Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-S-0075 (PAC) ORIN LOOS, Plaintiffs, vs. LEVEL 3 COMMUNICATIONS, LLC, et al. Defendants.

OPENING BRIEF IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................................................................................... ii INTRODUCTION......................................................................................................................... 1 I. II. STATEMENT OF UNDISPUTED FACTS.................................................................... 2 ARGUMENT..................................................................................................................... 5 A. B. C. D. SUMMARY JUDGMENT STANDARDS. ........................................................................ 5 DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE UNION PACIFIC OWNS FEE TITLE TO THE RIGHT OF WAY................................................................ 5 DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT BECAUSE PLAINTIFF HAS NO INTEREST IN THE RIGHT OF WAY. ................................................................... 10 THE SPRINT DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON ANY CLAIMS BASED ON SCCLP'S CABLE BECAUSE THOSE CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS. ............................................................................ 12 SPRINT NEXTEL IS ENTITLED TO SUMMARY JUDGMENT FOR THE ADDITIONAL REASON THAT IT DID NOT INSTALL AND DOES NOT OPERATE ANY FIBER OPTIC CABLE.................................................................................................................... 13

E.

III.

CONCLUSION ............................................................................................................... 14

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TABLE OF AUTHORITIES Page CASES Buttz v. Northern Pacific Ry. Co., 119 U.S. 55 (1886) .................................................................. 7 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................... 5 Clairmont v. United States, 225 U.S. 551 (1912) ........................................................................... 7 Currier v. Doran, 242 F.3d 905 (10th Cir. 2001).......................................................................... 11 Denning v. U.S. Sprint Communication Co., Case No. CIV-90-1317-R (W.D. Okla. 1991) ........ 5 Great Northern Railway Co. v. United States, 315 U.S. 262 (1942) .............................................. 7 Harrison v. Pinnacol Assurance, 107 P.3d 969 (Colo. Ct. App. 2004)......................................... 13 Haynes v. Williams, 88 F.3d 898 (10th Cir. 1996)....................................................................... 11 Home on the Range v. AT&T Corp., 386 F. Supp. 2d 999 (S.D. Ind. 2005) ........................... 9, 11 Hynek v. MCI World Communications, Inc., 202 F. Supp. 2d 831 (N.D. Ind. 2002) ................... 5 Internat'l Paper Co. v. MCI WorldCom Network Services, Inc., 202 F. Supp. 2d 895 (W.D. Ark. 2002) ........................................................................................................................ 5 Johnson v. K.C. Southern, Case No. 3:03CV360LN (S.D. Miss. Feb. 10, 2005) .......................... 5 Kunzman v. Union Pacific R.R. Co., 456 P.2d 743 (Colo. 1986) .................................................. 9 Luttgen v. Fischer, 107 P.3d 1152 (Colo. Ct. App. 2005) ............................................................ 12 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) ..................................... 5 Mauler v. Bayfield County, 309 F.3d 997 (7th Cir. 2002) ....................................................... 8, 11 Mellon v. Southern Pac. Transp. Co., 750 F. Supp. 226 (W.D. Tex. 1990) ................................... 5 Missouri, Kansas & Texas Ry., Co. v. Early, 641 F.2d 856 (10th Cir. 1981) ................................ 8 Missouri, Kansas and Texas Railway Co. v. Roberts, 152 U.S. 114 (1894) .............................. 6, 7 Missouri, Kansas and Texas Ry. Co. v. Oklahoma, 271 U.S. 303 (1926)...................................... 7 New Mexico v. United States Trust Co., 172 U.S. 171 (1898) .................................................. 6, 7 Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267 (1903) .............................................. 6, 7, 11 Oxford v. Williams Cos., 154 F. Supp. 2d 942 (E.D. Tex. 2001) .................................................. 5 Rice v. United States, 479 F.2d 58 (8th Cir. 1973)....................................................................... 11 Sandoval v. Archdiocese of Denver, 8 P.3d 598 (Colo. Ct. App. 2000) ...................................... 12

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St. Joseph & Denver City Railroad Co. v. Baldwin, 103 U.S. 426 (1880)................................. 6, 7 Union Pacific Ry. Co. v. City of Atoka, 2001 WL 273298 (10th Cir. 2001) ................................. 8 Wilcox v. Jackson, 38 U.S. 498 (1839) ........................................................................................ 10 Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1967)....................................................................... 11 STATUTES Colo. Rev. Stat. § 13-80-102 ........................................................................................................ 12 OTHER AUTHORITIES Act of July 1, 1862, 12 Stat. 489..................................................................................................... 1 Act of July 2, 1864, 13 Stat. 356..................................................................................................... 1 Act of July 3, 1866, 14 Stat. 79....................................................................................................... 1 Act of March 3, 1869, 15 Stat. 324................................................................................................. 1 Act of July 23, 1866, 14 Stat. 210................................................................................................... 6 Act of July 26, 1866, 14 Stat. 289................................................................................................... 6 Act of July 27, 1866, 14 Stat. 292................................................................................................... 6 Wyoming Enabling Act, 26 Stat. 222-23...................................................................................... 11 RULES Fed. R. Civ. P. 56(c) ....................................................................................................................... 5

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INTRODUCTION The claims of Plaintiff Orin Loos are premised on the allegation that he owns fee title to the property underlying a railroad right of way (the "Right of Way") in which Defendants have installed fiber optic cable. The Right of Way, however, was created pursuant to the Act of Congress dated July 1, 1862, 12 Stat. 489 (Ex. A-1), amended July 2, 1864, 13 Stat. 356 (Ex. A2), July 3, 1866, 14 Stat. 79 (Ex. A-3), and March 3, 1869, 15 Stat. 324 (Ex. A-4) (the "Act"). The United States Supreme Court consistently has held that, under the Act, (1) the railroads were granted fee title to the right of way, subject only to a limited right of reverter, in the event that the railroad abandoned the right of way, (2) the United States retains the right of reverter, and (3) a grant by the United States of land adjacent to or appearing to include the right of way obtained under the Act does not include any interest in the right of way. Plaintiff traces his title to United States patents issued after the predecessor of Union Pacific Railroad ("Union Pacific") obtained the Right of Way under the Act. Plaintiff, therefore, has no interest in the Right of Way and Defendants are entitled to summary judgment. Plaintiff, moreover, commenced this action more than three years after a predecessor of Sprint Communications Company L.P. ("SCCLP") installed fiber optic cable in railroad right of ways in Weld County, Colorado. Any claims Plaintiff has made based on the installation of that cable, therefore, are barred by the statute of limitations. Finally, Defendant Sprint Nextel Corporation ("Sprint Nextel") did not participate in any manner in the installation or construction of fiber optic cable and has never operated the fiber optic cable or telecommunications network that is owned by SCCLP. This provides an additional basis on which to grant Sprint Nextel's Motion for Summary Judgment.

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I.

STATEMENT OF UNDISPUTED FACTS. 1. Plaintiff owns an interest in the northwest quarter of Section 28, Township 9

North, Range 66 West of the 66th Meridian, Weld County, Colorado ("Loos Property"). Loos Depo. Ex. 6 (Ex. A-5). 2. The predecessors-in-title to the Loos Property first obtained an interest in the

Loos Property through a Land Patent issued by the United States on February 13, 1914. October 26, 2005 Declaration of Frank J. Fillebeck, ¶ 2 and Attachment 1(Ex. A-6); Loos Depo. Ex. 8 (Ex. A-7). 3. The Right of Way traversing the Loos Property was granted to Union Pacific's

predecessor by the United States pursuant to Acts of Congress dated July 1, 1862, amended July 2, 1864, July 3, 1866, and March 3, 1869. Fillebeck Declaration, ¶ 3. 4. Pursuant to these Acts of Congress, the Denver Pacific Railway (Union Pacific's

predecessor) filed a Map of the Final Location of the Denver-Cheyenne line on August 1, 1869. (Ex. A-8). 5. The property interests conveyed by these Acts of Congress were granted to the

constructing railroad upon completion of portions of the railroad line and then to Union Pacific Railroad Company by consolidation, merger, and sale. Id., ¶ 3. 6. The Denver Pacific Railway completed construction of the Denver-Cheyenne

line, which includes the line traversing the Loos Property, on June 23, 1870. Id., ¶ 4. 7. The Chief Engineers Office's map, dated April 20, 1896, confirms construction of

the Right of Way preceding the issuance of the patent to the Loos Property. Id., ¶ 4; Loos Dep. Ex. 8.

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8.

Sprint Communications Company L.P. ("SCCLP") is the owner of fiber optic

cable, equipment, facilities, and other components of a long-distance telecommunications network, which included fiber optic cable in Weld County, Colorado. Affidavit of Brian C. Jordan, ¶ 2, (Ex. A-9). 9. The long-distance telecommunications network that SCCLP owns was installed

by SCCLP and its predecessors. Id. 10. owns. Id. 11. 12. SCCLP is a Delaware limited partnership. Id., ¶ 3. The partners of SCCLP are ultimately owned by Sprint Nextel Corporation, f/k/a SCCLP operates the long-distance telecommunications network that SCCLP

Sprint Corporation ("Sprint Nextel"). Id. 13. Sprint Nextel did not participate in any manner in the installation or construction

of the long-distance telecommunications network that is the subject of this action. Id., ¶ 4. 14. Sprint Nextel does not and has never operated the long-distance

telecommunications network that is the subject of this action. Id., ¶ 5. 15. 16. Plaintiff commenced this action in December 2000. Complaint. The fiber optic cable that SCCLP owns in the northwest quarter of Section 28,

Township 9 North, Range 66 West, Weld County, Colorado was installed before November 19, 1985. Jordan Aff. (Ex. A-9) at ¶ 6. 17. At the time of installation, a sign was placed in the railroad right-of-way that

traverses the Loos Property to alert the public and adjacent landowners to the fact that the cable is buried in the right-of-way and to protect the cable from inadvertent damage. The sign was 10"

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by 14," mounted on a pole or post, and prominently displayed the word "WARNING" and the Sprint name and logo. Id., ¶ 7. 18. One of the three telecommunications companies that Plaintiff alleges installed

fiber optic cable in the Right of Way sent him a letter, before installing the cable, to inform him that it might be doing so. Loos Depo., p. 70, l. 13-19; p. 102, l. 23 to p. 103, l. 8 (Ex. A-10). 19. Plaintiff does not remember which telecommunications company sent him the

letter informing him that they might install fiber optic cable in the Right of Way. Id., p. 103, l. 912. 20. Plaintiff does not remember when a telecommunications company sent him the

letter informing him that they might install fiber optic cable in the Right of Way. Id., p. 103, l. 13-18. 21. Plaintiff did not retain the letter informing him that a telecommunications

company might install fiber optic cable in the Right of Way. Id., p. 103, l. 19-20. 22. Plaintiff did not respond to the letter informing him that a telecommunications

company might install fiber optic cable in the Right of Way. Id., p. 104, l. 1-7. 23. Plaintiff is aware that there is at least one sign that marks the presence of fiber

optic cable in the Right of Way. Id., p. 100, l. 17 to p. 101 l. 3. 24. 25. Plaintiff never has read the sign or signs in the Right of Way. Id., p. 101, l. 4-25. Plaintiff never has asked his farm tenant whose sign or signs are in the Right of

Way or what the sign or signs say. Id., p. 112, l. 1-3; p. 113, l. 19-24. 26. Plaintiff has not done anything else to find out whose sign or signs are in the right

of way or what they say. Id., p. 111. l. 4-9.

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II.

ARGUMENT A. Summary Judgment Standards.

Summary judgment is appropriate if no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The movant has the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If a movant meets this burden, the party opposing a properly supported motion for summary judgment must offer evidence, in admissible form, of specific facts sufficient to raise a genuine issue for trial as to the elements of the nonmoving party's case. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Federal courts have granted summary judgments for defendants in other fiber optic right of way cases. See Johnson v. K.C. Southern, Case No. 3:03CV360LN (S.D. Miss. Feb. 10, 2005) (Ex. A-11), slip op. at 3 n.2; Internat'l Paper Co. v. MCI WorldCom Network Services, Inc., 202 F. Supp. 2d 895 (W.D. Ark. 2002); Oxford v. Williams Cos., 154 F. Supp. 2d 942 (E.D. Tex. 2001); Denning v. U.S. Sprint Communication Co., Case No. CIV-90-1317-R (W.D. Okla. 1991) (Ex. A-12), slip op. at 16; Mellon v. Southern Pac. Transp. Co., 750 F. Supp. 226, 229 (W.D. Tex. 1990); see also Hynek v. MCI World Communications, Inc., 202 F. Supp. 2d 831 (N.D. Ind. 2002) (claims dismissed on Rule 12(b)(6) motion). B. Defendants Are Entitled To Summary Judgment Because Union Pacific Owns Fee Title To The Right of Way.

It is indisputable that, if Union Pacific owns fee title to the Right of Way, it has the right to authorize telecommunications companies to install fiber optic cable there. The United States Supreme Court repeatedly has held that, under the Act, right of way ­ like the Union Pacific Right of Way traversing the Loos Property ­ was granted to the railroad in fee. -5-

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In Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267 (1903), the Court considered whether an adjacent landowner could acquire by adverse possession an interest in railroad right of way granted under the Act. In holding that he could not, the Court emphasized that the right of way was to be used as a railroad or revert to the federal government, and stated: Following decisions of this Court construing grants of rights of way similar in tenor to the grant now being considered . . ., it must be held that the fee passed by the grant made in § 2 of the Act of July 2, 1864. Id. at 271 (citations omitted). The Court held further: In effect the grant was of a limited fee, made on 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. Id. In holding that the railroad obtained the fee by the grant made in section 2 of the Act, the Court in Townsend relied on New Mexico v. United States Trust Co., 172 U.S. 171 (1898), and St. Joseph & Denver City Railroad Co. v. Baldwin, 103 U.S. 426 (1880). The similar grants of right of way considered in those decisions were made under the Act of July 23, 1866, 14 Stat. 210 (Ex. A-13) and the Act of July 27, 1866, 14 Stat. 292 (Ex. A-14). Like the Act at issue here, each provided that "the right of way through the public lands be and the same is hereby granted to" the railroad. In Baldwin, the right of way was held to be "a present absolute grant, subject to no conditions except those necessarily implied, such as that the road shall be constructed and used for the purposes designed." Baldwin, 103 U.S. at 429-30. In New Mexico, the Court considered its previous decision in Missouri, Kansas and Texas Railway Co. v. Roberts, 152 U.S. 114 (1894). There, the Court had held that, under the Act of July 26, 1866, 14 Stat. 289 (Ex. A12), the grant to the railroad was "absolute in terms, covering both the fee and possession." 152

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U.S. at 117. The Court in New Mexico then rejected any possibility that the term "fee" was used unintentionally in Roberts, stating: Title was asserted by Roberts, who was plaintiff in the state court, and this court evidently considered it involved in the case. The language of Mr. Justice Field, who delivered the opinion of the court, would be unaccountable else. The difference between an easement and the fee would not have escaped his attention and that of the whole court, with the inevitable result of committing it to the consequences which might depend upon such difference. New Mexico, 172 U.S. at 182 (emphasis added). The Court in New Mexico therefore reaffirmed that the railroad obtained fee title to the right of way. The Federal Land Grant Acts that the Supreme Court considered in Baldwin, Roberts, New Mexico, and Townsend not only granted railroad right of ways in terms substantially similar to the Act, they also granted additional public lands in alternating sections on either side of the right of way. As the Court subsequently pointed out: When Congress made outright grants to a railroad of alternate sections of public lands along the right-of-way, there is little reason to suppose that it intended to give only an easement in the right-of-way granted in the same act. Great Northern Railway Co. v. United States, 315 U.S. 262, 278 (1942). The Court, therefore, consistently has held that the right of way under Federal Land Grant Acts - like the Act establishing the Right of Way traversing the Loos Property - is granted to the railroad in fee. Missouri, Kansas and Texas Ry. Co. v. Oklahoma, 271 U.S. 303, 304, 308 (1926); Clairmont v. United States, 225 U.S. 551, 556 (1912); Townsend, 190 U.S. at 271; New Mexico, 172 U.S. at 182; Roberts, 152 U.S. at 116-117; Buttz v. Northern Pacific Ry. Co., 119 U.S. 55, 66 (1886); Baldwin, 103 U.S. at 429-30. The Tenth Circuit also has held that Federal Land Grant Acts that granted alternate sections of public land to the railroad granted the right of way in fee. Union Pacific Ry. Co. v. -7-

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City of Atoka, 2001 WL 273298, *3-5 (10th Cir. 2001) (Ex. A-15); Missouri, Kansas & Texas Ry., Co. v. Early, 641 F.2d 856, 860 (10th Cir. 1981). Early involved right of ways obtained under the Act of July 26, 1866, 14 Stat. 289 (Ex. A-16). It granted right of way in language substantially the same as section 2 of the Act and also granted alternating adjoining sections to the railroad. Plaintiffs argued that the railroad only had an easement in its right of ways and that, upon abandonment, the easement was extinguished. The Tenth Circuit disagreed, stating: Before 1875, it was common for Congress to grant to the railroads fee interests, utilizing the term "right-of-way." The courts have consistently so construed the land grant statutes. Early, 641 F.2d at 859. In City of Atoka, the court considered the right of way grant made under the Act of July 25, 1866 14 Stat. 236 (Ex. A-17). The City argued that the grant was of a limited fee. The Tenth Circuit, however, held that the railroad acquired the right of way in fee simple absolute. The court pointed out that the Supreme Court in Roberts and Oklahoma, and the Tenth Circuit, in Early, had held that the railroad "received its right of way in fee, and not limited fee," in the similarly worded Act of July 26, 1866. City of Atoka, 2001 WL 273298, *3. The court followed those decisions, pointing out that "[t]here has been no en banc reconsideration of this issue and Atoka cites no superseding Supreme Court ruling." Id., *4. The holding that the railroad obtained fee title to right of way granted under the Act has more recently been applied by the Seventh Circuit. In Mauler v. Bayfield County, 309 F.3d 997 (7th Cir. 2002), plaintiffs contended that they became the owners of the right of way when the railroad abandoned it. In rejecting that claim, the Seventh Circuit stated:

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In what continues to be the controlling case on point, the Supreme Court characterized these railroad grants as "limited fee[s], made on 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." Id. at 999 (quoting Townsend, 190 U.S. at 271). The United States District Court for the Southern District of Indiana has reached the same result. Home on the Range v. AT&T Corp., 386 F. Supp. 2d 999 (S.D. Ind. 2005), involved fiber optic cable in railroad right of way, including right of way obtained under the Act. In holding that the railroad obtained a limited fee to the right of way under the Act, the court relied on the Supreme Court's decisions in Townsend, New Mexico, and Baldwin, stating: As for the railroad's interest, the Court went on to explain that "the fee passed by the grant made in § 2 of the [1864 Act]." Home on the Range, 386 F. Supp. 2d at 1005 (quoting Townsend, 190 U.S. at 271). Finally, the Act has been held by the Colorado Supreme Court to convey a limited fee title to the railroad in the same segment of right of way, in the same county, as the Right of Way that traverses plaintiff's property. Kunzman v. Union Pacific R.R. Co., 456 P.2d 743 (Colo. 1986). Kunzman involved not only the same segment of right of way as this case, it also involved plaintiffs who claimed through a patent issued after the right of way had been conveyed under the Act and who alleged that they were entitled to compensation when the railroad permitted what plaintiffs asserted was a non-railroad use in the right of way. The trial court held that plaintiffs owned no interest in the right of way. The Colorado Supreme Court affirmed, noting that Townsend was controlling on the issue. Quoting Townsend, the court stated that "[i]n effect the grant was of a limited fee . . ." Kunzman, 456 P.2d at 746.

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The Right of Way that traverses the Loos Property was granted to Union Pacific's predecessor in fee. Union Pacific therefore owns fee title to the Right of Way, and has authority to permit the telecommunications companies to use the Right of Way without obtaining permission from or compensating Plaintiff. C. Defendants Are Entitled To Summary Judgment Because Plaintiff Has No Interest In The Right of Way.

Plaintiff traces title to his property in Weld County, Colorado to a 1914 U.S. Land Patent. The construction of the railroad in Weld County was completed prior to August 1, 1869. The Land Patent granted to Plaintiff's predecessors, therefore, did not include the land that is subject to Union Pacific's Right of Way. The grant of fee title in the right of ways under the Act appropriated the public land and removed it from the public domain. The land therefore became subject to the "appropriation doctrine," under which: whensoever a tract of land shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands and no subsequent law, or proclamation, or sale, would be construed to embrace it, or to operate upon it; although no other reservation were made of it. Wilcox v. Jackson, 38 U.S. 498, 513 (1839). Therefore, when the United States conveyed public land traversed by a right of way created by the Act on which a railroad had constructed its line, the grantee acquired no interest in the right of way. As the Townsend court stated: [T]he land forming the right-of-way therein was taken out of the category of public land subject to pre-emption and sale, and the Land Department was therefore without authority to convey rights therein. It follows that the homesteaders acquired no interest in the land within the rightof-way because of the fact that the grant to them was of the full legal subdivisions. -10-

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Townsend, 190 U.S. at 270. In Wyoming v. Udall, 379 F.2d 635 (10th Cir. 1967), the State claimed that it received the fee interest and minerals in a railroad right of way that crossed land that had been granted to the State through the Wyoming Enabling Act. The Wyoming Enabling Act, 26 Stat. 222-23 (Ex. A18), granted Wyoming two sections of federal land in each township, unless such sections "have been sold or otherwise disposed of." The railroad's right of way, however ­ like the Union Pacific right of way in Weld County, Colorado ­ had been obtained under the Act. The Tenth Circuit therefore rejected Wyoming's claim, holding that the right of way had been "otherwise disposed of." Udall, 379 F.2d at 640. As a result, "title to the servient estate did not pass with the conveyance" under the Enabling Act.1 Other courts consistently have held that the subsequent patentees of land surrounding a right of way granted under a pre-1875 Act acquired no interest in the right-of-way. In Mauler, the court held that, because the railroad obtained fee title to the right of way, subject only to the United States' limited right of reverter, "the Maulers never possessed a legal interest in the former railroad corridor." Mauler, 309 F.3d at 1002. Rice v. United States, 479 F.2d 58 (8th Cir. 1973), held that a homestead grant of land traversed by pre-1875 right of way conveyed no interest in the right of way because "under [Townsend] the 400-foot strip of land conveyed to the railroad was taken out of the category of public land subject to preemption and sale." Id. at 59. In Home on the Range, the court held that "under Wilcox and the consistent line of Supreme

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Energy Transp. Sys., Inc. v. Union Pac. R.R. Co., 606 F.2d 934 (10th Cir. 1979), contradicts Townsend, the other United States Supreme Court cases that hold that pre-1875 Federal Land Grant Acts conveyed fee title in the right of ways to the railroads, and Udall. The Court is bound to follow the Supreme Court decisions and the prior Tenth Circuit decision in Udall. Currier v. Doran, 242 F.3d 905, 912 (10th Cir. 2001) (Supreme Court decisions take precedence over contrary decisions of courts of appeal); Haynes v. Williams, 88 F.3d 898, 900 n. 4 (10th Cir. 1996) (Tenth Circuit will "follow earlier, settled precedent over a subsequent deviation therefrom").

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Court precedent following it, the land - surface and subsurface - therefore was severed from the category of public lands and did not pass with the patents even thought the patents made no express exception for the rights of way." Home on the Range, 386 F. Supp. 2d at 1016. The Kunzman court held that plaintiffs held no interest in Union Pacific's right of way in Weld County Colorado and, in doing so, rejected plaintiffs' argument that Townsend is no longer good law. Kunzman, 456 P.2d at 745-46. The Right of Way at issue here was taken out of the public domain before Plaintiff's predecessors obtained any interest in the surrounding property. Plaintiff, therefore, has no interest in the Right of Way and no basis for his claims against the Defendants. D. The Sprint Defendants Are Entitled To Summary Judgment On Any Claims Based On SCCLP's Cable Because Those Claims Are Barred By The Statute Of Limitations.

A three-year limitations period applies to Plaintiff's claims for unjust enrichment. Luttgen v. Fischer, 107 P.3d 1152, 1157 (Colo. Ct. App. 2005). The period of limitations applicable to Plaintiff's trespass claims is two years. Colo. Rev. Stat. § 13-80-102. Plaintiff commenced this action in December 2000. The fiber optic cable of SCCLP was installed long before December 1997. Plaintiff's claims, therefore, are barred. Under Colorado law, a plaintiff can save his claim from the bar of the statute of limitations by proving that he did not discover and, in the exercise of reasonable diligence, could not have discovered the existence of facts forming the basis of the claim. Sandoval v. Archdiocese of Denver, 8 P.3d 598, 604-05 (Colo. Ct. App. 2000). To meet this burden of proof, plaintiff must show that he did not know and could not have known "the essential facts, rather

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than the applicable legal theory." Harrison v. Pinnacol Assurance, 107 P.3d 969, 972 (Colo. Ct. App. 2004). Plaintiff cannot meet that burden. First, Plaintiff received a letter from a telecommunications company prior to the time that it installed fiber optic cable in the Right of Way. Plaintiff does not remember which telecommunications company sent the letter or when the letter was sent, did not retain it, and did not respond to it. Plaintiff, therefore, will not be able to prove that the letter was not sent by the predecessor of SCCLP. Second, SCCLP has a sign in the Right of Way. It advises of the existence and the location of the fiber optic cable. Plaintiff was aware that the sign existed. He needed only to go on the Right of Way and read it ­ or to have his farm tenant do that for him ­ in order to discover that SCCLP's fiber optic cable is in the Right of Way. Plaintiff, therefore, cannot show that, in the exercise of reasonable diligence, he could not have discovered that SCCLP's fiber optic cable had been installed in the Right of Way and any claim Plaintiff has asserted based on SCCLP's fiber optic cable is barred. E. Sprint Nextel Is Entitled To Summary Judgment For The Additional Reason That It Did Not Install And Does Not Operate Any Fiber Optic Cable.

Sprint Nextel did not participate in any manner in the installation or construction of the fiber optic cable or telecommunications network that is the subject of this action. It has never operated that network. It, therefore, engaged in none of the conduct alleged in the Complaint as a basis for Plaintiff's claims. Sprint Nextel therefore is entitled to summary judgment on that additional ground.

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CONCLUSION The Court should grant Defendants' Motion and enter summary judgment in their favor and against Plaintiff on all of Plaintiff's claims. Respectfully submitted,

s/ Jonathon D. Bergman Jonathon D. Bergman DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 FAX: (303) 893-1379 E-mail: [email protected] J. Emmett Logan STINSON MORRISON HECKER LLP 1201 Walnut, Suite 2900 Kansas City, MO 64106-2150 Telephone: (816) 842-8600 FAX: (816) 691-3495 E-mail: [email protected] Attorneys for Defendants Sprint Nextel Corporation, f/k/a Sprint Corporation, and Sprint Communications Company L.P.

Marc D. Callipari 1025 Eldorado Blvd. Broomfield, CO 80021 Joseph E. Jones Mark C. Laughlin FRASER, STRYKER, MEUSEY, OLSON, BOYER & BLOCH, P.C. 500 Energy Plaza, 409 South 17th Street Omaha, Nebraska 68102-2663 Telephone: (402) 341-6000 FAX: (402) 341-8290

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Filed 01/03/2006

Page 19 of 20

Attorneys for Defendant Level 3 Communications, Inc.

Daniel Warden Bond & Morris 303 17th Avenue, #888 Denver, CO 80203 J. Kevin Hayes Pamela S. Anderson HALL, ESTILL, HARDWICK, GABLE GOLDEN & NELSON, P.C. 320 South Boston #400 Tulsa, OK 74103 Telephone: (918) 594-0400 FAX: (918) 594-0505 Attorneys for Defendant WilTel Communications, LLC, f/k/a Williams Communications, Inc.

Steven E. Napper Union Pacific Railroad Company 1331 17th Street, #406 Denver, CO 80202 Gregory T. Wolf Ron Bodinson SHOOK, HARDY & BACON L.L.P. 84 Corporate Woods 10801 Mastin, Suite 1000 Overland Park, KS 66210-1669 Telephone: (913) 451-6060 FAX: (913) 451-8879 Attorneys for Defendant Union Pacific Railroad Company

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Case 1:01-cv-00075-EWN-PAC

Document 112

Filed 01/03/2006

Page 20 of 20

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of January, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Charles W. Lilley Moses Garcia Karen Cody-Hopkins Lilley & Garcia LLP 1600 Stout Street, Suite 1100 Denver, CO 80202 [email protected] Irwin B. Levin Scott D. Gilchrist Cohen & Malad, P.C. 136 N. Delaware Street, Suite 300 P.O. Box 627 Indianapolis, IN 46206-0627 [email protected] Samuel D. Heins Kent M. WilTel Renae D. Steiner Heins Mills & Olson, P.L.C. 700 Northstar East 608 Second Avenue South Minneapolis, MN 55402 [email protected] s/ Jonathon D. Bergman Jonathon D. Bergman Attorney for Defendants DAVIS GRAHAM & STUBBS LLP 1550 17th Street, Suite 500 Denver, CO 80202 Telephone: (303) 892-9400 FAX: (303) 893-1379 E-mail: [email protected]

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