Boyer v. United States
14-33
| Fed. Cl. | Nov 8, 2017Background
- Plaintiffs are twelve Benton County, Oregon landowners whose properties abut a 17.86‑mile former railroad right‑of‑way that the Surface Transportation Board (STB) placed into interim trail use (NITU) for railbanking in 2011; Benton County later acquired the corridor and executed a trail‑use agreement with Union Pacific.
- Plaintiffs’ preexisting rights to cross the corridor fall into three categories: crossings reserved in original source deeds, written licenses, and unrecorded crossings (claimed as prescriptive easements). Many plaintiffs stipulate they have not been denied crossing since the NITU.
- Plaintiffs seek severance damages (diminution in value of their remaining parcels) based on the contention that issuance of the NITU made their crossing rights legally uncertain (e.g., locations could be changed or licenses revoked), lowering market value. The joint appraiser produced “after” valuations under two extremes: (A) crossings remain, and (B) no crossings at all—the difference was $2,849,800.
- The United States argues the Trails Act/NITU did not preempt or destroy plaintiffs’ state‑law crossing rights (deed covenants, irrevocable licenses, or prescriptive easements), that any risk of future interference is speculative, and that the plaintiffs’ appraisal assumption (total loss of crossings) is legally unsupported.
- The court previously held the NITU conversion constituted a Fifth Amendment taking; the present cross motions address whether plaintiffs are entitled to severance damages based on alleged post‑NITU uncertainty regarding crossing rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether issuance of the NITU legally eliminated or made uncertain plaintiffs’ preexisting crossing rights so as to support severance damages | NITU created legal uncertainty: deed‑reserved crossings could be relocated by trail operator; licenses could be revoked; prescriptive rights may not bind new trail operator, reducing market value | STB action did not preempt or extinguish crossing rights; Oregon law preserves enforceable crossing rights (covenants running with the land, irrevocable licenses, prescriptive easements); any hypothetical interference is too speculative to support damages | Denied both parties’ summary judgment motions; factual and valuation issues remain for development |
| Whether the plaintiffs’ joint appraiser’s “no access” after valuation can prove severance damages | The extreme valuation demonstrates substantial diminution and supports severance damages if uncertainty affects market value | The appraisal is legally flawed because it assumed total loss of crossings, which the law does not support; cannot solely establish severance damages | Court rejected plaintiffs’ appraisal instruction as legally unsupported; plaintiffs may pursue valuation evidence addressing realistic market concerns |
| Whether plaintiffs can be foreclosed from presenting evidence that post‑NITU litigation risk would affect market value | Plaintiffs contend buyers would value parcels less if access location or enforceability is uncertain | Government contends risk is speculative and, under precedent, state‑law rights foreclose access damages where rights survive NITU | Court allowed plaintiffs the opportunity to present valuation evidence (sales/comparables/expert opinion) on whether litigation risk affects value; factual development required |
| Whether state law (Oregon) presumptively protects crossing rights and thus negates access/severance damages | Plaintiffs maintain varying degrees of vulnerability (licenses, unrecorded crossings) and that enforceability/locations remain uncertain | Government points to Oregon precedent recognizing covenants running with the land, possibility of irrevocable licenses, and prescriptive easements—undercutting plaintiffs’ hypothetical loss | Court found legal risk likely minimal but declined to rule as a matter of law; factual question for trial/appraisal evidence |
Key Cases Cited
- Boyer v. United States, 123 Fed. Cl. 430 (Fed. Cl. 2015) (prior decision holding the NITU conversion constituted a taking)
- Moore v. United States, 61 Fed. Cl. 73 (Fed. Cl. 2004) (addressing valuation impact of potential challenges to crossing rights after trail use conversion)
- Sears v. United States, 132 Fed. Cl. 6 (Fed. Cl. 2017) (holding plaintiffs’ state‑law right to access was not preempted by Trails Act and foreclosed access damages under that factual scheme)
- Otay Mesa Prop., L.P. v. United States, 670 F.3d 1358 (Fed. Cir. 2012) (endorsing the before‑and‑after method for valuing easement takings)
- United States v. Va. Elec. & Power Co., 365 U.S. 624 (U.S. 1961) (same; conventional valuation approach for easement takings)
- Beck v. Lane County, 141 Or. 580 (Or. 1930) (Oregon Supreme Court: covenant requiring railroad to construct/maintain crossings creates enforceable covenant running with the land)
- Brown v. Eoff, 271 Or. 7 (Or. 1975) (recognition in Oregon of irrevocable license doctrine)
- Dority v. Hiller, 162 Or. App. 353 (Or. Ct. App. 1999) (application of irrevocable license where licensee detrimentally relied and improved property)