State of Idaho v. Oregon Short Line R. Co.

• Decision Date: 01 May 1985
• Docket Number: Civ. No. 83-1473.
• Parties: The STATE OF IDAHO, Idaho Transportation Department, ex rel. Carl C. Moore, Lloyd F. Barron and Roy I. Stroschein, Idaho Transportation Board, Plaintiffs, v. OREGON SHORT LINE RAILROAD COMPANY, a Utah corporation, and Union Pacific Railroad Company, a Utah corporation, Defendants, Blaine County, City of Ketchum and City of Hailey, M'Lynn Childers, Joan K. Janoe, John F. Schwartz and Clarise M. Schwartz, husband and wife, and all other individuals and organizations similarly situated, Intervenors.
• Court: U.S. District Court — District of Idaho

617 F. Supp. 207

The STATE OF IDAHO, Idaho Transportation Department, ex rel. Carl C. Moore, Lloyd F. Barron and Roy I. Stroschein, Idaho Transportation Board, Plaintiffs, v. OREGON SHORT LINE RAILROAD COMPANY, a Utah corporation, and Union Pacific Railroad Company, a Utah corporation, Defendants, Blaine County, City of Ketchum and City of Hailey, M'Lynn Childers, Joan K. Janoe, John F. Schwartz and Clarise M. Schwartz, husband and wife, and all other individuals and organizations similarly situated, Intervenors.

Civ. No. 83-1473.

United States District Court, D. Idaho.

May 1, 1985.

Robert L. Trabert, Chief Legal Counsel, Patrick W. Fanning, Leonard G. Hill, Idaho Transp. Dept., Boise, Idaho, for plaintiffs State of Idaho, Idaho Transp. Dept. ex rel. Carl C. Moore, Lloyd F. Barron and Roy I. Stroschein, Idaho Transp. Bd.

Duane A. Bybee, Green, Service, Gasser & Kerl, Pocatello, Idaho, for defendants Oregon Short Line R. Co., Union Pacific R. Co.

James W. Phillips, Ketchum City Atty., Ketchum, Idaho, for intervenor City of Ketchum.

Sandra Shaw, Pros. Atty., Russell G. Pinto, Sp. Deputy Pros. Atty., Hailey, Idaho, for intervenor City of Hailey and Blaine County, Idaho.

John C. Ward and Brian R. Hanson, Holland & Hart, Langroise, Sullivan & Smylie, Boise, Idaho, for intervenors M'Lynn Childers, Joan K. Janoe, John F. Schwartz and Clarise M. Schwartz.

MEMORANDUM DECISION

CALLISTER, Chief Judge.

Before the Court are three motions: (1) Defendants' motion to amend order and to strike complaint of intervenors Childers et al.; (2) Intervenor Blaine County's motion for partial summary judgment; and (3) Defendants' motion for summary judgment. Counsel for the parties presented oral argument on these matters on April 5, 1985, and the Court has reviewed the memoranda submitted as well as all other materials on file in this case.

The following is a brief summary of the factual and procedural history of this case.

This is a suit for declaratory relief brought by the State of Idaho, Idaho Transportation Department, and Idaho Transportation Board against two railroad company defendants, the Oregon Shortline Railroad Co. and the Union Pacific Railroad Company, both of which are Utah corporations. Jurisdiction is based on diversity.

The plaintiffs' complaint alleges that the defendants presently hold title to a 54.19 mile strip of railroad land extending from Richfield, Idaho, to Ketchum, Idaho (referred to as the "Ketchum Branch"). The strip of land comprises approximately 1,207 acres. Of the 1,207 acres, 985 acres were acquired by the defendant railroad companies from the United States Government under the 1875 General Railway Right-of-Way Act for use as a railroad right-of-way. Plaintiffs allege that in May of 1982, the defendants applied, as required by federal law, to the Interstate Commerce Commission (ICC) for authorization to abandon the Ketchum Branch due to lack of traffic. They further allege that in June of 1982, the ICC authorized the abandonment and discontinuance of service. Under the terms of the ICC ruling, the railroads were required to notify the ICC in writing within one year if "actual" abandonment were to take place—otherwise the authorization would be revoked. In June of 1983, the defendants gave notice in writing that they had chosen not to proceed with actual abandonment but stated that they instead desired to convert the line to sidetrack; the defendants are presently using the track for storage purposes.

The State of Idaho has portions of three state highways which run parallel to the Ketchum Branch and the State has expressed interest in the railroad property. The State wishes to widen the highways using the railroad property. Plaintiffs began negotiating with defendants to acquire the land but a controversy arose as to the character and extent of the railroads' interest in the lands and as to whether the defendants had abandoned the Ketchum Branch. In their complaint, plaintiffs state that they do not wish to pay the $5.5 million asking price of the defendants but instead wish to acquire the property as "abandoned property" under 43 U.S.C. § 912. The plaintiffs claim that on March 9, 1983, they declared their intent to embrace the land as public highway under the requirements of § 912.

In their first cause of action, the plaintiffs seek a declaration from this Court as to whether the defendants have abandoned the Ketchum Branch under § 912 and what acts would constitute abandonment. Plaintiffs also ask the Court to define the acts necessary for the State to embrace the land. In their second cause of action, plaintiffs ask the Court to determine whether the defendants are otherwise restricted from conveying good title to the land to the plaintiffs under 43 U.S.C. § 912. Plaintiffs seek a declaration "establishing defendants' rights to transfer to plaintiff pursuant to 23 United States Code Section 316 as limited by 43 United States Code Section 913...." Plaintiffs' complaint, p. 7.

Shortly after the plaintiffs' complaint was filed, three parties moved to intervene and were allowed to do so by the Court. Those intervenors are Blaine County, the City of Ketchum, and the City of Hailey. Each of the intervenors filed a complaint for declaratory relief contending that a portion of the Ketchum Branch runs through its city or county boundaries and asking the Court to declare that defendants have abandoned the portion of property within the intervenors' boundaries under § 912 and that title is therefore vested in the respected intervenor. In the alternative, intervenors ask the Court to declare that any conveyance by the defendants to the intervenors would constitute abandonment by the defendants and/or would convey all right and title to the property to the intervenors.

On December 28, 1984, a motion to intervene was filed by M'Lynn Childers, Joan K. Janoe, John F. Schwartz, and Clarise M. Schwartz, individually, and on behalf of all individuals and organizations similarly situated. At a hearing held January 15, 1985, the Court granted this motion to intervene for the limited purpose of litigating the issues already before the Court.

Defendants' Motion to Amend Order and to Strike Complaint of Intervenors Childers et al.

The Court stated from the bench that it would strike counts two and three from the complaint of intervenors Childers et al. Further, the Court indicated that at this time no ruling would be made on the question of class certification.

Intervenor Blaine County's Motion for Partial Summary Judgment.

Blaine County's motion for partial summary judgment presents the purely legal question of whether 43 U.S.C. § 912 applies to railroad rights-of-way granted under 43 U.S.C. § 934 et seq., the General Railway Rights-of-Way Act of 1875 (1875 Act). Blaine County argues that § 912 does apply to 1875 Act rights-of-way. As a corollary to its argument, Blaine County also asserts that 23 U.S.C. § 316 must apply if § 912 does; in other words, either both provisions apply or neither does. Blaine County's position is adopted by the plaintiffs, intervenor City of Hailey and intervenor City of Ketchum. The defendant railroads do not appear to reach the question of whether § 912 applies, but instead argue that § 912 does not apply because no abandonment has occurred under the facts of this case. Thus, defendants, as the Court understands their position, do not accept or deny the threshold applicability of § 912 to 1875 rights-of-way.

The only parties, then, contesting the applicability of § 912 are intervenors Childers et al. They argue that §§ 912 and 316 apply only to pre-1871 rights-of-way and not to 1875 rights-of-way. These intervenors contend that the pre-1871 rights-of-way gave railroads a fee simple interest subject to a reversion in the United States Government. Post-1871 rights-of-way gave railroads only an easement interest which, upon its termination by abandonment or other means, merely unburdens the underlying servient estate, without any reversion to the Government. Thus, these intervenors contend that §§ 912 and 316 were not necessary as to the post-1871 grants because no reversionary interest exists.

This Court is of the opinion that § 912 does apply to 1875 Act rights-of-way.

From 1850 to 1871, Congress subsidized railroad construction through large grants of public lands. Great Northern Railroad Co. v. United States, 315 U.S. 262, 263, 62 S.Ct. 529, 533, 86 L.Ed. 836 (1942). In 1871, Congress, with a finger to the prevailing winds of public opinion, changed this policy and discontinued outright grants of land to railroads. Id. Congress, however, still intended railroads to have exclusive use and possession of railroad rights-of-way. This may be inferred from the continued use of the term "right-of-way" in the 1875 Act and from the fact that railroads must have exclusive use of their rights-of-way in order to function. The term "right-of-way," in the context of railroad property interests, is a term of art signifying an interest in land which entitles the railroad to the exclusive use and occupancy in such land. See 65 Am.Jur.2d § 73 at p. 385 (1972), and cases cited therein. Because exclusive use and occupancy are not rights comprised within the traditional definition of an easement, definitional problems later arose in describing the nature of the railroad's interest in its right-of-way. See, e.g., State of Wyoming v. Udall, 379 F.2d 635 (10th Cir.1967).

From 1871 to 1875, Congress passed special acts which granted rights-of-way to railroads on an individual basis. This practice becoming overly burdensome, Congress passed the 1875 Act, a general act, which reads, in pertinent part:

The right-of-way through the public lands of the United States is hereby granted to any railroad company duly organized under the laws of any state or territory, except the District of Columbia, or by the Congress of the United States ... to the extent of one hundred feet on each side

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