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» continues on page 16 » 15 Professional Land Surveyors of Oregon | www.plso.org well, since that matter would also be relevant upon remand. Quite possibly, portions of the corridor at issue pass through sections of land which are in fact owned in fee simple by UP, and if in fact the tracks cross any such sections then technically no RR R/W exists within those areas, since no party or entity can hold an easement situated upon or within their own fee property. e presence of such lands along the corridor, upon which no RR R/W exists, could well explain why the parties made the fateful decision to describe the lands which they intended to be subject to their agreement using the generic term “property” rather than the more specic phrase “RR R/W.” Nevertheless, as a fee simple owner UP has the right to grant easements across any such sections, or any other lands in which UP holds a right of full legal control embracing the subsurface, and if SF facilities exist within such sections, the agreement in contention would be applicable to those sections, so valuation would be relevant in those areas. Pages 43 through 78 of the CCOA opinion are devoted to the monetary issues, and are thus outside the scope of this review, which is focused solely upon title issues, but it is notable that within this valuation discussion the CCOA suggests that the agreement may prove to be applicable to about one third of the land which is now being mutually utilized by the litigants. e parties were thus le to cogitate upon what their strategy might be going forward, and perhaps to ponder entering yet another settlement agreement, in preference to potentially opening Pandora’s Box, by setting out to litigate each problematic portion of the RR R/W as an independent quiet title action. e wide variety of land acquisition methods, which might be leveraged by UP if necessary, enumerated by the CCOA, including prior condemnation actions, prior quiet title actions or other court decrees relevant to title, existing state laws pertaining to marketable title, and potentially even adverse possession, make it clear that the outcome of the present action could precipitate numerous subsequent actions. Yet whether or not UP, as a railroad operator, truly acquired and holds the subsurface in fee in any such areas dened as RR R/W, in addition to the surface, remains very much an open question, and will remain so until fully adjudicated, which could well make it clear to legal counsel for UP and UP executives that any eort to secure such rights unto UP through further litigation could be one which would simply not be cost eective. Were the sum at stake in the present action not so huge, there can be little doubt that rational people would just drop the whole matter, but if the litigation does continue, and it proceeds down the track pointed out here by the CCOA, our nation stands to greatly benet from this ongoing struggle, provided that it ultimately produces conclusive clarication of the true title status of all existing federally created RR R/W. As an interesting sidebar item, not vital to the core title issue, which relates to the nature and legal status of the RR R/W as a direct function of the origin of that R/W, yet highly relevant to the overall valuation equation, the CCOA also addressed the assertion made by UP that even some lands which had been sold by UP, through which SF facilities passed, were subject to the contested agreement, even though now owned by various other parties, as grantees of UP. In other words, UP maintained that by virtue of reservation, in numerous conveyances made by UP over the decades, UP had deliberately and expressly retained a right of control over the SF facilities in such locations for rental purposes. Not surprisingly, given it’s position on the core title issue previously documented herein, the CCOA was not receptive to this assertion by UP, and proceeded to foreclose it, while pointing out the fallacy embodied in it. “Congress clearly intended that a railroad’s interest in it’s rights-of-way would terminate once it no longer used or occupied the land. Continuing to have an interest in the land, and to generate revenue from it, would run directly counter to the legislative intent.” UP certainly can reserve easements when selling land, just as can any legitimate grantor, but no such reservation can be valid if the grantor had no such land right or property interest to retain. us it would appear that a very severe burden of proof, regarding the validity of any such reservations made by UP, will descend upon UP, should UP decide to continue to pursue this element of the overall controversy upon remand, presuming that the CCOA ruling remains in eect. Moreover, should UP either fail in that eort or simply abandon it, the ongoing land use being made by SF will then be exposed to potential legal assault by the grantees of UP or others, potentially adding liability issues, stemming from the creation and recording of invalid easements, to the imposing list of concerns confronting UP. In producing this truly exhaustive and wonderfully erudite opinion on a highly problematic subject, Judge Kussman and his colleagues elected to emphatically apply the fundamental principle, with reference to the federal land grants at issue, that no land rights which have not been very clearly and expressly stated in conveyance documentation can be successfully asserted by a grantee, specically UP in this instance. Although there are a multitude of exceptions to this principle, such as the passage of unrecited appurtenant easements for example, the principle of grant limitation based upon purpose is universally recognized as valid, being wisely counterbalanced as it is, at law and in equity, by the equally powerful principle that everything truly essential to the enjoyment of any grant legally passes with it. Most if not all jurisdictions within the US have historically accepted and honored the rule that in the context of any R/W grant, there can be no presumption that a fee simple title was conveyed, and in some states that principle has even been codied, resulting in the broadly applied presumption at law that every R/W represents an easement, unless a contrary intent can be proven. In


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