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» continues on page 12 » 11 Professional Land Surveyors of Oregon | www.plso.org pipeline companies ended in 1983, and hence forward the two entities were thus compelled to deal with each other at arms length, as typical separate and distinct corporate operations. e initial action in this regard was a new master agreement pertaining to the presence of the pipeline within the rail corridor, and the rental payments were obviously a major aspect of this agreement. is 1983 agreement apparently proved to be workable for at least a few years, but in 1988 Rio Grande acquired the railroad interest, and for unknown reasons things evidently began to turn sour. In 1991 corporate attorneys rst engaged, in an unspecied California courtroom, setting in motion the extensive chain of litigation which has persisted to this day. As noted by the CCOA, the motivating factor at that point in time was the desire of the railroad executives to raise the rent being paid by the pipeline company, and with that objective counsel for the railroad made the fateful decision to le an action against SF, seeking to have the 1983 agreement judicially rescinded, for the purpose of revising the agreed rental rate. e 1991 litigation proceeded for a few years, evidently without resolution, until a settlement agreement was entered by the combatants in 1994. is settlement dealt with the issue of past rent and anticipated a new rental rate, which was to apply for a 10 year period, perpetuating this corporate collaboration at least to that extent. Some level of nancial discontent with their relationship evidently persisted however, and thus matters apparently stood, with the parties embroiled in a smoldering dispute, when UP acquired the railroad interest in 1996. By that time, each side had already invested millions of dollars in resolving their issues, but even more millions of dollars were at stake under the rental agreement, so they continued to pour funds into litigation focused exclusively on the nancial component of their arrangement. Questions regarding the validity and scope of the land rights interest actually held by the railroad were raised at some point, but they were summarily dismissed at the trial court level, and they continued to be treated as an ancillary or peripheral matter at the appellate level, during the remainder of the 1990s and on through the rst decade of this century. us the proverbial elephant guratively occupied the courtroom for several years, silently watching as exorbitant expenses were piled up by both opponents, during the potentially pointless proceedings, in the absence of judicial recognition that the land rights component of the controversy posed a genuine threshold issue. Early in 2014 UP emerged victorious from a Los Angeles County Superior Court, in the context of the rental dispute, having obtained a $100 million dollar award, leading to the present appeal brought by SF. At this point in time, the pipeline system occupies more than 1800 miles of RR R/W, all of which was at issue for rental purposes, apparently classi- ed or designated by the parties as comprising over 1000 unspecied “pipeline segments.” An unknown amount of that RR R/W exists solely by virtue of federal grants, and is located either upon land which remains public domain today, or upon land which was patented out of the public domain subject to the RR R/W, and thus now represents some form of privately held title. Portions of the RR R/W have evidently been either sold or abandoned over the years, but no details pertaining to any such locations are provided in the text of the CCOA opinion, since the core title issue to be addressed and resolved is the original nature of the land rights that were acquired to create the RR R/W, rather than the subsequent fate of those rights. As Judge Kussman very poignantly, and very ominously for UP, stated at the outset: “A recurrent, yet heretofore unresolved, theme permeating this and prior cases between the parties is the nature of the Railroad’s interest in the property through which the pipelines run…e absence of a determination on this issue undermines the judgment.” Reversal was coming, the only question was how intensively the CCOA would examine the frail platform upon which the alleged property rights of UP were perched. The immense potential gravity of the inadequately addressed title factor in this complex legal equation would soon become quite apparent, as the primary legal question, which had naturally been repeatedly suppressed by UP, and had been judicially treated as a “third rail” until 2014, nally became the focal point of this conict. at question of course was very simply whether or not the land being utilized by SF for pipeline purposes was really ever property of UP or not. us were the parties notied by the CCOA that arguably at least, none of their prior agreements are ripe for nancial enforcement, since those agreements may have no valid legal basis in the context of title, making their ceaseless debate over nancial valuation entirely useless and meaningless, with respect to a large portion of the RR R/W at issue, if not all of it. Of course it is quite possible, and probably even likely, that some portions of the contested RR R/W were acquired by UP or it’s predecessors in fee simple, presumably by means of a typical deed from John Doe or any other fee land owner, independent of the aforementioned federal grants. In such locations, a perfectly legitimate relationship may exist between UP and SF, as fee land holder and easement holder respectively, so the current land use and rental agreement between these parties is presumably applicable to some locations, in which the federal land grant issue is irrelevant, thus their current agreement could not simply be entirely set aside, the CCOA determined, it required judicial scrutiny. Moving on from the historical scenario, related above, to the legal analysis performed by the CCOA with reference to title, the rst pivotal issue addressed by the CCOA is highly elementary in nature, establishing the denition and meaning of the word “property” in the relevant context. is was necessary because the location of the rights acquired by SF from UP and it’s predecessors were expressly described in


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