Fox v. Norfolk S. Corp., A17A0319

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtBranch, Judge.
Parties FOX v. NORFOLK SOUTHERN CORPORATION et al.
Decision Date23 June 2017
Docket NumberA17A0319

342 Ga.App. 38
802 S.E.2d 319

FOX
v.
NORFOLK SOUTHERN CORPORATION et al.

A17A0319

Court of Appeals of Georgia.

June 23, 2017


802 S.E.2d 322

Andrew Edward Feske, Donald Clarence Evans Jr., Cartersville, David Alfred Webster, for Appellant.

Eileen M. Crowley, Atlanta, Hilary Houston Adams, for Appellee.

Branch, Judge.

This appeal arises out of a right-of-way owned by Norfolk Southern Railroad Co. and bisecting a parcel of land owned by C. Randall Fox. After the railroad constructed a passing side track running parallel to the existing track situated in the right-of-way, Fox sued Norfolk Southern Corporation and Norfolk Southern Railroad Co.1 in Gordon County Superior Court, asserting claims for inverse condemnation and trespass. Fox now appeals from the trial court's order granting summary judgment to Norfolk Southern, as well as the order denying Fox's motion for reconsideration. Fox contends that the trial court erred in finding both that the Railroad constructed the passing track within its right-of-way, and that Fox has not acquired any part of that right-of-way by adverse possession. Additionally, Fox asserts that the trial court erroneously found that his claim for inverse condemnation of his property situated to the east of the railroad tracks is preempted by federal law. For reasons explained more fully below, we find no error in the trial court's grant of summary judgment to Norfolk Southern on Fox's inverse condemnation and trespass claims related to the Railroad's right-of-way, and we therefore affirm the grant of summary judgment on those claims. We further find, however, that the trial court erred in granting Norfolk Southern summary judgment on Fox's claim for inverse condemnation of his property to the east of the railroad tracks. We therefore reverse that part of the trial court's order which found that this claim was preempted by federal law.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "In reviewing a grant or denial of summary judgment, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions." GAPIII, Inc. v. Seal Indus. , 338 Ga. App. 101, 102, 789 S.E.2d 321 (2016). Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward

802 S.E.2d 323

the party opposing the motion. SKC, Inc. v. EMAG Solutions , 326 Ga. App. 798, 798, 755 S.E.2d 298 (2014).

Here, the relevant facts are largely undisputed,2 and they show that Fox owns a piece of real property in Gordon County that is bisected by an active railroad track. The property, which totals approximately 160 acres, originally consisted of three separate tracts of land, which the parties have referred to as Tracts 1, 2, and 3. The western boundary of Tract 1 fronts on Old Dalton Road, and Fox uses Tract 1 to access Tracts 2 and 3. Tract 1 is bounded on the east by the Railroad's right-of-way, and Tracts 2 and 3 are bounded on the west by that right-of-way.3 To access Tracts 2 and 3, therefore, Fox must travel east over the tracks situated in the right-of-way. Fox does this by means of a private railroad crossing that appears to have been in existence as long as the tracks themselves.

In 1868, Norfolk Southern's predecessor in interest obtained title to the right-of-way in fee simple, and the deed conveying the property describes it as

a strip of land along such line as may be adopted by the [Railroad] of sufficient width through said lot of land ... [to] build said rail road as well as all sidetracks and turnouts and necessary and sufficient for all purposes of keeping up
and repairing the same not to exceed fifty feet from the center of the main line to each side making said strip not to exceed one hundred feet—full width together with all the rights and appurtenances to said strip of land....

The deed further provides that the Railroad "shall construct and keep in repair all necessary stock gaps and road crossings" and that "the landowner may cultivate the soil as close to the track as the ditches will permit." The deed was recorded in April of 1871. The railroad tracks were constructed in approximately 1870, and have been in use since that time.

In 1915, the Railroad conducted a survey of all its real property to create a valuation map for filing with the Interstate Commerce Commission ("ICC").4 Fox's land is depicted on the 1916 valuation map, and the map shows the location of the right-of-way granted in the 1868 deed. The map further shows that the right-of-way is 100 feet wide, 50 feet on each side of the track, measured from the track's centerline. The Railroad filed a second valuation map in 1927, and that valuation map also reflects that the Railroad has a 100-foot right-of-way bisecting what is now Fox's land.

Fox purchased the property in question in the fall of 2001, acquiring Tracts 1 and 3 from Total Investment Properties and acquiring Tract 2 from Edmond Holland and Ted Fuller.5 Neither of the deeds transferring title to Fox contain metes and bounds descriptions, but the deed conveying title to Tracts 1 and 3 incorporates by reference a plat of survey dated September 9, 1991, and recorded at Plat Book 23, page 35. The deed conveying title to Tract 2 incorporates by reference a September 2001 survey done for Fox in conjunction with his purchase of all three tracts, and recorded at Plat Book 40, page 7. The September 2001 survey depicts all three tracts, and both the 1991 and the

802 S.E.2d 324

2001 surveys show that the Railroad owns a 100-foot right-of-way that lies between Tract 1 and the remaining property.

The train tracks bisecting Fox's property are part of Norfolk Southern's "H" line. In approximately 2007, Norfolk Southern began to plan the construction of a new passing side track,6 to run parallel to the existing tracks on the H line, including those tracks bisecting Fox's property. As part of that process, the Railroad's engineering department decided that the optimal design for the new passing track would require the Railroad to acquire an additional 40 feet of width adjacent to its existing right-of-way. Norfolk Southern thereafter began approaching property owners, including Fox, about purchasing from each of them the additional right-of-way requested by the engineering department. In May 2007, representatives of Norfolk Southern met with Fox, provided him with a plat showing the additional property the Railroad was seeking to purchase, and offered to buy the land for $25,000. According to Fox, he told the Railroad he would give them the property if they would provide him with a written guarantee that no train would block his private crossing for more than 30 minutes at a time. The Railroad responded that it could not provide such a written guarantee, and Fox therefore declined sell them any additional right-of-way. Engineers at the Railroad then reconfigured the plans for the passing track so that the portion bisecting Fox's property would fit entirely within the existing right-of-way.

The new passing track became operational in January 2008, and according to Fox, trains routinely sit on the new track and block the private railroad crossing that serves his property for up to 24 hours at a time. The blockages are so frequent that Fox, who had previously grazed cattle on the land, can no longer use the property for that purpose. In September 2010, Fox filed the current lawsuit, alleging that based on both the language of the 1868 deed and historical use, the Railroad's right-of-way was only 45 feet wide. Fox therefore contended that the construction of the sidetrack on property outside of a 45 foot strip constituted an inverse condemnation of and trespass against his property. Norfolk Southern removed the case to federal court, asserting that Fox's trespass claim was preempted by federal law and asking the court to exercise supplemental jurisdiction over his claim for inverse condemnation. To support its preemption argument, the Railroad relied on the Interstate Commerce Commission Termination Act of 1996 ("ICCTA"), 49 USCS § 10501, et seq. That statute vests exclusive jurisdiction in the Surface Transportation Board with respect to legal remedies related to "the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities...." 49 USCS § 10501 (b) (2). Specifically, Norfolk Southern argued that Fox's trespass claim sought a remedy related to the construction and operation of a side track because if he prevailed on that claim, the Railroad would be required either to abandon the track or to pay Fox to operate the track. In response, Fox contended that he was seeking damages only for the initial taking of his property and that "[this] trespass claim is duplicative of [the] inverse condemnation claim because both are legal vehicles to ensure that [Fox] is compensated for the loss of his property." Based on this representation, the federal court found that Fox's claims were not preempted because "[t]he issue of whether [the Railroad] wrongfully took [Fox's] property does not relate to the regulation of the Railroad or affect the operation and use of the Railroad. [The Railroad] could continue operating...

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7 practice notes
  • Brumbelow v. Mathenia, A18A1117
    • United States
    • United States Court of Appeals (Georgia)
    • October 4, 2018
    ...or constitutional provision has been drawn in question." (punctuation omitted)); Fox v. Norfolk S. Corp. , 342 Ga. App. 38, 43 (1), 802 S.E.2d 319 (2017) ("[U]nder Georgia law, our Supreme Court has exclusive jurisdiction over appeals involving construction of the Constitution of the State ......
  • Brumbelow v. Mathenia, A18A1117
    • United States
    • United States Court of Appeals (Georgia)
    • October 4, 2018
    ...or constitutional provision has been drawn in question." (punctuation omitted)); Fox v. Norfolk S. Corp. , 342 Ga. App. 38, 43 (1), 802 S.E.2d 319 (2017) ("[U]nder Georgia law, our Supreme Court has exclusive jurisdiction over appeals involving construction of the Constitution of the State ......
  • Price v. United States, 19-1408
    • United States
    • Court of Federal Claims
    • October 15, 2021
    ...suggests, that a deed allowing the permissive use of cultivation would still be fee." Tr. at 43:22-25 (citing Fox v. Norfolk S. Corp., 802 S.E.2d 319 (Ga. 2017)). Plaintiff emphasizes there are no cases in Georgia conveying fee when the grantor reserved some use of the land in the right of ......
  • Albano v. United States, 19-558 L
    • United States
    • Court of Federal Claims
    • February 1, 2022
    ..."right" nor the word "privilege" in anything that could even arguably be construed as a reservation clause. See Fox v. Norfolk S. Corp., 802 S.E.2d 319 (Ga.Ct.App. 2017). In other words, in attempting to draw a legally significant difference between the words "privilege" and "right," the go......
  • Request a trial to view additional results
7 cases
  • Brumbelow v. Mathenia, A18A1117
    • United States
    • United States Court of Appeals (Georgia)
    • October 4, 2018
    ...or constitutional provision has been drawn in question." (punctuation omitted)); Fox v. Norfolk S. Corp. , 342 Ga. App. 38, 43 (1), 802 S.E.2d 319 (2017) ("[U]nder Georgia law, our Supreme Court has exclusive jurisdiction over appeals involving construction of the Constitution of the State ......
  • Brumbelow v. Mathenia, A18A1117
    • United States
    • United States Court of Appeals (Georgia)
    • October 4, 2018
    ...or constitutional provision has been drawn in question." (punctuation omitted)); Fox v. Norfolk S. Corp. , 342 Ga. App. 38, 43 (1), 802 S.E.2d 319 (2017) ("[U]nder Georgia law, our Supreme Court has exclusive jurisdiction over appeals involving construction of the Constitution of the State ......
  • Price v. United States, 19-1408
    • United States
    • Court of Federal Claims
    • October 15, 2021
    ...suggests, that a deed allowing the permissive use of cultivation would still be fee." Tr. at 43:22-25 (citing Fox v. Norfolk S. Corp., 802 S.E.2d 319 (Ga. 2017)). Plaintiff emphasizes there are no cases in Georgia conveying fee when the grantor reserved some use of the land in the right of ......
  • Albano v. United States, 19-558 L
    • United States
    • Court of Federal Claims
    • February 1, 2022
    ..."right" nor the word "privilege" in anything that could even arguably be construed as a reservation clause. See Fox v. Norfolk S. Corp., 802 S.E.2d 319 (Ga.Ct.App. 2017). In other words, in attempting to draw a legally significant difference between the words "privilege" and "right," the go......
  • Request a trial to view additional results

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