BERES v. UNITED States, 03-785L

CourtCourt of Federal Claims
Writing for the CourtHORN, J.
PartiesWARREN BERES and VICKI BERES, et al., Plaintiffs, v. UNITED STATES, Defendant.
Docket NumberNo. 04-1457L,No. 04-1466L,No. 04-1456L,No. 04-1467L,No. 04-1473L,No. 04-1459L,No. 04-1471L,No. 04-1474L,No. 04-1463L,No. 04-1468L,No. 04-1465L,No. 04-1458L,No. 04-1469L,No. 04-1472L,No. 03-785L,03-785L,04-1456L,04-1457L,04-1458L,04-1459L,04-1463L,04-1465L,04-1466L,04-1467L,04-1468L,04-1469L,04-1471L,04-1472L,04-1473L,04-1474L
Decision Date07 April 2011

WARREN BERES and VICKI BERES, et al., Plaintiffs,

No. 03-785L
No. 04-1456L
No. 04-1457L
No. 04-1458L
No. 04-1459L
No. 04-1463L
No. 04-1465L
No. 04-1466L
No. 04-1467L
No. 04-1468L
No. 04-1469L
No. 04-1471L
No. 04-1472L
No. 04-1473L
No. 04-1474L

United States Court of Federal Claims

Filed: April 7, 2011

Fifth Amendment Taking; Rails to Trails; Fee versus Easement; Deed Interpretation

John M. Groen, Groen Stephens & Klinge LLP, Bellevue, Wash. and Cecilia C. Fex, Ackerson Kauffman Fex, P.C., Washington, D.C., for the plaintiffs.

Bruce K. Trauben, Trial Attorney, Natural Resources Section, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for the defendant. With him was Ignacia S. Moreno, Assistant Attorney General, Environment and Natural Resources Division.



At issue are rights of way along the eastern shore of Lake Sammamish in King County, Washington. The plaintiffs in these consolidated lawsuits allege that when the United States Department of Transportation, Surface Transportation Board (STB) issued a Notice of Interim Trail Use (NITU), the federal government denied plaintiffs a reversionary interest in the right of way located on their properties, formerly occupied by a railroad, which constituted a taking under the Fifth Amendment to the United States Constitution. Previously, this court issued an opinion in the consolidated cases, denying defendant's motion for summary judgment regarding the interpretation of the General Railroad Right of Way Act of 1875, 18 Stat. 482, 43 U.S.C. §§ 934 et seq (repealed 1976), and the effect on plaintiffs Warren and Vicki Beres. See Beres v. United States, 64 Fed. Cl. 403 (2005). In addition, this court issued an Order in which it forwarded the

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plaintiffs' request for certification on relevant questions of state law to the State of Washington Supreme Court. See Schroeder v. United States, 66 Fed. Cl. 508 (2005). Subsequently, this court issued an opinion in the consolidated cases, addressing issues of collateral estoppel regarding former plaintiffs Gerald L. and Kathryn B. Ray and a number of other plaintiffs in the consolidated cases. See Beres, et al. v. United States, 92 Fed. Cl. 737 (2010). The facts established in those decisions are incorporated into this opinion. Certain relevant facts are repeated below, together with additional facts pertinent to this opinion.


The railroad line in question was originally constructed by the Seattle, Lake Shore & Eastern Railway Company (SLS&E) from May 1887 through March 1888. During May and June 1887, the SLS&E acquired land needed to construct the railroad along the eastern shore of Lake Sammamish by right of way deeds from plaintiffs' predecessors in title: grantors Louis1 and Mary Tahalthkut for the Schroeder plaintiffs, Case No. 04-1456L; grantors Bill and Mary Hilchkanum for the Chamberlin plaintiffs, Case No. 04-1457L; grantors George and Elizabeth Davis for the Klein plaintiffs, Case No. 04-1458L; grantors Bill and Lucinda Sbedzuse2 for the Peterson plaintiffs, Case No. 04-1459L, and the Lane plaintiff, Case No. 04-1468L (on the Sbedzuse deed); grantors Jim and Alice Yonderpump for the Spencer plaintiffs, Case No. 04-1463L; and grantor Alfred Palmberg for the Nelson plaintiffs, Case No. 04-1465L and the Collins plaintiffs, Case No. 04-1472L (on the Palmberg deed) (collectively, the SLS&E Deeds). The deed in Manning, Case No. 04-1466L, was acquired by the Northern Pacific Railway Company (Northern Pacific), successor of the SLS&E, on June 3, 1904 by Quit Claim Deed (the 1904 Reeves Quit Claim Deed) from the Manning plaintiffs' predecessor in title, J.D. and Elizabeth Reeves.3

In pertinent part, the SLS&E Deeds are in the following format:

In Consideration of the benefits and advantages to accrue to us from the location, construction and operation of the Seattle, Lake Shore and Eastern Railway in the County of King in Washington Territory we do

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hereby donate, grant and convey unto said Seattle, Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands in said County, described as follows, to wit:

specific description of lot and section

Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said Railway Company, which location is described as follows, to wit:

description of the metes and bounds

And the said Seattle, Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.

To Have and to Hold said premises with the appurtenances unto the said party of the second part, and to its successors and assigns forever.

In Witness Whereof the parties of the first part have hereunto set their hands and seals this [_] day of [Month], A.D. 1887.

The source deeds in Schroeder, Chamberlin, Klein, Peterson, Lane, and Spencer follow this form. The deed at issue in Nelson and Collins also follows the same form, but contains the following additional sentence in the habendum clause: "All riparian and water front rights on Lake Samamish [sic] are hereby expressly reserved."

The second type of deed in this opinion, the June 3, 1904 Reeves Quit Claim Deed, at issue in Manning, was conveyed to the Northern Pacific and states, in pertinent part:

This Indenture made this third day of June in the year of our Lord one Thousand nine hundred and four, Between J.D. Reeves and Elizabeth Jane Reeves, his wife, the parties of the first part and the Northern Pacific Railway Company, a corporation, the party of the second part, Witnesseth: That the said parties of the first part for and in consideration of the sum of One hundred and Fifty dollars of the United States to them in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged do by these presents, remise, release, and forever quit claim unto the said party of the second part and to its assigns all right, title and interest and estate of said first parties in and to all that certain lot, piece or parcel of land, situate lying and being in the County of King, State of Washington, and particularly bounded and described as follows, to wit:

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The interest of said grantors in and to a tract of Land lying within lines drawn parallel with with [sic]4 the center of the main Line track and fifty feet from said center of the Seattle, Lake Shore & Eastern Railway, now the Northern Pacific Railway, through the Townsite of Inglewood, King County, State of Washington, and running from Ash Street to Willow Streets and through the following Blocks in said Townsite; [list of blocks] according to the plat of said Town of Inglewood as recorded in Volume three, of Plat Books, page 169 records of King County, Washington; the intention being to convey herein a right of way fifty feet on each side of said track through any lots or blocks conveyed to the Grantor J.D. Reeves by grant of date, November 13, 1903, from King County, Washington, said lots being as follows, [list of lots and blocks]

Together will [sic] all and singular the tenements, hereditaments and appurtenances thereunto, belonging, or in anywise appertaining, and the reversions, remainder and remainers [sic], rents, issues and profits thereof.

To have and to hold all and singular the said premises together with the appurtenances, unto said party of the second part and to its heirs and assigns forever. In witness whereof, The said parties of the first part have hereunto set hands and seals the day and year first above written.

Circumstances Surrounding Execution of the Deeds and Subsequent Conduct of the Parties.

The Schroeder Plaintiffs, No. 04-1456L (the Tahalthkut Deed)

The plaintiffs in Schroeder5 are successors in title to Louis and Mary Tahalthkut, who conveyed the right of way to the SLS&E by deed dated May 6, 1887. The Tahalthkuts' property at the time included "Lot 4 and S.E. ¼ of S.W. ¼ Sec. [Section] 32 T. [Township] 25 N. [North] R. [Range] 6 E. [East]." The railroad right of way runs across only Lot 4 of the Tahalthkuts' former property.

After the conveyance to the SLS&E, Louis Tahalthkut entered into an agreement with Daniel J. Reichert on June 22, 1889 to sell and convey to him all timber for logging that was on Louis Tahalthkut's property. The agreement stated, in part, "all and singular

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the timber suitable for logging and piling purposes now standing growing and being on those certain pieces or parcels of land situate lying and being in King County, Washington Territory and particularly described as follows...," and Daniel J. Reichert agreed to take and buy the same. After Louis Tahalthkut died, Mary Tahalthkut conveyed the described property to T.N. Tallentire by Warranty Deed dated May 4, 1907. The 1907 deed is silent regarding the right of way. Ultimately, the parcel in Lot 4 was conveyed to plaintiffs Clifford F. and Kathryn L. Schroeder by Statutory Warranty Deed dated March 29, 1974, which also was silent on the right of way.

The Chamberlin6 Plaintiffs, No. 04-1457L (the Hilchkanum Deed)

The plaintiffs in the Chamberlin7 case are successors in title to Bill and Mary Hilchkanum, who conveyed the right of way to the SLS&E by deed dated May 9, 1887. This deed included "Lots one (1) two (2) and three (3) in section six (6) township 24 North of Range six (6) East." The railroad right of way runs across all three of the lots.

On December 15, 1890, Bill and his then-wife Annie Hilchkanum8 conveyed "[a]ll of lot two (2) in section six (6) township twenty-four (24) north of range six (6) east of Willamette Meridian containing twenty-one and eighty hundredths (21 80/100) acres," to Julia Curley without mention of the right of way. On December 16, 1898, Bill...

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