» RAILROAD RIGHT-OF-WAY IN THE AMERICAN WEST, from page 11 their agreement as being on or within the “property” of UP, suggesting that when they composed the contractual language the parties simply presumed that all RR R/W is comprised of the land upon which it rests, thereby acting upon a very common misconception. In the course of addressing this issue, the CCOA initially claried that “land is not property” highlighting the fact that the terms “land” and “property” are not synonymous, so they cannot properly be used as if they were identical in meaning, since property rights are most denitely not limited to land and can consist of many intangible things, such as a R/W easement, which is a right that blankets land, but is clearly not equivalent to land itself. us the CCOA had taken judicial notice of a key aw in the contractual language that had been either employed by UP or agreed to by UP, which held the potential to devastate the landlord position taken by UP, and the CCOA set out to ascertain and dene the legal consequences of that major linguistic defect. In electing to focus upon this issue, relating to the manner in which the location of the relevant SF facilities had been described by the parties in their agreement, the CCOA declined to take the shortcut that was taken during all prior judicial eorts to resolve this rental dispute, and pass directly to the rent valuation issue. Instead, the CCOA treated the locational issue raised by the use of the word “property” in a descriptive manner as a threshold issue, which had to be dealt with before moving on to tackle the valuation issue, in order to determine which SF facilities were really within the scope of the existing contractual agreement. It was obviously unnecessary to engage in any valuation assessment, the CCOA understood, with reference to any locations in which UP had no valid basis upon which to control the activities of SF, so an enormous portion of the pipeline mileage at issue, perhaps the vast majority of it, stood to be dismissed from consideration, if the scope of the agreement were to be limited to SF facilities that actually utilized property of UP. For the past 20 years, throughout all of the prior litigation, the CCOA pointed out, those charged with reviewing this controversy had “essentially decided not to decide” the property rights issue, perhaps deliberately steering a course around it on the grounds that it was an issue of such complexity as to be unfathomable. In addition, judicial attention had evidently been wrongly diverted from the title issue, the CCOA noted, by expert witnesses who misleadingly treated, or even expressly identied, the RR R/W as land held in fee by UP, which the CCOA naturally deemed to be wholly unsatisfactory, since that position is clearly unsupportable under the law. Undoubtedly, the CCOA knew and acknowledged, UP holds some form of property right associated with each portion of the RR R/W, the core issue however is the physical extent of that right in the vertical dimension, because unless the rights of UP extend below the surface, those rights bear no direct relationship to the subsurface land use being made The Oregon Surveyor | Vol. 38, No. 3 12 by SF in all typical locations. In other words, the litigants may be merely holders of vertically parallel rights, which do not physically intersect at all, in those locations where the pipe is below the surface, and that in turn obviously calls the alleged right of UP to issue subsurface easements or charge SF any amount of money, based solely upon the presence of an underground pipeline, into serious question. Fee simple title extends earthward and skyward indenitely, but the same is denitely not true of easements, since they are all axiomatically limited to a specic purpose or set of purposes, which can operate to dene the easement’s physical extent and limitations, in a manner that allows the easement to fully serve the intended purpose, yet pose no greater burden than is truly necessary upon the servient land. While the rights of UP to the surface within the RR R/W are undeniable, and may even be properly classied as exclusive, that fact is legally insucient to justify UP, the CCOA found, in exerting control over all subsurface land use. us the distinction between fee and easement interests was truly critical, the CCOA well realized, to the determination of the relative rights of the parties to occupy vertically separated corridors with their respective facilities, and the judicial failure to fully address that issue in the prior proceedings was potentially fatal to the monetary triumph of UP. On the crucial property denition issue, the CCOA held that the parties must be bound by the full legal implications of the language which they selected for use in their contractual agreement, thus there can be no justication for any nancial transactions, such as the disputed rental payments, with respect to any locations where it can be shown that the SF facilities are not spatially situated upon or within the property of UP. Under this holding, the easement and rental agreement may be largely if not wholly void, which would mean that SF holds no valid easement grants protecting substantial portions it’s pipeline, and no such easements can be granted by UP, if in fact UP holds no interest in the land itself. Moreover, since only a fee title holder can create a valid easement upon or within his land by means of a grant, and no party can grant an easement in land owned by others, the litigants are eectively powerless to rectify the fallacious premise upon which their agreement is founded without the participation of untold numbers of other parties, at least one of those necessary parties being the US itself. e rights of UP, as viewed by the CCOA, in accord with the relevant decisions of SCOTUS, may very well be limited to the surface, and amount to nothing more than a blanket covering the R/W, with no element of depth, unless it can be proven that fee title to land itself is truly necessary to accomplish the specic mission for which the RR R/W was created. It is noteworthy that if the agreement document had been written to cover all pipelines “within and/or below the R/W”, using purely locational terminology, no title issue would have arisen, but because the agreement employed the word
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