Mellon v. Southern Pacific Transport Co.

• Decision Date: 28 March 1990
• Docket Number: No. P-89-CA-48.,P-89-CA-48.
• Parties: Timothy MELLON, Plaintiff, v. SOUTHERN PACIFIC TRANSPORT COMPANY and MCI Communications, Inc., Defendants.
• Court: U.S. District Court — Western District of Texas

750 F. Supp. 226

Timothy MELLON, Plaintiff, v. SOUTHERN PACIFIC TRANSPORT COMPANY and MCI Communications, Inc., Defendants.

No. P-89-CA-48.

United States District Court, W.D. Texas, Pecos Division.

March 28, 1990.

Rod Price, El Paso, Tex., for plaintiff.

Mark Calhoun, Dallas, Tex., for defendants.

MEMORANDUM OPINION AND ORDER

BUNTON, Chief Judge.

Came on this day to be heard the Motion of the Defendants Southern Pacific Transport Company ("Southern Pacific") and MCI Communications, Inc., ("MCI") for Reconsideration of the Order denying Summary Judgment in the above-captioned cause. Plaintiff responded in a timely manner. Upon consideration of the pleadings, evidence offered by the parties in support of their arguments, and the controlling law, the Court is of the opinion Defendant's Motion for Reconsideration of the Order Denying Summary Judgment is meritorious and should be granted. Plaintiff has failed to demonstrate that under controlling law there is a genuine dispute on a material fact issue.

FACTUAL BACKGROUND

Southern Pacific's predecessor was given a railroad right-of-way in the form of a railroad easement, by the State of Texas, on the property in question in this suit. Southern Pacific now owns this easement or right-of-way. Timothy Mellon ("Mellon"), purchased the property in 1988 subject to Southern Pacific's easement.

Southern Pacific entered into an agreement with MCI granting MCI an easement on the property, provided Southern Pacific install a Fiber Optic Cable 36-40 inches beneath the surface within the railroad right-of-way. This agreement permits MCI to use a portion of the cable as part of MCI's own nationwide telecommunications system, but also obligates MCI to provide telecommunications capacity to Southern Pacific for railroad communication purposes.

Mellon contends the use of the right-of-way for the benefit of a third party constitutes an additional burden on Southern Pacific's easement, and filed this suit alleging an abuse of the right-of-way, trespass to try title, inverse condemnation and conversion and unjust enrichment.

STANDARD ON MOTION FOR SUMMARY JUDGMENT

Rule 56(c) of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions of file, together with the affidavits, if any, show the moving party to be entitled to judgment as a matter of law." Rule 56(e) states:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing there is a genuine issue for trial.

Thus, the focus of this court is upon disputes over material facts; facts which might affect the outcome of the lawsuit under the governing substantive law will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Phillips Oil Co. v. OKC Corp., 812 F.2d 265, 272 (5th Cir.1987), cert. denied, 484 U.S. 851, 108 S.Ct. 152, 98 L.Ed.2d 107 (1987), and the cases cited therein.

The Supreme Court's 1986 trilogy of summary judgment cases clarified the test for granting summary judgment. In Anderson v. Liberty Lobby, Inc., the Court stated the trial court must consider the substantive burden of proof imposed of the party making the claim. In the case before this Court, the Plaintiff has the burden with respect to his claims and Defendants have the burden with respect to defenses and claims for affirmative relief they raise. Plaintiff has the burden to demonstrate that it retains an enforceable interest in the easement and the Defendant is engaging in conduct which is both unreasonable and burdening Plaintiff's adjoining property.

Anderson v. Liberty Lobby requires this Court to substantively evaluate the evidence offered by the moving and non-moving party to determine whether the evidence raises a "material" fact question which is "genuine". The Anderson court defined "material" as involving a "dispute over facts which may affect the outcome of the suit under the governing law."

In a second case, the Supreme Court reiterated where the party moving for summary judgment establishes prima facie there is no genuine issue as to any material fact, the non-moving party must then come forward with "specific facts" showing a genuine issue for trial. It must be "more than simply ... there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The third case in the trilogy, Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) held where the moving party shows the opposing party is unable to produce the evidence in support of its case, summary judgment is appropriate. In Celotex Corp., it was not necessary for the motion for summary judgment to be supported by affidavits or other material specifically negating the non-moving party's claim so long as the District Court was satisfied there was an absence of evidence to support it. At that point, the burden shifted to the non-moving party to produce evidence in support of its claims; if it did not produce any, summary judgment was required.

This Court has demonstrated its willingness to allow a non-moving party his day in court in borderline cases where, under the governing law or reasonable extensions of existing laws, the hearing of some testimony would be helpful to understanding the proper application of the law. Such is not the case in the suit sub judice, as the Court is persuaded there is no genuine dispute on a material issue preventing the entry of Summary Judgment and the Plaintiff's claims must fail as a matter of law.

DISCUSSION

The Defendants in their Motion for Reconsideration of the Order Denying Summary Judgment suggest: (1) railroads, such as Southern Pacific may enter into an agreement with a telecommunications company, such as MCI for the installation of fiber optic cable beneath the railroad's right-of-way, even if the cable is to be utilized, in part, for commercial, non railroad uses; (2) if the right to contract does not exist between MCI and Southern Pacific, MCI has the statutory power under Article 1417 to condemn Southern Pacific's right of way "in fee or less"; and (3) federal law preempts state law regarding the rights of railroads and telecommunications companies.

INCIDENTAL USE DOCTRINE

The Defendants suggest the "incidental use doctrine" permits Southern Pacific to grant MCI an easement in Southern Pacific's right-of-way without entitling the owner of the subservient estate to compensation. The incidental use doctrine allows railroads to contract with third parties and controls the permissible scope of railroad authorized right-of-way uses and allows third party commercial uses of the railroad right of way. See, Grand Trunk R.R. v. Richardson, 91 U.S. 454, 468-69, 23 L.Ed. 356 (1875). In Grand Trunk, the Supreme Court held certain structures, though not used exclusively for railroad purposes, were properly located on railroad property. The Grand Trunk Court stated:

It must be admitted that a railroad company has the exclusive control of all the land within the lines of its roadway, ... we are not prepared to assert that it may not license the erection of buildings for its convenience, even though they may be also for the convenience of others ... Such erections would not have been inconsistent with the purposes for which its charter was granted ... And, if the railroad company might have put up the buildings why might it not license others to do the same thing ...

Id.

The 1899 Supreme Court case of Hartford Fire Insurance Co. v. Chicago, M & St. P.R. Co., 175 U.S. 91, 99, 20 S.Ct. 33, 36, 44 L.Ed. 84 (1899), also holds a railroad right-of-way may be occupied by others, in the manner in which the railroad considers best fitted to promote the public use. "It may, in its discretion, permit them (right-of-ways) to be occupied by others with structures convenient for the receiving and delivery of freight upon its railroad, so long as a free and safe passage is left for the carriage of freight and passengers." Id.

In Western Union Telegraph Co. v. Pennsylvania Railroad, 195 U.S. 540, 570, 25 S.Ct. 133, 141, 49 L.Ed. 312 (1904), the Court made the following statement:

A railroad right-of-way is a very substantial thing. It is more than a mere right of passage. It is more than an easement. We discussed its character in New Mexico v. United States Trust Co., 171 U.S. 171. We there said (p. 183) that if a railroad's right of way was an easement it was one "one having the attributes of the fee, perpetuity and exclusive use and possession; also the remedies of the fee, and, like it corporeal, not incorporeal property."

195 U.S. at 570, 25 S.Ct. at 141 (emphasis added).

Texas law permits a wide range of uses by a railroad in its right-of-way, and approved the incidental use of railroad rights-of-way specifically with regard to the erection of telegraph and telephone lines. See Ft. Worth & R.G. Ry. Co. v. Southwestern Telegraph & Telephone Co., 96 Tex. 160, 71 S.W. 270 (1903). In Ft. Worth & R.G. Ry. Co., the Court stated:

The reasons which actuated the legislature are easily conjectured. Telegraph lines were in existence upon rights of way of railway companies throughout the country, and it was common knowledge that they did not impede but rather facilitated, the business of the carriers.... So general has been the opinion that telegraph lines can exist upon the rights-of-way of railroad companies, consistently with the rights of the latter.

Id., 71 S.W. at 275.

The railroad may make many uses of its right-of-way including the building of side tracks, building, telegraph lines, and other structures necessary for its business. See Olive v. Sabine & E.T. Ry. Co., 11 Tex.Civ.App. 208, 33 S.W....