A quick one from the Federal Circuit, in a rails-to-trails takings case.
The holding of the court in Anderson v. United States, No. 21-1445 (Jan. 20, 2022) (when a deed says it conveys "land," under [Texas law, that is a grant of fee simple), isn't all that groundbreaking. But the opinion contains a concise summary of rails-to-trails takings cases, and for that alone is worth a couple minutes of your time. See slip op. at 2-3.
The first step in a takings case, of course, is to identify the private property allegedly being taken. If the original right-of-way conveyance to the railroad by the plaintiffs' predecessor was limited (such as an easement), and the plaintiffs possess the "reversionary" right when the right-of-way ceases to be used for a railroad purpose, then pow!, the designation of the property as a recreational trail is a taking of that interest. If the original conveyance was of a fee simple interest, however, then no property to revert = no taking.
The court's conclusion on this question hinged on how Texas law treats deed language. Here, the 1902 deed conveying the right-of-way said, among other things, that the land was conveyed "for a right of way," and described the interest elsewhere as a "right of way." But the deed also started off with this language that described the grant as being "all that piece or parcel of land ..." See slip op. at 4-5.
So how does Texas law treat what looks like contradictory -- or at least ambiguous -- language in a deed? What interest was conveyed? The Federal Circuit noted that the Texas Supreme Court had already resolved that question back in 1952, where the Texas court concluded that similar language conveyed a fee simple interest. "The land" means a fee, while use of "right of way" is an easement - and you look to the granting clause for the controlling language. So when the deed here said "[t]hat we [the grantors] . . . do grant, bargain, sell and convey unto the said Texas Central Railroad Company all that piece or parcel of land, situate, lying and being in the County of McLennan, State of Texas ..." then it doesn't matter that later in the same deed, the property is described as a "right of way."
The Federal Circuit rejected the owners' argument that the 1952 Texas case relied upon by the Federal Circuit was out of date, and that in 2017 a Texas appellate court concluded otherwise. Slip op. at 9. In that case, the deed language was not the same as here, and the granting clause was even more ambiguous. Finally, the Federal Circuit also rejected the owners' arguments that the deed here expressly conveyed certain mineral interests, a recitation that would be unnecessary if the grant was intended to convey a fee simple absolute ownership in the railroad. The court noted that Texas cases have dealt with this same issue previously, and came down on the side of a fee simple conveyance. Slip op. at 10.
So summary judgment affirmed, plaintiffs lose. But they might take comfort that they couldn't have done much to change the outcome. Last we checked, it's impossible to go back in time and rewrite a deed to make it very clear that all that was granted was an easement.
What's the lesson for today, 120 years later? When drafting your deeds, choose your words carefully.
Anderson v. United States, No. 21-1445 (Fed. Cir. Jan. 20, 2022)
