WHIPPS LAND & CATTLE v. LEVEL 3

• Decision Date: 14 March 2003
• Docket Number: No. S-01-1206.,S-01-1206.
• Parties: WHIPPS LAND & CATTLE COMPANY, INC., a Nebraska corporation, and Lyndell W. Whipps and Doris Whipps, husband and wife, Appellants, v. LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company, Appellee.
• Court: Nebraska Supreme Court

658 N.W.2d 258

265 Neb. 472

WHIPPS LAND & CATTLE COMPANY, INC., a Nebraska corporation, and Lyndell W. Whipps and Doris Whipps, husband and wife, Appellants, v. LEVEL 3 COMMUNICATIONS, LLC, a Delaware limited liability company, Appellee.

No. S-01-1206.

Supreme Court of Nebraska.

March 14, 2003.

Stephen D. Mossman, of Mattson, Ricketts, Davies, Stewart & Calkins, Lincoln, for appellants.

Danene J. Tushar and Daniel J. Guinan, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.

HENDRY, C.J., and WRIGHT, GERRARD, and MILLER-LERMAN, JJ., and IRWIN, Chief Judge.

GERRARD, J.

NATURE OF CASE

Whipps Land & Cattle Company, Inc., and Lyndell W. Whipps and Doris Whipps (collectively Whipps) sued Level 3 Communications, LLC (Level 3), after Level 3 installed underground fiber-optic cable in railroad rights-of-way that abut Whipps' properties in Hitchcock and Dundy Counties. The primary issue presented in this appeal is whether the district court correctly concluded that Whipps had no interest in the Hitchcock County right-of-way.

FACTUAL BACKGROUND

Although all of the issues presented in this case stem from Level 3's installation of underground fiber-optic cable, the issues differ significantly with respect to the Hitchcock County and Dundy County properties, because of the chain of title of the properties and the railroad rights-of-way.

In 1882, the federal government, pursuant to the General Railroad Right of Way Act of 1875, granted the Republican Valley Railroad Company a right-of-way over the Hitchcock County property, which then still belonged to the federal government. The Hitchcock County property was subsequently granted by patent deed to Alpheus Talkington. The property was eventually conveyed to Frank and Vera Whipps, who in turn conveyed the property by warranty deed to the Whipps Land & Cattle Company, Inc., in 1975. The right-of-way is now held by the Republican Valley Railroad Company's successor, the Burlington Northern and Santa Fe Railway Company (BNSF). The Hitchcock County right-of-way is 200 feet wide.

The Dundy County right-of-way was granted by deed to the Republican Valley Railroad Company in 1881 by Charles Hickman, Whipps' predecessor in title to the Dundy County property. This right-of-way is also now held by BNSF. The right-of-way deed created a right-of-way that is 100 feet wide.

Level 3 entered into an agreement with BNSF granting Level 3 right-of-way access to construct a fiber-optic network along BNSF's rights-of-way. Level 3 installed underground fiber-optic cable within the Hitchcock County right-of-way in 1999. The cable installation occurred on the northern side of the right-of-way, about 90 feet from the railroad tracks, which generally follow the centerline.

Due to an error in Level 3's construction plans, the installation of the cable continued to be 90 feet from the centerline in Dundy County—placing the cable approximately 40 feet outside the right-of-way and on Whipps' Dundy County property. When the discrepancy was discovered, construction was halted and the 2,000 feet of installed cable on the Dundy County property was abandoned. Level 3 completed its construction by rerouting cable installation inside the right-of-way.

Whipps sued for trespass, intentional invasion of privacy, and unconstitutional taking. Whipps sought damages, injunctive relief, and attorney fees pursuant to 42 U.S.C. §§ 1983 (2000) and 1988 (Supp. IV 1998). The district court granted partial summary judgment against Whipps with respect to activities inside the railroad rights-of-way in both Hitchcock and Dundy Counties, concluding that BNSF's rights-of-way were sufficient for BNSF to permit Level 3's cable installation. The district court concluded that BNSF held all title to the Dundy County right-of-way and that Whipps had no interest in the property subject to the Hitchcock County right-of-way.

The matter proceeded to trial regarding Level 3's admitted incursion 40 feet outside the Dundy County right-of-way. The district court rejected Whipps' constitutional claim, finding that Level 3's actions were not a taking, did not involve state action, and were unintentional. The district court found that Level 3's actions were not an intentional invasion of privacy, but simply a trespass. The district court awarded damages for trespass on the Dundy County property in the amount of $3,500. No injunctive relief was granted.

ASSIGNMENTS OF ERROR

Whipps assigns, restated and consolidated, that the district court erred in (1) granting partial summary judgment with respect to Whipps' claims regarding Level 3's installation of cable inside the Hitchcock County right-of-way, (2) refusing to award damages for the unconstitutional taking of the Dundy County property, (3) failing to award attorney fees under §§ 1983 and 1988, (4) failing to find and award damages for an intentional invasion of privacy, and (5) refusing to grant injunctive relief to prevent future trespasses by Level 3.

It should be noted that Whipps does not make any appellate argument with respect to Level 3's installation of cable inside the Dundy County right-of-way. Thus, the issues are generally confined to (1) Whipps' interest, if any, to property inside the Hitchcock County right-of-way and (2) Whipps' claims and damages resulting from Level 3's incursion outside the Dundy County right-of-way.

STANDARD OF REVIEW

In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Egan v. Stoler, 265 Neb. 1, 653 N.W.2d 855 (2002).

Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.

In a federal civil rights action, whether the plaintiff has shown state action is a mixed question of law and fact that is reviewed de novo by an appellate court. See, Puerto Rico Tele. v. Telecommunications Reg. Bd., 189 F.3d 1 (1st Cir.1999); Duke v. Smith, 13 F.3d 388 (11th Cir.1994); Merritt v. Mackey, 932 F.2d 1317 (9th Cir.1991). In a de novo review, an appellate court reaches a conclusion independent of the trial court. Tipp-It, Inc. v. Conboy, 257 Neb. 219, 596 N.W.2d 304 (1999).

An action for injunction sounds in equity. In an appeal of an equitable action, an appellate court tries factual questions de novo on the record and reaches a conclusion independent of the findings of the trial court. See Reichert v. Rubloff Hammond, L.L.C., 264 Neb. 16, 645 N.W.2d 519 (2002).

ANALYSIS

HITCHCOCK COUNTY RIGHT-OF-WAY

We first address Whipps' claims regarding the property inside the Hitchcock County right-of-way. We begin this analysis on the most fundamental level: What, if any, interest does Whipps have in the property inside the right-of-way? Answering this question requires two separate determinations. We must first determine the scope of the railroad right-of-way—what it included and what interest remained in the grantor, the United States. Second, we must determine whether any interest that remained in the United States still remains with the United States or if that interest was subsequently transferred by the United States to Whipps' predecessor in title.

The scope of BNSF's right-of-way is a matter of federal law. It is important to understand, at the outset, that while the vocabulary of the common law of real property is often imported into the discussion of railroad rights-of-way, where those rights-of-way have been created by federal law, they are entirely creatures of federal statute, and their scope and duration are determined, not by common-law principles, but by the relevant statutory provisions. See, Brown v. State, 130 Wash.2d 430, 924 P.2d 908 (1996); Puett v. Western Pacific Railroad, 104 Nev. 17, 752 P.2d 213 (1988).

The Hitchcock County right-of-way was created by virtue of the General Railroad Right of Way Act of 1875 (hereinafter 1875 Act), 43 U.S.C. § 934 et seq. (2000). In State of Idaho v. Oregon Short Line R. Co., 617 F.Supp. 207 (D.Idaho 1985), the court discussed the history of the 1875 Act.

From 1850 to 1871, Congress subsidized railroad construction through large grants of public lands. Great Northern Railroad Co. v. United States, 315 U.S. 262, 263, 62 S.Ct. 529, 533, 86 L.Ed. 836 (1942). In 1871, Congress, with a finger to the prevailing winds of public opinion, changed this policy and discontinued outright grants of land to railroads. Id. Congress, however, still intended railroads to have exclusive use and possession of railroad rights-of-way. This may be inferred from the continued use of the term "right-of-way" in the 1875 Act and from the fact that railroads must have exclusive use of their rights-of-way in order to function. The term "right-of-way," in the context of railroad property interests, is a term of art signifying an interest in land which entitles the railroad to the exclusive use and occupancy in such land.... Because exclusive use and occupancy are not rights comprised within the traditional definition of an easement, definitional problems later arose in describing the nature of the railroad's interest in its right-of-way.

Oregon Short Line R. Co., 617 F.Supp. at 210.

From 1871 to 1875, Congress dealt with railroad rights-of-way on an individualized basis. Id. Congress then passed the 1875 Act, which provided, in relevant part, that "[t]he right of way through the public lands of the United States is granted to any railroad company duly organized under the laws of any State or Territory ... to the extent of one hundred feet on each side of the central line of said road." See § 934. The operative language of the 1875 Act was virtually identical to that of most or all of the pre-1871 acts. Oregon Short Line R. Co., supra.

It is clear that the ...