Free Stipulation - District Court of Federal Claims - federal

Case 1:03-cv-00785-MBH

Document 87

Filed 12/13/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS WARREN BERES, et al., ) ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ______________________________)

No. 03-785L, as Related to MOREL (No. 04-1467L), and BROWN (No. 04-1473L). Honorable Marian Blank Horn

STIPULATION Plaintiffs in the above-referenced consolidated cases in Morel, No. 04-1467L, and Brown, No. 04-1473L (collectively "Plaintiffs") and the Defendant,1/ through their respective counsel, hereby stipulate and agree as follows: 1. The railroad right-of-way was established through Government Lot 2, Section 7, Township 24 North, Range 6 East, W.M., in King County, Washington in approximately 1887 or 1888 by the Seattle, Lake Shore & Eastern Railway Company (the "SLS&E").2/ 2. No deed conveying legal title in the right-of-way to the SLS&E being found, the Parties stipulate and agree that the Railroad acquired its initial interest in the right-of-way through Government Lot 2, Section 7, Township 24 North, Range 6 East, W.M. by adverse possession. The Parties further stipulate and agree that, under Washington State law, the initial interest acquired by adverse possession was an easement in the right-of-

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Plaintiffs and Defendant comprise the Parties to this Stipulation.

The SLS &E and its successors in interest, the Seattle and International Railway Company ("S&I"), the Northern Pacific Railroad Company ("NPRR"), and the Burlington Northern and Santa Fe Railway Company ("BN") collectively are referred to as the "Railroad."

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Case 1:03-cv-00785-MBH

Document 87

Filed 12/13/2006

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way through Government Lot 2, Section 7, Township 24 North, Range 6 East, W.M.3/ 3. After the Railroad acquired an easement in the right-of-way by adverse possession, certain successors in title to the patentee conveyed by deed an interest in sections of the right-ofway in Government Lot 2, Section 7, Township 24 North, Range 6 East, W.M. to the Railroad. It remains to be determined which Plaintiffs are affected by such conveyances and, if so, how their interests are affected. These stipulations, above, are expressly based upon the facts and information currently available and known to the Parties, and are subject to modification by agreement among the Parties should additional factual information come to light that affects the accuracy of these stipulations. Additionally, these stipulations do not mean, and should not be construed to mean, that the Plaintiffs own or owned the fee simple interest in any portion of the subject right-of-way. Whether the Plaintiffs own or owned the fee simple interest in any portion of the right-of-way will be determined in conjunction with the delineation of the chains of title, at a later date. Because this is an electronic filing, all counsel of record have authorized the undersigned counsel for the Defendant to file this joint submission on their behalf.

This stipulation expressly is limited to the initial acquisition of the right-of-way in the subject Government Lot 2 by the SLS&E and/or the S&I, the immediate successor in interest to the SLS&E. This stipulation is in no way an admission of liability with respect to any Plaintiff, and should not be construed as such. This Stipulation is the result of arms-length negotiation and compromise between the Parties to this action, and is not intended in any way to create precedent with respect to other related actions before this Court, or with respect to any other action that has been or may be brought by any landowner-Plaintiff, or by any similarly situated landowner, whether in state or federal court. -2-

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Case 1:03-cv-00785-MBH

Document 87

Filed 12/13/2006

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Respectfully submitted this 13th day of December, 2006. ACKERSON KAUFFMAN FEX , PC Sue Ellen Wooldridge Assistant Attorney General Environment & Natural Resources Division /s/ Bruce K. Trauben Bruce K. Trauben Kelle Acock Natural Resources Section Environment &Natural Resources Division U.S. Department of Justice P.O. Box 663 Washington, D.C. 20004-0663 Telephone: (202) 305-0238 Facsimile: (202) 305-0267 Attorneys for Defendant, the United States

/s/ Cecilia Fex Cecilia Fex ACKERSON KAUFFMAN FEX , PC 1250 H Street, NW, Suite 850 Washington, DC 20005 Telephone: (202) 833-8833 Facsimile: (202) 833-8831 Counsel for Plaintiffs in Brown

GROEN STEPHENS & KLINGE LLP

/s/ John M. Groen John M. Groen, Esq. GROEN STEPHENS & KLINGE LLP 11100 NE 8th Street, Suite 750 Bellevue, WA 98004 Telephone: (425) 453-6206 Facsimile: (425) 453-6224 Counsel for Plaintiffs in Morel

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