OPINION AND ORDER
Plaintiffs in this Fifth Amendment takings case are landowners who claim fee simple interests in real property formerly subject to railroad easements. The railroad right-of-way is located in southern Massachusetts, and is known locally as the Southbridge Secondary Track. The right-of-way has been acquired by the Commonwealth of Massachusetts for a recreational trail pursuant to a Notice of Interim Trail Use or Abandonment (NITU) issued by the federal Surface Transportation Board (STB). Plaintiffs claim that, if not for the issuance of the NITU, they would have held a fee simple interest free of any easement. They seek compensation from the United States for preventing the easement from extinguishing and thereby taking their property.
Three motions for summary judgment have been filed: (1) Defendant’s motion for
For the reasons explained below, the Court concludes that the Government has taken Plaintiffs’ property through issuance of the NITU and Plaintiffs are entitled to compensation. Initially, the predecessors to the Providence & Worcester Railroad Company (P & W) obtained easements to use the right-of-way for railroad purposes. Under Massachusetts law, if the railroad abandoned the right-of-way, Plaintiffs would have held a fee simple interest free of the easement. The U.S. Government, through the issuance of the NITU, blocked the extinguishment of the easement and imposed a use of the right-of-way that was not within the scope of the original easement. The issuance of the NITU is a taking under the Fifth Amendment for which Plaintiffs are entitled to recover.
Defendant makes two arguments to show why under Massachusetts law it should not be liable for the conversion of the right-of-way to trail use. First, it argues that Plaintiffs’ property interest is subject to the reserved right of the Commonwealth to acquire the land for any public purpose. Second, it argues that a recreational trail use is within the scope of the original easement. The Court finds neither of these arguments to be persuasive. Accordingly, Defendant’s motion for summary judgment on title and cross-motion for summary judgment on liability are DENIED. Plaintiffs’ motion for partial summary judgment on liability is GRANTED.
Background
The Southbridge Secondary Track is a right-of-way located in Worcester County, Massachusetts and Windham County, Connecticut. At issue in this case is the section of the trail located in Massachusetts, from milepost 0.18 in Webster to milepost 1.4 in Dudley, and from milepost 4.8 in Dudley to milepost 10.98 in Southbridge, a distance of approximately 7.4 miles. Pursuant to an agreement between P & W and the Commonwealth of Massachusetts, the land currently is owned by the Commonwealth, subject to P & Ws right to reactivate rail service over the right-of-way in the future.
A. Legal and Stattitory Framework
Although the predecessors in interest to P & W acquired the railroad right-of-way pursuant to Massachusetts law, beginning with the Transportation Act of 1920, eh. 91, § 402, 41 Stat. 456, 477-78, the U.S. Government assumed a central role in the governing of railroads. Nat’l Ass’n of Reversionary Prop. Owners (NARPO) v. Sutface Transp. Bd.,
Through passage of the National Trails System Act Amendments of 1983 (the Trails Act), Congress authorized a process by which the railroad’s right-of-way can be preserved for future railroad use, and during the interim period, used as a recreational trail. 16 U.S.C. § 1247(d) (2006). Under this process, after a railroad files an application to abandon the right-of-way, a state, political subdivision, or private organization may file a request to acquire the right-of-way for interim trail use. 49 C.F.R. § 1152.29(a). If the railroad voluntarily agrees to negotiate an interim trail use, the STB will issue a Certificate of Interim Trail Use or Abandonment (CITU) (for abandonment proceedings), or a NITU (for exemption proceedings). 49 C.F.R. § 1152.29(c)-(d). The STB’s issuance of a CITU or NITU gives the railroad and the interim trail user 180 days to negotiate an agreement. If no agreement is reached within 180 days after the issuance of the CITU or NITU, the railroad can abandon the right-of-way. Id. The notice also allows the railroad to discontinue service, cancel any applicable tariffs, and salvage track and related materials. Id. If the railroad and trail operator reach an agreement, the trail operator assumes full managerial and financial responsibility for the right-of-way subject to future restoration of rail service. 49 C.F.R. § 1152.29(a), (c), (d). The Trails Act provides that interim trail use “shall not be treated, for purposes of any law or rule of law, as an abandonment of the use of such rights-of-way for railroad purposes.” 16 U.S.C. § 1247(d).
The Trails Act process may constitute a Fifth Amendment taking because in many cases the railroad acquired the right-of-way as an easement and there are landowners abutting the right-of-way who own the land in fee simple. In such eases, the landowners “have interests under state property law that have traditionally been recognized and protected from governmental expropriation, and if, over their objection, the Government chooses to occupy or otherwise acquire those interests, the Fifth Amendment compels compensation.” Preseault v. United States,
If there is a taking, the U.S. Government is responsible even if another public entity actually establishes the recreational trail, because the entity acquiring the trail is acting pursuant to U.S. Government authority. Id. at 1551. “[Wjhen the Federal Government puts into play a series of events which result in a taking of private property, the fact that the Government acts through a state agent does not absolve it from the responsibility, and the consequences, of its actions.” Id.
B. The History of the Southbridge Secondary Track
1. Acquisition of the Track
Beginning in the 1850s, the predecessors to P & W began acquiring the Southbridge Secondary Track by deed and condemnation. The parcels at issue in this case are those acquired by the railroad as easements. The parties agree on the identity of these parcels, which they have determined by reviewing the “Schedule of Lands Owned or Used for Purposes of a Common Carrier” for the subject right-of-way dated January 23, 1919, prepared by the New York, New Haven & Hartford Railroad Company and filed with the Interstate Commerce Commission (“the ICC
The right to acquire land as easements through locations and condemnations was granted in the 1800s to railroads through their corporate charters. See Agostini v. North Adams Gaslight Co.,
Defendant provided the Court with relevant sections of two compilations of Massachusetts statutes from the nineteenth century, the Revised Statutes of 1836 and the General Statutes of 1860. These statutes are identical in all material respects regarding railroad easements.
Section 17. A corporation may lay out its road not exceeding five rods wide [82.5 feet]; and for the purpose of cuttings, embankments, and procuring stone and gravel, may within the limits of its charter in the manner herein provided take as much more land as may be necessary for the proper construction and security of the road, or as may be at any time necessary for depot or station purposes.
Section 18. The corporation shall file the location of its road within one year with the commissioners of each county through which the same passes, defining the courses, distances, and boundaries, of such portion thereof as lies within each county. Section 19. A corporation may purchase or otherwise take land or materials necessary for making or securing its road and for depot and station purposes. If it is not able to obtain such land or materials by an agreement with the owner, it shall pay such damages therefor as the county commissioners estimate and determine. Land and materials without the limits of the road shall not be so taken without the permission of the owner, unless the com*138 missioners on the application of the corporation and after notice to the owner first prescribe the limits within which the same may be taken.
Gen. St. ch. 63, §§ 17, 18,19.
2. History of the Track
During the early 1900s, the Southbridge Secondary Track served industries located in Southbridge, Massachusetts. The railroad use of the Southbridge Secondary Track began declining in the 1940s and 1950s with the development of the interstate highway system. In 1976, P & W acquired the South-bridge Secondary Track. P & W used the railroad line on an as needed basis until 1988. In 1988, P & W stopped using the line entirely. The Commonwealth of Massachusetts considered using the Southbridge Secondary Track as a multi-use trail beginning in 1993. In 2000, the Massachusetts Legislature enacted Chapter 235 of the Acts of 2000, “An Act Providing for an Accelerated Transportation Development and Improvement Program for the Commonwealth” which provided “that $1,300,000 shall be expended for the acquisition of the inactive spur line of the Providence and Worcester Railroad Company known as the Southbridge Secondary Track that extends from the town of South-bridge through the town of Webster for an 11 mile recreational bike trail[.]” St. 2000, ch. 235. The 2003 Regional Transportation Plan included potential construction of a mul-ti-use trail along the Southbridge Secondary Track.
On October 15, 2003, P & W filed a Notice of Exemption under 49 C.F.R. § 1152.50 seeking authority from the STB to abandon the Southbridge Secondary Track right-of-way. The abandonment was scheduled to become effective on December 4, 2003. By letter dated November 13, 2003, the Commonwealth of Massachusetts, through its Executive Office of Transportation and Construction, filed a request with the STB asking for the imposition of a public use condition and an interim trail use condition. By letter dated November 21, 2003, P & W agreed to negotiate interim trail use “with the understanding that the Commonwealth has agreed to purchase the [Southbridge Secondary Track] and the parties expect this to occur.” On December 3, 2003, the STB issued the Decision and NITU. The NITU stated that if the parties reached an interim trail use/railbanking agreement by the 180th day after seiwice (by June 1, 2004), interim trail use could be implemented without further action by the STB. If the parties could not reach an agreement, P & W could abandon the right-of-way. The parties were unable to reach an agreement within 180 days, but received several time extensions, extending the negotiation period until September 14, 2004.
On August 24, 2004, P & W signed an agreement for the Commonwealth of Massachusetts to acquire the Southbridge Secondary Track right-of-way. The Commonwealth paid P & W $1.3 million to acquire the right-of-way by eminent domain. P & W formally released the company’s claim for any additional damages or compensation beyond $1.3 million dollars. In the release, P & W stated that the rail line located on the premises has not been abandoned as that term is defined by applicable federal and state regulations. P & W also stated in the release that the right-of-way is subject to the terms of the NITU served on December 3, 2003, and is subject to possible reinstatement of rail service. On August 27, 2004, the Commonwealth issued an Order of Taking stating that it took the land pursuant to Chapter 79 of the General Laws of Massachusetts, its state condemnation statute.
C. Court Proceedings
On March 26, 2009, Capreal, Inc. filed a complaint for itself and as a representative of a class of similarly situated persons and entities. On July 30, 2009, the parties filed a joint proposal concerning class certification. The Court granted class certification on August 18, 2009. The Court stated that as agreed by the parties, the class shall consist of the following individuals:
(1) who own an interest in lands constituting part of the railroad corridor or right-of-way that is locally known as the Southbridge [Secondary] Track and on which a rail line was formerly operated by the Providence and*139 Worcester Railroad Company in Worcester County, Massachusetts, between milepost 0.18 ± in Webster, Massachusetts, and milepost 1.4 ± in Dudley, Massachusetts, and between milepost 4.8 ± in Dudley, Massachusetts, and milepost 10.98 ± in South-bridge, Massachusetts;
(2) whose property was the subject of a Notice of Interim Trail Use issued on December 3, 2003, by the Surface Transportation Board pursuant to the [Trails Act] and its implementing regulations;
(3) who claim a taking of them rights to possession, control, and enjoyment of such lands due to the operation of the railbanking provisions of the [Trails Act], 16 U.S.C. § 1247(d); and
(4) who affirmatively opt into this lawsuit in accordance with the procedures outlined in the Court’s Scheduling Order, issued this date; but
(5) excluding owners of land that abut segments of the subject right-of-way that the railroad acquired fee simple title to; railroad companies and their successors in interest; persons who have filed, intervened or choose to intervene or opt in to separate lawsuits against the United States for compensation for the same interests in land; persons with an ownership interest in the segment of the right-of-way that is located in the State of Connecticut; and persons who are judges and justices of any court in which this action may be adjudicated or to which it may be appealed.
(Order on Plaintiffs’ Motion to Certify Class Action 5-6 (Aug. 18,2009)).
The Court found that the common question of law applicable to all Plaintiffs was whether a Fifth Amendment taking occurred when the STB issued the NITU. Id. at 4. The Court set December 3, 2009 as the date by which putative class members had to opt-in to the class. Id. at 8. Ninety-nine persons or entities opted into the class. See Fourth Amended Compl. ¶ 26. The parties have stipulated that Plaintiffs Krishnakant K. Swadia and Jean M. Murphy meet class eligibility. (Joint Stipulation in Compliance with Court’s April 1, 2011 Order (Apr. 8, 2011)). For the remaining people or entities who have opted into the class, it will be necessary to correlate the locations of the property owned by Plaintiffs with the fee simple segments and easement segments of the right-of-way for the purposes of determining which claims should be dismissed and which claims should proceed. (Joint Status Report Regarding Class Member Eligibility and Further Proceedings 2 (Apr. 16, 2010)). The parties have stated that they were unable to make the correlation based on the maps and title documentation produced to date and have agreed that further mapping should be deferred pending the resolution of the other title and liability issues. Id. The parties also agreed that the case should be resolved through motions for summary judgment.
Defendant filed a motion for summary judgment based on title issues on July 21, 2010. Defendant argued that its motion is dispositive because Plaintiffs’ title is a threshold issue. On September 7, 2010, Plaintiffs responded to this motion, and also filed a motion for partial summary judgment on liability. On November 19, 2010, Defendant filed its cross-motion for summary judgment on liability and reply in support of its motion for summary judgment on title. On January 7, 2011, Plaintiffs filed their reply in support of their motion for partial summary judgment on liability and with leave of the Court, filed a sur-reply in opposition to Defendant’s motion for summary judgment on title. On January 24, 2011, Defendant filed
The Court heard oral argument on February 25, 2011. At the Court’s request, the parties filed a joint stipulation on April 8, 2011 identifying at least one plaintiff who held a fee simple interest on the date of the issuance of the NITU, and who had granted the railroad an easement. The stipulation addressed the Court’s concern that a justicia-ble controversy existed that could be resolved through the pending motions.
Standard of Review
“A motion for summary judgment should be granted if the pleadings, the discovery, and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” RCFC 56(c)(1). A fact is material if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,
The moving party bears the burden of establishing the absence of any genuine issue of material fact, and any doubt over factual issues will be resolved in favor of the non-moving party. Mingus Constructors, Inc. v. United States,
“The fact that both parties have moved for summary judgment does not mean that the court must grant judgment as a matter of law to one side or the other; summary judgment in favor of either party is not proper if disputes remain as to material facts.” Mingus Constructors, Inc.,
Discussion
The Court finds that the federal entity’s issuance of the NITU blocked the extinguishment of Plaintiffs’ easements pursuant to state law and imposed a new use on the easements that was broader in scope than the original easements. To reach this conclusion, the Court addresses three distinct issues. First, the Court must examine what property interest Plaintiffs hold under state law. For this question, although the parties agree that Plaintiffs’ land was taken by the railroad as an easement, Defendant argues that under Massachusetts law, the land would not revert to Plaintiffs upon abandonment. The Court addresses this issue first and finds that Defendant is wrong as a matter of Massachusetts law. The easement would have been extinguished under the operation of state law if P & W had abandoned the right-of-way. Second, the Court addresses the question of whether recreational trails are within the scope of the original easement. If the original easements encompassed recreational trails, no taking would exist. However, the Court finds that the easements did not encompass recreational trails. Third, the Court addresses the issue of abandonment. The Court finds that by filing the notice of exemption, the raili’oad expressed an intent to abandon the right-of-way.
A. Plaintiffs’Property Interest
The Court must first determine the nature of the property interest Plaintiffs would have had under Massachusetts law absent federal action. See Preseault v. I.C.C.,
The property rights of landowners are governed by the law in effect at the time they acquired the land. Hash v. United States,
The commonwealth may at any time during the continuance of the charter of any corporation, after the expiration of twenty years from the opening of its road for use, purchase of the corporation its road, and all its franchise, property, rights and privileges, by paying therefor such sum as will reimburse it the amount of capital paid in, with a net profit thereon of ten per cent a year from the time of the payment thereof by the stockholders to the time of the purchase.
Gen. St. ch. 63, § 138.
The second statute, which was enacted in 1870 and therefore was not part of Massachusetts law when Boston, Hartford & Erie Railroad Company acquired its land through location filings and condemnation, but was passed before the condemnation of the land of William Edwards by the New York and New England Railroad Company, stated: “The Commonwealth may, at any time take and possess the road, franchise and other property of any railroad corporation after giving one year’s notice in writing to such railroad corporation, and paying therefor such compensation as may be awarded by three commissioners.” St. 1870 eh. 325, § 2.
To reach its conclusion on Massachusetts law, Defendant reads the acquisition and location statutes together. In Defendant’s
The Court disagrees with Defendant’s reading of the statutes. “A statute must be interpreted according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished.” Rowley,
Defendant’s interpretation of the stab utes would require this Court to read into the acquisition statutes provisions that are not in the text of the statutes. The acquisition statutes clearly allow the Commonwealth to acquire the railroad’s right-of-way. The language is broad in its description of what the Commonwealth can acquire from the railroad, and it is clear that the Commonwealth can purchase or take the right-of-way regardless of whether it was acquired as a fee simple interest or as an easement. However, the statutes only dictate the responsibilities of the Commonwealth toward the railroad. The statutes are silent on the possible responsibilities of the Commonwealth toward the landowners with reversionary interests if, after acquiring the land, the Commonwealth uses the land for a purpose outside the purpose of the original easement. The Court will not read into this silence a right to take the reversionary owners’ land without any compensation. If the Massachusetts legislature believed that the acquisition statutes included this broader right, it would have said so explicitly.
Further, statements in case law from the second half of the nineteenth century indicate that Massachusetts courts understood these easements to be extinguished upon abandonment. In Nye v. Taunton Branch R.R. Co.,
Two methods are pointed in the Gen. Sts. e. 63, § 19, for the taking of land by a railroad corporation, for making and securing its road, and for depot and station purposes without the limits of the road: First, by purchase and conveyance from the owner[;] [sjeeond, if the owner refuses to sell, by application to the county commissioners and the assessment of damages. By the first method the corporation obtains a fee in the soil; by the second the land is condemned to a servitude, and an easement is created in the corporation, which may be permanent in nature and practically exclusive. When it holds by the first, it derives its title solely from the deed; if the deed is without restriction, reservation or condition, the corporation may convey the land, if no longer necessary for its purposes; when it takes by the second, if the use is abandoned, the easement is extinguished, and the land reverts to the owner of the soil.
Id. at 278-79 (emphasis added) (citation omitted); see also Proprietors of Locks & Canals on Merrimack River v. Nashua & Lowell R.R. Co.,
Massachusetts currently does have a statute that gives it a right of first refusal. Enacted in 1975, the statute states that railroads cannot “sell, transfer, or otherwise dispose of’ a railroad right-of-way without first offering to sell the right-of-way to the Commonwealth. Mass. Gen. Laws ch. 161C, § 7 (1975). However, this law was not in effect at the time the railroad acquired its easements and therefore does not affect the ownership interests of the reversionary property owners.
Furthermore, even recent Massachusetts cases have found that abandonment of the easement by the railroad extinguishes the easement. In 2009, the Massachusetts Land Court noted that when a railroad corporation owned an 1846 easement created pursuant to the location statutes and filed a Notice of Abandonment with the STB, the easement extinguished and the abutting owners held fee simple interests free of the prior railroad easements. Swan v. Mass. Bay Transp. Auth., No. 313413(GHP),
The Court does not question the Commonwealth’s right to acquire railroad rights-of-way for use for any public purpose, while also compensating any abutting landowners for the taking. The power to take land through eminent domain is an inherent power of the state and all private property is subject to the power of the state to take it by eminent domain. Adirondack Ry. Co. v. New York,
Plaintiffs’ fee simple title does not have the inherent restrictions described by Defendant. The railroad had easements that would have been extinguished under state law upon abandonment. The NITU prevented this ex-tinguishment. Unless trail use is within the scope of the easements, the U.S. Government took the land and must compensate Plaintiffs under the Fifth Amendment.
B. Scope of Easement
Although the easements in this case would be extinguished upon abandonment pursuant to Massachusetts law, as the Federal Circuit explained in Preseault, if the original easements are sufficiently broad so that the purpose of the easement could encompass a recreational trail, then use of the right-of-way as a trail is not a violation of Plaintiffs’ underlying fee simple estate. Pre-seault,
The scope of an easement is a matter of state law. See Toews v. United States,
1. The Location and Condemnation Procedure
The parties agree that easements listed on the ICC Schedule as taken by location and condemnation have the scope of easements acquired through the Massachusetts location statutes. (Pis.’ Mot. Summ. J. Liability 14-18; Def.’s Mot. Summ. J. Liability 31.) The location statutes permitted a railroad corporation to “lay out its road not exceeding five rods wide” and to “take as much more land as may be necessary for the proper construction and security of the road.” Gen. St. ch. 63, § 17.
Although no Massachusetts court has decided the precise question of whether the easements taken by the location statutes are broad enough to encompass a recreational trail, those courts have analyzed the scope of these easements. The early cases held that the easements were broad but not limitless. “The right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land, permanent in its nature, and practically exclusive.” Hazen v. Boston and Maine R.R.,
Later cases similarly have held that easements could be used broadly for purposes like in kind to the original easement, but that the uses of railroad easements were not limitless. In Agostini v. North Adams Gaslight Co., the Supreme Judicial Court of Massachusetts, analyzing the 1836 Revised Statutes version of the location statutes,
Thus, the Massachusetts ease law on the railroad easements acquired under the location statutes treats the railroad rights-of-way as easements for public transportation. The Massachusetts courts have held that a use similar in kind could be imposed on these original easements. However, this Court finds that a recreational trail use is outside the scope of easements for public travel. A railroad, or a highway for public travel, has the primary purpose of transporting goods and people. The purpose of a recreational trail is fundamentally different. A bicycle trail does not exist to transport people but rather to allow the public to engage in recreation and enjoy the outdoors. The two uses are distinct and an easement for a recreational trail is not like in kind to an easement for railroads. This Court and the Federal Circuit have adopted similar positions. See Toews v. United States,
2. The Aaron White Deed
The scope of the Aaron White Deed also was not broad enough to convey an easement that could be used for a recreational trail. The relevant section of the Aaron White Deed conveyed the following rights to the railroad:
[A] right of location, construction way and continued passage and use of a Rail way by steam or other power with one or more tracks upon over and through the following described lot of land situated in Dudley in the County of Worcester and Commonwealth of Massachusetts which Rail way is to be built and maintained in manner as is hereinafter mentioned with the reservations hereinafter mentioned.
Aaron White Deed (Feb. 6,1855).
The deed conveyance also discusses the building of walls alongside the railroad, a way to pass under the railroad in one location, and a railroad crossing at another location. Id. The conveyance also stated that the right to transport freight passengers would “not commence until the walls, ways [and] passes across said lot herein agreed to be made by said company shall be completed [and] shall cease whenever and so long as they shall neglect to maintain the same.” Id.
For easements created through conveyance, the easement “must be construed with reference to all its terms and the then existing conditions so far as they are illuminating.” Cannata v. Berkshire Natural Res. Council, Inc.,
The terms of the deed indicate that the easement was limited to the purposes of a railroad. Defendant argues that the easement should be read as broadly as the easements taken by location. (Def.’s Mot. Summ. J. Liability 38.) Whether the Court reads the grant narrowly or more broadly as Defendant desires, the Court still does not find that a recreational trail fits within the scope of the original easement. The Court already has determined that easements taken through the location statutes are not broad enough to include recreational trails.
3. Railbanking
Defendant suggests that, even if the Court finds recreational trail use to exceed the scope of the easement, the Court still should find that railbanking is a permissible use
Other courts reviewing railbanking have similarly concluded that the remote possibility of rail service being restored in the future is insufficient to constitute a railroad purpose. E.g. Toews,
C. Abandonment
Defendant also argues that P & W did not abandon the railroad on the date of the issuance of the NITU, and the Court therefore should limit liability to the incremental burden imposed by railbanking and trail use on the existing easements. (Def.’s Reply Summ. J. Liability 6.) The Court refuses to limit liability in this manner because there was an intention by the railroad to abandon the right-of-way. Abandonment is a question of intent. Sindler v. William M. Bailey Co.,
Conclusion
For the foregoing reasons, the Court finds that the U.S. Government is liable for taking Plaintiffs’ property. Defendant’s motion for summary judgment on title is DENIED, Defendant’s cross-motion for summary judgment on liability is DENIED, and Plaintiffs’ motion for partial summary judgment on liability is GRANTED. The parties are requested to file a joint status report on or before May 27, 2011 containing a proposed schedule for further proceedings in this matter.
IT IS SO ORDERED.
Notes
. The facts contained in this opinion do not constitute findings of fact by the Court. The facts are taken from the parties’ proposed findings of uncontroverted facts and supporting exhibits furnished with the respective motions. The Court is satisfied that the material facts necessary to decide the issues presented are not in dispute.
. The date that John Cheney's land was condemned is unclear from the exhibits, however, it was settled at the same time as the property of the heirs of Ammidown.
. The Boston, Hartford & Erie Railroad Company was the successor to the Southbridge and Blackstone Corporation, Abbott v. New York & N.E.R. Co.,
.Compare sections 54, 55, and 75 of Chapter 39 of the Revised Statutes of 1836 with sections 17, 18, and 19 of Chapter 63 of the General Statutes of 1860. Rev. St. ch. 39, §§ 54, 55, 75; Gen. St. ch. 63, §§ 17, 18, 19.
. When the Court refers to "Plaintiffs” in this opinion, it is only referring to those Plaintiffs listed in the fourth amended complaint who are members of the class. Any Plaintiff listed on the fourth amended complaint who did not own land on December 3, 2003 abutting a segment of the right-of-way taken as an easement is not a member of the class. Defendant asks the Court in its opening brief to enter summary judgment in its favor as to those Plaintiffs whose property abuts segments of the right-of-way taken as fee segments. Entering summary judgment against such Plaintiffs is unnecessary. They are not members of the class and their claims will not proceed once the parties complete the correlation of the segments of the right-of-way to the parcels owned by the Plaintiffs listed in the complaint.
. This 1860 version of the statute was not provided by either party but is available on page 370 at http://www.archive.org/details/generalstatuteso 1860mass, visited by the Court on May 4, 2011. Defendant did provide the Court with an earlier version of the statute from 1836. Rev. St. ch. 39. § 84. The 1836 version is the same in all respects material to this opinion.
. Defendant provided a 1903 compilation version of this statute. The statute quoted appears in the 1870 version available online at page 238 of http://www.archive.org/stream/actsresolvespass 1870mass# page/n5/mode/2up, last visited by the Court on May 5, 2011.
. As noted in the Background section, the Revised Statutes version of the location statutes and the General Statutes version of the location statutes, under which P & W's predecessors took the easements, are the same in all material respects.