Chicago Coating Company, LLC v. United States , 892 F.3d 1164 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
CHICAGO COATING COMPANY, LLC, IGNACIO
MARTINEZ, BENJAMIN MARTINEZ,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-2198
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00625-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: June 11, 2018
______________________
MICHAEL JAMES SMITH, Stewart, Wald & McCulley,
LLC, St. Louis, MO, argued for plaintiffs-appellants. Also
represented by STEVEN WALD.
EDWARD CARLOS THOMAS, Environment and Natural
Resources Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by JEFFREY H. WOOD, ERIKA KRANZ.
______________________
2 CHI. COATING CO., LLC v. UNITED STATES
Before REYNA, CLEVENGER, and WALLACH, Circuit Judges.
CLEVENGER, Circuit Judge.
In this “rails-to-trails” case, Chicago Coating Compa-
ny and Ignacio and Benjamin Martinez (collectively
“Appellants”) seek just compensation for an alleged Fifth
Amendment taking of their reversionary interest in land
within a dormant rail corridor. When faced with cross
motions for summary judgment, the United States Court
of Federal Claims (“the trial court”) determined that the
deeds between Appellants’ predecessors-in-interest and
the original railroad conveyed the property to the railroad
in fee simple. Appellants, however, contend that the
deeds conveyed only an easement, which terminated
when the land was no longer used for railroad purposes.
Thus, the Government’s proposal to allow the corridor to
be converted into a recreational trail allegedly constituted
a taking of their reversionary interest in the easement.
We disagree, and affirm the decision of the trial court.
BACKGROUND
Congress granted the United States Surface and
Transportation Board (“STB”) 1 regulatory authority over
rail carriers who intend to discontinue or abandon any
part of their railroad line. 49 U.S.C. §§ 10501(b), 10903
(2015). A discontinuance allows a rail carrier to “cease
operating a line for an indefinite period while preserving
the rail corridor for possible reactivation of service,” while
abandonment removes the line from the national rail
1 The STB is an independent adjudicatory agency
with broad regulatory authority over railroad rates,
service disputes, mergers, and rail abandonment.
49 U.S.C. § 10501(b). It succeeded the Interstate Com-
merce Commission, which Congress dissolved in 1996.
ICC Termination Act of 1995, Pub. L. No. 104-88 § 101,
109 Stat. 803, 804 (1995).
CHI. COATING CO., LLC v. UNITED STATES 3
system and terminates the railroad’s common carrier
obligation for the line. Preseault v. Interstate Commerce
Comm’n, 494 U.S. 1, 5 n.3 (1990) (Preseault I). 2 Original-
ly, if a railroad requested to abandon a line, the STB
could either consummate the abandonment within one
year of the request, 49 C.F.R. § 1152.29(e)(2) (2016), or
exempt the line from formal abandonment proceedings
under 49 U.S.C. § 10903, and provide an expedited review
process, 49 U.S.C. § 10502(a) (2015); 49 C.F.R. § 1152.50
(2016).
But in 1983, Congress enacted Amendments to the
National Trails System Act of 1968, which created an
alternative process to abandonment, called “railbanking.”
16 U.S.C. § 1241 et seq. (2006) (“Trails Act”). Railbanking
maintains the STB’s jurisdiction over the dormant corri-
dor, but allows a third party to assume the financial and
managerial responsibilities of the right-of-way, preserve
the right-of-way for future rail use, and, in the interim,
convert the corridor into a recreational trail. Preseault I,
494 U.S. at 6–7.
In order to railbank a corridor, the railroad must first
initiate abandonment proceedings before the STB.
2 References to the Preseault line of cases have used
a variety of numbering conventions. Compare Preseault v.
United States, 100 F.3d 1525, 1530 (Fed. Cir. 1996) (en
banc) (referring to the Second Circuit decision in Pre-
seault v. ICC, 853 F.2d 145 (2d Cir. 1988) as “Preseault I”
and the Supreme Court decision on certiorari, 494 U.S. 1
(1990), as “Preseault II”), with Ellamae Phillips Co. v.
United States, 564 F.3d 1367, 1372 (Fed. Cir. 2009) (refer-
ring to the Supreme Court decision, 494 U.S. 1, as “Pre-
seault I” and this court’s opinion, 100 F.3d 1525, as
“Preseault II”). We employ the numerical convention of
Ellamae Phillips.
4 CHI. COATING CO., LLC v. UNITED STATES
49 C.F.R. §§ 1152.29, 1152.50. The party interested in
acquiring the corridor must then request that the STB
issue a Certificate of Interim Trail Use (“CITU”) or a
Notice of Interim Trail Use (“NITU”), 3 49 C.F.R.
§ 1152.29(c)–(d), which will issue if the railroad is willing
to negotiate an agreement, Preseault I, 494 U.S. at 7 n.5.
If an agreement is reached, the STB suspends the aban-
donment proceedings, which “shall not be treated, for
purposes of any law or rule of law, as an abandonment of
the use of such rights-of-way for railroad purposes.”
16 U.S.C. § 1247(d) (2014). Railbanking thus prevents
any state law reversionary interests in the corridor from
vesting. If an agreement is not reached, the abandon-
ment proceedings may continue. 49 C.F.R.
§ 1152.29(d)(1).
Following the enactment of the amended Trails Act,
property owners who believed they had a reversionary
interest in property lying in dormant rail corridors began
claiming that railbanking constituted a taking of their
property. In Preseault I, the Supreme Court recognized
that the process of railbanking could constitute a taking,
494 U.S. at 12–17, and this court subsequently held that
the establishment of a recreational trail to preclude the
reversion of an easement may also be a taking, Preseault
v. United States, 100 F.3d 1525, 1550 (Fed. Cir. 1996) (en
banc) (Preseault II). Thus, in these rails-to-trails takings
cases, the threshold question is whether the claimant has
a compensable property interest in the land allegedly
taken, which is often answered by analyzing the original
deeds that conveyed the property to the railroad. Pre-
seault I, 494 U.S. at 16; Preseault II, 100 F.3d at 1533.
3 The STB will issue a CITU as part of regular
abandonment proceedings, and an NITU as part of ex-
emption proceedings. 49 C.F.R. § 1152.29(c)–(d).
CHI. COATING CO., LLC v. UNITED STATES 5
This case involves two segments of land that are part
of a rail corridor in Cook County, Illinois, now operated by
Burlington Northern Santa Fe Railway (“BNSF”). On
December 21, 2012, BNSF initiated proceedings before
the STB to abandon the corridor. On January 29, 2013,
the Chicago Department of Transportation filed a petition
with the STB indicating its interest in negotiating a
railbanking and interim trail use agreement for the
corridor. When BNSF did not object, the STB issued an
NITU on April 9, 2013. The STB gave BNSF until April
9, 2014, to negotiate an agreement, after which the corri-
dor would be abandoned. However, after numerous
extensions, BNSF has neither reached a railbanking
agreement nor abandoned the corridor. The opportunity
for negotiation continues. Decision of the U.S. Surface
Transp. Bd., Docket No. AB-6-428-X (Mar. 6, 2018) (ex-
tending the STB’s decision and NITU until August 28,
2018).
On July 18, 2014, Appellants filed a takings claim in
the trial court, alleging that they are the fee owners of
certain parcels of land within the corridor and that the
STB’s issuance of the NITU constituted a Fifth Amend-
ment taking of their interest in that land. 4 As evidence of
ownership, Appellant Chicago Coating Company, as the
successor-in-interest, provided a deed from Daniel and
Harriet Jones, dated April 22, 1878 (“the Jones Deed”).
The deed states, in part:
4 Our rails-to-trails takings precedent holds that
the issuance of an NITU is the only governmental action
that operates to prevent abandonment of the corridor and
preclude the vesting of state law reversionary interests in
the property. The NITU thus triggers an arguable taking,
and in instances where no trail use agreement is reached,
a temporary taking may have occurred. See Ladd v.
United States, 630 F.3d 1015, 1020 (Fed. Cir. 2010).
6 CHI. COATING CO., LLC v. UNITED STATES
The Grantors . . . for and in consideration of Ten
Dollars in hand paid, convey and quit claim to
[the Grantees] all interest in the following de-
scribed Real Estate to wit: The right of way for
rail road purposes over and across a strip of land
fifty (50) feet in width being twenty five (25) feet
on each side of the centre line of the track of the
railroad known as the “Chicago and Southern
Railroad” as the same is now located and built
through over and across [the described land] . . . .
...
But this grant is upon the express condition [that
the Grantee] shall cause such premises to be used
by some regularly incorporated Railroad Company
[as part of a railway operation] and whenever a
breach of any or either of these conditions shall
appear . . . [the Grantor] shall have the right to
reenter said premises and to own, use, occupy and
enjoy the same as if the grant first above men-
tioned had never been made. And the said Gran-
tor hereby expressly waive[s] and release[s] any
and all rights under and by virtue of any and all
laws of said State of Illinois in relation to the ex-
emption of homestead.
Appellants Ignacio and Benjamin Martinez, as the
successors-in-interest, provided a deed from John and
Marjory Edward Wilkins, dated April 1, 1875 (“the Wil-
kins Deed”). The deed states, in part:
[The Grantor] in consideration of the construction
of a railroad across the premises hereinafter de-
scribed and of a permanent railroad station
. . . [the Grantor] hath granted sold and conveyed
and by these presents do grant bargain sell convey
and warrant to the [Grantee], that certain strip or
parcel of land situate in the city of Chicago in the
County of Cook and state of Illinois to wit: a strip
CHI. COATING CO., LLC v. UNITED STATES 7
of land running forty feet in width and running
diagonally across [the land] so long as said party
of the [Grantee] shall use the said strip of land for
the purpose of a railroad, and shall maintain and
use a station at the point of intersecting of Kedzie
Avenue and Swift streets and no longer.
...
It is also understood that if [the Grantee] shall
ever abandon or cease to use said strip of land for
the purpose of a railroad or omit to carry out any
of the agreements or perform any of the conditions
here made and to be performed, then and in such
case his conveyance shall be null and void, and
the [Grantees] hereby agree thereupon to recon-
vey by a good and sufficient warranty deed to [the
Grantor] the premises above described.
Both the Appellants and the Government filed cross
motions for summary judgment, disputing whether each
deed conveyed the respective properties in fee simple or
granted a mere easement, and whether a taking had
occurred.
The trial court concluded that the plain language of
each deed conveyed the respective properties in fee sim-
ple. The trial court began its analysis of the Jones Deed
by noting that it used the statutory form for quitclaim
deeds, thereby creating a statutory presumption of a fee
simple conveyance. Chi. Coating Co., LLC v. United
States, 131 Fed. Cl. 503, 510 (2017). While Appellants
asserted that the object of the statutory granting clause is
a “right of way,” the trial court concluded that such a
reading omits the fact that the granting clause conveyed
“all interest” in the property. Id. The trial court dis-
missed other easement-indicating language, such as “for
railroad purposes” and “over and across,” as merely
explaining the reasons for the conveyance, rather than
limiting the conveyance. Id. at 511–12 (likening the
8 CHI. COATING CO., LLC v. UNITED STATES
language of the deed to that in Barlow v. United States,
123 Fed. Cl. 186 (2015)). The trial court also cited to the
reversionary interest—the “right to reenter”—and home-
stead exemption as further evidence that the parties
intended a fee simple conveyance. Id. at 512.
As for the Wilkins Deed, the trial court noted that the
deed used the statutory form for warranty deeds, thereby
creating the statutory presumption of a fee simple con-
veyance. Id. at 513. This presumption was validated by
the deed’s reference to “a strip of land” in both the grant-
ing clause and description, without any reference to a
“right of way,” and the fact that the reversionary interest
explicitly requires the land to be re-conveyed back to the
Grantor by warranty deed. Id. at 513–14. The trial court
dismissed the easement-indicating language—“for the
purpose of the railroad”—as a mere description of the
parties’ motivation, which in no way limited the convey-
ance. Id. at 514.
The trial court thus concluded that the Government
did not commit a compensable taking under the Fifth
Amendment when the STB issued the NITU, because
Appellants did not possess a cognizable property interest
in the land. Id.
We have jurisdiction over this appeal pursuant to
28 U.S.C. § 1295(a)(3) (2012).
DISCUSSION
We review the trial court’s grant of summary judg-
ment de novo, Nw. Title Agency, Inc. v. United States, 855
F.3d 1344, 1347 (Fed. Cir. 2017) (citing TEG-Paradigm
Envtl., Inc. v. United States, 465 F.3d 1329, 1336 (Fed.
Cir. 2006)), applying the same standard as the trial court,
Palahnuk v. United States, 475 F.3d 1380, 1382 (Fed. Cir.
2007).
“Whether a taking has occurred is a question of law
based on factual underpinnings. We conduct a plenary
CHI. COATING CO., LLC v. UNITED STATES 9
review of the legal conclusions of the Court of Federal
Claims while reviewing its factual conclusions for clear
error.” Stearns Co. v. United States, 396 F.3d 1354, 1357
(Fed. Cir. 2005) (internal citations omitted). However,
summary judgment is appropriate only when there is no
genuine issue of material fact, Castle v. United States,
301 F.3d 1328, 1336 (Fed. Cir. 2002), and all factual
inferences should be viewed in the light most favorable to
the non-moving party, Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587–88 (1986).
I
The Fifth Amendment prohibits the taking of “private
property . . . for public use, without just compensation.”
U.S. Const. amend. V, cl. 4. In order to prove a compen-
sable taking based on the issuance of a NITU, a claimant
must prove that “state law reversionary interests [in the
property at issue] are effectively eliminated in connection
with a conversion of a railroad right-of-way to trail use.”
Caldwell v. United States, 391 F.3d 1226, 1228 (Fed. Cir.
2004).
In Ellamae Phillips Co. v. United States, we set forth
a three-part test to determine whether a claimant is
entitled to compensation in these types of rails-to-trails
cases. 564 F.3d 1367, 1373 (Fed. Cir. 2009). First, the
claimant must have an ownership interest in the land at
issue. Id. If the railroad company owns the land in fee
simple, then the Government cannot have committed a
taking and the analysis ends. Preseault II, 100 F.3d at
1533. Second, if the railroad possesses only an easement,
the claimant must show that the trail use falls outside the
scope of the easement. Ellamae Phillips, 564 F.3d at
1373. Finally, even if the easement permits using the
land as a recreational trail, claimants may recover if the
easement terminated or was abandoned prior to the
alleged taking. Id.
10 CHI. COATING CO., LLC v. UNITED STATES
Appellants did not contend that the easement had
been abandoned prior to the alleged taking in their mo-
tion for summary judgment. Chi. Coating, 131 Fed. Cl. at
509. Thus, we must answer the threshold question of
whether the Jones and Wilkins Deeds conveyed the
parcels of land at issue in fee simple, or merely granted
an easement to the railroad.
To answer that question, we must apply the law of the
state where the property interest arises. See Bd. of Re-
gents v. Roth, 408 U.S. 564, 577 (1972) (“Property inter-
ests, of course, are not created by the Constitution.
Rather, they are created and their dimensions are defined
by existing rules or understandings that stem from an
independent source such as state law . . . .”); see also
Preseault II, 100 F.3d at 1536 (reviewing the disputed
deeds under applicable state law). In Illinois, “[t]he
cardinal and all-important [rule] is to ascertain the inten-
tion of the parties,” as gathered from the entire instru-
ment, Tallman v. E. Ill. & Peoria R. Co., 41 N.E.2d 537,
539 (Ill. 1942), considering “the facts [the parties] had in
mind, including their situation, the state of the property,
and the objects to be attained,” Magnolia Petroleum Co. v.
West, 30 N.E.2d 24, 26 (Ill. 1940) (citing Waller v. Hilde-
brecht, 128 N.E. 807, 809 (Ill. 1920); Goodwillie Co. v.
Commonwealth Elec. Co., 89 N.E. 272 (Ill. 1909)).
A
Turning first to the Jones Deed, the granting clause
states: “The Grantors . . . convey and quit claim to [the
Grantees] all interest in the following described Real
Estate to wit . . . .” The clause utilizes the statutory form
for quitclaim deeds, 5 thereby creating a rebuttable pre-
5 The statutory quitclaim deed reads:
The grantor [here insert grantor’s name or names
and place of residence], for the consideration of
CHI. COATING CO., LLC v. UNITED STATES 11
sumption of a fee simple conveyance. See 1872 Ill. Laws
285, § 10 (providing statutory quit claim language and
stating that “[e]very deed in substance in the form pre-
scribed in this section . . . shall be deemed and held a good
and sufficient conveyance . . . in fee . . . .”); 1872 Ill. Laws
286, § 13 (“Every estate in lands which is granted, con-
veyed or bequeathed . . . shall be deemed a fee simple
estate of inheritance, if a less estate is not limited by
express words, or do not appear to have been granted,
conveyed or bequeathed by construction or operation of
law.”); Sowers v. Ill. Cent. Gulf R. Co., 503 N.E.2d 1082,
1085 (Ill. App. Ct. 1987) (“[U]se of the granting language
‘conveyed’ results in a presumption under [§] 13 that a fee
simple estate was intended absent limitation to a lesser
estate by express words or construction of law.”); Tall-
man, 41 N.E.2d at 539 (“[I]f language contained in an
instrument has a well-known meaning and significance in
the law, it will be presumed such meaning was in the
minds of the parties using it, unless a contrary intent is
made manifest by other language in the deed.”). With the
presumption of a fee simple conveyance in mind, we must
then look to the remainder of the deed to determine
whether it is clear that the parties intended to convey a
lesser estate.
As evidence that the parties intended to convey a
lesser estate, Appellants point to three phrases in the
deed’s description—(1) “the right of way,” (2) “for railroad
purposes,” and (3) “over and across”—immediately follow-
[here insert consideration], convey and quit claim
to [here insert grantee’s name or names] all inter-
est in the following described real estate [here in-
sert description], situate in the county of . . . , in
the state of Illinois. Dated this . . . day of . . . , A.D.
18 . .
1872 Ill. Laws 285, § 10.
12 CHI. COATING CO., LLC v. UNITED STATES
ing the granting clause. While these phrases have histor-
ically been relied upon to find that a deed conveyed an
easement, their use alone is not dispositive.
For instance, in Tallman, a deed titled “Right of Way
Deed,” for purposes of the railroad’s “right of way” “across
and upon” certain described real estate granted only an
easement, even though the deed was in statutory form.
41 N.E.2d at 539. The court reasoned that “to hold a fee
simple of all interest . . . would be to give no effect what-
ever to the words ‘right of way,’ but to hold the convey-
ance is an easement is compatible with the language of
the deed . . . .” Id. at 543. Likewise, in McVey v. Un-
known Shareholders of Inland Coal and Washing Co., a
deed titled “Deed for Right-of-Way,” which conveyed an
interest “over and through the following tract . . . for the
purposes of constructing [a railroad]” was found to also
grant a mere easement. 427 N.E.2d 215, 217 (Ill. App. Ct.
1981).
On the other hand, in Urbaitis v. Commonwealth Edi-
son, a deed that only once referenced a “right-of-way” in
the conditions clause did not overcome the statutory
presumption of a fee simple conveyance. 575 N.E.2d 548,
552 (Ill. 1991). Likewise, in Penn Central Corp. v. Com-
monwealth Edison Co., the court found “that the use of
the words ‘over’, ‘across’, and ‘through’ is merely descrip-
tive of the estate conveyed and does not constitute a
limitation on the use of the land.” 512 N.E.2d 118, 120
(Ill. App. Ct. 1987). And in Keen v. Cleveland, Cincinnati,
Chicago & Saint Louis Railway Co., a deed which de-
scribed land “‘for so much of the [railroad] as may pass
through the following described land,’ refer[red], not to
the estate conveyed, but to the location and description of
the land.” 64 N.E.2d 499, 504 (Ill. 1945). These cases all
point to a single conclusion: the use of particular lan-
guage, when viewed in isolation, does not dictate the type
of interest being conveyed. Instead, the language is used
CHI. COATING CO., LLC v. UNITED STATES 13
to illuminate the intentions of the parties as to the true
nature of the conveyance.
In this case, Appellants argue that the object of the
granting clause was the “right of way,” which clearly
evinces the parties’ intent to grant an easement. See
Jones Deed (conveying and quitclaiming “all interest in
the following described Real Estate to wit: The right of
way . . . .”). “However, there is no per se rule that the
mere inclusion of the term ‘right-of-way’ in any deed to a
railroad negates the possibility that title in fee simple was
conveyed.” Urbaitis, 575 N.E.2d at 553. The trial court
took this position as well, concluding that “all interest”
was the object of the conveyance, and that “‘[r]ight of way’
merely describes the Real Estate for which all interest is
being conveyed.” Chi. Coating, 131 Fed. Cl. at 510. While
we ultimately agree that “right of way” describes the real
estate being conveyed, the trial court’s position does not
account for the fact that the phrase “all interest” is part of
the statutory quitclaim language. 1872 Ill. Laws 285,
§ 10. Therefore, “all interest” should not be relied upon to
validate the presumption of a fee simple conveyance that
the statutory language itself creates.
Instead, looking to the entirety of the description, it
becomes clear that the phrase “[t]he right of way for rail
road purposes over and across a strip of land” is not
intended to limit the conveyance of the parcel, but to
describe the right of way the existing rail line already
possessed. See Jones Deed (describing the dimensions of
the parcel “on each side of the centre line of the track of
the railroad known as the ‘Chicago and Southern Rail-
road’ as the same is now located and built through” the
parcel being conveyed).
The Jones Deed may be likened to that of Sowers, in
which the court was faced with similarly descriptive
language. The deed in Sowers “convey[ed] and war-
rant[ed] . . . the following described Real Estate, to-wit:
14 CHI. COATING CO., LLC v. UNITED STATES
Thirty-three (33) feet in width over and across [an area of
land] being the right of way, as now occupied by said
Railway Company.” 503 N.E.2d at 1084 (emphasis omit-
ted). There, the court found “that while this language
showed an intent to locate a railroad on the strip of land
conveyed, the language in no way limited the use of this
land to railroad purposes.” Id. at 1086. Instead, the
language “served merely to locate the land on which the
railroad would be constructed and ‘expresse[d] no inten-
tion to limit the estate conveyed to less than an estate in
fee simple.’” Id. (alteration in original) (quoting Keen,
64 N.E.2d at 504).
While Appellants would have us liken this case to
Magnolia Petroleum, that case is a relative outlier, and
relied heavily upon extrinsic evidence. In that case, the
deed was in statutory form and conveyed “the following
described real estate, towit [sic]: [a description of the
bounds of the grant] to be used for road purpose.” Magno-
lia, 30 N.E.2d at 25. The court concluded that the phrase
“to be used for road purposes” in the description “dis-
close[d] an intention to grant merely a right of way, and
the words ‘convey and warrant’ are as compatible with
this intention as with the conveyance of a fee.” Id. at 27.
But to reach this conclusion, the court noted the purpose
language was ambiguous, and therefore looked to sur-
rounding circumstances—the location of the parcel, its
lack of road access, the position of the strip, and the
Grantee’s subsequent use—to support its finding. Id.
Here, Appellants have not proffered any such extrinsic
evidence.
While the Government argues that the Jones Deed’s
condition subsequent—that the Grantor reserves the
“right to reenter . . . to own, occupy and enjoy the same as
if the grant . . . had never been made”—evinces a fee
simple conveyance, we do not agree that this reversionary
interest necessarily weighs in the Government’s favor.
Such rights of reentry are equally applicable to easements
CHI. COATING CO., LLC v. UNITED STATES 15
under Illinois law. See Diaz v. Home Fed. Sav. & Loan
Ass’n of Elgin, 786 N.E.2d 1033, 1042 (Ill. App. Ct. 2002)
(“While possibilities of reverter often follow a fee interest,
they may follow other interests as well. Easements may
be held subject to future interests such as possibilities of
reverter and rights of reentry; hence, ascribing the intent
to create such an interest runs afoul of no rule of law.”
(internal citations omitted)).
Finally, we note that the Jones Deed includes a waiv-
er to the homestead exemptions. See Jones Deed (“[The
Grantors] expressly waive and release any and all rights
under and by virtue of . . . the Exemptions of home-
steads.”). The homestead exemptions arose as a means of
protecting one spouse, at the time a wife, from being
alienated from her land by the other spouse without her
consent. 1857 Ill. Laws 119; Warner v. Crosby, 89 Ill. 320,
323 (1878). Unlike rights of re-entry, the homestead
exemptions generally apply only to fee simple conveyanc-
es, not easements. See Trickey v. Schlader, 52 Ill. 78, 80
(1869) (“As this road was only an easement, and did not
dispose of the fee, the question of a homestead right in the
land by the surviving widow can not arise.”); see also
Urbaitis, 575 N.E.2d at 551 (determining that deeds
containing waivers to the homestead exemptions con-
veyed a fee simple); Sowers, 503 N.E.2d at 165–66, 169,
173 (similar). But see Tallman, 379 N.E.2d at 539, 543
(determining that a deed conveyed a right of way ease-
ment, despite the fact that the deed included a waiver to
the homestead exemptions). While not dispositive, the
inclusion of the waiver of the homestead exemption
indicates intent to convey a fee simple.
While certain language from the Jones Deed may
weigh slightly in Appellants favor, we conclude that the
use of the statutory form and the inclusion of the waiver
of the homestead exemption weigh heavily in the Gov-
ernment’s favor. Therefore, considering the instrument
as a whole, see Urbaitis, 575 N.E.2d at 552, we agree with
16 CHI. COATING CO., LLC v. UNITED STATES
the trial court that the Jones Deed conveyed the parcel in
fee simple.
B
Turning to the Wilkins Deed, the granting clause
states: “[The Grantors] in consideration of the construc-
tion of a railroad across the premises hereinafter de-
scribed . . . do grant bargain sell convey and warrant to
the [Grantee], that certain strip or parcel of land . . . .”
The clause utilizes the statutory form for warranty
deeds, 6 thereby creating a statutory presumption of a fee
simple conveyance. See 1872 Ill. Laws 284, § 9 (providing
statutory warranty deed language and stating that
“[e]very deed in substance in the above form . . . shall be
deemed and held a conveyance in fee simple . . . .”);
1872 Ill. Laws 286, § 13; Sowers, 503 N.E.2d at 1085.
With the presumption of a fee simple conveyance in mind,
we must then look to the remainder of the deed to deter-
mine whether the parties instead intended to convey a
lesser estate.
Unlike the deeds in Tallman and McVey, which both
explicitly referred to a “right of way” in the title and
throughout and made specific reference to how the land
would be used, the Wilkins Deed’s granting clause is
6 The statutory warranty deed reads:
The grantor [here insert name or names and place
of residence], for and in consideration of [here in-
sert consideration] in hand paid, conveys and
warrants to [here insert the grantee’s name or
names] the following described real estate [here
insert description], situated in the county of . . . ,
in the state of Illinois. Dated this . . . day of . . . ,
A.D. 18 . .
1872 Ill. Laws 284, § 9.
CHI. COATING CO., LLC v. UNITED STATES 17
devoid of any easement-indicating language. In fact, it
refers to a “strip of land” both in the granting clause and
immediately thereafter in the description, making the
“strip of land” the unambiguous object of the conveyance.
See McVey, 427 N.E.2d at 217 (“[When a] deed to the
railroad conveys a definite strip or parcel of land with no
language in the deed relating to the use or purpose of the
grant or no language limiting the estate conveyed, the
deed will be construed to convey a fee simple title.”); see
also Sowers, 503 N.E.2d at 1085–86 (addressing McVey
before concluding “that while [purpose] language showed
an intent to locate a railroad on the strip of land con-
veyed, the language in no way limited the use of this land
to railroad purposes”).
Appellants would have us liken the Wilkins Deed to
that in Magnolia based on the existence of the phrase “for
the purpose of a railroad” in the description. See Wilkins
Deed (conveying “a strip of land . . . so long as said party
of the [Grantee] shall use the said strip of land for the
purpose of a railroad”). But, as discussed previously,
Magnolia relied heavily on extrinsic evidence. 30 N.E.2d
at 27. Unlike Magnolia, there is no ambiguity in the
Wilkins Deed to warrant an examination of extrinsic
evidence. See Urbaitis, 575 N.E.2d at 552 (“Absent an
ambiguity in the deed, the intention of the parties must
be discerned solely from the language of the instrument,
without consideration of extrinsic factors.”). But even if
there were ambiguity, Appellants have not proffered any
extrinsic evidence supporting their position.
Instead, the Wilkins deed may be better likened to
that in Urbaitis, which used the statutory form for war-
ranty deeds and made “a strip of land” the object of the
conveyance. See 575 N.E.2d at 551 (The Grantor “conveys
and warrants” to the Grantee “the following described
real estate, to-wit: A piece or parcel of a tract of
land . . . .”). Like Urbaitis, the subsequent purpose lan-
guage in the description does nothing to limit the convey-
18 CHI. COATING CO., LLC v. UNITED STATES
ance of “a strip of land” but merely describes the motiva-
tions of the parties.
Our position that the Wilkins Deed conveyed the
property in fee simple is further supported by the inclu-
sion of the reversionary interest. Where the Jones Deed
included a “right to reenter,” the Wilkins Deed explicitly
requires that the Grantee “reconvey by a good and suffi-
cient warranty deed to [the Grantor] the premises above
described.” Such a re-conveyance would be entirely
unnecessary if the original instrument granted a mere
easement. For these reasons, we agree with the trial
court that the Wilkins Deed conveyed the parcel of land in
fee simple.
CONCLUSION
With both the Jones and Wilkins Deeds conveying ti-
tle to their respective parcels of land in fee simple, Appel-
lants have failed to allege a cognizable property interest
on which they can recover just compensation. For these
reasons, the Government did not commit a compensable
taking under the Fifth Amendment, and we affirm the
final judgment of the trial court.
AFFIRMED
COSTS
No costs.