City of Marietta v. CSX Transportation

• Decision Date: 29 November 1999
• Docket Number: No. 98-8436,98-8436
• Parties: (11th Cir. 1999) CITY OF MARIETTA, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1300

196 F.3d 1300 (11th Cir. 1999)

CITY OF MARIETTA, Plaintiff-Appellant, v. CSX TRANSPORTATION, INC., Defendant-Appellee.

No. 98-8436.

United States Court of Appeals,

Eleventh Circuit.

Nov. 29, 1999.

[Copyrighted Material Omitted] Appeal from the United States District Court for the Northern District of Georgia. (No. 1:96-CV-3509-MHS), Marvin H. Shoob, Judge.

Before EDMONDSON, COX and MARCUS, Circuit Judges.

COX, Circuit Judge:

CSX Transportation, Inc. (CSX) runs a railroad that passes through Marietta, Georgia. When CSX closed two pedestrian grade crossings in Marietta without warning, the City of Marietta sued. The district court granted CSX summary judgment, and Marietta appeals. Because CSX leases the railroad from the State of Georgia, we raised sua sponte the issue of whether Georgia is an indispensable party under Fed.R.Civ.P. 19. We conclude that the action may proceed without Georgia, and we certify a core, dispositive issue of Georgia law to the Georgia Supreme Court.

I. Background

Marietta, a municipal corporation organized under Georgia law, received its first charter in 1834. What Marietta's street plan looked like at the time, and how streets came to belong to the City, is something of a mystery on this record: A few years after Georgia's legislature voted to withdraw from the United States, the United States government sent soldiers to burn the Cobb County courthouse (among other structures), and Georgia was unable to prevent it. Many early property records went up in smoke, through no fault of the City's.

The State of Georgia built its first railroad not long after the State first chartered Marietta. Established by the State in 1836, the Western & Atlantic (W&A) line stretches from Atlanta to Chattanooga; it was complete in Cobb County and Marietta by 1846. Although Georgia stopped operating the railroad in 1870, leasing it instead to private corporations, Georgia has never relinquished ownership.

The summary judgment record of post-General Sherman documents shows that at least since the end of the 19th century, there have been two crossings over the W&A in downtown Marietta called Depot and Dobbs Streets. They appear as full-blown streets on post-Reconstruction Sanborn insurance maps; a state survey of the railroad from a hundred years ago notes the streets' existence; and 1920s schoolchildren used the streets on their way to classes and to fetch ice from the ice station on Dobbs Street. More recently, the streets have served as access between parking areas on one side of the tracks and businesses on the other. In 1978, the Downtown Marietta Development Authority, which is not affiliated with the City, entered license agreements with the Louisville and Nashville Railroad Company (L&N), CSX's predecessor in interest, to build and maintain the crossing at Depot Street. The next year, the L&N asked the City to close Dobbs Street to motor traffic, which the City did in exchange for a promise to construct a pedestrian crossing at Dobbs Street and to remove sidetracks at another crossing. In the mid-1990s, the City planned downtown landscaping and disabled-access improvements that relied in part on the continued availability of these crossings.

The streets' history came to an end in 1996. That year CSX built a second mainline track on the W&A line. To accommodate construction, CSX temporarily closed several grade crossings in the old downtown area of Marietta. When construction was completed, CSX restored five grade crossings,¹ but left chain-link fence across the two pedestrian crossings at Depot and Dobbs Streets. CSX concluded that these two crossings presented increased hazards with the addition of the second mainline track.

CSX did not discuss with Marietta its decision to close the crossings, nor did it provide written notice to Marietta before erecting the barricades. In October 1996, Marietta adopted a resolution officially opposing the closure of Depot and Dobbs Streets. Marietta made repeated demands to CSX to reopen the crossings.

Marietta's position relies in part on its charter. The most recent charter, enacted in 1977, confers on Marietta the authority "[t]o lay out, open, extend, widen, narrow, establish or change the grade of, abandon, or close, construct, pave, curb, gutter, adorn with shade trees, otherwise improve, maintain, repair, clean, prevent erosion of, and light, streets, roads, alleys, sidewalks, walkways, and other public ways." (R.4-34-Ex. 3 2.16(21) (emphasis added).)² Marietta's charter also grants it the power "[t]o regulate and control public streets, roads, alleys, sidewalks, walkways and other public ways; and to prevent the blocking of streets, roads, alleys, sidewalks, walkways, and other public ways, and railroad crossings." (Id. 2.16(22)(emphasis added).)

CSX, on the other hand, claims a right to close the crossings under its current lease agreement with the State. The lease gives CSX the right to remove unlawful encumbrances:

Lessee may remove and cause to be discontinued, as permitted by law, any or all encroachments and other adverse uses and occupancies in and upon the right-of-way or upon other properties of the Western and Atlantic Railroad, or any part thereof, whether maintained under claim of lawful right or otherwise. The Lessee in its own name and behalf[ ] may undertake to remove and cause the discontinuance of such encroachments, uses and occupancies, acting therein in its own name.

(R.1-4-Unnumbered Ex. at 34.)

Marietta and CSX were unable to agree whether Dobbs and Depot Streets were unlawful encumbrances over the rails or public ways appropriately under Marietta's control. Marietta then sued.

Marietta's complaint, first filed in Cobb County Superior Court and later removed by CSX on diversity grounds, contains six substantive claims ³ (1) that the City had a prescriptive easement to the Dobbs and Depot Street crossings (Count I); (2) that Marietta and the railroad dispute whether Dobbs and Depot Streets are "public" roads, and the court should declare that they are; (3) that CSX's closure of the crossings is a public nuisance, subject to abatement (Count III); (4) that CSX has been negligent as a matter of law for failing to comply with O.C.G.A. 32-6-190, which requires railroads to maintain grade crossings for safe public passage, and 32-6-191, which requires railroads to bear the expense of repairing grade crossings after addition of new tracks (Count IV); (5) that CSX violated O.C.G.A. 46-8-103, which prohibits railroads from appropriating public highways, bridges, and ferries (Count V); and (6) that CSX owes Marietta attorney fees because CSX has been stubbornly litigious.

Following discovery, both parties moved for summary judgment. The district court initially granted Marietta's motion and denied CSX's. The district court concluded that Marietta's rights under its charter were superior to CSX's lease rights because Marietta's rights preceded CSX's, and because CSX's lease explicitly leaves prior inconsistent statutes undisturbed.⁴ The court also concluded that "when viewed in the context of other state statutes regarding closure of roads, it is clear that the Georgia legislature did not intend to authorize CSXT's unilateral closure of municipal roads." (R.5-51 at 6.) Finally, the district court concluded that public policy supports Marietta's position, because ruling in favor of CSX would allow it to close, on a whim, any of the many municipal streets that it crosses.

The same day that the district court issued this order, Georgia filed a brief as amicus curiae. CSX then moved the court to reconsider its decision in light of the State's brief. The court did so and concluded that the State intended for street crossings (particularly Depot and Dobbs Streets) to constitute "encumbrances" under CSX's lease and that the State had therefore conveyed to CSX the power to close the crossings unilaterally. The court accordingly vacated its first order and granted CSX's motion for summary judgment. Marietta appeals.

Marietta attacks the district court's judgment on both procedural and substantive grounds. Procedurally, Marietta complains that the district court should not have permitted Georgia to file so late an amicus brief, and then rely on that brief-which had no supporting evidence-to reverse its earlier decision without additional briefing. Because we believe this to be within the discretion of the district court, we affirm without further discussion its decision to handle the amicus brief this way.

We can deal with the first of Marietta's two substantive challenges with equal dispatch. Marietta contends that the district court was right the first time: the lease is explicitly subject to Marietta's charter. Having read the charter and the lease (which explicitly yields ground only to the acts and resolutions authorizing the making of the lease), we are confident that the district court correctly decided to revisit its initial decision on this issue. Of the issues that Marietta raises, therefore, there remains before us only Marietta's contention that the district court should have accepted its primary argument for judgment in its favor: that Dobbs and Depot Streets are indisputably dedicated public ways beyond the control of CSX. We consider this issue de novo because we are reviewing a grant of summary judgment. See Ross v. Clayton County, Ga., 173 F.3d 1305, 1307 (11th Cir.1999).

Because of the potential danger to federal subject-matter jurisdiction,⁵ this court has sua sponte injected another issue in the case: whether Georgia is an indispensable party to this action under Fed.R.Civ.P. 19. (If Georgia were joined, diversity would disappear because the state is not a citizen. See University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 412 (11th Cir.1999).) The parties, along with Georgia as an amicus curiae, have filed supplemental briefs addressing this question. Because this issue gnaws at our...