FOX v. NORFOLK SOUTHERN CORPORATION Et Al.
342 Ga. App. 38
| Ga. Ct. App. | 2017Background
- Fox owns ~160 acres in Gordon County divided into Tracts 1–3; a Norfolk Southern rail line (H line) bisects the property and Fox accesses Tracts 2–3 via a private crossing over the railroad right-of-way (ROW).
- An 1868 deed granted the railroad a strip up to 100 feet wide for tracks and sidetracks; valuation maps filed in 1916 and 1927 depict a 100-foot ROW. Fox bought the property in 2001 with recorded plats showing the 100-foot ROW.
- Norfolk Southern planned and (after redesigning) built a passing sidetrack adjacent to the main line in 2007–2008; Fox declined an offer to sell an additional 40-foot strip and alleges the sidetrack now blocks his crossing frequently, impairing agricultural use.
- Fox sued for inverse condemnation and trespass, claiming the railroad’s sidetrack occupies land beyond the true ROW (he contends ROW was only ~45 feet) and/or that blocking his crossing effected a taking of Tracts 2–3.
- The federal court remanded the action to state court; the state trial court granted summary judgment to Norfolk Southern on the taking/trespass related to the sidetrack (finding it within the 100-foot ROW) and held Fox’s access/taking claim to Tracts 2–3 was preempted by the ICCTA.
- On appeal the Court of Appeals affirmed summary judgment that the sidetrack lies within the railroad’s 100-foot ROW and that Fox did not acquire ROW by adverse possession, but reversed the preemption ruling as to Fox’s inverse condemnation claim for interference with access to Tracts 2–3.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope/title to ROW where sidetrack built | 1868 deed limited ROW to the width actually used (~45 ft); thus sidetrack sits on Fox’s land | 1916/1927 valuation maps and surveys show 100-ft ROW; Norfolk Southern holds title to full 100-ft | ROW is 100 ft as shown on historic valuation maps and plats; sidetrack built within railroad's ROW — summary judgment for railroad affirmed |
| Adverse possession of ROW | Fox (and predecessors) used/maintained fence and crossing; tacking of predecessors’ use gives 20+ years | Use was permissive, not hostile; no actual notice to railroad; fence/gate used for livestock control not asserting ownership | Adverse possession fails: possession was permissive, not notorious/hostile with actual notice — summary judgment affirmed |
| Preemption (ICCTA) of inverse condemnation claim for loss of access to Tracts 2–3 | Interference with crossing/access is a state-law taking claim seeking only monetary compensation and does not regulate railroad operations | ICCTA gives STB exclusive jurisdiction over construction/use of side tracks; Fox’s claim arises from sidetrack construction/use and is preempted | As-applied preemption not shown; trial court erred — inverse condemnation claim regarding blocked access to Tracts 2–3 is not preempted and survives summary judgment (reversed as to preemption) |
| Trespass/inverse condemnation for land occupied by sidetrack | Sidetrack occupies land beyond true ROW (taking/trespass) | Sidetrack lies within 100-ft ROW shown on historical maps and plats | Claim fails because record shows railroad owns the 100-ft ROW and sidetrack sits within it — summary judgment for railroad affirmed |
Key Cases Cited
- Jones v. Bowen, 244 Ga. App. 300 (Ga. Ct. App.) (plat incorporated in deed has same effect as full legal description)
- Henson v. Tucker, 278 Ga. 859 (Ga.) (adverse-possession factual/legal standard and requirement of notorious/hostile possession)
- Arnold v. Shackelford, 219 Ga. 839 (Ga.) (20-year prescriptive title elements)
- Woods v. Brannen, 208 Ga. 495 (Ga.) (permissive use of railroad ROW cannot ripen into prescriptive title without actual notice)
- MARTA v. Datry, 235 Ga. 568 (Ga.) (right of access is a compensable property right)
- Dept. of Transp. v. Robinson, 260 Ga. App. 666 (Ga. Ct. App.) (substantial impairment of access may constitute a taking requiring compensation)
- CSX Transp. Inc. — Petition for Declaratory Order, 394 F.3d 382 (2d. Cir.) (Note: STB framework for categorical/as-applied preemption analysis relied on by courts)