DEPARTMENT OF NATURAL RESOURCES v CARMODY-LAHTI REAL ESTATE, INC
Docket No. 124413
Supreme Court of Michigan
Argued October 5, 2004. Decided May 27, 2005.
472 Mich 359
In an opinion by Justice YOUNG, joined by Chief Justice TAYLOR, and Justices CAVANAGH, WEAVER, CORRIGAN, and MARKMAN, the Supreme Court held:
The Court of Appeals correctly held that the 1873 deed conveyed an easement rather than a fee simple estate. The Court of Appeals erred in holding that the easement was neither limited to a specific purpose nor abandoned by the plaintiff‘s predecessor in interest. The deed conveyed an easement for railroad purposes
- The objective in interpreting a deed is to give effect to the intent of the parties as manifested in the language of the deed.
- Where a grant is not of the land but is merely of its use as a right-of-way, the grant conveys an easement only.
- The granting clause of the deed in this case conveyed only a right-of-way, an easement, not a fee simple.
- The language of the deed clearly shows the intent of the parties that an easement be conveyed for a railroad. The easement conveyed by the 1873 deed is limited to railroad purposes. An easement limited to a particular purpose terminates when such purpose ceases to exist, is abandoned, or is rendered impossible of accomplishment.
- In both seeking federal permission to abandon its railroad and removing the rails themselves, the plaintiff‘s predecessor in interest manifested an intent to abandon the underlying easement (which was limited to railroad purposes) and took action consistent with that intent. The predecessor in interest did not have a valid property interest in the right-of-way when it thereafter attempted to convey its interest to the plaintiff.
Reversed and remanded to the circuit court.
Justice KELLY, dissenting, although agreeing with the conclusion of the majority that the plaintiff‘s property interest is an easement rather than a fee simple, stated that the parties that created the interest did not intend to limit its use to a rail line but, rather, created a right-of-way for a transportation corridor that can be used as a recreational trail.
There is no evidence that the easement was abandoned pursuant to the federal regulatory process for abandonment. It appears that the rail line remains under the jurisdiction of the Surface Transportation Board. If so, the defendant may not circumvent federal jurisdiction by obtaining a state court judgment of abandonment. Even if abandonment of the line were consummated with the Surface Transportation Board, the Soo Line never abandoned the underlying easement before conveying it to the plaintiff for a trail.
- EASEMENTS — RAILROADS — DEEDS.
A written instrument conveys only an easement where the grant is not of the land but is merely of its use as a right-of-way; where the land itself is conveyed, although for railroad purposes only, without specific designation of a right-of-way, the conveyance is in fee and not an easement. - EASEMENTS — RAILROADS — ABANDONMENTS.
An easement limited to a particular purpose terminates as soon as its purpose ceases to exist, it is abandoned, or it is rendered impossible of accomplishment; an easement holder abandons a railroad right-of-way when nonuse is accompanied by acts on the part of the owner of either the dominant or servient tenement that manifest an intention to abandon, and that destroy the object for which the easement was created or the means of its enjoyment; both an intent to relinquish the property and external acts putting that intention into effect must be shown to prove abandonment; nonuse, by itself, is insufficient to show abandonment; rather, nonuse must be accompanied by some act showing a clear intent to abandon.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Harold J. Martin and John F. Szczubelek, Assistant Attorneys General, for the plaintiff.
Bridges and Bridges (by Caroline Bridges) for the defendant.
YOUNG, J. In 1873, the Quincy Mining Company conveyed an interest in real property located in Houghton County, Michigan, to the Mineral Range Railroad Company. The parties labeled this interest a “right of way” in the written deed. The precise nature of this right-of-way—whether it was an easement or a fee
Plaintiff, the Michigan Department of Natural Resources, is the successor in interest of the Mineral Range Railroad Company. It asserts that it owns a fee simple interest and is therefore entitled to use the right-of-way as a snowmobile and recreation trail. Defendant, Carmody-Lahti Real Estate, Inc., is the successor in interest of the Quincy Mining Company and maintains that plaintiff‘s predecessor in interest enjoyed only an easement, which it abandoned before purporting to convey it to plaintiff.
We conclude that the Court of Appeals correctly determined that the 1873 deed conveyed an easement rather than a fee simple. However, we conclude that the panel erred in holding that the easement was neither limited to a specific purpose nor abandoned by plaintiff‘s predecessor in interest. Properly construed, the instrument conveyed an easement for railroad purposes only. Thus, when plaintiff‘s predecessor in interest unambiguously manifested its intent to relinquish any use of the right-of-way for railroad purposes and took action consistent with that intent, the easement was abandoned. Defendant, as successor in interest to the original grantor, now has an unencumbered fee simple interest in the land formerly subject to the easement.
We therefore reverse the judgment of the Court of Appeals and remand to the circuit court for entry of summary disposition in defendant‘s favor.
I. FACTS AND PROCEDURAL HISTORY
In 1873, Quincy Mining conveyed a “right of way” to Mineral Range through a written instrument that provided:
This indenture made this twentyfirst day of October in the Year of Our Lord [1873] between the Quincy Mining Company... and The Mineral Range Railroad Company... witnesseth that [Quincy Mining] for and in consideration of the sum of one dollar to it in hand paid by [Mineral Range], the receipt whereof is hereby... acknowledged has granted, bargained, sold, remised, aliened and confirmed and by these presents does grant, bargain, sell, remise, release, alien and confirm unto [Mineral Range] its successors and assigns forever a right of way for the railroad of [Mineral Range] as already surveyed and located by the engineer of [Mineral Range] and according to the survey thereof on file in the Office of the Registrar of Deeds for the County of Houghton, Michigan to consist of a strip of land one hundred feet in width being fifty feet on each side of said surveyed line across the following described tracts or parcels of land situated in said county of Houghton: [describes parcels/plats]. Also a right of way for said railroad surveyed and located as aforesaid and according to the survey thereof on file as aforesaid to consist of a strip of land one hundred feet in width being twenty feet in width on the north side of said surveyed line and eighty feet in width on the south side of said surveyed line across the tract or parcel of land known... as [describes parcels/plats].
Reserving to [Quincy Mining] and to its successors and assigns all ore and minerals on said strip of land and the right to mine the same from underneath the surface in such manner as not to interfere with the construction or operation of said railroad. Provided that [Quincy Mining] shall not in any case mine within fifteen feet of the surface of the [rock?] without the consent in writing of [Mineral Range] together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appearing to have and to hold the said strip of land with the appurtenances, for the purpose and uses above stated and subject to the reservations aforesaid unto [Mineral Range] its successors and assigns forever In Witness Whereof [Quincy Mining] has caused its corporate seal to be affixed
and these presents to be executed by its President and Secretary the day and year first above written. Signed, sealed and delivered....
Quincy Mining, the grantor, subsequently transferred its remaining interest in the Houghton County property to the Armstrong-Thielman Lumber Company, which, in turn, sold its interest to defendant Carmody-Lahti Real Estate, Inc. Mineral Range later conveyed its right-of-way to the Soo Line Railroad Company, which, until the early 1980s, continued to utilize the right-of-way for railroad purposes.
Although the railroad industry was central to the economic vitality of our nation in the mid-nineteenth century, its dominance began to wane in the late nineteenth and early twentieth centuries---the years following the initial transfer of the Houghton County right-of-way.1 But even as railroading itself declined in importance, the United States Congress determined that the rail corridors themselves might prove vital for future economic growth.2 Accordingly, Congress enacted the Transportation Act of 1920, which required, among other things, that railroad companies seek and obtain the permission of the Interstate Commerce Commission (ICC) before abandoning any extant rail line.3 Congress has since amended this procedure with the
In September 1982, Soo Line, which then owned the right-of-way originally granted to the Mineral Range Railroad in 1873, sought federal permission to abandon the railway. The ICC granted this request in a written order on September 29, 1982. The order placed specific conditions on Soo Line‘s abandonment of its railway:
Soo Line shall keep intact all of the right-of-way underling [sic] the track, including all the bridges and culverts, for a period of 120 days from the decided date of this certificate and decision to permit any state or local government agency or other interested party to negotiate the acquisition for public use of all or any portion of the right-of-way. In addition, Soo Line shall maintain the Houghton Depot for 120 days from the decided date of this certificate and decision. During this time, Soo Line shall take reasonable steps to prevent significant alteration or deterioration of the structure and afford to any public agency or private organization wishing to acquire the structure for public use the right of first refusal for its acquisition.
Six years after the ICC granted its request to abandon the railway, Soo Line conveyed the right-of-way to
The MDNR used the right-of-way as a snowmobile and recreation trail until 1997, when defendant installed a fence that blocked a portion of the right-of-way, substantially interfered with its recreational use, and spawned the present litigation.
In December 1997, plaintiff filed a complaint seeking an order to enjoin defendant from blocking the right-of-way with its fence. Plaintiff argued that it had an unlimited right to use the right-of-way for any purpose because the 1873 deed conveyed to Mineral Range Railroad, its predecessor in interest, a fee simple estate. Defendant argued in response that the deed had conveyed only an easement limited to railroad purposes. The MDNR exceeded the scope of the easement, defendant argued, and had thereby extinguished the right-of-way.
The trial court initially granted summary disposition in plaintiff‘s favor, concluding that the 1873 instrument conveyed a fee estate rather than an easement and that plaintiff was therefore permitted to use the right-of-way as a snowmobiling trail. The Court of Appeals reversed and remanded the matter to the trial court. Unpub-
When the matter returned to the trial court, defendant filed a motion for summary disposition, arguing that the right-of-way had been extinguished by abandonment or by a 1920 tax sale of the servient estate. The trial court rejected both claims, granted summary disposition to plaintiff, and ordered the injunctive relief—removal of defendant‘s fence—sought by plaintiff.
Defendant appealed this judgment to the Court of Appeals. There, defendant no longer asserted that Soo Line had abandoned the easement as a result of the 1920 tax sale. Rather, defendant maintained that plaintiff‘s predecessor abandoned the easement. The Court of Appeals, like the trial court, rejected this argument. The panel affirmed the judgment of the trial court, holding that Quincy Mining had not conveyed the easement for any “particular purpose” and, therefore, that Soo Line‘s termination of rail service through the right-of-way was not an abandonment of its easement. Unpublished opinion per curiam, issued June 3, 2003 (Docket No. 240908).
Assessing the specific language of the 1873 instrument, the Court of Appeals stated:
[W]e believe that the phrase in the 1873 deed, “a right of way for the railroad of [the Mineral Range Railroad],” cannot be construed as a defeasance clause or as granting the easement for a particular purpose only. In making this determination, Quinn [v Pere Marquette R Co, 256 Mich 143; 239 NW 376 (1931)] is instructive. The phrase is akin to a statement of purpose. The declaration that the easement was for the Mineral Range Railroad‘s construction of a railroad was “merely an expression of the intention of the
parties that the deed is for a lawful purpose.” Quinn, supra at 151. Thus, Soo Line‘s cessation of rail service and subsequent sale of the easement to be used for non-railroad purposes did not automatically extinguish the easement. [Slip op at 6-7.]
The panel also rejected the argument that Soo Line‘s abandonment application to the ICC in 1982 constituted an abandonment of the easement.6 In the end, the panel determined that Soo Line had a legitimate property interest to convey to plaintiff and that plaintiff was therefore entitled to summary disposition.
This Court granted defendant‘s application for leave to appeal on June 3, 2004, and solicited amicus briefs.7 We initially denied plaintiff‘s application for leave to cross-appeal from the first Court of Appeals opinion (holding that the 1873 deed conveyed an easement). However, after hearing oral arguments, we requested additional briefing on the question whether the 1873 deed conveyed a fee simple or an easement.8
II. STANDARD OF REVIEW
A trial court‘s decision to grant or deny summary disposition under
III. ANALYSIS
Plaintiff, the Michigan Department of Natural Resources, asserts the right to use of a former railroad right-of-way in Houghton County, Michigan, as a public snowmobile and outdoor recreation trail. Defendant, Carmody-Lahti Real Estate, Inc., purports to own the land underlying the trail in fee simple and claims the legal right to bar public recreational use of the right-of-way. At first blush, then, this case seems to concern land use policy. Moreover, it is a policy question on which both our federal and state legislatures have spoken: Congress has enacted the National Trails System Act,11 which codifies a federal policy of preserving our nation‘s rail corridors; the Michigan Legislature has enacted the State Transportation Preservation Act in 1976, which declares a legislative preference for using dormant railways as recreational trails.12
But the question of how the land ought to be used is not before us. Instead, this appeal presents us with the more modest task of discerning the meaning of a late-nineteenth century deed. In order to determine whether plaintiff is entitled to the injunctive relief granted on remand by the trial court, we must determine, first, whether the “right of way” conveyed by the 1873 deed in question is an easement or a fee simple. If the right-of-way is an easement, we must then establish whether plaintiff has exceeded the scope of the easement or has abandoned it.
Our initial task is to establish the precise contours of the property interest conferred upon Mineral Range Railroad, plaintiff‘s predecessor in interest. According to plaintiff, the 1873 deed conveyed the land itself to Mineral Range Railroad. Thus, plaintiff argues that, as Mineral Range‘s successor in interest, it owns the land described by the 1873 deed in fee simple. Defendant argues, however, that the deed transferred only an easement—the right to use the land—rather than the land itself.
An inquiry into the scope of the interest conferred by a deed such as that at issue here necessarily focuses on the deed‘s plain language,13 and is guided by the following principles:
(1) In construing a deed of conveyance[,] the first and fundamental inquiry must be the intent of the parties as expressed in the language thereof; (2) in arriving at the intent of parties as expressed in the instrument, consideration must be given to the whole [of the deed] and to each and every part of it; (3) no language in the instrument may be needlessly rejected as meaningless, but, if possible, all the language of a deed must be harmonized and construed so as to make all of it meaningful; (4) the only purpose of rules of construction of conveyances is to enable the court to reach the probable intent of the parties when it is not otherwise ascertainable.14
These four principles stand for a relatively simple proposition: our objective in interpreting a deed is to give effect to the parties’ intent as manifested in the language of the instrument.
The instrument‘s granting clauses are a natural
Where the grant is not of the land but is merely of the use or of the right of way, or, in some cases, of the land specifically for a right of way, it is held to convey an easement only.
Where the land itself is conveyed, although for railroad purposes only, without specific designation of a right of way, the conveyance is in fee and not of an easement.16
Here, the deed‘s granting clause conveys only a right-of-way. The plain language of the deed, as well as the rule of construction articulated in Quinn, therefore indicate that the deed conveyed an easement rather than a fee simple.
The initial flaw with this argument is this: although “right-of-way” is susceptible to two meanings, it does not follow that the phrase is equally susceptible to either meaning in this case. As already noted, application of the principles articulated in Quinn shows that this deed—which grants a “right of way” rather than, for example, a strip of land to be used as a right-of-way—conveys an easement only.
Moreover, it would make little sense to read the phrase “right of way” as referring to a strip of land. Recall that the deed conveys a right-of-way, and subsequently describes that right-of-way as “consist[ing] of a strip of land....” If “right of way” is to be interpreted as conveying the land itself rather than passage over a strip of land, then the instrument must be interpreted as transferring “[a strip of land]... to consist of a strip of land ....” This reading produces a redundancy and violates the principle that “all the language of a deed must be harmonized and construed so as to make all of it meaningful....”18 Accordingly, it is an interpretation we must reject.
Indeed, one need only examine the language describing the right-of-way as consisting of a “strip of land... across” the described parcels to confirm this fact. That the parties described the interest as going “across” the land reveals that they understood the right-of-way as being distinct from the land itself. As in Westman v Kiell, 183 Mich App 489; 455 NW2d 45 (1990), “[t]his language evidences an intent to convey a use or right of way upon and across the land, or, in other words, an easement.”22
The language of the habendum clause is also consistent with conveyance of an easement. This clause states that Mineral Range Railroad was “to have and to hold the said strip of land with the appurtenances, for the purpose and uses above stated and subject to the reservations aforesaid... forever....” The reference in the habendum clause to the “purpose and uses above stated and... the reservations aforesaid” dem-
Plaintiff contends that Quincy Mining‘s reservation of mineral rights indicates that the parties intended the deed to convey a fee simple rather than an easement. This argument is unpersuasive. Indeed, plaintiff‘s assertion that this reservation would have been unnecessary if Quincy Mining had conveyed only an easement overlooks the key difference between railroad easements and ordinary easements.
Typically, the owner of a servient estate may continue to use land encumbered by an easement.23 Railroad easements, however, are “essentially different from any other [easement].”24 As one commentator recently noted, “a railroad right-of-way easement granted by a landowner cannot be used by the landowner for any reason, even if the use does not interfere with the use by the easement holder.”25 For this reason, grantors of railroad rights-of-way have included language in deeds to delineate their continuing use rights in the portion of their fee estate burdened by a railroad easement. In Michigan Limestone & Chemical Co v Detroit & M R Co, for example, a railway enjoyed a
Although our sole concern is the intent of the parties as manifested in the plain language of the deed at issue here, it is worth noting that this analysis of the deed is consistent with our prior jurisprudence in this area. In general, this Court has construed deeds that purport to convey a right-of-way as transferring an easement. In fact, we have been unable to discover a single case in which this Court construed a deed conveying a “right of way” as transferring a fee estate, and plaintiff has directed us to none.
In Jones v Van Bochove,29 for example, we considered a deed with a granting clause that conveyed
“[a]ll that certain piece or parcel of land situate * * * and described as follows, to wit: The right of way for a railroad,
running from the marl bed of said cement company to their works, on the west side of the Kalamazoo river, and described as follows: ‘A strip of land 40 feet wide * * * and 952 feet in length.[‘]”30
We held that this granting clause conveyed an easement rather than a fee, noting that the deed “does not purport to convey a strip of land 40 feet wide, etc., but the right of way over a strip 40 feet wide.”31 Likewise, in Mahar, supra, we determined that the following language conveyed an easement rather than a fee estate:
“That the said parties of the first part, for and in consideration of the future construction, continued maintenance and operation of a first-class, standard-gauge steam railroad (over which shall be transported passengers and freight) within the time, limits and conditions hereinafter to be defined,... have granted, bargained, sold and conveyed and by these presents do grant, bargain, sell, convey and quitclaim unto the party of the second part, his successors or assigns, for a right of way for a railroad forever....”32
In contrast, deeds that this Court and the Court of Appeals have read as conveying a fee rather than an easement typically contain language that unambiguously conveys an estate in land and are therefore readily distinguishable from that at issue here. In Quinn, this Court held that a deed conveying a “‘parcel of land‘” “‘to be used for railroad purposes only‘” conveyed a fee estate.33 Not only did that deed omit any reference to a “right of way,” but it specifically conveyed “all the
Similarly, the Court of Appeals held that the deed in O‘Dess v Grand Trunk WR Co, 218 Mich App 694; 555 NW2d 261 (1996) concerned a fee. In that case, the deed at issue conveyed “all the estate, right, title, claim, and demand of the party of the first part, both legal and equitable.” Again, this language unequivocally manifested an intent to convey all the grantor‘s rights to the property.
This Court also held that the instrument at issue in Epworth Assembly v Ludington & Northern Railway, 236 Mich 565; 211 NW 99 (1926) conveyed a fee determinable. That conveyance purported to be a “quitclaim” deed:
“Provided, however, if, for any reasons, the property... above described shall, for one year or longer, cease to be used for railroad purposes and trains shall not be run over the railroad track built or to be built on the land described, then and in that case all of the land herein described, together with all and singular the hereditaments and appurtenances belonging or in anywise appertaining thereto shall revert to the Epworth Assembly, of Ludington, Michigan, its heirs and assigns, and this quitclaim deed become null and void and of no effect and all rights, title and interest in and to the lands above described remain the same as would have been the case if this quitclaim deed had never been executed.”35
A quitclaim deed is, by definition, “[a] deed that conveys a grantor‘s complete interest or claim in certain real property but that neither warrants nor professes
In short, we have consistently held that deeds conveying a right-of-way transferred an easement. And we have reached a contrary conclusion only in cases in which the deed unmistakably expressed the grantor‘s intent to convey a fee simple. As shown above, the deed at issue here falls squarely within the first group.
B. THE NATURE OF THE GRANTEE‘S RIGHT-OF-WAY
Although we have determined that the 1873 deed conveyed an easement rather than a fee estate, our inquiry into the scope of the interest conveyed to Mineral Range Railroad, plaintiff‘s predecessor in interest, is not yet complete. An easement is, by nature, a limited property interest. It is a right to “use the land burdened by the easement” rather than a right to “occupy and possess [the land] as does an estate owner.”39 Accordingly, an easement, whether appurtenant40 or in
gross,41 is generally confined to a specific purpose.42In order to determine whether the easement at issue here is limited to a specific purpose, we must discern the parties’ intent as shown by the plain language of the
Plaintiff maintains that the interest conveyed by the 1873 deed is not limited to railroad purposes, referring us to Quinn, supra, as support for its argument. In Quinn, we held that the landowners had conveyed a fee simple (rather than an easement) to the defendant railway company and, thus, that the defendant was entitled to drill for oil and gas in the subject property. Justice FEAD, writing for the Court, reasoned, “Where the land itself is conveyed, although for railroad purposes only, without specific designation of a right of way, the conveyance is in fee and not of an easement.”45 He
Plaintiff‘s reliance on Quinn is misplaced, for that case is distinguishable in an important sense from the case at bar. At issue in Quinn was a fee simple—an estate in land. Here, we are concerned with the scope of an easement—an interest in land.47 Fee simple estates revert to the grantor only if they contain language providing for reversion. Easements, on the other hand, are inherently limited estates in land.48 Thus, the principles applicable to the fee simple in Quinn do not translate to the easement under consideration in this case.
We conclude, therefore, that the plain language of the 1873 deed limited the easement conveyed to the original grantee to railroad purposes.
C. ABANDONMENT OF THE EASEMENT
Finally, we turn to the question whether plaintiff has a valid interest in this easement limited to railroad purposes. This easement, limited as it is to a particular purpose, will “terminate[] as soon as such purpose
Before determining whether plaintiff‘s predecessor in interest abandoned the easement, however, a brief overview of federal and state rails-to-trails legislation is necessary. The Sixth Circuit Court of Appeals succinctly summarized the applicable federal legislation in RLTD R Corp v Surface Transportation Bd:50
In the Transportation Act of 1920, Congress gave the Interstate Commerce Commission (“ICC“) jurisdiction over railroad track abandonments. Pursuant to the ICC Termination Act of 1995, the ICC ceased to exist. Authority over abandonment applications is now held by the [Surface Transportation Board (STB)].
Prior to the enactment of the Transportation Act, state and local authorities constrained railroad companies in their efforts to abandon unprofitable tracks. In giving the ICC/STB authority to grant or deny applications for abandonment, Congress sought to balance the railroad companies’ need to dispose of trackage that was no longer profitable with the public‘s need for a working interstate track system. If a railroad track falls within its jurisdiction, the ICC/STB has exclusive authority to determine whether abandonment will be permitted. The ICC/STB may approve an abandonment after a full administrative proceeding, or it may authorize abandonment by granting an exemption from the section 10903 process for “out-of-service” rail lines. The ICC/STB loses its jurisdiction over a rail line once the line is abandoned pursuant to an ICC/STB authorization. Actual
abandonment pursuant to authorization is known as “consummation.”51
The 1976 Michigan State Transportation Preservation Act (MSTPA) works in concert with the federal legislation. It declares that the “preservation of abandoned railroad rights of way for future rail use and their interim use as public trails” is a “public purpose.”52 The act therefore requires railroad companies wishing to abandon a railway to notify the state Department of Transportation and authorizes the Department of Transportation or the MDNR to acquire abandoned railways.53 If a right-of-way is acquired under the MSTPA, the acquiring department “may preserve the right-of-way for future use as a railroad line and, if preserving it for that use, shall not permit any action which would render it unsuitable for future rail use.”54
On September 29, 1982, the ICC authorized Soo Line‘s abandonment, for purposes of federal law, of the railway at issue in this case. The ICC “certificate and decision” reports that the Michigan Department of Transportation originally provided financial assistance to Soo Line on terms established by the ICC. After the financial assistance agreement expired on October 1, 1982, the ICC granted Soo Line permission to abandon the railway. The ICC‘s decision included the following terms:
Soo Line shall keep intact all of the right-of-way underling [sic] the track, including all the bridges and culverts, for a period of 120 days from the decided date of this certificate and decision to permit any state or local government agency or other interested party to negotiate the acquisition for public use of all or any portion of the right-of-way. In addition, Soo Line shall maintain the Houghton Depot for 120 days from the decided date of this certificate and decision. During this time, Soo Line shall take reasonable steps to prevent significant alteration or deterioration of the structure and afford to any public agency or private organization wishing to acquire the structure for public use the right of first refusal for its acquisition.
Soo Line followed the procedures necessary to abandon the railroad and, after the 120-day period ordered by the ICC, was free to abandon its right-of-way. That is not to say, however, that the easement, a creature of state law distinct from the rail that physically occupied the right-of-way, was necessarily abandoned at the end of the 120-day period prescribed by the ICC.
To prove abandonment, both an intent to relinquish the property and external acts putting that intention into effect must be shown. Nonuse, by itself, is insufficient to show abandonment. Rather, nonuse must be accompanied by some act showing a clear intent to abandon.56
In this case, it is clear that the railway is no longer used. The question, therefore, is whether Soo Line manifested an intent to abandon the underlying easement and not simply the railway that utilized the easement.
This intent cannot necessarily be inferred from the fact that a railroad company sought and obtained permission from the ICC/STB to abandon a railway and took action consistent with that federal authorization.57
The United States District Court for the Western District of Michigan reached a similar conclusion in Belka v Penn Central Corp.59 In Belka, the plaintiffs argued that the easement possessed by Penn Central was limited to railroad purposes60 and, therefore, that
This argument has superficial appeal, but it breaks down under scrutiny. The flaw in this argument is that while Defendants claim no intent to abandon their “property interest” they do not specify what that property interest is. Whether Defendants intended to abandon their property rights cannot be determined without consideration of the nature of that property interest. Defendants did not own a fee simple interest in the railroad corridor. They had an easement to use it “for railroad purposes.”
Accordingly, the issue for this Court is not whether Defendants intended to abandon some nebulous concept of “property rights“, but whether they intended to abandon their right to use the property “for railroad purposes“.61
We find the district court‘s analysis in Belka persuasive. The easement originally granted to Mineral Range Railroad, subsequently transferred to Soo Line Railroad, and finally conveyed to plaintiff was limited to railroad purposes. Therefore, Soo Line‘s decision to seek federal permission to cease all rail operations on the right-of-way, its subsequent cessation of those activities after the 120-day period prescribed by the ICC, and its removal of all railroad tracks on the strip of land constituted an abandonment of the underlying property interest.
We have determined, therefore, that the 1873 deed conveyed an easement limited to railroad uses and that Soo Line abandoned that easement for state property law purposes when it sought, obtained, and acted on the ICC‘s permission to abandon the railway in 1982. Consequently, Soo Line did not have a valid property interest in the Houghton County right-of-way to convey to plaintiff in 1988. Defendant has an unencumbered fee simple interest in the right-of-way and, as any property owner in Michigan may do with its property, may limit its use as it sees fit.
D. RESPONSE TO THE DISSENT
The dissenting opinion insists that we should not have entertained defendant‘s appeal at all because the ICC/STB has exclusive jurisdiction over what is left of Soo Line‘s railroad in this area.62 The dissent‘s argument, in essence, is this:
The record in this case contains nothing showing that the Soo Line ever advised the ICC that it had completed abandonment as the certificate explicitly required. It appears that no notice of consummation was filed with the ICC or the STB. Consequently, in 1983, a year after the certificate was issued, the abandonment authorization would have expired. The rail line cannot be abandoned without a new proceeding.63
As an initial matter, we note that the dissent does not argue that Soo Line actually failed to notify the ICC, but argues instead that the record contains no evidence that Soo Line provided notice. Of course, it would be just as accurate to say that the record contains no evidence that Soo Line failed to provide notice because, in fact, neither party has raised the notice issue on which the dissent now relies. It is hardly surprising, therefore, that there is a gap in the evidentiary record on this question.64 We would be unwise indeed to draw sweeping inferences from this sort of evidentiary “gap.”
Even if there were a factual basis for the dissent‘s argument, its legal rationale is deeply flawed. First and foremost, the dissenting opinion relies on a provision of the Code of Federal Regulations that was enacted almost fifteen years after Soo Line‘s application to abandon its railroad and is, therefore, inapplicable here.65
The dissent also relies on the fact that the ICC had a “practice”66 of requesting notice of abandonment in the
While the ICC has determined that its jurisdiction terminated once notice of abandonment was filed, neither the ICC nor the STB has ever concluded, as the dissent does, that state courts lack jurisdiction as a matter of law until notice of abandonment is filed or until the ICC/STB has declared that its jurisdiction has ended.68 Indeed, even now that notice is actually required by STB regulations, notice of abandonment is not necessary to terminate the STB‘s jurisdiction.69 It is simply conclusive evidence that the railroad has consummated its abandonment.70 Abandonment may occur
In short, the dissent has offered neither a factual nor legal basis to support its assertion that the STB has exclusive jurisdiction over the present dispute. We conclude, therefore, that the dissenting opinion‘s jurisdictional argument is in error.
IV. CONCLUSION
We conclude that the Court of Appeals erred in holding that plaintiff is entitled to summary disposition. The limited easement owned by plaintiff‘s predecessor in interest had been abandoned by the time the predecessor purported to sell that property interest to plaintiff. We therefore reverse the judgment of the Court of Appeals and remand the matter to the trial court for entry of summary disposition in defendant‘s favor.
TAYLOR, C.J., and CAVANAGH, WEAVER, CORRIGAN, and MARKMAN, JJ., concurred with YOUNG, J.
KELLY, J. (dissenting). I agree with the majority‘s conclusion that plaintiff‘s property interest is an easement rather than a fee simple. However, I conclude that this Court should not find that the easement was abandoned.
Defendant has not shown that plaintiff‘s predecessor, the Soo Line Railroad Company, completed the federal regulatory process for abandonment. Therefore, it appears that the rail line remains under the jurisdiction of the Surface Transportation Board1 for future reinstatement of service. If that is the case, defendant may not circumvent federal jurisdiction by obtaining a state court judgment of abandonment.
Even if abandonment of the line were consummated with the ICC, we should conclude that the Soo Line never abandoned the underlying easement before conveying it to plaintiff for a trail. The mere fact of the sale demonstrates that the Soo Line intended to retain dominion over the easement until disposing of it. If the company believed in 1982 that it was abandoning this property interest, it would not have sold a portion of it to plaintiff in 1988.
Moreover, the parties who originally created the easement did not intend to limit its use to a rail line. Rather, they created a right-of-way to last forever, one that can be used today as a recreational trail.
Therefore, the result reached by the trial court and the Court of Appeals should be affirmed.
In 1873, the Quincy Mining Company granted an easement for a right-of-way to the Mineral Range Railroad Company. Defendant now owns a portion of the mining company‘s former property through which this right-of-way runs.
The Mineral Range Railroad built and for many years operated a rail line on the right-of-way. It then transferred the rail line and right-of-way to the Soo Line Railroad. In the 1980s, the Soo Line discontinued running trains on the rail line. Sometime after 1986, it removed some of the tracks and, in 1988, sold the right-of-way to plaintiff Michigan Department of Natural Resources. Plaintiff maintained the former railway grade as a recreational trail. But, nine years later, defendant installed a fence across the trail, blocking its use as a trail.
PROCEEDINGS BELOW
Plaintiff filed suit seeking an injunction to force removal of the fence. The trial court initially held that Mineral Range had an unrestricted fee simple interest that it passed to plaintiff by deed. The Court of Appeals reversed that holding and remanded the case. Unpublished opinion per curiam, issued June 5, 2001 (Docket No. 222645). It held that the deed conveyed an easement, not a fee simple interest, and remanded the case to the circuit court for a determination whether the easement remained in existence.
On remand, the circuit court granted plaintiff‘s motion for summary disposition. It held that the easement was not limited to use as a rail line. Moreover, it found that the Soo Line had not abandoned the easement. Thus, plaintiff was entitled to maintain the right-of-
STANDARD OF REVIEW
The existence of an easement is a question of law. Mahar v Grand Rapids T R Co, 174 Mich 138, 142; 140 NW 535 (1913); Epworth Assembly v Ludington & Northern Railway, 236 Mich 565; 211 NW 99 (1926). In contrast, the permissible use of an easement is a question of fact. Hanselman v Grand Trunk W R Co, 163 Mich 496, 499; 128 NW 732 (1910); 65 Am Jur 2d, Railroads, § 60, pp 247-248.
Trial courts may draw inferences of fact.
A STATE COURT MAY NOT DECLARE A RAILROAD EASEMENT ABANDONED BEFORE ABANDONMENT OF THE RAIL LINE HAS BEEN CONSUMMATED WITH THE ICC
Under federal transportation law involving rail lines, abandonment has a specific meaning. Bingham Twp v RLTD R Corp, 463 Mich 634, 635-636; 624 NW2d 725 (2001), citing RLTD R Corp v Surface Transportation Bd, 166 F3d 808, 810-811 (CA 6, 1999). It refers to removal of a rail line from the national transportation system. Nat‘l Ass‘n of Reversionary Prop Owners v Surface Transportation Bd, 332 US App DC 325, 327;
Under the federal Transportation Act,3 a rail carrier may not remove a rail line from national service until it obtains a certificate of abandonment from the ICC.
Years ago, the ICC developed a mechanism to retain jurisdiction over a rail line if a carrier did not realize its stated intent to abandon the line. It imposed conditions on its issuance of a certificate of abandonment,4 maintaining jurisdiction over the rail line until the conditions were met. Preseault at 8. A line no longer in use, but not officially abandoned, could be reactivated later. In the meantime, it was termed “discontinued.” NARPO at 328.
In this case, the Soo Line sought, and in 1982 was issued, a certificate of abandonment. It expressly stated:
1. This certificate and decision is effective October 1, 1982 . . . .
2. If the authority granted by this certificate and decision is exercised, Soo Line shall advise this Commission in writing, immediately after abandonment of the line of railroad, of the date on which the abandonment actually took place.
3. If the authority granted in this certificate and decision is not exercised within one year from its effective date, it shall be of no further force and effect. [ICC Certificate and Decision, Soo Line Railroad Company, Docket No. AB-57 (Sub-No. 7) (Decided September 29, 1982).]
The majority erroneously states that the “Soo Line followed the procedures necessary to abandon” the rail line. Ante at 384. The record in this case contains nothing showing that the Soo Line ever advised the ICC that it had completed abandonment as the certificate explicitly required. It appears that no notice of consummation was filed with the ICC or the STB.5 Consequently, in 1983, a year after the certificate was issued, the abandonment authorization would have expired. The rail line cannot be abandoned without a new proceeding.
Moreover, defendant may not divest the ICC of its jurisdiction over the rail line through a collateral state court proceeding. Phillips Co v Southern Pacific R Corp, 902 F Supp 1310, 1317 (D Colo, 1995). ICC jurisdiction over a rail line precludes a state court from making a finding that a state property law interest has been extinguished by evidence of abandonment. Preseault at 8.
Therefore, it appears that this Court lacks jurisdiction to find that the Soo Line abandoned its easement.
EVEN IF THE SOO LINE ABANDONED THE RAIL LINE, IT DID NOT ABANDON THE EASEMENT
However, the majority is unpersuaded and finds that the Soo Line did abandon the easement. I believe that, even if the Soo Line consummated abandonment of the rail line with the ICC, it did not abandon the easement on which the line was built.
Abandonment, like the scope of an easement, is a question of fact. McMorran Milling Co v Pere Marquette R Co, 210 Mich 381, 391, 393-394; 178 NW 274 (1920). Whether it has occurred is determined by the actions of the parties. Van Slooten v Larsen, 410 Mich 21, 50; 299 NW2d 704 (1980), app dis sub nom Craig v Bickel, 455 US 901 (1982).
Congress has made clear that use of a rail line as a recreational trail after the issuance of a certificate of abandonment should not be equated with abandonment of the easement. The ICC‘s regulatory authority over rail corridors includes conserving them for future use for commerce and for current use as recreational trails.
provided for mandatory transfers of corridors proposed for abandonment to other carriers, and directed the ICC to impose conditions barring the disposition of railroad rights-of-way for 180 days in order to allow for possible transfers for public use, including for trails. [HR Subcomm on Com and Admin L of the Jud Comm, Litigation and Its Effect on the Rail-to-Trails Program, 107th Cong at 57 (June 20, 2002) (statement of Andrea Ferster, General Counsel, Rails-to-Trails Conservancy).]
See Preseault at 5-6.
The Rails-to-Trails Act9 gave the ICC oversight authority in the conversion of railroad rights-of-way to recreational trails when a rail carrier seeks permission from the ICC to cease service. Id. at 59-60. This authority extends to rights-of-way that are not in use for railroad transportation. Preseault at 6; Caldwell v United States, 391 F3d 1226, 1229-1230 (CA Fed Cir, 2004).
The United States Supreme Court has stated that, when a railroad company “abandons” a line, it does nothing more than divest the ICC of authority over the line. The Court said that Congress intended, when writing the act,
that interim use of a railroad right-of-way for trail use, when the route itself remains intact for future railroad purposes, shall not constitute an abandonment of such rights-of-way for railroad purposes. This finding alone should eliminate many of the problems with this program. The concept of attempting to establish trails only after the
formal abandonment of a railroad right-of-way is self-defeating; once a right-of-way is abandoned for railroad purposes there may be nothing left for trail use. This amendment would ensure that potential interim trail use will be considered prior to abandonment. [Preseault at 8, citing H R Rep No. 98-28, pp 8-9 (1983); S Rep No. 98-1, p 9 (1983).]
The Court opined that every rail line is “a potentially valuable national asset that merits preservation even if no future rail use for it is currently foreseeable.” Preseault at 19. Thus, rail-to-trail conversions do not constitute abandonment of a property right under state law, even if the easement was specifically created for railroad purposes only. Preseault at 8.10
The majority states that the Rails-to-Trails Act requires a railroad company to “bank” its right-of-way in order to preserve its property interest. This is untrue. Buffalo Twp v Jones, 571 Pa 637, 651; 813 A2d 659 (2002), cert den Jones v Buffalo Twp, 540 US 821 (2003). Authorization by the ICC to put a railway right-of-way into interim use as a trail is not required as a matter of law. Citizens Against Rails-to-Trails v Surface Transportation Bd, 347 US App DC 382, 391; 267 F3d 1144 (2001); Southern Pacific Transportation
THERE IS ABUNDANT EVIDENCE THAT THE SOO LINE DID NOT ABANDON THE EASEMENT
The trial court found that the Soo Line had no intent to give up its easement. Because there was ample evidence supporting this ruling, it was not clearly erroneous.
The Soo Line did not immediately remove its tracks. They remained in place on this parcel at least through 1986 when it was appraised. Some of the tracks remain today, as do other structures elsewhere on the right-of-way, such as bridges.
The facts of the Belka v Penn Central Corp11 decision cited by the majority, and Becker, contrast with the facts in this case. In Belka, the transportation corridor was no longer intact. The land had been broken into segments that could not be restored for future rail service. Belka at 18-19.
In contrast, the right of way in this case remained a viable transportation corridor in use by recreational vehicles until defendant erected its fence. Although its path may have been difficult for some to identify during the litigation, ante at 366, it is without question that plaintiff identified and maintained it as a corridor for recreational vehicles.
In Becker, the rail carrier refused to negotiate to sell the rail line. It preferred to walk away from its property interest. The Soo Line‘s conduct, on the other hand, demonstrates an intent not to abandon its property interest in the right-of-way. Three years after filing its
In other cases, perhaps in this one, a rail line would file a notice of abandonment with the ICC as a first step in obtaining financial assistance. The intent might be to secure a means of maintaining operation rather than abandoning it. Chevy Chase Land Co v United States, 355 Md 110, 172-173; 733 A2d 1055 (1999).
Intent to abandon is ascertained by examining the totality of the circumstances.12 The Soo Line stopped using the right-of-way for a period in this case. However, that may not have signified an intent to abandon it. McMorran at 394. Ceasing operation, removing track, and canceling tariffs are consistent with an intent to retain the right to resume service. Becker at 62, quoting Birt v Surface Transportation Bd, 319 US App DC 357, 362-363; 90 F3d 580 (1996). See also Strong v Detroit & M R Co, 167 Mich App 562, 569; 423 NW2d 266 (1988). More is needed in order to conclusively prove an intent to abandon a property right. That evidence is lacking here. Because there was ample evidence supporting the trial court‘s factual findings, they should be upheld.
THE EASEMENT WAS NOT PERPETUALLY RESTRICTED TO USE AS A RAIL LINE
Even if the Soo Line retained its property interest in the easement until conveying it to plaintiff, the ease-
Where an easement is granted and the scope of its use is in question, we attempt to discern the parties’ intent. Intent is determined by applying principles similar to those used when contracts are construed. 1 Restatement Property, 3d, § 4.1, comment d, p 499. First, the terms of the conveyance itself are examined. Epworth at 575; Quinn v Pere Marquette R Co, 256 Mich 143, 150; 239 NW 376 (1931).
In this case, the conveyance was by deed. Under its terms, Quincy gave Mineral Range and “its successors and assigns forever a right of way for the railroad of” Mineral Range. It later stated that Mineral Range would have and hold the strip of land “for the purpose and uses above stated . . . .”
This Court has held that such a statement of purpose in a conveyance for a railroad does not mean that the land can be used only for a railroad. In Quinn, a warranty deed conveyed a parcel “‘to be used for railroad purposes only.‘” Id. at 146. Like the deed in this case, the deed in Quinn did not contain a reverter clause. After considering the circumstances surrounding the conveyance, the Court concluded that the statement in the deed was merely a declaration of the purpose of the grant. It did not prevent the right-of-way from being used later for other purposes. Id. at 151. Accord 65 Am Jur 2d, Railroads, § 61, p 248, and § 68, p 252.
By contrast, a right-of-way can be limited to use only for a railroad where it is explicitly stated in the conveyance. In Epworth, supra at 568, the deed to the railroad recited that the parcel was “to be used for railroad purposes only.” It continued, “‘If, for any reason, the
These principles apply also to deeds creating easements. In Hickox v Chicago & C S R Co, 78 Mich 615; 44 NW 143 (1889),13 the deed for a right-of-way stated that if the property ceased “‘to be used and operated as a railroad . . . then . . . the right-of-way . . . shall terminate.‘” Id. at 619. The Court held that the land had to be used to operate a railway, even though it was not limited to running trains, or the easement ceased. Id. at 620-621.14
It is not uncommon for a deed creating an easement to describe the scope of the easement in general terms. When a controversy over scope of usage arises, it falls to courts to determine whether the parties intended to allow the land to be put to uses not specified in the deed. 1 Restatement Property, 3d, § 4.1, comment b, pp 498-499.
As a general statement, the easement holder is said to enjoy all rights reasonably necessary and proper to fully use the easement. Unverzagt v Miller, 306 Mich 260, 265; 10 NW2d 849 (1943), citing 9 RCL, p 784; 1 Restatement Property, 3d, § 4.10, p 592; 5 Restatement Property, § 450, comment e, pp 2904-2905.
We infer also that the parties intended that the permitted use of an easement will change over time absent language to the contrary in the deed. This inference effectuates the intent, which we presume the parties entertained, that the right-of-way remain viable. 1 Restatement Property, 3d, § 4.10, p 592.
In this case, the deed created a right-of-way for a transportation corridor, a kind of highway available for public use. See Elliott on Roads and Streets, § 1, Marthens v B & O R Co, 170 W Va 33, 38; 289 SE2d 706 (1982), citing Eckington & Soldiers’ Home R Co v McDevitt, 191 US 103; 24 S Ct 36; 48 L Ed 112 (1903), and United States v Trans-Missouri Freight Ass‘n, 166 US 290; 17 S Ct 540; 41 L Ed 1007 (1897).15 The deed assigned the right-of-way “forever,” thus creating a
The parties had to know that easements are transferable and binding on subsequent owners. The fact that they used broad language suggests that they intended to create a corridor that over time might accommodate modes of transportation other than railroads.16 Thus, I would hold that this deed created a right-of-way that the parties intended not to limit to a railroad.17 It was not extinguished as a matter of law when it ceased to be used for railroad purposes.
PLAINTIFF‘S RIGHT-OF-WAY MAY BE USED AS A RECREATIONAL TRAIL
This Court has held that, where broad language in an easement permits uses not stated, those uses must not impose an additional or increased burden on the servient estate. Crew‘s Die Casting Corp v Davidow, 369 Mich 541, 546; 120 NW2d 238 (1963), quoting Delaney v Pond, 350 Mich 685, 687; 86 NW2d 816 (1957). Use for recreational travel may include foot travel, bicycles, horses, and recreational vehicles. All have been adjudged to be within the scope of a right-of-way. See WWP, supra.
Defendant‘s argument that the easement is more heavily used as a recreational trail than it was as a railroad misunderstands the scope of the easement. Defendant assumes that trains may run intermittently merely because that had been the custom. However, the easement here put no restrictions on the scheduling of Mineral Range‘s trains. They could have run incessantly and still been within the scope of the easement.
Trains are loud and cause damaging vibration. Snowmobiles and recreational vehicles are less noisy and cause less vibration. Also, they are used on a seasonal basis. Other remedies are available to address problems associated with excessive speed or traffic volume on a recreational trail, such as speed limits and permit requirements.
Trains have at least as great a capacity as have recreational vehicles to serve as a means of transportation for lawbreakers. Trains can be boarded or departed from at locations where they must pass slowly. This case involves such a location, in a town near a bridge. A public recreational trail represents no greater safety hazard to adjacent landowners than trains that vagrants ride. Trains do not impose a substantially different burden on adjacent landowners than highways or harbors. Hence, recreational use of the right-of-way here does not substantially increase the burden on plaintiff‘s estate over its use by a railroad.
From the record in this case, it appears that the section of the Soo Line railway corridor involved remains under the jurisdiction of the Surface Transportation Board. As a consequence, this Court is without jurisdiction to determine whether the easement on which it was built has been abandoned.
Moreover, even if the Soo Line consummated abandonment of the line through the STB‘s predecessor, it does not follow that it abandoned the underlying easement. The trial court made the finding based on ample evidence that it did not. The Court of Appeals agreed. I have reached the same conclusion.
In addition, I agree with the lower courts that the easement was not restricted to use for a railroad. Quincy Mining Company and the Mineral Range Railroad intended to create a perpetual easement for a right-of-way. Initially, it was for a rail line, but it was not explicitly limited to that use. Also, the deed did not provide that the property right would revert to Quincy or its successor if the railroad abandoned its line. Consequently, I would find that the parties intended to create a transportation corridor that would remain viable “forever” as the easement holder‘s transportation needs developed.
Today‘s use of the right-of-way for recreational travel is consistent with its former use as a railway. The burden on the servient estate was not increased when the change occurred. In fact, recreational travel imposes a lesser burden.
Thus, I would affirm the result of the trial court and the Court of Appeals and hold that plaintiff may use the right-of-way for its trail.
Notes
We think the court below was correct in holding that the deed conveyed an easement only, and not a fee. It does not purport to convey a strip of land 40 feet wide, etc., but the right of way over a strip 40 feet wide. Cases, undoubtedly, can be found in which the operative words of the grant relate to the land itself; but such construction cannot be given to this deed.This is similar to the concept that a right-of-way for a road to be used by horse-drawn buggies might later be used by automobiles. “[A]n easement holder may utilize such technological improvements as are reasonably necessary to carry out the purpose of the grant . . . .” 25 Am Jur 2d, Easements and Licenses, § 76, p 575 (2004).
allows a railroad wishing to cease operations along a stretch of track to negotiate with the state, municipality, or private group concerning the transfer of financial and managerial responsibility for the railroad corridor and the maintenance of the corridor for possible future rail use—called “railbanking“. Railbanking is an alternative to abandonment. With railbanking, the railroad maintains ownership of the rail corridor, a third party makes interim use of the rail corridor, and the ICC/STB‘s jurisdiction over the rail corridor continues. When a track is abandoned, however, ICC/STB jurisdiction ceases, and, in the usual case, reversionary interests in the rail corridor become effective. [RLTD R Corp, supra at 810-811.]
The majority and dissent also differ on a related point. The dissenting opinion presumes that we may rely on the views of Congress and federal agencies on questions of state real property law such as abandonment. See post at 397 (“Congress has made clear that use of a rail line as a recreational trail after the issuance of a certificate of abandonment should not be equated with abandonment of the easement.“). Assuming the dissent‘s assertions about the views of Congress are correct, we believe that Justice KELLY‘s reliance on those views is misplaced. Unless federal law expressly or implicitly preempts state law in this area, we see no reason to defer to Congress in determining when an easement is abandoned for purposes of Michigan‘s common law of real property. See Crosby v Nat‘l Foreign Trade Council, 530 US 363, 372-373; 120 S Ct 2288; 147 L Ed 2d 352 (2000) (describing federal preemption principles).
This indenture, Made this _____ day of A.D. 18__, BETWEEN _____ of _____ in the County of _____, and State of Michigan, of the first part, and the Kalamazoo, Allegan and Grand Rapids Rail Road Company, of the second part, Witnesseth, That the said parties of the first part, in consideration of the sum of _____ to them in hand paid, the receipt whereof is hereby acknowledged, do grant, bargain, sell and confirm unto the said party of the second part, and to their assigns FOREVER, a RIGHT OF WAY in and over a certain strip of LAND, situate, lying and being in [legal description] reference being made, for more certain description of said strip, to the map of the route of said Company, on file in the offices of the Register of Deeds for the Counties of Kalamazoo and Allegan and Kent respectively, for the said party of the second part, and their assigns and their servants and agents to build, construct and maintain a Rail Road in and over the said strip of land, and at all times freely to pass and re-pass by themselves, their servants, agents and employees, with their engines, carts, horses, cattle, carts, wagons and other vehicles, and to transport freight and passengers, and to do all other things properly connected with or incident to the location, building, maintaining, and running the said Road, and to use the earth and other materials within said strip of land, for that purpose, TO HAVE AND TO HOLD the said easements and privileges to the said party of the second part, and to their assigns, FOREVER. And the said parties of the first part for themselves and their heirs, doth covenant and agree that they will WARRANT AND DEFEND the above granted RIGHT OF WAY in the peaceable and quiet possession of the said party of the second part, and their assigns, FOREVER. [Id. at *2 n 2.]
[U]nder our proposal, notices that are filed would be deemed conclusive on the point of consummation if there are no legal or regulatory barriers to consummation . . . . If no notice of consummation of abandonment has been filed, we would continue to look at the other facts and circumstances to determine if consummation of the abandonment had occurred.