Filing # 24999918 E-Filed 03/17/2015 05:20:09 PM SUPREME COURT OF FLORIDA STEPHEN J. ROGERS, et al. Appellants, RECEIVED, 03/17/2015 05:23:37 PM, Clerk, Supreme Court v. UNITED STATES OF AMERICA, Appellees. On Certified Question from the United States Court of Appeals for the Federal Circuit RAOUL G. CANTERO WHITE & CASE, LLP 200 South Biscayne Boulevard Suite 4900 Miami, FL 33131-2352 APPELLANTS REPLY BRIEF JAMES W. ELY, JR. MILTON R. UNDERWOOD PROFESSOR OF LAW, EMERITUS AND PROFESSOR OF HISTORY, EMERITUS Vanderbilt University Nashville, TN MARK F. (THOR) HEARNE, II ARENT FOX, LLP 1717 K Street, NW Washington, DC 20036-5344 (202) 857-6000 (telephone) (202) 857-6395 (facsimile) thor@arentfox.com Counsel for Appellants March 17, 2015
TABLE OF CONTENTS Page ARGUMENT...1 A. The Government Ignores the Federal Circuit s Question...1 B. Florida Disfavors the Creation of Fee Estates in Strips and Gores of Land...8 C. Answering the Certified Question Yes Would Not Upend Florida Property Law Because This Case Involves the Application of a Repealed 1892 Law to Unique Circumstances...9 CONCLUSION...11 - i -
TABLE OF AUTHORITIES CASES Page(s) Clark v. CSX Transp., Inc., 737 N.E.2d 752 (Ind. Ct. App. 2000)...7, 9 G.M. Morris Boat Co. v. Bishop, 631 S.W.2d 84 (Mo. Ct. App. 1982)...6 Gregory v. United States, 101 Fed. Cl. 203 (2011)...7 Miller v. United States, 67 Fed. Cl. 542 (2005)...7 Old R.R. Bed, LLC v. Marcus, 95 A. 3d 400 (Vt. 2014)...6 Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996)...6 Rasmuson v. United States, 109 Fed. Cl. 267 (2013)...7 STATUTES 2241, Fla. Stat. (1892)...passim General Railroad Act of 1874...2 OTHER AUTHORITIES Black s Law Dictionary...4 - ii -
ARGUMENT The Federal Circuit s certified question should be answered yes. The railway s interest in strips of land conveyed to it for purposes of laying track and running trains was limited to an easement or right of way. As we show below, (A) the government s answer brief largely ignores the Federal Circuit s certified question, repeatedly arguing that this Court s inquiry should start and end with the question s factual assumption, and that the Court should ignore the rest of the question; (B) where, as here, Seaboard entered privately owned land to survey, lay track, and run trains without owner consent and before receiving any conveyance, section 2241, Florida Statutes, provides that Seaboard took the strip of property by voluntary grant and that its property interest is limited to an easement; and (C) answering the certified question yes will not upend Florida property law in the narrow circumstances here, which involve application of an 1892 law, repealed in 1982, to the government s interest in one strip of land that runs through the property of 40 landowners. A. The Government Ignores the Federal Circuit s Question The Federal Circuit certified the following question to this Court: Assuming that a deed, on its face, conveys a strip of land in fee simple from a private party to a railroad corporation in exchange for stated consideration, does Fla. Stat. 2241 (1892); Fla. Stat. 360.01 (1941)), state policy, or factual considerations such as whether the railroad surveys property, or lays track and begins to operate trains - 1 -
prior to the conveyance of a deed limit the railroad s interest in the property, regardless of the language in the deed? Rogers, slip op. at 5 (emphasis supplied). Rather than answer the question, the government merely repeats the question s assumption that a deed, on its face, conveys a strip of land in fee simple, then, ignoring the rest of the question, argues that, if the deeds at issue here are to be assumed to convey fee simple title by their plain language, then as a legal matter no further inquiry is allowed (id. at 19-20). If the assumption was also the answer, however, the Federal Circuit would not have certified the question. Much of the government s brief argues noncontroversial legal points that do not answer the certified question, either. For example, the government argues that [r]ailroads in Florida routinely take fee simple title to land ; that the General Railroad Act of 1874 expressly authorized railroad corporations to buy, sell, and hold property without limitation ; and that the plaintiffs position is tantamount to suggesting that in Florida a railroad could never take fee simple title to property (br. at 31-32 (italics in original); see also id. at 10-12). But the plaintiffs do not argue that a railroad could never take fee simple title only that it did not do so here; and the Federal Circuit did not ask this Court whether railroads have a legal right to buy property. Similarly, the government argues that the construction of the deeds is limited to the four corners of the documents ; that a deed that conveys fee simple - 2 -
title by its plain language is not open to further interpretation ; that Florida law favors construing [ambiguous] deeds to convey a fee simple interest ; and that Florida law requires an unambiguous deed to be given full effect without regards to extrinsic or parol evidence (br. at 9, 16-17, 19). But the certified question does not ask this Court to construe a deed or how to interpret an ambiguous one. Moreover, the government is incorrect that the Federal Circuit concluded the relevant deeds at issue, on their face, unambiguously transferred fee simple title to the grantee railroad corporation (br. at 3). The court reached no such conclusion. Rather, it asked this Court, only assuming that a deed conveys fee simple title, to decide whether, under section 2241, Seaboard s interest was limited to an easement in the factual circumstances here, where Seaboard surveyed property, laid track and began operating trains before any deed was conveyed and without the consent of any owner. Regarding the issues germane to the certified question, the government does not dispute that, when Seaboard located its tracks across the plaintiffs private land, (1) Florida law gave railroads the power of eminent domain to enter and seize private land; (2) that eminent domain power was limited, for example by section 2241, Florida Statutes, which provided that the real estate received by voluntary grant shall be held and used for purposes of such grant only ; and (3) without obtaining any owner s prior consent, Seaboard laid track over plaintiffs private - 3 -
land, and began running trains, before any deed was conveyed. Indeed, although the government claims that the conveyances were arm s-length transactions unrelated to Seaboard s eminent-domain powers, that contention cannot be squared with the facts for example, the Federal Circuit s finding that Seaboard had not received any deeds corresponding to the southern portion of the rail corridor, but still operated trains along the entire corridor. Rogers, slip op. at 6. The government asks the Court to ignore section 2241, and to ignore the fact that the railroad laid track and ran trains before any conveyance of property (see, e.g., br. at 9-23); and its only substantive response is that paragraph 2 of section 2241 does not apply because Seaboard did not receive a voluntary grant of these properties (id. at 23). But the government concedes that the statute does not define voluntary grants of real estate, and that the deeds at issue here were not conveyed until after the railroad entered the plaintiffs property, surveyed and laid track, and ran trains (id. at 24, 28). The government also does not address plaintiffs argument or the seven authorities that support it that based on statutes similar to section 2241, courts of several other states have reached the conclusion we advocate (see initial br. at 12-13). Rather, relying on Black s Law Dictionary, the government argues that a voluntary grant is one given without valuable consideration (br. at 24 (citation omitted)), and that the deeds at issue in this case were provided in exchange for - 4 -
money and other valuable consideration, demonstrating that they were a purchase, rather than a voluntary grant made without consideration (id. at 25). As shown in plaintiffs initial brief, however, Seaboard never paid more than nominal consideration for any of those conveyances (initial br. at 4-5, 10). Although the government argues that the conveyances were made for money and other valuable consideration, they cite no evidence of other valuable consideration, and the only evidence of money consideration is the nominal consideration the deeds recite. Indeed, the government s argument again ignores the certified question which asks the Court to evaluate factual circumstances outside the deeds by claiming that the presence of consideration in the deeds rules out the possibility that these properties were conveyed by voluntary grant (br. at 26). The government also relies on a Missouri case construing a Missouri statute containing language nearly identical to that of section 2241, for the proposition that whether a property was given by voluntary grant to a railroad was determined by whether the deed states that the right-of-way was given for valuable consideration (br. at 24 (citing Coates & Hopkins Realty Co. v. Kansas City T. Ry. Co., 43 S.W.2d 817, 821-22 (Mo. 1931)). But a more recent Missouri case also construing a statute, similar to section 2241, which has been construed to mean that an interest in land acquired by a railway company without valuable consideration is an easement no matter what interest the deed purported to - 5 -
convey held that, if there was no valuable consideration for the deed..., it created an easement even if it purported to convey a fee simple interest. G.M. Morris Boat Co. v. Bishop, 631 S.W.2d 84, 87 (Mo. Ct. App. 1982). The court concluded that, because the consideration recited in the deed ($1) was nominal, the deed was a voluntary grant that conveyed only an easement. Id. at 88. The government claims that, in other Trails Act cases, courts have rejected the argument from landowners adjacent to the railroad corridor... that the act of surveying and locating a rail line somehow limits what a railroad can acquire through a subsequent purchase (br. at 29). But the Federal Circuit specifically affirmed that principle in Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996), decided on facts remarkably similar to those here. Indeed, in that case, where a deed purporting to convey fee simple title was issued after a railroad surveyed and located a right of way, the court held that the deed created only an easement: [T]he act of survey and location is the operative determinant, and not the particular form of transfer, if any. Id. at 1537. The government argues that Preseault was decided on Vermont law and its holding has now been repudiated by the Supreme Court of Vermont, citing Old R.R. Bed, LLC v. Marcus, 95 A. 3d 400 (Vt. 2014) (br. at 30). But in Old R.R. Bed, the court held only that a location survey alone does not demonstrate that a property was taken by eminent domain, finding unexceptional the proposition that a location survey, together with all of - 6 -
the other surrounding circumstances, [could be] evidentiary support for finding that [a] parcel was effectively taken by eminent domain. Id. at 403. Here, there is more than a location survey: as the government concedes, the railroad also laid track and started running trains before obtaining conveyances. The government s other Trails Act cases, none of which applies Florida law, are irrelevant. In Clark v. CSX Transp., Inc., 737 N.E.2d 752, 760 (Ind. Ct. App. 2000), the court limited its inquiry to the face of the deed, whereas here the Federal Circuit asks whether circumstances outside the deed affect the nature of the government s title. See also Miller v. United States, 67 Fed. Cl. 542, 545 (2005) (rejecting the argument that the deed at issue should take on the character of a condemnation proceeding where, unlike here, the court was limited to the face of the deed and the conveyance was not executed after a railroad had already entered the land and laid tracks). The court in Rasmuson v. United States, 109 Fed. Cl. 267, 277 (2013), simply held that notice of a condemnation alone did not convert a later conveyance into a condemnation. And in Gregory v. United States, 101 Fed. Cl. 203 (2011), the court held that a deed s reference to a location survey did not convert a conveyance to an easement but unlike here, no other facts suggested a threat of condemnation. The government also mischaracterizes the deeds at issue. It argues that the five relevant deeds... contain only metes and bounds descriptions of the - 7 -
property (br. at 13), and that the deeds identify a legal, arms-length transaction between parties authorized to buy and sell real estate (id. at 29). But on their face, the deeds expressly state that the railroad had already entered the grantor s land to survey and locate its railway across it, and describe the interest granted Seaboard as across and through a strip of their land one hundred (100) feet wide, being fifty (50) feet on each side of the centerline of the Seaboard Air Line Railway as located across lands owned by [grantor] (JA 360, 362, 364). That is a description of a railway line that Seaboard had already built. Such a conveyance made for the explicit purpose of recognizing Seaboard s existing right-of-way across a strip of land does not suggest an arms-length transaction. B. Florida Disfavors the Creation of Fee Estates in Strips and Gores of Land In response to the plaintiffs showing that the common law disfavors the creation of fee estates in strips or gores of land, the government argues that adopting a new presumption... would run counter to well over 150 years of settled property law (br. at 33). But the government concedes that Florida follows the strip-and-gore doctrine as to roads, some waterways, and some subdivision plats (id. at 38). It also argues that plaintiffs identify no case in which a Florida court has applied a centerline presumption to convey half of a railroad corridor to the owner of the neighboring property (id. at 39). But the plaintiffs do not advocate a centerline presumption which, for example, may - 8 -
give an owner of a parcel abutting a roadway title to the center of the road. Rather, they argue that no public policy favors granting fee simple title to a railroad for a strip of land bordered, on both sides, by the same parcel with the same owner. And the government s own authority demonstrates that [p]ublic policy does not favor the conveyance of strips of land by simple titles to railroad companies for right-ofway purposes; either by deed or condemnation, because the alienation of such strips or belts of land from and across the primary or parent bodies of the land from which they are severed, is obviously not necessary to the purpose for which such conveyances are made after abandonment of the intended uses. Clark, 737 N.E.2d at 759. C. Answering the Certified Question Yes Would Not Upend Florida Property Law Because This Case Involves the Application of a Repealed 1892 Law to Unique Circumstances The plaintiffs do not ask this Court to redefine any settled principle of Florida property law. To the contrary, we ask that this Court apply the law as it was defined and understood when Seaboard s interest in the strip of land was established. We share the amici s interest in the need for certainty in matters of title. The government is incorrect that adoption of a new rule limiting the fee title that was acquired by railroads in Florida... could have broad, unintended consequences throughout the real estate markets in the state and cast a shadow over - 9 -
the title currently held by innumerable parties that have acquired lands once owned or used by a railroad corporation (br. at 44-45). Such alarm is unfounded. The government does not dispute that the record contains almost one hundred years of subsequent deeds, every one of which describes the railroad s interest as a right-of-way. The Purchase and Sale Agreement, by which Seaboard, acting through The Trust for Public Land, conveyed whatever interest it had in the abandoned right-of-way to Sarasota County, provided that Purchaser acknowledges that certain portions of the Property may be subject to reversionary interests of adjacent property owners. (JA 1274-87, 1278). When CSX executed a quitclaim deed conveying its interest to The Public Trust for Land, it did so pursuant to the Surface Transportation Board s order invoking section 1247(d) of the Trails Act, and CSX consistently described its interest in the strip of land as a railroad right-of-way by reference to Seaboard s right-of-way and track map from 1927 (see initial br. at 5). Indeed, if CSX, as successor to Seaboard, in fact owned the strip of land in fee simple, CSX would not have needed to invoke the Trails Act to protect it from the vesting of the landowners reversionary interests. In short, the interests and expectations here are narrow, even unique. This case involves applying an 1892 law, repealed in 1982, to the government s interest in one strip of land running through property of only 40 landowners. There is no - 10 -
basis for the government s dire warnings that answering the certified question yes would upend Florida property law. CONCLUSION For the reasons stated, this Court should answer the Federal Circuit s certified question yes Seaboard s interest in the strip of land across which it laid track and ran trains, before obtaining any conveyance from the plaintiff landowners, was an easement. By: /s/ Mark F. (Thor) Hearne, II Raoul G. Cantero WHITE & CASE LLP 200 South Biscayne Blvd. Suite 4900 Miami, FL 33131 James W. Ely, Jr. Pro Hac Vice MILTON R. UNDERWOOD PROFESSOR OF LAW, EMERITUS AND PROFESSOR OF HISTORY, EMERITUS Vanderbilt University Nashville, TN Mark F. (Thor) Hearne, II ARENT FOX, LLP 1717 K Street, NW Washington, DC 20036-5344 Tel: (202) 857-6000 Facsimile: (202) 857-6395 thor@arentfox.com Counsel for Appellants March 17, 2015-11 -
CERTIFICATE OF SERVICE I certify that a copy of this brief was sent via the Court s electronic filing system and U.S. First Class Mail on March 17, 2015, to the following: Lane N. McFadden U.S. Department of Justice Environment and Natural Resources Division P.O. Box 7415 Washington, D.C. 20044 lane.mcfadden@usdoj.gov Counsel for Appellee Robert N. Clarke, Jr. James Harold Thompson Major B. Harding Ausley McMullen 123 South Calhoun Street Post Office Box 391 Tallahassee, FL 32302 rclarke@ausley.com jthompson@ausley.com mharding@ausely.com Counsel for CSX Transportation, Inc. Robert W. Goldman Goldman, Felcoski & Stone PA The 745 Building, Suite 101 745 12th Avenue South Naples, FL 34102 rgoldman@gfsestatelaw.com Counsel for Amicus Florida Bar Real Property, Probate & Trust Law Section Pamela Jo Bondi Allen Winsor Rachel Nordby Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050 allen.winsor@myfloridalegal.com rachel.nordby@myfloridalegal.com Counsel for Amicus State of Florida Marc Peoples Florida Dept. of Transportation Haydon Burns Bldg., MS 58 605 Suwannee Street Tallahassee, FL 32399-0458 marc.peoples@dot.state.fl.us Counsel for Amicus Florida Departement of Transportation Alexandra J. Overhoff Florida Land Title Association 249 East Virginia Street Tallahassee, FL 32302 alex@flta.org Counsel for Amicus Florida Land Title Association - 12 -
Kenneth B. Bell Amy B. Boulris Lauren V. Purdy 215 South Monroe St. Suite 601 Tallahassee, FL 32301 kbell@gunster.com aboulris@gunster.com lpurdy@gunster.com Counsel for Amici Alabama & Gulf Coast Railway, et al. By: /s/ Mark F. (Thor) Hearne, II MARK F. (THOR) HEARNE, II - 13 -
CERTIFICATE OF COMPLIANCE I certify that this brief is submitted in Times New Roman 14-point font, which complies with the font requirement. See Fla. R. App. P. 9.210(a)(2). By: /s/ Mark F. (Thor) Hearne, II MARK F. (THOR) HEARNE, II - 14 -