Vieux v. East Bay Regional Park Dist.
| Decision Date | 26 June 1990 |
| Docket Number | Nos. 87-2509,87-15171,s. 87-2509 |
| Citation | 906 F.2d 1330 |
| Parties | Bob VIEUX; Joyce Vieux; Donald Vieux, Executor of Zwissig Estate; Ralph Pombo; Bob Frick; Gordon Griffith; Marianne Griffith; Kathleen Brockman; Nancy Burr; Miguel Franco; Joe Jess; Paul Marciel; Don Scullion, Executor of Greeley Estate; Antonio Martin; Don Brooks; Edward Depaoli; Ray Peterson; Antonette Egan; Ferma Corporation, a California corporation; Rancho Arroyo De La Alameda, a general partnership, Plaintiffs-Appellants, v. EAST BAY REGIONAL PARK DISTRICT, a body politic, Defendant-Appellee. Bob VIEUX; Joyce Vieux; Donald Vieux, Executor of Zwissig Estate; Ralph Pombo; Bob Frick; Gordon Griffith; Marianne Griffith; Kathleen Brockman; Nancy Burr; Miguel Franco; Joe Jess; Paul Marciel; Don Scullion, Executor of Greeley Estate; Antonio Martin; Don Brooks; Edward Depaoli; Ray Peterson; Antonette Egan; Ferma Corporation, a California corporation; Rancho Arroyo De La Alameda, a general partnership, Plaintiffs-Appellants, v. EAST BAY REGIONAL PARK DISTRICT, a body politic, Defendant, and County of Alameda, a political division of the State of California; Southern Pacific Transportation Company, a Delaware corporation; Santa Fe Pacific Realty Corporation, a Delaware corporation; Robert T. Knox; and John George, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph M. Gughemetti, Joseph M. Gughemetti, A Professional Corp., San Mateo, Cal., for plaintiffs-appellants.
Les A. Hausrath, Wendel, Rosen, Black, Dean & Levitan, Oakland, Cal., for defendant-appellee East Bay Regional Park Dist.
John R. Reese, McCutchen Doyle Brown & Enersen, San Francisco, Cal., for defendants-appellees Appeal from the United States District Court for the Northern District of California.
County of Alameda, Southern Pacific Transp. Co., Santa Fe Pacific Realty Corp., Robert T. Knox, and John George.
Before FERGUSON, BRUNETTI and LEAVY, Circuit Judges.
The opinion filed January 10, 1990 is withdrawn.
The panel voted to deny the petition for rehearing and reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).
The petition for rehearing is DENIED and the suggestion for a rehearing en banc is REJECTED.
I.
This case is a consolidation of two appeals. Appellants are rural landowners whose properties adjoin or are bisected by railroad rights of way located along Niles Canyon and Altamont Pass in Alameda County, California ("landowners"). Appellees are the County of Alameda, two members of the County's Board of Supervisors ("County"), Southern Pacific Transportation Company, Santa Fe Pacific Realty Corporation ("Southern Pacific") and the East Bay Regional Park District ("Park District"). Appellants contend that the railroad abandoned its rights of way and the reversionary rights should fall to them. The district court first granted summary judgment in favor of East Bay Regional Park District and appellants appealed in No. 87-2509. The district court then tried only the issue of abandonment relating to the remaining defendants. The district court found no abandonment and, finding that issue dispositive of all other issues, rendered judgment in favor of the remaining defendants. Appellants appealed in action No. 87-15171.
The courts of appeals review a district court's granting of summary judgment de novo. National Basketball Ass'n v. SDC Basketball Club, 815 F.2d 562, 565 (9th Cir.), cert. dismissed, 484 U.S. 960, 108 S.Ct. 362, 98 L.Ed.2d 386 (1987). All "evidence and factual inferences" are reviewed in the light most favorable to the nonmoving party. State of Alaska v. United States, 754 F.2d 851, 853 (9th Cir.), cert. denied, 474 U.S. 968, 106 S.Ct. 333, 88 L.Ed.2d 317 (1985). Summary judgment must be upheld if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id.
The district court found that whether Southern Pacific had abandoned the right of way and if so, when the abandonment occurred was an issue of fact. The district court's findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard will be given to the opportunity of the district court to judge the credibility of the witnesses. Fed.R.Civ.P. 52(a). A district court's determination of questions of mixed law and fact that implicate constitutional rights are reviewed de novo. Id.
Southern Pacific's predecessors, Central Pacific Railway Company and Central Pacific Railroad Company, acquired the rights of way involved in this case as part of the federal land grants made under the Acts of July 1, 1862 (12 Stat. 489) and July 3, 1864 (13 Stat. 356). Central Pac. Ry. Co. v. Alameda County, 284 U.S. 463, 465, 52 S.Ct. 225, 226, 76 L.Ed. 402 (1932). The property interest that the railroads received before 1871 has been referred to as a "limited fee, with right of reverter." Idaho v. Oregon Short Line R.R. Co. (Idaho I), 617 F.Supp. 207, 210-12 (D.Idaho 1985). After 1871, the government granted the railroads a lesser interest in the property, often referred to as an exclusive use easement. See United States v. Union Pac. R.R. Co., 353 U.S. 112, 119, 77 S.Ct. 685, 689, 1 L.Ed.2d 693 (1957); Great N. Ry. Co. v. United States, 315 U.S. 262, 273-76, 62 S.Ct. 529, 533-35, 86 L.Ed. 836 (1942). The railroads have used these rights of way continuously until the dispute between the parties here arose.
Beginning in October, 1981, Southern Pacific began a several-year process of consolidating its tracks with Western Pacific Railroad's parallel tracks in the same area. The two railroads signed an agreement on October 12, 1981. To facilitate this project, Southern Pacific filed a Notice of Exemption pursuant to 49 U.S.C. Sec. 10505 (1982) 1 from abandonment proceedings with the Interstate Commerce Commission ("I.C.C."), asking to be excused from the regular procedures due to the insubstantial nature of the transaction and the minimal impact the changes would have on railroad employees, customers and the amount of transportation in the area. 49 U.S.C. Sec. 10903 (1982 & Supp. II 1984). The exemption application states in relevant part that:
SPT would not exercise its abandonment exemption authority, if granted, until and unless the SPT-WP [Southern Pacific-Western Pacific] trackage rights agreement had been approved by the Commission.
(Emphasis added.) On September 13, 1982, the I.C.C. published a Notice of Exemption which states in relevant part:
SOUTHERN PACIFIC TRANSPORTATION COMPANY--ABANDONMENT AND ACQUISITION OF TRACKAGE RIGHTS OVER THE WESTERN PACIFIC RAILROAD COMPANY
The purpose of the transaction is to eliminate redundant parallel trackage and share the costs of the remaining trackage. Under the proposed relocation project SPT will abandon its line of railroad from milepost 29.09 at Niles, CA, to milepost 66.5 near Tracy in Alameda and San Joaquin, CA (Niles line). Concurrently, SPT will acquire trackage rights over the parallel WP track which will allow SPT to operate between Niles and Lathorp, CA....
As a condition to the use or exemption, SPT has proposed that any employees affected by the transaction be protected by the conditions set forth in Oregon Short Line.... Since the relocation project involves not only an abandonment but a trackage rights transaction, we must also impose the conditions set forth in Norfolk and Wester Ry Co. (citations omitted). Together these conditions satisfy the statutory requirements of 48 U.S.C. 10505(g)(2).
(Emphasis added.) See 49 C.F.R. 1152.50(d)(3) (1988). In the winter of 1983, storms damaged parts of the track in Southern Pacific rights of way; thereafter Southern Pacific used portions of that track for storage.
Alameda County and Southern Pacific entered an agreement transferring the rights of way to the County in April, 1985. The County Board of Supervisors ratified this agreement on April 23, 1985. The agreement provided that Southern Pacific quitclaim the Niles Canyon and Altamont Pass rights of way to Alameda County. In exchange, the County agreed to place the property into the County's highway system to be used for highway and/or transportation related facilities to comply with 43 U.S.C. Sec. 912 (1982). The County also agreed to grant to the railroad a fiber optic cable easement and a pipeline easement along, over, and under those portions of the Niles Canyon property, and a fiber optic cable easement along, over and under the Altamont Pass property. The County promised to indemnify the railroad against any loss of the easement and to provide another easement should this one be lost. The County assumed liability for all drainage facilities, culverts, structures, bridges and tunnels including liability for their removal. The railroad retained a license to use the property as a training ground through July, 1985 and to enter the property within a year following this agreement to remove any rails, ties and gravel. The railroad retained liability as to these activities. The railroad continued to use the rights of way through the summer of 1985, when they completed consolidation with Western Pacific. For example, the railroad used the rights of way for training purposes and storage of railroad cars, and continued to classify the rights of way as operating property, and paid taxes on them. Vieux v. County of Alameda, 695 F.Supp. 1023, 1030-31 (N.D.Cal.1987). Southern Pacific removed the rails, ties and gravel between the summers of 1985 and 1986. Id. at 1032.
In order to comply with the California Environmental Quality Act (CEQA), Cal.Pub.Res.Code...
To continue reading
Request your trial
-
Chevy Chase Land Co. v. US, Misc. No. 24
...448 n. 1 (1993)(observing that "abandonment" is a concept in other areas of law beyond the easement context); Vieux v. East Bay Regional Park Dist., 906 F.2d 1330, 1339 (9th Cir.)(noting the permissive nature of ICC abandonment approval, which "is only a determination that ... cessation of ......
-
Gilbrook v. City of Westminster
...intend to accomplish some unlawful objective for the purpose of harming another which results in damage." Vieux v. East Bay Reg'l Park Dist., 906 F.2d 1330, 1343 (9th Cir.1990) (citation and internal quotation marks omitted). To prove a civil conspiracy, the plaintiff must show that the con......
-
Home On the Range v. At&T Corp.
...rights of way themselves, as distinct from interests in the servient estate pursuant to a land patent. E.g., Vieux v. East Bay Regional Park Dist., 906 F.2d 1330 (9th Cir.1990), and Barney v. Burlington Northern R.R. Co., 490 N.W.2d 726 (S.D.1992); contra, City of Aberdeen v. Chicago & Nort......
-
Mireles v. Wells Fargo Bank, N.A.
...“In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” Id.See also Vieux v. East Bay Regional Park District, 906 F.2d 1330, 1343 (9th Cir.1990) (“A civil conspiracy is a combination ‘of two or more persons who, by some concerted action, intend to accom......
-
CHAPTER 5 RAILROAD RECORDS AND TITLES
...F.2d 720 (10th Cir. 1980). Roeder Co. v. Burlington Northern, Inc., 716 P.2d 855 (Wash. 1986). Puett v. Western Pac. R. Co., Park Dist., 906 F.2d 1330 (9th Cir. 1990). [Page 5-31] REVERSIONARY AND SERVIENT INTERESTS IN THE RAILROAD RIGHT OF WAY Presentation by Jon Erik Kingstad, Attorney at......
-
Preserving Transportation Corridors for the Future: Another Look at Railroad Deeds in Washington State
...at 916. 201. Id. 202. Id. 203. Id. at 446, 924 P.2d at 916. 204. Id. at 447, 924 P.2d at 917 (citing Vieux v. E. Bay Reg'l Park Dist., 906 F.2d 1330, 1337 (9th Cir. 1990); Idaho v. Oregon Short Line R.R., 617 F. Supp. 207, 216, 218 (D. Idaho 205. Brown, 130 Wash. 2d at 447, 924 P.2d at 917.......