Chevy Chase Land Co. v. US, Misc. No. 24

Citation733 A.2d 1055,355 Md. 110
Decision Date29 July 1999
Docket NumberMisc. No. 24
PartiesCHEVY CHASE LAND COMPANY et al. v. UNITED STATES et al.
CourtCourt of Appeals of Maryland

Whayne S. Quin (Paul J. Kiernan, Wilkes, Artis, Hedrick & Lane, Chtd., for Columbia Country Club, all on brief), Washington, DC, for appellants.

Sean H. Donahue, Lois M. Schiffer, Asst. Atty. Gen.; Andrew M. Eschen, all on brief, Washington, DC, for Environment and Natural Resources Div., Dept. of Justice.

Henri F. Rush, Evelyn G. Kitay, Office of the General Counsel, all on brief, Washington, DC, for Surface Transp. Bd.

Diane R. Schwartz-Jones, Associate County Atty. (Charles W. Thompson, Jr., County Atty., Marc P. Hansen, Chief, Div. of General Counsel, all on brief), Montgomery County, for defendant-appellee Montgomery County.

Andrea C. Ferster, Cornish F. Hitchcock, Richard B. Nettler (Robins Kaplan Miller & Ciresi, LLP), Washington, DC, amicus curiae for Rails-to-Trails Conservancy.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ. CHASANOW, Judge.

This case comes to us by a certified order pursuant to Maryland Code (1974, 1998 Repl.Vol.), Courts & Judicial Proceedings Article, ?? 12-603 to 12-609 from the United States Court of Appeals for the Federal Circuit. That court seeks our resolution of the parties' state law property disputes so that it may determine whether an uncompensated taking of private property has occurred in violation of the Fifth Amendment of the United States Constitution.1 The questions pertain to a right-of-way in Montgomery County called the "Georgetown Branch" that was granted to a railroad in 1911 and that has been converted for use as a hiker/biker trail under the federal "Rails-to-Trails" Act (the Act).

Specifically, the case requires that we construe a 1911 deed from appellant Chevy Chase Land Company of Montgomery County (CCLC or the land company) to the Metropolitan Southern Railroad Company (MSRC or the railroad),2 which is a predecessor in interest to the right-of-way now owned by appellee Montgomery County (the County). Additional parties to this appeal include appellant Columbia Country Club (Country Club), which claims an interest in the right-of-way for which it should be compensated, and appellee the United States, which along with the County was named as a defendant in this takings claim. The certified questions are as follows:

1. Under Maryland law, did the 1911 deed convey an interest in fee simple absolute or an easement?

2. If the deed conveyed an easement, is the easement subject to any limitations as a matter of law?

3. If the deed conveyed an easement, has the easement been abandoned as a matter of law since its conveyance and, if so, when?

We examine each of the certified questions, in seriatim.

Addressing the first question in Part II, we conclude that the 1911 deed granting a "right-of-way" to the railroad conveyed an easement. The use of the "right-of-way" language provides a strong indication that the parties intended to convey an easement as opposed to an estate in fee simple absolute. We find nothing in the deed to indicate that anything more than a right of passage was intended, particularly in light of the deed's separate grant "in fee simple" of other land upon which a passenger station was to be located. Our conclusion is confirmed by the circumstances of the conveyance, including the 20-year existence of the railway and the nominal consideration paid by the railroad for the right-of-way. Moreover, the conveyance of the right-of-way in fee simple would not have furthered any purpose of the railway not served by its conveyance as an easement and could adversely affect the public's interest in the best use of the land. See Part II.B., infra.

Regarding the second certified question, we conclude in Part III that use of the right-of-way as a recreational trail falls within the scope of the easement. The language of the deed includes no express limitations on the use of the right-of-way; rather, it indicates through its use of terms such as "free" and "perpetual" that the parties contemplated general use of the land as a way of passage through Montgomery County. In light of our decisions holding that easements for public highways are subject to reasonable changes in mode of transportation and the railroad's status as a highly regulated public service corporation, recreational trail use of a general use right-of-way is within the legally anticipated scope of the 1911 deed. Finally, the use of the right-of-way as a trail poses no unreasonable burden on the underlying fee simple estate, as it is self-evident that bikers and walkers inflict less of a burden on a right-of-way than a freight railroad.

In Part IV we explain why, as a matter of law, the railroad did not abandon its easement prior to assigning it to Montgomery County in 1988. To the extent that the appellants' arguments regarding abandonment hinge on their contention that the scope of the easement is limited to railroad purposes, our holding in Part III also disposes of this issue. Even if appellants' abandonment arguments are not contingent upon a more limited scope, there is insufficient evidence for appellants to meet their burden of proving abandonment. When determining whether there is an abandonment, the fact that the easement is regulated by federal railroad law is a circumstance that may be relevant to the intent to abandon. The railroad's actions in conformance with federal law cannot supply the decisive and unequivocal act necessary to prove that it abandoned its state law property interest. This is particularly the case when the railroad's actions were entirely consistent with an intent to sell the right-of-way and when a finding otherwise would mean that the railroad intended to violate federal law, exposing itself to criminal and civil liability, when no evidence would support the finding of such an intent. Finally, appellants presented no other evidence that would be sufficient to support a finding of abandonment.

I. BACKGROUND
A. Factual Background

The stipulated facts show the following. The property alleged to have been taken and for which the appellants seek compensation is a strip of land approximately one mile long and 100-feet wide, spanning some 12 acres in Montgomery County, Maryland, that lie on either side and across Connecticut Avenue in Chevy Chase. The mile-long stretch is a segment of an approximately 6.4 mile former railroad line in Montgomery County known as the Georgetown Branch, which runs from Silver Spring southwesterly into the District of Columbia.

The land company was founded in 1890 in part to develop the residential area now known as Chevy Chase and it then owned all the land relevant to this case. In 1891, the land company and the railroad entered into an agreement whereby the land company would convey the "right-of-way" over the mile-long stretch of land and a second parcel "for the purposes of a passenger and freight depot." As part of the agreement, the railroad agreed to erect a passenger station on the second parcel to cost not less than $4,000 (or it would contribute $4,000 toward the land company's construction of the station), to build the tracks to Connecticut Avenue on or before August 31, 1891, and to charge the land company half rates on freight delivered over the line. The railroad missed the August 31, 1891, deadline, but built that portion of the line in 1892, while the rest of the line was not completed until 1910; it never built the passenger and freight station nor did it pay the $4,000 toward the land company's construction of the station. In 1909, the Country Club bought more than 125 acres of land from the land company primarily for use as a golf course. The deed conveyed the property in two separate parcels described by metes and bounds with one parcel on each side of the railroad's right-of-way.

In 1911, after the railroad line had been constructed and in operation for 19 years, the land company executed a deed conveying to the railroad, "its successors and assigns, a free and perpetual right of way" over the land referred to in the 1891 agreement. The deed also conveyed, in "fee simple," the parcel of land on which the depot was to have been built. The railroad paid $4,000 for the conveyance, and the deed stated that the 1891 agreement was "mutually abrogated, canceled and set aside, and the [railroad] is hereby released and discharged from the obligation... of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars." See Part II.C.1.

The railroad used the right-of-way for shipping freight continuously from 1892 until 1985, when damage to a bridge on the right-of-way prevented its use. Between 1969 and 1985, however, traffic over the line had decreased by over 90%. In 1983, in conformance with federal law, the railroad posted a notice on the Georgetown Branch that it would be the subject of an abandonment application before the Interstate Commerce Commission (ICC). A series of internal corporate decisions were made by the railroad in 1984 and 1985 to abandon service over the Georgetown Branch. On April 9, 1986, the railroad applied to the ICC for authorization to abandon rail service on the line, as required by federal regulation. See 49 U.S.C. ? 10903 (1988);3 49 C.F.R. ?? 1152.20-22; and Part IV.A.2. The ICC issued a tentative decision on February 25, 1988, permitting abandonment on condition that the railroad continue to maintain the right-of-way in order to facilitate the possible acquisition of the right-of-way for public use pursuant to the Rails-to-Trails Act, which is codified at 16 U.S.C. ? 1247(d)(1988)(see footnote 3).

After the ICC's tentative decision, Montgomery County began discussions with the railroad about acquiring the right-of-way for a light-rail system as well as a hiker/biker path pursuant to the Rails-to-Trails Act. On December 12, 1988, the ICC approved the...

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