*1
Court of
July 1999.
HI *6 Utermohlen, PLC, J. Berridge, Virginia, William Oliff & for Chevy Chase Land Co. (Paul Kiernan, Wilkes, Artis,
Whayne Quin S. J. Hedrick & Lane, Chtd., Club, brief), for Columbia all Country on Wash- DC, ington, appellants. for Donahue, Schiffer, Gen.;
Sean H. Lois M. Asst. An- Atty. Eschen, brief, DC, drew' M. all on Washington, for Environ- Div., ment and Natural Resources Dept, of Justice. Rush, Evelyn Kitay,
Henri F. G. Office of the General Counsel, brief, DC, on Washington, all Transp. Surface Bd. Schwartz-Jones, (Charles
Diane R. County Atty. Associate Jr., Hansen, Thompson, County Atty., Chief, W. Marc P. Div. Counsel, brief), of General all on Montgomery County, for defendant-appellee Montgomery County. Ferster, Hitchcock,
Andrea C. Cornish F. Richard B. Nett- (Robins Ciresi, LLP), ler Kaplan DC, Miller & Washington, amicus curiae for Rails-to-Trails Conservancy. BELL, C.J., ELDRIDGE,
Argued before RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.
H7 CHASANOW, Judge. pursuant certified order to us
This case comes Pro- (1974, Courts & Judicial RepLVol.), Maryland Code United States Article, §§ to 12-609 from the 12-603 ceedings court Circuit. That seeks for the Federal Appeals Court so disputes law property state parties’ our resolution taking of uncompensated determine whether may Fifth Amend- in violation has occurred private property questions per- Constitution.1 ment of the United States called the Montgomery County tain to a in 1911 granted Branch” that “Georgetown as a trail converted for use and that has been hiker/biker (the Act). Act “Rails-to-Trails” under the federal construe a 1911 deed that we Specifically, requires the case Montgomery Chevy Company Chase Land appellant from (CCLC company) Metropolitan to the or the land County (MSRC railroad),2 or the which Company Railroad Southern *7 by right-of-way in now owned a interest predecessor (the County). par- Additional Montgomery County appellee Country Club appellant to this include Columbia appeal ties Club), right-of-way in the which claims an interest (Country the United compensated, appellee for which should be States, as a defen- along County which with the was named are as takings questions in claim. The certified dant this follows: law, convey an
1. did the deed Maryland Under in fee absolute or an easement? simple interest easement, If an is the easement conveyed 2. the deed as a matter of law? subject limitations states in of the United States Constitution 1. The Fifth Amendment use, public pertinent part: private property be taken for “nor shall just compensation”. without (MSRC) Metropolitan Company was a subsid- 2. The Southern Railroad Railroad, subsidiary iary of the CSX O which later became a of the B & indicated, purposes opinion Corporation. of this Unless otherwise MSRC, O, simply B & or CSX as the “railroad.” we shall refer to the easement, If conveyed 3. the deed an has the easement conveyance been abandoned as a matter of law since its and, so, if when? examine of in questions,
We each the certified seriatim. II, first in Part Addressing question we conclude that granting “right-of-way” the 1911 deed to the railroad con- veyed an easement. The use of the “right-of-way” language provides strong indication that parties intended to convey opposed easement to an estate in fee simple in nothing any- absolute. We find the deed to indicate that intended, more than a of thing right passage particularly “in light separate grant simple” the deed’s fee of other upon passenger land which station was to be located. Our by conclusion confirmed the circumstances of the convey- ance, including 20-year railway existence and the nominal paid by right-of- consideration the railroad for the Moreover, way. conveyance of the in fee simple any purpose would not have furthered railway conveyance not served as an easement and could adversely affect the interest public’s the best use of the H.B., land. See Part infra.
Regarding question, the second certified we conclude Part III that use of the as a recreational trail falls within the scope language the easement. The deed includes no limitations on express right-of- the use of the rather, way; it indicates through its use of terms such as “perpetual” “free” and that the parties contemplated general way use the land as a of passage through Montgomery County. light of our decisions holding easements for subject public highways changes are to reasonable mode *8 transportation and the highly regulated railroad’s status as a public service corporation, general recreational trail use of a right-of-way use is within legally anticipated scope Finally, 1911 deed. right-of-way use as a trail poses estate, no unreasonable on underlying simple burden fee it is self-evident that bikers and walkers inflict less of a burden on a than a freight railroad. law, why,
In Part as a matter of the railroad explain IV we to Mont- prior assigning did not abandon its easement it in that the gomery County appellants’ 1988. To extent arguments regarding hinge abandonment on their contention to railroad scope purposes, that the of the easement is limited in III of this issue. Even if holding disposes our Part also not appellants’ arguments contingent upon are scope, appel- more limited there is insufficient evidence proving lants to meet their burden of abandonment. When abandonment, determining whether thei’e is an the fact that regulated by the easement is federal railroad law is a circum- may stance be relevant to the intent abandon. The in railroad’s actions conformance with federal law cannot supply necessary prove the decisive and act unequivocal law This is property abandoned state interest. particularly case actions entirely when the railroad’s were consistent with an intent to sell the and when a finding otherwise would mean that the railroad intended to law, liability, violate federal itself to criminal and civil exposing when no evidence would support finding such intent. Finally, appellants presented no other evidence that would be support finding sufficient to of abandonment.
I. BACKGROUND A. Background Factual The stipulated facts show the following.
alleged to have been taken and for which the appellants seek compensation strip of land approximately long one mile wide, and 100-feet spanning Montgomery some acres County, Maryland, that on lie either side and across Connecti- cut in Chevy Avenue Chase. The stretch is a mile-long of an segment approximately 6.4 mile former railroad line Branch, Montgomery County Georgetown known as the which runs from Spring southwesterly Silver into the District of Columbia.
The land company part develop founded the residential area now Chevy known as Chase and it then *9 1891, In the land case. relevant to this all the land
owned whereby into an agreement railroad entered and the company the over convey “right-of-way” would the company land the purposes “for parcel a second the stretch of land and mile-long agreement, of the part As freight depot.” and passenger of a the second station on passenger to erect agreed the railroad (or $4,000 it contribute than would to cost not less parcel station), of the construction $4,000 company’s the land toward August Avenue on or before tracks to Connecticut to build the freight half rates on 31, 1891, company the land charge and 31, August railroad missed the the line. The delivered over 1892, deadline, line in while 1891, portion but built 1910; built until it never completed was not of the line the rest $4,000 it the pay station nor did freight and passenger In station. construction of the company’s toward the land of land 1909, more than 125 acres Country bought Club course. golf for use as a primarily company from the land separate parcels in two conveyed The deed on each side parcel and bounds with one by metes described right-of-way. railroad’s constructed 1911, the railroad line had been after a deed executed company for 19 the land years, operation railroad, assigns, free “its successors and to the conveying to in the the land referred way” over right and perpetual conveyed, simple,” “fee The deed also agreement. was to have been built. depot on which the of land parcel stated $4,000 conveyance, and the deed for the paid canceled “mutually abrogated, agreement that the 1891 aside, hereby released and the [railroad] and set erecting passenger ... of obligation from the discharged (4,000) Dollars.” than Four Thousand to cost not less station See Part II.C.l. shipping freight
The railroad used bridge to a damage 1892 until when continuously from Between 1969 and its use. right-of-way prevented on the however, by over over the line had decreased traffic law, the railroad in conformance with federal 90%. In that would be the Georgetown Branch a notice on the posted subject of an abandonment application before Interstate (ICC). A corporate Commerce Commission series of internal decisions made the railroad in 1984 and 1985 to were over Branch. On Georgetown April abandon service 1986, the railroad to the ICC for authorization to applied *10 line, required by regula- abandon rail on the as federal service (1988);3 § §§ tion. See 49 U.S.C. 49 C.F.R. 1152.20- 22; Part on IV.A.2. The ICC issued tentative decision 25, 1988, February permitting abandonment on condition that in right-of-way the railroad continue to maintain the order to possible acquisition right-of-way public facilitate the of the Act, pursuant use to the Rails-to-Trails which is at 16 codified 1247(d)(1988)(*ee 3). § U.S.C. footnote decision, After the ICC’s tentative Montgomery County began acquiring discussions with the railroad about the right- of-way for a light-rail system path as well as a hiker/biker pursuant 12, 1988, to the Rails-to-Trails Act. On December the ICC approved purchase and transfer of use of the right-of-way Montgomery Four County. days later the conveyed Georgetown railroad the entire Branch to Montgom- ery County by quitclaim County’s deed for the payment of $10 IV.A.2., million. As in in described more detail Part as a Act, result of pursuant the ICC’s actions to the regulatory abandonment of right-of-way delayed the railroad was indefi- nitely. provide
We will facts as more we examine each of the certified questions. Additional facts are also available opinion court, of the federal trial Chevy Chase Land Co. of U.S., (1997). Montgomery v. Fed.Cl.
B. Summary Arguments History Case The plaintiffs/appellants assert that the 1911 deed con- veyed an easement. They argue proposed further that the use of the as a beyond scope, easement trail is hiker/biker 3. order and when the In this opinion, when the Interstate Commerce Commission we shall cite federal laws and [10] right-of-way was conveyed Monlgomery County. regulations existing (ICC) issued its Alternatively, uses. they contend is limited which prior that to the contend the easement abandoned they County. to the conveyance quitclaim of the deed railroad’s of the appellants conclude a reversion ease- Accordingly, own unencum- they right-of-way ment occurred and that Thus, seeking by any they compen- other interest. are bered interest in the “taking” court for the of their sation federal the Rails-to- by Montgomery County under right-of-way Act. Trails
Defendants/appellees Montgomery County and United hand, States, conveyed 1911 deed argue on the other in the in fee simple railroad an interest to the no have had interest appellants absolute and therefore be Alternatively, since 1911. should deed easement, contend that the conveyed they found to have pursuant trail use hiker/biker and that the scope law is within the the easement federal Accordingly, they railroad never abandoned the easement. *11 taking only that no occurred. We are concerned conclude the takings state law issues not with with the claim itself. (CFC), Court of Federal Claims where
The United States claim, filed in favor Mont- takings their found appellants Chase Land County Chevy and the United States. gomery The CFC concluded that the 1911 Montgomery, supra. Co. of summary conveyed simple granted fee absolute and deed in Land judgment appellees. Chevy favor of Chase Co. of 37 that conclusion Montgomery, Although Fed.Cl. at 565-75. dicta, case, on, went of the the CFC conclude disposed an was conveyed, that if it was easement that easement prior conveyance abandoned the railroad to its to the 37 at County. Chevy Montgomery, Chase Land Co. Fed.Cl. dicta, language Also that the 575-80. CFC stated 1911 deed did not limit the of the easement scope use as hik- (thereby implying purposes railroad reversion) if trail not cause a but that the deed would er/biker limited to use would be purposes, proposed were easement, causing a reversion beyond scope thereby giving takings Chevy rise to a claim. Land Chase Co. of Montgomery, 37 company Fed.Cl. 585-87. The land the Country appealed Club to the United States Court of Circuit, Appeals for the Federal which certified the state law property questions to this court. THE
II. RAILROAD’S PROPERTY INTEREST question The first asks conveyed whether the 1911 deed interest fee absolute or simple an easement. The question requires that we construe the 1911 deed between the land company and the begin railroad. We a summary with principles involved construing deed. We then consider how the courts this State and other states have construed phrase “right-of-way.” We then apply principles those the deed conveyed by the land company to the railroad.
A.
Principles
Basic
Interpretation
Deed
deed,
In construing a
apply
we
the principles of
Sand,
contract interpretation.
Etc.,
Buckler v. Davis
Corp.,
532, 537,
(1960).
221 Md.
158 A.2d
principles
These
“
require
contract,
consideration of
‘the character of the
purpose, and the facts and
parties
circumstances of the
at the
”
execution,’
Woods,
time of
425, 436,
Calomiris v.
353 Md.
A.2d
363 (1999)(quoting
Indem.
Interstate Fire
Pacific
Cas.,
383, 388,
&
(1985)).
Md.
488 A.2d
At least
initially, the construction of a
legal question
deed is a
for the
court, and on appeal,
subject
it is
to de novo review. Calomir
is,
433-35,
124 Right-of-Way
B. way’ “the term of has two ‘right In railroad parlance, which the strip upon in one it is ‘the of land meanings: sense laid’; right legal in sense it to use is the other is ‘the track of usually right way in it means the and this sense strip,’ such Etc., Co., 224 Mer.-Safe, RR. v. Ma. Pa. Co. easement.” & 247, 1 34, 1, (1960)(quoting 248 n. 36-37 n. 166 A.2d Md. Co., 143, 239 Mich. N.W. Quinn Ry. v. Pere 256 Marquette Louis, 1, (1931)). 138 City U.S. 376, Joy See also St. 379 of (1891)(“[T]he 243, 843, L.Ed. 857 term 34 S.Ct. a right is to describe way’ ... used of sometimes ‘right tract; of over and party, right passage to a belonging land which railroad strip of is also used describe road-bed.”). to construct their upon take which companies Cf. Created In a Danielson, Property The Real Interest A. Philip ” Rocky “Right Way, Its Upon Acquisition Railroad of of (1954)(noting meanings stating the two L.Rev. Mtn. synonymous is with ‘easement’—a [right way] law of that “[i]n concept”). legal
Nevertheless, by courts of generally it has been held in clause granting other that “deeds which this and states only.” an easement convey of are held convey ‘right way’ Easement, Fee or Company Conveying to Railroad Deed (1966); 3,§ Annotation, 6 Real A.L.R.3d Acquisition In a Upon Interest Railroad Property Created of ” (“[I]f Rocky Mtn. L.Rev. at Way, 27 “Right Its way,’ right way,’ of a or land ‘for a conveyance ‘right ”)(emphasis original; an easement courts tend find omitted). Elliott’s 1907 Professor explained footnote As on railroad law: treatise
“ right passage strict is ‘the ‘Right way,’ meaning, generally legal and in its ground;’ over another man’s it is a railway, to a mere in reference accepted meaning, others, lawful condem- the lands of obtained easement be by purchase. using It would public nation to use sense, it to an by applying in an absolute term unusual
125
purchase of the
of
fee-simple
railway
lands to be used for a
way.”
other
of
kind
(3d.
1158,
§
2
ed,1907)(quot-
628 n. 77
on
Elliott
Railroads
ing
v.
Williams Western Union
50
Railway Company, Wis.
(1880)).
71,
482,
5 N.W.
484
See also
Corp.
Oil
v.
Richfield
Co.,
Chesapeake
560, 572,
Bay
& Curtis
Railroad
179 Md.
20
581,
(1941);
I,
688,
A.2d
587
Transit
D.C.
ment” are came because to a when the likely parties deed tent with the intent Green, Tr. v. As term is used. we observed “right-of-way” (1963): 441, 448, “The Eldridge, 230 Md. A.2d designate fact word was not used ‘easement’ *14 not significance, is of passing particular interest of is understood phrase ‘right way generally since of the use also See is only being granted.” an to mean that easement 298, 312, A. Pub. v. Etc. Md. 159 Corp., Serv. Commn. Gas 162 Canal, v. 758, Bland (1932)(quoting Bosley Susquehanna 3 763 (1830))(“ is 63, way, ‘A public private, 67 of whether or right to land itself right from a fee essentially simple different more way nothing A is way right over which the of passes. ’ ”). of right than and limited use.... special Furthermore, interpreting policy support considerations to as conveyance “right-of-way” of a a railroad an easement clearly to an in fee is not convey where the intent estate A of corridors have been expressed. great number ICC, 1, v. See Preseault in recent 494 U.S. years. abandoned 914, 1, (1990)(observing 110 108 L.Ed.2d 10 S.Ct. 130,000 of railway has miles system the nation’s lost about (1880)(“ meaning, passage 'Right way,’ right 484 of in its strict is 'the of ground,’ generally accepted legal and in over another man’s railway, is lands of meaning, reference a mere easement in the to use, others, by public by pur or obtained lawful condemnation chase.”)(emphasis Culp, Veach v. 599 P.2d supplied)); 92 Wash.2d (1979)(use "right-of-way” language 526 of is conclusive of intent Co., easement); convey Agricultural v. Ditch & Reservoir Hutson (Colo.1986)(holding right-of-way P.2d that condemnation decree of accomplish pur an because an easement would constituted easement Freer, decree); Company pose Railroad of Missouri-Kansas-Texas way (Mo.Ct.App.1958)("Conveyances right of S.W.2d omitted); only.”)(footnote are also Restate held to create easements see 2.2, g § cmt. "Intent to Create a Servitude” Property (Third) ment (Tentative 1, 1989)("The grantee No. fact that the is a railroad Draft may tend to that the instrument should be construed also indicate parcel, convey only. the consider an easement The narrowness of frequency have been paid, ation and the with which railroad uses grantor, often lead to the that the reason abandoned conclusion railroad, dealing grant person able more than with a intended no land.”). ownership right way, retaining for the easement 3,000 noting track since 1920 and that “experts predict that miles will be every year through abandoned the end of this omitted). century”)(footnote a right-of-way Whether is con- simple strued as an estate in fee or an has signifi- easement implications utility cant for the of the upon land abandonment. If the deed of a is construed as an estate in fee simple, the railroad will the right-of-way retain even after it is no longer used for transit purposes—effectively severing contiguous otherwise pieces of and for no useful property, purpose. Supreme As the Indiana explained: Court has policy
“Public does not favor conveyance strips by simple land titles to railroad for companies purposes, either deed or This policy condemnation. upon based the fact that the alienation of such or strips belts of land from and across primary parent bodies of the from they land which are is obviously not severed[ ] necessary to the purpose conveyances which such are after made intended uses as expressed conveyance, in the and that gen- thereafter such severance *15 erally operates adversely the normal and best of use all the property involved.”
Ross,
655,
(1964).
Legler,
346,
Inc. v.
245 Ind.
199 N.E.2d
348
See also The Real Property Interest Created In a Railroad
Rocky
Upon Acquisition
“Right
Its
Way, ”27
Mtn. L.Rev.
of
at
(observing
74
that construing
right
a
of way as an easement
desirable,
socially
“seems
more
since it
clear
helps
titles and
prevents long
strips
agricultural
narrow
land from being
separated
farms,
from the adjoining
with attendant waste and
inconvenience.”).
previously
We have
recognized that
construction of a right-of-way
simple
as a fee
would not
further any significant interest that
by
is not served
construc-
I,
tion as an
688,
easement. See D.C. Transit
128 in no than an easement requires the railroad more user way”). Daugherty also v. Helena & Northwestern right See 101, (1952)(holding Ark. 546 that a deed 221 252 S.W.2d Ry., for a created an ease strip a of land conveying would be primarily parcel rather than a fee because ment Hartman v. J. A. shape); for little because of & useful else Co., (Mo.Ct.App.1984)(recogniz S.W.2d 364 Development 672 or no function long strips narrow land serve little ing that rights-of-way). than for other easements a say conveying “right This is that a not to deed in convey simple. an fee It is way” to a cannot estate railroad, though that a to a character well settled deed even right-of-way, may convey as a an grant conveying izes the 303, simple. Hodges in 178 Md. Owings, estate fee See (1940)(observing railroad’s charter 13 A.2d fee). However, it to an when a deed authorized take estate fails to a clear intent conveying express a land, arises that convey presumption a different interest a “The rule ... logical was intended. is an easement clause is not ambiguous granting where the deed conveyed right- interest being references to the specific, rise that an easement was of-way gives presumption and Public Danaya Wright, Rights C. Private intended.” Indiana, Property and Rails-to-Trails Ways: Disputes (1997). Miceli, See at Md.App. also Ind. L.Rev. (“As A.2d at 1265 there is insufficient evidence condemning that a railroad takes presumption rebut the easement, acquire not we hold that the railroad did fee issue.”) absolute simple to the C. 1911 Deed Application
1. 22, 1911, March and question The deed in was executed on pertinent granting on April part, recorded 1911. deed clause of the states: part company] first land for party said of the
“[T]he [the sum consideration of the of FOUR THOUSAND and (4,000) DOLLARS, to it paid by party the said of the second does part, hereby grant convey and unto the party said railroad], part the second its assigns, [the successors and (100) and perpetual right way, one hundred feet free wide, over premises the land and designated hereinafter A’ hereby grant ‘Parcel and does and convey unto the said railroad], party part second its successors and [the assigns, in simple, premises, land and fee hereinafter ” added). B’.... designated as Parcel (Emphasis The deed then provides metes and bounds description A, B, “right-of-way,” Parcel and granted Parcel the land A simple.” “fee Parcel is as “being summarized a strip of (50) fifty land feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of [t]he ” added). Chevy Company.. Chase Land .. (Emphasis granting clause A pertaining subject Parcel is made to an “existing right of way highway and other purposes over what is known as Connecticut Avenue Extended.”
The deed’s warranty clause states:
“AND the said party hereto the first part hereby cove- nants to warrant specially hereby conveyed, and execute such further assurances of said may land as requisite.” be
Finally, the provides deed
“in consideration Deed, of the execution delivery and of this payment of the consideration expressed, herein ... agreement entered into [April on ... is 1891] mutually aside, abrogated, canceled and set [MSRC] hereby discharged released and from obligation set contract, forth in said of erecting passenger station to cost Dollars, not (4,000) less than Four Thousand or of contribut- ing (4,000) the sum of Four Thousand Dollars toward the by erection ... of a passenger [CCLC] station on the hereinbefore parcel described of land designated as Parcel “B”; [MSRC], and the said as is acceptance evidenced of this conveyance, hereby releases from obli- [CCLC]
130 to passenger ... or cause be erected the
gation erect station aforesaid.” demonstrate, and as just appel
As the reviewed cases acknowledge, consistently we have con and CFC lees conveyances rights-of-way to railroads easements strued The the term simple. “right not estates in fee use of and easement; however, not an rather way,” ipso does create facto must be as a whole in the of the deed viewed language next, we explained of the entire transaction. As context language light of the express that the deed believe sufficiently makes clear the intention of the circumstances an company and the railroad create easement. See land Knox, 307, 815, 310-11, 252 A.2d 817 Desch v. 253 Md. based (1969)(holding conveyed “right-of-way” deed on deed); Corp., of the Fedder v. Struct. language Component (1974)(holding A.2d that Md.App. convey crystal of the parties [to was] “intention an easement deed a and conveyed “right-of-way” “[w]hen clear” when is in the surround simple language the contract considered circumstances.”) language first of the ing We examine itself and then turn the circumstances of the only deed conveyance.
2. we is the deed. The Initially, note what obvious about being that of land piece clause does not state a granting an nor estate conveyed provide does indication language simple conveyed. was intended to be The “free fee on or perpetual” light nonpossessory sheds no whether conveyed, since an estate in fee or being interest is possessory may See perpetual.” an easement be “free and Md.Code (1974, Art., 4-105 Repl.Vol.), (“[E]very § Real Property passes or reservation of an easement reserves grant Rather, clause perpetuity.”). of the granting easement directly “right way.” appellees there- conveys deed high to overcome in fore have hurdle order demonstrate “in unusual the term was used sense [the] ” [ofj an purchase fee-simple ... absolute lands.... (3d § ed.l907)(quot- 2 Elliott at 628 n. 77 Railroads on 484). Williams, 5 ing N.W. further and a upon
That hurdle is elevated examination The two contrasting granting of the deed’s dual clauses. intent to granting company’s clauses each declare the land First, con- “hereby convey.” company the land grant *18 (100) one veyed perpetual right way, “a free and hundred of wide, premises designated feet over the land and hereinafter ” Second, conveyed the land to MSRC company as ‘Parcel A.’ “in simple, premises, designated fee the land and hereinafter ” as B.’ contend that because clause Appellees ‘Parcel each “grant” company pass contains the word the land intended to though in the first a simple grants estate fee even clause “right of second way” conveys while the clause the “land premises” in The CFC that the use of simple.” “fee concluded the term “fee in reference to B simple” merely Parcel refer- conveyed duration of the and not the itself. enced estate estate Chase Land at 571. Chevy Montgomery, Co. 37 Fed.Cl. evidence, in on Relying part extrinsic the CFC concluded that in language simple” “fee reference to Parcel B was with the in to synonymous “perpetual” term reference Parcel A conveyed and thus both clauses in granting estates fee. Id. appellees’
We believe that the CFC’s and construction of the If overly deed strained. the land company intended convey in parcels, estates fee over both it would have been unnecessary separate to include two granting clauses. More- over, used, given granting that two clauses if they were had interest, to convey intended the same we believe author of language. deed would have used the same Neither the appellees explain why CFC nor different if language was used the intent in convey the same interest both To parcels. A B conveyed hold that both Parcel and Parcel in estates fee would be to what ignore we believe is self-evident from the interests, parties convey deed: intended to different one for “right way” designated as Parcel A and other for in premises” simple” desig- “the land and “fee If convey nated Parcel B. the intent was to Parcel A as an fee, drafting estate no hurdles would have mak- prevented Acres United States explicit. intent ing such 1.44 Cf. Md., Land, Etc., County, Montgomery F.Supp. law)(“[A] ... draftsman Maryland legal (D.Md.1969)(applying convey a fee language [right-of-way] not use such would railroad.”). title to a description attempt bootstrap further
Appellees to show clause granting A of land” into the “parcel Parcel as a to be was intended in fee of the that an estate above, A is of Parcel description As noted conveyed. deed, which summarizes of the separate paragraph found (50) fifty ... of land being strip A of land “parcel Parcel as a Metropolitan of the of the center line feet on each side wide Chevy Chase through [t]he Railroad the land Southern Land Company.” language of the implications as to the disagree
We
“Parcel A”
the deed.
description
in the
“parcel of land”
establishing
portion
in the
of the deed
language
is used
granted.
not
the interest
the location
right-of-way,
than
important
clause is less
descriptive
used
Language
*19
denoting
in
what interest
granting
clause
language
the
Marden,
209,
a deed. See
115 Md.
conveyed by
in
is
land
that,
interest
determining
when
the
(observing
Another
East
Md.
example is
Wash.
(1966).
case,
287,
of
granting
piece parcel land’ described the deed. D.G. Transit I, 259 Md. at at 795. A.2d The habendum clause stated as follows: “ ‘To have and hold the same unto to the use of ... [the company] such right way pur- other
poses Railway as said Company is authorized under its act ... incorporation Incorporation and the Law of General this acquire, State to of or dispose deal real estate.’” (Emphasis original.) I,
D.G. Transit
That in this case easement the deed G-reen,Brooke, follows, D.C. fortiori, in from estate fee Green, no in instant case there is Transit I. Unlike right-of-way that the was con- language suggesting express (even “in conveyed Parcel B was simple” though in “fee veyed Furthermore, any legally signifi- not see we do simple”). fee in of land” Brooke and the “strip cant difference between the case, and, in unlike the instant case where of land” this “parcel in way,” Brooke grant “right grant was express Therefore, in of a of land.” the deed expressly “strip was stronger appellees’ a much reason under provided Brooke simple conveyed an in fee was analysis to conclude that estate in “plain” found it rather than a servitude. We nevertheless only. grant conveyed Brooke that the easement seems conveyed the 1911 deed an easement Finally, I, grant- Transit where the holding our D.C. compelled parcel “all the of land” and the ing conveyed piece clause in the habendum to a deed’s only reference nearly instant case contains identical clause. The deed I (“right way” “parcel as in D.C. Transit language land”), clearly granted it more indicates an easement was but conveys granting directly Transit I clause than D.C. since to a of land” is only “parcel and the reference locations which the descriptive opposite clause—the *21 135 I. in D.C. Transit in the deed at issue were used phrases attempt creative unconvincing appellees’ Therefore we find A of that, “parcel of Parcel as a given the definition argue clause, in the “right way” the descriptive in the land” the land but legal right not to the use granting clause refers itself. strip rather to the of land
3. of the to the 1911 positions parties circumstances and not an conveyed an easement and deed confirm that the deed appellees and in absolute. Both CFC simple interest fee in 1911 language lack of conditional deed emphasize the setting forth its restricting right-of-way the uses of 37 Montgomery, Land Co. Fed.Cl. purposes. Chevy Chase grant right-of-way (emphasizing outright at 569 “the limitations”). argue that the purpose They and the absence of in 1911 is what distin language lack of conditional deed rights in from “right-of-way” the term that deed guishes that construed to way Maryland the numerous cases were example, “[t]he be easements. For the CFC stated ‘railroad,’ does not even refer to the word let alone deed purposes.” Chevy the use of the land to railroad restrict Turning at 571. Montgomery, Chase Land Co. Fed.Cl. deed, supported CFC to evidence extrinsic by conclusion from other deeds executed the land quoting conveyed to railroad easements company companies Land Co. purpose language. Chevy which contained Chase For the court Montgomery, example, 37 Fed.Cl. 570. subject quotes stating “right-of-way” from a deed that the “construct[ing] completing] to the railroad and com operations] within nine months” and anoth mencing] regular “right way purpose for the of con conveying er deed structing the railroad.” Id. operating out that there appellees correctly point
While the CFC and
deed, they entirely
no
limitations in the 1911
purpose
are
conveyance
for which the
railway
overlook the fact that the
operation
been built and was in
for
already
was executed had
Thus,
conveyance.
unlike
nearly
years prior
to the
cases,
prior
examined
our
and unlike
deeds
railroads,
deeds to other
the 1911 deed did
company’s
the land
railroad corridor but rather a
convey
undeveloped
not
some time. As a
quite
that had been
existence
railway
result,
purposes
there was little need
state
the deed the
conveyed. Regardless,
con-
for which the
CFC,
prior
intimations of
and the
our
trary
appellees
to the
*22
stated that a
deed must include
cases have never
Rather,
circum-
we have looked to the
purpose language.
case,
of the
In this
the fact that
positions
parties.
stances and
to
deed were well aware that the
parties
both
a
and
railroad that had
freight
passenger
was to be used for
need for
many years
been in
overcomes
operation
creating
itself for
an
limiting language
purposes
the deed
simple
to an estate
fee
absolute.
opposed
easement
Furthermore,
to
an
construing
convey
the deed
easement
agreement
company
between the land
consistent with the
was
“in
agreement
contemp-
and the railroad. That
made
...
the construction of a line of road
to traverse the
of]
lation
It further
the land
property”
company.
explained
of the land
to
convey
intention “to donate and
the said railroad
company’s
The 1891
company right way
agreement
feet wide.”5
passenger
freight
also
the railroad to construct a
and
required
of land that in the 1911 deed was denoted
depot on the tract
or,
B,”
if
depot,
as “Parcel
the railroad did not construct the
$4,000
that it
contribute
toward
agreement provided
would
agreement
pertinent part,
5.
the 1891
between the railroad and the
company
land
stated:
Chevy
Company
agree-
Chase Land
in consideration of the
“the said
forth,
company
agrees
ment of the said railroad
hereinafter
set
convey
right
way
company
said
donate and
feet wide....
* * *
description]
bounds
[a metes and
being
fifty
parcel
strip
of land
the above described
feet wide on
through
[the
each side of the centre line of the
the lands of
[MSRC]
company].
land
Company
agrees
convey
And the said Land
... further
to donate and
Company
purposes
passenger
to the said Railroad
for the
of a
and
thereto,
including
tracking,
freight depot, and uses incident
side
following
parcel
description].”
[a
described
of land metes and bounds
depot.
land
construction
company’s
the cost of the
agreement,
recorded. After
was never
agreement
passen-
it never built the
railway but
railroad constructed the
concluded that
B. The CFC
on Parcel
freight depot
ger
contemplated
agreement]
fairly clear that [the
“it is
Mont-
Land Co.
Chevy Chase
conveyance of an easement.”
Despite its conclusion easement, evidence considered extrinsic the CFC ed simple fee conveyed an interest conclude that the 1911 deed from a land on a 1910 letter absolute. The CFC relied in the to occur referencing conveyance company official stated that year. next The letter
“
and Ohio Rail-
that the Baltimore
arrangement
‘the
Company
Chase Land
pay
Chevy
to the
Company
road
cash,
of this
in consideration
Thousand Dollars
Four
it,
by its
all the
covered
conveyed
have
payment,
entered into
Company,
the Land
way contract with
right of
”
added).
ago.’
(Emphasis
years
some
*23
Even deed, in the conveyed that was used to construe the interest in whether significance determining we fail to see the letter’s or an an estate conveyed in 1911 deed the “all the in the letter language The use of the easement. in convey to fee convincing no as to intent property” is more relating to rejected earlier appellees’ arguments than simple As a of land.” “parcel as description in it, language than the significance see the letter has less we A of land.” The “parcel Parcel as a describing the deed all “convey[] letter’s statement of intent as an way interpreted contract” can be by right covered its it be just convincingly may as convey intent to an easement to show an intent to in fee interpreted convey simple estate absolute. not
Appellees agreement contend the 1891 should be “mutually abrogated, considered because it was canceled and Indeed, above, in set aside” deed. as discussed we 1891 agreement need not turn to reach our conclusion However, conveyed that an easement was the 1911 deed. “in abrogation language deed was consider- Thus, delivery” ation of the execution and of the new deed. it supplied is relevant the 1911 deed since consideration Moreover, portion the transaction. the relevant of the deed in full that is agreement states aside, “mutually abrogated, canceled and set is [MSRC] hereby discharged obligation released and from the set contract, erecting passenger forth said a station to cost (4,000) Dollars, not less than Four Thousand or of contribut- (4,000) the sum of Four Thousand Dollars toward the ing ... by passenger erection of a station Parcel [CCLC] [on B]; [MSRC], as is evidenced this acceptance of conveyance, hereby any obligation releases from [CCLC] ... passenger to erect or cause to be erected the station added). (Emphasis aforesaid.” Thus, agreement abrogated only the 1891 was when the delivered, properly 1911 deed was executed and and that contractual to the abrogation express linked terms primary outstanding obligation agreement—to of the 1891 $4,000 $4,000 spend passenger depot pay either on MSRC for its own construction of a passenger depot.
This to an factor that courts leads additional consider or an determining simple whether fee estate easement granted by conveying “right-of-way”—the a deed amount of paid Company consideration for the deed. “Deed to Railroad *24 Easement,” 973, Annotation, Fee Conveying as or 6 A.L.R.3d (1966)(“A 3, § might at 1038 factor which be considered in determining company relevant whether a deed to a railroad a or is the conveying should be construed fee easement amount of paid by the consideration shown to have been that the “The fact question.”). conveyance for the company simple of a fee less than the value paid was consideration finding they that land, in favor weighs strongly estate Property (Third) of an easement.” intended Restatement (Tentative Draft cmt. g 2.2, § “Intent to Create Semtude” 1989). Hodges, supra, principle this applied We No. an ease conveyed that a deed to a we found where grantee was the of the purpose noted that “[t]he ment. We to co railroad, willing was grantor in which the of a building piece right this gift grantee with the operate (emphasis A.2d at 340 Hodges, 178 Md. ruay.” added). Northwest Co. v. Tamalpais also Land & Water See Co., 167 P.2d Cal.App.2d R. ern Pac. consideration, only or (1946)(“[T]he monetary no fact that for paid grant was monetary nominal consideration indicating grant that importance factor of considerable fee.”); not a limited Weeks an easement and conveys 33, 37-38 Company, Railroad S.W.2d Missouri Pacific interest an easement (Mo.1974)(finding conveyed that deed no consideration paid that part on evidence defendant based grant). for the $4,000 that the the railroad unconvincingly
Appellees argue
simple
in fee
was for an estate
company
to the land
paid
for
from the
and not
release
occupied by
land
pay
agreement
expend
in the 1891
obligation
They go on
passenger depot.
of a
amount
the construction
$4,000
A
B
than
for Parcels
and was more
to contend that the
consideration,
argue demonstrates
they
nominal
which
simple.
appar-
in fee
The CFC
conveyed
the deed
an estate
nomi-
finding “more than
ently accepted appellees’ arguments,
consideration,”
on to conclude that the “consid-
but it went
nal
Chevy
not militate in either direction.”
eration tendered does
“[t]he the in a other to purporting words transfer the whole estate grantor the shall be construed to pass grantee whole interest and estate of the in grantor the lands therein mentioned, unless there be limitations or reservations show- otherwise, ing, by implication or a different intent.” (1904), 21, § Md.Code Art. 12. Appellees contend that the applies statute because of the use of “grant” the term above, 1911 deed. As described the limitations the 1911 grant deed are inherent of a right-of-way to a railroad Thus, company. “there limitations or [are] reservations show- otherwise, ing, by implication or a different intent” than to convey grantor. the whole estate of the previous Id. Our construing cases deeds to companies containing “grant” term nevertheless have concluded that the instru- fee, ments conveyed easements and not estates notwith- standing Brooke, the statute on by appellees. relied See Md. at at (noting A.2d Article “principle 21’s grantor’s pass all construed must be ‘grant’ word concluding but otherwise” are indications unless there interest con “grant” term using to railroad that deed nevertheless (refusing to easement); Corp., supra Oil veyed an Richfield convey “right using “grant” term to deed statute apply (refusing 303-04, 13 at 339-40 A.2d Hodges, 178 Md. way”); lan but “grant” term deed used statute when apply right [railroad] grantor “gave showed guage *26 McGee, easement); 98 Md. Ross v. conveyed an which way,” “was the statute (1904)(holding that 389, 394, A. 1130 easement”). of an granting ... apply intended never 4. in conclusion, “right-of-way” use of the term
In railroad and the that the strong indication provides the deed an easement. convey intended the deed company land have consistently from other states and the cases Our cases conveying “rights-of-way” to railroads construed deeds The lan absolute. simple not in fee estates easements provides no reason at issue in this case of the deed guage in the case especially This is from our cases. previous deviate A, conveying of Parcel clauses light granting of the dual “in fee B, parcel conveying and Parcel way” “right the deed confirm circumstances of Finally, the simple.” only. an easement conveyed the deed conclusion that built and already had been railway the fact that the particular, language limiting need for obviated operation was being simple than a fee to indicate that less the deed com given the land nominal consideration and the conveyed, with the factor more consistent railroad is a pany by the simple than an estate fee of an easement conveyance absolute.6 Country that it is the Club’s contention We decline to entertain the
6.
right-of-way
bisects
simple
portion of the
that
fee
absolute of a
owner in
company
conveyed
Country Club
the land
to the
parcels of land
two
States
Country
argue before the United
Club did not
in 1909. The
(CFC)
segment
simple
it owned in fee
of Federal Claims
Court
Rather,
ownership ”[p]ursuant
had
contended that it
claimed.
now
THE
III.
SCOPE OF THE EASEMENT
Since we have determined that
the 1911 deed
granted
easement, we must now consider the second certified question
regarding
scope
initially
of the easement. We
determine
express
whether the
of the deed
language
limits the available
determination,
right-of-way.
uses of the
After that
we consid-
er
Maryland
the extent
to which
common law on railroad
easements imposes any implied limits on use of the right-of-
way
prevent
that would
the instant case
from being used for a
trail.
part
This
then
hiker/biker
concludes with an examination of whether the
of the right-
use
of-way
trail unreasonably increases the bur-
hiker/biker
den
the easement on the servient estates.
possession,
alternatively,
to the doctrine of adverse
lost deed.”
U.S.,
Chevy
Montgomery
Chase Land Co.
37 Fed.Cl.
(1997).
ownership
right-of-way by
It made no claim of
in the
virtue of
deed,
Chevy
Montgom
as it does here. See
Chase
Co.
Land
ery,
Country
argument
below. See 998 F.2d 983 n. 4 of Therefore, 1993). contention, even if we were to entertain the Club’s properly may that court aspect nevertheless refuse to consider that resolving question our decision in the ultimate of whether an unconsti Moreover, taking questions tutional occurred. the certified to this interpretation Country Court do not seek an of the 1909 deed to the Club. Furthermore, Country even we if were to entertain the Club’s conten- tion, Country the Club would face a difficult if not insurmountable attempting hurdle in to overcome the fact that the deed under which it description claims title contains a metes bounds and of the land that any portions right-of-way does not include of the at issue here. Even if contention, agreed Country we with its the Club’s claim would ultimate- ly be unsuccessful because our conclusions in Parts III and IV that the scope trail use is within the of the easement which has not been abandoned. Maryland We therefore decline to exercise our discretion under Code (1974, Article, Repl.Vol.), Proceedings § 1998 & Courts Judicial 12- 604, rephrase question the Country certified to entertain the Club's argument conveyed portion right-of- that the 1909 deed to it a of the way simple in fee absolute.
143 1911 Deed A. the Interpretation the interim use of proposed that the Appellants contend the of the beyond scope trail is as a hiker/biker deed, appellants the of the language Instead of easement. original agree- at time of the the circumstances emphasize company and the land between the railroad ment company that is that the land contending the “evidence clear” of freight was rail- that for purposes intended the easement Brooke and D.C. company cites the only. road The land right- I for its view that when a support Transit decisions as railroad, conveyed ipso is to a it is restricted of-way facto hand, emphasize on the other railroad uses. Appellees, itself, right- no limitations on the express which contains deed conveyed. contend easement was for of-way They that the general transportation purposes be used consistent with those that its use as a recreational trail is no additional burden on the servient imposes purposes estates. agree consider appellees primary
We with that the is the construing scope express an easement ation of the grant. rights extent language “[T]he [of grant] necessarily must acquired by express depend easement proper conveyance part upon construction Parker v. T C Dev. by which easement created.” & 704, 709, 281 Md. 381 682 Corp., (1978)(quoting A.2d 322). Buckler, See Reid v. Md. at A.2d at also Co., 545, 549, 232 Md. Washington Gas Lt. A.2d (1963)(stating “scope of easement to be deter that the from the of the language grant”); mined Powell on Real (1998 Property 34.12[2], § 34-178 Supp.)(observing conveyed by express grant interpreting courts easements primary language “stress the control exercised omitted)). (footnote creating conveyance” *28 case that language suggests No the deed the instant (and limited to purposes only the was railroad so to company much less railroad as the land freight purposes, contends). The conveyed perpetual right “free and deed
way.” The use of the terms “free” and “perpetual” provide few, clear indication that if any, conditionswere intended to be placed on the railroad’s use of the right-of-way. “[F]ree” defined as [being] subject to legal “[n]ot constraint of [the] (6th ed.1990). another.” Black’s Law Dictionary The use of the term “perpetual” clearly indicates that the easement was and, intended to be of indefinite duration particularly “free,” when combined with the term suggests that the use of i.e., the easement was to dynamic, be adaptable to the evolving circumstances and transit needs of those intended to benefit from the right-of-way—in particular the general public whom the land company was attempting attract to the areas served the railroad. The language making the easement transferable to “successors and assigns” supports further broad construction of the language. deed many grants
Unlike of the of easements that we have addressed in past, the the deed in the instant case does not suggest any limit on the use of right-of-way. It is clear right and, that a of passage granted, as noted above in II.C.3, Part clearly circumstances that original indicate instrumentality was a railroad. But nowhere the granting clause or. elsewhere in the deed does language suggest that a only railroad was the instrumentality for use of the perpetual right-of-way. For example, nowhere does language “for railroad purposes” appear, and there are no other express Brooke, limitations on the use of the right-of-way. 244 Md. Cf. at 603 (concluding A.2d that language deed “for ” purposes limits scope right-of-way). if Even we consider the 1891agreement convey to the railroad, agreement limitations; that express includes no only states that agreement was made “in contemplation the construction of a of] line of road ... to traverse the property” company. land As Supreme the Minnesota Court observed in addressing scope of an grant easement ed to a railroad: of the deeds expressly
“[N]one limit the easement to rail- purposes, road provide the interest conveyed termi- nates if ceases, use railroad purposes provide
145 right-of-way as the only long so would exist easement grantors the were While purposes. for railroad was used on would be constructed undoubtedly railroad aware land, pur- the use to railroad the deeds limit the none of poses.” State, 329 N.W.2d Preservation
State Wash. Wildlife 3540, (Minn.), 103 77 463 S.Ct. 543, 546 cert. denied U.S. (1983). sum, the undisputable it 1390 seems L.Ed.2d and interest that is “free by conveying an sweeps broadly deed freely to “successors making and it transferable perpetual” assigns.” and on presents express the deed no limitations
While analysis. not end of the that does our right-of-way, the use grant, in the must language in the broad we Keeping mind substitute, right the appellees whether the have determine interim, the as a for the use the at least the as a previous trail for the use of recreational the must whether the use of railroad corridor. We consider quality trail of the same of use right-of-way as a is hiker/biker grant any whether anticipated original imposes on tenement. Before unreasonable new burdens dominant those we note that because of the broad analyzing questions, will any of the doubts about its use be resolved language grant i.e., grantee, of the the railroad: favor limitations, attempt court grant “If the contains no will expected, have parties reasonably to discern what the would usually generous interpretation. and will be can to the holder language grant the easement easement in the limit deal use of the easement or good discretion clear, if very narrowly; grant is not the court the use in favor of ‘free and interpret scope will easement (Footnotes of the land.’” and citations untrammeled use omitted). Property (Thomas Thompson 60.04(a), § at 451 on Real
ed.1994).
Co.,
Washington
See
Lt.
232 Md. at
also
Gas
(“[T]he
to be
scope
B. Public Transit Use of the Right-of-Way
long accepted
We have
the view that
public
railroads are
service corporations.
Co.,
v. Balto.
Whalen
& Ohio R.
11, 21,
(1908).
Md.
69 A.
Co.,
See also Ma. & Pa. RR.
haveWe
(“A
Whalen,
Our
cases
means of
scope changing
their
including
within
highways
Electric Co. v.
County
In Baltimore
&Water
transportation.
(1907),
Dubreuil,
explained that
“test ... of what is a new use would seem to be found not necessarily in the nature the structure nor in the number itself; of the tracks but in the use whether it is promotive of objects purposes and for which the easement in the public acquired.” op Property (1944)(“In §
Id. See also 5 Restatement ... ascertaining whether additional or different uses of the servient tenement required by changes the character of the use the dominant tenement are permitted, interpreter in assuming parties warranted conveyance to the contemplated a normal development of the use of the domi- tenement.”). nant early decisions of this state adhere to the view that the for which
purpose public easement was acquired is the overriding analysis factor rather than the mode or B., instrumentality use. Peddicord v. C. & E.M.R.R. Co., (1871), 463Md. we held that a right-of-way conveyed to turnpike company could be used for a railway horse passengers even though actually “it was not contemplated by any of the parties acquisition grant.” Md. at recognized 480-81. We turnpike company had perpetual “forever,” easement over the highway, lasting *32 we that observed its conversion to a railway horse was an appropriate improvement “consistent with character and purpose public highway.” Further, as Id. we concluded
149
not cause an addition-
railway
horse
did
the conversion to
that
the incidental
impair
operate
on the land
al burden
v.
Hodges
also
Id. See
of the dominant tenement.
rights
Co.,
603,
(1882)(similarly
619
P.
58 Md.
Ry.
Balto. Union
legitimate
railway is but one
that a “horse
holding
for which the
objects
purposes
within the
contingencies
v. North-Ave.
Koch
public”).
to the
street was dedicated
(1892)
City
v.
&
Co.,
222,
463
and Green
Md.
23 A.
R.R.
75
(1894),
Co.,
294,
we extended
In this attributes jurisdictions recognize public law of other Court of Virginia Supreme As of railroad lines. the West observed, has Appeals private corporations strictly
“railroads are not viewed
carriers. Essen-
regulated
are
common
they
publicly
since
use.
public
dedicated to the
tially,
highway
a railroad is
quasi-
railroad the status of a
imports
This dedication
to the
Home
corporation. Eckington
[Soldiers’]
& Soldier’s
public
103,
36,
112
McDevitt,
48 L.Ed.
R.
191 U.S.
S.Ct.
Co. v.
Assoc.,
(1903);
Freight
v. Trans-Missouri
United States
(1897).
such,
540,
As
Marthens (1982). Preserva- See also State Wash. Wildlife State, Marthens); tion, Lawson v. at 546 (quoting N.W.2d (1986)(“[R]ailroads must 730 P.2d Wash.2d (“A use.”); id. public for the hold their trust purposes.”); highway, public created for public railroad is *33 150
Faus v. 67 City Angeles, Cal.Rptr. Los Cal.2d 62 of (1967)(holding 431 P.2d 856 that of right way “primarily provide public transportation” initially intended to that was used for electric railroad could be converted to motor bus transportation). Compatibility
C. of Trail Use with Prior Uses above,
As starting point discussed the for deter mining Georgetown whether the current use of the Branch as trail with compatible prior its use is the deed hiker/biker itself. The as in phrase “right-of-way” used the context of the grant “right belonging is a to a to party pass over land of Dictionary (6th ed.1990). another.” Black’s Law 1326 Since the deed contains no limits on the use of the right-of-way, we the that in apply grant general rule terms of an easement “[a] way ordinarily will be construed as creating general right way capable use connection with the dominant tene purposes.” ment for all reasonable 3 Herbert Thorndike Property (3d § at 322 Tiffany, The Law of Real ed.l939)(footnote omitted). it indisputable right-of-way
We believe that use of the aas trail is consistent with its essential nature relating to the “passing] over land of another” is a and reasonable use of a general right way. Accordingly, the scope right-of- inway encompasses the instant case use as a trail. hiker/biker It follows from our cases that the fact that a recreational trail may not actually contemplated by have been the parties when the deed was in 1911 is not conveyed outcome determinative. Rather, parties we assume that the anticipated the use of the right-of-way would conform over time to the reasonable public. demands of the Just like the highway easement “forever,” Peddicord lasted deed this case was made “perpetual,” although and use as a trail “was not hiker/biker actually contemplated by any parties acquisition ... grant, may be said to have legal been within the contemplation of all that it was to be for all purposes by used creation, object which the public as a highway, could be Peddicord, promoted.” words, Md. 480-81. other public legally the use of the as a trail was is of contemplated by parties deed and public railway same nature as the existence for some 90 i.e., involves the over land consistent years, passage the use public. with the needs of the The 1891 contract and 1911 deed clearly anticipated put both would be public transportation, plans use evidenced deed) (the “freight station” or a “passenger build (the passenger depot” agreement). *34 as a trail right-of-way
Use of the
constitutes a
hiker/biker
instrumentality
in
consistent with the essential
change
pur
at
time of
in 1911—
pose anticipated
original grant
Chase,
passage through
Spring, Chevy
Silver
and Bethesda.
primary
is one of
from
change
instrumentality
railcars
bikes
our
walking,
highway
and
and
cases make clear
changes
presumed
mode of use are
to be -within the
Indeed,
contemplation
parties.
of the
the state
has
legislature
seen fit to
“highway”
including “bicycle
walking
define
as
(1977,
paths.”
RepLVoL,
Supp.),
Md.Code
1993
1998
Trans
8—101(i)(l).
Art., §
portation
See also the cases cited in Part
III.B.,
Co.,
551,
Lt.
supra,
Washington Gas
D. The Reasonableness of the Burden We must next consider whether of the right- use of-way unreasonably trail bur- increases the hiker/biker “the generally estates. It is underlying simple fee den on the upon the an easement is a restriction rule that since accepted owner, no alteration can be property of the servient rights estate which would of the dominant by made the owner of both by mutual consent except such restriction increase Co., 548-49, Lt. 232 Md. Washington Gas parties.” Flannery, 115 L. Co. v. Arlington 638. See also W. A.2d at (1911)(“[B]eeause is 274, 279, an easement A. Md. of the owner rights upon a restriction owner of can be made ... no alteration servient estate estate, to increase such restric- which would be the dominant Co., tion.”). Lt. the test Washington Gas explained As we on the servient whether the restriction used to determine estate, i.e., is imposed, the burden as to result is so substantial change
“whether the
from that
of a different servitude
and substitution
creation
words,
if the alteration
existed.
other
previously
which
no
there will be
and not substance
merely
quality
one
(Citation omit-
surcharge to the servient estate.”
resulting
ted).
Co.,
549,
Washington Gas as a that the use of the It is self-evident *35 other trans walking, biking, for and corridor transportation the future including possible its use in purposes, portation rail, tenements no new burdens on the servient light imposes of a different servitude in the “substitution and does not result to which the Id. The use existed.” previously from that which and is reasonable right-of-way to use the County proposes general “in terms.” grant of a consistent with Property Tiffany, The Law 3 Herbert See Real Thorndike ed.1939). (3d Indeed, trail use of 803, § “[recreational at 322 use as prior and consistent with compatible the land is on the servient line, greater no burden imposes rail Preservation, N.W.2d by estates.” State Wash. Wildlife at 547. permit- have highway cases that comparison public
In
to our
to a horse or an electric
highway
in use from a
change
ted a
of use
the instant case is
railway,
change
proposed
considerably
less burdensome. That use
by
poses
bikers
walkers
less of a burden than the use
walkers,
required by
freight
train is obvious. Bikers and
large groups, simply
even
cannot be said
be more
engines pulling
burdensome than locomotive
truck-sized rail
through
legitimate
pre
road cars
the corridor. “The
burden
loud, and
far
by frequent,
dangerous,
sented
even
railroad use
outstrips any
presented by
bicycle
burden
foot or
traffic.”
Lawson,
(Utter, J., dissenting).
E. Conclusion
public
is affected
in the instant case
The
public
nature
are
companies
That railroad
interest.
statutory
a constant theme
has been
corporations
service
nature of
law,
recognized
public
and we have
and case
scope
regarding
jurisprudence
our
such easements
of the deed
conveyance
well before
public easements
III.B.,
have
public policies
supra.
Part
instant case. See
*37
by
regulatory
been
federal
comprehensive
evidenced
governs many aspects
scheme
the railroad business
(see
A.2, infra), by
Part IV.
a railroad’s status as a common
carrier,
by
regulation,
state
at the time the right-of-
even
way
generally
was deeded to the railroad
this case. See
Comm,.,
398,
Benson v. Public Service
141 Md.
Federal and state laws the value to the general public of railroad rights-of-way. The federal Rails- Act, lawsuit, impetus to~Trails which serves as the for this is an obvious example perceived public of the value of railroad 1247(d); Preseault, 18, § corridors. See 16 U.S.C. 494 U.S. at Rep. 925,108 130 S.Ct. at at 17 (quoting L.Ed.2d H.R. No. 98- (1983) at 8 Cong. U.S.Code & Admin. News 1983 at 119)(upholding the Act as a legitimate exercise of congression- al power observing “Congress preserve intended ‘to established railroad rights-of-way future reactivation of service, corridors, rail to protect rail transportation and to ”). encourage energy transportation efficient use’ Mary- legislature land has recognized public also value (1974, See rights-of-way. Repl.Vol.) Md.Code Natural Art., 5-1010(a)(2)(“Abandoned § Resources railroad corridor unique are, is a source of land corridors that in many cases, trails.”); (1977, suitable for recreational Md.Code Art., § RepLVol.), Transportation 7-901 (authorizing the state Thus, to acquire railroad corridor property). our holding furthers, frustrates, rather than legitimate state and federal policy interests.
Our conclusion here also is
with
consistent
the decisions of
courts
other states that have held that trail use falls within
scope
of the right-of-way conveyed to the railroad. As the
Preseault,
Supreme Court observed in
rights
some
of way
“are held as easements that do not even as a matter of state
law
upon
revert
interim use as nature trails.” 494 U.S. at
(citation omitted).
concluded for which the easement the purpose consistent with travel, no additional imposes and it public originally acquired, also at 545. See 329 N.W.2d servient estates.” on the burden (similar holding). at 732-33 490 N.W.2d Barney, Court Supreme reached outcome was A different Lawson, right- held that That court swpra. Washington owners when to the fee a railroad reverted conveyed to of-way as a recre- for use government local conveyed to the it was however, decision, turned on court’s The Lawson ational trail. *38 limited being expressly as at issue of the deeds acceptance That court at 1312. only.” 730 P.2d purposes to “railroad to trails’ in use from ‘rails change hold that stated: “[W]e granted which was of an easement constitutes (em- Lawson, 730 P.2d only.” purposes railroad for added). right-of-way that the allege appellants While phasis only, as discussed purposes railroad case was for in the instant support no simply provides above, of the deed language to the deed in this case is similar The deed for its contention. Preservation, and supra, by in Wash. construed State Wildlife authority. persuasive the more provides that case therefore of a general use sum, conveyed case deed this statuto- obligated under railroad grantee The right-of-way. its assets for the and use operate law to and common ry obligation This welfare. general public furtherance effect, corridors, which, highways public are runs to its rail transportation to new modes of in their use that must conform to are no more burdensome reasonable and long they so are used railway of a Finally, the conversion estate. the servient compatible with is consistent and footpath to a freight for stated: Supreme Court the Minnesota railway use. As prior for as a being is still used “The right- a railroad abandoned as though even transportation compatible trail use of the land is of-way. Recreational line, no imposes as a rail prior with its use consistent public is a estates. The use on the servient greater burden for which the use, purpose with the is consistent which stat- State and federal originally acquired. easement was encouraging utes the conversion of railroad rights-of-way trails our support holding.” recreation also Preservation, State at 547. Wash. N.W.2d Wildlife IV. ABANDONMENT The final question regard- issue we address is the certified ing whether the railroad’s easement has been abandoned. We initially observe appellants’ arguments on abandonment appear predicated to be on scope their contention that the purposes. Country the easement was for railroad Club contends, for example, that various facts show “that going Railroad was not to be this using added). purposes again.” (Emphasis lines, .Along the same the land company contends that the railroad “had no intent to added). continue railroad use.” (Emphasis arguments These appellants part reflect the overlapping nature of the questions of scope and abandonment. As we in Peck v. stated (1979): County, Baltimore Md. A.2d 7 “The County use which the proposes put the land question is relevant whether it has an intention to aban- don. If it were to be found that contemplated use were scope within the of the easement this could be evidence of a lack of intention to abandon. If contemplated use were *39 easement, not within scope the of the then unless it be found that permitted made, some other is being use it is possible that an found, intention to abandon might although be if the contemplated use is found not to be scope within the of the easement this necessarily would not establish an intention to abandon.” in (Emphasis original). 377-78,
railroad service. a been and by er an held railroad had abandoned easement explained: right rule is and title to a mere general
“The that the acquired by quasi-public corporation, in land easement for by prescription, purchase, either condemnation dependent is the continued use the public purpose upon use .public that and when such is property purpose, for ceases, proper- the land and the right abandoned the hold or his in title.” original to its owner successors ty reverts added). (Emphasis original 39,166 A.2d at 250. Md. scope permits we held that the of the easement Since have trail, as a facts that indicating use of the the the unhelpful intend to rail service prove railroad did not resume in Part III We held appellants’ arguments. abandonment Co., use, in Ma. & RR. is a that the the words of Pa. trail for which it purpose” th[e] “continued use of the i.e., appel- transit Id. To the that conveyed, uses. extent on their that arguments lants’ rest contention abandonment they is scope purposes, the easement limited railroad to meet their burden abandonment. proving fail assume, Nevertheless, appellants’ arguendo, we will has been abandoned does not allegations issue of of the We hinge upon scope easement. law on Maryland with an examination begin therefore regu- federal description easement scheme, to an latory understanding which crucial immediately years took various actions conveyance County. preceding its A. Law “Abandonment” Versus State “Abandonment”
Regulatory
1. Geiss, (1879), our set Vogler predecessors Md. 407 forth the which to measure whether an easement *40 standard case, we said: has been abandoned.
159 settled, very highest “It is now well authorities of the character, party that a entitled to a of or other right way of may mere easement the land another abandon and extinguish right by pais, such acts in and without deed or on, however, writing. other The act or acts relied to effect result, character; such must be of a decisive and while mere declaration of an intention to abandon will not alone sufficient, question, be whether the act of the party not, entitled to the easement amounts to an or done, depends upon the intention with which it was and that subject jury. is a for the consideration of the A cesser use, coupled clearly with act of an indicative inten- right, tion to abandon the would have the an same effect as easement, express release of the without any reference whatever to time.” (Emphasis original and citations omitted).
Vogler, 51 atMd. 410. See also D.C. Transit v. Rds. State Comm'n, (1972)(D.C. 622, 627, 265 Md. 290 A.2d //)(“The Transit Vogler rule of has been fol approved and lowed.”); Brooke, Land, Acres supra; F.Supp. at 1.44 1069 (quoting Vogler). rarely
Since there is direct evidence an intent to abandon, question of abandonment hinges upon the man thereof) (or abandon, ifestations lack of an intent to and “the issue most cases is question reduced to the of what factors or circumstances justify are sufficient to an inference that there an existed intent to abandon.” What constitutes aban 468, 2, donment a railroad right way, § 95 A.L.R.2d (1964). single No factor is usually sufficient to establish Rather, inference abandonment. Id. Vogler and its progeny make clear that non-use alone is insufficient to show abandon; an intent there must be act a combination of acts that unequivocally demonstrate an intention to aban Brake, Shuggars 38, 46, don. See v. 248 Md. 234 A.2d (1967)(“An may easement not lost be unless there is some act clearly it, and unequivocally indicating an intention to abandon and mere non-user is not enough.”); Cooper Land Sanford Co., 263, 266, (1961)(“[T]wo 224 Md. 167 A.2d ele-
160 abandonment, namely, an an necessary to show are merits act, act, an omission to abandon, overt and an intention effect.”); Pa. Ma. & into intention is carried such by which (“[T]he is well 40, at 250 law Co., 166 A.2d 224 Md. at RR. acts of by the may be shown intent to abandon that the settled Dove, 205 Md. intention.”); v. Klein such an indicating party a Sachs, (1954), Lichtenberg v. 82, citing 285, 295, 87 107 A.2d (“Mere right of a 450, non-user 145, 156, 455 88 A.2d 200 Md. it.”); Knotts v. of an abandonment necessarily is not way 280, 240, 282 234, 126 A. Co., 146 Md. Park Summit in this as (1924)(“[W]here acquired by grant, is right way a non-user, long a for however case, by lost mere it cannot be act by some indicat- time, accompanied is such non-user unless grantee of the an intention unequivocally clearly and ing 128, Co., R. 141 Md. it.”); Pennsylvania v. Green abandon (1922)(“Intention an essential element 127, 132, 128 118 A. Co., 99 R. abandonment.”); v. Balto. & Ohio Canton Co. that nonuse 218, 637, (1904)(observing 202, 57 A. 638-39 Md. abandonment, is some unless there operate not se per “will with the inconsistent act of the owner unequivocal decided and Davis, easement”); 35 Md. v. of the Glenn continued existence settled that an the law is well 208, (1872)(“Unquestionably, 217 indicating of a by party the acts may be abandoned easement intention.”).8 such use, however, may be through prescriptive easement obtained
8. An alone, prescriptive the non-use lasts through non-use if abandoned Church, 108, (1872)("[Since] 119 37 Md. period. Browne v. M.E. See user, twenty years[,] acquired for ... adverse right ... had been time, any right they extinguish space would a like its non-user for road, legiti- would afford cesser to use the acquired ... because such original.)); (Emphasis right.” a presumption of release mate 467, Freeman, (1823)("adversaiy user of a 476-77 Wright 5 H. & J. v. twenty years, shall be way another for right over the lands of grant, right originated in presume that foundation sufficient may follow, right be upon every principle, that the non-user of must 1, Stein, (1858)(discussing Cherry 11 Md. 21-22 extinguished”); v. Freeman, adversary right supra, user of Wright that "the holding v. twenty years, be a sufficient would way the lands of another over grant; right originated in a presume, foundation quieting possession, it must follow purpose of consequently, for the
161
on
acts of
Finally, while the determination turns
abandon,
indicating
the holder of the
an intention to
easement
it is well-settled that “the burden of
proving
rests on the one who asserts or relies on it.” Ma. & Pa. RR.
I,
Co.,
40,
224 Md. at
at 250.
Transit
A.2d
See also D.C.
Hellen,
258,
801; Ayres
that an easement has been
that the
*42
necessary unequivocal
present.
example,
acts were
For
10,
(1912),
Stewart v.
119
957
May,
Md.
85 A.
we affirmed a
finding that an easement had been
no
abandoned when
use
and,
had been made of it for “at least twelve years”
among
factors,
other
the holder
the easement “had built over the
in such
as to
way
impossible
[easement]
make
for them to
19,
enjoy
85
Cityco
[it].”
Md.
A. at 960. In
Realty Co.
Phila.,
Co.,
221,
B.
(1930),
&
W.R.
Md.
148 A.
we
that an
concluded
easement had been
abandoned
an action
brought
compel
to
the railroad to construct and maintain a
farm crossing that had not
for
years
been used
more than 20
before the acquisition
by
plaintiff
of land
and where the
land had been conveyed without reservation.
in Hagers-
And
Grove,
town
F. Rwy.
(1922),
&
Co. v.
141 Md.
In deciding the
question,
certified
we therefore must
decide whether there has
sufficiently
been a
“decided and
unequivocal act
the owner inconsistent with the continued
Canton,
existence of the easement.”
presumption of its abandonment, to the federal necessary it is review finding operates. under which the scheme regulatory 2. subject been long carriers have
Interstate rail carriers. See as common regulation federal comprehensive Co., 226 Farmers Elev. v. Hardwick R.I. & P.R. Co. Chicago, 174-75, 57 L.Ed. 286-87 426, 433-35, 33 S.Ct. U.S. Act, ICC9 over (1913). the Interstate Commerce Under oper freight railroads obligations carrier sees the common 11101(a)(re- § See 49 U.S.C. in interstate commerce. ating ... jurisdiction “provide subject railroads ICC quiring Furthermore, railroads sub request”). on reasonable service new railroad may acquire construct or jurisdiction to ICC ject convenience and necessi public if the ICC finds that only lines acquisition or construction. permit or their ty require a railroad’s aban § law also controls 10901. Federal U.S.C. of rail or the discontinuation of its railroad lines donment (requir § 10903 of its lines. 49 U.S.C. any part over service a certificate of abandonment a railroad to obtain ing action). taking either Permission prior discontinuance an ICC depends upon also or discontinuation necessity.” 49 U.S.C. convenience and finding “public 10903(a)(2). applica deny must the abandonment § The ICC *43 necessity.” and if convenience public tion it “fails find 10903(b)(1)(B). conve making finding public of § U.S.C. “whether the ICC must consider necessity, and nience serious, have a adverse or will discontinuance 49 U.S.C. community development.” impact on rural and 10903(a)(2). has concluded that Supreme Court § a balanc standard involves necessity” convenience and “public ing test: 1, 1996, and its duties were January the ICC ceased to exist
9. On (STB), Depart- Transportation Board in the the Surface transferred to 104-88, 29, 1995, No. Transportation. of Dec. Pub.L. ment of Act (109 Stat.) Act of 1995” 803. Since the ‘‘ICC Termination U.S.C.C.A.N. decision, refer relevant to this we shall effect at the times had not taken ICC, powers now with the STB. only although the ICC’s reside to the “The benefit to of the abandonment be [the railroad] [should loss against public]. the inconvenience and balanced] [the Conversely, particular the benefits to communities and com- against merce of continued must be operation weighed thereby burden other commerce.... imposed upon What- needs, precise conflicting ever the nature these upon balancing determination is of the respective made interests.... In that fact of balancing, the demonstrated prejudice interstate commerce and the absence of earn- are, ings adequate to compensation afford reasonable course, relevant may controlling. often be But the not make [A]ct does issuance of the certifi- [abandonment] cate dependent upon specific finding to that effect.” States, 153, 168-69, Colorado United 271 U.S. 46 S.Ct. (1926). 70 L.Ed. 885-86 an When the ICC issues finding order that public necessity convenience and allow a line, carrier to abandon a permissive, compul order is not sory, may permis choose not to exercise its sion to abandon. See Consolidated Rail Corp. v. Surface Bd., (D.C.Cir.1996). Transp. Moreover, 93 F.3d 797-99 until consummated, abandonment has been “may the ICC any time on its own grant permis initiative” reconsider its sion error, evidence, to abandon if it finds “material new substantially changed circumstances.” 49 U.S.C. § 10327(g)(1).
Congress enacted the Rails-to-Trails Act in 1983 against background this regulation federal over the abandonment of 1247(d). railroad rights-of-way. § 16 U.S.C. The Rails-to- Trails Act amended the National Trails System byAct adding (d), to it subsection which in essence provides a third option for railroads in application lieu to either abandon the line or discontinue service. That section provides pertinent part:
“[I]n furtherance of the national policy preserve estab- lished railroad rights-of-way future reactivation of rail ... service case interim use of established railroad rights-of-way ... such interim use shall not be *44 treated, purposes law, for of any law or rule of as an for railroad rights-of-way of such of the use
abandonment
subdivision,
pri-
State,
qualified
or
If a
political
purposes.
full responsibility
to assume
prepared
is
organization
vate
legal
for any
rights-of-way
of such
management
for
use,
or
and for the
transfer
arising out
such
liability
or
may
that
be levied
assessed
any
and all taxes
payment
shall im-
the Commission
then
against
rights-of-way,
such
any
requirement
as a
terms and conditions
such
pose
in a manner consis-
for interim use
conveyance
or
transfer
or
not
abandonment
permit
and shall
chapter,
tent with this
of such use.”10
disruptive
inconsistent
discontinuance
congressional
efforts
Act
the “culmination
rights-
by converting unused
shrinking
trackage
rail
preserve
Preseault,
5,
at
494 U.S.
trails.”
of-way to recreational
918,
apparently believed
“Congress
If
agreement
an
on trail use is
with a
reached
state or local
1247(d)
§
or
government
private group,
treats the interim
service,
trail
jurisdic-
use as a discontinuance of
which ICC
tion is
preserved
right-of-way,
over
rather than
aban-
donment that
jurisdiction
would terminate ICC
and cause any
right-of-way held as an easement to revert to the owner of the
underlying
simple. According
regula-
estate
fee
to federal
tions,
“[p]ermit[s]
the issuance of the CITU
the railroad to
service,
tariffs,
discontinue
cancel
salvage
track and mate-
rial consistent with interim trail use
rail banking.”
1152.29(c)(1). Furthermore,
§
C.F.R.
“[t]he CITU will indi-
cate that
subject
interim trail use is
to future restoration of
1152.29(c)(2).
cases,
§
rail service.” 49
In
C.F.R.
several
ICC has ordered that service be restored over rail lines that
previously
had
been
to trails
converted
under 16 U.S.C.
and,
1247(d).
See
§
Railway
Western
Company—
Norfolk
Abandonment
Marys
between St.
and Minster in Auglaize
OH,
County,
(1998);
Missouri Pacific
I.C.C.2d
Railroad Company—Abandonment Exemption—in St. Louis
accurately,
11. More
the ICC will issue either a Notice of Interim Trail
(NITU)
Use
or a Certificate of Interim Trail
Use
Abandonment
(CITU), depending on the
proceedings;
nature of the abandonment
purposes
difference is not relevant for our
since their effect is the same.
case,
In the instant
the ICC
issued CITU.
(Sub-No. 98X)(Surface Trans.
MO, Dkt. No. AB-3
County,
Power,
18, 1997);
Exemp-
Bd.,
Iowa
Inc.—Construction
April
(1990).
IA,
Thus, during
regulations governing law Maryland property, potential of railroad corridor disposition a railroad’s governs process. to the ICC Md. pursuant that has been abandoned *46 Art., § 7-901. (1977, RepLVol.), Transportation 1993 Code or main- “any property covers railroad owned Section 7-901 subject to ... is or was company [that] tained a railroad pro- abandonment Interstate Commerce Commission’s 7-901(c) state notify a railroad to requires cess.” Section That states dispose provision of a corridor. of its intent pertinent part:
“(c)
a railroad
disposition—Required.—If
Notice
sale or
of
dispose
intends to sell
otherwise
company
located in this State and
which
corridor
is
property
received
the Interstate
company
permission
has
from
with
governmental agency
Commission or other
Commerce
ser-
transportation
in the matter to abandon
jurisdiction
vices,
Ad-
company
notify
Secretary
shall
and the
dispose
of its intent to sell or otherwise
ministration
added).
(Emphasis
original
property.”
§ 7-901 are
to facili-
provisions
notification
intended
acquisition
property.
state’s
of abandoned railroad
tate the
§
of railroad corridor
7-901(b)(authorizing acquisition
See
(1974,
RepLVol.),
1997
Natural
property). See also Md.Code
Art.,
Maryland policy
pre-
§ 5-1010
(declaring
Resources
authorizing
for trail
railroad corridors
use
serving
corridors).
rail
acquire
of Natural Resources
Department
notifica
we have never had to address whether
While
certify
§
when
required
regulators
tion under
7-901
federal
(as
abandon-
agreement
opposed
authorizing
rails-to-trails
line),
inapplica
that the section is
appear
ment of the
it would
is issued
lieu
is issued since a CITU
ble when CITU
of state law is
interpretation
of abandonment. This
approval
jurisdiction
plenary”
“exclusive and
consistent with the ICC’s
approves
until the time when the ICC
up
over railroads
Tr. Co. v. Kalo Brick &
Chicago
See
& N.W.
abandonment.
258,
Tile,
311, 321,
101 S.Ct.
L.Ed.2d
450 U.S.
(1981).
Preseault,
8, 110
S.Ct. at
also
494 U.S. at
See
is effective
requirement
B. Pursuit of Abandonment Regulatory The Railroad’s *47 case, that Turning to the instant we first note the facts alleged support appellants’ to contentions that the easement largely relate conveyed by the deed has been abandoned to the by pursuant to actions taken federal regulatory appellants emphasize scheme. The that the rail- Georgetown to Branch is demon- road’s intent abandon in by following: the 90% decline traffic over the strated 1985; declaring 1969 to of notices in 1983 years posting with the application that an abandonment would be filed ICC in three the discontinuation of service 1985 due years; within major for on over Rock Creek repairs to the need the trestle storm; B vote to after a the & O Executive Committee’s Branch Georgetown or discontinue service” over the “abandon 1985; for abandonment and filing application in and the of the 9,1986. April of service on discontinuance of these facts that company The land concludes on the basis ... that railroad] evidence shows undisputed [the “[t]he Georgetown to publicly stated its intention abandon proceed in that an with Branch internal decision right in that the use of the abandonment was made was, fact, May in on 1985 and way [the terminated aban- a resolution of formally adopted directors railroad’s] 22, 1985, ... years more than before July donment on three agreeing] give Montgomery County quitclaim deed.” company The concludes that abandonment occurred land of the need for 1985 when service was discontinued because major bridge repairs. Country argues The Club by purposes” April easement “for railroad was abandoned and that application 1986 when the railroad filed its ICC than the certainly “abandonment did not occur later the abandonment.” February approving 1988 order the ICC if not apparently concede that the railroad had Appellants by February of state law purposes been abandoned (when stayed abandonment but the effect the ICC authorized authorization), was not abandoned of its then the Maryland conveyed quitclaim under law when the railroad Montgomery County deed to December 1998. arguments oversimplify the nature appellants’ of the line
railroads’ actions. Outside of the decline use Creek, Rock forego repairs bridge the decision to on the over below, alleged support which we discuss further the acts interest finding of abandonment of the state law an aban- primarily plans relate to the railroad’s undertake facts, regard before the ICC. to these proceeding donment ie., nomenclature, largely the issue seems to be one of wheth- proceed- er the term “abandonment” the context of an ICC ing synonymously concept can be used with the state law appellants of an easement. We believe that “abandonment” unnecessarily question by relying confuse the state law on comply regulatory actions taken the railroads to with *48 next, the explain law. As we under federal “abandonment” “abandonment” be- regulatory in pursuing railroad’s actions an to retain state are consistent with intent fore the ICC interests; fact, actions are in the railroad’s law to take in the railroad federal law order for mandated under eliminate, its com- temporarily, even to reduce or any action result, alleged the facts obligations. As a mon carrier to abandon the the railroad’s intent to evidence appellants determining question in unhelpful right-of-way prove was abandoned. whether
1. of aban- question that the state law Appellants acknowledge The from ICC action on abandonment. donment is distinct however, pursuant that actions taken argues, land company intent to regime necessary establish the regulatory the federal posted For the notices example, abandon under state law. subject line be the of an abandonment 1983 that the would committees of the proceeding, the internal decisions in 1984 and abandonment companies pursue railroad for 1986 are filing application and the abandonment alleged to constitute evidence of abandonment. actions, however, prerequisite is a for a
Each of these or to wishing to sell its interests to 16 U.S.C. participate agreement pursuant a rails-to-trails 1247(d). regulations post § a railroad require Federal informing anticipated on line readers that the line notice See 49 subject regulatory proceeding. to be the of an ICC 1152.20(a)(3). § are neces- corporate resolutions C.F.R. regulatory sary decision-making steps pursuing internal abandonment, obviously approval and a railroad cannot obtain filing without for discontinuance of service application regulators. with federal “abandon” in the
Even if we were to conclude that the word with state law aban- regulatory synonymous context could be easement, application of an the railroad’s the ICC donment “[ajpplicants made clear that the seek to abandon discon- ” Branch, not their interest Georgetown tinue service over the *49 added). (Emphasis application repeatedly in the land. abandonment,” it noted that “proposed refers to the and interested in may acquiring “various bodies be public or uses.” As the feder subject public purposes properties observed, recently court for the D.C. Circuit appeals “[t]he al in this precise meaning regulatory has a word ‘abandon’ (D.C.Cir. STB, 135, 1 158 F.3d 137 n. scheme.” NARPO v. 1998). Education, Md.App. v. Board 98 See also Cristofani 447, 1, (1993)(observing 448 n. 1 92 n. 632 A.2d beyond of law concept “abandonment” is a other areas Dist., context); v. East Park Bay Regional easement Vieux (9th nature of Cir.)(noting permissive 906 F.2d only which “is a determination approval, ICC abandonment purposes. ... would not hinder ICC’s cessation of service that the has abandoned its It is not a determination railroad denied, lines”), 112 L.Ed.2d cert. 498 U.S. S.Ct. (1990). entirely statements and actions are The railroad’s and to consistent with an intention to sell the to 16 U.S.C. agreement pursuant a rails-to-trails pursue 1247(d).12 § An intention to sell the is inconsis Vieux, property an intent to abandon the interest. tent with Moreover, was regulatory at 1341. abandonment F.2d agreement since a trail use never even consummated Indeed, the corridor cannot have been abandoned reached. Furthermore, regulatory application for abandonment should be 12. statutory language requiring a railroad read in the context of the carry pursuant agreement intending a sale to a rails-to-trails public showing is burden of that abandonment consistent with 10904(d)(l)("[T]he necessity § standard. 49 U.S.C. convenience person applying or [of burden is on the for the certificate present public prove that the or future convenience discontinuance] discontinuance.”) necessity require permit the abandonment or burden, Thus, apparent explained in an effort to meet the the railroad operated profitably B & O even in the that the line "could not be text, performed.” event that rehabilitation were As noted in the main effort to meet its burden under federal to read into railroad’s regulatory property law interest in the law an intent to abandon its state right-of-way would create an irreconcilable dilemma for 1247(d). § wishing pursue agreement under 16 U.S.C. interim, and only the trail use is federal law because under rail service. the restoration of may require regulators federal 1152.29(c)(2). Part § See IV.A.2. 49 C.F.R. railroad to abandon course, for a impossibility it is not an
Of is agreement a trail-use interest when property its state law the abandon- carry act required But the decisive pursued. acts supplied by cannot be of proof burden proponent’s ment scheme, which regulatory the federal entirely consistent with Furthermore, if abandonment such abandonment. precludes a trail use interest occurs when state-law law, with federal compliance agreement being pursued regulatory occur without the federal that abandonment would *50 which, next, in civil and could result as discussed approval liability. criminal
2. that the was abandoned Appellants’ contention Montgomery with agreement to the consummation of the prior us to that the railroad intend- County require would conclude provisions various disobey comply to rather than with ed words, if it had intent to and state law. other federal action, prior law interests ICC abandon state to violate have to also have intended the railroad would law, subjecting itself to various provisions several of federal 11901, §§ 11906.13 civil 49 U.S.C. criminal and sanctions. See provides pertinent part: § U S.C. 13. 49 11901 section, "(a) Except provided a common carrier as otherwise in this subject jurisdiction Interstate providing transportation to the of the a agent ... an officer or of that carrier or Commerce Commission trustee, lessee, them, receiver, knowingly violating agent or of one of Commission under this subtide is liable the United an order of the $5,000 penalty of for each violation. States Government for a civil violation. Liability subsection is incurred for each distinct under this day separate the violation continues.” A violation occurs for each pertinent provides part: § 49 U.S.C. 11914 “(a) penalty provided chap- another criminal is not under this When ter, juris- providing transportation subject to the a carrier common subchapter I diction of the Interstate Commerce Commission under title, corporation, chapter is a 105 of this and when that carrier receiver, trustee, lessee, corporation, or director or a or officer 172 explained, importance
As one court
“because of the
uninter
rail
rupted
transportation
economy,
service
the nation’s
intent,
Congress
expressed
has
even to the
point
clear
sanctions,
prior
ap
criminal
that abandonments without
ICC
not tolerated.”
v. Baltimore and
proval
Annapolis
are
I.C.C.
454,
(D.Md.1975),
Company,
F.Supp.
Railroad
aff'd
(4th Cir.),
Gravure,
facilitates other the federal § may Under 49 U.S.C. not abandon its line immediately on the date which the ICC determines that public Rather, necessity permit convenience and abandonment. is delayed days least ten after notice of the published Register abandonment order the Federal any “financially responsible person” pay allow to “offer to carrier a subsidy purchase offer the line.” 49 U.S.C. 10905(c)-(d).14 § If a financially responsible person makes an *51 that,
person acting employed by corporation or for the alone or with person, willfully prescribed another violates this subtitle or an order subtitle, $5,000. However, under this shall be fined not more than if charged transportation, the for violation is discrimination in rates person may imprisoned years the be for not more than 2 in addition being separate to fined under this subsection. A violation occurs 11321(a) day a each violation of section or 11342 of this title continues.” § provides pertinent part: 14. 49 U.S.C.
"(c) When the Commission finds under section 10903 of this title that public necessity require permit the convenience and or line, shall, particular concurrently or discontinuance of a upon parties, publish with the finding service of decision the the delayed 30 is further offer, of the ICC certificate issuance the negotiate offeror to railroad and the allowing the days, 10905(e). If § subsidy. or U.S.C. purchase of the terms railroad or terms, the agree on either are unable to they the terms and to establish ask the Commission may offeror 10905(e)-(f). § subsidy. the sale or U.S.C. conditions of Co., Tr. 467 U.S. Chicago N.R. Co. v. & N.W. Hay See field 2610, 2615-16, 534-35 81 L.Ed.2d 622, 629-30, 104 S.Ct. (1984). case, the railroad the ICC authorized
In the instant after & Gravel Branch, Laurel Sand Georgetown the abandon publication, days following Register. Within the Federal person may subsidy purchase pay the carrier a or offer offer to concurrently filed with the Commission.... line. Such offer shall be (c) If, (d) publication required in subsection days after the within 15 section, finds that— the Commission of this (1) person (including government authori- financially responsible transportation to ty) to enable the rail has offered financial assistance be abandoned or part that of the railroad line to be continued over discontinued; and transportation is to be over which all rail (2) equal likely that assistance would be to— it is (A) part of attributable to that difference between the revenues providing freight avoidable cost of rail the railroad line and the line, plus the value of transportation a reasonable return on on the !ine; or line; (B) acquisition part of the railroad cost of postpone of a certificate authoriz- the Commission shall the issuance ing in accordance with subsections abandonment or discontinuance (e) (f) section. of this (e) offering into person financial assistance enter If the carrier and a service, agreement provide will continued rail the Commis- which long so as the postpone the issuance of the certificate for sion shall agreement, agreement, is in or an extension or modification (he person offering purchase a line enter and a effect. If carrier service, provide agreement which will continued rail into an applica- approve shall the transaction and dismiss Commission If carrier and a finan- tion for abandonment or discontinuance. (including government authority) cially responsible person fail subsidy purchase, party agree or terms of the either on the amount made, days request, Commis- may, after the offer is that the within 30 compensation. If no and amount of sion establish the conditions days agreement is made and is reached within 30 after the offer party requests that the Commission establish the conditions neither during period, compensation that same the Commis- and amount of immediately authorizing issue a certificate the abandon- sion shall ment or discontinuance.” *52 (LSG) filed an offer of financial assistance under 49 U.S.C. § “financially 10905. The Commission found LSG to be re- negotiate subsidy and directed the railroad to sponsible” negotiations precedence sale of the line LSG. These took proposed being over the rails-to-trails conversion discussed See Rail Abandonments—Use of County. that time with the Trails, (1986). Rights-of-Way I.C.C.2d than negotiations ultimately lasted more six months but unsuccessful; its offer of proved subsequently LSG withdrew financial theory proposed by appel- assistance. Under the however, lants, negotiations between the railroad and LSG essentially meaningless, prior would have been since to the negotiations start of with LSG the railroad would have had already right-of-way; theory, abandoned its under appellants’ reached, agreement had an been would have either been LSG over the abandoned or it have trespasser would reacquire company. had to from the land requirement entertaining addition to the offers of assistance, subject financial railroad was the ICC’s authority place regulatory broad conditions on abandon- See U.S.C. § ment. 10903(b)(l)(A)(ii)(granting the ICC the abandonment “with ... [and] power approve modifications conditions that the finds required by public Commission are added). necessity”)(emphasis convenience and Under 49 § U.S.C. the Commission must make a determination the rail properties pro- “whether are involved posed abandonment or discontinuance for for are suitable use public purposes, including highways, other forms of mass conservation, transportation, energy or transmis- production sion, or recreation.” Should the Commission find the rail suitable for properties public purposes, properties may “the be sold, leased, exchanged, or otherwise only under disposed provided conditions in the order the Commission.” Id. added). if (emphasis Again, had abandoned interests pursuant before ICC acted to its aban- application, donment it would have been impossible railroad to with comply imposed conditions on the aban- being trespasser right-of- donment without deemed on the *53 had been that the easement Moreover, conclusion way. deed— quitclaim of the conveyance to the prior abandoned right-of- in the no interest railroad with leaving the thereby Maryland of the spirit to contravene appear way—would Part See right-of-way. authorizing acquisition law IV.A.2, supra. do, that a appellants as lightly presume, not
doWe to contrary acted company, a railroad or in this case person, to proposes an individual “Where requirements. legal explicit venture, presumption otherwise a lawful in what is engage manner.” proper in a his activities conduct that he will is 367, 377, 347 276 Md. Corp., Fuel Gaylord v. Leatherbury where, as (1975). the case 826, particularly This 832 A.2d evidence this No be involved. here, may sanctions criminal the railroad violated finding that a support case would finding a law, uphold not and we could violate the to intended to a federal crime that would be tantamount action that it took without substantial liability to civil it expose and that would so, is not evidence which to do it intended evidence Securities, 122 Securities U.S. See also Md. here. present 290, (1998)(stating 574, 588, presump 716 A.2d Md.App. in a regularly and “act[] officers administrative tion that manner”); Target, Md.App. v. On Valentine lawful presumed of firearms (1996)(purchasers 686 A.2d aff'd, 353 Md. purposes), for legitimate purchase to have made (1999). all indicate that facts stipulated 727 A.2d law. comply with the making every effort railroad was its state law had abandoned Yet, that the railroad finding to a would be tantamount in the interest property law, thereby violate the intended to that the railroad finding decline sanctions. This we to criminal and civil itself exposing to do.
3. efforts to use appellants’ accept If we were regulatory approval of federal pursuit acts taken railroad’s necessary to demon the decisive acts for “abandonment” law, under state to abandon an easement an intent strate an would create irreconcilable dilemma for wishing railroads to pursue rails-to-trails agreements or otherwise dispose their in right-of-ways. interests The railroad could pursue not agreement rails-to-trails filing applica- without regulatory ICC, tion for abandonment at the but the actions taken to pursue itself, such an application, application and the would constitute evidence of abandonment for pur- state law poses, thereby causing it to risk undermining the rails-to-trails agreement. This would create a Hobson’s choice for the railroad that must apply regulatory abandonment under federal law as the necessary step CITU, first obtaining that application while itself would constitute evidence of an intent abandon in terms of (thereby state law undermining *54 the by making CITU effort costly). more Such a holding completely would frustrate state and federal policies intended promote preservation of rail corridors and their conver- sion to trail use. We conclude therefore that the actions of the railroad taken to comply with the regulatory federal cannot, regime law, as a matter of state supply the unequivo- cal act or acts that evidence the intent to abandon ease- ment in interest land.
C. The Insufficiency Any of Other Potential
Evidence of Abandonment must We next determine whether the remaining actions of the railroad alleged to constitute supply abandonment suffi- cient support evidence to a of finding an intent to abandon the easement. Those acts include the railroad’s decisions to fore- go bridge repairs 1984 and subsequent discontinuance of use of the major line after a storm damage caused to the bridge 1985. Even assuming that the forbearance of re- pairs combined with the of nonuse the right-of-way constitute nonuse, more than evidence mere we they conclude that are insufficient appellants’ to meet initial burden of proving clear unequivocal act that is necessary support a finding an intent to abandon.
Our conclusion is
by
dictated
our previous cases concerning
Canton,
abandonment of
an easement
a railroad.
In
right-
a railroad
finding that
affirmed a
we
supra,
example,
for
much
the circumstances
when
abandoned
had not been
of-way
than
abandonment
finding
strongly supported
more
was the
Company,
the Canton
appellant,
instant case.
in a
been taken
had
which a
land over
owner of
in 1885 and
B & 0
brought by the
proceeding
condemnation
$20,000.
possession
The railroad took
paid
it was
for which
with
track,
the track
it never connected
but
land and laid
although
the tracks
tracks,
it removed
other
use.”
for
substantial
employed
been
they
“ha[d]
never
addition,
railroad
Canton,
A. at 637.
at
99 Md.
the con-
through
going
instead of
connections
used other
achieved
routes was
the alternative
land. One
demned
years,
last 999
contract,
into in 1890 and to
entered
through
every
“all its traffic
over that line
ship
it to
required
which
Canton, 99 Md.
of Baltimore.”
through
city
passing
kind
facts,
on the basis of these
Primarily
220,
Unlike for some actually right-of-way used the that the railroad ed made major bridge repairs for when the need years until that about the undisputed It is also continued use unfeasible. obtaining permis- taking steps toward began time the railroad abandonment, management regulatory for sion from the ICC negotiations agreed pursue railroad had committee of the In right-of-way. for transfer of the Montgomery County with Canton, an affirmative to remove railroad made decision
tracks on land for a condemned right-of-way—tracks which had never really been used—and to enter a whereby contract “all” of its traffic go would over years; another line for 999 nevertheless, we held that the facts failed to supply the necessary decisive act to show an intent to abandon. case, instant there is much less evidence of an unequivocal and decisive act evidencing an intent abandon the interest in right-of-way. use of the altogether ended only because of the bridge deterioration of a (due storm) to a severe weather at approximately while same time the railroad undertook action to adhere to federal regulations to end service over the line negotiate and to sale of its in assignable interest the right-of-way pursuant the Rails-to-Trails Act. The decision to up take tracks and enter a long-term contract for another route Canton provid- in ed stronger evidence of an intent to than abandon the decision in forego repairs the instant case—particularly when that decision is consistent with the contemplated new transit use of If corridor. anything, the railroad’s actions this case evidence a clear intent not to abandon but to sell to the County its interest in the right-of-way consistent with the requirements of federal regulation. As one court observed context, a similar “[cjonveyance property and abandonment Vieux, of property not are consistent actions.” F.2d 1341.
Furthermore, a railroad’s participation in a rails-to-trails program that it implies does not to fully intend abandon the line, but rather to retain the right-of-way while permitting Birt, interim 587; trail use. 90 F.3d at Railway Corpo- KCT Franklin, Exemption—In Anderson, ration—Abandonment Counties, KS, and Allen (1991)(observ- 7 I.C.C.2d ing that railroad’s interest trail negotiating agreement “inconsistent with clear intent to consummate the abandon- ment implies may KCT be interested in preserving service”). the future restoration of rail The facts of resemble those in Birt. closely this case In case, landowner, Birt, argued that the railroad had aban- doned its property interest the right-of-way prior to the *56 depriving thus agreement, of a rails-to-trails consummation reviewing the rail corridor. over jurisdiction the ICC occurred, had not ICC that abandonment decision explained: court actions which concrete has listed several
“The Commission of operations cessation to abandon: indicate an intent may track materi- tariffs, track and salvage of the cancellation right-of-way. over the of control als, relinquishment however, tempo- with are consistent equally factors, These (‘discontinuance’), per- which operations cessation rary per- not but does rails-to-trails conversion mits a effect Thus, to determine whether manent abandonment. discontinuance, or mere abandonment conduct is railroad’s signifies which behavior look to additional we must often ” omitted). (Citations or the other.... one Birt’s conten- Birt, rejected also 585-86. The court 90 F.3d at of two letters occurred as a result that abandonment tion that conceded explicitly railroad which by written Birt, at 586. Fewer 90 F.3d “was abandoned.” right-of-way reaching a conclusion are available in the instant case facts Appellants than in Birt. was abandoned right-of-way that the that the declaring no letter from the produced have has been abandoned.15 right-of-way abandoned is could not have been right-of-way
That the that when a requirement federal by evidenced further under 16 U.S.C. is converted to trail use 1247(d), foregone is and the ICC’s regulatory § “subject to the future restoration expressly made approval § the CITU 1152.29(e)(2)(requiring of rail service.” 49 C.F.R. future restoration subject trail use is to state that “interim if service”); a railroad seeks (c)(3)(stating rail id. at regu- and federal right-of-way, service over the reinstitute so, “the CITU will be vacated to do grant permission lators stated, has accordingly.” As the ICC however, produced appellees a letter During litigation, the course of 15. stating expressly the railroad in 1988 written had not been abandoned. *57 CITU/NITU, “By consenting to the issuance of a a carrier agrees to forgo consummating exempted the authorized a consequence, abandonment. As its common carrier obli- Instead, gation abandoning does not terminate. the carrier retains a residual common obligation earner and transfers user, the to the trail to the right-of-way subject stipulation that the rail corridor remain available the reinstitution for A agree rail service. carrier’s decision to to a CITU/ and, totally is voluntary NITU as far as the Commission is concerned, may be withdrawn at time abandoning operations carrier wishes to reinstitute rail over the right- added.)) of-way.” (Emphasis & Railway Company—Abandonment Western be-
Norfolk OH, tween St. and Minster Marys Auglaize County, in (1993). 1015,1018 I.C.C.2d
Thus, the consummation upon agreement, of a rails-to-trails “railbank,” and, in right-of-way placed a national at a date, later regulators may permit federal removal of the corridor from the railbank order to reactivate service. That service may be reactivated on the supports our abandoned, conclusion that the not right-of-way has been for it difficult, would be if not virtually impossible, to reactivate service on an line.16 abandoned
Our decision frustrating avoids the federal and public state policies promoting the conversion of railroad rights-of-way transportation other and recreational uses. Were we to otherwise, hold it would be hard to imagine situation which a pursuing agreement rails-to-trails not would interest, have abandoned its property since there must be point some at which a railroad comports differently itself anticipation of a rails-to-trails if agreement than it were to continue to line. if operate Conversely, we were to hold that the to repair bridge failure over Rock Creek were expressly 16. Since the made transferable to "succes- railroad, assigns,” sors and whether service would be reactivated County, bearing or a future successor in interest has no on our conclusion. an intent proving burden of appellants’ to carry sufficient a railroad to make abandon, incentive for would create an we found to have being to avoid in order expenditures futile complies as it under state law interest abandoned law. the mandates of federal with may that a railroad to intimate do not intend
We
Maryland
prior
law
easement under
never abandon an
rather,
abandonment;
mere
we
regulatory approval
federal
case,
of this
where the
the circumstances
ly hold that under
coincide
time
alleged
actions
supporting
with
comply
railroad’s efforts to
in function
with
or reason to
suggestion
there is no
federal
law and where
with federal
comply
intended to not
conclude that the railroad
*58
law,
not sufficient
law,
the facts are
Maryland
as a matter of
occurred
that abandonment
showing
meet
the burden of
to
to
the
deed
the
conveyance
quitclaim
to the railroad’s
prior
of an easement
of abandonment
County.
question
While the
law, the
Maryland property
is to be decided as a matter
in a vacuum
which the
not be resolved
question should
regulatory
ignored.17
scheme is
federal
Indeed,
recognized
illogic
ignoring
the
implicitly
the
the CFC
17.
question
regulation
determining the state law
comprehensive
scheme in
finding that the easement had
of abandonment of an easement.
In
25, 1988,
February
order of
been abandoned when the ICC issued its
court,
early
length
decision of this
Benson
the court discussed at
an
Comm.,
(1922), relating to state
Md.
Finally, we note that
conclusion that
the evidence is
that the
insufficient to show
railroad intended to abandon the
with the
right-of-way is consistent
obvious economic interests
of the
The railroad had a
perpetual”
railroad.
“free and
portions
interest
of the
at issue
this
case; it
irrational for
to
would have been
the railroad
abandon
attempting
without
to recover some value
from its
in the land. As the
facts
stipulated
interest
demon-
strate,
pursue
the railroad did
fact
of action
course
through
it recovered value
the sale of the
to
whereby
corridor
above,
As
of action
County.
explained
course
was
necessarily lengthy and somewhat arduous
because
scheme of
under which it
regulation
operating.
federal
however,
pursue
process,
The railroad had to
in order to
any
right-of-way.
derive
economic value out of its
sum,
we hold that when a railroad takes actions
that are
pursuant
regulation
wholly
federal
consistent with
interest,
an intent to retain the
in this case in order
an interim trail use
pursue
agreement,
those actions alone
cannot
act
supply
unequivocal
evidencing
the decisive and
case,
It
that in
intent to abandon.
follows
the instant
where
appellants
pointed
have not
other actions sufficient
agree
regulatory
We
with the CFC that the
scheme under which the
operated
relevant
whether
intended to abandon the
right-of-way,
disagree
reading
but we
with its
of Benson. Benson did
abandoned,
question
not involve
of whether an easement had been
agency
properly approved
but rather whether
the state
had
abandon-
*59
IV.B.l, supra (distinguishing
regula-
ment of service. See Part
between
abandonment).
tory
property concept
and the state law
abandonment
of
upheld
permitting
We
an order of the PSC
a railroad to abandon
portion
giving
power
service on a
of
line based
its
on statute
it the
"to
approve
disapprove
by
of the abandonment or discontinuance
...
carrier,
corporation,
corpora-
common
railroad
or street railroad
right
upon
by
of the
tion
exercise of the franchise or
conferred
its
Benson,
charter."
141 Md. a1
V. CONCLUSION The first certified asks whether the 1911 deed to question from a fee company conveyed simple the railroad the land or an that it an conveyed absolute easement. We have held plain easement. The text of the instrument states that a was no right-of-way conveyed and there is indication intended, than a anything right passage particu- more of larly light of the deed’s in fee separate conveyance simple on which a passenger land station was to be located. This conclusion is convey- confirmed the circumstances of the ance, including existing railway and the nominal consider- given by light ation of its contractual obli- gations.
Second, we addressed whether the use of right-of-way as a trail is scope within the of the easement. hiker/biker on Based the absence of limitations on use language deed, in the we concluded that the use is legally deed, within the anticipated scope the 1911 light of the railroad’s status highly regulated as a public service corporation. The anticipated deed a means of transit over the right-of-way, and the trail use consistent with what was Moreover, anticipated. use as a trail poses no estate; indeed, unreasonable burden on the servient the use is less than freight burdensome railroad use. question third certified asked us to examine whether
the railroad had property abandoned state law interest in the easement. The resolution of the question abandonment required that we assess the federal framework regulatory “abandonment,” covering railroad which is distinct from law concept an easement. We that appellants concluded alleg- failed meet their burden of ing sufficiently decisive and unequivocal evidencing act *60 of the rail- abandon, given that most particularly
intent in with federal law. comply taken order to road’s actions were QUESTIONS HEREIN ANSWERED AS CERTIFIED BE IN EVENLY THIS COURT TO SET FORTH. COSTS DIVIDED.
CATHELL, Judge, dissenting: majority’s portion from the respectfully I dissent aban- line at issue was not holding that the railroad opinion law. Maryland property doned under issue its conclusion on the abandonment The Court reaches by to us the federal not certified by answering question abandon- purported law on the court—the effect federal so, to answer the ultimate majority seeks doing ment. for the Appeals States Court before the United question third certified task was to answer the Federal Circuit. Our conveyed “If Maryland on law: the deed question based law, easement, ..., as a matter of been has that easement so, if when?” conveyance, time since its abandoned distinction, to note the important it is this Recognizing question which the certified of the federal case from context Plaintiffs, property owners of real possible was presented. interests, claiming that an action in federal court initiated subject of an unconsti- had been the property those interests stat- taking” by operation of the federal “regulatory tutional They just compensation. entitled to utes involved and were statutes, they of the federal asserted that but for the effect under the property interest would be the owners at issue are federal statutes state law of abandonment. The for the first forbidding, majority those described compliance. in the absence of Maryland, time effect court is whether the being litigated issue federal The economically the owners of all deprive of the same statutes that the majority The holds property. feasible uses of their an interest because do not own plaintiffs Maryland common federal statutes on the effect of the same pertaining law abandonment. Circuit has interpret Federal asked this Court to *61 law
Maryland on abandonment the absence of the effect of the federal statutes. The that court it majority tells what knows, already not what it needs to know to resolve whether the statutes’ is so severe as impact regulatory to cause taking. courts impact upon Federal are able assess the the from property resulting application issue of the federal statutes. The in some majority, type strap- reverse “boot ping” beyond my logical comprehension, answers certified question by incorporating the effect the federal statutes into Maryland if property majority’s reasoning, law. Under the federal regulatory Maryland property statute abolishes a right, property right never existed. Under that an theory, taking property unconstitutional never could occur. answered,
The I question should be and believe the federal answered, court if wanted the federal statutes did not exist. The an majority alters established of Mary- doctrine property land law that has existed for years one hundred more in attempt an to assist the government federal to avoid obligation constitutional to compensate property if owners a federal so impacts statute as to leave the property owner with no viable economical use.
The majority also holds that the conveyances to the railroad conveyances 1911 were of easements. The United States Court of Federal Claims found to contrary, but opined if early conveyances easements, had granted those easements Maryland had been abandoned under Chevy law. States, (1997). Chase Land Co. v. United Fed.Cl. The majority’s position this case directly conflicts with that earlier ruling the same case. The Court of Federal Claims was correct on the law of Maryland abandonment.
In the judiee, parties agree case sub all railway use of the land ceased and has inoperative remained for an apprecia- period reflect, ble As time. the briefs uncontested and substantial evidence exists that the railroad did not intend to service, operate rail not operate did rail service an exten- time, period sive and intended to abandon that service. 10, 1985, me, rail clear, May that on at least to facts are bridge aof to the deterioration completely due service ceased it. repairing costs of prohibitive Park and the Rock over Creek a resolution passed railroad Thereafter, July on was at least That resolution railway service. abandoning notwith- right-of-way, of intent to abandon expression case. The issue in the federal statutes at standing the federal oper- which had been Company, Railroad Baltimore and Ohio 10, 1985, to that consented May prior the rail service ating abandon, may be. The as the case intent to abandonment or with the petitions appropriate then filed that abandonment a determination agency That made ICC. apparent for the up approval held formal but appropriate, and the (County) Montgomery County purpose permitting *62 involved of the federal statutes advantage to take railroad agree- into County The entered claims. “takings” the federal right-of-way. the acquired the statutes and ments under to the only claim deeds quit executed cautiously County. was what by this Court to be determined
The true issue nothing, If it own? owned if the railroad any, did property, prior right-of-way If it had abandoned conveyed nothing. the to time, would have reverted the to that law as the law Maryland owners under adjacent simple fee in this case. majority’s opinion the prior to existed abandonment, this Court of Maryland to the law Turning a created dispute over involving in a case said by can be abandoned rights-of-way that early as with an intention to abandon: nonuse combined of that the non-user follow, every upon principle, must [I]t of it a release by presuming may extinguished, be right the pre- the And possession. of purpose quieting for the by strongly fortified in this case is of a release sumption inway circumstance, right to whom the parties, that the under claiming those and originally granted, question land of route over the them, and distinct had used another the defendant. &, Freeman, (1823).
Wright v. 5 H. J. Vogler Geiss, (1879), 51 Md. language: we stated clearer settled, very by
It is now
well
highest
authorities
character, that a
to a
party
right way
entitled
or other
may
mere easement
the land of another
abandon
extinguish
right by
such
acts in
without
pais, and
deed
on, however,
writing.
other
The act or acts
relied
effect
result,
character;
such
must be of a decisive
and while a
declaration of an
mere
intention
abandon will not alone
sufficient,
be
question,
party
whether the act of the
not,
entitled
the easement amounts to an abandonment or
done,
depends upon the intention with which it was
and that
subject
is a
for the
A
jury.
consideration
cesser of
use,
with
coupled
any
clearly
act
indicative
intention
right,
to abandon the
ivould have the same effect
easement,
as an express release
without
reference
whatever to time.
emphasis
[Second
added.]
The law in Maryland
respect
with
to the abandonment of
same,
easements has remained the
possible
with but one
Moreover,
aberration.1
law
always
has
focused on intent.
Applying the long-standing legal
principle
the facts of this
case, excluding
statutes,
the effect of the federal
the railroad
clearly
its right-of-way:
abandoned
was a cessation of
there
use
since
least
resolutions to
abandon
both railroad
(consent
companies
one),
to abandon by
petition
to the
appropriate agency
approval
abandonment,
for an
determination by
agency
appropri-
abandonment was
*63
1.
Special Appeals
The Court of
County
in Anne Arundel
v. Baltimore &
Railroad,
350,
Annapolis
(1980),
Md.App.
though
ate.
not
to the
subject
at issue were
federal
the
statutes,
abutting
the
were able
and
landowners
the easement
here, it is
in federal court the evidence
present
presented
to
clear,
that the
majority’s position,
under the
probably even
Except
of abandonment have been met.
traditional elements
entities in
to have the
attempting
for the actions
the federal
abandonment,
the decision
impact upon
statutes
federal
Instead,
attempt
in an
simple.
be
of this Court should
County
concerns
and federal
further the environmental
changes
Maryland,
law of
but
majority
governments,
not
change
always
always
been the law.
It has
says that
has
logically
law and it
be
asserted.
been the
cannot
so
changed
Vogler.
law has not
since
We have maintained
in this
until the
case.
position
majority’s opinion
a consistent
Railroad,
99 Md.
217-
Co. v. Baltimore & Ohio
Canton
(1904),
19, 57 A.
638-39
we found that no abandonment
only
of nonuse
occurred because there was
evidence
and
had
Nonetheless,
to abandon.
we restated
no evidence
intent
Vogler
law of abandonment from
that sufficient evidence
intent
abandon demonstrates an abandonment.
plus
nonuse
218, A.
the law in
Id. at
at 639. We likewise reiterated
Realty
Philadelphia,
Washington
Co. v.
Baltimore &
Cityco
(1930):
Railroad,
226, 148
Md.
A.
443-44
party
right way
settled ...
that a
to a
It is well
entitled
land
may
or other mere easement
of another
abandon
or
by acts
The act
acts
extinguish
right
pais.
such
on,
result,
however,
such
must be of a
relied
to effect
character,
whether
act amounts to an
decisive
upon
intention with which
depends
not
use,
any
A
of the
with
act
coupled
it was done.
cesser
right,
would
clearly indicative of an intention
abandon
easement,
express
the same
have
effect as
release
Geiss,
Vogler
without
reference whatever
time.
(1912)
407;
10[,
119 Md.
189 but the nature of permitted, the acts done or and the indicates, intention which the one or the other that are important. 576, 588, 810,
See also Millson v.
217
142
Laughlin,
Md.
A.2d
(1958) (“Whenever
non-user,
816
coupled
with
circumstances,
other
show an intention to make no further
easement,
use
the
then it will have
extinguished.
been
But
Brehm,
added));
intention to abandon is essential.” (emphasis
Richards,
(1927)
126, 131-32,
618,
152 Md.
136 A.
620
(“[C]esser
use, coupled
clearly
with an act
indicative of an
easement,
intention to abandon the
would have the same
added)
effect as an express release of it.” (emphasis
(citing
Stewart,
10,
957;
410));
119 Md.
Vogler,
85 A.
atMd.
Co.,
234, 241,
Knotts v.
280,
Summit Park
146 Md.
126 A.
(1924) (“A
use,
cesser of the
with
coupled
any act clearly
indicative of an intention to abandon
right,
would have the
same
express
easement,
effect as an
release
without any
added));
reference whatever
(emphasis
to time.”
Public Ser
vice
R.R.,
Comm’n v. Philadelphia, Baltimore & Washington
(1914)
(same)
122 Md.
89 A.
(citing Vogler,
407;
Davis,
(1872)).
51 Md.
Glenn v.
abandoned land owner or his successors title. original to its ty reverts *65 Co., Canton 39, 166 99 Id. at distinguishing A.2d 250. After at 637, in 202, A. basis that the railroad officials 57 on the Md. no to abandon the they had intention that case had testified Pennsylvania & Railroad Maryland while right-of-way, abandon, of an we had been no disclaimer intent there law of abandonment: Maryland further discussed the that the intent to abandon may is well be law settled [T]he an intention. by party indicating the acts of a such shown Therefore, present in the since uncontroverted evidence to the that had ceased to case was effect defendant and as a railroad in 1958 and had removed rails operate not an right and time is element way, ties from since has if it is shown use of the easement clearly indicative of an and there has been some act ceased use, intention right proper further was abandon conclude, did, as it that there had trial court to been for the abandonment. R.R., 40, 166
Maryland
Pennsylvania
&
224 Md. at
A.2d at
(citations omitted)
added).
(emphasis
250
Brooke,
Co.
Washington Railway
In East
Md.
(1966),
railway
posses-
a
had obtained
company
The removal the ties defendant, Rector, president general manager has no intentions of ever company operating strip, that the railroad over the contested indicates use has been abandoned. property purposes convey- railway’s preceded had The deed to the been 2. railway’s party. trial court ruled that ance to another The thus invalid, operated had but then found that because it the rail deed easement, necessary prescriptive period to obtain a it had a line for the Washington Ry., right-of-way. 244 Md. at at valid East A.2d issue, therefore, right- was whether it had abandoned the 600-01. of-way by prescription. it had obtained Pa., Ma. supra, Md., & it was stated at page [166 A.2d 250]: general
“The rule right is that the and title to a mere acquired easement land aby q%asi-public corporation, either by purchase, condemnation or prescription, for a public purpose is dependent upon the continued use of the property for that purpose, and when such public use is ceases, abandoned the right hold the land and the property reverts to its original owner or his successors title.” Grove,
See also
F.
Hagerstown
Rwy.
&
Co. v.
141 Md.
Co.,
Id. at
added);
265 Md.
II),
DCT has abandoned the easements. Relying on Canton Co.
Co.,
v.
202[,
Baltimore & Ohio R.
(1904),
99 Md.
It is generally conceded that the right aof way is to a large intent; extent a matter rarely, however, See, is intent proved directly. e.g., Maryland & Pa. R. Co., Co. v. Deposit & Trust 224 Md. Mercantile-Safe 34, 40[, (1960); 166 A.2d 44 247] § Am.Jur. Railroads 108 (1942). course, Of statements of company officials indicat
192 right longer to abandon or no to use
ing an intention
finding
considerable
way
weight
have been afforded
Inc.,
R.,
v.
32 Cal.2d
People Ocean Shore
abandonment.
N.E. R.
(1948);
v. New York &
Westcott
406,
196
570
P.2d
Co.,
(1890).
465,
Ordinarily,
interest),
denied,
(1993).
appeal
533 Pa.
194 “abandonment” recognize does at least that majority has a different the railroad commerce statutes under federal majority law. See meaning general property than under state law, to applies at Under the term op. Part IV.B.1. federal service, refers while under state law it to abandonment See, e.g., interest. property abandonment of relevant (8th Kmezich, 1047, 1050 N. R.R. v. 48 F.3d Burlington Cir.1995) (“Actual extinguishes cessation of service interests not statute. abandonment is under I.C.C. [state] event.”); Corp., v. Corp. Penn U.S. R.R. Vest triggering Cent. Cir.1992) (7th 1158, are “two (noting 955 F.2d 1159 there abandonment”; of title of service and one senses one 227, at 612 A.2d Thompson, Pa.Super. 417 property); cf. (“A abandon granting permission 455 certificate [state] a rail is not of whether or not railway crossings dispositive certificate, right way, has as the without road abandoned abandonment.”). more, the majority does not constitute What however, the proper fails to is that abandonment of recognize, is ty ap interest can occur abandonment of service before v. by government. the federal See Preseault United proved (Fed.Cir.1996) States, (affirming 100 trial F.3d 1546-49 court’s decision that a railroad abandoned its easement ten abandonment); ICC of service years seeking approval before R.R., that, 48 under Burlington (holding N. F.3d at 1050 Iowa law, when it right-of-way state railroad abandoned its interest 1985,” not when the “prior approved ended service ICC 1985); City of service Kansas Area Transp. Assocs., (Mo.Ct.App. Auth. Main 742 S.W.2d 1986) of a abandoned (noting holders selling prior approval days their interest six ICC denied, abandonment), rail service cert. 484 U.S. (1988). Thus, majori despite S.Ct. 98 L.Ed.2d contention, case abandon ty’s the railroad in this could and did though interest even the ICC had property not of service. It follows that formally approved abandonment scope original right-of-way irrelevant because the to abandon its evidence reflects railroad intended entirely, long purported convey- interest before its ance to the County. *69 that,
The also fails to see the federal majority despite abandonment, of approval only service the abandonment of property the interest that determines whether the purport- in reversionary property ed interests this case vested and were subsequently “taken” under the federal rails-to-trails law. in Day recognized Justice Sandra O’Connor as much her ICC, 1, 21, concurrence Preseault v. 494 U.S. 110 S.Ct. (1990) (O’Connor, J., 1 concurring), L.Ed.2d when she stated: what “Determining right- interest holders of the [the law, of-way] enjoyed would have ab- under Vermont in the actions, sence the ICC’s recent will establish whether [the of of right-of-way] possess holders the predicate property the any takings interest that must underlie claim.” (Emphasis added.) O’Connor, joined by Justice Justices Scalia and Ken- nedy, explained further ... actions do not displace [ICC]’s state law as the
traditional property source the real interests. The Com- may delay mission’s actions property enjoyment owners’ interests, reversionary their but that delay burdens and property defeats the interest suspends rather than or defers vesting property rights. those Any other conclusion would convert the to power ICC’s pre-empt conflicting state regulation of interstate power commerce into the to pre- empt rights guaranteed law, property state a result incompatible with the Fifth Amendment. 22-23, (O’Connor, J.,
Id. at 110 S.Ct. at L.Ed.2d (citations concurring) omitted); see also National Wildlife ICC, (D.C.Cir.1988) (“In Fed’n v. 850 F.2d case, individual the effect of trail use on reversionary owner’s property rights depend, will on part, precisely what rights those are under relevant state law.” (Emphasis add- ed.)). O’Connor, Scalia, The position Justices Kennedy is, view, in my Preseault appropriate position. The majority’s position this case exactly does what Justice occur; O’Connor said would it converts the power “ICC’s preempt conflicting regulation state of interstate commerce by state guaranteed rights preempt power
into the Fifth Amend- law, with the incompatible a result property ment.” law, the property the role of state recognizing
Instead of abandon- new, in the law third element creates a majority of use is, to cessation That in addition Maryland. ment for interest, the easement a property to abandon and intent of a authorities of federal approval must receive holder also cessation, approval, prior require if statutes such service that traditional- interests reversionary property vesting so, refuses majority doing would have occurred. ly to the Fifth Amendment’s lip service pay even govern- the federal majority does for rights provisions. govern- has the federal Court said Supreme what the ment *70 court was well that the federal I reiterate ment cannot do. the necessitating approval; regulations of the federal aware crux of effect are the “takings” their regulations and federal that It did not need deciding. court is the federal the issue what, know wanted to merely It from this Court. information law of was the regulations, of the federal in the absence reversion- purported the Maryland governing in ary interest. that the uses the argue length to some majority goes
The scope are within the property for the County intends disagree. I company. of the railroad original right-of-way to whether is not relevant But, scope that importantly, more If it aban- right-of-way. its company abandoned the railroad of it and it abandoned it abandoned all right-of-way, its doned County. As to the quit the claim deed transferring prior it Court, right-of- the whether certified to this question to the as to abandoned, County the intentions way has been withholding If the absolutely no relevance. have future uses statutes is to the federal pursuant approval of abandonment to, why it as appears majority proffers, reason the abandoned, still approval not right-of-way has been being withheld. County’s nothing intentions to do with this case. have quit
Its claim deed was extracted from the railroad after the what, point place prior that abandonment had taken under case, this used to be the law. If the was aban- interest, County bought quit doned before the claim not, If bought question a lawsuit. then the certified is an- questions County bought swered and additional as to what the nothing have to with the and should be question do certified case, if left to another necessary.
This is
the second time
this term that
the Court has
constitute,
view,
in my
depar-
rendered decisions
drastic
tures from
accepted legal
the theretofore
doctrines and theo-
relating, directly
indirectly,
ries
to the law of real property.
case,
element,
In
present
the Court adds a new
final
regulatory approval, to the centuries-old
Maryland law
so,
by merely stating
abandonment of easements
that it is
although
simplicity
majority’s position
is subtly
eighty-plus pages
contained
of the Court’s opinion.
departure
the Court’s
from long-standing
real
principles,
majority Matthews Amberwood Associates
(1998),
Ltd.
Partnership,
Md.
The law and its related fields such as landlord- law, among tenant have been most stable areas of the law. view, has, In my that stability years, over the been a positive influence on the law. body That of law now bemay perceived property practitioners real as a field of law under attack as a result of the Court’s decisions this term. view,
In my majority’s is I position result-oriented. quarrel have no with the railway rights-of- idea that unused and environmental for recreation resources way potential are are, in law of abandonment The elements of the protection. and, I not while do advocate law part, judge-made substantial power has the presumably this such an Court approach, respect to the an additional element impose prospectively new, appli- imposing prospectively of now Instead doctrine. element, however, holds that this new majority cable always part has been element, agencies, approval federal not so. simply That is law of abandonment. Maryland of the bar will leave members majority’s opinion Finally, the clients on abandonment advising have been may at risk who of use and evidence cessation issues under the traditional acknowledge bar to owe it to the standards. We intent from acknowledging departure if it even means change, cases, change when holdings prior or from the precedent doing. what the Court is A.2d 1103
In re EMILEIGH F. 8, Sept. Term, No. 1999. Appeals Maryland. Court
July 1999.