A review of the California position announced November 5, 2014 9 Professional Land Surveyors of Oregon | www.plso.org Defining the true title status of railroad right-of-way in the American West Dening the true title status of railroad right-of-way in the American West „ Brian Portwood, PLS » continues on page 10 » Early in 2014, the problematic nature of railroad rightof way (RR R/W) from a title perspective was vividly displayed in the case of Brandt Revocable Trust v United States (US) (134 S. Ct. 1257) and the potential impact of that decision upon certain very popular yet highly controversial surface uses of former RR R/W has been well documented. In reaching the High Court, the Brandt case focused the attention of land rights professionals around the nation upon the fate of RR R/W that is no longer in use for its originally intended purpose, which of course is not an uncommon scenario, since extensive railroad abandonment has occurred in recent decades. Near the close of 2014 however, the California Court of Appeals (CCOA) addressed another case involving RR R/W, which appears to be well positioned to unleash an even more powerful legal shock wave, with truly enormous consequences for partici pants in the utility industry, as this time the contro versy relates to subsurface land use of both former RR R/W and currently active RR R/W. While both the Brandt case and the one reviewed herein are, at their core, controversies implicating title to land, this latter battle, which is now awaiting attention from the California Supreme Court, could ultimately produce the most explicit and detailed clarication of the legal status of vast portions of the existing network of RR R/W traversing the American West that has ever been handed down. e historical developments underlying and leading up to the case of Union Pacic Railroad (UP) v Santa Fe Pacic Pipelines (SF) (231 Cal. App. 4th 134) supercially appear to present an example of typical commercial and industrial collaboration and progress, of a mutually benecial nature, with respect to both the collaborators and the public. As we shall see however, serious adverse consequences can arise from unfounded and unwise assumptions regarding land rights, even aer the relevant legal issues have eectively remained dormant for several decades, only to be subsequently exposed when friction between partners over nancial matters brings those latent issues nally to the forefront. As is typically true, proper legal interpretation of granting language is the straw that stirs the drink, and in this instance the use of highly general language, characteristic of early grants made by the US, necessitates judicial analysis of certain very basic words, the full or exact meaning of which we may rarely pause to ponder. It could certainly be suggested, with the benet of hindsight aer the passage of a century and a half, that the original language employed in many US grants was chosen unwisely or without sucient foresight, but our courts today recognize, as they must, the futility of such protests, and proceed to address the legal implications of the selected language with stern objectivity. e panoramic scope of this powerful case, covering an incredible number of miles of RR R/W passing through six of our largest states is especially well outlined by Judge Kussman of Los Angeles, making this 81 page opinion one of the most lucid and penetrating statements of the law to appear within the realm of land rights in recent years. is CCOA opinion, lengthy as it must necessarily be, in order to thoroughly cover the relevant issues, is a model of well conceived thought organization, which advances through an entirely logical progression, making it highly understandable, even for those who may be novices at reading the law, and it is in no sense tedious or overblown. Herein, we will initially trace the key points specied in the judicial narrative outlining the essential events that comprise the backstory, before examining the vital legal analysis and conclusions leading to the decision itself, and ultimately we will take note of the potentially major ramications this battle may hold within the arena of title law. As is always the case, the reader is advised to strive to maintain an objective perspective, discarding any personal biases, inclinations or preferences, while recognizing the particular parties for what they are, mere players on a stage, in whose shoes as litigants a myriad of others have stood before. As the Civil War drew to a close, a renewed national focus upon populating the west, and fully utilizing the valuable resources therein, lied the national expansion eort to a position of elevated priority. Many of our western states were not yet formed of course, and the west was substantially comprised of public domain, land which was subject to use or disposal by the federal government. Railroads, representing a still relatively new form of technology at that time, were poised to aid mightily in the opening of the west, and this was recognized by all, leading to legislation which was Reprinted with permission of the author
PLSO_MayJune2015
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