all that was necessary for railroad purposes in 

this instance.” Id.

The court finds that the reasoning in Egaas is applicable to this case. Although 

there is no record of the condemnation judgment before the court for the properties

identified as having been “condemned” on the Val Map, the court can presume absent 

any evidence to the contrary that the Railroad acquired only that which was necessary for 

its railroad purpose, namely an easement. See id. (“[T]he condemnation statutes limit the 

nature of the estate taken to that necessary to accomplish railroad purposes.”). The court 

thus holds that the Railroad is presumed to have acquired at most an easement through 

condemnation in connection to the Daniel Yeoman (39.A-C), Leonard C. & Kathleen A. 

Parker (101), and John & Margie Anderson Living Trust (121) parcels. The plaintiffs’ 

 

9 The court in Egaas explained that this limitation on a railroad company did not necessarily 

apply in cases of a voluntary conveyance. 673 P.2d at 1375. Where there is a voluntary 

conveyance, the extent of the property interest is based on the intent of the parties. Id.
30

motion for partial summary judgment regarding these parcels is granted and the 

government’s motion is denied. 

The court next turns to the Three Bridges, LLC, Oregon Coast Hospitality LLC, 

Old Mill Investment LLC (43.D), Strong Harvey (112.B), Douglas F. Brown (126), and 

Joseph Cadwell (130) parcels where the Val Map indicates that “no record” is available 

regarding a conveyance to the Railroad. Here, the plaintiffs argue if no evidence of a 

conveyance instrument exists, the court should presume that the Railroad obtained a 

prescriptive easement over the right of way. Plaintiffs argue that this result is consistent 

with the presumption applied in other states,10 and is a proper extension of the 

presumptions applied by Oregon courts regarding other rights of way.

11 See Loveridge 

Pls.’ Mot. at 4; Albright Pls.’ Mot. at 10-11. The government responds that because no 

Oregon case has addressed the rights of a railroad where there is no source deed, the 

court cannot presume the Railroad obtained at most an easement. See Loveridge Def.’s 

Resp. at 3. As such, the government argues that even if there is no deed, plaintiffs have 

failed to identify sufficient evidence to meet their burden of proof. Id.

 

10 In other jurisdictions, a right of way obtained by prescriptive use of land for railroad purposes 

has been held to provide only an easement. See Schulenberg v. United States, 137 Fed. Cl. 79, 98 

(2018) (railroad obtained prescriptive easement where parties could not locate any original 

source deed under Indiana law); Dana R. Hodges Trust v. United States, 101 Fed. Cl. 549, 560 

(2011) (finding that where no documents existed, the railroad could not obtain any interest 

greater than a prescriptive easement under Michigan law); Ybanez v. United States, 98 Fed. Cl. 

659, 666 (2011) (applying Texas law to conclude that “[a] railroad that uses a strip of land for 

railroad operations only, as if it had condemned the land for railway use, cannot acquire more 

than an easement for railroad purposes”).

11 As discussed above, where the public acquires a right of way for a road, it is presumed that 

only an easement was acquired. See Lankin, 29 P. at 269.
31

Having carefully considered the parties’ arguments, the court concludes that the 

Railroad is presumed to have only acquired an easement where the Railroad acquired its 

right of way through prescription. The court finds it appropriate to extend the statutory 

limitations relied on in Egaas, regarding the condemnation of railroad right of ways, to 

circumstances where a railroad acquires its right of way through prescription. See 673 

P.2d at 1375. To hold otherwise would mean that a railroad company could acquire title 

through prescription where it could not through a condemnation proceeding. Moreover, 

as the plaintiffs argue, limiting the interest conveyed to an easement is consistent with 

Oregon law applicable to other right of ways. See Lankin, 29 P. at 269. Here, where the 

available evidence in the form of Val Maps indicates that there was no record of a 

conveyance to the Railroad, the plaintiffs have presented sufficient evidence through the 

Val Map to rely on the Egaas presumption in connection the Three Bridges, LLC, 

Oregon Coast Hospitality LLC, Old Mill Investment LLC (43.D), Strong Harvey (112.B), 

Douglas F. Brown (126), and Joseph Cadwell (130) parcels. The plaintiffs’ motion for 

partial summary judgment for these parcels is granted, and the government’s motion is 

denied. 

The court now considers the Kathleen A. Parker (101) and Carol H. Trustee (59.A) 

parcels, where the Val Maps state that the Railroad acquired its property rights by 

“Franchise” or “Vacation.” The plaintiffs argue that “the purpose of a franchise 

agreement or vacation was to allow the railroad to construct its line over what were then 

public streets or county roads.” Loveridge Pls.’ Mot. at 9. These streets and roads, the 

plaintiffs argue, were held as easements and thus the property acquired through the 
32

vacation of a public street or road is also only an easement. Id. The government argues 

that while the Val Maps indicate that the Railroad acquired its rights by vacation or 

franchise agreement, the plaintiffs have not met their burden because they have not 

provided copies of the applicable conveyance documents for those segments. Loveridge

Def.’s Resp. at 6. 

As discussed above, the Val Maps constitute the available evidence and the 

plaintiffs are entitled to rely on them to demonstrate what property interest the Railroad 

acquired. In Oregon, where a railroad acquires its right of way through franchise or 

vacation, the railroad is given a right of way over a public road. See Parkhurst, 32 P. at 

304-05; McQuaid, 22 P. at 902. Because the road holds only an easement under Oregon 

law, see Lankin, 29 P. at 269, it is logical to presume that the Railroad acquired at most 

an easement to operate over the road. As such, the Loveridge plaintiffs’ motion for partial 

summary judgment in connection to the parcels for Kathleen A. Parker (101) and Carol 

H. Trustee (59.A) is granted, and the government’s motion is denied. 

Finally, the court turns to the motions regarding the James A. Smejkal, Bel 

Cochran LLC, and Cochran 2 LLC parcels for which the Val Maps state that the Railroad 

obtained its right of way through a “Registrar of Title” and for which the government has 

provided a Certificate of Withdrawal from June 28, 1972. 

The government argues that the Val Maps reference to “Registrar of Titles” means 

a “certificate showing title to the land was registered with the County’s Registrar of 
33

Deeds through the Torrens system.” Albright Def.’s Resp. at 2.12 In addition, the 

government references the Certificate of Withdrawal from June 28, 1972, which states 

“[a]s the owner in fee simple of the . . . real property [described in the certificate] . . . The 

Pacific Railway and Navigation Company . . . has filed application for the withdrawal of 

title to said real property from the registry system, and for restoring or changing the same 

back to the recording system.” Id. at 3 (citing ECF No. 24-11). Thus, the government 

argues that there is evidence of a “recorded instrument that conclusively shows” that the 

Railroad owed the property in fee and plaintiffs claim to ownership of the underlying 

Railroad right of way fails as a matter of law. Id. at 3-4. 

The plaintiffs concede the Railroad’s Certificate of Withdrawal from the registry 

system indicates that the Railroad held “some interest in the land.” Albright Pls.’ Reply

at 6 (ECF No. 128). Plaintiffs respond that the Certificate of Withdrawal is not 

“conclusive evidence” that the Railroad owned a fee estate interest and without such 

conclusive evidence it is presumed that the Railroad obtained an easement. Id. In 

addition, the plaintiffs argue that because their title company could not find a deed to the 

Railroad immediately preceding or following the Certificate of Withdrawal, further 

factual development is warranted. Id. at 6 n.1. 

In a Trails Act case, “[t]o be entitled to compensation, a plaintiff must demonstrate 

that she or he is the owner of the burdened estate . . . .” BHL Props., 135 Fed. Cl. at 228. 

 

12 In Oregon, the Torrens system, a system of land title registration, was established by statute 

and was in effect from 1901 until the early 1970s. Albright Def.’s Resp. at 2-3 (citing Or. Rev. 

Stat. §§ 94.0054-99.990, repealed by Or. Laws 1971, c. 478, § 1.).
34

Fact discovery in this case closed on August 7, 2017, and the evidence the government 

relies on was obtained prior to the close of discovery. The plaintiffs had an opportunity 

but have failed to produce any evidence to show that there is a disputed issue of material 

fact regarding the Railroad’s fee ownership. The court therefore agrees with the 

government that the plaintiffs have failed to demonstrate ownership of the burdened land

adjacent to the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels. While 

not conclusive, the Certificate of Withdrawal and the Val Maps are the only available 

evidence, and this evidence indicates that the Railroad owned the land in fee. No 

competing evidence has been presented to show plaintiffs’ ownership in the underlying 

right of way. While plaintiffs suggest there could be more evidence, “mere allegations of 

a genuine issue of material fact without supporting evidence will not prevent entry of 

summary judgment.” Republic Sav. Bank, F.S.B. v. United States, 584 F.3d 1369, 1374 

(Fed. Cir. 2009); see Schlumberger Tech. Corp. v. United States, 845 F.3d 1158, 1166 

(Fed. Cir. 2017) (holding that “speculation cannot prevent the entry of summary 

judgment”). The plaintiffs have failed to demonstrate ownership of the right of way in 

connection to the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels as a 

matter of law. As such, the government’s motion for partial summary judgment regarding 

the James A. Smejkal, Bel Cochran LLC, and Cochran 2 LLC parcels is granted and the 

plaintiffs’ motion for partial summary judgment is denied. 

CONCLUSION

For the reasons stated above, the plaintiffs’ and the government’s motions for 

partial summary judgment are GRANTED-IN-PART and DENIED-IN-PART. 
35

Specifically, the government’s motions for partial summary judgment regarding the 

appropriate measure of just compensation is DENIED. The plaintiffs’ partial motion for 

summary judgment on applying the centerline presumption to the railway where there is 

an intervening road, street, or trail is DENIED and the government’s cross motion that 

the plaintiffs are only presumed to own up to half of the intervening road, street, or trail is 

GRANTED. The plaintiffs’ motions for partial summary judgment that the Railroad is 

presumed to have acquired no more than an easement in connection to the Three Bridges, 

LLC, Oregon Coast Hospitality LLC, Old Mill Investment LLC (43.D), Strong Harvey 

(112.B), Douglas F. Brown (126), Joseph Cadwell (130), Kathleen A. Parker (101), and 

Carold H. Trustee (59.A) parcels are GRANTED. Finally, the government’s motion for 

partial summary judgment regarding the James A. Smejkal, Bel Cochran LLC, and 

Cochran 2 LLC parcels is GRANTED and the plaintiffs’ motion for partial summary 

judgment is DENIED. 

The plaintiffs filed additional motions for partial summary judgment on June 19, 

2020. Albright, ECF No. 52, Loveridge, ECF No. 115, Stimson Lumber, ECF No. 33. The 

government will file its response briefs to these motions by Monday, July 13, 2020. 

IT IS SO ORDERED.

s/Nancy B. Firestone 

NANCY B. FIRESTONE

Senior Judge