17 Professional Land Surveyors of Oregon | www.plso.org federal grants is solidied, this controversy appears likely to spread to other states, or to the federal court system, and if it is perceived as rising to the level of a signicant national concern, it could conceivably reach SCOTUS at some point in the future. While reaching that point would most likely take several years, and only then would true and complete nality at law be obtained, just how this decision, provided that it stands in some form, will be regarded or leveraged by railroads, pipeline operators and other utilities in the interim will be very interesting to observe. At one extreme, chaotic title conditions could ensue, which would be evidenced by a rash or urry of title litigation involving RR R/W interests over the next few years. Any such development would of course be very likely to produce a panoply of results all across the legal spectrum, as the matter is addressed in dierent jurisdictions, by attorneys of varying competence, before judges with varying levels of knowledge regarding title issues. On the other hand however, it is at least equally possible that in most locations throughout the west, where the legal consequences of this decision would be most impactful, the relevant corporate entities may well elect to simply take the “see no evil, hear no evil” approach, and deliberately refrain from embarking upon any litigation that might call unwanted attention to their specic title issues. As far as the present parties, UP and SF, are concerned, this aair could eventually prove to be equally problematic for both of them. Supercially, this CCOA decision has the obvious appearance of a victory for SF and a defeat for UP, since it has the potential to save SF a great deal of money in the short term, by preventing UP from collecting certain rent from SF, which UP has long expected to get, and has invested very substantial funds in securing. But while the downside for UP, and by extension other railroads nding themselves in a similar position elsewhere, is quite clear, the downside for SF and other comparable utility operators may also prove to be highly signicant. Although this decision has the potential to li an immediate nancial burden from SF, it certainly does not indicate that SF has no need to pay anyone to maintain the line or lines which are involved in this case, unless SF proves that it holds adverse or prescriptive rights in each location, which could well be prohibitively costly, even where it may be likely to be successful, and of course no such assertion could shield any SF facilities situated within the boundaries of any federal land. Ultimately, SF and any other utility operators who may nd that they owe nothing to the railroads for the use of the land beneath any RR R/W of the relevant type, may learn to their great chagrin that they are now beholding to a landlord, or perhaps even a multitude of landlords, with genuine control over land which bears various fragments of their utility lines. ose parties, based on nancial motivation, may be even less inclined to be cooperative with SF than UP has been, and such parties may very well be free to lodge serious demands for compensation upon utility companies, in exchange for the ongoing use of their fee property. In summary, this case holds the potential to bring about highly benecial legal clarication of the true status of all RR R/W title of federal origin, which has long been sorely needed and would hold great value for an immense number of parties, both public and private. e fact that all of the parties associated with this case in any manner, the litigants, the attorneys, the judges, the expert witnesses, and even the underlying land owners, have demonstrated that they stand in a state of high uncertainty, if not outright ignorance or confusion, over how to properly regard and handle RR R/W is more than ample evidence of the need for clarity upon this ubiquitous title issue. But of course that will not happen unless either this case or another case spawned from it is eventually placed upon the doorstep of SCOTUS, and accepted as being worthy of the highest judicial attention. at could well occur, particularly if federal courts become engaged upon this issue going forward, but it is unlikely until such time as a clear split in judicial thought on this matter at the appellate level can be pointed out, and broad if not nationwide interest in this matter becomes manifest. In the meantime, if a superb example was needed to demonstrate the monumental importance and great value of exhaustive research into the true origin of any R/W, whether it be public or private in character, and whether it be merely alleged or actively contested, performed by the prudent and diligent professionals populating the land rights industry, this case most certainly lls that need. Endnotes 1. The states bearing the RR R/W directly impacted by this specic battle are Arizona, California, Nevada, New Mexico, Oregon and Texas. A CCOA ruling obviously does not control the law outside California, but every other state in which federally granted RR R/W exists will be likely to observe the outcome of this contest in California, and view the California position on this matter with high regard. 2. See page 7 of the published decision, which is available to the public on the web at www.courts.ca.gov/opinions/archive/B242864.PDF. 3. See page 7 of the published decision. 4. See pages 3 and 4. 5. See page 17. 6. See page 20. 7. See page 27. 8. See pages 29 through 34. 9. See pages 38 & 42. 10. See page 57: “32 percent is claimed to be held in fee.” 11. See page 65. Full discussion of this issue begins on page 60. 12. “Meet the new boss, same as the old boss…” (Pete Townshend) e author, Brian Portwood, is a professional land surveyor, historian of land rights law, and a federal employee. Addendum—Since the composition of this essay, the Supreme Court of California has expressly declined to disturb this decision of the CCOA. erefore, this ruling is now law in California, at least until such time as the title status of the railroad right-of-way outlined herein is addressed in a federal court.
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