Free Stipulation - District Court of Federal Claims - federal

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS _______________________________________ ) RON AND BETTY BLENDU, et al., ) ) Plaintiffs, ) ) No. 01-718 L v. ) ) Judge Emily C. Hewitt UNITED STATES OF AMERICA, ) ) ) Defendant. ) _______________________________________ ) REVISED TITLE STIPULATIONS (MODIFIED May 30, 2007) The stipulations set forth herein replace the title-related stipulations previously filed by the parties that the parties have jointly moved to withdraw.1 The stipulations set forth below are expressly based on facts and information available and known to the parties at this time, and are subject to modification or revocation by either party should additional factual information come to light that affects the accuracy of these stipulations. In addition, if there is an intervening change in the law that affects the stipulations set forth herein while this case is still pending, then either party may seek to be relieved of the stipulations on that ground. Some of the parties' stipulations are based on the decisions in the related case of Hash v. United States, No. CV-99-324-S-MHW (D. Idaho), which involves the same railroad right-ofway that is at issue in this case. In Hash, the parties categorized the original conveyances to the railroad into deed categories and then briefed the question of whether the subject deeds conveyed
1

The withdrawn stipulations are set forth in the parties' Stipulations Regarding Title Matters (filed Jan. 22, 2007) (Doc. 35), and in their Second Set of Stipulations Regarding Title Matters (filed Feb. 5, 2007) (Doc. 37). 1

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an easement or fee simple title to the railroad. In a memorandum decision of November 21, 2001, the district court held that the deeds for deed categories 4 through 9 conveyed fee simple title to the railroad. See Hash v. United States, No. CV-99-324-S-MHW, Mem. Decision at 1118 (D. Idaho Nov. 21, 2001) (Exhibit 1). The Hash plaintiffs subsequently appealed the district court's interpretation of the deeds for categories 5, 6 and 8, but did not appeal the district court's interpretation of categories 4, 7 and 9. Plaintiffs herein also do not challenge the district court's interpretation of categories 4, 7 and 9. On appeal, the Federal Circuit vacated the district court's ruling as to categories 5, 6 and 8, and remanded for redetermination in light of an intervening decision from the Idaho Supreme Court. Hash v. United States, 403 F.3d 1308, 1319-21, 1323 (Fed. Cir. 2005). On remand, the district court interpreted the deeds in deed categories 5, 6 and 8 and held that, under Idaho law, those deeds conveyed fee simple title to the railroad. Hash v. United States, No. CV-99-324-SMHW, Mem. Decision at 6-17 (D. Idaho Aug. 18, 2006) (Exhibit 2). That interlocutory decision remains subject to appeal. The parties herein do not agree as to the applicability of this Hash decision to certain deeds in this case, and have thus proposed further briefing as to the nature of the interest acquired by the Railroad pursuant to several deeds that fall within deed category 6.2 This proposed briefing schedule is set forth in the parties' Joint Status Report and Scheduling Proposal, filed this date (Doc. 51).

This case involves several Category 6 deeds. There are no Category 5 or Category 8 deeds at issue in this case. 2

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Stipulations Applicable to All Plaintiffs (Background Facts) 1. The railroad right-of-way at issue in this case ("the subject right-of-way") is located between Weiser and New Meadows, Idaho. This right-of-way is approximately 83 miles in length and generally follows the path of the Weiser River. 2. Between 1899 and 1900, the Pacific and Idaho Northern Railway (the "Railroad") commenced construction of its railroad line on the subject right-of-way. Construction of the Railroad's line reached Cambridge in December 1900, Council in March of 1901, and Meadow Valley or "New Meadows" in 1911. 3. The Railroad acquired its interest in certain portions or segments of the right-ofway on which its line was constructed by deed. The interpretation of these deeds is governed by Idaho state law. 4. On March 17, 1995, citing the closure of a Boise Cascade sawmill in Council and an anticipated loss of 75% of the rail traffic on the Weiser to New Meadows line, the Railroad filed a petition with the Surface Transportation Board ("STB") seeking an exemption under 49 U.S.C. § 10505 from the prior approval requirements of 49 U.S.C. § 10903-04 to abandon the 83-mile line. 5. By a decision served on November 1, 1995, the STB granted the Railroad's petition, subject to several conditions. 6. Several groups filed requests for the issuance of a Notice of Interim Trail Use ("NITU"), along with "Statements of Willingness to Assume Financial Responsibility" for the right-of-way, and the Railroad indicated it was willing to 3

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negotiate a railbanking and interim trail use agreement pursuant to the National Trails System Act, 16 U.S.C. § 1247(d). 7. On December 28, 1995, the STB issued a NITU that reopened the exemption proceedings and modified its decision of November 1, 1995, to allow the parties 180 days to negotiate a railbanking and interim trail use agreement. The NITU also authorized the Railroad to discontinue service on the line and to "salvage track and track materials consistent with interim trail use/rail banking." 8. The Railroad reached a Trails Act agreement with the Friends of the Weiser River Trail ("FWRT"), and quitclaimed its interest in the subject right-of-way to FWRT on June 17, 1997. Subject to the Trails Act and the conditions set forth in the NITU, the right of way presently is owned and operated by FWRT and is known as the "Weiser River Trail." 9. The alleged date of taking in this case is December 28, 1995, which is the date on which the STB issued its decision and NITU. See Caldwell v. United States, 391 F.3d 1226 (Fed. Cir. 2004), cert. denied, 126 S. Ct. 366 (2005); Barclay v. United States, 443 F.3d 1368 (Fed. Cir. 2006). Stipulations Applicable to Plaintiffs Ron and Betty Blendu 10. On December 28, 1995, Plaintiffs Ron and Betty Blendu were the owners of certain real property located in Washington County, Idaho. Portions of this property abut or are traversed by the subject right-of-way. The Blendus' predecessors-in-title include: (1) Francis M. and Pauline Potter, (2) Andrew M. and Ona Reed, and (3) John P. and Eva Hallstrom. 4

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11.

On July 22, 1899, Francis M. and Pauline Potter conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Potter deed"). The Potter deed, which is attached hereto as Exhibit 3, was recorded in Washington County, Idaho at Book 10, Page 91.

12.

The Potter deed is comparable to the warranty deeds in Hash deed categories 4, 7 and 9, which were held by the district court to convey fee simple title to the Railroad. 2001 Mem. Decision at 11, 15 (Ex. 1). Under Idaho law, as interpreted and applied in Hash, the Potter deed conveyed fee simple title to the strip of land described therein to the Railroad.

13.

Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Potter deed (Ex. 3), the Blendus have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Blendus' takings claim shall be dismissed by order of the Court.

14.

On September 6, 1899, Andrew M. and Ona Reed conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Reed deed"). The Reed deed, which is attached hereto as Exhibit 4, was recorded in Washington County, Idaho at Book 10, Page 161.

15.

The Reed deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Reed deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal. 5

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16.

On August 23, 1899, John P. And Eva Hallstrom conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Hallstrom deed"). The Hallstrom deed, which is attached hereto as Exhibit 5, was recorded in Washington County, Idaho at Book 10, Page 145.

17.

The Hallstrom deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Hallstrom deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

18.

In addition to the lands described in paragraphs 11 ­ 16, the Railroad acquired its interest in two segments of the portion of the right-of-way that traverses the land owned by the Blendus under the General Railroad Right-of-Way Act of March 3, 1875, ch. 152, 18 Stat. 482 (codified as 43 U.S.C. §§ 934-939 (1982)) (the "1875 Act"). The segments acquired under the 1875 Act traverse the SW1/4 SW1/4 of Section 33 in T14N R3W and the NE1/4 NE1/4 of Section 5 in T13N R3W. The Court's ruling regarding liability as to these segments is set forth in the Court's Opinion of February 22, 2007 (Doc. 42).

19.

In addition to the lands described in paragraphs 11 ­ 17, the Railroad acquired its interest in a segment of the subject right-of-way that abuts or traverses the land owned by the Blendus in the N1/2 NW1/4 of Section 8 and in the SW1/4 SW1/4 of Section 5, both in T13N R3W, by adverse possession. The parties are not stipulating at this time to the nature of the interest that the Railroad acquired by adverse possession under Idaho law. 6

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Stipulations Applicable to Plaintiffs Dean and Velda Fairchild 20. On December 28, 1995, Plaintiffs Dean and Velda Fairchild were the owners of certain real property located in Washington County, Idaho. This property abuts or is traversed by the subject right-of-way. The Fairchilds' predecessors-in-title include: (1) William H. Male, (2) Marvin and Jane Kilborn, (3) Norman Girling, and (4) Adeline Day. 21. On May 2, 1900, William H. Male conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Male deed"). The Male deed, which is attached hereto as Exhibit 6, was recorded in Washington County, Idaho at Book 9, Page 445. 22. The Male deed was one of the representative deeds for Hash deed category 9. The district court held that the category 9 deeds, including the Male deed, conveyed fee simple title to the Railroad. 2001 Mem. Decision at 15 (Ex. 1). Under Idaho law, as interpreted and applied in the Hash decision, the Male deed conveyed fee simple title to the strip of land described therein to the Railroad. 23. Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Male deed (Ex. 6), the Fairchilds have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Fairchilds' takings claim shall be dismissed by order of the Court.

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24.

On August 29, 1899, Marvin Kilborn and Jane Kilborn conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Kilborn deed"). The Kilborn deed, which is attached hereto as Exhibit 7, was recorded in Washington County, Idaho at Book 10, Page 149.

25.

The Kilborn deed is comparable to the warranty deeds in Hash deed categories 4, 7 and 9, which were held by the district court to convey fee simple title to the Railroad. 2001 Mem. Decision at 11, 15 (Ex. 1). Under Idaho law, as interpreted and applied in the Hash decision, the Kilborn deed conveyed fee simple title to the strip of land described therein to the Railroad.

26.

Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Kilborn deed (Ex. 7), the Fairchilds have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Fairchilds' takings claim shall be dismissed by order of the Court.

27.

On August 29, 1899, Norman Girling conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Girling deed"). The Girling deed, which is attached hereto as Exhibit 8, was recorded in Washington County, Idaho at Book 10, Page 144.

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28.

The Girling deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Girling deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

29.

On July 18, 1899, Adeline Day conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Day deed"). The Day deed, which is attached hereto as Exhibit 9, was recorded in Washington County, Idaho at Book 10, Page 74.

30.

The Day deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Day deed, in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

Stipulations Applicable to Plaintiffs Milton and Lola Kerner 31. On December 28, 1995, Plaintiffs Milton and Lola Kerner were the owners of certain real property located in Washington County, Idaho. This property abuts or is traversed by the subject right-of-way. The Kerners' predecessors-in-title include Sarah J. Jeffreys. 32. On July 1, 1899, Sarah J. Jeffreys conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a warranty deed (the "Jeffreys deed"). The Jeffreys deed, which is attached hereto as Exhibit 10, was recorded in Washington County, Idaho at Book 10, Page 49.

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33.

The Jeffreys deed is comparable to the warranty deeds in Hash deed categories 4, 7 and 9, which were held by the district court to convey fee simple title to the Railroad. 2001 Mem. Decision at 11, 15 (Ex. 1). Under Idaho law, as interpreted and applied in the Hash decision, the Jeffreys deed conveyed fee simple title to the strip of land described therein to the Railroad.

34.

Because the Railroad acquired fee simple title to the right-of-way segment that was conveyed to it by the Jeffreys deed (Ex. 10), the Kerners have no ownership interest in this segment of the right-of-way and thus cannot pursue a claim that this segment was taken from them by operation of the Trails Act. The parties therefore stipulate that this portion of the Kerners' takings claim shall be dismissed by order of the Court.

Stipulations Applicable to Bruce and Julie Kerner 35. Bruce and Julie Kerner own certain property in Washington County, Idaho that abuts land owned by Plaintiffs Milton and Lola Kerner. However, the property owned by Bruce and Julie Kerner does not abut and is not traversed by the subject right-of-way. Accordingly, the parties stipulate that Plaintiffs Bruce and Julie Kerner do not have an ownership interest in the subject right-of-way and cannot pursue a takings claim in this case. The parties therefore stipulate that the takings claim of Bruce and Julie Kerner shall be dismissed by order of the Court. Stipulations Applicable to Plaintiffs Steven R. and Elsie B. Shumway 36. On December 28, 1995, Plaintiffs Steven R. and Elsie B. Shumway were the owners of certain real property located in Adams County, Idaho. This property 10

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abuts or is traversed by the subject right-of-way. The Shumway's predecessorsin-title include William M and Martha L. Glenn and William Hartley. 37. On August 16, 1905, William M. and Martha L. Glenn conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Glenn deed"). The Glenn deed, which is attached hereto as Exhibit 11, was recorded in Washington County, Idaho. 38. The Glenn deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Glenn deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal. 39. On August 16, 1905, William Hartley conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Hartley deed"). The Hartley deed, which is attached hereto as Exhibit 12, was recorded in Washington County, Idaho at Book D, Page 178. 40. The Hartley deed is comparable to the deeds in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Hartley deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal. Stipulations Applicable to Plaintiff Twila Harrison 37. On December 28, 1995, Plaintiff Twila Harrison was the owner of certain real property located in Washington County, Idaho. Portions of this property abut or are traversed by the subject right-of-way. Harrison's predecessors-in-title include George W. Hoffstatter. 11

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38.

On November 20, 1899, George W. Hoffstatter conveyed a strip of land in Washington County, Idaho to the Pacific and Idaho Northern Railway Company by a quitclaim deed (the "Hoffstatter deed"). The Hoffstatter deed, which is attached hereto as Exhibit 13, was recorded in Washington County, Idaho at Book 10, Page 403.

39.

The Hoffstatter deed was included in Hash deed category 6. The parties intend to brief the disputed question of what interest the Railroad acquired by the Hoffstatter deed in accordance with the schedule proposed in their separately filed Joint Status Report and Scheduling Proposal.

Dated: May 30, 2007 Respectfully submitted, MATTHEW J. MCKEOWN Acting Assistant Attorney General Environment & Natural Resources Division s/ Lary C. Walker LARY C. WALKER WALKER LAW OFFICE 232 East Main Post Office Box 828 Weiser, ID 83672 TEL: (208) 414-0390 FAX: (208) 414-0404 E-MAIL: [email protected] Attorney for Plaintiffs s/ Kristine S. Tardiff KRISTINE S. TARDIFF United States Department of Justice Environment & Natural Resources Division Natural Resources Section 53 Pleasant Street, 4th Floor Concord, NH 03301 TEL: (603) 230-2583 FAX: (603) 225-1577 E-MAIL: [email protected] Attorney for Defendant

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Appendix of Joint Exhibits to Revised Title Stipulations

Exhibit No. 1 2 3 4 5 6 7 8 9 10 11 12 13

Description Hash v. United States, No. CV-99-324-S-MHW, Mem. Decision (D. Idaho Nov. 21, 2001) Hash v. United States, No. CV-99-324-S-MHW, Mem. Decision (D. Idaho Aug. 18, 2006) Potter Deed Reed Deed Hallstrom Deed Male Deed Kilborn Deed Girling Deed Day Deed Jeffreys Deed Glenn Deed Hartley Deed Hoffstatter Deed

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Blendu v. US, No. 01-718L Revised Title Stipulations, Ex. 1

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Case 1:01-cv-00718-ECH Document 53-3 Case 1:99-cv-00324-MHW Document 169

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ROBERT HASH and GERLENE HASH, et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. )

) ) ) ) ) ) ) ) ) )

Case No. CV-99-324-S-MHW MEMORANDUM DECISION

Pending before the Court are the following motions: Defendant's Motion for Partial Summary Judgment regarding Categories 5, 6, 8, 14, and 15 (Docket No. 122); Plaintiffs' Cross Motion for Partial Summary Judgment regarding Categories 5, 6, and 8 (Docket No. 127); Plaintiffs' Motion for Reconsideration of Memorandum Decision (Docket No. 135); and Defendant's Motion for Clarification Regarding Proceedings on Remand regarding Categories 10, 12, and 13 (Docket No. 145). Having considered the record, the briefs of the parties, and oral argument, and being otherwise fully informed, the Court enters the following Order. BACKGROUND As previously set forth in its Memorandum Decision (Docket No. 88), Plaintiffs each own an interest in land that once constituted part of a railroad corridor operated by the Pacific
Blendu v. US, No. 01-718L Revised Title Stipulations, Ex. 2

Memorandum Decision - 1

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and Idaho Northern Railroad Company ("Pacific & Idaho" or "Railroad") between Weiser and New Meadows, Idaho, that has since been converted to interim use as a recreational trail (the "Weiser Trail") by order of the Interstate Commerce Commission ("ICC") under the provisions of the National Trails System Act, 16 U.S.C. § 1241, et seq., (the "Rails-to-Trails Act"). Plaintiffs alleged that conversion of their property that once constituted part of a railroad corridor for interim use as a recreational trail constituted a taking for which they are entitled to just compensation under the Fifth Amendment. The parcels were conveyed to the Railroad under various forms of documents arguably resulting in the Railroad's acquisition of various forms of property interests. However, Plaintiffs maintain that despite the form of conveyance, the Railroad acquired only an easement for railroad purposes that would have been terminated but for the Rails-to-Trails Act. As stated in the Court's decision, "[t]he briefing presently before the Court is limited to an examination of the original conveyances to the Pacific & Idaho for the purpose of determining the nature of the property interest acquired by Pacific & Idaho at the time of conveyance and the nature of the property interest, if any, retained by the original grantors." Mem. Dec. at 2 (Docket No. 88). In order to determine the nature of the property interest acquired by the Railroad and the nature of the property interest, if any, retained by the original grantors, this Court previously examined the original conveyances to the Railroad, categorized them by stipulation of the parties according to the methods by which the Railroad obtained its rights to use the corridor, and entered its decision setting forth its determination with regard to each category. In reaching its decision, the Court was cognizant of the fact that deeds usually contain several distinct parts: (1) the granting clause, which is found in the premises of the deed; (2) the consideration for the

Memorandum Decision - 2

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conveyance; (3) the descriptive clause, which generally follows the granting clause and provides a more detailed description of the property conveyed; and (4) the habendum clause. See 23 Am.Jur.2d Deeds §§ 18-24 (1983). The Court was also aware in examining each of these clauses, that the presence or absence of specific terms, such as "right of way" or "as long as," would be important in determining the intent of the parties. The Court ruled in favor of Defendant as to Categories 1, 5, 6, 7, 8, 9, 10, 12, 13, 14, and 15 finding that the Railroad acquired fee title. Plaintiffs thereafter appealed those portions of the Court's decision pertaining to Categories 1, 5, 6, 8, 14, and 15 to the Federal Circuit Court of Appeals which reversed in part, vacated in part, and remanded for further proceedings. See Hash v. United States, 403 F.3d 1308 (Fed. Cir. 2005) (Docket No. 116). DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT CATEGORIES 5, 6, 8, 14, AND 15 The Court had previously found that the deeds in Categories 5, 6, 8, and 14 conveyed fee title to the Railroad rather than an easement. The Court's Memorandum Decision did not address Category 15, but the Federal Circuit decision included it with Categories 5, 6, and 8. The Federal Circuit remanded these categories to allow this Court to consider whether the Idaho Supreme Court decision in Neider v. Shaw, 65 P.3d 525 (Idaho 2003), issued after this Court's initial decision, would change its analysis that the deeds in those categories conveyed fee title to the Railroad.1 Defendant identifies the threshold question in this case as whether Plaintiffs have an ownership interest in the right of way entitling them to compensation. Defendant contends that

As indicated in the parties' briefing, Plaintiffs do not seek review of Category 14, and the deeds in Category 15 overlap with the deeds in Categories 5, 6, and 8 and need not be considered separately. Memorandum Decision - 3

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each of the representative deeds in question is unambiguous and conveyed fee simple title to the Railroad. Furthermore, Defendant contends that Neider, while reaffirming long-established principles of deed interpretation under Idaho law, is not controlling because the deed at issue in Neider is substantively distinguishable from the deeds at issue here. The Neider court neatly summarized Idaho law with respect to construing documents conveying an interest in land: When construing an instrument that conveys an interest in land, courts seek to give effect to the intent of the parties to the transaction. Daugharty v. Post Falls Highway Dist., 134 Idaho 731, 735, 9 P.3d 534, 538 (2000) (citing Gardner v. Fliegel, 92 Idaho 767, 770, 450 P.2d 990, 993 (1969)). The intent of the parties is determined by viewing the conveyance instrument as a whole. Id. (citing Doyle v. Ortega, 125 Idaho 458, 461, 872 P.2d 721, 724 (1994)). Interpretation of an unambiguous conveyance instrument is a question of law to be settled by its plain language. City of Kellogg v. Mission Mtn. Interests Ltd., Co., 135 Idaho 239, 243, 16 P.3d 915, 919 (2000). Interpretation of an ambiguous deed is a question of fact to be settled by the language in the conveyance instrument and the facts and circumstances of the transaction. Id. Whether a deed is ambiguous is a question of law. Id. at 244, 16 P.3d at 920. Ambiguity exists only if language of the conveyance instrument is subject to conflicting interpretations. Id. Neider, 65 P.3d at 530. A. Neider Decision

Neider involved a conveyance instrument to a railroad which used terms such as "grant," "bargain," and "sell" but which contained the following handwritten language: Provided: nevertheless that this deed is made for right of way, station, sidetrack and warehouse purposes. Should [the Railroad] fail to establish and maintain station and sidetrack, this deed shall be null and void and said land shall revert back to the said J. Fremont Bow and C.A. Bow, his wife, or their legal heirs. Neider, 65 P.3d at 527. Based on that language, the Court concluded,
Memorandum Decision - 4

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In this case, a substantive provision of the conveyance instrument, in handwriting, grants a "right of way" to the Railroad, which this Court has identified as language that creates an easement. The conveyance instrument from the Bows to the Railroad granted an easement to the Railroad rather than a fee simple. Id. In making its determination that the instrument conveyed an easement rather than fee title, the Court relied on its prior holding in C&G, Inc. v. Rule, 25 P.3d 76 (Idaho 2001). C&G involved two deeds containing granting and habendum clauses stating that the grantor, in exchange for consideration: 1. Thomas Deed: [D]oes grant, sell and convey unto the said Idaho Northern Railway Company, Limited, the following described piece, parcel of land, to wit: A strip, piece or parcel of land one hundred feet in width, situated in the North West quarter (NW 1/4 ) of Section seventeen (17) . . . . To Have and to Hold, the said above described premises unto the said Idaho Northern Railway Company, Limited, its successors and assigns forever. Id. at 78. 2. Cheney Deed: [S.F. Chaney] does grant, sell and convey unto the said Idaho Northern Railway Company, Limited, the following described piece, parcel of land one hundred feet in width, situated in the West one half (W 1/2 ) of the Northeast quarter (NE 1/4) . . . . To have and to hold, the said above described premises unto the said Idaho Northern Railway Company, Limited, its successors and assigns forever. Id. In C&G, the lower court had determined that the use of the words "Right of Way" on the
Memorandum Decision - 5

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cover page created an ambiguity although it ultimately ruled that the railroad had acquired fee title. The Idaho Supreme Court disagreed that an ambiguity existed and determined that the language on the cover sheet was merely descriptive of the strip of property being conveyed. It held that those words created no ambiguity because they were not in the granting or habendum clauses of the deeds. Id. at 79-80. In other words, that court found that the deeds conveyed fee simple title to the railroad. B. Application of Neider to Category 5 Deeds (Approximately 8 parcels)

One of the Category 5 deeds reads, in part, as follows: [Grantors] do grant, bargain, sell, convey and confirm unto [Pacific & Idaho], and to its successors and assigns forever, all the following described real estate . . . . A perpetual right of way through, over, and across [described land] . . . . the said right of way so conveyed being fifty feet wide each side of the center line of the railway belonging to [Pacific & Idaho] as the same is now located, constructed and operated on the ground; said right of way being one hundred (100) feet wide along the entire route across said premises occupied and used by [Pacific & Idaho]. TOGETHER with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all estate, right, title and interest in and to the said property, as well in law as in equity, of the said [grantors]. TO HAVE AND TO HOLD, all and singular the above mentioned and described premises, together with the appurtenances, unto [Pacific & Idaho] and to its successors and assigns forever. And the [grantors] and their heirs, the said premises in the quiet and peaceable possession of [Pacific & Idaho] its successor and assigns, against the [grantors] and their heirs, and against all and every person and persons whomsoever, lawfully claiming or to claim the same, shall and will warrant and by these presents forever defend.
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J. App. 13.2 Another sample deed for Category 5 reads, in part: [Grantors] have granted, bargained and sold and by these presents do grant, bargain, sell, convey and confirm until [Pacific & Idaho], and to its successor and assigns forever, all the following described real estate . . . . A right of way one hundred feet in width being fifty feet on each side of the center line of the survey of [Pacific & Idaho] . . . and [Pacific & Idaho] will also put a box across the road bed upon such right of way . . . and will fence such right of way. Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all estate, right, title and interest in and to the said property, as well in law as in equity, of said parties of the first part. Id. at 14. In Neider, the Idaho Supreme Court, citing C&G, stated, "This Court, however, recognized that use of the term right-of-way in the substantive portions of a conveyance instrument creates an easement. (Citation omitted)." Neider, 65 P.3d at 530. What did the Neider court mean when it said if the term "right of way" is used in the "substantive" portion of the deed an easement is created? With that broad statement, did the Neider court mean to hold that if the words "right of way" are ever used in any part of deed, then an easement is created? The Court does not believe the Idaho Supreme Court intended to articulate such a broad rule. The Court further believes that its ruling is tempered by the language in the deed that was before the Idaho Supreme Court in that case.

2

J.App. refers to the Joint Appendix (Docket No. 82) filed on June 1, 2001.

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The Idaho Supreme Court itself has stated that its opinions "must be considered and construed in the light of the rule that they are authoritative only on the facts on which they are founded. General expressions must be taken in connection with the case in which those expressions are used. `There is a pronounced line of demarcation between what is said in an opinion and what is decided by it.' (Citation omitted)." Bashore v. Adolf, 238 P. 534 (Idaho 1925) (emphasis in original). Applying that directive, the Court finds it significant that the Idaho Supreme Court has not yet interpreted a deed containing the term "right of way" in the body of the deed with no other limiting language. As more thoroughly discussed below, C&G involved the use of the term on the cover sheet only, and Neider involved the use of the term in connection with clear language indicating that the grantees' rights (regardless of what they were) were to be terminated upon cessation of use of the property for railroad purposes. As noted earlier, deeds generally contain three important clauses: the granting clause, the habendum clause, and the descriptive clause. The granting clause is examined to determine the object of the conveyance. The habendum clause may modify or limit the grant, but does not defeat a clear, unambiguous grant. It is generally held that if there are any inconsistencies between the granting clause and the habendum clause, the granting clause will prevail because the granting clause is "the most dependable expression of the grantor's intention" and "is considered to be the very essence of the deed." Long v. Horton, 133 N.E.2d 568, 570-571 (Ind. Ct. App. 1956). Finally, the descriptive clause provides a means for identification of the land being conveyed. The significance of the term "right of way" in a deed depends, in part, on where the term appears in the deed:

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The mere presence of the term "right of way" does not, in and of itself, indicate an intent to convey an easement. Rather, when appearing outside of the granting clause, the term is of limited value because it has two meanings. Right of way refers to 1) a right to cross over the land of another, an easement, and 2) the strip of land upon which a railroad is constructed. Joy v. City of St. Louis, 138 U.S. 1, 11 S.Ct. 243, 34 L.Ed. 843 (1891); (citation omitted); Black's Law Dictionary 191 (5th ed.1979) (stating that the "[t]erm 'right of way' sometimes is used to describe a right belonging to a party to pass over land of another, but it is also used to describe that strip of land upon which railroad companies construct their road bed, and, when so used, the term refers to the land itself, not the right of passage over it"). Clark v. CSX Transportation, Inc., 737 N.E.2d 752, 758 (Ind. Ct. App. 2000) (emphasis added).3 With this general guidance, the Court will now turn to the actual deed at issue in the Neider case, because once it is examined, it becomes clearer what the Idaho Supreme Court was referring to as the substantive portions of a deed. First, the deed contained printed provisions, setting forth traditional language normally found in the granting and habendum clauses which would evidence an intent to convey a fee simple absolute title to the property to the railroad. Second, the deed contained a handwritten description of the property to be conveyed. This descriptive clause in the deed did not mention "right of way." As discussed in Clark, many courts have struggled in construing the intent of the parties when "right of way" is contained in the descriptive clause of a deed since it can mean, as discussed in the Clark case, either an easement or a description of the land over which the railroad constructs its tracks. The Idaho Supreme Court was not confronted with this particular problem in the Neider case. What the Neider deed did have was a separate handwritten sentence which modified the printed granting clause in the deed. Rather than conveying fee simple absolute title, this separate
3

The Idaho Supreme Court in C&G repeatedly cited to the Clark decision.

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paragraph "unambiguously reflects the Bows' intent to convey only an easement to the Railroad." Neider, 65 P.3d at 530. In a perfect world, the Neider deed would have had this handwritten sentence incorporated into the granting clause so that the granting clause would be appropriately modified to indicate that the grant was of an easement as opposed to a fee simple. While not as precisely set out as it could have been, the Idaho Supreme Court had no difficulty determining that the handwritten sentence was a substantive part of the deed and reflected the intent of the parties to create an easement, without having to go into a detailed discussion that it modified the granting clause. Likewise, the unambiguous expression of intent in the Neider deed obviated the need for the Idaho Supreme Court to go into a detailed discussion of what constituted "substantive." When considered in this context, the Neider decision broke no new ground, did not create any new rules regarding the construction of railroad deeds, and is consistent with its decision in C & G. In C&G, the Idaho Supreme Court had to address a different issue than presented in Neider. "Right of way" was contained on a cover sheet to the deed and the court had to determine the intent of the parties. A close reading of C&G reveals that the court did not state that the use of the term right-of-way in the descriptive portion of the deed would always create an easement since it could just be describing the nature of the land acquired by the railroad. In fact, it said that the right of way words were merely descriptive of the strip of property being conveyed. Id. at 80. Rather, the Supreme Court noted: Accordingly, because the words "right of way" appear only on the cover pages of the Thomas and Chaney deeds instead of being found in the granting or habendum clauses, we hold that the use of the term "right of way" on the cover sheets merely describes generally the strip of property acquired by Idaho Northern and does not express a limitation of the title to the estate conveyed.
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. . . What Galvin fails to note, however, is that the majority of these cases do not address the current situation involved here: where there is no mention of the term "right of way" in either the granting or habendum clause, nor any other language in the deeds that serves to limit the use of the land for the purpose of a railroad right of way. C&G, 25 P.3d at 80-81 (emphasis added). In the Category 5 deeds, the words "right of way" do not appear in the granting or habendum clauses. They appear only in the descriptive clause. However, the appearance of the term is not necessarily determinative of intent to create an easement. As the court did in Clark, the court in C&G recognized that "right of way" can either limit the interest granted in a deed, in which case it would convey an easement, or it can be a phrase describing a parcel of land being conveyed to a railroad for railroad purposes. Id. at 80. In the latter sense, the term is "merely descriptive" of the use to which the land is being put. Id. Clearly, in the Category 5 deeds, the term is used in the descriptive sense as it is contained in the descriptive clause and contains no limitations regarding the use of the land. Except for the fact that the Category 5 deeds contain the term "right-of-way" in the descriptive clause, the language in these deeds otherwise falls within the language of the C&G deeds and the conclusions as to the C&G deeds are applicable here: Although we recognize that a conflict exists among courts as to the interpretation of deeds purporting to convey land where there is also a reference to a "right of way," where the railroad deed does not contain language about its purpose or otherwise limiting the conveyance and conveys a definite parcel of land, courts consistently hold that "the deed will be construed to convey fee simple title." (Citations omitted.) Much of the conflict in the caselaw can be traced to the different meanings of the phrase "right of way." (Citations omitted.) On one hand "right of way" can serve "to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement)." (Citation omitted.) On
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the other, the phrase can describe the parcel of land being conveyed to the railroad for the purpose of constructing its rail line. (Citation omitted.) Used in this manner, "right of way" is merely descriptive as to the use to which the land is being put and does not serve to limit or restrict the estate conveyed. Id. at 80. The Court is further convinced that the Category 5 deeds conveyed fee title after reviewing a case heavily cited in C&G regarding the different meanings of the term "right of way," an en banc decision by the Washington Supreme Court. See Brown v. State, 924 P.3d 908 (Wash. 1996). Brown involved the interpretation of several railroad deeds, most of which were the statutory warranty form deed, some of which also had references to "rights of way." The Washington Supreme Court stated, The words "right of way" can have two purposes: (1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway. (Citations omitted.) Unlike Swan, Veach, and Roeder, where "right of way" was used in the granting or habendum clauses to qualify or limit the interest granted, "right of way" in the deeds at issue here appears in either the legal description of the property conveyed or in the portion of the deeds describing Milwaukee's obligations with respect to the property. The Eidal deed, for example, states: Said Railway Company ... will permit a telephone wire and an electric light wire to cross its said right-of-way.... Before grading is begun Right of way fences shall be built.... Said Railway Company is to furnish such facilities for conducting water for irrigation and other purposes under its track and across its Right-of-Way as are reasonable and practicable.... Clerk's Papers (Brown) at 27. Used in this manner, "right of way" merely describes a strip of land acquired for rail lines; it does not qualify or limit the interest expressly conveyed in the granting and habendum clauses. To point out that the Eidal deed and others describe the property as right of way simply begs the question of
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what interest Milwaukee acquired, because a railroad can own rights of way in fee simple if that is what the deed conveys. Id. at 914 (emphasis added). The Brown decision also noted that the obligation to construct or maintain farm crossings or irrigation canals is consistent with the conveyance of fee simple title, with an easement back to the grantors to cross the land conveyed to the railroad. Id. at n.9. The Court does not find the fact that Brown was based on statutory warranty form deeds a distinguishable factor from the Category 5 deeds because the language is essentially the same. Rather, the Court finds it significant that Brown held that the use of the term "right of way" in the descriptive clause of the deeds, as opposed to the granting or habendum clauses, does not create an easement. Furthermore, as in Brown, the fact that one of the deeds in Category 5 contains language requiring the Railroad to put in wagon road crossings and a passageway for calves under the road bed can indicate an intent to grant fee title to the Railroad, yet retain an easement across the Railroad property for the grantor. J. App. 14. As stated in this Court's prior decision, finding the deeds in Category 5 to have granted fee title is consistent with Idaho's fee simple presumption statute, Idaho Code § 5-604, a conclusion also reached by the court in C&G. C&G, 25 P. 3d at 81. It is also consistent with the Idaho Supreme Court's refusal to recognize the strip and gore policy in a railroad deed construction case based on its reluctance to do so in light of the legislature's mandate favoring fee simple title. See id. Finally, it is consistent with the Idaho Supreme Court's recognition that railroads can acquire fee simple title to land for both operating and non-operating purposes as well as its holding that a deed granting, selling, and conveying a described piece of land to have and hold forever, without any indication of intention of reversion, conveys fee simple absolute
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title. See Union Pacific Railroad Company v. Ethington Family Trust, 50 P.3d 450, 453 (Idaho 2002). C. Application of Neider to Category 6 Deeds (Approximately 24 parcels)

The Category 6 deeds grant "real estate" in the granting clause, do not mention right of way in the descriptive clause, but state the following in the habendum clause: TO HAVE AND TO HOLD all and singular the tenements, hereditaments and appurtenances as a perpetual right-of-way for said second party's Rail Way Line unto the said party of the second part and to its successors and assigns forever. J. App. 5. These deeds obviously differs from the Category 5 deeds in that the term "right of way" appears in the habendum clause. However, as stated above, the granting clause prevails over an inconsistent habendum clause. Long, 133 N.E.2d at 570-71. Furthermore, the Court does not believe that C&G dictates that the mere presence of the term right of way in habendum clause indicates an intent to grant an easement. While the court in C&G said that absence of the words "right of way" in the habendum clause indicated an intent to convey fee title, it did not state that the mere presence of the words necessarily indicated an intent to convey an easement. Rather, it noted that there are two meanings to the term. Id. at 80. The Court concludes that in the absence of the term "right of way" in the granting clause or any limiting language regarding purpose or reversion, the language is merely descriptive of the purpose for which the property was conveyed. Indeed, the land was conveyed together with "reversion and reversions." J. App. 5. As observed in Brown, there is no question but that the Railroad acquired the property for railroad purposes. "Identifying the purpose of the conveyance, however, does not resolve the issue at hand because a railroad can own rights of way in fee simple or as easements." Brown,
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924 P.2d at 913. Accordingly, the Court finds that the Category 6 deeds conveyed fee title. D. Application of Neider to Category 8 Deed (One parcel)

The deed at issue in this category provides that the landowner granted to the Railroad "a strip of land for a right of way . . . ." Next, the deed contains a legal description of the property with a final sentence describing the use to which the property would be put: The said Strip of land is to be used by the said Railway Company for a right of way for the said Railway and for all and every purpose necessary to be used in connection with the running and operation of the said Railway. J. App. 6 Unlike the Neider deed, however, there is no language stating that the deed would be null and void if the Railroad did not establish and maintain the property for right of way, station, sidetrack, and warehouse purposes or that the property would revert to the grantor. While the language in this Category 8 deed suggests a possible intent to create an easement, the presence of the term "right of way" in the granting and descriptive clause does not always lead to a finding of an easement. The deed at issue here is similar to a deed discussed in a recent Ninth Circuit decision which was applying Washington law: Here the term "right of way" appears in the granting clause as well as in the legal description. In this sense, the Hilchkanum deed suggests a possible intent to create only an easement in a way the deeds at issue in Brown did not. However, neither the granting nor the habendum clauses contains language clearly limiting the use of the land to a specific purpose. In virtually all cases where Washington courts have found only an easement, the granting or the habendum clauses contained such language . . . . Without such additional language, the use of the term "right of way" merely "begs the question" since a railroad could own a right of way either as an easement or in fee. Brown, 924 P.2d at 914. . . .
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The Hilchkanum deed contained precatory language indicating that the parties expected that the right of way would be used to construct and operate a railroad, but it did not actually condition the conveyance on such use. Brown, 924 P.2d at 912-13. Also, in Brown, the court noted that identifying the general purpose of a conveyance, i.e., for railroad purposes, is not helpful in discerning intent because it does not clarify whether the right of way is an easement or a fee. Id. at 913. King County v. Rasmussen, 299 F.3d 1077, 1086 (9th Cir. 2002) (emphasis added). Similarly, the West Virginia Supreme Court found that the deed in question conveyed fee simple title rather than an easement where (1) the granting clause granted "a strip of land for a right-of-way" rather than the right to use the land; and (2) the habendum clause gave the railroad the right "[t]o have and to hold said strip of land unto said Railway for a right of way, its successors and assigns forever." Grill v. West Virginia Railroad Maintenance Authority, 423 S.E.2d 893, 896-97 (W.Va. 1992). The court reasoned that the words "right-of-way" were merely descriptive and not a limitation of the grant. More recently, the Court of Appeals for Indiana reached the same conclusion where the deed conveyed a strip of land for railroad purposes "forever." See Poznic v. Porter County Develpment Corp., 779 N.E.2d 1185 (Ind. App. 2002). The court emphasized the conveyance of a strip of land rather than just a right, the use of the word "forever," and the lack of any limiting language such as a provision that the deed would be void if it were not used for railroad purposes. Id. at 1190-91. Like the deeds in Rasmussen, Grill, and Poznic, the Category 8 deed did not contain language "clearly limiting" or "explicitly restricting" the grant to Railroad purposes or providing for a reversion to the grantor if the Railroad ceased to operate. Also, like those deeds, the Category 8 deed conveyed to the Railroad, its heirs, and assigns "forever," a "temporal
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descriptor more consistent with the conveyance of a fee than of an easement." Tazian v. Cline, 686 N.E.2d 95, 101 (Ind. 1997). Accordingly, the Court finds that the Category 8 deed conveyed fee title to the Railroad. E. Conclusion

Neider does not require a finding that the deeds in Categories 5, 6, and 8 conveyed easements. The Court finds, consistent with its findings in its earlier Memorandum Decision, that the deeds in all of these categories conveyed fee title to the Railroad. PLAINTIFFS' CROSS MOTION FOR SUMMARY JUDGMENT CATEGORIES 5, 6, AND 8 Plaintiffs' cross motion and response to Defendant's summary judgment motion is premised on the contention that Neider is controlling and dictates that the appearance of "right of way" language anywhere in the deed indicates intent to convey an easement only. Based on the Court's finding on Defendant's Motion for Partial Summary Judgment that the deeds in Categories 5, 6, and 8 conveyed fee title, Plaintiffs' Cross Motion for Summary Judgment is denied with respect to those categories. PLAINTIFFS' MOTION FOR RECONSIDERATION Plaintiffs request the Court to reconsider its decision that the deeds in Categories 2 and 3 conveyed a fee simple determinable or fee simple conveyance with possibility of reverter. Plaintiffs contend that in light of Neider, these deeds should be construed as having conveyed an easement only. More specifically, Plaintiffs contend that the language of the Category 2 and 3 deeds contain language substantially similar to the language of the Bow deed in Neider which was held to convey an easement. On the other hand, Defendant contends that Plaintiffs' motion is premised on the
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erroneous assumption that a fee simple subject to a condition subsequent (the argument of the Appellant in Neider) is the same as a fee simple determinable. Defendant reasons that because Neider was deciding between an easement and a fee simple subject to a condition subsequent, its holding does not apply to what is in this case a decision between an easement and a fee simple determinable. In its Memorandum Decision, this Court addressed the issue of whether the deeds in Categories 2 and 3 conveyed fee simple title or merely a fee simple determinable. It did not address the issue of fee title vs. easement. The Court concluded that because the deeds contained reverter clauses to take effect if the Railroad ceased using the land for railway purposes, the deeds conveyed fee simple determinable or a fee simple conveyance with a possibility of reverter as opposed to fee simple absolute. The Court ultimately found that the interests conveyed to the Railroad in these deeds terminated upon cessation of the corridor for railroad use and reverted to the grantors. This ruling was not appealed. After the Court's decision, the parties entered into at least three stipulations regarding outstanding issues pertaining to the original conveyances to the railroad under Categories 2 and 3. The parties stipulated (1) that the reversionary interests retained by the original grantors had not been extinguished under Idaho law; (2) that the owners of the reversionary interests as of the alleged date of taking are properly included as class members in this action; and (3) to the identity of the owners of the reversionary interests. See Joint Stipulation, ¶ 5 (dated April 5, 2002) (Docket No. 92); Joint Stipulations Regarding Category 2 and 3 Parcels (dated August 8, 2002) (Docket No. 97) and Joint Status Report, Stipulations, and Proposed Schedule (dated Nov. 8, 2002) (Docket No. 101); and Id., respectively. Prior to entering into these stipulations,

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counsel had gone to considerable effort to identify the parties who would be entitled to any reversionary interest. In moving for reconsideration of the Court's earlier decision, Plaintiffs' have not sought to withdraw from the stipulations. It appears to the Court that regardless of whether the deeds are categorized conveying a fee simple determinable, fee simple subject to a condition subsequent, or as creating an easement, the result is the same ­ the interest in the land that had been conveyed to the Railroad reverts to the landowner. The only remaining matter would be determination of just compensation. While Plaintiff's counsel may have some sound reason it is now necessary to revisit this area in view of the stipulations and the fact no appeal was ever filed in this issue, it is far from obvious to the Court. The Court notes that at oral argument, Plaintiffs referred to the potential issue of who would constitute the proper class members upon extinguishment of an easement ­ the heirs of the grantors or the adjoining landowners. Counsel observed that the law is quite mixed. However, the stipulations seem to have resolved this issue. Since the Court's finding on Categories 2 and 3 was never appealed, and the parties stipulated that all issues regarding the original conveyances to the Railroad in Categories 2 and 3 had concluded, the Court will deny the motion for reconsideration. However, the Court will grant Plaintiffs' counsel until September 8, 2006, to submit a memorandum explaining why they should be allowed to withdraw from the stipulation and why a determination on this easement issue would advance the interests of the parties in this litigation. DEFENDANT'S MOTION FOR CLARIFICATION CATEGORIES 10, 12, AND 13 (Adverse Possession) A. Background

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Based on the briefing of the parties pertaining to these categories, the Court assumed for the purposes of its decision that the Railroad had acquired some interest by adverse possession and proceeded to consider whether that interest was an easement or fee title.4 In its Memorandum Decision, this Court found that the Railroad had acquired fee title. The Federal Circuit found that the stipulation of the parties to treat these properties for purposes of litigation as having been acquired by adverse possession "was not a concession that the requirements of adverse possession had been met." Hash, 403 F.3d at 1322. The Federal Circuit further noted that the great weight of authority from other jurisdictions is that adverse occupancy of a railroad right-of-way does not confer any greater interest in the land than that of a right-of-way easement. Id. Citing Idaho Forest Indus., Inc. v. Hayden Lake Watershed Improvement Dist., 733 P.2d 733, 736 (Idaho 1987), it found that position consistent with Idaho's rule that any acquired prescriptive right is limited by the purpose for which it was acquired and the use to which it was put during the prescriptive period. Id. The Federal Circuit concluded that Defendant had not met the burden of establishing adverse possession to the fee to the underlying land in addition to the right-of-way over the land. Accordingly, it reversed this Court's judgment that the Railroad acquired fee title to the underlying lands in Categories 10, 12, and 13. Notably, the Federal Circuit did not reverse and remand. The Defendant contends that the Federal Circuit's reversal leaves open the question of what other interest, if any, the Railroad had acquired by adverse possession. In essence, the Defendant contends that it should be able to present evidence on the adverse possession issue. Plaintiffs contend that the law of the case mandates that as a matter of law the Railroad
4

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obtained only an easement by prescription. Alternatively, Plaintiffs contend that if the Federal Circuit did not decide the issue as a matter of law, then Defendant's request to put on evidence regarding obtaining fee title by adverse possession should be denied because it failed to do so in the case in chief. Plaintiffs note that the parties argued their positions before this Court on the issue of fee vs. easement by adverse possession as a matter of law without presenting any evidence. Plaintiffs further note that they first observed at oral argument that the Defendant had not submitted any evidence to satisfy the requisite elements of adverse possession under Idaho law. On appeal, Plaintiffs raised two issues as separate grounds for holding that the Railroad could only have acquired an easement: (1) whether a railroad can obtain fee title to a right of way by claiming adverse possession without satisfying the statutory requirements necessary to establish fee title by adverse possession, and (2) whether the interest obtained in the right of way by a railroad through prescription is in any event limited to an easement. On the other hand, the Defendant framed the issue as with respect to rights of way obtained by the Railroad by adverse possession, whether the Railroad obtained fee simple ownership in the rights of way. Rather than raise the argument that the Federal Circuit should refuse to address the insufficiency of the evidence argument for failing to timely raise it in this Court, Plaintiffs contend that Defendant simply requested a remand for presentation of evidence should the Federal Circuit determine that it had not establish the required elements of adverse possession.5 Nonetheless, the Federal Circuit, while finding the evidence insufficient, reversed

A review of Defendant's appellate brief reveals that it did, in fact, argue that Plaintiffs were challenging the district court's ruling on grounds not raised in their briefs or ruled upon. Defendant specifically argued, "Thus, this issue is not properly before this Court and shou