Marshall v. Chicago & Northwestern Transp. Co.

• Decision Date: 11 December 1992
• Docket Number: No. 92-CV-0120-B.,92-CV-0120-B.
• Parties: Gary R. MARSHALL, et al., Plaintiffs, v. CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Wyoming

826 F. Supp. 1310

Gary R. MARSHALL, et al., Plaintiffs, v. CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY, et al., Defendants.

No. 92-CV-0120-B.

United States District Court, D. Wyoming.

December 11, 1992.

Loyd E. Smith, Lathrop & Rutledge, Cheyenne, WY, for plaintiffs.

B.J. Baker, Harry B. Durham, III, Brown & Drew, Casper, WY, for defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DECLARING AS MOOT DEFENDANTS' MOTION TO DISMISS CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY AS A PARTY

ALAN B. JOHNSON, Chief Judge.

The above-entitled matter having come before the Court upon Plaintiffs' Motion for Summary Judgment, and the Court having reviewed the parties' arguments and all other material on file herein, and being fully advised in the premises, FINDS and ORDERS as follows:

Background

Plaintiff Gary R. Marshall is the fee owner and plaintiffs Leonard E. and Roxy R. Chamberlain are purchasers of the real property at issue located in Natrona County, Wyoming. Chicago and Northwestern Railroad Company ("C & NR") at one time possessed a two hundred (200) foot right-of-way traversing plaintiffs' lands. The right-of-way was obtained pursuant to a grant under the Act of 1875, 43 U.S.C. §§ 934-39.

Chicago & Northwestern Transportation Company ("C & NT")¹ purported to convey its interest in the lands encompassed by the right-of-way by separate Quitclaim deeds to defendants Forgey Ranch Company and the Kinniburgh & Lyle Partnership.

Contentions of the Parties

The parties stipulate to the fact that C & NT abandoned the right-of-way at issue. Plaintiffs raise the following four issues. First, plaintiffs argue that 43 U.S.C. § 912 applies to the subject parcel regardless of whether the United States patents the land at issue to a private party and retains no underlying interest in the right-of-way other than a mineral one. Second, plaintiffs contend that § 912 applies to both pre- and post-1871 grants. Third, plaintiffs argue that the railroad cannot adversely possess the servient parcel by conveyance. Fourth and finally, plaintiffs contend that grantees of a railroad's right-of-way interest may not adversely possess the right-of-way as a matter of law.

By contrast, defendants contend that 43 U.S.C. § 912 only applies to rights-of-way where the United States retains an interest in the servient estate. Defendants further contend that § 912 applies only to pre-1871 grants. Additionally, regarding adverse possession, defendants urge that a railroad may lawfully begin to adversely possess the servient estate after the United States has patented the servient estate to a private party.² Similarly, defendants contend that defendants Lyle & Kinniburgh, grantees, may adversely possess the right-of-way, notwithstanding the quiet title action.

Standard of Review

The standard for issuing summary judgment was recently stated by the Tenth Circuit:

In considering a party's motion for summary judgment, the court must examine all evidence in the light most favorable to the nonmoving party. Barber v. General Elec. Co., 648 F.2d 1272, 1276 n. 1 (10th Cir. 1981). Summary judgment is proper only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Under this rule, the initial burden is on the moving party to show the court "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). The moving party's burden may be met when that party identifies those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553.

Once the moving party has met these requirements, the burden shifts to the party resisting the motion. The nonmoving party must "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The party resisting the motion "may not rest upon the mere allegations or denials of his pleadings" to avoid summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. The mere existence of a scintilla of evidence will not avoid summary judgment; there must be sufficient evidence on which a jury could reasonably find for the nonmoving party. Id. at 251, 106 S.Ct. at 2511.

Manders v. Okl. ex rel. Dept. of Mental Health, 875 F.2d 263, 265 (10th Cir.1989).

Discussion

The Court finds it useful to divide its discussion into four sections. In the first section, the Court briefly discusses abandonment. In section two, the Court analyzes whether § 912 applies to case at bar. In section three, the Court analyzes defendants' claims of adverse possession. Finally, in section four, the Court rules on defendants' motion to dismiss Chicago & Northwestern Transportation Company as a Party.

1. Abandonment.

A preliminary issue before this Court is whether the parties can stipulate to abandonment of the right-of-way under 43 U.S.C. § 912. The Court holds that, indeed, the parties may so stipulate, but that a court decree or Act of Congress is still required. See e.g., State of Idaho v. Oregon Short Line R.R. Co. ("Idaho II"), 617 F.Supp. 213, 218 (D.C.Ida.1985) (court determined "use and occupancy" under § 912 by combining common law standard of abandonment and statutory requirements). This Court adopts the test formulated in Idaho II to determine "use and occupancy." Id. at 216-18; see also, Vieux v. East Bay Regional Park Dist., 906 F.2d 1330, 1337 (9th Cir.1990). The stipulation itself takes care of the factual issue of actual "use and occupancy." In turn, technical abandonment under the statute can occur only (1) as decreed by a court with jurisdiction, or (2) as declared by an Act of Congress.³ Id., 617 F.Supp. at 216. In the instant case, no court of jurisdiction has declared the subject parcel abandoned up until this time. Nor has the subject parcel been declared abandoned by an Act of Congress.⁴

THEREFORE IT IS

DECREED that Township 35 North, Range 80 West of the 6th P.M., Natrona County, Wyoming, Section W1/2, SW1/2 is abandoned.

2. Whether § 912 applies.

Regarding the first and second above-out-lined issues, the Court holds that (i) 43 U.S.C. § 912; applies regardless of whether the United States patents the land at issue to a private party and the United States retains no underlying interest in the right-of-way other than a mineral interest; and (ii) that § 912 applies to both pre- and post-1871 grants.

In Idaho II, supra, the district court of Idaho paraphrased and parsed § 912, in relevant part, as follows:

1) Whenever public lands which have been may be granted to railroads for use as right-of-way and

2) Use and occupancy of the land for such purposes has ceased

a) by forfeiture, or

b) by abandonment (1) as decreed by a court with jurisdiction, or

(2) as declared by an Act of Congress then,

3) All right/title/interest of the United States in such lands shall be transferred to and vested in any person or entity to whom the United States has granted title by a conveyance purporting to convey lands traversed by a railroad.

617 F.Supp. at 216.

This Court adopts the Idaho II paraphrase and parsing as accurate. In a nutshell, the statute states that if a railroad no longer uses the right-of-way for railroad purposes, then the interest in the right-of-way vests in that person to whom the United States granted its interest in the servient estate, i.e., the patentee. The Court finds nothing in the language of the statute which indicates, as defendant contends, that § 912 only applies if the United States retains an interest in the servient estate. Thus, the Court concludes that the United States need not retain any interest in the servient estate for § 912 to control in the instant case.

Defendant relies on City of Aberdeen v. Chicago and Northwestern Transp. Co., 602 F.Supp. 589 (N.D.S.D.1984) in support of the proposition that the United States must retain a right, title, interest or estate in the servient estate (which the right-of-way traverses) for § 912 to apply to the land at issue in this case. Aberdeen held that § 912 did not apply to post-1871 grants because "when the defendant railroad abandoned its line, there was no `right, title, interest or estate of the United States' left to vest in the plaintiff municipality." 602 F.Supp. at 591.

For reasons outlined in State of Idaho v. Oregon Short Line R.R. Co. ("Idaho I"), 617 F.Supp. 207 (D.C.Idaho 1985), this Court holds that not only need the United States not retain an interest; but also § 912 applies to post-1871 grants. 617 F.Supp. at 212-13. This Court does not agree with Aberdeen's analysis, particularly its understanding of Great Northern Railway Company v. United States, 315 U.S. 262, 62 S.Ct. 529, 86 L.Ed. 836 (1942) upon which the Aberdeen court relied heavily in drawing its legal conclusions. See Aberdeen, 602 F.Supp. at 592. Compare Idaho I, 617 F.Supp. at 211-12. This Court further reasons that "Section 912 would be rendered null if this Court were to find it inapplicable to 1875 Act rights-of-way, for they were specifically enacted to dispose of the United States' retained interest in 1875 rights-of-way." Idaho I, 617 F.Supp. at 212.⁵

3. Adverse Possession.

In defendants' memorandum opposing plaintiffs' motion for summary judgment, defendants contend that a railroad, in its own right, can adversely possess the servient parcel; and, furthermore, that grantees of a railroad's right-of-way interest may adversely possess the right-of-way or, alternatively, the entire property itself. Defendants claim that Chicago & Northwestern Railroad began to adversely possess the servient parcel in the late 1920s. Adverse possession began when the United...