Wolf v. Central Oregon & Pacific Railroad

• Decision Date: 12 August 2009
• Docket Number: A136347.,05CV4330CC.
• Citation: 216 P.3d 316,230 Or. App. 269
• Parties: Terry WOLF and Florence Wolf, Plaintiffs-Appellants, v. CENTRAL OREGON & PACIFIC RAILROAD, INC., a Delaware corporation, Defendant-Respondent.
• Court: Oregon Court of Appeals

216 P.3d 316

230 Or. App. 269

Terry WOLF and Florence Wolf, Plaintiffs-Appellants, v. CENTRAL OREGON & PACIFIC RAILROAD, INC., a Delaware corporation, Defendant-Respondent.

05CV4330CC.

A136347.

Court of Appeals of Oregon.

Argued and Submitted February 24, 2009.

Decided August 12, 2009.

Charles F. Lee argued the cause for appellants. With him on the briefs was Lee & Kaser, P.C.

Daniel Webb Howard argued the cause for respondent. With him on the brief was Gleaves Swearingen LLP.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

EDMONDS, P.J.

Plaintiffs appeal following the trial court's entry of summary judgment in favor of defendant. Plaintiffs, who are owners of real property in Douglas County, Oregon (the Wolf property), brought this action against defendant, claiming a prescriptive easement that would allow them to continue to use the private crossing over defendant's railroad tracks that intersect their land. They also sought damages they alleged had resulted from defendant's removal of the paved surface of the existing private crossing. The trial court granted summary judgment in defendant's favor based on its conclusions that plaintiffs could not obtain a prescriptive easement over a government granted railroad right-of-way and that the railroad, in this case, obtained its right-of-way before plaintiffs' predecessor-in-interest filed his claim to the land at issue. On appeal, plaintiffs assert that the trial court erred in determining that (1) a prescriptive easement could not lie over property granted by the federal government as railroad right-of-way; and (2) the land in question had been granted to the railroad by the federal government. We affirm.

The relevant facts on summary judgment are not in dispute. The Wolf property is bisected by defendant's railroad tracks that were originally authorized by the United States Congress pursuant to a land grant enacted on July 25, 1866 (the 1866 land grant).¹ The 1866 land grant provided for a right-of-way 200 feet wide over the public lands.² In 1880 before the land was surveyed plaintiffs' predecessor-in-interest, Anderson, settled on the Wolf property and constructed a house, barn, and outbuildings. The public survey of the land was filed in June 1882. On August 24, 1882, the railroad filed a definite line location survey with the Secretary of the Interior. The definite line location plotted the course of the tracks over the Wolf property. Thereafter, on September 8, 1882, Anderson filed a preemption claim on the Wolf property with the United States Land Office.³ On February 2, 1883, after the filing of the definite line location, Anderson deeded the railroad a 100-foot wide right-of-way over the Wolf property. Anderson paid the federal government $200 for the land on December 7, 1883, and he received a patent to the land from the federal government in 1887. The railroad tracks were completed over the Wolf property by 1884.

Plaintiffs' home and a portion of their land sit north of the tracks; an additional 14 acres of their land is located on the south side of the tracks. Plaintiffs access the south part of the property by using a private grade crossing over the railroad tracks; plaintiffs and their predecessors-in-interest have used the crossing for many years. In August 2005, defendant removed the paved grade crossing that plaintiffs had been using to cross the tracks and replaced it with gravel. Defendant also required that plaintiffs enter into a license agreement to continue using the crossing. That ultimately led plaintiffs to file this action claiming a prescriptive right to cross the tracks and seeking damages resulting from defendant's removal of the black top.

Defendant filed multiple motions for summary judgment, and the trial court ultimately granted summary judgment in defendant's favor. It stated:

"I have previously ruled and continue to rule that the law is government grant railroad property that is right of way cannot be adversely possessed or subject to a prescriptive easement.

"And the reason for that is that the government grant property was given for railroad right of way only, and if for some reason the railroad does not use it for that purpose the act itself or it weren't able to mature it into the railroad's use the—the property was to revert back to the government."

The court continued:

"As we had traversed in our last argument, what I was unsure about is whether or not the preemption right that was filed and perfected I think is the word we'd use now on September eighth, 1882, by Mr. Anderson related back to his possession in October of 1880.

"And I think the law is clear that if this were a dispute between two private individuals, not involving a government grant of railroad, Mr. Anderson would prevail because the—the preemptive right, when filed on September eighth, 1882, does relate back and the homestead—and a homestead right indeed would relate back to October of 1880, namely, the possession.

"However, not unlike a lot of things in life, as between individuals the law is one thing. As between an individual and a— and the government the law is another thing. And up until the time that the Anderson right is preemptive or homestead is perfected, which it was on 8 September, 1882, up until that time the law is that the government * * * can deed that property to someone else, and they did, in fact, in this case to the railroad, and the railroad's title vested when the line was identified and plotted and that's not later than the 24th of August, 1882."

The court concluded that, under the law and the undisputed facts of the case, the railroad's claim vested first in time and, therefore, plaintiffs could not establish a right to use the railroad crossing.

On appeal, plaintiffs assert that the trial court incorrectly concluded that a prescriptive easement cannot be established, as a matter of law, over federally granted railroad right-of-way. They further argue that the railroad's right-of-way over the Wolf property was not part of the federal grant. In support of that portion of their assignment of error, plaintiffs raise three issues, two of which were not raised before the trial court. Specifically, plaintiffs assert for the first time on appeal that (1) the Wolf property was school land and was "no longer part of the public lands of the federal government on August 24, 1882, because any interest that the federal government had in that land had passed to the state of Oregon no later than the date the government survey was filed" and (2) there was a public road on the Wolf property that predated the definite line location map and "[t]o the extent the existing road gave the public rights as of August 24, 1882, the right-of-way grant would not have cut off those rights." Because neither of those issues was preserved before the trial court, we will not consider them on appeal. ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claimed error was preserved in the lower court * * *.").

Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. There is no genuine issue of material fact where, "based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id.

We turn first to defendant's assertion that the trial court's judgment should be affirmed because the Interstate Commerce Commission Termination Act of 1995 (ICCTA) gives the Surface Transportation Board "exclusive jurisdiction to regulate rail crossing, [and] preempts [plaintiffs'] state-law claim asserting that they have a prescriptive right to a private vehicular crossing over" defendant's tracks. (Emphasis in original.) That issue relates to the ability of the court to grant an effective remedy under state law in this case and, accordingly, we address it at the outset. See Derenco v. Benj. Franklin Fed. Sav. and Loan, 281 Or. 533, 537, 577 P.2d 477 (1978) (addressing preemption first because resolution of that issue might "obviate all other problems, depending upon how it is decided"); see also Anderson v. Evergreen International Airlines Inc., 131 Or.App. 726, 729, 886 P.2d 1068 (1994), rev. den., 320 Or. 749, 891 P.2d 659 (1995) (addressing preemption first because it "implicates [the court's] jurisdiction").

Pursuant to the Supremacy Clause of the United States Constitution, the laws of the United States are "the supreme Law of the Land; * * * any Thing in the Constitution or Laws of any state to the contrary notwithstanding." U.S. Const., Art. VI, cl. 2. State laws that conflict with or are expressly preempted by federal law are, thus, "without effect." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (internal quotation marks omitted). In evaluating whether a federal law preempts a state law, "the purpose of Congress is the ultimate touchstone[.]" Id. (brackets and internal quotation marks omitted). In statutes where Congress has included a provision specifically addressing preemption, areas of state law beyond the scope of that specific statutory provision are not preempted. Id.

The statutory provision at issue in this case, 49 U.S.C. § 10501(b), provides:

"(b) The jurisdiction of the [Surface Transportation Board (STB) ] over—

"(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

"(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be...