Home On the Range v. At&T Corp., No. 1:99-ML-9313-DFH-TAB.

• Court: United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
• Writing for the Court: Hamilton
• Citation: 386 F.Supp.2d 999
• Decision Date: 07 September 2005
• Docket Number: MDL No. 1313.,No. 1:99-ML-9313-DFH-TAB.
• Parties: HOME ON THE RANGE, et al., Plaintiffs, v. AT & T CORPORATION, et al., Defendants.

386 F.Supp.2d 999 HOME ON THE RANGE, et al., Plaintiffs,
v.
AT & T CORPORATION, et al., Defendants. No. 1:99-ML-9313-DFH-TAB. MDL No. 1313. United States District Court, S.D. Indiana, Indianapolis Division. September 7, 2005.

Page 1000

Arlene G. Anderson, Henry J. Price, Price Waicukauski Riley & Debrota, Indianapolis, IN, Daniel James Millea, Zelle Hofmann Voelbel Mason & Gette LLP, Jordan Matthew Lewis, Siegel Brill Greupner Duffy & Foster, Minneapolis, MN, Nels John Ackerson, Ackerson Kauffman Fex PC, Roger Coleman Johnson, Koonz Mckenney Johnson Depaolis & Lightfoot, Washington, DC, Mike J. Miller, Solberg Stewart Miller & Johnson Ltd., Fargo,

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ND, Jeffrey Grant Cook, Baltimore Co., Office of Law, Towson, MD, for Plaintiffs.

B. Haven Walling, Jr., Frances J. Miller, Howard N. Feldman, Peter Webb Morgan, Susan Littell, Dickstein Shapiro Morin & Oshinsky, Washington, DC, James McGinnis Boyers, William P. Wooden, Wooden & McLaughlin LLP, Indianapolis, IN, Lois J. Lipton, Robinson Curley & Clayton PC, Chicago, IL, for Defendants.

ENTRY ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON FEDERAL LAND-GRANT ISSUES

HAMILTON, District Judge.

As part of Multi-District Litigation No. 1313, AT & T Fiber Optic Cable Installation Litigation, defendant AT & T Corporation has moved for summary judgment on the claims of several plaintiffs who own property adjoining railroad rights of way that were established under federal legislation to promote railroad construction in settling the American West.¹ Acting under lease agreements with the railroads, defendant AT & T buried and is operating fiber optic telecommunications cables in the land within the right of way boundaries. Plaintiffs are private landowners. The legal descriptions of their properties encompass some portion of one of these rights of way. The United States issued land patents to plaintiffs' predecessors in interest after the railroad rights of way were established. The land patents do not exclude the rights of way from the tracts conveyed by the patents. Plaintiffs contend that the patents gave their predecessors property interests in the rights of way that are infringed by the cables, and plaintiffs have sued AT & T for trespass, slander of title, and unjust enrichment. AT & T has moved for summary judgment, arguing that the land patents issued to plaintiffs' predecessors as a matter of law conveyed no interest infringed by the installation and operation of its cables. For the reasons stated below, AT & T's motion is granted with respect to the rights of way established under the 1862 Pacific Railroad Act and the 1864 Northern Pacific Act, and denied with respect to the right of way established under the General Railroad Right of Way Act of 1875.

Undisputed Facts

There are no disputed facts for purposes of the motion for summary judgment. The parties have stipulated to the following facts:

AT & T has installed and is operating fiber optic telecommunications cable in land underlying federally-granted railroad rights of way. The portions of the rights of way at issue in this case run through parts of Kansas, Montana, North Dakota, and Colorado.

The interests in the rights of way at issue were granted to the railroads or their predecessors in interest by one of the following three statutes: the Pacific Railroad Act of 1862, 12 Stat. 489 ("1862 Act"); the Northern Pacific Act of 1864, 13 Stat. 365 ("1864 Act"); and the General Railroad Right of Way Act of 1875, 18 Stat. 482 ("1875 Act"). Plaintiffs are private landowners. The legal descriptions of the patents issued to their predecessors in title all encompass some portion of one of these rights of way.

Kansas Properties — The 1862 Act: Plaintiffs Kenneth and Dolly Heiland own property in Shawnee County, Kansas. The railroad's interest in the right of way partially included within the legal description of the Heilands' land was created by the 1862 Act. The Heilands' predecessors in title received a patent from the United

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States in 1870. Plaintiffs Viola Layman and Debra and Galen Beach also own property in Shawnee County, Kansas. The railroad's interest in the right of way partially included within the legal description of Layman's and the Beaches' land was created by the 1862 Act. Layman's and the Beaches' predecessor in title received a patent from the United States in 1868.

North Dakota Property — The 1864 Act: Plaintiff Barbara Viestenz owns property in Cass County, North Dakota. The railroad's interest in the right of way partially included within the legal description of Viestenz's land was created by the 1864 Act. Viestenz's predecessor in title received a patent from the United States in 1876.

Montana Property — The 1864 Act: Plaintiff Home on the Range owns property in Wibaux County, Montana. The railroad's interest in the right of way partially included within the legal description of Home on the Range's land was created by the 1864 Act. Home on the Range's predecessor in title received a patent from the United States in 1913.

Colorado Properties — The 1875 Act: Plaintiffs Gene Peterson and B.B. Peterson & Son, Inc. (the "Peterson plaintiffs") own properties in Morgan County, Colorado. The railroad's interest in the right of way partially included within the legal description of the Peterson plaintiffs' land was created by the 1875 Act. The Peterson plaintiffs' predecessors in title received patents from the United States in 1886, 1888, 1903, and 1908.

Discussion

Summary judgment is appropriate if and only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There are no disputed facts relevant to the motion for summary judgment. The question is whether AT & T is entitled to judgment as a matter of law.

The law in this case centers on two federal statutes passed during the Civil War and one passed in the following decade. These statutes granted right-of-way interests and other public lands to railroad companies to facilitate private railroad construction and the settlement of the American West. All of the plaintiffs in this case own tracts of land containing a portion of a right of way within their legal boundaries as those boundaries were described in the patents the United States government issued to their predecessors. In each case, the railroad right of way had been granted before the original patent had issued for the plaintiffs' land.

AT & T has installed its cables within the bounds of the rights of way, but below the surface of the land. The plaintiffs claim that the land below the surface is their land and that AT & T, by burying its cables there, has trespassed, slandered their titles, and been unjustly enriched at their expense.

Plaintiffs base their case on three main premises: (1) their predecessors' patents conveyed legal title to the land where the cable was laid; (2) the railroads' rights of way are limited to a surface easement for railroad purposes; and (3) even if the railroads' right of way interest extends to the subsurface depth of AT & T's cables, those cables are not a railroad purpose and so exceed the scope of the rights of way and infringe plaintiffs' rights.

AT & T asserts that the plaintiffs have no legal interest whatsoever to the land where the cable was laid. It also asserts that the cables are for a railroad purpose and so are within the scope of the right of way.

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The first question is whether any of the plaintiffs have any interest in the land beneath the right of way that would support their claims against AT & T. The relevant case law is extensive and in considerable tension. The statutes themselves contain similar but not identical language. As explained in detail below, however, a shift in congressional policy with respect to the railroad right of way grants occurred in 1871. Courts have distinguished between the statutes enacted before and after that shift. The distinction is critical in this case. In light of the specific statutory language, controlling case law, and congressional policy, AT & T is entitled to summary judgment as a matter of law as to the rights of way established under the 1862 and 1864 Acts. AT & T is not entitled to summary judgment on the rights of way created under the 1875 Act.

I. The Grants Under the 1862 and 1864 Acts

Section 1 of the Northern Pacific Act of 1864 created the Northern Pacific Railroad Company and empowered it to construct and maintain a railroad and telegraph line between Lake Superior and Puget Sound. Section 2 granted the right of way:

for the construction of a railroad and telegraph, as proposed; and the right, power, and authority is hereby given to said corporation to take from the public lands adjacent to the line of said road, material of earth, stone, timber, and so forth, for the construction thereof. Said way is granted to said railroad to the extent of 200 feet in width on each side of said railroad, where it may pass through the public domain, including all necessary ground for station buildings, workshops, depots, machine shops, switches, side tracks, turn-tables, and water stations....

Act of July 2, 1864, 13 Stat. 356. The language of the parallel section of the Pacific Railroad Act of 1862 is materially identical. Act of July 1, 1862, 12 Stat. 489.

A. The Appropriation Doctrine

Under the appropriation doctrine in American public land law, the land subject to the rights of way granted under the 1862 and 1864 acts was removed from the public domain when the United States granted the rights of way and the railroads were built. Since the patents could convey only interests in land within the public domain, the plaintiffs' predecessors acquired no interest in the land subject to the right of way when they acquired their patents.

In Wilcox v. Jackson, 38 U.S. 498, 13 Pet. 498, 10...