CSX Transp., Inc. v. Clark, 29A04-9408-CV-342

Citation646 N.E.2d 1003
Decision Date24 February 1995
Docket NumberNo. 29A04-9408-CV-342,29A04-9408-CV-342
PartiesCSX TRANSPORTATION, INC., Appellant-Defendant, v. George W. CLARK, Hamilton County Farm Bureau Cooperative Association, Inc., Britton Farms, Inc., and all others similarly situated, Appellees-Plaintiffs.
CourtCourt of Appeals of Indiana

Christopher G. Scanlon, Mark A. Voigtmann, Baker & Daniels, Indianapolis, Michael A. Howard, Noblesville, for appellant.

Henry J. Price, Price & Barker, Indianapolis, Nels J. Ackerson, Ackerson & Bishop, Washington, DC, John D. Proffitt, Campbell, Kyle & Proffitt, Carmel, for appellees.

David C. Ford, Indianapolis, for amicus curiae.


CSX Transportation, Inc. brings this interlocutory appeal challenging the trial court's conditional class certification in this class action lawsuit brought by persons who own land next to, or over which, CSX had a right-of-way (easement) it had abandoned. The class seeks 1) to have the titles to the abandoned right-of-ways quieted in their favor, and 2) to recover damages from CSX for slander of title. CSX raises five issues, none of which constitute reversible error. The Indiana Farm Bureau, Indiana Farmers' Union, and the Railroad Property Owners Association have filed an Amici Curiae brief in support of the conditional class certification.


The facts in the light most favorable to the trial court's conditional class certification reveal that in the past twenty years, railroads have abandoned hundreds of miles of tracks in Indiana as the demand for railroad service has declined. The law is well-established that where a railroad holds only an easement or lesser interest in the property upon which its tracks cross, the abandonment of the tracks triggers an extinguishment of the railroad's interest and ownership reverts to the fee simple owner with a deed containing the property within its description or, if none, the adjoining fee simple owners. Ind.Code 8-4-35-4 and 5; Ross, Inc. v. Legler (1964), 245 Ind. 655, 199 N.E.2d 346. However, where the railroad holds a fee simple interest in a railroad corridor, an abandonment does not trigger an extinguishment of the railroad's fee simple interest. Simkin v. New York Central R.R. Co. (1966), 138 Ind.App. 668, 214 N.E.2d 661. The increasing number of railroad track abandonments has sparked a great deal of litigation over the ownership of abandoned railroad corridors. See, e.g., Brown v. Penn Central Corporation (1987), Ind., 510 N.E.2d 641; Lake County Trust Co. v. Lane (1985), Ind.App., 478 N.E.2d 684, trans. denied; Richard S. Brunt Trust v. Plantz (1983), Ind.App., 458 N.E.2d 251. In an effort to achieve judicial economy and avoid the costs of repetitive suits by individual landowners, class actions have been employed to clear title to these abandoned rights-of-way. See e.g., CSX Transportation, Inc. v. Rabold (1992), Ind.App., 593 N.E.2d 1277, trans. denied.

The clearing of title to these abandoned corridors is important to the adjacent landowners (many of whom are farmers) because the land, in many cases, may be returned to productive farming. Moreover, the clearing of title enables landowners to move their fences to the borders of their property, post areas to prevent hunting, and overall assures that the right-of-way will not be used in a manner inconsistent with the interests of the adjacent landowners. Most of these landowners do not have a sufficiently large economic claim to justify the expense of litigating their claims against CSX separately.

The present class action is based on CSX's unreasonable refusal to acknowledge the extinguishment of abandoned right-of-ways (easements or lesser interests) throughout Indiana and CSX's continued course of conduct in exercising dominion over these extinguished interests which has clouded the landowners' title to abandoned railroad corridors. For example, one class member, Ted Britton, has alleged that CSX has refused to acknowledge that it no longer has an interest in the abandoned easement adjacent to Britton's property and has instead actively attempted to sell the right of way in its entirety to third parties, soliciting minimum bids of $25,000.00. Nowhere in CSX's letters which have solicited such bids has CSX mentioned that its interest in the property may have been extinguished. Britton alleges that this conduct has slandered his title to the abandoned easement and entitles him to recover damages from CSX.

Similarly, class member George Clark alleges that CSX purported to grant an easement

for a fiber optics cable to American Telephone & Telegraph [AT & T] on the abandoned railroad easement adjacent to his property. Clark argues that CSX's purported grant of the easement implies its assertion to ownership of the abandoned corridor in either direction of Clark's property because an isolated easement along the corridor would be of no value to AT & T

Class member Hamilton County Farm Bureau Cooperative Association has alleged that CSX had actually sold the extinguished right-of-way adjacent to the Cooperative's land to a third party, who has now demanded payment of $20,000.00 for the return of the property to the Cooperative. In the quitclaim deed by CSX to the third-party purchaser, CSX reserved a 15 foot easement along/across the premises for fiber optic capabilities.

CSX admitted that it had from time to time transferred whatever interest it may have in abandoned railroad corridors to third parties by quitclaim deed. CSX admitted that four such transfers had been made in Hamilton County.


An interlocutory appeal challenging the conditional certification of a class action requires the court on review to consider only whether the trial court abused the wide discretion afforded it in the application of the Ind.Trial Rule 23 guidelines governing the certification of class actions. Skalbania v. Simmons (1982), Ind.App., 443 N.E.2d 352. In determining whether the trial court abused such discretion, we will not reweigh the evidence and will consider only the evidence most favorable to the trial court's determination and all reasonable inferences to be drawn therefrom. Id. If the trial court's exercise of discretion is supported by substantial evidence, it will withstand appellate review. CSX, 593 N.E.2d at 1278. Where, as in the present case, the trial court enters findings of fact in support of its class certification, our review is governed by the Ind.Trial Rule 52 clearly erroneous standard. See American Cyanamid Company v. Stephen (1993), Ind.App., 623 N.E.2d 1065.

Ind.Trial Rule 23, governing class actions, reads:

(A) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

(B) Class Actions Maintainable. An action may be maintained as a class action if the prerequisites of subdivision (A) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of:

(a) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(b) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interest of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:

(a) the interest of members of the class in individually controlling the prosecution or defense of separate actions;

(b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;

(d) the difficulties likely to be encountered in the management of a class action.

Trial Rule 23 requires litigants to jump through several hoops. Skalbania, 443 N.E.2d at 357. First, the class applicants must establish all the conditions under subsection (A) of T.R. 23; and then they must demonstrate that the common questions of law or fact predominate over individual questions and that a class action is superior to other methods of dispute resolution. Id. Federal class action cases decided under Federal Rule 23 are persuasive authority for Indiana Courts interpreting Ind.Trial Rule 23. Id.


Whether the class certification of the slander-of-title claims satisfied the numerosity requirement of T.R. 23(A)(1)?

CSX asserts that the trial court erroneously permitted the slander-of-title claims to be "piggybacked" on the quiet title claims. CSX points out that the quiet title claims and the slander-of-title claims do not enjoy a "one-for-one relationship" and asserts the trial court was required to enter a "numerosity" finding with respect to both claims. Moreover, CSX asserts there is no evidence in the record that it had slandered the title of any property. We disagree.

The class to be certified must be so numerous that joinder of all...

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