» RAILROAD RIGHT-OF-WAY IN THE AMERICAN WEST, from page 13 purpose on their own terms, leaving that phrase virtually meaningless, and entirely useless as a limitation mechanism, the CCOA recognized. At this key juncture, the CCOA opted to view the restrictive nature of the 1875 Act in the manner of a clarication issued by Congress, rather than a complete reversal of intent on the part of Congress. Since every action taken by Congress since 1875 had been restrictive toward railroad rights, the CCOA logically viewed this as a strong indication that Congress had in fact never intended to grant any title in fee simple absolute to the railroads. is position appears to be quite sound, given the fact that it fully accords with the long line of RR R/W cases decided by SCOTUS, leading up to the Brandt decision of 2014, all of which deny the proposition that railroads were ever endowed, by means of any federal grants, with any authority to extract value of any kind from the subsurface beneath any RR R/W. e ultimate question then, to be answered in resolving the title component of this case, is exactly how to dene the title held by UP under the early federal Acts, in terms of physical extent in the vertical plane, in a manner which accords with the intended scope of the land use that was envisioned or embodied in the early federal RR R/W grants. e CCOA has answered that question by balancing the apparent intent of Congress to endow the railroads with a title sucient to carry out their basic mission, as a mode of transportation, with the equally apparent federal intent to reserve all land rights not truly needed by the railroad companies unto the people of the US. e property rights obtained by the railroads for RR R/W use under the early federal grants, the CCOA held, were more than an easement but less than a grant in fee simple, and in fact it is well settled that a fee title which is less than absolute in many respects can be legally created and conveyed. e railroads acquired a distinctly limited fee interest in the relevant portions of the RR R/W, under the early federal grants, the CCOA surmised, noting in so doing that SCOTUS has long approved the limited fee concept, in the specic context of RR R/W, and that the rights thus acquired were also limited in duration, being subject to reversion upon falling into a state of permanent disuse, with respect to the specied RR R/W purpose. Such an acquisition, made for any purpose requiring only surface use, carries no rights to make use of the subsurface for prot, the CCOA decided, it carries no more than a right to prevent any subsurface activity that would render otherwise useful ground useless by physically undermining the surface. Citing numerous respected federal decisions relevant to the matter at hand, the CCOA poignantly illustrated the weakness inherent in the position espoused by UP, that any land use benecial to a railroad company qualies as a legitimate “railroad purpose”. As Judge Kussman expressed it “rights-ofway must be used for railroad purposes…the right-of-way… must be used to construct and operate a railroad…e rental The Oregon Surveyor | Vol. 38, No. 3 14 agreement between the parties is a private arrangement that serves each company’s own interest, not the public interest for which the Railroad’s rights-of-way were granted…Renting out the subsurface to a third party from a dierent industry for private gain cannot reasonably be considered a railroad purpose.” us the CCOA informed the parties that the only right held by UP extending below the surface of the RR R/W is the well known and time honored right of subsurface support, in other words, the right to preserve the surface in a useful state or condition by barring any underground activities that would damage the surface. Rarely has the legal signi- cance of putting land to use for it’s intended purpose, being cognizant of the precise legal limitations upon that use, and understanding the principle that an expressly specied purpose can control the physical extent of title, been so clearly displayed. Under this ruling of the CCOA, UP does have subsurface rights, but they are narrowly limited to support for the surface, thus only underground activities that harm the surface in a manner which leaves it unsuitable or unsafe for railroad tracks can be prohibited by UP, under the authority vested by any of the federal RR R/W grants. e seemingly insignicant fact that the combatants were once corporate sisters in legal contemplation, as previously outlined herein, when their agreement was initiated, but are now strangers for all legal and contractual purposes, proved to be quite relevant, as can now readily be seen. If there were ever any validity in the premise that the pipeline operation was fundamentally part of the railroad operation, because the railroad drew fuel directly from it during the early decades of the arrangement, that premise was no longer of any assistance to UP, in the eyes of the CCOA. e SF facilities could not be successfully characterized as a “railroad purpose” Judge Kussman opined, because “one would have to engage in a terrible distortion of law and logic to nd that somehow the railroad…obtained the rights to the subsurface underneath it’s rights-of-way to do with as it saw t…there is nothing… suggesting that Congress intended to give the Railroad the right to use the land under it’s rights-of-way for non-railroad purposes, like renting it out to third parties.” Whether or not it can fairly be said that UP should have known better than to grant easements and charge rent for the use of land to which it held only an ambiguous, speculative or undened fee title, perhaps really amounting to no more than color of title, if even that, with regard to the underlying land, is an open question. In failing to recognize the physical limits of that title however, UP can be found guilty of no error that has not been made by countless others in completing comparable transactions involving RR R/W, and therein lies the true gravity of the outcome suggested by this CCOA decision. Having thus clearly communicated their conclusion on the portion of the conict relating to the title issue, for the edi- cation of both the litigants and the trial court, the members of the CCOA panel went on to address the valuation issue as
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