INTRODUCTION
This is the latest of multiple appeals in a case in which courts have been called upon to determine the amount of rent a pipeline company must pay to a railroad for the use of land underneath its rights-of-way, most of which were initially granted to it by the federal government beginning in the mid-19th century in order to build and operate transcontinental railroads. The rent is to be determined by the terms of a settlement agreement entered into in 1994 arising out of previous litigation between the parties — former sister companies that separated and have been involved in lawsuits ever since.
Appellants are Santa Fe Pacific Pipelines, Inc., previously known as Southern Pacific Pipelines, Inc.; SFPP, L.P., Kinder Morgan Operating L.P. “D”; and Kinder Morgan G.P., Inc. (collectively, the Pipeline). Respondent is Union Pacific Railroad Company, successor to Southern Pacific Transportation Company (the Railroad). The two parties previously existed under the same corporate umbrella. In that context, they entered into master agreements in the mid-1950’s under which the Railroad granted easements to the Pipeline in the subsurface underlying the Railroad’s rights-of-way in order to convey its oil, gas and other petroleum products across the western United States. In 1983, the parties revised and revamped their master agreement, maintaining the essential element that the Pipeline continue to use the subsurface to move its commodities. But in the late 1980’s — 30 years after the initial easements were granted — their parent company merged with another company. The Railroad was divested, and the companies were no longer sisters. Soon thereafter, disputes arose between the Railroad and the Pipeline companies. Litigation began in 1991 when the Railroad sued the Pipeline, complaining that the master agreement under which they were operating was not negotiated at arm’s length, and that the Railroad was not receiving a fair deal. Three years later, that case resolved. In 1994, the parties executed a settlement agreement that set the parameters for how rent would be determined on the Pipeline’s easements.
Since then, there have been three court trials and five appellate decisions relating to the enforcement of the settlement agreement. The first case was brought in 1994. We are now called upon to review the most recent court trial, which generated over 42,000 pages of testimony and concomitant
On appeal, the Pipeline makes the following claims: (1) the trial court erred in finding that the prior judgment did not collaterally estop the relitigation of several issues and deciding them anew in the instant case; (2) the trial court made errors in applying the formula to calculate the rent due; (3) it was error to include rent for easements on land that had been sold by the Railroad before the 1994 settlement agreement was executed; and (4) the trial court lacked authority to issue a money judgment, as opposed to a mere declaration of the amount of rent due, and therefore lacked the authority to award prejudgment interest. As to the trial court’s ruling declining to apply collateral estoppel to this action, we affirm. As to the remaining issues, we reverse and remand for the reasons discussed below.
A recurrent, yet heretofore unresolved, theme permeating this and prior cases between the parties is the nature of the Railroad’s interest in the property through which the pipelines run. This issue — whether the Railroad had sufficient interest in the land beneath its rights-of-way to grant the subsurface easements and collect rent for their use — was raised by the Pipeline in the 1994 case and raised again in the instant case. It was extensively litigated. In the 1994 case, the court assumed (but did not find) that the Railroad held the land in fee. In this case, the court concluded the Railroad had sufficient interest in the land to collect rent from the Pipeline, without determining the actual nature of that interest.
There is a large body of law — reflected by federal statutes, judicial opinions, and regulatory decisions — that bears on the nature of a railroad’s property rights, whether it can grant easements to third parties and collect rent from them, and the interests of adjacent landowners and the federal government. The trial court appears to have reached its conclusions and entered its judgment without fully analyzing this body of law, or applying it to these facts. The absence of a determination on this issue undermines the judgment.
We address the law relating to railroad rights-of-way in an effort to resolve the legal issues that apply to property interests in this land and, by extension,
HISTORICAL CONTEXT
American Railroads in the 19th Century
As America spread west in the first half of the 19th century, its frontier expanded from the Mississippi River to the coast of California and the Oregon Territory. Access to the great expanses of the prairies and mountains, as well as to the states and territories on the Pacific Coast, was necessary. The country was young and did not have a lot of money. But it had lots of land. Beginning in approximately 1850, Congress embarked upon a policy of subsidizing railroad construction by paying for it with “lavish grants from the public domain.”
(Great Northern Ry. Co.
v.
U. S.
(1942)
While the early grants were “lavish” — after all, vast areas of land owned by the federal government were given to private companies — they did have strings attached. For example, if a railroad ceased to use the land for railroad purposes, it would revert to the government (or to its grantees, if any).
(Northern Pacific Ry. v. Townsend
(1903)
In the same year that he signed the Pacific Railroad Act of 1862, President Lincoln signed the Homestead Act (Pub.L. No. 37-64 (May 20, 1862) 12 Stat. 392), which granted large swaths of land to settlers, who owned and developed the land near, and with the help of, the railroads. The laws to encourage construction of the railroads and foster the infusion of settlers brought results, and the entire project was a success.
(United States
v.
Union Pacific R. Co.
(1957)
By then, the Civil War had ended. Public sentiment soon turned, and the mood of uncritical enthusiasm toward railroad enterprises began to veer.
(Union Pacific, supra,
353 U.S. at pp. 126-127.) The largesse of land granted to the railroads was seen as a massive government giveaway. By the 1870’s, legislators across the political spectrum had embraced a policy of reserving public lands for settlers rather than granting them to railroads.
(Marvin M. Brandt Revocable Trust v. United States
(2014)
Eventually, the need for rail service diminished with the advent of the internal combustion engine as cars and trucks appeared on the landscape. Railroads sold, abandoned, or discontinued much of their tracks as their need for the rights-of-way granted by Congress diminished. In response, Congress enacted laws governing the disposition of abandoned or forfeited railroad rights-of-way, which provided that any transfer would “be subject to and contain reservations in favor of the United States of all oil, gas, and other materials in the land.” (43 U.S.C. § 912.) Pipelines appeared on the scene, carrying oil, gas, coal slurry and other fuels. Congress passed laws governing subsurface oil and gas pipelines through federal lands, providing for annual rental payments to the government. (See, e.g., 30 U.S.C. § 185 et seq.) Consistent with its practice of retaining the value of the subsurface to the United States, Congress passed a law providing that the government could grant leases for oil and gas deposits “in or under lands embraced in railroad or other rights of way acquired under any law of the United States, whether the same be a base fee or mere easement . . . .” (30 U.S.C. § 301.)
By this time, a hodgepodge patchwork of easements and ownership interests in railroad rights-of-way had spread across the West. As one might imagine, disputes over the rights of railroads, landowners, and the government arose, resulting in numerous federal and state lawsuits and appellate decisions, as well as several landmark opinions from the United States Supreme Court. Many of the cases dealt with the rights to the subsurface beneath the railroads’ rights-of-way, and many dealt with ownership rights once the rights-of-way were no longer used for railroad purposes. Both issues arise in the instant case.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Railroad Grants Pipeline Easements Beginning in the 1950’s
The Pipeline owns approximately 1,871 miles of pipeline running through California, Arizona, Nevada, New Mexico, Texas, and Oregon within the Railroad’s right-of-way. Another 1,400 miles or so of the pipeline veer off intermittently into public and private lands. In all, there are 1,076 pipeline
In the mid-1950’s, the Railroad and the Pipeline were sister subsidiaries of Southern Pacific Corporation. The Railroad possessed a valuable transportation corridor along the rights-of-way granted to it initially by Acts of Congress. The Pipeline wished to obtain a longitudinal easement through which to run its pipelines, which carried petroleum products. The two sister companies entered into master agreements in 1955 and 1956 wherein the Railroad rented portions of the subsurface under its rights-of-way to the Pipeline.
By that time, there had been considerable litigation, mostly in federal courts, regarding who owned the subsurface beneath a railroad’s right-of-way. As to the 1875 Act, it had been decided by the United States Supreme Court that railroads merely had an easement over the surface of the land, and that title to the subsurface remained in the federal government (or its grantee, if any).
(Great Northern, supra,
In that same year, an in-house attorney for the Railroad sent a letter to the Pipeline explaining that the Railroad appeared to have the right to grant pipeline easements in the subsurface under rights-of-way it obtained via the pre-1871 Acts. But since the 1875 Act provided only an easement, they would have to obtain consent from the adjoining landowner in order to use the subsurface for a pipeline.
However, in 1957 the United States Supreme Court issued its seminal opinion in
Union Pacific, supra,
Despite this narrowing of a railroad’s rights to the subsurface underlying its rights-of-way, the sister companies went forward with their pipeline plan. Leases of pipeline easements proceeded in earnest in late 1957. Over the following years and decades, easements were granted and pipelines were built underneath the Railroad’s rights-of-way — those acquired under both the pre-1871 Acts and the 1875 Act — but not without concern on the Railroad’s part.
In one 1973 letter, an in-house attorney for the Railroad acknowledged that recent federal court decisions bearing on “the extent of the rights granted to Railroad under the March 3, 1871 Act now appear to be more restrictive as to use of the right-of-way for other than railroad purposes” than previously believed. In a similar 1974 letter, the attorney wrote regarding a proposed pipeline easement in Contra Costa County, saying, “[n]o assurance can be given Railroad is entitled to grant the pipeline easement in view of the unfavorable trend of California decisions interpreting grants to railroad companies.” Another letter by the same in-house attorney written in 1976 discusses the fact that upon abandonment of rail operations the limited title properties may result in reversion of title, and that the easements are subject to loss upon abandonment for railroad purposes. It concludes that “consideration need [sic] be given as to the advisability of granting to [the Pipeline] an easement for pipelines in the property classified as limited title and easement for railroad purposes . . . unless it is feasible for Railroad to take steps necessary to establish that it is the fee owner of the right of way in which [the] pipeline is located.” Nevertheless, the Railroad continued to grant easements to the Pipeline.
In 1983, during discussions among the related entities regarding mergers, the Railroad and the Pipeline entered into a new master agreement addressing the easements.
II. Merger of Parent Companies: The Sister Companies Part Ways and Litigation Begins
The new 1983 master agreement between the two companies revised the arrangement regarding the Pipeline’s perpetual, nonexclusive easements, and it set forth the amount of rent to be paid for existing pipeline easements through 1993. Also in 1983, the parent company of the Railroad and the Pipeline announced a merger with Santa Fe Railroad. The combination went
In 1991 the Railroad sued the Pipeline and related entities, alleging that the 1983 master agreement should be rescinded because it was created while the companies were still sister entities, and, because it was “not negotiated ... at arm’s length,” it set artificially low rent for the pipeline easements. The Railroad claimed that some of the Pipeline’s facilities and tanks had been dedicated for the Railroad’s continued use, “without regard to the technical title-holder of such properties, for its fuel needs.” The Railroad also claimed that it should be permitted continued use of those pipeline facilities as if it had an “actual ownership interest.”
As the case progressed, the parties entered into a tolling agreement to stay the litigation in order to attempt to reach a global settlement of all issues.
III. Settlement of the 1991 Lawsuit
The parties settled the 1991 lawsuit in April 1994. Pursuant to the settlement agreement, the 1983 master agreement was rescinded; the master agreements of the 1950’s were revitalized; the Pipeline’s easement rights were confirmed and the easement locations were modified, reducing the width of the easement at many segments. The parties compromised various existing claims. The Pipeline paid over $5.5 million in return for the Railroad’s dismissal of claims and causes of action, including those related to the Pipeline facilities allegedly dedicated for the Railroad’s own use. The new settlement agreement contained no provision for the Railroad’s use of the Pipeline’s facilities for its own fuel needs.
As to future rent, the settlement agreement provided as follows: “Beginning January 1, 1994, and every ten (10) years thereafter, [the Railroad] may seek an increase of rent to fair market value. . . .” If the parties could not agree, they would stipulate to an order for judicial reference pursuant to Code of Civil Procedure section 638.
In July 1994, the parties entered into an amended and restated easement agreement (AREA), which reflected that the Railroad granted easements to
IV. The 1994 Case
On August 31, 1994, the Railroad filed an action for declaratory relief when efforts to agree on a new rental amount failed. The parties proceeded by way of a temporary judge pursuant to California Constitution, article VI, section 21, rather than by way of the referee called for in the AREA. At trial, the Pipeline argued that the Railroad did not have a fee interest in its rights-of-way, since they were largely derived from the 19th-century congressional acts. The Railroad brought a motion in limine to preclude any evidence regarding its title. The motion was granted and the Pipeline was prevented from proving that its easements did not, in fact, run through the “property of the railroad.” Although it excluded evidence of the Railroad’s property interest, the trial court nevertheless “assumefd] that the [Rjailroad own[ed] a fee interest.” At the same time, it said that “the court makes no determination as to whether in fact or in law the [Rjailroad owns a fee interest or, as [the Pipeline] contends, it owns a lesser legal, and thus lesser valued, interest.”
Judgment was entered in May 1997 in the approximate amount of $5 million base annual rent as of January 1994.
6
The Railroad appealed and the judgment was reversed two years later in
Santa Fe I, supra,
V. The Instant 2004 Case
A. The Trial
The next stage of this litigation commenced in 2004. Efforts to agree on the amount of the annual rent increase were made in late 2003, but again failed. In July 2004, the Railroad filed a complaint for declaratory relief. The complaint sought another 10-year increase in rent to fair market value on easements “within [the Railroad’s] right-of-way property” pursuant to the AREA.
In March 2005, the parties stipulated to the appointment of the Hon. Eli Chemow, Judge (retired), to serve as a temporary judge under California Constitution, article VI, section 21. Trial commenced in February 2007. The Railroad again brought a motion in limine to exclude evidence regarding its title, on the grounds that such evidence was irrelevant to the sole issue in the case — i.e., the amount of rent due for the easements. This time, the motion was denied. Later in the trial, the Railroad brought a motion to strike evidence regarding the status of its title, which also was denied.
During trial, the Pipeline brought a cross-complaint against the Railroad regarding properties in which the Railroad had conveyed its interests to third parties but still continued to collect rent from the Pipeline. The Railroad brought its own cross-complaint regarding the Pipeline’s failure to pay rent on certain properties the Pipeline had abandoned. At the close of the Railroad’s case-in-chief, the Pipeline brought a motion for judgment pursuant to Code of Civil Procedure section 631.8 on the grounds that the Railroad had not introduced sufficient evidence of ownership of the land underlying its rights-of-way to prove its case. After hearing argument, the trial court suggested that the Railroad reopen in order to address ownership issues. A substantial amount of testimony was then heard and documentary evidence was received regarding the nature of the Railroad’s ownership interest in the land in question. Knowledgeable persons with expertise in railroad title and 19th century Acts of Congress testified. Ultimately, the Pipeline’s motion for judgment was denied.
In April 2012, after more than 250 trial days, the trial court issued a comprehensive 105-page statement of decision. Judgment was entered on
B. The Trial Court’s Rulings Regarding “Property of the Railroad”
In various motions and pleadings, the Pipeline challenged the Railroad’s title to the land through which its easements ran — i.e., the subject property. 7 Witnesses testified about the pre-1871 and 1875 Acts. Title cards prepared by the Railroad were presented, delineating which acts granted each right-of-way, and also noting if the right-of-way had been acquired from different sources. The Pipeline demonstrated that in many cases the Railroad did not own the property in fee, and therefore claimed it had not met its burden to prove a key element of its case — i.e., that rent was due for easements within the property of the railroad. The Railroad did not prove otherwise; rather, the thrust of its counterargument was that it did not have to prove title. It could collect the rent regardless of who owned the property because the Pipeline had the easements and had agreed to pay rent to the Railroad for them. In other words, it did not have to prove the “property of the railroad” was the Railroad’s property.
After hearing evidence relating to the pre-1871 and 1875 Acts and testimony about the title cards, the trial court noted that the records “most commonly showed that [the Railroad] originally acquired title through one or more land grants under certain Acts of Congress.” Other parcels were acquired “by grant[s] from states or other grantors.” The court also noted that “[i]t is undisputed that much of the property held by the [R]ailroad is held in less than full fee ownership” and that the Railroad “did not offer direct evidence of its title to the Subject Property.” But there is little indication that the trial court considered in detail the application of the Congressional Acts, or the case law promulgated under them, in determining the nature of the Railroad’s property interest.
Instead, the trial court believed it was “not dealing with a situation in which evidence has been presented that some third party is the owner of title.” It stated that there was “no evidence disputing the Railroad’s title to
As discussed below, there are numerous federal and state judicial opinions casting doubt on the rights of railroads to the subsurface underlying their rights-of-way based upon the Congressional Acts. Yet despite the Pipeline’s repeated challenges to the Railroad’s ownership under these acts, the trial court stated that “no challenge to [the Railroad’s] ownership [had] been made by [the Pipeline]” and that “there [was] no evidence disputing the Railroad’s title to virtually all of the subject property . . . .” On that basis, the trial court held that “in the absence of evidence challenging the [R]ailroad’s title,” the Railroad’s ownership of the property had been “adequately shown” and (with minor exceptions) it was entitled to rent on the easements.
C. The Appeal
The Pipeline timely appealed from the judgment and “all orders and rulings subsumed therein” as well as various postjudgment orders. At oral argument, we asked whether the Railroad had the right to grant the Pipeline’s easements in the first instance, given the terms of the Congressional Acts and the extensive relevant case law. When counsel for each side did not appear fully prepared to respond to this inquiry, the court requested supplemental briefing on the subject of the Railroad’s property interests.
In its supplemental briefs, the Pipeline claims the Railroad did not have sufficient title to the property to grant the subsurface easements in the first instance. 8 The Railroad claims it did have sufficient title to do so. Both sides discuss the nature of the conveyances provided by the Congressional Acts. Much of the result turns on the question of what is meant by a “railroad purpose.” In reviewing the judgment below, we address and resolve the question of how the Congressional Acts apply to the Pipeline’s subsurface easements beneath the Railroad’s rights-of-way.
As to the other issues raised on appeal, we affirm the trial court’s ruling that the judgment in the 1994 case did not collaterally estop the relitigation of
STANDARD OF REVIEW
The multiple issues raised in this appeal call for various standards of review. As to questions of law, such as the construction of the Congressional Acts granting rights-of-way to the railroads, we employ a de nova standard.
(People ex rel. Lockyer v. Shamrock Foods Co.
(2000)
As to rulings on the admissibility of evidence, we utilize an abuse of discretion standard.
(Gordon
v.
Nissan Motor Co., Ltd.
(2009)
DISCUSSION
I. The Amount of Rent Due the Railroad for the Pipeline Easements Requires a Determination of the “Property of the Railroad”
The AREA requires the Pipeline to pay rent to the Railroad on easements running through the property of the Railroad. Since the trial court did not make a factual determination of what the property of the railroad is, we remand the case for the court to make that determination.
A. What Is the “Property of the Railroad”?
This action is based on the AREA, which addresses the easements granted to the Pipeline in, upon, along and across the “property of [the] Railroad.” (See, e.g., AREA, § l.(a.), p. 2.) The Railroad’s complaint alleges that the Pipeline owes rent on its easements within the “[R]ailroad’s right-of-way
“In a strict legal sense, land is not ‘property,’ but the subject of property. The term ‘property,’ although in common parlance frequently applied to a tract of land or a chattel, in its legal signification ‘means only the rights of the owner in relation to it.’ . . . ‘Property is the right of any person to possess, use, enjoy, and dispose of a thing.’ ”
(Eaton v. B. C. & M. R.R.
(1872)
Thus, “ ‘ “[property” is more than just the physical thing — the land, the bricks, the mortar — it is also the sum of all the rights and powers incident to ownership of the physical thing. It is the tangible and the intangible. Property is composed of constituent elements and of these elements the right to
use
the physical thing to the exclusion of others is the most essential and beneficial. Without this right all other elements would be of little value . . . .’ ”
(Dickman v. Commissioner
(1984)
Here, the pipelines run through the physical land below the Railroad’s rights-of-way. But the “property of the railroad” refers to the rights, privileges, powers and immunities that the Railroad has in the land through which its rights-of-way run. The question here is whether, as of 2004, the Railroad had enough “sticks” in its bundle to allow it to collect rent on the easements running under its rights-of-way.
The trial court concluded that the Railroad had sufficient property interests to have granted the Pipeline easements and to collect rent on them (even those that the Railroad had sold prior to 1994, when the AREA was executed). On appeal, the Railroad argues that the trial court’s ruling should
The Railroad fashions this case as a “private-rights property dispute” and contends it is based upon a “private rental agreement [that does not] involve any matter of public interest or administration of justice.” We reject that characterization. This case is not simply a private matter between two corporations that disagree about the amount of money one owes another in a dispute over private property. Nor is it a lawsuit involving the right of a landowner who purchased real property in the marketplace and seeks to use it as he or she sees fit. Public land was allocated to the railroads by the federal government for a specific purpose — to construct and operate a transcontinental railroad, in order to help protect the nation during civil strife, to expand its frontier, grow its economy, and develop its future. The land provided by Congress was neither purchased by the railroads nor was it given to them with no strings attached. Strings were attached. 9 We must determine whether those strings limit the ability of the Railroad to use the land as a private revenue source.
A concept all too often overlooked in railroad litigation and its judicial opinions is that the grants of rights-of-way to the railroads by Congress were not merely conveyances of land from the government to the railroads so they could build and operate railroads across the continent. Certainly, they were that. But they were more. They were laws. It has long been recognized that “[a] legislative grant operates as a law as well as a transfer of the property, and has such force as the intent of the legislature requires.”
(Schulenberg v. Harriman
(1874)
The initial enabling statutes passed by Congress have given rise to numerous ownership questions over the years. As stated by the United States Supreme Court in
Leo Sheep Co.
v.
United States
(1979)
In the instant case, the trial court does not explain its analysis of the Congressional Acts, nor how that analysis led to its conclusion that the Railroad had adequate ownership interests to charge rent for the Pipeline’s easements. As the trial court did in the 1994 case, the trial court here essentially decided not to decide what the “property of the railroad” was. Instead, it appears to have taken a tack similar to that employed by expert witnesses at trial, who expressed their opinions based upon the assumption that the Railroad had a fee interest in the land, and thus sufficient ownership to grant and collect rent on the subsurface easements. But in the face of 150 years of federal and state jurisprudence that defines and delineates the nature of railroad rights-of-way vis-á-vis the rights of the federal government and
B. Did the Congressional Acts Granting Rights-of-way to the Transcontinental Railroads Give Them the Right to Rent the Subsurface to Private Third Parties for Use as a Pipeline?
The Congressional Acts were passed in order to effectuate construction of a transcontinental railroad
(Beres v. U.S., supra,
1. The 1875 Act Did Not Provide the Railroad with Sufficient Property Interests to Justify Its Collecting Rent on the Pipeline’s Subsurface Easements
With the 1875 Act, the railroads obtained a “mere easementQ” over the land, which otherwise remained the property of the owner of the servient estate. This issue was addressed and confirmed in the recent case of
Brandt, supra,
Much of the analysis in
Brandt
was based upon an earlier case, which dealt directly with the use of the subsurface underlying a railroad right-of-way. In
The Railroad here argues to the contrary, claiming that the 1875 Act granted it far more than a simple easement. It argues in its supplemental briefs that the 1875 Act authorized the Railroad “to conduct... all activities on the surface or subsurface of the property” that derive from or further a railroad purpose. However, the Railroad has cited no case holding that the 1875 Act allowed “all activities [in the] subsurface,” whether derived from or furthering a railroad purpose or not.
On the other hand, to consider the right-of-way provided by the 1875 Act as an old-fashioned common law easement is not accurate. While
Brandt
State courts also contributed to the lexicon of railroad rights-of-way. The Iowa Supreme Court opined that “[t]he easement is not that spoken of in the old law books, but is peculiar to the use of a railroad, which is usually a permanent improvement, a perpetual highway of travel and commerce . . . .”
(Smith
v.
Hall
(1897)
Early on — before the days when subsurface pipelines were even feasible— courts recognized there was a difference between the surface and subsurface. In
Western Union,
the United States Supreme Court extolled the substantiality of railroad rights-of-way, but nevertheless opined that they were simply a “ ‘fee in the surface and so much beneath as may be necessary for support.’ ”
(Western Union, supra,
A railroad easement may be a “substantial thing” that is more than a traditional nonpossessory, incorporeal interest in land. After all, a “railroad company . . . acquires more than the mere right of passage over [the] land[;] [i]t acquires the right to excavate drainage ditches; to construct beneath the surface supports for bridges and other structures; to erect and maintain telegraph lines and supporting poles with part of the poles beneath the surface; to construct passenger and freight depots, using portions of the land below them for foundations; to construct signals; to make fills and cuts to decrease the grades of their rail lines, and to use material from the land covered by the right of way to make such fills; and to construct a roadbed and lay its ties and the rails thereon. Hence, it has substantial surface and subsurface rights, which it is entitled to have protected.”
(Kansas City Southern Railway Co. v. Arkansas Louisiana Gas Co.
(10th Cir. 1973)
But all of the above functions and needs of the railroad are for the purpose of constructing and running the railroad itself. As the
Kansas City
court pointed out, those things “cannot deprive the owner of the servient estate . . . from making use of the land in strata below the surface and below substrata which are used or needed by the railroad company, and which in nowise . . . interferes with the construction, maintenance and operation of the railroad.”
(Kansas City, supra,
As to rights-of-way granted by Congress in 1875 and beyond, the Railroad has exclusive rights to the surface and, in addition, “broad and extensive rights of sub-lateral and subjacent support to prohibit interference with railroad operations and maintenance.”
(Energy Transportation Systems, Inc.
v.
Union Pacific Railroad Co.
(D.Wyo. 1977)
California cases are in accord. In
Atchison, T. & S.F. Ry. Co. v. Abar
(1969)
Even though the team track was involved with railroad operations and functioned in conjunction with its trains, it was beyond any use encompassed by the grant. An easement holder’s use must be consistent with “ ‘normal future development within the scope of the basic purpose [citations], but not an abnormal development, one which actually increases the burden upon the servient tenement.’ ”
(Atchison, supra,
To summarize, a railroad’s rights to the land underneath its rights-of-way granted by the 1875 Act were limited to what was necessary to support the railroad itself. Otherwise, the rights to the subsurface remained with the owner of the servient estate. Put another way, the 1875 Act granted
Therefore, the Railroad’s right to collect rent from the Pipeline for use of its subsurface easements cannot be based solely on acquisitions obtained via the 1875 Act or its progeny.
2. The Pre-1871 Acts Did Not Provide the Railroad with Sufficient Property Interests to Justify Its Collecting Rent on the Pipeline’s Subsurface Easements
a. Under the pre-1871 Acts, railroads were required to use their rights-of-way for railroad purposes only
A railroad’s rights to the lands granted to them in the pre-1871 Acts raise different issues than those raised in the 1875 Act. Rather than a simple easement along the surface, railroads were actually given an estate in the land. (For example, the Pacific Railroad Act of 1862 (Act of July 1, 1862, ch. 120, § 3, 12 Stat. 489) provides that “there be, and is hereby, granted to the said company, for the purpose of aiding in the construction of said railroad . . . every alternate section of public land, designated by odd numbers . . .” [all mineral lands excepted, other than timber]. Under the Pacific Ralroad Act of 1864 (Act of July 2, 1864, ch. 216, § 3, 13 Stat. 356), the railroads could condemn land “necessary in the construction of its road” and thereby “acquire full title to the same for the purposes aforesaid.”) However, the land grants had strings attached. The railroads were not given full fee title. The land had to be used for the “legitimate purposes of the railroad,” and there was an “implied condition of reverter in the event that the company ceased to use or retain the land for the purpose for which it was granted.”
(Townsend, supra,
While the Railroad here cites
Townsend’s
“limited fee” language frequently, that case does not stand for the proposition that the railroad could do whatever it wanted with the land, both surface and subsurface, as if it were owned in fee. As
Townsend
itself explained, “[t]he substantial consideration inducing the grant was the perpetual use of the land for the legitimate purposes of the railroad . . . ,” and it belonged to the railroad only “so long as it was used for the railroad right of way.”
(Townsend, supra,
The landmark 1957 United States Supreme Court decision in
Union Pacific
bears this out. Referring to the pre-1871 Acts, the court confirmed that a
Nevertheless, in the instant case the Railroad contends that as to the pre-1871 Acts, it “owns the land (except the mineral estate) in ‘fee,’ subject only to rights of reversion.”
16
As noted above, this misconstrues the law.
Townsend
did not say the railroad could do whatever it wanted with the land until reversion occurred. It said the railroad had the use of the land “so long as it was used for the railroad right of way.”
(Townsend, supra,
b. The Railroad’s lease of the subsurface underlying its rights-of-way in order to generate revenue for itself was not a “railroad purpose ”
Implicitly acknowledging that its rights-of-way must be used for railroad purposes, the Railroad argues in its supplemental briefs that the pipelines serve a railroad purpose after all. To support this proposition, it claims that the Railroad uses the fuel transported through the pipeline system to power its locomotives. There is nothing in the record supporting this claim, and no admissible evidence to that effect was ever proffered.
17
But even if true, the mere fact that the Railroad used fuel from the pipelines in its locomotives would not mean the pipeline easements themselves served a railroad purpose.
The case law does not support the Railroad’s interpretation. In
Great Northern,
the United States sought to enjoin a railroad from drilling for or removing gas, oil and other minerals from beneath its right-of-way. As in this case, the railroad countered that it was using some of the oil residue on its locomotives and some as fuel for its trains.
(Great Northern, supra,
Thus, the mere fact that a railroad leases the subsurface to a third party to transport material that the railroad may ultimately use does not, by itself, make the lease a railroad puipose. Courts have recognized the distinction between using the end product and renting out the land to transport that product. In
Home on the Range,
a railroad leased out its right-of-way to run fiber-optic telecommunications cable. The court noted that even if running the cable within the right-of-way facilitated the operation of the railroad itself, “the question would remain whether leasing the rights to a third party, as the railroad here did, is within the scope of its granted rights.”
(Home on the Range, supra,
Thus, the
Energy Transportation I
court held that as to the pre-1871 cases, a railroad did acquire more than a “mere passage over the land.”
(Energy Transportation I, supra,
We recognize that using the subsurface for the extraction of oil and gas is not the same thing as leasing it to others for the conveyance of oil and gas. But in either case, the Railroad is seeking value from the use of the servient estate, an estate in which its property rights were limited under the Congressional Acts. To paraphrase
Union Pacific,
we would have to forget history and read legislation with a jaundiced eye to hold that when Congress granted only a right-of-way to the railroads, it nonetheless endowed it with the “untold riches underlying the right of way.”
(Union Pacific, supra,
The Railroad cites
Mellon
v.
Southern Pacific Transport Co.
(W.D.Tex. 1990)
International Paper
does not support the Railroad either. That case was decided under Arkansas law. Again, it involved running a telecommunications cable in the topsoil of the surface right-of-way, not a pipeline through the servient estate. The railroad had a right-of-way running through land owned in fee by the plaintiff, International Paper. Arkansas state law provided that railroad easements conveyed an interest in the ground that entitled the railroad to lease or license the surplus right-of-way to third parties for railroad purposes.
(International Paper, supra,
As in
Mellon,
the easement in
International Paper
dealt with a fiber-optic cable buried in the topsoil that did not present a significant burden to the servient estate.
(International Paper, supra,
In its supplemental brief, the Railroad attaches memoranda from the Department of the Interior regarding the running of fiber-optic cables through the Railroad’s rights-of-way and the application of the pre-1871 and the 1875 Acts, pursuant to title 43 United States Code sections 1761 through 1763. But telecommunications cables stand on different footing than pipelines because (1) the original congressional grants were not only for railroad transportation corridors but also telegraph communication corridors; and, (2) the cables generally run through the surface topsoil and do not significantly burden the servient estate. The Railroad does not attach Department of the Interior
For example, in 1906, the Department of the Interior was asked to opine on a lease provided by the Missouri, Kansas and Texas Railway Company to an individual operating several oil-bearing wells on a portion of the railroad’s right-of-way. It appears that part of the right-of-way was granted in 1866 and part was granted in 1902, both by the federal government. In its initial opinion in 1905
(Missouri, Kansas & Texas Ry. Co.
(1905) 33 Pub.LandsDec. 470), the department opined that the grant under the 1866 act was similar to a grant under the 1864 act and concluded, in a later decision, that “upon authority of the case of the Northern Pacific Railway Company v. Townsend (
The Railroad may use the subsurface underlying its pre-1871 rights-of-way for things that support the construction and operation of their railroad — i.e., for railroad purposes. But it cannot use the subsurface for other purposes. Renting out the subsurface to a third party from a different industry for private gain cannot reasonably be considered a railroad purpose.
Therefore, the Railroad’s right to collect rent from the Pipeline for use of subsurface easements under the Railroad’s “right-of-way property” cannot be based solely on acquisitions obtained via the pre-1871 Acts.
Despite the differences between the pre-1871 and the 1875 Acts, their goal was the same — to build and run a transcontinental railroad and telegraph line. They were simply two different means to the same end. To determine the nature and extent of the Railroad’s rights under these acts, we must look to what Congress intended at the time of each grant, if such intention can be discerned.
(U.S. v. Illinois Central Railroad Co.
(E.D.Ill. 1949)
It is helpful to step back from the maze of railroad adjudication and the crosscurrent of state and federal decisional law it spawned. Taking a broader view of what the country was trying to accomplish with its railroad land grants and easements helps clarify whether the Railroad’s conduct here comports with what Congress intended.
In the circumstances of a new country engaged in a great Civil War that threatened its very existence, the federal government created a new form of property — the railroad right-of-way. It had many of the indicia of common law property, but was a unique legislative creation that first granted land, and then easements, to the railroads in return for their promise to build a transcontinental railroad. 19 Each side lived up to its promise. The great railroads were bom, and carried America into the future. But the law regarding this new form of property gave rise to dispute, conflict, and litigation as both public and private entities tried to pound the new square peg of federally created property interests into the round hole of common law property rights. Sometimes the peg just did not fit; sometimes more heat than light was generated, leaving splinters and sawdust in its wake.
The Railroad’s attempts to analogize from landlord-tenant law to the easements in this case highlight one failure of such an approach. The Railroad calls the money paid to it by the Pipeline for its perpetual, nonexclusive easement “rent.” But that does not make the Railroad a landlord or the Pipeline a tenant, nor does it make the AREA a lease. At common law,
The panoply of issues and questions has gone on for a century and a half, and probably will not be fully resolved anytime soon. But a relatively narrow question is presented here: Did the federal acts give the Railroad the right to rent the subsurface under its rights-of-way in order to generate revenue for itself? Perhaps the answer is best found not in the myriad of cases and opinions interpreting differing laws and unique fact situations, but in what Congress actually did, and why.
From the start, Congress provided the railroads with the right to lay their tracks across the land through the use of land grants and easements. Although reasonable minds may differ on a definition of “railroad purpose,” it must, if words mean anything, be something that furthers the purpose of the railroad act itself — which was, expressly, “An Act to aid in the construction of a railroad and telegraph line from the Missouri River to the Pacific Ocean and to secure to the government the use of the same for postal, military, and other purposes.” (Pacific Railroad Act of 1862, Act of July 1, 1862, ch. 120, 12 Stat. 489, capitalization & italics omitted.)
At the time, little could be done with the subsurface other than extract minerals, if present, but Congress did not ignore it completely. The initial Pacific Railroad Act of 1862 expressly exempted “mineral lands.” Indeed, the nation was aware of the potential great value and wealth in the subsurface. As noted above, in late 1862, the Secretary of the Interior issued a report extolling the value within the “Western Mineral Lands.” (U.S. Dept. of Interior, Abstract from 1862 Ann. Rep. of Comr. of Gen. Land Off.,
supra.)
Not long after, Congress made it even more explicit, passing title 30 United States Code section 21, which confirmed that “[i]n all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.” In 1922, as the need for railroads began to lessen, Congress enacted a law dealing with the disposition of abandoned or forfeited railroad grants (43 U.S.C. § 912), which addressed how the railroads could convey their rights-of-way. That section expressly reserved all oil, gas, and other minerals in the land to the United States. As stated in
Great Northern
when referring to the 1875 Act, “[t]he Act was designed to permit the construction of railroads through the public lands and thus enhance their value and hasten their settlement. The achievement of that purpose does not compel a construction of the right of way grant as conveying a fee title to the land and the underlying minerals;
a railroad may be operated though its right of way be but an
easement.”
(Great Northern, supra,
Once pipelines did become a factor, Congress acted on them as well. In 1920, it enacted title 30 United States Code section 185, which addresses rights-of-way for pipelines through federal lands. The Department of the Interior was authorized to provide leases for such pipelines in return for annual payments of fair market value. (30 U.S.C. § 185(Z).) In 1930, Congress specifically addressed the land under railroad rights-of-way in terms of authorization for leases of oil and gas deposits. It expressly applied the new law to leases “in or under lands embraced in railroad or other rights of way acquired under any law of the United States, whether the same be a base fee or mere easement” (30 U.S.C. § 301, italics added), and provided for royalties to be paid to the United States (30 U.S.C. § 305). Thus, when it came to leases in the subsurface, Congress expressly eliminated any distinction between the pre-1871 Acts and 1875 Act. This hardly reflects an intent on the part of Congress that the Railroad could use the subsurface under its rights-of-way as it pleased. Quite the contrary.
Of course, times change, circumstances change, and “the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.”
(United States v. Price
(1960)
And yet, that is essentially the position taken by the Railroad here. It argues that it has what is tantamount to a fee interest in the subsurface underlying its rights-of-way (both via the pre-1871 and 1875 Acts), and that it may rent it out for its own private gain. It has submitted no evidence, indeed it makes no claim, that its collecting rent from the Pipeline in some way helps the Railroad itself run, as opposed to merely providing revenue to the company for the benefit of its shareholders.
21
Yet it must be recalled that the rights-of-way were given initially so the railroads could perform their “obligations to the United States.”
(Townsend, supra,
It is difficult to imagine that in a time of national crisis a rational Congress would pass, and the President would sign, laws to encourage the railroads to construct a transportation corridor through public lands and across the nation, seen as critical to the safety and development of the country, and at the same time mean to give the railroads the right to rent the subsurface under that corridor to private third parties from a nonrailroad industry, in order to generate revenue for itself. Even more difficult to fathom would be an intent to have the railroad continue to collect such revenue even after it abandons, sells, transfers, conveys, or otherwise ceases using the surface rights-of-way at all — for a railroad or otherwise. 22
Indeed, as previously noted, the original grants expressly describe their purpose. For example, the original Pacific Railroad Act of 1862 (Act of July 1, 1862, ch. 120, §§ 1, 3, 12 Stat. 489) was passed “to lay out, locate, construct, furnish, maintain, and enjoy a continuous railroad and telegraph, with the appurtenances” and to “aid[] in the construction of [the] railroad and telegraph line.” The Act of July 2, 1864 (id. ch. 216, § 3, 13 Stat. 356), was meant for the “construction and working of said road.” And the Act of July 25, 1866 (id. ch. 242, § 7, 14 Stat. 239), required the railroad companies “to operate and use the portions or parts of said railroad and telegraph ... for all purposes of transportation, travel, and communication, so far as the government and public are concerned . . . .” There is nothing in the statutory language, neither in its content nor context, that remotely suggests that Congress meant to give the railroads the right to use the land under their rights-of-way to generate revenue for themselves.
At oral argument, counsel for the Railroad claimed that the pipeline served a railroad purpose because the Pipeline and the Railroad were sister companies at the time the easements were first granted, citing
Faus v. City of Los Angeles
(1967)
The Railroad tries to analogize by saying that conveying commodities through a pipeline is simply a “change in modality of transportation — here, from trains to pipeline — [which] does not change the railroad purpose” (citing Faus, supra, 67 Cal.2d at pp. 358-359 & fn. 6.) But the analogy fails because leasing the subsurface below the railroad’s tracks in order to convey oil and gas is a far cry from simply substituting buses for electric trolleys on the land’s surface to accomplish the same overall goal — transportation of passengers.
The Railroad cites
City of Long Beach v. Pacific Elec. Ry. Co.
(1955)
Like City of Long Beach, the other cases cited by the Railroad for the proposition that the proper use of its right-of-way (whether by land grant or easement) should be broadly construed deal with uses on the surface of the land within the right-of-way. There is little doubt that as to the surface, the Railroad’s rights are substantial. That makes sense. Its trains run on the surface. Its stations and terminals are above ground. No one else has a right to use the surface, or interfere with the Railroad’s use of it, as long as trains run on it. The Railroad needs to control the surface in order to operate.
Finally, the Railroad argues that it can do anything with its rights-of-way that is “not inconsistent with” railroad purposes. But that is not the law. It is not enough that the activity is “not inconsistent with” railroad purposes; the activity must actually
serve
a railroad purpose. The right-of-way was granted to the Railroad “ ‘ “for the construction of [the] railroad and telegraph line.” [Citation.]
That purpose is not fulfilled
when the right of way is used for
other
purposes.’ ”
(Home on the Range, supra,
The novel (and successful) plan put into place via statute to build a transcontinental railroad may have resulted in a confusing crazy quilt of laws and customs when attempts are made to superimpose traditional concepts of common law. But in the end, there is nothing in the language of the statutes, much less the relevant history, purpose, law or precedent, suggesting that Congress intended to give the Railroad the right to use the land under its rights-of-way for nonrailroad purposes, like renting it out to third parties. Congress did not include such a provision, and we will not create, insert, recognize, or enforce such a provision here.
If the Railroad has the right to collect rent pursuant to the AREA for the period of time between 2004 and 2014, it did not obtain that right from the
C. The Rights of the Railroad to Collect Rent Pursuant to the AREA and Related Agreements Irrespective of Congressional Authorization
The mere fact that the Congressional Acts did not give the Railroad sufficient interest in the land to grant subsurface easements to the Pipeline and collect rent therefrom does not end the inquiry. As discussed in more detail below (pt. III.B.l., post), the Railroad may well have acquired additional rights through other means. By 2004, it may have had rights to the subsurface under some of its rights-of-way that surpassed the rights originally granted by Congress. Indeed, it appears that evidence was presented during trial suggesting that, separate and apart from the Congressional Acts, the Railroad claimed title to approximately 50 percent of the land. Since the trial court erroneously concluded that the Railroad had title to “virtually all of the subject property,” there was no finding by the court as to how much of the land was actually the “property of the railroad.”
Therefore, the case must be remanded to the trial court for further proceedings to determine which pipeline easements ran through the “property of the railroad” between January 1, 2004, and December 31, 2013. Rent may be charged by the Railroad only on those easements. Rent may not be charged on easements that ran through rights-of-way acquired by the Railroad solely via the Congressional Acts.
II. Valuation Issues Resolved as Part of the 1994 Case Do Not Collaterally Estop the Parties from Litigating Them in the Instant Case
In the next two parts of our opinion, we turn away from the property rights of the Railroad and discuss the valuation methods employed by the trial court. In this part, we address the Pipeline’s claim that the trial court erred in adjudicating certain valuation issues because those issues were resolved in earlier litigation between the parties. In part III, we discuss contentions relating to the specific valuation methods adopted by the trial court. There, we see how the determination of what constitutes the “property of the railroad” bears upon the calculation of the amount of rent due.
The Pipeline contends that the judgment in the 1994 case collaterally estops the Railroad from litigating some of the issues in this 2004 case. The doctrine of collateral estoppel is one aspect of the concept of res judicata. “In modem usage, however, the two terms have distinct meanings. The Restatement Second of ludgments, for example, describes collateral estoppel as ‘issue preclusion’ and res judicata as ‘claim preclusion.’ ”
(Lucido v. Superior Court
(1990)
Nos. (2) through (5), above, are clearly present in this case. The question turns on whether the issues that were determined in the first proceeding were identical to any of the issues that were to be determined in this proceeding. The Pipeline claims that certain factors relating to the value of easements in transportation corridors were fully litigated and finally determined in the 1994 case, and that the trial court was precluded from adjudicating them a second time. The Railroad claims that these factors change over time, and therefore the facts and circumstances in 2004 are not identical to those in 1994. Therefore, according to the Railroad, issue preclusion does not apply.
Collateral estoppel does not bar a later claim if new facts or changed circumstances have occurred since the prior decision.
(Melendres v. City of Los Angeles
(1974)
B. The Trial Court’s Ruling Regarding Issue Preclusion
The trial court utilized the “Across-the-Fence” (ATF) method to value easements through transportation corridors. The ATF method utilizes four factors to arrive at the rent: (1) the total value of the land occupied by the easement and through which it travels; (2) an enhancement factor reflecting the special value of a transportation corridor in that location; (3) a use factor representing the extent or percentage of the fee constituting the nonexclusive subterranean easement; and (4) the appropriate rental rate, or rate of return. 23 These factors will be discussed in more detail below. 24 But for present purposes, we note that the parties were in close agreement on the total value of the land occupied by the easement. And they agreed that collateral estoppel could not bar a new determination of the rate of return. Therefore, the arguments as to issue preclusion relate to the remaining factors, enhancement and percentage of use.
On at least three separate occasions — before, during, and after trial — the Pipeline asked the trial court to find that collateral estoppel should be applied to the use and enhancement factors, and therefore the Railroad should be bound by those determinations made by the temporary judge in 1994.
25
The Pipeline argued that as to these factors, the facts and circumstances in 2004 were identical to those in 1994. The Railroad argued that the use and enhancement factors were not subject to collateral estoppel because they were based upon expert opinion, not “immutable physical facts.” The temporary judge in the instant case appeared to give significant weight to this argument. He looked to whether the prior findings in the 1994 case were a “fixed fact, such as the width of the specific easement in a specific location, or findings of
First, a fixed or immutable physical determination is not a prerequisite for the application of collateral estoppel. While it is true that fixed, immutable physical facts, by definition, cannot change and therefore will be identical over time, it does not follow that findings must be based on fixed, immutable physical facts in order to be accorded collateral estoppel effect. Indeed, they may well be based upon expert opinion. For example, in a tort case where an expert testifies that the defendant was professionally negligent and the jury so finds, that finding may well have issue preclusion effect in subsequent litigation. The professional negligence is not an “immutable physical) fact.” But where the issue was litigated, decided, final, and on the merits, collateral estoppel applies as between the same parties (or those in privity with them). 26 After all, issue preclusion applied in both Evans and Direct Shopping Network, above, even though the findings in Evans were based upon expert opinions regarding negligence and the ruling in Direct Shopping Network turned on the likelihood of prevailing at trial in an anti-SLAPP case — hardly fixed, permanent (much less physical) factors. To the extent the trial court concluded that it could apply collateral estoppel only to fixed, immutable physical facts or artifacts, it employed a faulty analysis.
Second, the phrase “subject to change over time” as used by the trial court is ambiguous. It is clear that if facts and circumstances change after the first case is final, they are no longer identical by the time the second case rolls along. “[T]he estoppel effect of a judgment extends only to the facts in issue as they existed at the time the prior judgment was rendered.”
(People v. Carmony
(2002)
It is unclear whether, in using the phrase “subject to change over time,” the trial court here simply meant that the facts underlying the enhancement and use factors
might
have changed. If so, this would be an erroneous test. After all, virtually anything
could
possibly change over time. The question for issue preclusion purposes is whether the facts
did
change over time. However, if the trial court meant that the facts underlying the enhancement and use factors, by their nature, inherently change over time, then the conclusion that they had changed between 1994 and 2004 would be a reasonable, if not an inevitable, one. If things are known to change over time, and a significant amount of time passes, the inference that those things are no longer identical to the way they were is compelling. Change is implicit in the facts and implied in the conclusion.
27
In any event, we need not determine if the trial court’s reasoning was correct. We review the correctness of the judgment, not the reasoning or grounds assigned for the ruling, and will affirm a judgment correct on any theory.
(Estate of Kampen, supra,
C. Issues Potentially Subject to Preclusion
1. Enhancement Factor
The enhancement factor (sometimes referred to as the corridor factor) in the ATF valuation method relates to whether there is a special value of a connecting corridor, above and beyond its highest and best use.
The record reveals changes as to these issues between the 1994 case and the instant 2004 case. Evidence was presented of more recent transactions, including transactions entered into by the Railroad and by the Pipeline. Transactions that were part of the record in the 1994 case might or might not be entitled to the same weight accorded to them earlier. The evidence in the instant case included new information about land values and enhancement factors that did not exist in the earlier case. In addition, the trial court was presented with evidence that the Pipeline had recently acquired property for new construction for a Concord-to-Sacramento pipeline. In doing so, it had utilized the ATF process, and inferences could be drawn from these new facts that did not exist in the 1994 case.
In addition, there was testimony at trial from which one could reasonably infer there were changes in the facts and circumstances as they related to enhancement (or corridor) factors. As one example, an expert for the Railroad was asked about any changes in enhancement factors in the years leading up to 2004. He testified as follows:
“Q Had your ATF or corridor segment value as we use our formula changed?
“A Yes, sir. The ATF value changed dramatically, because the price of real estate in that area increased rather significantly over that time period, as one would expect.
“Q Did your enhancement factor or corridor factor change over that period of time?
“A Yes. And the reason being is my analysis of corridor sales is rather dynamic. I’m always getting additional corridor sales. And additional [information.] [A]nd so each time I do a valuation I go back and I analyze those sales again. And so the corridor factor has changed over that period of time, even though the value, the importance of that corridor as a corridor, has not really changed.”
2. Use Factor
The use factor is that portion of the fee value attributed to the easement. As noted, the trial court considered whether the use factor was purely physical (i.e., a “physical artifact”) or a market-based economic element. It pointed out that the appellate court in Santa Fe II considered it something that required expert appraisal opinion. (Santa Fe II, supra, A103990.) But more than that, it concluded that an expert opinion based upon market behavior is “inherently subject to change,” and 10 years had passed between the 1994 and 2004 valuations.
Moreover, the Railroad’s expert testified that the use factor is “market extracted from actual sales and agreements” and was in the range of 75 percent for subsurface occupancies such as the easements here. For determining both enhancement and use factors, another expert for the Railroad testified regarding, and brought documentation of, scores of transactions, many of which were after 2000 and some as late as 2003. He testified about numerous transactions between 2000 and 2003 with use rates in the range of 50 percent to 90 percent. And he compared pre-2000 transactions to post-2000 transactions, placing more weight on the recent transactions. He also opined as follows:
“Q And do you conclude that use rates for the later transactions of the period 2000 to 2003 are somewhat higher than use rates in earlier transactions for [the Railroad]?
“A Yes.
“Q What were the use rates you were seeing in the earlier [Railroad] transactions?
“A In the 50 percent range.
“Q Is this an example of use rates changing over time?
“A Yes.
“Q Is this one reason why a determination of use rate in 1994 isn’t determinative of use rates in 2004?
“A Yes.”
Based on the record, it can hardly be said that the facts from which the use factor was determined had not changed since 1994. These facts were not fixed or permanent in their nature. Rather, there was substantial evidence that the facts had changed between 1994 and 2004. As with the enhancement factor, the trial court’s ruling regarding collateral estoppel relating to the use factor was correct. Precluding either party from relitigating the use factor would have been an error of law. Allowing the parties to relitigate the issue in order to update it was not.
D. There Is No Equitable Basis for the Application of Issue Preclusion Here
Besides the classic five criteria for applicability, “[tjhere is an equitable component to collateral estoppel” as well.
(Direct Shopping Network, supra,
Courts must look at the entire record to equitably apply issue preclusion, allowing a party to avoid having to revisit and relitigate an issue already fairly resolved. But in this case, there is an extra wrinkle: As part of the settlement of their 1991 litigation, the parties agreed that the Railroad could seek a rent increase in accordance with the fair market value of the easement every 10 years. 28 In anticipation of litigation in the event they were unable to agree on an increase, the AREA set out a specific procedure for judicial intervention on a regular basis. The history of this case is consistent with those expectations.
If the parties had thought the rent was something static and fixed, there would have been no need to build in a planned rent increase, nor to provide a mechanism to resolve their disputes every 10 years under judicial auspices. One can fairly assume that both the Railroad and the Pipeline believed the market value of the easement would change over that length of time. But perhaps more important, they appear to have contemplated that determining that market value would require a more complex and sophisticated analysis than simply looking to inflation or general property values. Otherwise, a consumer price index (CPI) or some similarly objective economic indicator of overall property values would probably have been
In the context of this case, collateral estoppel takes on a different sheen. While the doctrine is designed to “prevent a party from repeatedly litigating an issue in order to secure a different result”
(Direct Shopping Network, supra,
The court must “ ‘consider whether the traditional requirements and policy reasons for applying collateral estoppel [are] satisfied by the facts of [the] case.’ ”
(Lucido, supra,
In this case, the “limitation on relitigation” policy that collateral estoppel seeks to promote is undermined by the AREA itself, a preexisting agreement between the parties to recalculate the rent every 10 years and seek judicial intervention when they fail to reach an accord. Under the circumstances, the application of collateral estoppel would be unlikely to prevent inconsistent results or promote finality and judicial economy. Thus, application of issue preclusion would not further the goals that the doctrine was designed to promote.
We affirm the trial court’s rulings that denied the Pipeline’s motions for issue preclusion.
A. ATF Versus Comparable Value Appraisals
The Pipeline argues that the trial court erred in not utilizing their “comparable value method” as evidence of the amount of rent due. The Pipeline contends the trial court did not consider its properly admitted evidence, because failing to give weight to evidence is “tantamount to exclusion.” And the Pipeline asserts that this is “the flip side of [Santa Fe 7], where the trial court ‘considered’ but did not formally ‘admit’ the ATF appraisal evidence . . . .” Here, according to the Pipeline, the trial court “admitted” but did not “consider” the comparable transaction evidence. These arguments are without merit.
In Santa Fe 7, the Court of Appeal reversed because the trial court excluded the Railroad’s ATF evidence entirely, preventing it from proving its case and denying it a fair trial. Having excluded the ATF evidence, the trial court never considered its probative value. Here, to the contrary, the trial court admitted the Pipeline’s evidence, but after due consideration concluded it had no persuasive effect. The Pipeline fails to recognize or accept the fundamental distinction between the admissibility of evidence and its weight.
The Pipeline cites the case of
County of San Luis Obispo v. Bailey
(1971)
Indeed,
San Luis Obispo
itself explains that once evidence is admitted on the grounds of comparability, “ ‘the degree of comparability is a question of fact for the jury.’ ”
(San Luis Obispo, supra,
Other cases cited by the Pipeline also fail to support its position. For example, in
Lewis Food Co. v. Fireman’s Fund Ins. Co.
(1962)
The Pipeline’s reliance on
Vanieken-Ryals v. Office of Personnel Management
(Fed.Cir. 2007)
We review the admissibility and weighing of evidence by an abuse of discretion standard. As pointed out by one of the cases cited by the Pipeline, “[gjiving little weight to specific evidence because of its individual failings ... is a factual analysis over which we have no jurisdiction to review.”
(Vanieken-Ryals, supra,
The trial court utilized the ATF method in determining the amount of rent due under the AREA. This method is generally used in valuing transportation corridors. Indeed, in
Santa Fe I
both sides initially presented expert testimony using the ATF method. The trial court refused to admit or consider such evidence and the Court of Appeal for the First Appellate District found that the Railroad was denied a fair trial. The first judgment was reversed on those grounds.
(Santa Fe I, supra,
As noted above, the ATF method incorporates four elements: (1) the total value of the land occupied by the easement and through which it travels; (2) the enhancement (or corridor) factor, if any, reflecting the special value of a connecting corridor; (3) the percentage of the fee constituting the nonexclusive subterranean pipeline easement (i.e., the actual underground and access rights conveyed); and (4) an appropriate rental rate or rate of return. The trial court analyzed all four elements and made factual findings as to each before reaching its conclusion as to the rent commencing on January 1, 2004.
On appeal, we accept these findings if they are supported by substantial evidence. In applying the substantial evidence standard, this court’s “ ‘review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial court’s factual determinations. . . .’ ”
(Monks v. City of Rancho Palos Verdes
(2008)
1. Total Value
The burden to prove the elements of its case is on the plaintiff. Here, the Railroad alleged in its complaint that the Pipeline owed rent on certain easements “within [the Railroad’s] right-of-way property.” It sought a judicial
Evidence before the trial court “most commonly showed that [the Railroad] originally acquired title through one or more” of the Congressional Acts. The court recognized that the Railroad obtained the land “for railroad use, not outright grants of permanent full fee property rights,” and that it held less than full fee title to such lands. We have taken judicial notice of the pre-1871 and 1875 Acts and the decisional law interpreting them. (Evid. Code, §§451, subd. (a), 459.) As explained above, pursuant to that body of law the Congressional Acts did not grant the Railroad sufficient rights to the subsurface to allow it to collect rent from the Pipeline for its use of that property.
The trial court also noted that some parcels, however, were acquired by grants from states or other grantors. Moreover, there was testimony at trial that the Railroad could have obtained rights to the parcels containing the pipelines through numerous other means. In addition to conveyance of a fee interest to a railroad by individuals or states, methods discussed at various points in trial included, for example, condemnation, quitclaim deeds, purchase, quiet title actions, the California Marketable Record Title Act (Civ. Code, § 880.020 et seq.) or similar statutes in other states, adverse possession, waiver or consent from the owner of the servient estate, etc., or through a declaration or decree of a court of competent jurisdiction or an act of Congress. Indeed, evidence was presented that as much as 50 percent of the Railroad’s rights-of-way was held or acquired through methods other than the Congressional Acts, and 32 percent is claimed to be held in fee. If the Railroad ultimately obtained an entire parcel in fee, there is no servient or dominant estate in that parcel. A servitude is extinguished “[b]y the vesting of the right to the servitude and the right to the servient tenement in the same person.” (Civ. Code, § 811.) In that circumstance, the Railroad would own both the surface and the subsurface, which it could lease out as it sees fit — whether for railroad purposes or not.
The trial court made no specific finding as to the nature of the Railroad’s property interest. Yet it concluded that title to “virtually all of the subject property” had been adequately shown. The implication was that all of the Pipeline’s easements are within the “property of the railroad.” In reviewing the record, we do not find substantial evidence to support this finding. It
At oral argument, counsel for the Railroad claimed the trial court had determined that for purposes of the AREA the Railroad had proven its case in terms of what was the property of the railroad. But the trial court did not make a finding that the Railroad owned any particular parcel. Indeed, the court expressly stated that the Railroad “did not offer direct evidence of its title” and that “[fjew records, if any, reflected title in the Railroad in fee simple.” As noted above, it concluded in its statement of decision that the Railroad lacked full fee title.
Because the trial court did not make a finding as to the “property of the railroad” under the test we have set forth today, it follows that there was no substantial evidence of total value. Once the “property of the railroad” has been determined on remand, then the trial court can determine the total value and apply the remaining ATF factors.
2. Enhancement Factor
The record reveals that the trial court considered a massive amount of evidence in reaching its conclusions regarding the enhancement factor, as well as the other ATF factors. Its discussion in the statement of decision has subsets for conflicting opinions, theoretical considerations, inferences from the Pipeline’s new construction of railroad rights-of-way, the opinions of experts from both sides, availability of alternatives, among numerous others. The trial court also recognized that the easements were along an existing transportation corridor, which represented a very substantial savings to an easement user compared to the cost of assembling a new corridor for its easement. All appraisers agreed that this was the highest and best use of the subject property, which is generally not more than 10 to 12 feet wide but extends linearly over 1,800 miles. The trial court considered how the market valued these types of property interests.
One of the Railroad’s experts testified to enhancement factors between 1 and 1.5, depending on density of development ATF, and other factors. Another of its experts said the range was 1 to 1.25, again depending on the density of the development. When looking at market data, the first expert set the range at 1.11 to 2.09 times ATF land value. The other opined that the range was between 1 and 6.83 times ATF land value. The trial court found an enhancement factor of 1.25. This was supported by substantial evidence and was well within the range of the testimony of the expert witnesses. Unless it appears on remand that the determination of the “property of the railroad” in some way affects the calculation of the enhancement factor, the trial court’s finding regarding that factor will be upheld.
A similar analysis applies to the trial court’s determination of the use rate (or percentage of fee) factor. Here, the trial court considered, among other things, the approach of appraisers from both sides, the policies of other railroads, and other transactional data. One of the Railroad’s experts opined that the market value of the subject easement was 60 percent of the corridor value of the strip of land it occupied, and that market data indicated use rates between 50 percent and 90 percent. Another expert testified that on average the market value of the easement was 65 percent of the underlying fee value. The trial court considered the opinion of the Pipeline’s expert as well, who concluded that the use rate was between 33 percent and 50 percent of the fee value of subsurface rights. He relied heavily on the conclusion of the judge in Santa Fe II and arrived at 40 percent as the most appropriate use factor.
The trial court concluded that the most reasonable use factor was 60 percent of the underlying fee value of the easement, but 70 percent for those line sections that were seven feet or less. These findings are within the range of the expert testimony and supported by substantial evidence. As with the enhancement factor, unless it appears on remand that the determination of “property of the railroad” in some way affects the calculation of the use factor, the trial court’s finding regarding that factor will be upheld.
4. Rate of Return
As to the rate of return, the trial court heard expert testimony and received documentary evidence of the Railroad’s policies and practices, as well as those of other railroads. The Railroad presented evidence that the rate of return should be between 10 percent and 16 percent. The Pipeline’s experts opined that the range was closer to 6 percent to 8 percent. The trial court concluded that the Railroad’s experts were more believable. It also considered recent transactions by the Railroad, which reflected it was able to generate a rate of return of 13 percent in those cases.
In reaching its conclusion, the trier of fact must arrive at a number comprising values within the range of the testimony for each component factor.
(People ex rel. Dept. Pub. Wks. v. Jarvis
(1969)
C. Must the Pipeline Pay Rent to the Railroad for Easements Within Property That the Railroad Sold Prior to 1994?
The Pipeline also contends it need not pay rent for easements under rights-of-way property that the Railroad sold to third parties. We make two preliminary observations. First, given our earlier discussion regarding the “property of the railroad,” the Railroad had no right to collect rent on subsurface easements under rights-of-way acquired solely via the Congressional Acts. It follows, then, that the sale of those rights-of-way by the Railroad to third parties did not somehow confer a right to collect rent from the Pipeline for those easements. However, even if — as the Railroad claims — the Congressional Acts had conveyed sufficient property rights to the Railroad to warrant its renting out the subsurface to the Pipeline as it actively used its right-of-way for railroad purposes, new and different considerations come into play once the Railroad ceases, forfeits, or abandons its use of the right-of-way altogether. Second, we note that at trial the parties litigated the Railroad’s right to charge rent as to those rights-of-way sold before and after 1994, but on appeal the Pipeline only claimed error as to the properties sold before 1994. 30 Those are the only ones directly addressed here. 31
The Railroad claims it has the right to continue to collect rent on pipeline easements within properties it had already sold when the AREA was signed, because the AREA itself indicates that the list of existing easements included some that were “located on property previously owned by Railroad, but not owned by Railroad as of the date [of the AREA].” (AREA, § l.(d.).) Furthermore, the Railroad contends, when it sold these parcels to third parties it included a reservation of rights to subsurface easements that contained the pipeline, and also reserved the rights to collect rent on the pipelines as “easements in gross.”
In the trial court, the Railroad took the position that it did own the land through which it granted the Pipeline’s easements, and thus had the right to
The trial court found that the Railroad “h[e]id less than full fee title” to the land, but it nevertheless concluded that the Railroad had the right to continue to collect rent from the Pipeline on property it sold to third parties, if it included a reservation of that right as part of its conveyance. 33 While the issue here overlaps with the issues raised above regarding whether the Railroad can collect rent on easements that are not within the “property of the railroad,” additional issues are raised as to what happens when the land is no longer used or occupied by the Railroad at all.
As the railroads began to abandon or forfeit their rights-of-way, questions arose as to what would become of these parcels of land. Congress passed an act regarding the disposition of abandoned or forfeited railroad grants in 1922. (43 U.S.C. § 912.) That act provided that when the use and occupancy of the railroad’s right-of-way has ceased, whether by forfeiture or abandonment, ownership reverts to the federal government or its grantees (unless for a public highway legally established within one year). (Ibid.) With certain exceptions, the land either reverts to the federal government or its grantees (in the case of land grants by the pre-1871 Acts) or the servient tenement holder becomes the owner of the entire property (in the case of easements by the 1875 Act).
Not surprisingly, railroads attempted to sell their rights-of-way to third parties when they ceased using them for railroad operations. But the alien-ability of railroad rights-of-way created solely by the Congressional Acts generated questions, since the railroads did not own the land in fee to begin
Under the various statutes relating to abandonment or forfeiture, court or congressional actions were often required. These were sometimes obtained, but not without controversy. For example, in 1997 a House of Representatives committee recommended approving the conveyance of certain parcels of the Southern Pacific Railroad in Tulare County, California, for local development. The rights-of-way had been originally granted to the railroad in an 1866 act. A report from the House Committee on Resources accompanying House Bill No. 960 recognized that if the railroad ceased to operate on the right-of-way, the land comprising the right-of-way would revert to federal ownership. The report discussed the reasons that it recommended validating the conveyances to Tulare County, as opposed to having the land revert to the federal government. But additional views were presented, which pointed out that while Tulare wished to buy the right-of-way from the railroad, “[t]he railroad . . . does not own the land (the taxpayers do), and so the title is not cleared to convey.” (H.R.Rep. No. 105-171, 1st Sess., pp. 6-7 (1997).) Nevertheless, the authors said, the proposal would allow the railroad to clear title to sell these lands and profit from their disposal, and expressed concern that the “[p]assage of this legislation should not be perceived as endorsing the concept of the federal government giving away public rights without just compensation.” (Ibid.)
Such plans to validate railroad rights-of-way conveyances were not uncommon. Another came before Congress in 2004, involving rights-of-way initially granted to a railroad in 1862. In the report supporting the act, the Senate Committee on Energy and Natural Resources (Sen.Rep. No. 108-305, 2d Sess., p. 2 (2004)) cited
Railroad Co. v. Baldwin
(1880)
Similar issues regarding the property rights of railroads have arisen as a result of the shrinking use of railroad tracks and the trend to convert them to trails for recreational use. The federal “Rails-to-Trails Act” (16 U.S.C. § 1241 et seq.) has spawned litigation regarding the rights of owners of the servient tenement when a railroad sells rights-of-way it no longer uses for railroad purposes to third parties or municipalities. Since the railroad obtained a grant for use of the land surface for railroad purposes only, it could not grant more than that to third parties.
(Geneva Rock Products, Inc. v. U.S., supra,
The question here is whether the Railroad had the right to sell its rights-of-way to third parties and reserve the right to continue to collect rent on the subsurface easements. We have already concluded that even when the Railroad uses and occupies its right-of-way, the Congressional Acts did not give it sufficient title to justify renting the subsurface to the Pipeline. But even if the acts had provided it sufficient title, once the Railroad sells its right-of-way, thereby ceasing to occupy and use it, either the easements would be extinguished (1875 Act) or the servient estate would revert to the federal government or its grantees (pre-1871 Acts). Therefore, unless the Railroad had an interest in the property greater than that provided by the Congressional Acts, it could not reserve rights to the subsurface for purposes of continuing to collect rent from the Pipeline as an easement in gross.
Congress clearly intended that a railroad’s interest in its rights-of-way would terminate once it no longer used or occupied the land. Continuing to have an interest in the land, and to generate revenue from it, would run directly counter to the legislative intent. It follows, then, that when the Railroad sells its interest in the property to third parties and no longer uses or occupies the surface right-of-way, it cannot collect rent from the Pipeline—
IV. Prejudgment Interest
A. The Trial Court Had the Authority to Determine the Issue of Prejudgment Interest
The Pipeline asserts that the temporary judge did not have authority to enter a money judgment, and, therefore, could not award prejudgment interest. A temporary judge serves pursuant to provisions of the California Constitution. His or her powers exceed those of a referee, since a temporary judge may enter judgment and hear posttrial motions, presiding over the matter “until final determination of the cause.” (Cal. Const., art. VI, § 21; see Cal. Rules of Court, rule 2.830 et seq.) A temporary judge’s judgments are “ ‘appealable in the same manner as those rendered by a constitutional judge.’ ”
(Kajima Engineering and Construction, Inc.
v.
Pacific Bell
(2002)
The stipulation to appoint the temporary judge here states that the judge shall, among other things, “preside over the trial of the within matter until rendition of judgment, and shall hear and determine all post-trial motions relating to the judgment filed or to be filed herein, and act in said capacity until the conclusion of all matters herein which may be determined within the trial jurisdiction of the Superior Court.” Pursuant to the parties’ stipulation, the presiding judge of the Los Angeles County Superior Court appointed the temporary judge “to hear and determine the . . . matter, including all post-judgment proceedings in the trial court.”
Even though the stipulations do not expressly call for a money judgment or prejudgment interest, a temporary judge may go beyond the express wording of the stipulation creating him and has the power to act until final determination of the proceeding, resolving issues that are “ ‘direct progeny’ ” of the cause assigned to him or her for resolution.
(Gridley v. Gridley
(2008)
Prejudgment interest falls under this category. Indeed, prejudgment interest is to be included as part of a final judgment by rule. (Cal. Rules of Court, rule 3.1802 [the clerk must include in the judgment any interest awarded by the
B. The Nature of Prejudgment Interest
Prejudgment interest, by its nature, differs from other more typical forms of interest. It is a creation of statute designed to compensate for the presumed harm caused by the inevitable delays inherent in litigation. While the party that ultimately prevails awaits final judgment in his or her favor, the losing party enjoys the use of the funds in question as the lawsuit winds its way through the courts. Thus, “ ‘[t]he purpose of prejudgment interest is to compensate plaintiff for [the] loss of use of his or her property.’ ”
(Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist.
(2001)
To determine if a party is entitled to prejudgment interest under the code, we look to the meaning of the statute, which we review de nova.
(People ex rel. Lockyer v. Shamrock Foods Co., supra,
Viewing the prejudgment interest statutes in their statutory context, we note that the Civil Code is divided into four divisions. Civil Code section 3287 34 falls under article 2 (Interest as Damages) of chapter 1 (Damages in General) of title 2 (Compensatory Relief) of part 1 (Relief) of division 4 (General Provisions). Given this statutory scheme, it would be helpful if the Legislature defined “damages.”
And so it did. Section 3281 states: “Every person who suffers detriment from the unlawful act or omission of another, may recover from the
In the instant case, the trial court awarded prejudgment interest to the Railroad under both section 3287(a) and 3287(b). Therefore, we must infer the court concluded that the Railroad suffered damages. Prejudgment interest was awarded pursuant to section 3287(a) at the rate of 10 percent per annum on the amounts of rent unilaterally withheld by the Pipeline for reserved easements, for abandoned easements, and for “Line Section 101.” And prejudgment interest was also awarded under section 3287(b) at a rate of 5.25 percent per annum on the unliquidated amounts of back rent starting on January 1, 2004. The total amount of prejudgment interest at the time of entry of judgment was $19,372,195.50.
The Pipeline argues that the temporary judge erred by awarding prejudgment interest. Besides its contention that the parties’ stipulation did not give him the authority to award it, it also argues that no prejudgment interest is allowed because there were no “damages” suffered by the Railroad. According to the Pipeline, the AREA did not contemplate an award of prejudgment interest. Instead, it reflected an agreement between the parties that if they could not agree on the amount of increased rent, they would have their dispute resolved in a judicial proceeding, with all its inherent delays. The parties dealt with the judicial delay in establishing new rent by having the Pipeline continue to pay the same rent as in 2003, plus a CPI adjustment every year, until judgment was entered by the court. Therefore, the Pipeline asserts, the parties reasonably expected and agreed that there would be no prejudgment interest to compensate for any litigation delays.
The Railroad, on the other hand, argues that the terms of the AREA are irrelevant to the question of prejudgment interest because the issue is one of law, and is not dependent on a contract between the parties. It also claims that “damages” is defined broadly by our courts, and applies where one party owes a money judgment to another, regardless of whether there was any wrongdoing or fault. Since the Railroad had to wait for its rent while the Pipeline held on to the money as the lawsuit proceeded, it argues that interest should ran, and should be included in the judgment in order to provide it with fair and just compensation. We agree with the Pipeline.
Section 3287 expressly requires that before being awarded prejudgment interest a party must first be entitled to recover or receive damages. (§§ 3287(a), 3287(b).) 35 The Pipeline claims the Railroad suffered no damages here, since the Pipeline committed no “unlawful act or omission” and thus was not a “person in fault,” as required by the plain language of section 3281. Instead, the Pipeline was merely proceeding along lines both sides had agreed to. Since it suffered no damages, the Railroad cannot collect prejudgment interest. 36
The Railroad counters that since the term “damages” has been construed broadly, an unlawful act or omission is not required, despite the statute’s plain language. It claims that “neither a breach of contract nor an ‘unlawful’ act is required to receive damages for purposes of prejudgment interest.” Thus, the Railroad contends, prejudgment interest is available whenever money is recovered by a party for loss suffered through the acts of another “whether or not unlawful,” and therefore “no fault or unlawfulness is required.” For this proposition, the Railroad relies in large part on
AIU Ins. Co.
v.
Superior Court
(1990)
Lastly, the Railroad claims that “the amount of money recovered
in any judgment
may properly be described as damages” under section 3287. (Citing 23 Cal.Jur.3d (2008) Damages, § l.)
37
This clearly implies that, according to this authority, money recovered “in any judgment” is considered damages for purposes of prejudgment interest, regardless of whether there is fault or unlawful conduct. However, California Jurisprudence Third does not say that. The first sentence of its section on damages states: “The term ‘damages’ refers to the monetary sum assessed by a court against a
wrongdoer
for the commission of a
legal wrong
of a private nature.” (23 Cal.Jur.3d,
supra,
Damages, § 1, p. 17, italics added.) It goes on to state that it is “provided by statute that every person who suffers detriment
from the unlawful act or omission of another,
may recover from the person in fault a compensation therefor in money, which is called damages.” (23 Cal.Jur.3d,
supra,
Damages, § 1, p. 18, italics added, citing § 3281.) In its supplement, California Jurisprudence Third cites more recent cases, like
Jamison
and
Citizens of Humanity, LLC v. Costco Wholesale Corp.
(2009)
More recent cases have upheld the definition when it comes to damages and prejudgment interest. In
Estate of Kampen, supra,
Simply put, section 3281 defines damages as involving unlawful conduct by a “person in fault” and section 3287 requires damages before prejudgment interest may be awarded. With this construction in mind, we review the trial court’s order granting the Railroad’s motion for prejudgment interest.
D. Following Remand, the Railroad May Be Entitled to Prejudgment Interest on Liquidated Amounts Under Section 3287(a)
The trial court ordered the Pipeline to pay prejudgment interest under section 3287(a) “on the amounts of rent unilaterally withheld” by the Pipeline for “[Reserved [ejasements, for [ajbandoned [ejasements and for Line Section 101 . . . .” 39 The trial court applied a 10 percent interest rate pursuant to section 3289, subdivision (b), because the AREA does not stipulate a legal rate of interest. These are liquidated damages because a specific, known amount was withheld by the Pipeline, which was “certain, or capable of being made certain by calculation,” on a particular day. (§ 3287(a).) The parties do not dispute that the amounts claimed under section 3287(a) are liquidated. The Pipeline knew precisely the amount involved; the disagreement at trial was the Pipeline’s liability for rent on these particular easements, not the amount owed if liability was determined.
Whether the Pipeline was liable for the payment of rent on the reserved easements, abandoned easements, or Line Section 101, will have to be determined on remand, after additional factfinding consistent with the opinions stated herein. If the trial court finds that the rent was due and that withholding it was wrongful, a monetary award would meet the definition of
E. The Railroad Is Not Entitled to Prejudgment Interest on Unliquidated Amounts Under Section 3287(b)
Unlike prejudgment interest under section 3287(a), an award of prejudgment interest on unliquidated amounts under section 3287(b) is discretionary with the court. It must consider the circumstances, realizing a party cannot pay the amount due until it is determined what that amount was — which in this case was the reason for the litigation in the first place. The original prejudgment interest statute (§ 3287(a)) did not require a losing party to pay interest when it could not know how much to pay. In 1967, the Legislature added section 3287(b) to allow prejudgment interest to be awarded even on unliquidated amounts, in the court’s discretion.
(A & M Produce Co.
v.
FMC Corp.
(1982)
As noted above, the Pipeline asserts its conduct was not unlawful because the agreement and expectations between the parties, as reflected by the AREA, was that no prejudgment interest would accrue. The Railroad claims that the Pipeline’s reliance on circumstances surrounding the AREA’S creation are irrelevant because its right to prejudgment interest is based on the law, and is not dependent on the existence of a contract in any event. But by law, the Railroad must have suffered damages, which requires that the Pipeline engaged in “unlawful act[s] or omission[s] and” was a “person in fault.” (§ 3281.) To determine if that was the case, we must consider the context of the Pipeline’s actions, which in turn requires us to inspect the contractual relationship between the parties and why the Pipeline did not pay the rent later determined to be owed as it became due after January 1, 2004. 40
1. The Contractual Relationship Between the Parties
The trial court awarded prejudgment interest under section 3287(b) on “the unliquidated amounts of back rent” in the amount of 5.25 percent per year, accruing from the date each payment came due.
41
By implication, the court must have found that the Pipeline wrongfully failed to pay the back rent
Although this case arises from a written contract between the parties — i.e., the AREA and subsequent modifications — it is hardly your typical, garden-variety breach of contract case. The Railroad, after all, does not claim the Pipeline breached the terms of the AREA with regard to back rent. Rather, it claims the delay in payment as it waited for the litigation to resolve entitles it to prejudgment interest in order to be made whole. At this juncture, it is helpful to step back and revisit the history of these parties. Whatever the true nature of its property interest, the Railroad controlled the land through which the Pipeline wished to run its pipelines. There were no third parties directly involved, and no arm’s-length transactions. In their master agreement, the sister companies agreed on the proposed easements, and on the rent due from one party to the other.
But when the companies were no longer siblings, litigation ensued. When the parties settled their case in 1994, the settlement agreement provided that interest was to be paid on outstanding tax and insurance payments, but it did not call for interest on back rent if there was a dispute as to the amount that was owed. The AREA was silent on whether interest would accrue during pending litigation. Subsequent to the signing of the AREA in July 1994, the parties entered into a side letter agreement dated September 9, 1994, which incorporates the AREA and its exhibits. Among other things, this agreement addresses what payments should be made if there was no agreement on the increased rent and subsequent litigation was required. However, it also states: “During the pendency of any Reference Proceeding or appeal, [Pipeline] agrees to pay to Railroad the per annum sums set forth on Exhibit E, annually in advance . . .” subject to the CPI adjustments set forth in the AREA. It also anticipates entry of judgment, but says nothing about any prejudgment interest running during this time. 42
The settlement of the 1991 lawsuit resulted in at least three written agreements in 1994 — the settlement agreement in April, the AREA in July, and the side letter agreement in September. In a very real sense, this case is in the nature of an action to enforce a settlement agreement which calls for
2. Was the Pipeline’s Failure to Pay the Increased Rent When It Became Due Unlawful Under the Terms of the Settlement Agreements?
The parties agreed about what was to occur while litigation was pending. They were sophisticated business entities represented by counsel, and clearly recognized that if they could not agree on a baseline rent, time would pass as they litigated the matter in court. They could have provided for interest to accrue on unpaid rent while they were waiting for a judicial determination. Or they could have been silent on the subject, assuming a default position that was provided by law. 43 But they did neither. Instead, they addressed the issue in the 1994 settlement and expressly agreed what to do during the pendency of the litigation: The Pipeline would continue to pay the baseline rent, adjusted annually for the CPI. There was no provision for prejudgment interest.
In addition, this provision of the settlement agreement illuminates the issue of “wrongdoing” as the law uses that term in relation to damages and interest. If the Pipeline had engaged in some sort of unlawful conduct by failing to pay any rent during the pendency of the dispute, prejudgment interest could well be in order, regardless of any agreement between the parties. But that is not the case here. Instead, the Pipeline merely proceeded along the path negotiated and anticipated by each side in their mutual settlement agreement. It paid the baseline rent, plus the CPI increases, as the parties engaged in prolonged and complex litigation. This is precisely what the parties agreed to. Indeed, that is all the Pipeline could do, until the trial court ruled on the question of the baseline rent commencing on January 1, 2004. There was no breach of
It would be unjust, not only because the Pipeline acted precisely as the parties agreed while waiting for the litigation to play out, but because the circumstances are very asymmetrical here. It was obvious from the start the Railroad would be collecting rent, and that as it awaited judicial resolution back rent would build up. With the few exceptions discussed above, there was no question of the Pipeline’s liability for rent payments; it was simply a matter of how much the rent should be. Neither side considered that the Pipeline could “win” the case and not have to pay rent at all. Under the Railroad’s “heads I win, tails you lose” theory, it would receive prejudgment interest no matter what the Pipeline did or what happened at trial and no matter how fair or diligent the Pipeline was in avoiding fault or wrongdoing.
For example, at trial the Railroad could be fairly seen as the “victorious party” 45 since it got most of what it sought. The Pipeline, after all, is filing the appeal. But even if the trial court had awarded an amount favorable to the Pipeline (e.g., very little increase in rent), pursuant to the agreement no court-determined rent increase would have been paid during the pendency of the litigation. Indeed, that is just what happened in Santa Fe II. There, the Railroad was unhappy with the trial court’s judgment, thinking it was too low. The case was retried. The Railroad was still unhappy with the results. It appealed again. When judgment was affirmed, the Railroad still felt the result was unsatisfactory (it was clearly not the “victorious party”) and the Pipeline was happy with the result. Nevertheless, the Railroad claimed it was entitled to prejudgment interest. 46 But the statute is designed to provide prejudgment interest to be paid to a plaintiff by a wrongdoer. It hardly furthers the legislative intent to award such interest to one party where the other party did nothing wrong and emerged victorious.
In conclusion, the Legislature’s wisdom in requiring that one must suffer damages due to unlawful conduct as a prerequisite to an award of prejudgment interest is apparent. Unlike most civil cases, this is not a case where one party failed to live up to its legal duties or obligations while the other party was forced to wait for compensation pending the slow progress of litigation. It is not a case where “justice delayed was justice denied.” Rather (with the potential minor exceptions discussed above), the Pipeline did not breach its agreement to pay rent here. Instead, it proceeded upon a preset plan that each side had anticipated and had stipulated to, knowing full well that during the time litigation was underway no provision required one side to pay ongoing interest to the other. As to this aspect of the case, neither side suffered a “detriment from the unlawful act or omission of another.” (§ 3281.)
We recognize that, while waiting for this case to resolve, the Pipeline had the use of funds that ultimately would go to the Railroad as rent, and that the Railroad would have had the benefit of those funds had the rent eventually ordered by the court been paid earlier. But prejudgment interest is a creature of statute, and its terms are defined by the Legislature. By definition, no damages were suffered by the Railroad when the Pipeline paid only the baseline rent (plus CPI increases) during the pendency of this litigation, since no unlawful act or omission occurred as the parties proceeded according to their mutual agreement. Thus, there could be no prejudgment interest under section 3287(b).
The trial court erred in awarding interest under section 3287(b), and that part of the judgment is reversed.
V. Conclusion
Over 150 years ago, the United States government began providing private companies with corridors through public lands in order to build and operate transcontinental railroads. As decades passed, these land corridors became
The Railroad brought this action for declaratory relief, asking the court to determine the amount of rent owed by the Pipeline for easements that run through the right-of-way “property of the railroad.” At a minimum— especially given the history, law, circumstances, and context of how the Railroad obtained its rights-of-way in the first place — the Railroad has the burden to prove what the “property of the railroad” is.
The trial court concluded that the Railroad had sufficient interests in the property to grant subsurface easements and collect rent from the Pipeline. But where the Railroad acquired its property interests solely from the Congressional Acts, the trial court’s judgment was in error. Since the acts alone did not provide the Railroad with sufficient property rights to rent the subsurface to the Pipeline, in some instances the Railroad may be seeking to collect rent for the use of property owned by others — either private third parties or the federal government (or its grantees).
This will come as no surprise to the Railroad, which was aware long before the 1994 AREA of potential problems with renting out the subsurface to the Pipeline. As its in-house attorney counseled in the mid-1970’s, “in view of the unfavorable trend of California decisions interpreting grants to railroad companies,” he believed that “consideration need be given as to the advisability of granting to [the Pipeline] an easement for pipelines in the property classified as limited title and easement for railroad purposes . . . unless it is feasible for Railroad to take steps necessary to establish that it is the fee owner of the right of way in which [the] pipeline is located.” Counsel had presciently anticipated the problem here: The Railroad failed in this litigation to take the steps necessary to establish its fee ownership or other interest in the property sufficient to entitle it to grant easements in the property where the pipelines are located. To the extent that the trial court awarded rent to the Railroad without determining whether it had such ownership or interest, it erred and its judgment must be reversed.
However, there was evidence presented at trial that in some sections of the rights-of-way the Railroad did have sufficient property interests in the subsurface to justify the collection of rent. As noted above, there are multiple ways in which this may have occurred. But the trial court made no specific findings in that regard. The case must be remanded in order for it to do so.
In short, the Railroad seeks rent from the Pipeline for the use of certain property. To collect that rent, the Railroad must demonstrate what interest it has in that property.
DISPOSITION
As to the judgments on the complaint and the two cross-complaints:
(1) The trial court’s finding as to the total fee value for purposes of its ATF calculation is reversed and remanded. Consistent with the opinions expressed herein, the court is directed to determine the total fee value of those parcels of land in which the Railroad had sufficient interest to entitle it to collect rent on the Pipeline’s easements between January 1, 2004, and December 31, 2013. As to those parcels of land in which the Railroad had sufficient interest to entitle it to collect rent on the Pipeline’s easements but were sold to third parties prior to 1994, the trial court shall determine the total fee value of those parcels and whether, at or before the time of sale, the Railroad reserved the right to collect rent on those easements beyond January 1, 2004. The trial court may take additional evidence, at its discretion. After making the above determinations, the court is directed to reapply them to its ATF calculation.
(2) The trial court committed no error with respect to its determinations regarding issue preclusion; use of the ATF method; calculations of the rental rate, the enhancement factor, and the use factor; and the dates of abandonment of certain easements by the Pipeline. These issues need not be relitigated on remand.
(3) That part of the judgment awarding prejudgment interest under section 3287(a) is reversed and remanded in order for the trial court to determine whether, consistent with the views herein, the Pipeline was liable for the payment of rent on the reserved easements, the abandoned easements, or Line Section 101, which rent it unilaterally withheld; and, if so, the prejudgment
Each side to bear its own costs on appeal.
Rubin, Acting P. J., and Flier, J., concurred.
A petition for a rehearing was denied December 5, 2014, and respondent’s petition for review by the Supreme Court was denied January 21, 2015, S223179.
Notes
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
An earlier judgment determined the rent due from 1994 to 2004.
A checkerboard pattern was utilized, where odd-numbered parcels were granted to the railroads as their property, to sell and finance their venture. As to the even-numbered parcels, the railroads were granted a right-of-way “through the public lands ... for the construction of [the] railroad” (Pacific Railroad Act of 1862, ch. 120, §§ 2, 3, 12 Stat. 489.)
After the General Right-of-Way Act of 1875 was enacted, several more right-of-way acts were passed relating to railroads. None of these acts conveyed a greater interest in the property than tile 1875 acts. For convenience, and to be consistent with the terms used in the case law, when referring to the “1875 Act” we mean the Right-of-Way Act of 1875 and its progeny (even if enacted in subsequent years). And when referring to the “pre-1871 Acts” we mean the earlier land grant acts.
In 1988, the railroad entity was purchased by Rio Grande Industries and operated as a subsidiary of that company until 1996, when Union Pacific Railroad Company acquired it.
The original agreements in the 1950’s called for the easements not to be recorded.
This court takes judicial notice of the May 12, 1997 judgment appealed from in
Southern Pacific Transportation Co. v. Santa Fe Pacific Pipelines, Inc.
(1999)
As used by the trial court, the “subject property” referred to the land containing the pipeline easements. The “property of the railroad” is a broader term referring to railroad rights-of-way generally.
In the interim, the Pipeline has made a motion to augment the record to include documents that had been presented at trial when the question of the Railroad’s property rights was being litigated. The Railroad objected to augmentation of the record. Since the additional record bears on the issues raised in the supplemental briefing, and since it contains nothing that has not already been presented to the trial court, the motion to augment the record is granted.
Or, put another way, sticks were withheld.
The Railroad attached to its supplemental brief a Department of the Interior decision of January 5, 1989, saying that in order to determine the scope of the Railroad’s right to permit subsurface installations, “it is necessary to examine the statutory terms of [the Railroad’s] rights-of-way grants. Then we must turn to the Supreme Court and lower court authority interpreting the scope of the railroad rights-of-way.”
(Proposed Installation of MCI Fiber Optic Communications Line Within Southern Pacific Transportation Co.’s Railroad Right-of-Way
(Jan. 5, 1989, M-36964)
Contrary to the Railroad’s contention, we do not raise these questions sua sponte, nor has the Pipeline waived its claims regarding this issue. Challenges to the Railroad’s property rights were raised again and again at trial by the Pipeline. The record is replete with pleadings, motions, and arguments addressing the nature of the Railroad’s rights-of-way as granted by the Congressional Acts. The trial court’s conclusions regarding title are reflected in its multiple rulings and its statement of decision, which are encompassed by the Pipeline’s notice of appeal.
During the debate on the General Right-of-Way Act of 1875, Senator Stewart of Nevada stated, “If [railroad companies] do not build a railroad and do not use [the easement] for that purpose, they do not have it at all. The title is for this purpose.” (Remarks of Sen. Stewart, 2 Cong. Rec. 2900 (1874); see
Geneva Rock Products, Inc. v. U.S.
(2012)
“In explaining why the House Public Lands Committee had inserted a clause similar to § 4 of the 1875 Act in a special right of way bill considered in 1872, Congressman Slater stated:
“ ‘The point is simply this: the land over which this right of way passes is to be sold subject to the right of way. It simply provides that this right of way shall be an incumbrance upon the land . . . ; that those who may afterward make locations for settlement shall not interfere with this right of way.
“ ‘Mr. Speer, of Pennsylvania. It grants no land to any railroad company?
“ ‘Mr. Slater. No, sir.’ Cong. Globe, 42d Cong., 2d Sess. 2137.
“And in the House debate on the 1875 Act itself, Congressman Hawley said:
“ ‘It simply and only gives the right of way. It merely grants to such railroad companies as may be chartered the right to lay their tracks and run their trains over the public lands; it does nothing more.’ 3 Cong. Rec. 407.
“The earliest administrative construction of the 1875 Act plainly stated that the railroad received an easement rather than a fee. The Land Department Circular of January 13, 1888, said:
“ ‘The act of March, 3, 1875, [sic] is not in the nature of a grant of lands; it does not convey an estate in fee, either in the ’right of way’ or the grounds selected for depot purposes. It is a right of use only, the title still remaining in the United States.’ 12 L. D. 423, 428.” (Union Pacific, supra,353 U.S. at p. 129, fn. 4 (dis. opn. of Frankfurter, J.).)
Certainly,
Brandt
appears to describe the 1875 Act under traditional property law as a “ ‘nonpossessory right to enter and use land in the possession of another.’ ” (Brandt;
supra,
A “team track” consists of railroad tracks that are used to switch railroad cars off the main line for the purpose of storing them, in order to allow the owner of the freight to unload it from a team driveway with vehicular access. (Atchison, supra, 275 Cal.App.2d at pp. 460-461.)
Civil Code section 806 states: “The extent of a servitude is determined by the terms of the grant, or the nature of the enjoyment by which it was acquired.”
The Railroad also contends that Brandt confirmed the holding in Townsend. But Brandt merely discusses Townsend as part of the evolution of the rights-of-way cases involving pre-1871 Acts, on its way to pointing out that it was not applicable to the case before it — which involved an 1875 Act easement. Nothing in Brandt implies that the court disavowed anything in Union Pacific’s holding that had undermined the limited fee concept.
The Railroad states that “[t]hese facts are not in the record because this issue was never raised below but they are not subject to serious dispute.” But as will be seen below, the question of what constituted a railroad purpose was discussed at length during the trial.
While both Great Northern and Chicago & North Western Railway Co. were cases involving the 1875 Act, we see nothing in the legislative history of either act indicating that the phrase “railroad purpose” should be defined differently in the pre-1871 Acts.
Congress actually created transcontinental railroads from the early acts. Indeed, section 1 of the Pacific Railroad Act of 1862 “created and erected into a body corporate and politic in deed and in law, by the name, style, and title of ‘The Union Pacific Railroad Company.’ ”
The Railroad also claimed that a tenant may not challenge a landlord’s title, pursuant to Evidence Code section 624. Like the trial court, we are not persuaded. Certainly, where there is a mistake of law regarding a landlord’s title, it has long been recognized that the rule preventing a tenant from denying his title does not apply.
(Tewksbury v. Magraff (1861)
We have pointed out that raising revenue for its shareholders does not fit the definition of a railroad purpose under the Congressional Acts. However, the Railroad’s in-house expert on title issues had another view at trial, where he testified as follows:
“[COUNSEL FOR THE RAILROAD:] One of the phrases that we heard very often over the last few days was references in title grants of various types utilizing the phrase ‘for railroad purposes.’ [][] I don’t think Mr. Kerr ever asked you what that phrase means to your understanding. Could you please explain that to us? [¶] . . . [¶]
“[THE WITNESS:] To me, ‘railroad purposes’ means whatever the railroad determines beneficial for its operations.”
“[COUNSEL FOR THE RAILROAD:] Mr. Oakman, when you used the term that I think Mr. Kerr helped you to use as your definition of ‘railroad purposes,’ is it accurate that the definition you’ve just used is your understanding of ‘railroad purposes’ based on your years of experience working with the two railroads?
“[THE WITNESS:] I think that’s true. Q] And if I can further explain, I think, you know, when I go look for a definition of anything, whether a company or not, I would look for the purpose of that company, what that company is all about, what their mission statement is. HI] And to me, the railroad keeps telling us that their mission statement is to further enhance the value of the shareholders. H[] To me, that’s the purpose of the railroad, to further enhance the value of the shareholders.
“[THE COURT:] So are you saying that anything that the railroad determines will further enhance the value to the shareholders is railroad purposes?
“[THE WITNESS:] I think within the law, yes, it would be.”
See, part III.C., post, re pre-1994 sale of properties.
The easement rent derived from the ATF formula is shown in the following equation: (total land value) x (enhancement factor) x (use factor) x (rate of return) = rent.
The ATF method was explained in both Santa Fe I and Santa Fe II.
The Pipeline’s desire to lock in the 1994 findings regarding the enhancement and use factors is understandable. In 1994, the temporary judge found an enhancement factor of 1 (i.e., no multiplier) and a use factor of 40 percent. (Santa Fe II, supra, A103990.) However, the temporary judge in 2004 found an enhancement factor of 1.25 and a use factor generally of 60 percent (with the exception of a few properties, where a 70 percent use factor was utilized). Since the rent is the product of four factors, any change in one of them is multiplied and magnified proportionally.
Of course, if the facts or circumstances upon which the expert based his or her opinion changed between the two proceedings, this could raise a question of whether issue preclusion was applicable.
When it comes to real estate values, a court may even take judicial notice that they do not remain constant.
(Silva v. City & County of San Francisco
(1948)
The idea of recalculating the rent at regular intervals began at the very beginning, with the master agreements of 1955 and 1956.
The comment by the Court of Appeal in the 1994 case referred to the trial court’s assessment of the use factor, discussed below.
The main parcel in dispute is the Iron Horse Trail (Line Section 16), which accounts for over $1 million of the 2004 base-year rent found by the trial court. The other pre-1994 properties include sales to the State of California (Sacramento), LACTC Taylor Yard, LACTC Santa Ana Branch Crossings, Brisbane Terminal, as well as the Kern County Land Company.
At trial, there was also a dispute about when the Pipeline abandoned certain easements, and when the obligation to pay rent on those easements ceased. While the trial court made findings in that regard, neither side raised the issue on appeal.
While claiming it was the owner of the property, the Railroad also argued that it did not need to own the property in fee in order to grant the easements, that it did not need to prove ownership to collect the rent, and that it was entitled to the rent “whether or not [the easements] were on property owned by [the Railroad].”
The trial court’s ruling came with the proviso that Pipeline need not continue to pay rent to the Railroad if a subsequent owner presented a valid claim demonstrating the right to collect the rent instead. The court did not address the issue of whether the subsequent owner would be entitled to payment of back rent already paid by the Pipeline to the Railroad.
All future undesignated statutory references are to the Civil Code.
Section 3287(a) states, “A person who is entitled to recover damages certain, or capable of being made certain by calculation ... is entitled also to recover interest thereon ....” Section 3287(b) states, “Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon . . . .”
The Railroad implicitly concedes that there was no wrongful or unlawful act by Pipeline in proceeding via the AREA dispute resolution process, since it makes no claim to the contrary in any of its briefs, either in the trial court or on appeal.
The sentence cited by the Railroad in California Jurisprudence Third regarding “any judgment” refers to a 1902 case,
Keyes
v.
Moy Jin Mun
(1902)
The Railroad also cites
Moreno v. Jessup Buena Vista Dairy
(1975)
Line Section 101 was part of the subject property in 2003, when the Pipeline transferred its rights to Conoco Phillips, along with its rights in the subject easement for that line section.
There is no dispute that the Pipeline paid the rent due based on the rent as of December 31, 2003, plus the CPI adjustment (with the minor exceptions already noted). The back rent accrued because the increase in the amount due had not yet been determined by the trial court in this litigation.
Under the statute, however, no prejudgment interest could accrue on unliquidated amounts prior to the date the complaint was filed. (§ 3287(b).)
This side letter is not the AREA itself, but is a modification of it that clarifies certain terms. The Railroad’s complaint explicitly seeks a finding of the fair market value of the easements “as amended and restated in the AREA (and subsequent modifications).” Thus, this subsequent modification is part of the contract upon which the Railroad brings suit.
Where parties do not address prejudgment interest in their agreement, it may still be awarded in the event of litigation. (§ 3289.)
The AREA actually provides that if the parties cannot agree on the amount of the rent increase, “upon request of either party” they shall stipulate to a judicial reference proceeding. (Italics added.) This is not a case where one side was “wronged” and the other side sought compensation. Under the AREA, if the parties could not agree on the new rent, either side could have commenced litigation and the other side would have been called “the defendant.”
When the Pipeline appealed the superior court’s denial of its petition to compel arbitration, this court described the Railroad as the “victorious party.” (Santa Fe Pacific Pipelines, Inc. v. Union Pacific Railroad Co. (June 19, 2013, B240842) [nonpub. opn.].) That is a fair description under the circumstances.
The First District Court of Appeal denied prejudgment interest, but on the grounds that the Railroad’s claim was untimely. It did not reach the merits of whether it was entitled to such interest. (Santa Fe III, supra, A113858.)