Sarah E. Price Revocable Trust Dated June 30, 2014 v. United States ( 2021 )

In the United States Court of Federal Claims
No. 19-1408
(Filed: 15 October 2021)
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SARAH E. PRICE, *
*
Plaintiff, * Motion for Summary Judgment; RCFC 56;
* Rails-to-Trails; Easement; Fee Simple; Issue
v. * Preclusion; Deed Construction; Georgia
* Property Law; Centerline Presumption;
THE UNITED STATES, * Warranty Clause; Reservation of Cultivation
* Rights; Strips-and-Gores-Doctrine
Defendant. *
*
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Steven M. Wald, with whom was Michael J. Smith, Stewart Wald & McCulley LLC, St.
Louis, MO, for plaintiff.
Elizabeth R. McGurk and Dustin J. Weisman, Trial Attorneys, with whom was Paul E.
Salamanca, Deputy Assistant Attorney General, Environment & Natural Resources Division,
Department of Justice, Washington DC, for defendant.
OPINION AND ORDER
HOLTE, Judge.
Plaintiff, owner of land abutting a former railroad line operated by Norfolk Southern
Railroad (“NSR”) in Atlanta, Georgia, alleges the United States’ conversion of the abandoned
railroad adjoining her property pursuant to the National Trails System Act is a taking under the
Fifth Amendment. Plaintiff moved for partial summary judgment of liability, alleging NSR and
its predecessors merely held an easement for railroad purposes at the time of abandonment. The
government filed a cross motion for summary judgment arguing the railroad company held the
land in fee simple. For the following reasons, the Court GRANTS plaintiff’s motion for partial
summary judgment and DENIES the government’s cross-motion for partial summary judgment,
and finds NSR and its predecessors only held an easement at the time of abandonment.
I. Background
A. Factual History of the Land in Dispute
The Court summarizes the factual history from the complaint and the parties’ summary
judgment briefing. The parties do not raise factual disputes in the cross-motions for summary
judgment. Transcript (“Tr.”) at 7:14–20, ECF No. 28 (Transcript of Oral Argument on 2 June
2021).
Plaintiff’s property sits along a segment of former railroad line in Atlanta, Georgia,
commonly known as the “Decatur Street Belt” (“Railroad Segment”). Pl.’s Compl. at 1–2, ECF
No. 1; Gov’t Cross-Mot. for Summ. J. and Supp. Mem., and Resp. to Pl.’s Mot. for Partial
Summ. J. on Liability (“Gov’t MPSJ”) at 12, ECF No. 18. The Railroad Segment was originally
obtained by the Georgia Air Line Railroad through a deed from Jerome Bearse (“Bearse deed”).
Pl.’s Mem. in Supp. of Pl.’s Mot. for Partial Summ. J. on Liability (“Pl.’s MPSJ Mem.”) at 7,
ECF No. 17. The Bearse deed reads in relevant part with disputed aspects underlined and
italicized:
In consideration of the benefit and advantage to me accruing by the construction...of
the Georgia Air Line Rail Road as well as the receipt of Two hundred dollars to me
paid. I have this day bargained and sold and do hereby transfer and Convey unto
the Georgia Air Line Rail Road Company and its successors and assigns all the
land contained within one hundred feet in width on each side of the Track [o]r
Roadway (measuring from the center) of any portion of the lot of land hereinafter
described through which said Rail Road may be constructed run and operated the
land hereby conveyed being cut off and a portion of land lots number [ ] in the
17th... of one originally Henry now Fulton County Ga and Jerome Bearse reserves
the privilege of cultivating the Company right of way up to the tract on either side
the same being the place whereon said Bearse now lives.
To have and to hold said tract or parcel of land unto said Georgia Air Line Rail
Road Company for Rail Road purposes for ever in fee simple
Witness my hand and seal this 29th day of April AD 1869 Signed sealed and
delivered
Pl.’s MPSJ Mem. at 12–13 (emphasis added). Over the next twenty-five years, the Railroad
Segment underwent ownership changes. Gov’t MPSJ at 5. The Southern Railway Company
eventually assumed control of the Railroad Segment and operated it from 1894 to 1982. Id. In
1982, the Southern Railway Company consolidated with the Norfolk and Western Railway
Companies, both as subsidiaries of the Norfolk Southern Corporation. Id. NSR controlled the
Railroad Segment until abandonment, leading to the present dispute. Id.
On 27 March 2017, NSR filed a verified notice of exemption to abandon 0.68 miles of its
railroad line along the Railroad Segment between milepost DF 632.42 and milepost DF 633.10
with the United States Surface Transportation Board (“STB”). Pl.’s Mot. for Partial Summ. J. on
Liability (“Pl.’s MPSJ”) at 1, ECF No. 16. Transferring the Railroad Segment right-of-way to
Atlanta BeltLine, Inc. (“ABI”) was to promote urban development and improvement of Atlanta’s
infrastructure. See Pl.’s Ex. A, ECF No. 16-1 (verified notice of exempt abandonment by NSR).
On 1 September 2017, ABI filed a request with the STB for interim trail use of the Railroad
Segment. Pl.’s MPSJ at 2. On 28 September 2017, the STB issued a Notice of Interim Trail Use
(“NITU”) for the Railroad Segment. Id. On 17 October 2017, ABI and NSR notified the STB
they entered into a trail use agreement for the Railroad Segment. Id.
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The Railroad Segment in dispute is between milepost DF 632.10 and milepost DF
633.10. Id. at 1. NSR owned the land, for railroad purposes, extending approximately one mile
along the Railroad Segment. Gov’t MPSJ. at 5. The Railroad Segment stretched across and
abutted property owned by plaintiff. Pl.’s Compl. at 2. Plaintiff owned this land adjacent to the
Railroad Segment on the date of abandonment and when the NITU was granted. Id.
B. Procedural History
On 12 September 2019, plaintiff filed a complaint alleging the government, by operation
of the Trails Act, took her land without just compensation in violation of the Fifth Amendment
of the United States Constitution. See Pl.’s Compl. Plaintiff filed a motion for partial summary
judgment on liability on 1 October 2020. See Pl.’s MPSJ. On 9 November 2020, the
government filed its cross-motion for summary judgment and response to plaintiff’s motion for
summary judgment. See Gov’t MPSJ. On 2 June 2021, the Court held oral argument on the
parties’ cross-motions for partial summary judgement on liability. See Tr.
C. Overview of Cases Concerning the Bearse Deed
Before plaintiff filed the current action, two other cases examined the Bearse deed to
determine if the deed conveyed an easement or fee. The Superior Court of Fulton County,
Georgia, ruled the Bearse deed conveyed fee simple and not an easement, when the court
decided an adverse possession issue. Atlanta Dev. Auth. v. Ragan, Civil Action File No.
2016CV273389 (Superior Ct. Fulton Cnty., Ga. Sept. 19, 2017). Conversely, another judge on
this court held the Bearse deed conveyed an easement—and not fee simple—when the court
decided a similar takings issue pursuant to the Trails Act. Ansley Walk Condo. Ass’n, Inc. v.
United States, 142 Fed. Cl. 491 (2019).
II. Summary Judgment Standard
Summary judgment is appropriate where the evidence demonstrates there is “no genuine
dispute as to any material fact and that the movant is entitled to judgement as a matter of law.”
Rules of the Court of Federal Claims (“RCFC”) 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986). A genuine issue is one that “may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. A fact is material if it might significantly affect the outcome
of the suit. Id. at 248. In determining if summary judgment is appropriate, a court will draw all
inferences in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A party seeking summary judgment bears the
burden of establishing the “absence of any genuine issues of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting Catrett v. Johns-Manville Sales Corp., 756 F.2d 181,
184 (D.C. Cir. 1986)).
When the moving party has met this burden, the burden shifts and the nonmovant must
point to sufficient evidence to show a dispute exists over a material fact allowing a reasonable
fact finder to rule in its favor. Anderson, 477 U.S. at 256. The evidence need not be admissible,
but mere denials, conclusory statements, or evidence that is merely colorable or not significantly
probative will not defeat summary judgment. Celotex, 477 U.S at 324.
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III. Parties’ Arguments
Plaintiff seeks just compensation under the Fifth Amendment of the United States
Constitution for the taking of her property. Pl.’s MPSJ Mem. at 2. Plaintiff argues the railroad
held an easement in the land at issue, and the court in Ansley Walk correctly determined the
Bearse deed conveyed an easement. Id. at 8. Plaintiff urges the Court to construe the Bearse
deed as conveying an easement using a weight of the factors analysis under Georgia law. Id. at
14. Plaintiff states the Court should focus on the reservation of cultivation rights while assigning
less weight to the consideration paid for the deeded land. Id. at 14, 23. Plaintiff believes
construing the deed as an easement is the only construction that reconciles all parts of the deed.
Id. at 26. Additionally, plaintiff claims the scope of the easement was limited to railroad
purposes and the issuance of the NITU to authorize conversion of the railroad right-of-way for
use as a recreational trail is beyond the scope of the easement. Id. at 28. Plaintiff also seeks
judgment pursuant to the doctrine of issue preclusion as the court in Ansley Walk found the
Bearse deed conveyed easement under Georgia law. See Pl.’s Suppl. Mem. in Supp. of Pl.’s
Mot. for Partial Summ. J. on Liability (“Pl.’s Suppl.”) at 1–2, ECF No. 22.
The government asserts the railroad held the Railroad Segment subject to the NITU in fee
simple. Gov’t MPSJ at 7. The government contends Georgia law presumes a deed conveys fee
and requires an assessment of the deed in its entirety, and the deed in this case indicates the
parties intended to convey fee simple. Id. at 8, 12. The government further contends plaintiff
misinterprets Georgia Law by arguing consideration should be given little weight. Id. at 20. The
government directs the Court to consider the railroad statute in effect when the deed was
conveyed to determine the intent of the parties. Id. at 22. The government also contends
plaintiff fails to overcome the presumption of fee. Id. at 24. Finally, the government asserts a
Georgia court has already examined the Bearse deed and held it conveyed fee simple and not an
easement. Id.
IV. Applicability of the Georgia Superior Court’s Interpretation of the Bearse Deed in
Atlanta Dev. Auth. v. Ragan
In Atlanta Dev. Auth. v. Ragan, the Superior Court of Fulton County, Georgia, interpreted
the Bearse deed regarding a dispute over land along the Atlanta BeltLine, Inc. Atlanta Dev.
Auth. v. Ragan, Civil Action File No. 2016CV273389, at 1 (Superior Ct. Fulton Cnty., Ga. Sept.
19, 2017) (“Ragan”). The government urges the Court to adopt the Ragan decision in
interpreting the Bearse deed because the Ragan court “applied the [Georgia] Supreme Court
holding of Jackson v. Rogers and interpreted the deed pursuant to that case.” Tr. at 12:10–14,
13:2–4. Plaintiff disagrees, asserting the Ragan decision is a trial court decision and deserves no
deference by this Court. Tr. at 13:5–18. Plaintiff emphasizes the Ragan decision is mere dicta
because the court does not explain why it concluded the deed conveyed fee simple. Tr. at 13:13–
18, 17:1–16 (“Here there’s no reasoning, so you can’t understand why the Court reached the
opinion that it did.”) (“And so it’s literally not a holding; it’s literally dicta.”). The government
rebuts in arguing the trial court could not have addressed the underlying claims without
analyzing the deed and reasoning it conveyed fee simple. Tr. at 17:21–18:4 (“I don’t know that I
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agree that it is dicta . . . [and] the Court first undertook the analysis of is there fee simple or is
there an easement.”).
The government stated the Ragan parties’ arguments closely resembled the parties’
arguments in this case. 1 The government agrees the Ragan decision is “not precedential,” as a
federal court need only defer to the highest state court’s interpretation of state law. Tr. at 18:23,
12:18–24 (discussing Gurley v. Rhoden, 421 U.S. 200 (1975)); Tr. at 21:14–18 (Counsel for the
government stated to the Court, “you’re not required to follow the Ragan decision.”). Further,
the Ragan court only discussed the Bearse deed in one sentence: “With respect to Defendants’
argument that the 1869 Deed conveyed an easement rather than fee simple, the Court finds that
the 1869 Deed conveyed fee simple title under Jackson v. Rogers, 205 Ga. 581, 54 S.E.2d 132(1949).” Ragan at 4 (emphasis omitted). The government’s argument the Court should defer to
Ragan is further undermined by Albano, where another judge on this court reviewed the Ragan
decision and found:
It is possible that a Georgia court would find that the interest conveyed by the
Bearse deed was not adequately litigated to lend a preclusive effect if a related case
was brought in state court. Even if it was adequately litigated, it is also possible
that Ragan’s lack of analysis for its finding that the Bearse deed conveyed an
interest in fee indicates that the issue was not necessarily decided, especially given
the presence of an alternative holding.
Albano v. United States, 152 Fed. Cl. 343, 349 n.3 (2021). The government agrees the Albano
court found Ragan “wasn’t precedential.” Tr. at 19:4–21:18.
1
During oral argument in this case, the government agreed the 19 September 2017 Ragan order does not contain
analysis of the Superior Court’s conveyance determination; however, the government suggested the Court review
the basis of the Ragan order, the 7 September 2017 oral argument transcript, as the Ragan parties’ arguments closely
resembled the parties’ arguments in this case and the transcript allegedly contained the Superior Court’s analysis.
Tr. at 13:19–14:23. When the Court asked whether the Georgia Superior Court explained its reasoning in the Ragan
transcript, the government responded, “I don’t believe so.” Tr. at 14:24–15:6. To be clear, while the substance of
the Ragan parties’ arguments were akin to the parties’ arguments in this case, the positions are reversed because in
Ragan the landowners were defendants. At oral argument, Ragan-plaintiff stated: “[D]efendants have identified
[the Bearse] deed, this 1869 deed, and they have argued that this deed does not transfer a fee simple title. It transfers
only an easement.” Gov’t MPSJ Ex. E (“Ragan Tr.”) at 33:1–3. Ragan-defendants proposed a “five-factor test” to
support finding easement conveyance. Ragan Tr. at 33:4–13. Ragan-plaintiff did agree “there are all kinds of
factors that courts consider in connection with determining whether or not a transfer is an easement or fee simple,”
but plaintiff asserted “in the dozens of Georgia Supreme Court cases . . . construing a deed and determining whether
or not it’s fee simple or an easement, you will not find a single reference to the famous five-factor test . . . because it
doesn’t exist.” Ragan Tr. at 33:4–15. Ragan-defendants also sought to introduce expert affidavits regarding the
conveyance, to which plaintiff argued construing the deed “is a pure legal issue” and it is “incredible that someone
from 2017 can opine as to the intent of parties in 1869.” Ragan Tr. at 16:4–13. While the Ragan transcript included
the parties’ arguments, it lacked analysis from the court regarding the Bearse deed. The Ragan court merely stated,
“I will take the motions under advisement.” Ragan Tr. at 60:2. Without record of the Ragan court’s reasoning, it is
hard to discern why the Georgia Superior Court found fee conveyance. The court might have found fee conveyance
because Ragan-defendants errantly argued for expert affidavits or because they incorrectly asserted a “five-factor”
test. Another possible explanation is the court’s conveyance determination was not necessary for the court’s
ultimate decision. Ragan, Civil Action File No. 2016CV273389, at 4 (“even if the 1869 Deed only conveyed an
easement, the Court finds that Defendants have no basis to assert title claims based on the railroad company’s
alleged abandonment.”). Regardless, the Ragan court does not explain its reasoning, therefore, this Court does not
find either the Ragan order or the Ragan transcript persuasive.
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The Court does not find Ragan persuasive as neither the Ragan order nor the Ragan
transcript contained the court’s analysis of how it found the Bearse deed conveyed fee simple
instead of an easement. Ragan was not a takings case, rather, the issue before the state trial court
was liability for trespass. Ragan at 5–6. Further, Gurley v. Rhoden, 421 U.S. 200 (1975),
merely states a federal court should defer to the highest state court’s interpretation of state law,
thus the Court need not to defer to Ragan because it is a Superior Court of Georgia decision. See
Ansley Walk, 142 Fed. Cl. at 500 n.1 (noting “state court decisions generally have no
precedential value in this Court, so Georgia law is, at best merely persuasive in a Fifth
Amendment Takings analysis.”). Accordingly, the Court will not consider the Ragan decision to
determine if the Bearse deed conveyed an easement or fee simple.
V. The Application of the Doctrine of Issue Preclusion Against the Government
Plaintiff argues the government is barred from re-litigating whether the Bearse deed
conveyed an easement or a fee, as Ansley Walk is a final decision ruling the Bearse deed
conveyed an easement. See Pl.’s Suppl. at 1. In United States v. Mendoza, the Supreme Court
held issue preclusion does not apply to the United States government; however, plaintiff argues
this Court should apply issue preclusion against the government, because “none of the Supreme
Court’s policy concerns are invoked by this case, and furthermore because for all practical
purposes there is mutuality of the parties.” Id. at 5; see United States v. Mendoza, 464 U.S. 154(1984).
The government argues the Supreme Court “unequivocally stated [in United States v.
Mendoza], ‘We hold that the United States may not be collaterally estopped on an issue such as
this, adjudicated against it in an earlier lawsuit brought by a different party.’” Gov’t Reply to
Pl.’s Resp. to Def.’s Cross-Mot. for Summ. J. on Liability (“Gov’t Reply”) at 12, ECF No. 23
(quoting Mendoza, 464 U.S. at 155). It contends the “Supreme Court in Mendoza made clear the
United States often defends lawsuits, like this one, where the underlying issues are the same.”
Gov’t Reply at 15. The government argues the Ansley Walk case and the present case involve
separate parcels of land, with separate owners, who filed separate takings lawsuits against the
United States. Id. The government further notes the dismissal of claims in Ansley Walk intended
for there to be no collateral estoppel. Id. at 16 (“[W]hether or not collateral estoppel can arise by
reason of a settlement agreement depends on the intent of the parties as reflected in their
agreement.”). The government explained at oral argument “an issue is not actually litigated for
purposes of collateral estoppel unless the parties to a stipulation manifest an intent to be bound in
a subsequent action,” Tr. at 103:11–16, and in Ansley Walk¸ there was no “language in the
settlement agreement that says [the parties will] be bound by [the decision].” Tr. at 103:17–22.
The doctrine of issue preclusion, or collateral estoppel, “protects the finality of
judgements by ‘preclud[ing] relitigation in a second suit of claims actually litigated and
determined in the first suit.’” Laguna Hermosa Corp. v. United States, 671 F.3d 1284, 1288
(Fed. Cir. 2012) (quoting In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994)). Issue preclusion
“does not include any requirement that the claim (or cause of action) in the first and second suits
be the same. Rather, application of issue preclusion centers around whether an issue of law or
fact has been previously litigated.” In re Freeman, 30 F.3d 1459, 1465 (Fed. Cir. 1994). A party
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seeking to apply the doctrine of issue preclusion must show: “(1) the previous determination
was necessary to the decision; (2) the identical issue was previously litigated; (3) the issue was
actually decided in a decision that was final, valid, and on the merits; and (4) the party being
precluded from relitigating the issue was adequately represented in the previous action.” United
Access Techs., LLC v. Centurytel Broadband Servs. LLC, 778 F.3d 1327, 1331 (Fed. Cir. 2015).
“[T]he party asserting preclusion bears the burden of showing ‘with clarity and certainty what
was determined by the prior judgment.’” Id. (citations omitted).
In Mendoza, the Supreme Court held non-mutual, offensive collateral estoppel does not
apply against the United States. Mendoza, 464 U.S. at 158–63. The government is involved in
more cases than a private litigant and it is more likely to be involved in lawsuits against different
parties which nonetheless involve the same legal issues. Id. at 160. As the Court finds the
Bearse deed conveys an easement infra, the Court does not analyze or decide whether the
government is precluded from arguing the Bearse deed conveys fee.
VI. Review of the Bearse Deed in Light of Georgia State Law and Interpretations of Deeds
by Georgia State Courts
In this Court, state law defines property rights. The Court applies Georgia law to
determine if the Bearse deed conveys an easement or fee simple. See Hardy v. United States
(“Hardy I”), 127 Fed. Cl. 1, 8 (2016) (citing Preseault v. United States, 100 F.3d 1525, 1534
(Fed. Cir. 1996) (en banc)) (“When reviewing these deeds, the court must examine them in light
of the common law and the law of Georgia at the time that they were executed.”). Georgia
precedent requires a court examine each deed as a whole. See generally Latham Homes
Sanitation, Inc. v. CSX Transp., Inc., 538 S.E.2d 107, 109 (Ga. 2000); Barber v. S. Ry. Co., 274
S.E.2d 336 (Ga. 1981); Rogers, 54 S.E.2d at 136; Jackson v. Sorrells, 92 S.E.2d 513, 514 (Ga.
1956).
The Bearse deed contains elements pointing to interpretations of both a conveyance of an
easement and fee. The three primary clauses in the deed—“[t]wo hundred dollars to me paid”;
“for ever in fee simple”; and “[to] its successor and assigns”—seemingly point to an
interpretation of fee transfer. Reviewing similar deed language in comparable Georgia Supreme
Court cases, however, highlights that Georgia law requires a comprehensive analysis of deeds in
dispute. As an initial example, the 1956 Sorrells case reviewed a deed with three fee simple
oriented clauses and the Georgia Supreme Court held the deed transferred an easement. See
Sorrells, 92 S.E.2d at 514. The Sorrells court compared the deed at issue to another deed and
held the grantor intended to transfer an easement based on the reservation of cultivation rights.
Id. This Court must accordingly conduct a comprehensive analysis of the Bearse deed as the
Georgia Supreme Court would.
A. Georgia State Law Presumption of a Conveyance of Fee
The government contends the Bearse deed must be viewed in light of “Georgia’s
additional case law and Georgia’s statutory presumption of fee.” Tr. at 10:3–8; Tr. at 77:11–14.
Plaintiff agrees the statute provides a presumption of fee and “if there’s not limiting language . . .
it’s going to be a fee.” Tr. at 76:13–77:9. Nevertheless, plaintiff suggests the Court consider the
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deed as a whole to determine if there is limiting language and other indications of an easement.
Id.Georgia Code states “[e]very properly executed conveyance shall be construed to convey
the fee unless a lesser estate is mentioned and limited in that conveyance.” GA. CODE ANN. § 44-
6-21 (2021). The Bearse deed will be presumed to convey fee simple; however, despite this
presumption, this case involves a lengthy deed, and the Court must review the deed as a whole,
“not merely disjointed parts of it.” Rogers, 54 S.E.2d at 136.
B. Consideration Paid in the Bearse Deed to the Grantor by the Railroad
The government argues the $200 consideration in the Bearse deed is substantial and
supports a fee conveyance. Tr. at 71:3–13. Plaintiff argues consideration is “just not important,”
because the Court is “left to guess as to what amount of consideration would even be substantial .
. . [for] property values from the 1860s.” Tr. at 72:5–12. Plaintiff contends the Court cannot
“guess” whether consideration is substantial, especially when there is no evidence it is, and this
guessing renders consideration meaningless. Tr. at 72:14–19. The government argues the Court
can determine if consideration is substantial by comparison to other cases where courts found a
certain consideration amount substantial, Tr. at 73:4–9, but the Court is not required to do this
exercise. Tr. at 72:20–73:4. The government also acknowledges it has not “gone back and done
those calculations” to determine if the consideration paid in the Bearse deed is a fair market
value for the land conveyed. Tr. at 73:10–23.
Substantial consideration generally points to a fee conveyance. Johnson v. Valdosta, M.
& W. R. Co., 150 S.E. 845, 847 (Ga. 1929). While substantial consideration could be indicative
of a fee conveyance, the very nature of railroad easements—invasive, noisy, and perpetual
operations—readily explains why a grantor might require a non-nominal fee from the railroad in
exchange for such easements. See Terr. of New Mexico v. U.S. Trust Co., 172 U.S. 171, 183
(1898) (describing characteristics of railroad easements); see also Duggan v. Dennard, 156 S.E.
315, 316 (Ga. 1930) (describing disruption to grantor’s property by railroad operations). The
parties compared the $200 consideration in the Bearse deed to the deeds in Rogers, Sorrells, and
Savannah. See Rogers, 54 S.E.2d 132; Sorrells, 92 S.E.2d 513; Mayor of Savannah v. Barnes,
96 S.E. 625 (Ga. 1918). The Rogers and Sorrells deeds both had consideration of ten dollars.
Rogers, 54 S.E.2d at 133; Sorrells, 92 S.E.2d at 513. The court in Rogers found there was a
conveyance of fee, despite the low amount of consideration. Rogers, 54 S.E.2d at 138. The
government asserts the Rogers court finding fee with such a low consideration is “stronger
evidence for a finding that the Bearse deed did convey fee,” because “[i]f the Rogers [deed]
conveyed fee at $10, then the Bearse deed surely conveyed fee at $200.” Tr. at 70:14–18. The
Sorrells court, however, found an easement conveyance with the same nominal ten-dollar
consideration. Sorrells, 92 S.E.2d at 514. The Savannah court found the deed conveyed an
easement despite the substantial consideration of $750. Savannah, 96 S.E. at 626. The
government distinguishes the Savannah deed from the Bearse deed by arguing the substantial
consideration in Savannah was to reimburse the grantor for money he expended before the
conveyance and “wasn’t necessarily payment for fee title.” Tr. at 69:20–70:3. In short, while
consideration is not meaningless, it is merely one factor in a court’s analysis—and an
inconclusive factor at that.
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The Bearse deed has greater consideration than the Rogers and Sorrells deeds, where two
deeds with the same ten-dollar consideration were respectively construed to convey a fee simple
and an easement. Rogers, 54 S.E.2d at 138; Sorrells, 92 S.E.2d at 514. The Bearse deed also
has much less consideration than the Savannah deed, where the court found an easement.
Savannah, 96 S.E. at 626. The parties in this case did not determine what the fair market value
of the property in question would have been in the 1860s. Tr. at 73:10–23, 73:24–74:11. Hence,
the Court recognizes consideration is only one aspect and is not dispositive for finding a fee
conveyance. See Rogers, 54 S.E.2d at 586–87 (instructing courts to consider the whole deed, not
just “disjointed” parts).
C. The “Right of Way” Clause Dictates the Railroad Company’s Rights on the
Land Conveyed to Them in the Bearse Deed
The Bearse deed “right of way” clause reads, “Jerome Bearse reserves the privilege of
cultivating the Company right of way.” Pl.’s MPSJ Mem. at 12. The Government argues the
“right of way” clause does not disqualify a deed from conveying fee, Tr. at 26:22–27:14, and a
“right of way” clause is generally not decisive, because it can have different meanings depending
on “where in the deed the language occurs and what other terms the deed has.” Tr. at 29:10–13.
The Government cites Valdosta, 150 S.E. at 847, to support its position that “right of way”
language must be present in the warranty or habendum clause to transfer an easement. Tr. at
27:12–22, 28:22–29:3 (“The phrase ‘right of way’ in the conveyance of a deed does not
necessarily mean an easement was conveyed.”). Plaintiff disagrees with the government’s
contention the “right of way” clause must be in the habendum clause to indicate the deed
conveys an easement, and plaintiff argues the “right of way” phrase in the primary language of
the Bearse deed describes the property right being granted, which relates back to the granting
clause. Tr. at 29:25–30:7.
Georgia property law generally interprets a “right of way” clause as an indication of
easement conveyance. Jackson v. Crutchfield, 191 S.E. 468, 470 (Ga. 1937). The “right of way”
clause is used to dictate what a railroad company may do on the land conveyed. See Askew v.
Spence, 79 S.E. 2d 531, 532 (Ga. 1954) (describing right of way for track or roadbed may be
located and established by a second party on the grantor’s lands). The “right of way clause,”
however, is not always dispositive of conveying an easement. See Valdosta, 150 S.E. at 847
(finding fee conveyance when the deed had “right of way” in its habendum clause as railroad
“right of way” has a twofold meaning and is sometimes merely descriptive).
While a “right of way” clause in a deed is not dispositive of easement conveyance, it is
indicative of such a conveyance. See Crutchfield, 191 S.E. at 470. The phrase “the Company
right of way” is only in the body of the Bearse deed, not in the habendum clause; however, the
habendum clause relates back to the “right of way” clause by referring to “said tract or parcel of
land.” Pl.’s MPSJ Mem. at 12. Thus, the phrase, “the Company right of way,” tends to support
easement conveyance. See id.
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D. The “For Railroad Purposes Only” Clause in the Bearse Deed
The government argues without a reversionary clause, the “for railroad purposes” clause
in the Bearse deed is merely descriptive because “if the parties intend for something to happen if
the parcel is no longer used for railroad purposes, then [the deed] should state that.” Tr. at
32:21–33:2. The government relies on Hollomon v. Bd. of Educ. of Stewart Cnty., 147 S.E. 882(Ga. 1929) to support this contention but was unable to cite any supportive Hollomon language.
Tr. at 31:13–34:9. The government also read from City of Atlanta v. Jones, 69 S.E. 571 (Ga.
1910), “[i]f parties desire that a forfeiture shall result or that an estate shall terminate, they
should so state.” Tr. at 33:3–9 (citing Jones, 69 S.E. at 572). The government further asserts
words such as “so long as,” “until,” and “during” in a reversionary clause are “what causes the
limitation on the estate, not just saying that it’s for a certain purpose.” Tr. at 34:2–7 (citing
Atlanta Consol. St. Ry. Co. v. Jackson, 34 S.E. 184 (1899)).
The government further supports its argument by asserting Latham, 538 S.E.2d 107,
“described certain aspects of a deed as being inconsistent with the conveyance of fee.” Tr. at
35:4–9. The government asserts the Bearse deed is different from the Latham deed because the
Bearse deed does not contain the “express right to the railroad to cut timber and undergrowth
from the right of way.” Tr. at 64:18–21 (citing Latham, 538 S.E.2d at 575). The government
states it is the “enumeration of specific rights and burdens [ ] placed on the grantee” combined
with the reversionary clause that makes a deed inconsistent with conveying fee. Tr. at 46:21–24.
The government contends the lack of a similar timber clause in Bearse as in the Latham deed
supports conveyance of a fee. See Tr. at 64:15–65:9. The government argues when there is no
reservation clause and no enumerated grantee rights, it is inconsistent with conveyance of an
easement. Id.
Plaintiff argues, “there’s no requirement in any of the Georgia Supreme Court cases that
a reversionary clause be present or absent, nor could there be because that’s not even an
easement concept.” Tr. at 34:11–15. Plaintiff further avers a reversion clause is not an easement
concept because, “when an easement is extinguished, nothing reverts” as “the easement simply
unburdens the land.” Tr. at 34:15–25. Plaintiff’s counsel stated, “it would make no sense to talk
about whether a reversionary clause is present or absent in defining an easement.” Tr. at 34:23–
25. Plaintiff contends “for railroad purpose” in the Bearse deed supports an easement
conveyance, because “it’s a statement of what the land can be used for, which you wouldn’t need
to do if the grantor was conveying a fee.” Tr. at 37:2–7.
Courts routinely consider clauses containing “for railroad purposes only” when
construing a deed. Rogers, 54 S.E.3d at 137. While the clause must be considered, it is “not of
such significance as to require a holding that an easement only was conveyed.” Id. (emphasis
added). “For railroad purposes only” clauses are viewed as a “provision . . . wholly unnecessary
and surplusage had title been conveyed.” Askew, 79 S.E.2d at 532. While this language is not
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determinative, it indicates a party’s intent to limit the scope of a deed and behavior of the
grantee. 2 Ansley Walk, 142 Fed. Cl. at 501; see also Askew, 79 S.E.2d at 532.
The Court finds “for railroad purposes only” clause indicated Mr. Bearse meant to limit
the scope of the deed as well as the railroad company’s behavior, which affirms Mr. Bearse
intended to transfer an easement to the railroad company; a limiting clause such as “for railroad
purposes only” may be unnecessary only if fee is conveyed, because fee would allow the grantee
to have complete control over the land. See Askew, 79 S.E.2d at 532. The “for railroad
purposes” was likely purposefully included in the Bearse deed and would not be needed if the
grantor intended to convey fee. See id. The government attempts to use Latham to support the
need of a reversion clause, but the Latham court remanded to the trial court the question of fee or
easement and lacks supporting language for the reversion argument. See Latham, 538 S.E.2d at
107. While recognizing the purpose clause is only one aspect in determining if a deed conveys
easement or fee, the Court finds it is supportive of the deed conveying easement. See Askew, 79
S.E.2d at 532 (stating a for railroad purposes clause is unnecessary if title is conveyed and such a
clause is supportive of conveyance of an easement).
E. The Role of a Warranty Clause and the Description of Land in the Bearse Deed
The Bearse deed lacks a warranty clause and describes the land as “a portion of land lots
number [ ] in the 17th… of one originally Henry now Fulton County Ga.” Pl.’s MPSJ Mem. at
12–13. The deed also describes the land as “any portion of the lot land hereinafter described
through which said Rail Road may be constructed run and operated.” Id. The government
asserts “a lack of warranty clause is obviously not dispositive” because Georgia law does not
require railroad conveyances “to be precisely described.” Tr. at 42:5–12. The government cites
Rogers to show a deed with no warranty clause and imprecise description of land can still grant
fee. Id. The government also states, “in railroad conveyances, the consent of the grantor
identifies and locates the property conveyed in fee, even when the conveyance is imprecisely
described.” Tr. at 38:10–15 (citing Valdosta, 150 S.E. at 848). The government, however, does
agree the Bearse deed lacks a clear description of the parcel conveyed. Tr. at 39:20–22.
Plaintiff contends the lack of a warranty clause and imprecise description of the land in
the Bearse deed clearly “indicates an easement.” Tr. at 40:4–20. Plaintiff directs the Court to
consider these two factors together because “when you put them all together, they start to paint a
picture of an easement.” Tr. at 40:18–20. Plaintiff recognizes these two factors alone do not
conclusively establish an easement conveyance but are supportive of such a finding. Tr. at
41:16–24.
The Georgia Supreme Court considers the absence of a warranty clause a factor favoring
easement conveyance. Askew, 79 S.E.2d at 532; see also Safeco Title Ins. Co. v. Citizens & S.
Nat’l Bank, 380 S.E.2d 477, 479 (Ga. 1989). Georgia courts, alternatively, are more likely to
2
The Ansley Walk court stated “for rail road purposes” was of primary importance as this clause “indicates intent by
Mr. Bearse to limit the scope of the deed and the behavior of Georgia Air, and weighs in favor of finding the deed an
easement.” Ansley Walk, 142 Fed. Cl. at 501. Regarding scope of easement, the Ansley Walk court accordingly
concluded: “[T]he Court is persuaded that the easements conveyed in the instruments are limited to railroad
purposes only.” Ansley Walk, 142 Fed. Cl. at 503.
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find a fee conveyance if a warranty deed is used. See Crutchfield, 191 S.E. at 470. Courts have
further failed to recognize fee conveyance when “vague, conditional, and undefined terms”
describe the land because a fee conveyance “relates to unique, specific real property.” Ansley
Walk, 142 Fed. Cl. at 501. When a deed conveys a strip or tract of land to the railroad without
precise description, it is an indication of the parties’ intent to convey an easement. Latham, 538
S.E.2d at 109.
Following the footsteps of the Ansley Walk court, the Court analyzes together the
imprecise description of land and lack of a warranty clause. Ansley Walk, 142 Fed. Cl. at 501.
The Bearse deed lacks a warranty clause and uses only generalized language to describe the land.
See Pl.’s MPSJ Mem. at 12–13. The Bearse deed merely describes the land as “a portion of land
lots number [ ] in the 17th… of one originally Henry now Fulton County Ga.” Id. The deed also
generally describes the land as “any portion of the lot of land hereinafter described through
which said Rail Road may be constructed run and operated.” Id. Reviewing Georgia caselaw
precedent, this Court finds the lack of a warranty deed and imprecise description of land to be
consistent with conveyance of an easement. See Askew, 79 S.E.2d at 532 (stating lack of a
warranty clause is supportive of an easement conveyance); see also Latham, 538 S.E.2d at 109
(stating imprecise description of conveyed land indicates an easement).
F. The Importance of the Reservation of Cultivation Rights in the Bearse Deed
The Bearse deed contains a reservation of cultivation rights, which reads: “Jerome
Bearse reserves the privilege of cultivating the Company right of way up to the tract on either
side.” Pl.’s MPSJ Mem. at 12. The government agrees a reservation clause generally indicates
an easement but argues, there was a “legally significant difference between the use of the word
‘privilege’ or ‘right’ in the retention clause.” Tr. at 43:2–7. The government asserts permissive
language like “privilege” in the Bearse deed, implies a “landowner may cultivate the soil, not
that it has a right to cultivate the soil.” Tr. at 43:18–20. The government argues, “it’s not
impossible in Georgia, as Judge Smith suggests, that a deed allowing the permissive use of
cultivation would still be fee.” Tr. at 43:22–25 (citing Fox v. Norfolk S. Corp., 802 S.E.2d 319(Ga. 2017)).
Plaintiff emphasizes there are no cases in Georgia conveying fee when the grantor
reserved some use of the land in the right of way. Tr. at 45:20–25. Plaintiff lists “nine cases that
actually interpreted fee versus easement in Georgia” and all nine cases “held [the deed
transferred] easements where the grantor reserved some use of the land in the right of way,”
while there are “none that go the other way.” 3 Id. Plaintiff argues a “reservation to the grantor
that is inconsistent with railroad[] . . . would impinge on the railroad’s use of the property,”
further supporting a reservation of rights indicating easement conveyance. Tr. at 61:20–22.
Plaintiff maintains, while reservation of rights is not the only factor to consider in determining
easement versus fee, it supports finding an easement when pieced together with other factors in
3
The nine cases plaintiff notes are as follows: Ansley Walk Condo. Ass’n, Inc. v. United States, 142 Fed. Cl. 491(2019); Hardy v. United States (“Hardy I”), 127 Fed. Cl. 1 (2016); Latham Homes Sanitation, Inc. v. CSX Transp.,
Inc., 538 S.E.2d 107 (Ga. 2000); Barber v. S. Ry. Co., 274 S.E.2d 336 (Ga. 1981); Jackson v. Sorrells, 92 S.E.2d
513 (Ga. 1956); Askew v. Spence, 79 S.E.2d 531 (Ga. 1954); Byrd v. Goodman, 25 S.E.2d 34 (Ga. 1943); Jackson v.
Crutchfield, 191 S.E. 468 (Ga. 1937); and Rogers v. Pitchford, 184 S.E. 623 (Ga. 1936). Tr. at 61:11–17.
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the deed. Tr. at 61:23–62:4 (“[W]e don’t have a case where the only easement factor was a
reservation.”).
The reservation of cultivation rights carries significant weight in determining if a deed
conveys an easement or fee. See Hardy v. United States (“Hardy II”), 129 Fed. Cl. 513, 516
(2016); Sorrells, 92 S.E.2d at 514 (holding a deed which reserved the conveyor’s right to
“cultivate” constituted an easement). Georgia courts routinely consider reservation of cultivation
rights an indication of intent to transfer an easement, especially when combined with additional
easement factors. See Ansley Walk, 142 Fed. Cl. at 501 (“The Georgia Supreme Court has noted
that the presence of [cultivation] language suggests an easement.”); Hardy I, 127 Fed. Cl. at 9
(“[T]he presence of a reservation in a deed, such as a conveyor’s right to cultivate the land up to
the right-of-way, offers proof of intent to convey an easement”) (citing Sorrells, 92 S.E.2d at
514); Latham, 538 S.E.2d at 109 (holding where a grantor retained uses of the land for
agricultural purposes conveyed an easement); Barber v. S. Ry. Co., 274 S.E.2d 336, 337 (Ga.
1981) (holding reserving farming privileges in land not absolutely occupied by the railroad and
reserving the right to cultivate up to the track conveyed an easement); Askew, 79 S.E.2d at 531–
32 (holding a deed conveyed an easement where grantor “shall have the right to cultivate so
much of said land as does not interfere with its use for railroad purposes”); Byrd v. Goodman, 25
S.E.2d 34, 37 (Ga. 1943) (holding a deed reserving a right to cultivate up to the road-bed
conveyed an easement); Crutchfield, 191 S.E. at 470 (holding a deed where the grantor reserved
the right to cultivate land not necessary for use by the railroad conveyed an easement); Rogers v.
Pitchford, 184 S.E. 623, 623–624 (Ga. 1936) (holding a deed reserving the right to cultivate until
needed for railroad purposes “conveyed only an easement”). Indeed, the government was unable
to cite a single Georgia Supreme Court case finding a fee transfer if the deed reserved cultivation
rights. Tr. at 47:20–48:16 (The Court asked the government, “just to confirm . . . there’s no
Georgia Supreme Court case discussing a fee transfer, but that includes cultivating rights as a
reservation for the grantor,” to which counsel responded, “[n]ot that I’m aware of.”).
Under Georgia law, the inclusion of a reservation of cultivation rights clause suggests an
easement. Sorrells, 92 S.E.2d at 514. Other judges on this court, in interpreting disputed deeds
under Georgia law, have determined deeds containing a reservation of cultivation rights typically
indicates an easement. Ansley Walk, 142 Fed. Cl. at 501 (quoting Hardy II, 129 Fed. Cl. at 516).
The Court agrees with the Ansley Walk court, and others, the reservation of cultivation rights
strongly supports finding conveyance of an easement.
Regarding the government’s argument a reservation clause using the word “privilege”
cannot support the transfer of an easement, the court in Fox, 802 S.E.2d 319, was not interpreting
a deed. Tr. at 43:7–44:5 (The government’s counsel describes Fox as “an adverse possession
case.”). The government’s argument is further undercut as the word “privilege” is not used in
the Fox deed. Tr. at 43:16–18 (The government’s counsel argues “the word ‘privilege’ doesn’t
appear in Fox, but it’s a permissive word.”). Accordingly, the Court finds no significant
difference between use of the word “privilege” instead of “right.” It would be contradictory if a
grantor conveyed fee while retaining the ability to use the land for their own benefit. See Askew,
79 S.E.2d at 531–32 (describing a reservation of cultivation rights supports conveyance of an
easement).
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G. The “Strips-and-Gores” Doctrine Has Been Adopted by Georgia Courts to
Discourage Fee Conveyance of Long, Narrow Strips of Land
According to plaintiff, the strips-and-gores doctrine is an old Georgia common law
concept existing in the 1800s when the Bearse deed was constructed. 4 Tr. at 51:4–8. In some
jurisdictions, the strips-and-gores doctrine is known as the centerline presumption. According to
this doctrine, when a deed conveys land bounded by a railroad right of way, the boundary of the
land is the centerline of the railroad right of way. 11 C.J.S. Boundaries § 63 (2021). This is the
legal construction of the grant unless a party argues the express terms of the grant rebut the
presumption that the strip was included in the grant. Id. This doctrine avoids “the accidental
creation of property interests in the strips and gores of land located between the edge of a parcel”
and the centerline of the railroad right of way that bounds the parcel, “so that unproductive and
valueless strips are not held by detached ownership.” Id. The strips-and-gores doctrine does not
help ascertain the property interest conveyed; the doctrine only illuminates the boundary of the
property interest granted. Id.
Both parties agree the centerline presumption issue is not related to the interpretation of
the Bearse deed, rather it is only used to support the application of the strips-and-gores doctrine.
Tr. at 6:8–7:13. The government acknowledges if the Court finds the Bearse deed conveys an
easement, the centerline presumption applies to plaintiff’s property rights. Tr. at 7:3–10.
Plaintiff asks the Court to apply the doctrine despite the general notion of courts not
applying later doctrines to earlier deeds as the doctrine creates an overriding policy limiting
“vacuums in ownership” and avoids granting a narrow strip of land by fee simple, because “if
that land ever gets abandoned, it’s going to get used by somebody and there won’t be disputes
about ownership.” Tr. at 51:1–3, 51:18–24. Plaintiff further supports applying the doctrine by
stating there is an “uneven application of [the] concept . . . around the country” and “looking at
Fambro [the courts] have no problem reaching back in time and using this doctrine.” Tr. at
52:6–7, 52:14–16 (citing Fambro v. Davis, 348 S.E.2d 882, 884 (Ga. 1986)) (applying the strips-
and-gores doctrine to a deed executed before the doctrine was recognized by courts).
The government asserts the strips-and-gores doctrine came after the Bearse deed, so it
should not be applied to interpret the Bearse deed. Tr. at 52:17–53:18 (“[The government] is not
aware of any application of [the strips-and-gores doctrine] to railroads . . . at least [in the
1860s].”). The government argues, at the time of the Bearse deed, no one was “contemplating
the railroad not being there,” and “railroads were acquiring land in fee.” Tr. at 53:5–16.
According to the government, since most railroads in Georgia at the time of the Bearse deed
acquired “long . . . narrow strip[s]” of land in fee simple, it is “incongruous with the strips and
gores doctrine.” Tr. at 54:21–55:3.
Georgia law presumes a purchaser of land abutting a public easement takes title to the
centerline. See R.G. Foster & Co. v. Fountain, 114 S.E.2d 863, 871 (Ga. 1960) (citing Long v.
4
When addressing the strips-and-gores doctrine the court in Ansley Walk seems to have incorrectly referenced the
“Stripes and Gorges” doctrine. Ansley Walk, 142 Fed. Cl. at 501. Although only a few letters off, this Court walks
it back and now references the “strips-and-gores” doctrine. See Fambro, 348 S.E.2d at 884.
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Faulkner, 108 S.E. 370 (Ga. 1921)). The rationale behind a centerline presumption is the strips-
and-gores doctrine, as the Fambro court explained:
It is favorable to the general public interest that the fee in all roads should be vested
either exclusively in the owner for the adjacent land on one side of the road, or in
him as to one half of the road, and as to the other half, in the proprietor of the land
on the opposite side of the road. This is much better than that the fee in long and
narrow strips or gores of land scattered all over the country and occupied or
intended to be occupied by roads, should belong to persons other than the adjacent
owners. In the main, the fee of such property under such detached ownership would
be and forever continue unproductive and valueless.
Fambro, 348 S.E.2d at 884 (citing Johnson v. Arnold, 18 S.E. 370, 372 (Ga. 1893)). The
Georgia Supreme Court has extended the legal principals in Fambro to the construction and
interpretation of deeds, holding:
The rule avoids the undesirable result of having long, narrow of strips of land
owned by people other than the adjacent landowner . . . . [T]his rule of construction
also should govern the construction of deeds that designate a railroad right-of-way
as a boundary. This Court has, in fact, already applied it to language in a will to
determine title to an abandoned railroad right-of-way. We now adopt this rule for
use in construing deeds that have as a boundary a railroad right-of-way.
Descendants of Bulloch, Bussey & Co. v. Fowler, 475 S.E.2d 587, 589 (Ga. 1996). Other judges
on this court recognized Fambro as precedential law, stating for deeds containing a boundary to
a railroad right of way, the strips-and-gores doctrine “illuminates the boundary of the property
interest granted.” Jackson v. United States, 135 Fed. Cl. 436, 455 (2017); see also, Hardy I, 127
Fed Cl. at 10 (citing Fambro, 348 S.E.2d at 884 (quoting Arnold, 18 S.E. at 372)) (explaining the
strips-and-gores doctrine ensures adjacent landowners get the land in fee to increase the value of
the land). The Ansley Walk court stated, “such a policy is applicable here as the Bearse deed
specifically notes that the ‘land conveyed [is] being cut off.’” Ansley Walk, 142 Fed. Cl. at 502.
Applying Georgia common law, the Court considers and applies the strips-and-gores
doctrine to construe the Bearse deed. See Fambro, 348 S.E.2d at 884, Rogers, 54 S.E.2d at 136–
37; Ansley Walk, 142 Fed. Cl. at 502–03; Hardy I, 127 Fed. Cl. at 10; Donald J. Kochan, Deeds
and the Determinancy Norm: Insights from Brandt and Other Cases on an Undesignated, Yet
Ever-Present, Interpretive Method, 43 FLA. ST. U. L. REV. 793 (2016) (“courts must (and
arguably do) interpret the terms in deeds and land grants as having a fixed meaning set
contemporaneously with the transfer and based on the discernable intent and expectations of the
parties at the time of the conveyance or grant.”). The language in the Bearse deed—specifically
the “land conveyed being cut off”—taken together with Georgia’s established precedent on the
strips-and-gores doctrine, weighs in favor of easement conveyance. See Fowler, 475 S.E.2d at
589 (extending the strips-and-gores doctrine to deeds containing railroad right of ways as support
of conveyance of an easement).
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H. Plaintiff Argues the Sorrells Deed Best Resembles the Bearse Deed and
Government Argues the Rogers Deed Best Resembles the Bearse Deed
During oral argument, the Court invited both parties to provide one Georgia Supreme
Court case which best supports their argument. Tr. at 94:13–15, 94:21. Plaintiff asserts the deed
in Sorrells best resembles the Bearse deed. Tr. at 59:20–22. The government disagrees and
asserts the deed in Rogers is most similar to the Bearse deed. Tr. at 63:25–64:7.
Plaintiff acknowledges the “Sorrells [deed] is, in fact, very, very similar to Rogers, as is
[the Bearse] deed,” but plaintiff notes the Sorrells court distinguished Rogers because “Sorrells
contained a reservation of rights to the grantor to cultivate and Rogers did not.” Tr. at 58:12–17.
Plaintiff argues the reservation clause is important because “where deeds qualify how land will
be used, it’s an easement,” and “[i]f it’s a fee grant, there’s no reason to specify how the land
will be used.” Tr. at 58:19–22. Plaintiff also references Georgia Code Section 44-6-20 to
demonstrate “why reservation is important, because it conflicts with the railroad use of the land.”
Tr. at 58:22–59:3 (“And Georgia law says, in that section, that a fee simple estate is ‘one in
which the owner is entitled to the entire property with unconditional power of disposition.’”)
(citing GA. CODE ANN. § 44-6-20 (2021).
Plaintiff further points to two additional differences between the Bearse deed and the
Rogers and Sorrells deeds: the consideration paid; and granting of the premises as a right of
way. Tr. at 59:22–60:3. Plaintiff asserts the differences “cancel each other out” and “favor
[plaintiff] a little bit” because the “consideration in the Bearse deed is higher than in the Sorrells
deed, but on the other hand, the Bearse deed refers to the grant of premises . . . as a right of way
and Sorrells doesn’t.” Tr. at 59:23–60:3. Plaintiff argues, “if those two [differences] cancel
each other out, then we’re left with really identical deeds to Sorrells.” Tr. at 60:4–5. Plaintiff
urges the Court to look at the Bearse deed as a whole and given its close similarity to the Sorrells
deed as well as the presence of a reservation clause, the Court should find the Bearse deed
conveyed an easement. Tr. at 62:16–24.
The government argues the Bearse deed is more similar to the deed in Rogers because
neither deed puts “any requirements on the grantee.” Tr. at 64:6–7. The government notes the
Sorrells deed required the railroad to agree to keep up all stopgaps, 5 while there is “[n]o similar
requirement upon the railroad in the Bearse deed.” Tr. at 64:25–65:9. The government contends
other Georgia caselaw supports its position that a burden on the grantee is a key component in a
deed to indicate conveyance of an easement. Tr. at 66:9–23 (citing Askew, 79 S.E.2d 531;
Latham, 538 S.E.2d 107). It asserts Askew “talk[s] about, very specifically, stopgaps and
requirements on the grantee being inconsistent with the conveyance in fee.” Tr. at 66:13–15.
The government argues, while “there was a reservation of agricultural rights” in Latham, the
court found the deed conveyed an easement as the clause granting the railroad the express right
to cut undergrowth was “inconsistent with conveyance of fee.” Tr. at 66:16–22; Latham, 538
S.E.2d at 109.
5
Stopgaps, or stock gaps, are grids built on a railroad track which, when joined with fences, can contain livestock.
See GA. CODE ANN. § 50-16-103 (2021).
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The Georgia Supreme Court held the presence of a reservation of cultivation rights clause
suggested conveyance of an easement. Sorrells, 92 S.E.2d at 514. The Sorrells court found the
phrase, “the grantor should retain the use of the land not actually used as a road bed”
demonstrated “it was clearly the intention of the parties to the deed . . . to receive an easement to
construct and operate a railroad.” Id. The court also noted conveyance of an easement was
supported by multiple elements of the deed: “nominal” consideration; the grantor “reserving the
right to cultivate”; grantee was required to “keep up stock gaps”; “the land is conveyed for use as
a railroad”; and “the land conveyed was a strip out of the middle of the grantor’s tract with no
access between them.” Id.The Rogers court found the disputed deed contained language pointing to either an
easement or fee. See Rogers, 54 S.E.2d 132. The deed does not contain “the term ‘easement’ or
‘right of way’ or any other expression” from which it could be inferred there was an intent to
convey merely an easement. Id. at 136. The deed did not contain a warranty clause, but the
habendum clause included the words “forever in fee simple.” Id. The consideration is nominal,
but this did not require a finding of an easement because other cases have determined fee where
the “consideration expressed was only $1.” Id. at 137 (citing Woods v. Flanders, 181 S.E. 83(Ga. 1935)).
The chart below compares the Bearse deed to both the Sorrells and Rogers deeds:
Deed Provision Bearse deed Sorrells (Easement) Rogers (Fee)
Consideration $200 $10 $10
Habendum clause its successors and its successors and its successors and
assigns, all the land assigns, all the land assigns, all the land
Reservation clause Jerome Bearse Reserving the right to
reserves the privilege cultivate up to road
of cultivating the bed, the Road agreeing
Company right of to keep up all stock
way gaps.
Purpose clause for Railroad purposes, for Railroad purposes, for Railroad
forever in fee simple. forever in fee simple. purposes, forever in
fee simple.
When construing a grant as either fee or easement, the Court recognizes the whole deed
must be analyzed and acknowledges the value of “determinancy norms” in the interpretation of
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deeds. 6 The Bearse, Sorrells, and Rogers deeds all contain the same purpose and habendum
clauses. Although the Bearse deed has substantially higher consideration, the Court recognizes
consideration is not dispositive. See Rogers, 54 S.E.2d at 136–37 (instructing courts to look at
the whole deed and not just “disjointed” parts of it). The distinguishing difference is both the
Bearse deed and the Sorrells deed contain a reservation clause. The Georgia Supreme Court
reached different decisions on this distinction: the Sorrells court ruled the presence of a
reservation clause suggests conveyance of an easement, Sorrells, 92 S.E.2d at 334–35, while the
Rogers court determined conveyance of fee when the deed lacked a reservation clause. Applying
Georgia law, the Court finds the presence of this reservation clause is indicative of easement
conveyance, especially when considered in comparison to similar cases. See Rogers v.
Pitchford, 184 S.E. 623 (Ga. 1936) (holding a deed reserving right to cultivate until needed for
railroad purposes indicated easement conveyance); Hardy II, 129 Fed. Cl. at 516 (holding
disputed deeds construed under Georgia law with “particular terminology” of cultivation rights
“typically indicates an easement” was conveyed).
I. Additional Georgia Supreme Court Decisions Clarify the Issue of Whether the
Bearse Deed Conveys Fee or an Easement
Both parties cite Barber v. S. Ry. Co., 274 S.E.2d 336 (Ga. 1981), to support the Bearse
deed conveying an easement or fee. Plaintiff asserts the deeds in Barber are “very much like”
the Bearse deed, and in ruling two of the four deeds conveyed easement the “Georgia Supreme
Court . . . identified a reservation of rights as the pivotal difference.” Tr. at 60:17–22, 91:25–
92:4. Plaintiff further contends when a deed specifies “what land can be used for, it’s indicative
of an easement because you wouldn’t need to do that if there was a fee simple grant.” Tr. at
91:18–20.
The government asserts the key difference in the Barber deeds is the reference to timber
as the company is tasked “in protecting the road from timber,” which is “an assertion of rights on
the grantee,” not just the presence of the reservation clause. Tr. at 90:17–21; 92:5–14. The
government also argues the amount of consideration was different between the deeds in Barber.
Tr. at 93:2–12. The government, however, acknowledges it is “factually true” the primary
difference “between [the] four deeds discussed in the Barber case [is] that the two deeds where
the Court found an easement both have reservation clauses and the other two deeds do not.” Tr.
at 93:18-24. The government further argues a reservation clause alone “is not a sufficient
suggestion to overcome the presumption of fee,” as the reservation clause is “not one of the
6
The Court must look at the deed in its entirety with fixed meaning at the time of transfer to be consistent with
Georgia law. Professor Donald J. Kochan, in his article Deeds and the Determinancy Norm, addresses the need for
“determinancy norms” in the interpretation of deeds. Donald J. Kochan, Deeds and the Determinancy Norm:
Insights from Brandt and Other Cases on an Undesignated, Yet Ever-Present, Interpretive Method, 43 FLA. ST. U. L.
REV. 793 (2016). He defines the parameters of “determinacy norm” as: “In order to satisfy the determinancy norm
for deed interpretation, courts must (and arguably do) interpret the terms in deeds and land grants as having a fixed
meaning set contemporaneously with the transfer and based on the discernable intent and expectations of the parties
at the time of the conveyance or grant.” Id. at 793. This is because courts “‘traditionally recognize[] the special
need for certainty and predictability where land titles are concerned’ and . . . [are] extremely conscious of a
presumptive ‘unwilling[ness] to upset settled expectations’ of the parties to the title transfer.” Id. at 794. This
prevents the government from “reserv[ing] an easement for one use and decades later convert[ing] it (without re-
bargaining or paying more) to a different use that was not anticipated, expected, or bargained for at the time of the
original transfer.” Id. at 797.
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clauses that the Georgia courts have found to be inconsistent with the conveyance of fee.” Tr. at
94:3–12.
The Barber court construed four deeds and found two conveyed easement, and two
conveyed fee. Barber, 274 S.E.2d at 337. The court referred to the four deeds as the “Elizabeth
Lowe deed,” “James Peek deed,” “T.J. Lowe deed,” and “J.S. Lowe deed.” Id. The court stated,
“under Jackson v. Rogers . . . the Elizabeth Lowe and J.S. Lowe deeds must be viewed as
conveying fee-simple title,” because the Elizabeth Lowe and J.S. Lowe deeds are “not
distinguishable in any material respect from the deed under consideration in Jackson v. Rogers.”
Id. Applying the same reasoning, yet reaching an opposite result, the Georgia Supreme Court
decided “[u]nder Jackson v. Sorrells . . . the James Peek and T.J. Lowe deeds must be viewed as
conveying mere easements,” as the James Peek and T.J. Lowe deeds are “not distinguishable in
any material respect from the deed in Jackson v. Sorrell.” Id.
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The chart below compares the Bearse deed to each of the four Barber deeds:
Deed Elizabeth James Peek T. J. Lowe J. S. Lowe
Bearse deed
Provision Lowe (fee) (easement) (easement) (fee)
Consideration $200 $5 $5 $1 $1
Habendum its successors its its successors its successors its successors
clause and assigns, successors and assigns or assigns a and assigns
all the land and assigns all the land strip of land being one
all the land 200 feet in ninth (1/9)
width each
undivided in
a strip of land
200 feet in
width
Reservation Jerome the farming reserving the
clause Bearse privileges in right to
reserves the that portion cultivate up to
privilege not absolutely track unless
of cultivating occupied by wanted for
the Company said railroad Railroad
right of way is hereby purposes
reserved
Purpose for Railroad for Railroad for Railroad in fee simple in fee simple
clause purposes, purposes, purposes for Railroad for Railroad
forever in fee forever in forever in fee purposes only purposes
simple. fee simple simple
Reversion This deed to This deed
clause be void if shall be void
said railway if said
is not Railway is not
constructed constructed
through said through said
tracts of lot of land.
land
Warranty we do warrant we do
the title to warrant the
such land title to such
against the land against
lawful claims the lawful
of all persons claims of all
persons
The four Barber deeds and the Bearse deed contain fundamentally similar habendum and
purpose clauses. The Bearse deed consideration is higher than any of the Barber deeds;
however, as stated supra, consideration alone is not dispositive. See Rogers, 54 S.E.2d at 136–
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37. The Elizabeth Lowe and James Peek deeds both have a reversion clause, which the T.J.
Lowe, J.S. Lowe, and Bearse deeds lack. Of all clauses the Barber court considered the
reservation clause most determinative. The Elizabeth Lowe and J.S. Lowe deeds lacked a
reservation clause, which led the Barber court to determine fee was conveyed in these two deeds
under the Rogers reasoning. Barber, 274 S.E.2d at 337. The James Peek and T.J. Lowe deeds
both contained a reservation clause, reserving farming privileges and cultivation rights. The
Barber court found this reservation clause supported finding an easement under the Sorrells
precedent. Id. The Bearse deed also contains a reservation of rights clause, making it similar to
the James Peek and T.J. Lowe deeds. Applying the Barber court’s reasoning to the Bearse deed,
the Court finds the presence of a reservation clause indicates the grantor of the Bearse deed
intended to convey an easement; the Barber and Sorrells precedent clarify the Court should
consider the presence of a reservation clause as support for easement conveyance. See Barber,
274 S.E.2d at 337 (holding reservation clause indicates conveyance of an easement); Sorrells, 92
S.E.2d at 513 (holding retention of rights indicates fee conveyance).
VII. Easement or Fee in the Bearse Deed
As discussed in detail supra, the Bearse deed contains the following elements of fee:
non-nominal consideration of two-hundred dollars; the phrase to “its successors and assigns;”
and a habendum clause stating, “for ever in fee simple.” A full reading of the deed, however,
supports the conveyance of an easement. The elements supporting conveyance of an easement
are: the “Company right of way” clause; a “for railroad purposes” clause; no warranty clause;
imprecise description of the land; and a retention of the cultivation rights. Easement is also
supported by the Georgia courts’ strips-and-gores doctrine which discourages the conveyance of
long, narrow strips of land and supports finding easement conveyance. In conclusion, the Court
finds the language in the Bearse deed demonstrates the grantor’s intent to transfer an easement,
not a fee simple estate, to the railroad company. See Ansley Walk, 142 Fed. Cl. 491; Barber, 274
S.E.2d 336; Sorrells, 92 S.E.2d 513; and Rogers, 54 S.E.2d 132.
VIII. Conclusion
The Bearse deed overcomes the presumption of fee required by Georgia law and conveys
only an easement to the railroad. Accordingly, the following is ordered: (1) Plaintiff’s motion
for partial summary judgement is GRANTED; and (2) The government’s cross-motion for
partial summary judgment is DENIED. The parties SHALL FILE a joint status report
proposing a timeline for further proceedings consistent with this opinion on or before 12
November 2021.
IT IS SO ORDERED
s/ Ryan T. Holte
RYAN T. HOLTE
Judge
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