Durango & Silverton Narrow Gauge R.R. Co. v. Wolf

• Decision Date: 01 August 2013
• Docket Number: Court of Appeals No. 12CA1632
• Citation: 411 P.3d 793
• Parties: DURANGO & SILVERTON NARROW GAUGE RAILROAD COMPANY, a Colorado corporation, Plaintiff–Appellee, v. Timothy WOLF and Katherine Turner, Defendants–Appellants.
• Court: Colorado Court of Appeals

411 P.3d 793

DURANGO & SILVERTON NARROW GAUGE RAILROAD COMPANY, a Colorado corporation, Plaintiff–Appellee,

v.Timothy WOLF and Katherine Turner, Defendants–Appellants.

Court of Appeals No. 12CA1632

Colorado Court of Appeals, Division I.

Announced August 1, 2013

Jones & Keller, P.C., Edward T. Lyons, Jr., Denver, Colorado; Frank J. Anesi, Durango, Colorado; Tracy J. Cross, Durango, Colorado for Plaintiff–Appellee

Huff Water & Land Law, LLC, Amy N. Huff, Durango, Colorado, for Defendants–Appellants

Opinion by JUDGE FOX

¶ 1 This dispute involves the extent to which a railroad can authorize a third party's incidental use of its continuously used railroad right-of-way as a non-exclusive easement for a public recreation trail.

¶ 2 Defendants Timothy Wolf and Katherine Turner (collectively Wolf) appeal the trial court's summary judgment in favor of plaintiff, Durango & Silverton Narrow Gauge Railroad (DSNGRR), allowing DSNGRR to grant to the City of Durango (Durango) a non-exclusive easement over part of its right-of-way and adjacent to the railroad tracks to extend a public recreation trail. Wolf also appeals the trial court's failure to join five other property owners whose properties are subject to DSNGRR's right-of-way and are affected by the trail easement, and the trial court's failure to grant attorney fees to Wolf. We affirm.

I. Background

¶ 3 In 1881, DSNGRR's predecessor in interest (the Denver and Rio Grande Railway Company) acquired a right-of-way from Wolf's predecessor in interest (Dooley). The pertinent part of the Dooley deed states:

[Dooley] does hereby sell, grant, convey, and release unto the said Denver and Rio Grande Railway Company the right of way for a width of one hundred feet—fifty feet on each side of center line—for the construction of the said Railway.... Giving and granting unto [the Denver and Rio Grande Railway] the right to excavate, fill, ditch, drain, erect cattle guards and crossings [etc.].¹

¶ 4 In 2009, DSNGRR agreed to grant the city of Durango a non-exclusive easement to extend a public recreation trail over its right-of-way and adjacent to the railroad tracks, part of which would run through Wolf's property.² The record discloses that DSNGRR will benefit from the agreement with Durango in two ways. First, Durango will pay DSNGRR $1 million, which the railroad will use for continued operations and maintenance. Second, the trail will promote safe use of the right-of-way by pedestrians and bicyclists, who currently walk and ride directly on the railroad tracks, tracks that remain in use.

¶ 5 Wolf opposed the 2009 agreement, arguing that the 1881 right-of-way permits DSNGRR to use the land only for "railroad purposes," and that a recreation trail is not a railroad purpose. DSNGRR sought a declaratory judgment as to the parties' respective rights.

¶ 6 Examining cross-motions for summary judgment, the trial court held that the Dooley deed conveyed an easement to DSNGRR's predecessor that was more expansive than a typical easement, and that the easement gives DSNGRR exclusive use and control of its right-of-way as long as it continues to operate a railroad. The court further held that the use of part of the right-of-way for a public recreation trail constitutes a railroad purpose because it eliminates the current safety and liability problem of people walking on the tracks, and increases the efficiency of any needed rail repairs.

¶ 7 This appeal followed.

II. Third–Party Lease of Railroad Right–of–Way

¶ 8 Wolf contends that the trial court erred when it held that DSNGRR's easement authorized DSNGRR to lease part of its right-of-way to Durango for a public recreation trail. We disagree and conclude that a public recreation trail is incidental to and not inconsistent with DSNGRR's continued, exclusive use and control of its right-of-way.

A. Standard of Review

¶ 9 Summary judgment is appropriate when the pleadings and supporting documents demonstrate that there is no genuine issue of material fact and that one party is entitled to judgment as a matter of law. West Elk Ranch, L.L.C. v. United States , 65 P.3d 479, 481 (Colo.2002) ; Silver v. Colorado Cas. Ins. Co. , 219 P.3d 324, 326–27 (Colo.App.2009). We review a grant of summary judgment de novo. West Elk Ranch, L.L.C. , 65 P.3d at 481 ; Silver , 219 P.3d at 327.

B. Railroad Easement

¶ 10 The trial court first held that DSNGRR's right-of-way was more expansive than a typical easement and that DSNGRR had the right to exclusive use and control of the right-of-way. We agree.

¶ 11 The parties agree that the railroad's right-of-way is an easement—rather than a fee interest—because the Dooley deed specifically conveys a "right-of-way for a width of one hundred feet—fifty feet on each side of center line—for the construction of the said Railway through the following described lands...." See Board of Cnty. Comm'rs v. Morris, 147 Colo. 1, 7, 362 P.2d 202, 205 (1961) ; Lincoln Sav. & Loan Ass'n v. State, 768 P.2d 733, 735 (Colo.App.1988) ("[D]eeds which in the granting clause convey a right-of-way over, across, or upon certain lands devolve a right only, and are generally construed as creating an easement."). The issue here is the scope of the railroad's continuously used easement.

¶ 12 Under Colorado and federal precedent, railroad rights-of-way are more expansive than ordinary easements because they convey an exclusive right for the railroad to use the right-of-way and to exclude others, including the owner of the servient estate. Midland Valley R.R. Co. v. Sutter, 28 F.2d 163, 168 (8th Cir.1928) ("[T]he owner of the fee may not use any portion of the right of way either in the immediate use of the railroad company or necessary to the safe and convenient use of that which is in actual service."); Denver & Salt Lake Ry. Co. v. Pacific Lumber Co., 86 Colo. 86, 88–89, 278 P. 1022, 1023 (1929) ("[S]o long as the defendant railway company maintains its line of road[,] it has the right of exclusive use and possession of its right of way .... [and the railway company] could not adequately and fully perform its duty as a common carrier unless its exclusive use of its right of way is retained."); Kansas Pac. Ry. Co. v. Ward, 4 Colo. 30, 33 (1877) ("[The] railway company has the undoubted right to the exclusive use of its roadway, except at public crossings, for the unimpeded passage of its trains."); Sinclair Mktg. Inc. v. City of Commerce City, 226 P.3d 1239, 1244 (Colo. App.2009) ("A railroad's right of way has, therefore, the substantiality of the fee, and it is private property, even to the public, in all else but an interest and benefit in its uses." (quoting West Union Tel. Co. v. Pa. R.R. Co., 195 U.S. 540, 570, 25 S.Ct. 133, 49 L.Ed. 312 (1904) )).

¶ 13 Wolf first argues that modern courts have rejected this expansive construction of railroad easements. The cases Wolf cites are distinguishable, however, because they limit railroads' rights to the subsurface of the right-of-way. See Kansas City S. Ry. Co. v. Arkansas La. Gas Co., 476 F.2d 829, 834–35 (10th Cir.1973) (holding that a railroad cannot prevent servient owner from leasing subsurface rights); Tennessee Gas Pipeline Co. v. Mississippi Cent. R.R. Co., 164 F.Supp.2d 823, 826–27 (N.D.Miss.2001) (holding that a servient estate may lease subsurface rights if such use does not interfere with the railroad's right to the surface of the right-of-way); Energy Transp. Sys., Inc. v. Kansas City S. Ry. Co., 638 P.2d 459, 464 (Okla.1981)(same). In contrast, the only use at issue here is a surface use.

¶ 14 We reject Wolf's further assertion that the source of a railroad's right-of-way grant is determinative in resolving the scope of those rights. Neither federal nor private grants necessarily convey more rights. See, e.g., Denver & Salt Lake Ry. Co., 86 Colo. at 89–90, 278 P. at 1023–24 (construing a federal grant); Midland Valley R.R. Co., 28 F.2d at 168 (construing a private grant).³

¶ 15 We conclude that DSNGRR's right-of-way across Wolf's property is a traditional, expansive railroad easement, which includes the right to exclusive use and control of the surface of the right-of-way.

C. Incidental Use

¶ 16 DSNGRR's expansive easement gives it the right to lease part of its right-of-way to Durango for a public recreation trail. We need not decide whether a recreation trail fulfills a "railroad purpose," because it satisfies the incidental use doctrine.

¶ 17 We affirm on grounds different from those the trial court relied upon. Roque v. Allstate Ins. Co., 2012 COA 10, ¶ 7 ("We can affirm for any reason supported by the record, even reasons not decided by the trial court."). We apply the incidental use doctrine for the first time in Colorado. That doctrine states that a railroad may lease a portion of is right-of-way where the use is incidental to or not inconsistent with the railroad's continued use of its right-of-way for railroad purposes. See Grand Trunk R.R. Co. v. Richardson, 91 U.S. 454, 469, 23 L.Ed. 356 (1875) ( "[I]f the [railroad] company might have put up the buildings, why might it not license others to do the same thing for the same object; namely, the increase of its facilities for the receipt and delivery of freight? The public is not injured, and it has no right to complain, so long as a free and safe passage is left for the carriage of freight and passengers."); International Paper Co. v. MCI Worldcom Network Servs., Inc., 202 F.Supp.2d 895, 902–03 (W.D.Ark.2002) ("[S]o long as the railroad is occupying any portion of the right-of-way, the railroad is entitled to grant licenses or easements to third parties provided the additional use may reasonably be considered to be of benefit to the railroad, [and] while the railroad is occupying any portion of its right-of-way, the underlying owner is not entitled to compensation for obstructions the railroad places or permits to be placed upon its right-of-way."); Mellon v. Southern Pac. Transp. Co., 750 F.Supp. 226, 230 (W.D.Tex.1990) ("The test for...