# In the United States Court of Federal Claims No. 18

- 342L Filed: December 3 , 2019 NOT FOR PUBLICATION

ISA BRITTAIN , et al .,

Plaintiffs,

v. THE UNITED STATES,

Defendant. )

) ) ) ) ) ) ) ) ) ) Rails

- to

- Trails; Fifth Amendment Takings; National Trails System Act; Georgia Property Law; Fee Simple Determinable; Easement; Condemnation; Notice of Interim Trail Use; Summary Judgment; RCFC 56

.

Steven M. Wald , Counsel of Record, Michael J. Smith , Of Counsel, Stewart, Wald & McCulley LLC, Saint Louis, MO; Thomas S. Stewart , Elizabeth G. McCulley , Of Counsel, Stewart, Wald & McCulley LLC, Kansas City, MO, for plaintiffs. Elizabeth McGurk , Counsel of Record, Jean E. Williams , Deputy Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice, Washington, DC, for defendant.
MEMORANDUM OPINION AND ORDER GRIGGSBY, Judge
I. INTRODUCTION
Plaintiffs are the landowners of certain property that is a djacent to a railroad line located in Fulton County, Georgia (the “Railroad Line ”)

. In this rails

- to

- trails action brought pursuant to the National Trails Systems Act, 16 U.S.C. §§ 1241

- 51 , p laintiffs allege a Fifth Amendment takings of their reversionary interest in certain property underlying the R ailroad L ine , as a result of the Surface Transportation Board’s (“STB”) issuance of a Notice of Interim Trail Use on February 6, 2018. 2d Am. Compl

. at ¶¶ 27

- 30. The parties have filed cross
- motion s for partial summary judgment on liability , standing and title issues with re gards to three of the parcels at issue in this dispute , pursuant to Rule 56 of the Rules of the United States Court of Federal Claims (“RCFC”). T he government has also moved for partial summary judgment on standing and title issues with respect to six other2

disputed parcels , pursuant to R CFC 56. In addition, p laintiffs have filed a motion for oral argument on the p arties’ cross

- motions

. See generally Pl. Mot

. for Oral Arg.; Def. Resp. for Oral Arg

. For the reasons set forth below, the Court : (1) DENIES plaintiffs’ motion for partial summary judgment on liability ; (2) GRANTS the government’s cross
- motion for partial summary judgment on standing and title issues ; a nd (3) DENIES plaintiffs’ motion for oral argument. II. FACTUAL AND PROCEDURAL BACKGROUND 1
A. Factual Background This “rails

- to

- trails” case involv es an alleged takings of 23 parcels that are l ocated adjacent to the Railroad Line in Fulton County, Georgia

. 2d Am. Compl. at ¶ ¶ 6

- 26; see also Lebow Land Co. v. United States , No. 18

- 792 L. O n December 20, 2017 , CSX Transportation, Inc. (“CSXT”) filed a notice of exemption to abandon the Rail road L ine with the STB

. Pl. Ex. A at PLF00000 2. The STB issued a Notice of Interim Trail Use on February 6, 2018. 2d Am. Compl. at ¶ 27.

1. The National Trails System Act As background, the Interstate Commerce Act of 1887, Pub. L. No. 95

- 473, 92 Stat. 1337 (recodified at 49 U.S.C. §§ 1101, 1121) and the Transportation Act of 1920, ch. 91, 41 Stat. 477

- 78 (recodified at 49 U.S.C. § 10903) , grant the Interstate Commerce Commi ssion, now the STB, exclusive authority over the construction, operation and abandonment of the Nation’s rail lines. See Chicago & N.W. Transp. Co. v. Kalo Brick & Tile Co. , 450 U.S. 311, 321 (1981). In order for a railroad company to terminate rail serv ice, the railroad company must obtain the consent of the STB. See Barclay v. United States , 443 F.3d 1368, 1371 (Fed. Cir. 2006), cert. denied , 549 U.S. 1209 (2007). To obtain such consent, the railroad company may apply for permission to discontinue ser vice, seek permission to terminate through abandonment proceedings, or file a

1 The facts recounted in this Memorandum Opinion and Order are taken from plaintiffs’ second amended complaint (“ 2nd Am. Compl.”); plaintiffs’ motion for partial summary judgment on liability (“Pl. Mot.”) , the memorandum in support there of (“Pl. M em .”) and the exhibits attached thereto (“Pl. Ex.”) ; the government’s response and opposition to plaintiffs’ motion for partial summary judgment on liability and cross
- motion for partial summary judgment on standing and title issues (“Def. Mot .”) and the exhibits attached thereto (“Def. Ex.”) . Except where otherwise noted, the facts recited here i n are undisputed.3

request for an exemption from abandonment proceedings. See 49 U.S.C. § 10903(d)(1)

- (2); Barclay , 443 F.3d at 1371. Once the STB consents, the rail line is removed from the nati onal transportation system and the STB’s jurisdiction comes to an end. Barclay , 443 F.3d at 1371

. In 1983, Congress amended the National Trails System Act to include an alternative process for railroad companies to abandon rail lines. 16 U.S.C. § 1247(d ); Preseault v. Interstate Commerce Comm’n , 494 U.S. 1, 5

- 6 (1990) (“ Preseault I ”); Caldwell v. United States , 391 F.3d 1226, 1229 (2004) (“ Caldwell II ”). This process, known as “railbanking,” preserves corridors or rights

- of

- way not in use for train serv ice for possible future use as recreational trails. Caldwell II , 391 F.3d at 1229

. In order for a rail line to be “railbanked,” the railroad company must first file an abandonment application under 49 U.S.C. § 10903, or a notice of exemption from that p rocess under 49 U.S.C. § 10502. See 49 U.S.C. §§ 10502 and 10903. Once an abandonment application, or request for an exemption, is filed, a party interested in railbanking may request the issuance of a Certificate of Interim Trail Use (“CITU”) (in abando nment application proceedings) or a Notice of Interim Trail Use (“NITU”) (in abandonment exemption proceedings). 49 C.F.R. § 1152.29(c)

- (d). If the railroad company indicates that it is willing to negotiate a railbanking and interim trail use agreement, the STB issues the CITU or NITU. Id. The issuance of the CITU or NITU preserves the STB’s jurisdiction over the rail line and allows the railroad company to discontinue operations and remove track and equipment , while the parties negotiate a railbanking and interim trail use agreement. Id. ; Macy Elevator, Inc. v. United States , 97 Fed. Cl. 708, 711

- 12 (2011). The NITU or CITU affords the railroad company 180 days in which to negotiate a railbanking and interim trail use agreement with the third party. 49 C.F.R. § 1152.29(c)(1), (d)(1); Caldwell II , 391 F.3d at 1230. If an agreement is reached, the NITU or CITU automatically authorizes the interim trail use. If the STB takes no further action, the trail sponsor then may assume management of the right

- of

- way, subject only to the right of a railroad to reassert control of the property for restoration of rail service. Caldwell v. United States , 57 Fed. Cl. 193, 195 (2003), aff’d , 391 F.3d 1226 (Fed. Cir. 2004) (“ Caldwell I ”); see also 16 U.S.C. § 1247(d); 49 C.F.R. § 1152.29(d)(2). If no agreement is reached, the railroad company may proceed with the abandonment process. 49 C.F.R. § 1152.29(d)(1), (e)(2).4 2. The Rail road Line
The R ailroad L ine at issue in this case is a 4.4

- mile

- long se gment of rail corridor that extends between milepost XXC 0.0 and XXC 4.4 in Fulton County, Georgia. Pl. Ex. A at PLF000003 ; Def. Ex. A at STB_000038

. CSXT has operated the Railro a d L ine since approximately June 30, 1986, when the Atlanta and West Point R ail r oad Company merged into the Seaboard System R ailroad, Inc. (now called CSXT). Def. Ex. G at US_ 000064 ; see also Def. Mot. at 8.
CSXT is the successor
- in

- interest to the Atlanta Beltline Company (“AB C ” ) , which originally acquired a property interest in the Rail road Line via two condemnation proceedings

. Pl. Ex. G at PLF000060 ; Def. Ex. B at NARA_000032 (Parcel 26); Def. Ex. H at 1 (Parcel 4); see also Pl. Ex. H

- 1 at PLF000368

- 375 ; Pl. Ex. H

- 2 at PLF000310

- 317

. O n January 4, 1900, AB C acquir ed via condemnation a railroad right

- of

- way north of the property now owned by plaintiff Soheila Sahebdivani and south of the property now owned by plaintiff Lebow Land Co mpany , LLC . Pl. Ex. G at PLF000052 ; Def. Ex. H at 1 (Parcel 4) ; see also Pl. Ex. H

- 1 at PLF000369

- 371

. Thereafter, on January 8, 1900 , AB C acquired via condemnation a property interest in the port ion of the Railroad Line located adjacent to land now owned by plaintiff Anderson B. Burch . Pl. Ex. G at PLF000060 ; Def. Ex. B at NARA_000032 (Parcel 26) ; see also Pl. Ex. H

- 2 at PLF000310

. The parties agree that Section 4683 of the 1895 version of the Civil Code of the State of Georgia was in effect at the time that AB C acquired the Railroad Line via condemnation. Pl. Mem. at 9

- 1 0; Def. Rep ly at 1. This statute provides that: Upon the payment by the corporation or person seeking to condemn of the amount of the award and final judgment on appeal, such corporation or person shall become vested with such interest in the property tak en as may be necessary to enable the corporation or person taking to exercise their franchise or conduct their business; and whenever the corporation or person shall cease using the property taken for the purpose of conducting their business, said property shall revert to the person from whom taken, his heirs or assigns.
G A

. C IV

. C ODE § 4683 (1895)

. After AB C acquired its interest in the Railroad Line via condemnation , ABC transferred its interest in the Railroad Line to the Atlanta and West Point Rail r oad Company on September5

8, 1914 . Def. Ex. E at US_000021 ; Pl. Ex. G at PLF000046

. On June 30, 1986, the Atlanta and West Point Rail r oad Company merged into Seaboard System Railroad, Inc. Def. Ex. G at US_000064 . Seaboard System Railroad, Inc. changed its name to CSX Transportation, Inc. o n July 1, 1986

. Id

. On March 8, 2018, CSXT transferred its interest in the Railroad Line to Atlanta Beltline , Inc. (“ABI”) through a quitclaim deed. Def. Ex. K at US_000088

.

3. The Disputed Parcels 2 The parties have filed cross

- motions for partial summary judgment on liability, standing and title issues with regards to three parcels: Parcel Number 14002200080767/Valuation Parcel Number 4/26 (the “Burch Parcel”); Parcel Number 14005500130273/Valuation Parcel Number 3/4 (the “Sahebdivani Parcel”); and Parcel Number 14005500110085/Valuation Parcel Number 3/4 (the “Lebow Parcel”). Pl. Mem. at 5 , 7 ; Def. Mot. at 11

- 16. The government has also moved for partial summary judgment on standing and title issu es with respect to six additional parcels: Parcel Number 14008800040051 (the “Butler Parcel”); Parcel Number 14008800040069 (the “Leroy Tucker Parcel”); Parcel Number 14008800040085 (the “Daniely Parcel”); Parcel Number 14008800040093 (the “Brittain Parce l”); Parcel Number 14008800040101 (the “Lassek Parcel”); and Parcel Number 14002200060371 (the “Carr Parcel” ) (collectively, the “Table Three Parcels”). See generally Def. Mot. at 16

- 17 ; Def. Ex. D at PLF000170

. The relevant title history for these parce ls is set forth below.
i. The Burch Parcel
In 1906

— approximately six years a fter AB C acquired the Railroad Line via condemnation

— AB C acquired a fee simple interest in Parcel 25 , a parcel adjoining the rail corridor to the west. Pl. Ex. G at PLF000060 ; see also Def. Ex. C at US_000018

- 19

. Th e warranty deed conveying Parcel 25 provides , in relevant part, that: [T]he said party of the first part , for an d in consideration of the sum of nine hundred D ollars . . . has granted, bargained, sold and conveyed, and by these presents do es grant, bargain, sell and convey [the property] unto the said

2 The parties stipulate that CSXT and its predecessors

- in

- interest acquired a railroad easement with respect to 14 other disputed parcels in this case. See Joint Status Report, Feb

. 28, 2019; see also Stipulations Regarding Title Matters, April 1, 2019. These parcels are not the subject of the parties’ cross
- motions.6

party of the second part . . . its successors heirs and assigns

. . . forever, in Fee Simple.
Def. Ex. C at US_000018

. It is undisputed that Parcel 25 includes the property that is currently owned by plaintiff Anderson B. Burch. Pl. Ex. E at PLF000189

- 190 ; Def. Ex. D at PLF000189

- 190 (Burch deed and property map). In 1914, AB C conveyed its interest in Parcel 25 to the Atlanta and West Point Rail r oad Company. Pl. Ex. G at PLF000046 ; Def. Ex. E at US_000021

. It is undisputed that the Atlanta and West Point Rail r oad Company subsequently transferred th is property to Joseph W. Hill in fee simple , via a warranty deed , in 1926 . Def. Mot. at 12 (citing Def. Ex. F at US_000057

- 58); see also Pl. Resp. at 4

- 12 ( s howing that plaintiff s do not dispute that the Atlanta and West Point Railroad Company sold Parcel 25 to Joseph W. Hill ). It is also undisputed that the Atlanta and West Point Rail r oad Company retained its fee simple interest in the por tion of the Railroad Line that adjoin s Parcel 25 in connection with this transaction

. Id. CSXT acquired this pr operty interest in 198 6

. Def. Ex. G at US_000064

.

ii. The Sahebdivani Parcel
After AB C acquired the Railroad Line via condemnation , ABC acquired a fee simple interest in Parcel 13 from S. B. Thurman on January 9, 1900

. Def. Ex. H at 1 (Parcel 13)

. A portion of the Sahebdivani Parcel corresponds with Parcel 13. Def. Ex. D at PLF000283, PLF000285.
The warranty deed conveying Parcel 13 to ABC provides , in relevant part, that: [T]he party of the first part, for and in consideration of the sum of Eighteen hundred & no/100 D ollars . . . has granted, bargained, sold and conveyed, and by these present s does grant, bargain, sell and convey unto the said part y of the second part its heirs and assig n s, [the property]

. . . in FEE SIMPLE.
Def. Ex. I at US_ 000015. Also relevant to the Sahebdivani Parcel, i n 1899, G.W. Adair , Jr. acquired by numerous warranty deeds certain property identified as Parcel 18, which is located adjacent to the Railroad Line to the south and associated with the Sahebdivani Parcel . Pl. Ex. G at PLF0000 54

- 55 ; Def. Ex. E at US_000041; Def. Ex. H at 1 (schedule of property showing eight deeds descri bed as7

Parcel 18). G.W. Adair , Jr. subsequently transferred title to the property comprising Parcel 18 to AB C on October 31, 1899

. Pl. Ex. G at PLF000046 ; Def. Ex

. E at US_000041

. In 1898, the Atlanta and West Point Rail r oad Company also acquired Parcel 19, which is located to the south of the Railroad Line, through a warranty deed from Gustavus Adolphus. Pl. Ex. G at PLF000055 ; Def. Ex. H at 1 (Parcel 19). I n 1898 , the Atlanta and West Point Rail r oad Company also acquired Parcel 20, whi ch is located to the south of Parcel 19, through a warranty deed from Thos F. Maddox. Pl. Ex. G at PLF000055 ; Def. Ex. H at 1 (Parcel 20 ).
CSX T eventually acquired the property own ed by ABC

. Def. Ex. G at US_000064 . O n October 4, 1995, CSX T transferre d the property now owned by p laintiff Sahebdivani to Johnny Burnette. Def. Ex. G at US_ 000060.

iii. The Lebow Parcel Between January 2 3 and April 2, 1900, AB C acquired Parcel 17

— which runs adjacent to the Railroad Line to the north and is associated with the Lebow Parcel

— through a series of warranty and administrator deeds. Pl. Ex. G at PLF000054; Def. Ex. H at 1 (Parcel 17) ; Def. Ex. Q at US_000007

- 8, US_000016

- 17

. Specifically, o n January 23, 1900, AB C acquired a portion of P arc el 17 through warranty deed from Joseph Adolphus , Mae Evie E. Cummings, A.O. Woodward, Augustus Adolphus, Stella Adolphus and Jacob Adolphus . Def. Ex. Q at U S _000016. Th is warranty deed provides , in relevant part, that: [T]he parties of the first part, for and in consideration of the sum of Thirteen hundred & Fifty & no/100 Dollars . . . have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the said party of the second part it s successors and assi gns [the property]

. . . forever in FEE SIMPLE. Id. O n January 23, 1900, AB C acquired another portion of Parcel 17 through warranty deed from Donald McDonald. Id. at US_000017. Th is warranty deed provides , in relevant part, that: [T]he party of the fir st part, for and in consideration of the sum of One hundred and Twelve & 50/100 Dollars . . . have granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell and convey unto the said party of the second part its successors and a ssigns [the property] . . . forever in FEE SIMPLE.8

Id. On April 2, 1900, AB C acquired a nother portion of Parcel 17 through an administrator’s deed from Donald McDonald in his role as guardian of Jennie McDonald. Id. at US_000007. The administrator deed provides , in relevant part, that: [T]he said party of the first part, in consideration of the premises, for an d in consideratio n of the sum of One H undred and Twelve & 50/100 Dollars . . . has granted, bargained, sold and conveyed, and hereby does grant, bargain, sell and convey, unto the said party of the second part its successors and assigns [the property] . . . in as full and ample a manner as the same was possessed and enjoyed by the said Jennie McDonald, deceased, in her lifetime. Id. O n April 2, 1900 , AB C acquired yet another portion of Parcel 17 through an administrator’s deed from Joseph Adolphus in his role as guardian o f Mrs. Alma Josephine Adolphus Moore. Id. at US_000008. Th is administrator deed provides , in relevant part, that: [T]he said party of the first part, in consideration of the premises, and for and in consideration of the sum of Two H undred and Twenty Five & 50/100 Dollars . . . has granted, bargained, sold and conveyed, and here by does grant, bargain, sell and convey , unto the sa id party of the second part its successors and assigns [the property] . . . in as full and ample a manner as the same was possessed and enjoyed by the said Mrs. Alma Josephine Adolphus Moore, deceased, in her lifetime

. Id. CSXT subsequently acquired Parc el 17 and later transferred this parcel to Mindis Metals, Inc. through a warranty deed on August 7, 1987 . Def

. Ex. J at PLF000385

. On January 18, 1988, CSX T issued another warranty deed to Mindis Metals , Inc. for the same property. Id. at PLF000391.

iv. Th e Table 3 P arcel s Lastly, with regards to the Table Three Parcels, AB C acquired Parcel 2 through a warranty deed from G.W. Adair , Jr. in 1899. Def. Ex. L (first unnumbered entry in schedule of properties). This parcel runs along what is now Erin Avenue in Fulton County, GA

. Id. The Butler , Leroy Tucker , Daniely , Brittain and Lassek Parcels are located adjacent to the Railroad Line on Erin Avenue and these parcels correspond with Parcel 2 . Def. Ex. D at PLF000182

- 185, PLF000198

- 202, PLF000222

- 22 6, PLF000254

- 257, PLF000287

- 290

.9

T he Carr Parcel corresponds with Parcel 4 on the Interstate Commerce Commission (“ICC”) map V2 GA4. Id. at PLF000204

- 208. AB C acquired a property interest in Parcel 4 through a series of warranty deeds granted between 18 99 and 1900. Pl. Ex. F

- 1 at PLF000398 ( first unnumbered entry in schedule of properties) ; see also Def. Ex. B at NARA_000032

.

4. The STB Proceedings A nd The NITU On December 20, 2017, CSXT filed a verified notice of exemption with the STB to abandon its interest in the Railroad Line . Pl. Ex. A at PLF000002 ; Def. Ex. A . at STB_000003 7

. On January 3, 2018, the ABI filed a request for interim trail use of the Railro ad Line with the STB . Pl. Ex. B at PLF000020

- 24 ; see also Def. Ex. M at STB_000009

. The STB issued the NITU on February 6, 2018. See generally Pl. Ex. C; Def. Ex. M

. Thereafter, ABI and CSXT filed a trail use agreement with the STB on May 15, 2018. Pl. Ex. D at PLF000040 ; Def. Ex. N at STB_000025

. B. Procedural Background
On March 6 , 201 8 , plaintiffs filed the complaint in Brittain , et al

. v. United States , No. 18

- 342L

. See generally Compl. On May 25 , 201 8 , and A ugust 24 , 201 8 , plaintiffs filed amended complaints in Brittain , et al

. v. United States , No. 18

- 342L

. See generally 1 st Am. Compl.; 2d Am. Compl. On June 4, 2018, plaintiff Lebow Land Co mpany , LLC filed a complaint in a directly related takings action , Lebow Land Co. v. United States , No. 18

- 792 L

. S ee generally Lebow Compl. On March 4, 2019, the Court consolidated the two cases

. See Order, dated March 4, 2019

. On April 8 , 201 9 , plaintiffs filed a motion for partial summary judgment on liability and a memorandum in support th ere of

. See generally Pl. Mot

. ; Pl. Mem . On May 13 , 201 9 , the government filed a response and opposition to plaintiffs’ motion for partial summary judgment on liability and a cross
- motion for partial summary judgment on standing and title issues. See gen erally Def. Mot. On June 4 , 201 9 , plaintiffs filed a reply in support of their motion for partial summary judg ment on liability and a response and opposition to the government’s cross

- motion for partial summary judgment on standing and title issues

. See generally Pl. Resp.
On Ju ne 24 , 201 9 , the government filed a reply in support of its cross
- motion for partial summary judgment on standing and title issues

. See generally Def. Rep ly

. On July 8, 2019,10

plaintiffs filed a sur
- reply in support of their motion for partial summary judgment on liability

. See generally Pl. Sur

- Rep ly

. On September 9, 2019, plaintiffs filed a motion for oral argument. See generally Pl. Mot

. for Oral Arg. On September 24, 2019, the government filed a response and opposition to plaintiffs’ motion for oral argument. See generally Def. Resp . for Oral Arg. These matters having been fully briefed, the Court resolves the pending motions.
III. LEGAL STANDARDS
A. Jurisdiction The Tucker Act grants this Court jurisdiction to consider Fifth Amendment takings claims brought against the United States. See 28 U.S.C. § 1491; Morris v. United States , 392 F.3d 1372, 1375 (Fed. Cir. 2004) (“[T]he Tucker Act provides the Court of Federal Claims exclusive jurisdiction over takings claims for amounts greater than $10,000.”).
B. RCFC 56 And Summary Judgment Pursuant to RCFC 56, a grant of summary judgment is appropriate when the pleadings, affidavits and evidentiary materials filed in a case reveal 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); see Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247

- 48 (1986); Biery v. United States , 753 F.3d 1279, 1286 (Fe d. Cir. 2014). A dispute is “genuine” when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson , 477 U.S. at 248. A fact is “material” if it could “affect the outcome of the suit under the governing law . . . .” Id. In resolving motions for summary judgment, the Court will not make credibility determinations and will draw all inferences “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp

. , 475 U.S. 574, 587

- 88 (1986) (quoting United States v. Diebold, Inc. , 369 U.S. 654, 655 (1962)). In doing so, the Court does not weigh the evidence presented, but instead must “determine whether there is a genuine issue for trial.” Anderson , 477 U.S. a t 249; Agosto v. INS , 436 U.S. 748, 756 (1978) (“[A trial] court generally cannot grant summary judgment based on its assessment of the credibility of the evidence presented . . . .”); see also Am. Ins. Co. v. United States , 62 Fed. Cl. 151, 154 (2004). A nd so, the Court may only grant summary judgment when “the record taken as a whole could11

not lead a rational trier of fact to find for the non

- moving party . . . .” Matsushita , 475 U.S. at 587. The above standard applies when the Court considers cross

- mot ions for summary judgment. Principal Life Ins. Co. & Subsidiaries v. United States , 116 Fed. Cl. 82, 89 (2014); see also Estate of Hevia v. Portrio Corp. , 602 F.3d 34, 40 (1st Cir. 2010). And so, when both parties move for summary judgment, “the court mu st evaluate each party’s motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration.” Abbey v. United States , 99 Fed. Cl. 430, 436 (2011) (quoting Mingus Constructors, Inc . v. United States , 812 F.2d 1387, 1391 (Fed. Cir. 1987)).
C. Fifth Amendment Takings And “Rails
- to - Trails” Cases A Fifth Amendment takings occurs in a rails

- to

- trails case when the government, through the issuance of a CITU or NITU, destroys an individual’s state law reversionary interest in property underlying a railroad right

- of

- way. Ladd v. United States , 630 F.3d 1015, 1023

- 24 (Fed. Cir. 2010) (“The issuance of the NITU is the only event that must occur to ‘entitle the plaintiff to institute an action.’ Accrual is not delayed until a trail use agreement is executed or the trail operator takes physical possession of the right

- of

- way
. ” (citing Barclay v. United States , 443 F.3d 1368, 1373 (Fed. Cir. 2006)) ; see also Caldwell I , 391 F.3d 1226, 1233

- 34 (Fed . Cir. 2004) . “[O]nly persons with a valid property interest at the time of the taking[s] are entitled to compensation.” Wyatt v. United States , 271 F.3d 1090, 1096 (Fed. Cir. 2001). To determine whether a Fifth Amendment takings has occurred in a rails

- to

- trails case, the Court follows the three

- part analysis established by the United States Court of Appeals for the Federal Circuit. See Ellamae Phillips Co. v. United States , 564 F.3d 1367, 1373 (Fed. Cir. 2009) (citing Preseault v. United States , 100 F .3d 1525, 1533 (Fed. Cir. 1996) (“ Preseault II ”)). First, the Court must determine who owned the land at issue at the time of the takings, and specifically, whether the railroad company owned the land in fee simple or held only an easement. Id. Second, if the railroad company owned only an easement, the Court must determine whether the terms of the easement are limited to use for railroad purposes, or whether the terms include use as a public recreational trail. Id. Third, if the railroad company’s easement is broad enough to encompass recreational trail use, the Court must determine whether the12

easement terminated prior to the alleged takings, so that the property owner held a fee simple estate unencumbered by ease ment at the time of the takings. Id.
D. Georgia Property Law
To determine whether a railroad h eld an easement over , or a fee simple interest in , a railroad corridor at the time of an alleged takings, the Court looks to the law of the state in which the pro perty is located. Preseault II , 100 F.3d at 1540. Because the Railroad Line at issue in this case is located in the State of Georgia, Georgia law applies. Preseault I , 494 U.S. 1, 20

- 21 (1990) (O’Connor, J., concurring).
At the time that AB C acquired th e Railroad Line via condemnation, the 1895 version of the Civil Code of the State of Georgia was in effect. Pl. Ex. I at PLF000361 (railroad charter for AB C, dated October 17, 1899) . Section 4683 of that Code provides that: Upon the payment by the corpor ation or person seeking to condemn of the amount of the award and final judgment on appeal, such corporation or person shall become vested with such interest in the property taken as may be necessary to enable the corporation or person taking to exercise t heir franchise or conduct their business; and whenever the corporation or person shall cease using the property taken for the purpose of conducting their business, said property shall revert to the person from whom taken, his heirs or assigns.
G A

. C IV

. C ODE § 4683 (1895). The Supreme Court of Georgia has interpreted Section 4683 to impose a restriction when property is acquired by condemnation

— namely, that a company would only acquire by condemnation such interest as would be necessary for the exercise of the franchise and the conduct of the business, with a reversion to the owners, their heirs and assigns if the property should cease to be used for conducting that business. City of Atlanta v. Jones , 69 S.E. 571 (Ga. 1910); Georgia Granite R. Co. v. Venable , 58 S.E. 864 , 866 ( Ga. 1907). The Supreme Court of Georgia has also recognized that, “[g]enerally , in construing a statute authorizing the taking of private property for public use, it will not be implied that a greater interest or estate can be taken than is necessary to satisfy the language and object of the act; and , if the Constitution and statute

are both silent on the subject , usually only an easement can be taken.” Venable , 58 S.E. at 866.13

With regards to the nature of the property interest acquired via condemnation under Georgia law , the Supreme Court of Georgia has held that a company would only obtain an easement in the land condemned and that title would revert to the person from whom t he land was taken if the company should cease to use the land

. See Garner v. Georgia R. & Banking Co ., 4 3 S.E. 863, 864 (Ga. 1903); see also Atlantic Coast L ine R. Co. v. Postal Tel. Cable Co ., 48 S.E. 15, 18 (Ga. 1904) (holding that a telegraph company a cquired an easement in the right

of

- way of a railway company condemned for the purpose of constructing a telegraph line on the right

- of

- way). 3 Georgia courts have also considered several cases that are instructive in determining how to interpret reversion ary clauses. In Askew v. Spence , the Supreme Court of Georgia held that an easement was created based up on , among other things, a reversionary clause that provided that “ [i]f work is not commenced on the said road in two years, said property is to revert to the party of the first part

. ” 79 S. E.2d 531, 532 (Ga. 1954)

. The Supreme Court of Georgia has also held that a deed that grants a railroad a strip of land as a “right

- of

- way” over the surrounding land typically conveys an ea sement, such that the railroad is given a right to pass over and use the land. See Jackson v. Crutchfield , 191 S.E. 468, 47 0

- 71 (Ga. 1937) (holding that a deed that granted “right

- of

- way over which to pass” conveyed an easement). The Supreme Court of Geo rgia has similarly held that the presence of a reservation in a deed, such as a conveyor’s right to cultivate the land up to the right

- of

- way, offers proof of intent to convey an easement. Jackson v. Sorrells , 92 S.E.2d 513, 514 (Ga. 1956) (holding that a deed that reserved the conveyor’s right to “cultivate the land up to the road bed” constituted an easement). In addition, th at court has held that the presence of a qualification, or a stipulation specifying that the property will be used “for railroad p urposes,” signals that the deed conveys an
easement. Askew , 79 S.E.2d at 532; Crutchfield , 191 S.E. at 470

- 71 ; Rogers v. Pitchford , 184 S.E. 623, 624 (Ga. 1936) ; see also Latham Homes Sanitation, Inc. v. CSX Transp. , Inc

. , 538 S.E.2d 107, 109 (Ga. Ct. App. 2000) (holding that an easement was conveyed to a railroad, when the grantor retained a reversionary interest over the right

- of

- way if the railroad was never formed. )

3 The Supreme Court of Georgia has not settled the precise question of whether a railroad company obtains via condemnation a fee defeasi ble or an easement estate

. See Georgia Granite R. Co. v. Venable , 58 S.E. 864, 866 (Ga. 1907)

. But, that court has made clear that “condemnation does not vest in the company a fee

- simple estate.” Id.14

In other cases, t he Supreme Court of Georgia has recognized that the requirement th at,

“ said property shall revert to the Grantor” if the property is no longer used for roadway purposes,
create s a fee simple determinable property interest

. Flaum v. Middlebury , Inc. , 272 S.E. 2d 695, 696 (Ga. 1980). T he Supreme Court of Georgia has also held that the use of the words “assigns” and “revert” in a conveyance instrument i ndicat es that the parties thereto intended to convey a determinable fee estate. Georgia, Ashburn, Sylvester & Camilla Ry. Co. v. Johnson , 174 S.E.2d 895, 897 (Ga. 1970); see also Giddens v. Barrentine , 448 S.E.2d 441, 443 (Ga. 1994) (holding that a deed that provides for an immediate reversion of a property interest without any action by the grantor, when the property was no longer used as a railroad, can convey either an eas ement or a fee simple determinable). And so, the court has, on occasion, held that a reversionary clause indicates an intent to convey a fee simple determinable estate. Lastly, G eorgia law recognizes the doctrine of merger in property law

. Specifically , the Code of the State of Georgia contains a merger statute and th is statute provides that : If two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged into the greater.
G A

. C ODE A NN

. § 44

- 6

- 2 (2019)

. The Supreme Court of Georgia has also held that a covenant restricting the use of property

— and inserted for the benefit of adjoining land of the grantor

— will be extinguished by the subsequent vesting in one person of the title to both tracts of land. Muscogee Mfg. Co. v. Eagle & Phenix Mills , 54 S.E. 1028, 103 1 (Ga. 1906)

. And so, the Supreme Court of Georgia has recognized that “ where there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish any such easement absolutely and forever

. ” Id . at 1032 (quoting Washburn on Easements (4 th Ed.)).
IV. LEGAL ANALYSIS The parties have filed cross

- motions for partial summary judgment on liability, standing and title issues on two issues: First, whether CSXT’s predecessor

- in

- interest acquired via condemnation an easement or a fee simple determinable interest in the Railroad Line

. Pl. Mem. at 8

- 17; Def. Rep ly at 3

- 5 ; see also G A

. C IV

. C ODE § 4683 (1895). Second, whether CSXT obtained a fee simple interest in the portions of the Railroad Line located adjacent to the Burch,15

Lebow, and Sahebdivani Parcels under Georgia law. Def. Mot. at 10

- 16; Pl. Resp. at 7

- 11; Def. Rep ly at 5

- 10. In addition, the government has moved for partial summary judgment in its favor on the issue of whether the owners of the Table Three Parcels have provided sufficient evidence to support their takings claims. Def. Mot. at 16

- 17

. Lastly, p laintiffs have m oved for oral argument on the parties’ cross

- motions. See generally Pl. Mot. for Oral Arg. For the reasons discussed below, the undisputed material facts in this matter show that CSXT’s predecessor

- in

- interest acquired via condemnation an easement for r ailroad purposes over the Railroad Line. The undisputed material facts in this matter also show that CSXT subsequently obtained a fee simple interest in the portions of the Railroad Line that are located adjacent to the Burch, Sahebdivani and Lebow P arcel s. In addition, t he undisputed material facts show that plaintiffs Isa Brittain ; Butler Glidden Cooper, LLC 4 ; Steve Carr ; Felita A. Daniely ; Arthur M. Lassek, III ; and Jason Leroy Tucker have not provided sufficient evidence to support their takings claim . Lastly, a careful review of the parties’ briefs and the evidentiary record reveals that oral argument is not necessary to resolve the parties’ cross

- motions. And so, the Court: (1) DENIES plaintiffs’ motion for partial summary judgment on liability; ( 2) GRANTS the government’s cross

- motion for partial summary judgment on standing and title issues; and (3) DENIES plaintiffs’ motion for oral argument. A. The Railroad Acquired An Easement Via Condemnation As a preliminary matter, the undisputed material facts in this matter show that CSXT’s predecessor

- in

- interest acquired an easement over the Railroad Line under Georgia law. T he parties agree that CSXT’s predecessor

- in

- interest

— the Atlanta Beltline Compan y

— acquired the Railroad Line via condemnation pursuant to Section 4683 of the 1895 version of the Civil Code of the State of Georgia . Pl. Mem. at 9; Def. Rep ly at 1. But , the parties disagree about the

4 T he Court does not address the issue of whether plaintiff Butler Glidden Cooper, LLC has provided sufficient evidence to support its takings claim for P arcel No. 140088000 2 0152

. Def. Mot. at 16 ; Def. Ex. D at PLF000 170

.16

nature of the property interest that ABC acquired un der th is condemnation statute

. Pl. M em . at 8

- 10 ; Def. Reply at 2

- 5

. Plaintiffs argue that ABC acquired a fee simple determinable estate in the Railroad Line, because Section 4683 limits the property interest that ABC could obtain via condemnation to

suc h an interest as is necessary for the execution of the franchise or business. Pl. Mem. at 10

- 17; Pl. Sur

- Rep ly at 2

- 6. The government counters that ABC acquired an easement pursuant to Section 4683, because the text of the statute and Georgia case law su pport interpreting Section 4683 to c onvey an easement. Def. Rep ly at 2

- 5. For the reasons that follow, the Court agrees. As an initial matter, t he Court begins its interpretation of Section 4683 by considering the plain language of this statute. Hymas v . United States , 810 F.3d 1312, 1324 (Fed. Cir. 2016) (“[s]tatutory interpretation begins with the language of the statute” ( internal citations omitted) )

. The text of Section 4683 indicates that ABC acquired a railroad easement via condemnation for several reasons

. First , S ection 4683 provides that: Upon the payment by the corporation or person seeking to condemn of the amount of the award and final judgment on appeal, such corporation or person shall become vested with such intere st in the property taken as may be necessary to enable the corporation or person taking to exercise their franchise or conduct their business ; and whenever the corporation or person shall cease using the property taken for the purpose of conducting their b usiness, said property shall revert to the person from whom taken, his heirs or assigns.
G A

. C IV

. C ODE § 4683 (1895) (emphasis supplied). And so, Section 4683 plainly limits the nature of the property interest conveyed via condemnation to “such interest in the property taken as may be necessary to enable the corporation or person taking to exercise their franchise or conduct their business.” Id.
This statute similarly limits the nature of the property interest conveyed via condemnation by requiring tha t the property acquired via condemnation “shall revert to the person from whom taken, his heirs or assigns,” if the party acquiring the property ceases to use the property for the purpose of conducting their business. Id. And so , the Court reads Section 4683 to restrict the property interest acquired by ABC to such an interest as would have been necessary for the railroad company to conduct its business. Id. ; see also City of Atlanta v. Jones ,17

69 S.E. 571 (Ga. 1910) ; Georgia Granite R. Co. v. Venable , 58 S.E. 864, 866 (Ga. 1907) (holding that Section 4683 provides a restriction that a company would only acquire such an interest as would be necessary for the exercise of the franchise and the conduct of the business, with a reversion to the owners, their he irs and assigns, if the property should cease to be used for conducting the business).
The C ourt also agrees with the government that Georgia case law supports a finding that the precise nature of a property interest acquired by ABC under Section 4683 is an easement for railroad purposes. In this regard, the Supreme Court of Georgia has held that, when “the Constitution and statute are both silent on the subject , usually only an easement can be taken” via condemnation. Venable , 58 S.E. at 866 . Georgia courts have also recognized on several occasions that an easement is acquired when private property is acquired via condemnation. Id .; see also Garner v. Georgia R. & Banking Co ., 4 3 S.E. 863, 864 (Ga. 1903) (holding that, upon the payment of the award of the appraisers, the company would only obtain an easement in the land condemned, and, if at any time the company should cease to use the land, the title would revert to the person from who m it was taken); Atlantic Coast L ine R. Co. v. Postal Tel. Cable Co ., 48 S.E. 15, 18 (Ga. 1904) (holding that a telegraph company acquire d an easement in the right

- of

- way of a railway company condemned for the purpose of constructing a telegraph line on th e right

- of

- way); see also Jackson v. Crutchfield , 191 S.E. 468, 470

- 71 (Ga. 1937) (holding that a deed that grants a railroad a strip of land as a “right

- of

- way” over the surrounding land typically conveys an easement); Askew v. Spence , 79 S.E.2d 531, 532 (Ga. 1954) (holding that the presence of a qualification, or a stipulation specifying that the property will be used “for railroad purposes,” signals that the deed conveys an easement). In addition, t he Court’s conclusion that an easement for railroad purp oses has been conveyed to ABC is also supported by other language in Section 4683 which require s that “said property shall revert to the person from whom taken, his heirs or assigns,” if the condemning entity ceases using the property for the purpose of co nducting their business. G A

. C IV

. C ODE § 4683 (1895) . Georgia courts have recognized that this kind of a reversionary language indicates the parties’ intent to convey an easement. For example, in Askew v. Spence, the Supreme Court of Georgia held that an easement was created based upon, among other things, conveyance language that provided that “[i]f work is not commenced on the said road in two years, said property is to revert to party of the first part.” 79 S.E.2d at 532 . In Latham Homes Sanitation,18

Inc. v. CSX Transp. , Inc. , the Court of Appeals of Georgia similarly concluded that an easement was conveyed to a railroad when the grantor retained a reversionary interest over the right

- of

way if the railroad was never formed. 538 S.E.2d 107, 109 (Ga. Ct. App. 2000).
R eading Section 4683 to c onvey an easement for railroad purposes also comports with the reason that ABC acquir ed a property interest in the Railroad Line. The evidentiary record before the Court makes clear that ABC sought to condemn the property along the Railroad Line

“ for the purpose of building, maintaining and operating a railroad .” Pl. Ex. H

- 1 at PLF000374 (emphasis supplied); see also Pl. Ex. H

- 2 at PLF000316 (stating that ABC “seeks to condemn for the purpose of building, maintaining and operating a railroad”); see also Easement , Black’s Law Dictionary (11th ed. 2019) (defining a land easement as “[a]n in terest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose.”)

. The Court also observes that the parties have stipulated that CSXT acquired a railroad easement ov er other portions of the Railroad Line that are not the subject of the ir cross
- motions

. See Joint Status Report, Feb. 28, 2019; see also Stipulations Regarding Title Matters, April 1, 2019.
Given this , the Court concludes that the undisputed material facts in this case show that ABC acquired an easement for railroad purposes over the Railroad Line under Georgia’s condemnation statute

. 5 And so , the Court DENIES plaintiffs’ motion for partial summary judgment and GRANTS the governmen t’s cross

- motion for partial summary judgment on this threshold issue.
B. CSXT Obtained A Fee Interest In The Portions Of Railroad Line Adjacent To The Burch, Sahebdivani And Lebow Parcels Having determined that ABC acquired an easement for railroad purposes under the Georgia condemnation statute, the Court turns to the question of whether CSXT held this
easement , or a fee simple interest , with regards to the p ortion s of the Railroad Line located adjacent to the Burch, Sahebdivani and Lebow Parcels. For the reasons discussed below, t he

5 Plaintiffs correctly observe that Georgia courts have, at times, interpreted reversionary language to indicate the intent of the parties to convey a fee simple determinable estate. Pl

. Mem . at 14

- 17; Pl. Resp. at 3

- 4; Pl. Sur

- Rep ly at 2

- 6. But, plaintiffs do not identify

— and the Court is not aware of

— any case in which a Georgia court has interpreted Section 4683 to convey a fee simple determinable estate

. See generally Pl. Mem.; Pl. Re s p.; Pl. Sur

- Rep ly

.19

undisputed material facts in this matter show that CSXT held a fee simple interest in the portions of the Railroad Line that are located adjacent to the Burch, Sahebdivani and Lebow Parcels at the time of the issuance o f the NITU.
It is well

- established under Georgia law that, “[i]f two estates in the same property shall unite in the same person in his individual capacity, the lesser estate shall be merged into the greater. ” G A

. C ODE A NN

. § 44

- 6

- 2 (2019) . And so, the Supreme Court of Georgia has recognized that, “ where there is a union of an absolute title to and possession of the dominant and servient estates in the same person, it operates to extinguish any such easement absolutely and forever

. ” Muscogee Mfg. Co. v . Eagle & Phenix Mills , 54 S.E. 1028, 103 2 (Ga. 1906) (quoting Washburn on Easements (4 th Ed.)). Pursuant to this doctrine of merger, when a property owner holds an easement on neighboring property

— and later acquires title to that neighboring property

— the easement automatically terminates by operation of law due to the merger of title. And so, if it can be established that CSXT’s predecessor

- in

- interest acquired the title to any property that is located adjacent to the Railroad Line, the easement that ABC acquired via condemnation automatically terminates and merges with th at fee estate. T he governme nt makes such a showing here with regards to the Burch, Sahebdivani and Lebow Parcels.

1. CSXT Owned The Portions Of T he Railroad Line Located Adjacent To The Burch P arcel First, the undisputed material facts show that CSXT’s predecessor

- in

- interest, ABC,

a cquired the portion of the Railroad Line located adjacent to the Burch Parcel in fee simple. In this regard, it is undisputed that on May 19, 1906, ABC acquired a fee simple interest in Parcel 25

— a parcel of land that is located adjacent to the Railroad L ine and includes the property that is currently owned by plaintiff Anderson B. Burch. Def. Ex. C at US_000018 (deed to ABC for Parcel 25 in fee simple, dated May 19, 1906); Pl. Ex. E at PLF000189

- 190; Def. Ex. D at PLF000189

- 190 (Burch deed and property m ap). Once ABC acquired Parcel 25, the easement that ABC acquired via condemnation over the portion of the Railroad Line located adjacent to Parcel 25 merged into the fee simple estate under Georgia law. See G A

. C ODE A NN

. § 44

- 6

- 2 (2019) ; Muscogee Mfg. Co. , 54 S.E. at 103 2. And so, the undisputed material facts make clear that ABC acquired a fee simple estate in the20

portion of the Railroad Line located adjacent to Parcel 25, including the portion of the Railroad L ine located adjacent to the Burch Parcel. Def. Ex. C at US_000018; see also Muscogee Mfg. Co. , 54 S.E. at 103 2. The government has also shown that CSXT later obtained ABC’s fee simple interest in the portion of the Railroad Line located adjacent to Parcel 25 and that ABC held this interest on the date that the STB issued the NITU . In this regard, the undisputed material facts show that ABC conveyed its fee simple interest in Parcel 25

— and its fee estate in the portion of the Railroad Line located adjacent to this parcel

— to the Atlanta and West Point Railroad Company on September 8, 1914. Def. Ex. E at US_000021 (deed conveying, in relevant part: “ [ a ] ll and singular the lines of railroad constructed and to be constructed . . . by whatever title the same may be owned or held, and also all the l and, tenements, hereditaments, leasehold estates, ways and rights of way now owned, held and possessed by said Atlanta Belt L ine Company . . . to [the Atlanta and West Point Railroad Company] its successors and assigns in fee simple forever. ” ) ; see also Pl . Ex. G at PLF000046. It is also undisputed that, when the Atlanta and West Point Railroad Company sold Parcel 25, the railroad company retained its fee estate in the portion of the Railroad Line located adjacent to that parcel. Def. Mot. at 12 (citing D ef. Ex. F at US_000057

- 58) ; see also Pl. Resp. at 4

- 12 ( showing that plaintiffs do not dispute that the Atlanta and West Point Railroad Company retained its fee estate in the section of the Railroad Line located adjacent to Parcel 25 )

. The undisputed material facts also show that the Atlanta and West Point Railroad Company subsequently merged into Seaboard System Railroad, Inc. on June 30, 1986, and that Seaboard System Railroad, Inc. later changed its name to CSXT on July 1, 1986. Def. Ex. G at US_000064. Given this, the undisputed material facts make clear that CSXT obtained a fee simple interest in the portion of the Railroad Line located adjacent to the Burch Parcel and that CSXT owned this portion of the Railroad Line when the STB issu ed the NITU on February 6, 2018. Id. ; Def. Ex. F at US_000057

- 58; s ee also Ellamae Phillips Co. v. United States , 564 F.3d 1367, 1373 (Fed. Cir. 2009) (stating that, f irst, the Court must determine who owned the land at issue at the time of the takings, and specifically, whether the railroad company owned the land in fee simple or held only an easement (citing Preseault v. United States , 100 F.3d 1525, 1533 (Fed. Cir. 1 996) (“ Preseault II ” ) ).21 2. CSXT Owned The Portions Of T he Railroad Line Located Adjacent To The Sahebdivani Parcel For similar reasons, the undisputed material facts show that CSXT held a fee simple interest in the portion of the Railroad Line located adjac ent to the Sahebdivani Parcel at the time of the issuance of the NITU. The undisputed material facts show that, in 1899 and 1900, respectively, ABC acquired the title to two parcels of land

— Parcels 13 and 18

— that are located adjacent to the Railroad Line and include the Sahebdivani Parcel. Def. Ex. I at US_000015 (deed to ABC for Parcel 13 in fee simple, dated January 9, 1900); Def. Ex. E at US_000041 (deed conveying fee interest in Parcel 18 to ABC on October 31, 1899). Once ABC acquired these parcels in fee simple, the easement

over the portion of the Railroad Line located adjacent to these parcels was extinguished and ABC acquired a fee simple estate in the se portions of the Railroad Line under Georgia law. See G A

. C ODE A NN

. § 44

- 6

- 2 (2019) ; Muscogee Mfg. Co

. , 54 S.E. at 103 2. The undisputed material facts also show that CSXT later obtained this fee simple interest. As discussed above, ABC conveyed its fee simple interest in the portions of the Railroad Line locate d adjacent to Parcels 13 and 18 to t he Atlanta and West Point Railroad Company on September 8, 1914. Def. Ex. E at US_000021 (deed conveying, in relevant part: “ [ a ] ll and singular the lines of railroad constructed and to be constructed . . . by whatever title the same may be owned or held, and also all the land, tenements, hereditaments, leasehold estates, ways and rights of way now owned, held and possessed by said Atlanta Belt Line Company . . . to [the Atlanta and West Point Railroad Company] its successors and assigns in fee simple forever.”); see also Pl. Ex. G at PLF000046 . After the Atlanta and West Point Railroad Company merged into Seaboard System Railroad, Inc.

— and Seaboard System Railroad, Inc. changed its name to CSXT

— CSXT acquired and retained this fee simple interest. De f. Ex. G at US_000064. And
so, again, the undisputed material facts make clear that CSXT held a fee simple interest in the portion of the Railroad Line located adjacent to the Sahebdivani Parcel when the STB issued the NITU. Id. ; s ee also Ellamae , 564 F. 3d at 1373

.22 3. CSXT Owned The Portions Of T he Railroad Line Located Adjacent To The Lebow Parcel Lastly, the undisputed material facts also show that CSXT obtained a fee simple interest in the portions of the Railroad Line located adjacent to the Lebow Parcel. There is no dispute among the parties that ABC acquired the title to Parcel 17

— a parcel of land that is located adjacent to the Railroad Line and includes the property that is currently owned by plaintiff Lebow Land Co mpany , LLC

. Def. Mot. at 14

- 1 6 (citing Def. Ex. Q at US_000016

- 17) (deeds to ABC for two portions of Parcel 17 in fee simple, dated January 23, 1900) ; Pl. Resp. at 4 (stating that plaintiffs do not dispute that one or more of CSXT’s predecessors

- in

- interest of the Railroad Line acqu ired portions of the land currently owned by plaintiffs)

. 6 Once ABC acquired Parcel 17, its railroad easement over this parcel was extinguished and ABC obtained a fee simple estate in the portions of the Railroad Line located adjacent to Parcels 17 under Georgia law. See G A

. C ODE A NN

. § 44

- 6

- 2 (2019) ; Muscogee Mf g. Co

. , 54 S.E. at 103 2. The undisputed material facts also show that CSXT later obtained this fee simple interest, because ABC conveyed its fee simple interest in the portion of the Railroad Line located adjacent to Parcel 17 to the Atlanta and West Point Railroad Company on September 8, 1914. Def. Ex. E at US_000021 (deed conveying, in relevant part: “ [ a ] ll and singular the lines of railroad constructed and to be constructed . . . by whatever title the same may be owned or held, and also all the land, t enements, hereditaments, leasehold estates, ways and rights of way now owned, held and possessed by said Atlanta Belt Line Company . . . to [the Atlanta and West Point Railroad Company] its successors and assigns in fee simple forever.”); see also Pl. Ex. G at PLF000046. As discussed above, the Atlanta and West Point Railroad Company subsequently

6 T he source deed conveying a portion of Parcel 17 to Jennie McDonald is not included in t he evidentiary record . But, i t is undisputed that ABC acquired a portion of Parcel 17 on April 2, 1900 . Def. Mot. at 1 4

- 1 5 ; Def . Ex. Q at (US_000007) (deed to ABC for a portion of Parcel 17 in “as full and ample a manner as the same was possessed and enjoyed by the said Jennie McDonald, deceased, in her lifetime,” dated April 2, 1900) ; see generally Pl. Resp.; Pl. Sur

- Reply. T he source deed conveying a portion of Parcel 17 to Mrs. Alma Josephine Adolphus Moore is also not included in the evidentiary record . B ut , i t is again undisputed that ABC acquired this portion of Parcel 17 in fee on April 26, 1900

. Def. Ex. Q at US_000008 (deed to ABC for a portion of Parcel 17 in “as full and ample a manner as the same was possessed and enjoyed by the said Mrs. Alma Josephine Adolphus Moore, deceased, in her lifetime,” dated April 26, 1900); see also Pl. Ex. E at 16

- 24.23

merged into Seaboard System Railroad, Inc., and Seaboard System Railroad, Inc. changed its name to CSXT, resulting in CSXT obtaining this fee simple interest. De f. Ex. G at US_000064. The undisputed material facts also show that CSXT retained its fee simple interest in the portion of the Railroad Line located adjacent to Parcel 17 when the STB issued the NITU on February 6, 2018. Def. Mot. 6

- 9; Pl. Mem . 5

- 6. In this regard, t here is no dispute that CSXT transferred Parcel 17 to Mind is Metals, Inc. on August 7, 1987, and January 18, 1988, respectfully. Def. Mot. at 8, 15; see generally Pl. Resp. But, t he parties also agree that CSXT retained most of its fee simple interest in the portion of the Railroad Line located adjacent to Parc el 17 in connection with th e se transactions. Def. Ex. J at PLF000385

- 396 7 ; see also Pl. Resp. at 4

- 12 ; Pl. Sur

- Reply at 1

- 6 ( showing that plaintiffs do not dispute that CSXT retained its interest in Parcel 17 ) . And so, the undisputed material facts show that CSXT owned the portion of the Railroad Line located adjacent to the Lebow Parcel when the STB issued the NITU. Def

. Resp. at 14

- 16 ; s ee also Ellamae , 564 F.3d at 1373

. The Court is also not persuaded by p laintiffs’ argument that the Court should not apply the Georgia doctrine of merger to the facts of this case . Pl. Resp. at 7

- 12. Plaintiffs argue in their motion for partial summary judgment that the doctrine of merger should not apply here , because ABC did not own the entire Railroad Line and all of the adjoining land simultaneously. Id. at 8. But, plaintiffs do not cite any c ase law in Georgia to support th is contention. 8 Id. ; see also Def. Rep ly at 7

. P laintiffs’ argument that the doctrine of merg er is inapplicable here, because ABC could not possess absolute title to the right

- of

- way over the Railroad Line is equally unpersuasive. Id

. at 7

- 8

. As discussed above, the Court reads the Georgia condemnation statute to create an easement for railroad purposes, and th is statute does not contain any language that would prevent

7 A review of the conveyance instruments for these transactions shows that CSXT may have conveyed a small portion of the Railroad Line to Mindis Metals, Inc. Def. Ex. J at PLF000 388, PLF000 394 (containing language in the Parcel D description appear ing to grant a small portion of the Railroad Line to Mindis Metals, Inc. and referring to the rest of the Line as “Grantor’s track”).

8 Plaintiffs’ argument that it would be contrary to public policy to apply the doctrine of merger when an easement has be en acquired via condemnation is also mis guided . Pl. Resp. at 9

- 11. Such policy considerations are appropriately left to the Georgia S tate L egislature.24

an easement acquired via condemnation from converting into a fee simple estate under the doctrine of merger , as plaintiff s suggest

. See G A

. C IV

. C ODE § 4683 (1895)

. Bec ause the undisputed material facts in this case show that CSXT obtained a fee simple interest in the portions of the Railroad Line located adjacent to the Burch, Sahebdivani and Lebow Parcels , and that CSXT owned these portions of the Railroad Line when th e STB issued the NITU on February 6, 2018 , the Court DENIES plaintiffs’ motion for partial summary judgment on liability and GRANTS the government’s cross

- motion for partial summary judgment on standing and title issues with respect to plaintiffs Burch, Sa hebdivani and Lebow Land Company, LLC.
C. The Owners O f The Table Three Parcels Have Not Provided Sufficient Evidence To Support Their Claims
T he Court also agrees with the government that the owners of the Table Three Parcels have not provided sufficient evidence to support their takings claims in this case. To determine whether a Fifth Amendment takings has occurred in this rails

- to

- trails case, the Cou rt must determine who owned the land at issue at the time of the alleged takings and plaintiffs bear the burden of proving that they owned the land at issue in fee at the time of the alleged takings. Ellamae , 564 F.3d at 1373 (citing Preseault II , 100 F.3 d at 1533). It is undisputed that plaintiffs have not provided the government with the source deeds relevant to the Butler, Leroy Tucker, Daniely, Brittain, Lassek, and Carr Parcels to establish the ownership of these parcels

. Def. Mot. at 16

- 17; Pl. Res p. at 2. A review of the evidentiary record also reveals that plaintiffs have not included any of the source deeds for the Table Three Parcels in their claims book. See Def. Ex. D at PLF000182

- 185, PLF000198

- 202, PLF000204

- 208 , PLF000222

- 226 , PLF000254

- 2 57, PLF000287

- 290. Given this, the Court must deny plaintiffs’ takings claims related to the Table Three Parcels , because plaintiffs have not met their burden to show that they owned these parcels at the time of the alleged takings. And so, the Court GRA NTS the government’s cross

- motion for partial summary judgment on standing and title issues with respect to plaintiffs Isa Brittain, Butler Glidden Cooper, LLC, Steve Carr, Felita A. Daniely, Arthur M. Lassek, III and Jason Leroy Tucker

.25

D. Oral Argument On the Parties’ Cross
- Motion s Is Not Warranted As a final matter, plaintiffs have moved for oral argument on the parties’ cross

- motions. See generally Pl. Mot. for Oral Arg. A careful reading of the se cross
- motions and the evidentiary record in this matt er reveals, however, that oral argument is not necessary for the Court to resolve the parties’ cross
- motions. And so, the Court DENIES plaintiffs’ motion for oral argument.
V. CONCLUSION In sum, the undisputed material facts in this matter show that ABC acquired an easement for railroad purposes under Georgia’s condemnation statute. The undisputed material facts also show that CSXT obtained a fee simple interest in the portions of the Rai lroad Line located adjacent to the Burch, Sahebdivani and Lebow Parcels and that CSXT owned these portions of the Railroad Line when the STB issued the NITU at issue in this takings case. In addition, t he undisputed material facts show that plaintiffs hav e not met their burden to show that they owned the land located adjacent to the Railroad Line at the time of the alleged takings with respect to the Table Three Parcels. Lastly, a careful review of the parties’ briefs and the evidentiary record makes clea r that oral argument is not necessary to resolve the parties’ cross

- motions. And so, for the foregoing reasons, the Court:
1. DENIES plaintiffs’ motion for partial summary judgment on liability;
2. GRANTS the government’s cross

- motion for partial summary judgme nt on standing and title issues; and
3. DENIES plaintiffs’ motion for oral argument.26

In addition, the Court DIRECTS t he parties to FILE a joint status report stating their respective views on how this matter should proceed , in light of the Court’s ruling on their cross

motions for partial summary judgment , on or before January 6, 2020

. Each party to bear their own costs.
IT IS SO ORDERED.

s/ Lydia Kay Griggsby LYDIA KAY GRIGGSBY Judge