Tri-County Metropolitan Transportation District of Oregon v. MCI Communications Services, Inc., No. 3:2009cv00277 - Document 42 (D. Or. 2010)

Court Description: ORDER: Opinion & Order Granting Plaintiff's Motion for Summary Judgment 18 and Denying Defendant's Motion for Summary Judgment 26 . Signed on March 31, 2010 by Magistrate Judge Dennis J. Hubel. (hubel2, )

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Tri-County Metropolitan Transportation District of Oregon v. MCI Communications Services, Inc. Doc. 42 1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF OREGON 11 PORTLAND DIVISION 12 13 14 15 16 17 18 TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, an Oregon municipal corporation, ) ) ) ) ) Plaintiff, ) ) v. ) ) MCI COMMUNICATIONS SERVICES, ) INC., a Delaware corporation, ) ) Defendant. ) ) No. CV-09-277-HU OPINION & ORDER 19 20 21 22 John W. Stephens Michael J. Esler Kim T. Buckley ESLER STEPHENS & BUCKLEY 888 S.W. Fifth Avenue, Suite 700 Portland, Oregon 97204-2021 23 Attorneys for Plaintiff 24 26 William J. Ohle Jay T. Waldron SCHWABE, WILLIAMSON & WYATT, P.C. 1211 S.W. Fifth Avenue, Suite 1900 Portland, Oregon 97204-3795 27 Attorneys for Defendant 25 28 / / / 1 - OPINION & ORDER Dockets.Justia.com 1 2 HUBEL, Magistrate Judge: Plaintiff Tri-County Metropolitan Transportation District of 3 Oregon (plaintiff or "TriMet"), brings this action against 4 defendant MCI Communications Services, Inc., now doing business as 5 Verizon Business Services (defendant or "MCI"), for restitution and 6 a declaration that plaintiff does not owe defendant additional 7 funds. Both parties move for summary judgment. 8 The parties have consented to entry of final judgment by a 9 Magistrate Judge in accordance with Federal Rule of Civil Procedure 10 73 and 28 U.S.C. § 636(c). 11 grant plaintiff's motion and deny defendant's motion. 12 13 For the reasons discussed below, I BACKGROUND In December 1990, defendant entered into a Right-of-Way 14 Agreement (MCI ROW Agreement) with Burlington Northern Railway 15 Company (BNR), 16 easement to use a Rail Corridor, controlled by BNR at that time, 17 for MCI's fiber optic communications system. 18 Declr. 19 Highway 217, between Beaverton and Wilsonville. 20 in which BNR conveyed to defendant a limited Exh. A to Hardiman In The Rail Corridor is generally located along I-5 and November 1997, Portland and Western Railroad (P&W) 21 purchased from BNR, which had become Burlington Northern Santa Fe 22 Railroad (BNSF), all of BNSF's track and other improvements needed 23 for rail service on the Rail Corridor. 24 (Bill of Sale dated Nov. 25, 1997 between BNSF and P&W). 25 same date, 26 exclusive 27 "operating and/or developing rail service over, or constructing, 28 maintaining, replacing or lawfully removing any rail facilities . November rail 25, service 2 - OPINION & ORDER 1997, BNSF easement" to Exh. E to Hardiman Declr. granted P&W, a for On the "permanent the purpose and of 1 . . that now, or in the future are present on the Rail Line 2 Corridors." 3 Exh. E to Hardiman Declr. In the spring of 1998, BNSF conveyed the Rail Corridor to the 4 Oregon Department of Transportation (ODOT). Exh. C to Hardiman 5 Declr. (Donation Contract between BNSF and the State of Oregon 6 dated April 24, 1998); Exh. D to Hardiman Declr. (Quitclaim Deed 7 dated May 12, 1998). 8 Beginning in 1996, before BNSF granted the easement to P&W and 9 before BNSF conveyed its interest in the Rail Corridor to ODOT, 10 Washington County, several cities in Washington County, TriMet, 11 Metro, and ODOT began studying the feasibility of a 14.7 mile 12 commuter rail line over the Railway Corridor between Wilsonville 13 and Beaverton. 14 in Continuing Control Agreement). 15 County began alternatives analyses and an environmental assessment 16 process for 17 Administration (FTA), part of the United States Department of 18 Transportation, 19 commencement of the final design of the commuter rail project. Id. 20 On November 21, 2005, Washington County executed a Shared Use 21 Agreement with P&W which gave Washington County the right to 22 provide passenger service over P&W's rail line located within the 23 proposed commuter rail corridor. See Exh. G to Hardiman Declr. (Recitals contained the commuter provided rail In September 1999, Washington project. oversight and The in Federal 2004, Transit authorized Id. 24 In March 2006, ODOT entered into a fifty-year Ground Lease of 25 the Rail Corridor with plaintiff, allowing plaintiff to construct 26 and operate the commuter rail project. 27 At the same time, ODOT and plaintiff entered into a "Continuing 28 Control Agreement" 3 - OPINION & ORDER which recited, Exh. H to Hardiman Declr. inter alia, that plaintiff 1 intended to enter into a Full Funding Grant Agreement (FFGA) with 2 the FTA for acquisition, construction, operation, and maintenance 3 of the commuter rail project, and further recited that the Shared 4 Use Agreement between Washington County and P&W which was executed 5 in November 2005, would be assigned to plaintiff within three 6 business days of the date the FFGA was executed. 7 Hardiman Declr. Exh. G to 8 In September 2006, ODOT wrote to defendant to notify defendant 9 that the location of a portion of defendant's fiber optic system 10 within the right-of-way granted in the MCI ROW Agreement, had to be 11 changed for the relocation or placement of railroad tracks and 12 operational improvements in connection with the commuter rail 13 project. 14 Exh. K to Hardiman Declr. In late October 2006, plaintiff entered into the FFGA with the 15 FTA. 16 into a fifty-year Shared Use Agreement which authorized plaintiff 17 to provide passenger commuter rail service on the Rail Corridor. 18 Exh. J to Hardiman Declr. 19 Exh. I to Hardiman Declr. Then, plaintiff and P&W entered In 2007, defendant, plaintiff, ODOT, and P&W entered into an 20 "Interim Relocation Agreement," under which the parties 21 acknowledged that ODOT, plaintiff, and P&W determined that the 22 location of certain portions of defendant's fiber optic facilities 23 had to be changed for the relocation or placement of railroad 24 tracks and improvements in connection with the commuter rail 25 project, and further, that defendant disputed the assertion by 26 ODOT, plaintiff, and P&W that defendant was obligated to relocate 27 its facilities at its own expense and cost. 28 Declr. at p. 1. Exh. B to Hardiman Because ODOT, plaintiff, and P&W wanted to proceed 4 - OPINION & ORDER 1 with the project, they agreed that the "relocation payments [to 2 reimburse defendant] called for by this Agreement will be made 3 under protest and with a reservation of rights and that no party is 4 waiving any claims or defenses in any legal proceeding by entering 5 into this Agreement . . . ." 6 plaintiff paid $142,533.50 to move defendant's fiber optic system. 7 In this litigation, plaintiff contends that because defendant 8 had no right to the $142,533.50 plaintiff paid under protest, 9 defendant has been unjustly enriched by the amount of that payment. 10 Plaintiff seeks restitution of this amount, along with interest at 11 the rate of nine percent per annum from March 16, 2007, the date 12 plaintiff paid the money, until it is repaid. Plaintiff also seeks 13 a declaration that it does not owe an additional $170,023.10 in 14 relocation expenses that defendant contends plaintiff owes to it. 15 STANDARDS Id. Under this interim agreement, 16 Summary judgment is appropriate if there is no genuine issue 17 of material fact and the moving party is entitled to judgment as a 18 matter of law. 19 initial responsibility of informing the court of the basis of its 20 motion, and identifying those portions of "'pleadings, depositions, 21 answers to interrogatories, and admissions on file, together with 22 the affidavits, if any,' which it believes demonstrate the absence 23 of a genuine issue of material fact." 24 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Fed. R. Civ. P. 56(c). The moving party bears the Celotex Corp. v. Catrett, 25 "If the moving party meets its initial burden of showing 'the 26 absence of a material and triable issue of fact,' 'the burden then 27 moves to the opposing party, who must present significant probative 28 evidence tending to support its claim or defense.'" Intel Corp. v. 5 - OPINION & ORDER 1 Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991) 2 (quoting Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th 3 Cir. 1987)). 4 designate facts showing an issue for trial. 5 322-23. 6 The nonmoving party must go beyond the pleadings and Celotex, 477 U.S. at The substantive law governing a claim determines whether a 7 fact is material. T.W. Elec. Serv. v. Pacific Elec. Contractors 8 Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). 9 to the existence of a genuine issue of fact must be resolved All reasonable doubts as 10 against the moving party. Matsushita Elec. Indus. Co. v. Zenith 11 Radio, 12 drawn from the facts in the light most favorable to the nonmoving 13 party. 475 U.S. 574, 587 (1986). The court should view inferences T.W. Elec. Serv., 809 F.2d at 630-31. 14 If the factual context makes the nonmoving party's claim as to 15 the existence of a material issue of fact implausible, that party 16 must come forward with more persuasive evidence to support his 17 claim than would otherwise be necessary. 18 Research and Tech. Group, 916 F.2d 528, 534 (9th Cir. 1990); 19 California Architectural Bldg. Prod., Inc. v. Franciscan Ceramics, 20 Inc., 818 F.2d 1466, 1468 (9th Cir. 1987). 21 22 23 Id.; In re Agricultural DISCUSSION I. Overview of Parties' Arguments Plaintiff contends that financial responsibility for the 24 relocation of defendant's fiber optic lines is governed by the 25 terms of the MCI ROW Agreement. In particular, plaintiff relies on 26 Section 13.2 of the MCI ROW Agreement which requires defendant to 27 incur relocation expenses made necessary for the relocation or 28 placement of railroad 6 - OPINION & ORDER tracks or for railroad operational 1 improvements. Plaintiff argues that Section 13.3 of the MCI ROW 2 Agreement, 3 railroad, does not apply because that section addresses relocations 4 made to accommodate third parties. under which relocation expenses are borne by the 5 Defendant argues that, assuming ODOT is the "Railroad," ODOT's 6 request that defendant relocate its fiber optic system was made to 7 accommodate 8 relocation was required to accommodate a third party. 9 defendant contends that Section 13.3 applies and defendant is not 10 plaintiff's commuter rail system and thus the Thus, responsible for the costs. 11 Alternatively, defendant argues that it is entitled to summary 12 judgment because BNSF did not convey the benefits of the MCI ROW 13 Agreement to ODOT. 14 the "Railroad" within the meaning of the MCI ROW Agreement and only 15 BNSF may enforce that agreement. 16 II. Accordingly, defendant asserts, BNSF remains Rules of Easement Construction 17 The Oregon Supreme Court has explained that 18 24 [s]everal legal principles govern the proper construction of an instrument creating an easement, whether by reservation or express grant. First, in such cases, "[i]t is the duty of the court to declare the meaning of what is written in the instrument." Minto v. Salem Water Etc. Co., 120 Or. 202, 210, 250 P. 722 (1976). Further, the court will look beyond the wording of the instrument "only where there is an uncertainty or ambiguity." Fendall v. Miller, 99 Or. 610, 619, 196 P. 381 (1921). If the wording at issue is uncertain or ambiguous, then the court must determine the intent of the original parties by examining the relevant surrounding circumstances. 25 Tipperman v. Tsiatsos, 327 Or. 539, 544-45, 964 P.2d 1015, 1019 26 (1998); see also Or. Rev. Stat. §§ (O.R.S.) 42.210-300 (Oregon 27 statutes regarding interpretation of writings). 19 20 21 22 23 28 As I explained in a 1999 Opinion: 7 - OPINION & ORDER 1 "The interpretation of an express easement, like that of contracts and other written instruments, is a question of law for the court." Kell v. Oppenlander, 154 Or. App. 422, 426, 961 P.2d 861, 863 (1998) (citing State Highway Comm'n v. Deal, 191 Or. 661, 681-82, 233 P.2d 242, 251 (1951); Oregon Revised Statute (ORS) 42.230). 2 3 4 "In construing an easement, [the court's] fundamental task is to discern the nature and scope of the easement's purpose and to give effect to that purpose in a practical manner." Watson v. Banducci, 158 Or. App. 223, 230, 973 P.2d 395, 400 (1999) (citing Bernards v. Link, 199 Or. 579, 593, 248 P.2d 341, 347 (1952)). "To determine an easement's purpose [the court] 'look[s] first to the words of the easement, viewing them in the context of the entire document.'" Id. (quoting Kell, 154 Or. App. at 426, 961 P.2d at 863). Words in the grant of an easement are given their plain, ordinary meaning. Fendall v. Miller, 99 Or. 610, 616-17, 196 P. 381, 383 (1921). If the easement's terms clearly express the easement's purpose, the analysis ends here. Watson, 158 Or. App. at 230, 973 P.2d at 400. 5 6 7 8 9 10 11 12 "If ambiguity remains, [the court] look[s] to relevant surrounding circumstances for evidence of the original parties' intent [.]" Id. "[R]elevant considerations may include the easement's purpose, the circumstances existing at the time of the grant, and the manner in which the original parties used the easement." Id. 13 14 15 16 21 "In giving effect to an easement's purpose, general principles of reasonableness control." Id. at 231, 973 P.2d at 400. "Ordinarily, an easement passes no rights to the grantee except those rights that are necessary for the easement's reasonable and proper enjoyment." Id. The grantor retains "'full dominion and use of the land [subject to an easement], except so far as a limitation of the grantor's right is essential to the fair enjoyment' of the easement that was granted." Id. (quoting Miller v. Vaughn, 8 Or. 333, 336 (1880)) (brackets in Watson). 22 Cal-Neva Land & Timber, Inc. v. United States, 70 F. Supp. 2d 1151, 23 1157 (D. Or. 1999) (brackets in original). 24 III. 17 18 19 20 Construction of the MCI ROW Agreement 25 A. Relevant Terms of the Agreement 26 The MCI ROW Agreement is dated December 18, 1990, and begins 27 with several 28 Railroad recitals. controls 8 - OPINION & ORDER a The first right-of-way, recital provides excluding that the buildings or 1 structures, within certain real property upon which it operates a 2 rail transportation system. 3 This is then referred to as the "Railroad Right-of-Way." 4 second recites that the Railroad is willing to grant to defendant 5 the 6 reinstall, remove, and replace a fiber optic telecommunications 7 transmission 8 structures "Within the Railroad Right-of-Way." 9 recites that defendant wishes to acquire from the Railroad the 10 right to construct and operate a fiber optic telecommunications 11 transmission 12 structures (referred to as the "MCI System"), "Within the Railroad 13 Right-of-Way, at locations designated in Exhibit A to the ROW 14 Agreement." 15 right In to construct, system system Exh. A to Hardiman Declr. at p. 3. install, and certain and certain operate, Id. maintain, appurtenant appurtenant repair, equipment Id. The and The third equipment and Id. the definition section, "Railroad" is defined as 16 "Burlington Northern Railroad Company, a Delaware corporation and 17 any parent, wholly owned subsidiary or affiliate of Railroad." Id. 18 at p. 6. 19 across, along and through." 20 "Within" is defined as "in, on, upon, over, under, Id. at p. 7. Section 2 of the MCI ROW Agreement provides the "Grant of 21 Rights by Railroad." 22 defendant the right to construct and operate the MCI system within 23 various sections of the Railroad Right-of-Way. 24 states that 25 26 27 28 Id. at p. 8. Generally, the Railroad grants Id. (§ 2.1). [s]ubject to the terms and conditions of this Agreement, Railroad hereby grants to MCI, and MCI hereby accepts certain easement and related rights (the 'Rights'), at MCI's sole cost and expense: . . . the immediate right to Construct and Operate the MCI System Within approximately 245.67 miles of Railroad Right-of-Way between the System Segment End Points of Seattle, 9 - OPINION & ORDER It 1 Washington to Eugene, Oregon as shown on the Exhibit A[.]" 2 Id. 3 Section 2.4 includes the right of the Railroad to 4 5 6 7 8 9 construct and operate, and to change, modify or relocate, railroad tracks, signals, communication or other wire or fiber lines, pipelines, electric lines, and other railroad facilities Within any or all parts of the Railroad Right-of-Way or permit others to do so for Railroad, all or any of which may be freely done at any time or times by Railroad or others with Railroad's permission, without liability to MCI or to any other party for compensation or damages, unless and except to the extent that this Agreement otherwise expressly provides therefor. 10 Id. at p. 9 (§ 2.4(iii)). 11 Section 13 governs Railroad Relocations and Abandonment: 12 13 14 15 16 17 18 19 20 21 13.1 If, following Initial Construction of the MCI System, Railroad relinquishes or redefines the boundaries of Railroad Right-of-Way upon which the MCI System is located, such that the MCI System is later found to be outside the Railroad Right-of-Way, Railroad shall not require additional payments such as lease payments or easement fees other than as may be provided in Section 3 hereof. 13.2 If Railroad determines that the location of any of the MCI System must be changed for the relocation or placement of railroad tracks or Railroad operational improvements, or for reasons beyond the control of Railroad, Railroad shall notify MCI of such plans and shall use Railroad's best reasonable efforts to secure an alternative location for the MCI System. MCI shall move the affected MCI System to such alternative location at MCI's own expenses, costs and risk as soon as practicable. . . . . 22 23 24 25 26 27 28 13.3 If Railroad desires the relocation of a portion of the MCI System to accommodate third parties, Railroad shall notify MCI of such fact, and MCI shall promptly thereafter submit to Railroad a detailed, itemized estimate (the "Estimate") of the actual costs and expenses that MCI expects to incur, plus reasonable standard additives in moving the MCI System as requested by Railroad ("Moving Costs"). A list of standard additives will be provided to Railroad with any bills containing such additives. Upon receiving from Railroad fifty percent (50%) of the Estimate, MCI shall proceed, as expeditiously as feasible under the circumstances, to 10 - OPINION & ORDER 1 2 3 4 5 relocate the MCI System as directed by Railroad. Upon completion of such relocation and the submission to Railroad of invoices documenting the Moving Costs, Railroad shall promptly pay the balance of such Moving Costs, provided, however, that Railroad shall not be obligated to pay total Moving Costs in excess of One Hundred Ten Percent (110%) of the Estimate, unless Railroad requests changes in the approved design and/or construction methods in which event MCI shall submit to a revised Estimate. 6 Id. at pp. 27-28. 7 B. Discussion 8 Both parties offer various arguments as to why the MCI ROW 9 Agreement requires the opposing party to bear the cost of 10 relocating the MCI System caused by the commuter rail project. 11 Under Section 13.2, assuming, as defendant does for the 12 purpose of this argument, that ODOT is "the Railroad," the 13 operative language reads: 14 15 16 17 If [ODOT] determines that the location of any of the MCI System must be changed for the relocation or placement of railroad tracks or [ODOT] operational improvements, or for reasons beyond the control of [ODOT], . . . MCI shall move the affected MCI System to such alternative location at MCI's own expense, cost and risk as soon as practicable. 18 Exh. A to Hardiman Declr. at p. 27 (§ 13.2). 19 The plain language states that MCI is responsible for the 20 relocation costs when ODOT determines that the location of the MCI 21 System has to be changed due to (1) relocation or placement of 22 railroad tracks, or (2) operational improvements of ODOT, or (3) 23 reasons beyond ODOT's control. 24 Under Section 13.3, "[i]f [ODOT] desires the relocation of a 25 portion of the MCI System to accommodate third parties," then ODOT 26 is responsible for the costs of relocating the MCI System. Id. at 27 p. 28 (§ 13.3). The MCI ROW Agreement does not further define 28 11 - OPINION & ORDER 1 "accommodate" or "third parties." The plain language of this 2 section indicates that when the MCI System is relocated because 3 ODOT is accommodating a third party, ODOT bears the relocation 4 costs. 5 Depending on the interpretation of the language in these two 6 sections, a conflict could arise if ODOT determined that the 7 location of the MCI System had to be changed due to the relocation 8 or placement of tracks required by ODOT to accommodate a third 9 party. Defendant argues that these are the facts present here and 10 that it violates basic rules of contract interpretation to (1) read 11 Section 13.2 to require defendant to bear relocation costs for any 12 relocation or placement of railroad tracks while (2) also reading 13 Section 13.3 to require ODOT to bear the relocation cost whenever 14 the relocation is required to accommodate a third party. 15 To harmonize the two provisions and give them both effect, 16 defendant argues that Section 13.2 applies when the relocation or 17 placement of track is required for ODOT's needs, but Section 13.3 18 controls any time the MCI System must be moved to accommodate the 19 needs of a third party. 20 "relocation or placement of railroad tracks" in Section 13.2 should 21 be 22 improvements" such that it is only when the relocation or placement 23 of tracks is required by the Railroad, meaning ODOT, that Section 24 13.2 applies. 25 Section 13.3. 26 read as a specific Defendant contends that the phrase example of "Railroad operational Any other relocation or placement falls under Plaintiff contends that Section 13.2 should control over 27 Section 13.3 because 28 Additionally, plaintiff argues that because railroad operation 12 - OPINION & ORDER Section 13.2 precedes Section 13.3. 1 purposes are paramount to fiber optic purposes under the MCI ROW 2 Agreement, Section 13.2 "trumps" Section 13.3. 3 In construing a contract, "an interpretation which gives a 4 reasonable, lawful, and effective meaning to all the terms is 5 preferred to an interpretation which leaves a part unreasonable, 6 unlawful, or of no effect[.]" 7 203(a) (1981); see also Anderson v. Divito, 138 Or. App. 272, 278, 8 908 P.3d 315, 320 (1995) (Oregon Revised Statute § (O.R.S.) 42.230 9 "requires construction of the contract as a whole, giving effect to word and Restatement (Second) of Contracts § 10 every phrase."). Thus, "[t]he usual rule of 11 interpretation of contracts is to read provisions so that they 12 harmonize with each other, not contradict each other." Peterson v. 13 Minidoka County School Dist. No. 331, 118 F.3d 1351, 1359 (9th 14 Cir.), amended, 132 F.3d 1258 (9th Cir. 1997); see also Sanders v. 15 Oregon Pac. States Ins. Co., 314 Or. 521, 527, 840 P.2d 87, 90 16 (1990) (noting, in context of statutory construction, that if there 17 is a conflict between provisions, it is the court's duty to try to 18 harmonize them). 19 The analysis starts with the language in Section 13.2. 20 three conditions requiring defendant to pay the relocation costs 21 are separated by the word "or," meaning each one stands independent 22 of the other. 23 placement of railroad tracks" is written with a lower case "r", and 24 thus is not "the Railroad" as earlier defined in the MCI ROW 25 Agreement. 26 "relocation or placement of railroad tracks." 27 "railroad" 28 placement The word "railroad" in the phrase "relocation or There and of The no is modifying modifiers railroad 13 - OPINION & ORDER no language to the phrase With the lower case to the condition tracks," the plain "relocation language or obligates 1 defendant to bear the costs of moving its MCI System caused by any 2 "relocation or placement of tracks." 3 restrict defendant's obligation to a relocation or placement of 4 tracks caused by or benefitting ODOT. The plain language does not 5 In contrast to the first triggering condition, the second 6 triggering condition, "[ODOT] operational improvements," contains 7 a restrictive modifier by mandating that ODOT be the party whose 8 operational improvements cause a change in the MCI System location. 9 The use of "Railroad" (meaning ODOT) in this second triggering 10 condition shows that the drafters knew how to require that the 11 condition be related to a need of ODOT (or anyone else standing in 12 the Railroad's shoes). 13 When these first two triggering conditions are considered 14 together1, the most logical interpretation, and the one that gives 15 effect to all of the conditions triggering defendant's obligation 16 to pay for the relocation costs under Section 13.2, is to read 17 "relocation or placement of railroad tracks" to mean any such 18 relocation or placement, regardless of the entity requesting, 19 requiring, or benefitting from, the relocation or placement. 20 is 21 operational improvements" includes the "relocation or placement of 22 railroad tracks," the "relocation or placement of railroad tracks" 23 no longer has any independent meaning or effect and the first because if, as defendant suggests, the phrase This "[ODOT] 24 25 26 27 28 1 The third triggering condition, "reasons beyond the control of [ODOT]," is not at issue in the case and does not provide meaningful context for the interpretation of the prior two conditions other than to show, once again, the use of the upper case Railroad as distinguished from the lower case railroad. 14 - OPINION & ORDER 1 triggering condition is surplusage. 2 be avoided. 3 of railroad tracks" condition, Section 13.2 must be interpreted to 4 mean exactly what that provision says: 5 of paying for relocation costs of its MCI System when the location 6 of the MCI System is changed because of the relocation or placement 7 of any railroad tracks. 8 This Such an interpretation is to Thus, to give effect to the "relocation or placement construction of Section defendant bears the burden 13.2 does not negate the 9 "accommodation of third parties" language in Section 13.3 when that 10 section is interpreted to apply to costs of changing the location 11 of the MCI System caused by accommodating a need of a third party 12 other than a need to relocate or place railroad tracks. That is, 13 when than 14 relocating or placing tracks, then ODOT is responsible for any 15 costs incurred in changing the location of the MCI System under 16 Section 13.3. 17 caused by any relocation or placement of tracks, or by ODOT's 18 operational improvements, or by a reason beyond ODOT's control, 19 then defendant bears the burden of such costs under Section 13.2. 20 This construction of Sections 13.2 and 13.3 relies on the 21 plain, ordinary meaning of the words, gives effect to all of the 22 conditions recited in Section 13.2, and harmonizes Sections 13.2 23 and 13.3 by giving them both effect. Moreover, this interpretation 24 is consistent with the MCI ROW Agreement's stated intent that the 25 fiber optic needs of defendant are subordinate to the use of the 26 land for railroad purposes. 27 A to Hardiman Declr. at p. 9) (providing that rights granted to 28 defendant are subordinate to the "prior and continuing right of ODOT accommodates a third party's needs other by But, if the change of location of the MCI System is 15 - OPINION & ORDER See § 2.4 of MCI ROW Agreement (Exh. 1 [ODOT]" to use and maintain the property in the operation of its 2 railroad, to dispose of all or any part of its property, and to 3 construct and operate, change, modify, relocate tracks, signals, 4 communication or other fiber lines, pipelines, electric lines, and 5 "other railroad facilities" within the Right-of-Way). 6 Defendant's additional arguments do not warrant extensive 7 discussion. First, defendant contends that various other contracts 8 related to the Rail Corridor, the use or control of the Railroad 9 Right-of-Way, and the development of the commuter rail project2 all 10 give plaintiff control over and sole responsibility for the 11 commuter rail project. 12 interpretation of the plain language of the MCI ROW Agreement. 13 Even if defendant accurately represents the provisions in those 14 contracts, the interpretation of the MCI ROW Agreement provided 15 above is not inconsistent with TriMet possessing control over and 16 responsibility for the commuter rail project. This argument is not relevant to the 17 Second, defendant relies on an August 8, 2006 letter from John 18 Geil, the Oregon Department of Justice's Attorney-in-Charge of the 19 Commercial Condemnation & Environmental Litigation Section, to John 20 Stephens, plaintiff's counsel. 21 wrote the letter in response to plaintiff's request to ODOT that 22 ODOT inform AT&T and defendant that they must relocate their 23 telecommunications 24 proposed commuter rail project. 25 because ODOT cables believed it in Exh. 8 to Sarratt Declr. order did to Id. not accommodate Geil plaintiff's ODOT denied the request have authority to require 26 27 28 2 Defendant cites to the Ground Lease, the Continuing Control Agreement, TriMet's Shared Use Agreement with P&W, and the FFGA. Exhs. G, H, I, and J to Hardiman Declr. 16 - OPINION & ORDER 1 defendant and AT&T to relocate their telecommunication cables. Id. 2 Geil, writing on behalf of ODOT, put forth two arguments supporting 3 the denial. 4 Agreement under which the easement was originally granted to 5 defendant by BNSF, was later conveyed with the land to ODOT. 6 Alternatively, ODOT argued that the Continuing Control Agreement 7 transferred to plaintiff any authority ODOT possessed requiring 8 existing 9 accommodate the commuter rail project. 10 The first argument concerned whether the MCI ROW easement holders to relocate their easements Id. to Id. Notably, neither argument interprets the language of Sections 11 13.2 12 interprets the identical right-of-way agreement BNSF made with 13 AT&T. 14 is not relevant to the proper construction of Sections 13.2 and 15 13.3 of the MCI ROW Agreement. 16 and 13.3 of the MCI ROW Agreement. Neither argument Thus, the argument about what Geil wrote on behalf of ODOT Finally, both Judge Haggerty3 and Judge Aiken4 have issued 17 related opinions which the parties here discuss and rely on. 18 Commc'ns-East, Inc. v. BNSF Rwy Co., No. CV-06-866-HA, 2006 WL 19 3408035 (D. Or. Nov. 27, 2006), aff'd, 323 Fed. Appx. 487, 2009 WL 20 725174 21 Telecomms. Corp. v. Tri-County Metro. Transp. Dist. of Or., No. CV- 22 97-807-AA, Opinion (D. Or. Apr. 23, 1998), aff'd 201 F.3d 444, 1999 (9th Cir. Jan. 22, 2009) (unpublished opinion); AT&T MCI 23 24 25 26 27 28 3 In Judge Haggerty's case, BNR granted a nearly identical easement in the same real property as in the instant case, to AT&T. 4 Judge Aiken's case involved the same easement to MCI as in the instant case, but the real property at issue was land on which MAX light rail to Hillsboro was constructed and was not the land used for the commuter rail project. 17 - OPINION & ORDER 1 WL 1000903 (9th Cir. Nov. 3, 1999) (unpublished opinion). 2 I discuss these opinions in more detail below. But, at this 3 juncture, I agree with defendant that Judge Aiken's case is not 4 instructive here because although she interpreted Sections 13.2 and 5 13.3 of the MCI ROW Agreement, in the case before her BNSF conveyed 6 the land directly to plaintiff. 7 was "the Railroad," and plaintiff's request that defendant change 8 the location of the MCI System was made on its own behalf, not on 9 behalf of a third party. Judge Aiken never considered the argument 10 As a result, plaintiff, not ODOT, that defendant makes here. 11 Judge Haggerty discussed a nearly identical easement granted 12 by BNR to AT&T, in the context of the identical subsequent grant of 13 the Rail Corridor by BNSF to ODOT. 14 the AT&T Right-of-Way (ROW) Agreement, which is nearly identical5 15 to Section 13.2 of the MCI ROW Agreement, controlled. 16 Judge Haggerty's conclusion is not binding here because it was a 17 different 18 indication that he was squarely presented with the argument made 19 here, the interpretation of the MCI ROW Agreement that I set forth 20 herein is consistent with his conclusion. easement with a He stated that Section 11(a) of different party, and Although there is no 21 22 23 24 25 26 27 28 5 The differences between Section 13.2 of the MCI ROW Agreement and Section 11(a) of the AT&T ROW Agreement are minor and of no consequence. First, all references to MCI or to the "MCI System," in Section 13.2 of the MCI ROW Agreement appear as AT&T or the "AT&T Facilities" in the AT&T ROW Agreement. Second, in the AT&T ROW Agreement, the word "any" appears in the third triggering condition between the words "for" and "reasons" so that the third triggering conditions is "or for any reasons beyond the control of Railroad[.]" Compare Exh. A to Hardiman Declr. at p. 27 (MCI ROW Agreement) with AT&T, 2006 WL 3408035, at *7 (Judge Haggerty opinion quoting Section 11(a) of the AT&T ROW Agreement). 18 - OPINION & ORDER 1 Additionally, the Ninth Circuit, in affirming Judge Haggerty, 2 stated that because the AT&T ROW Agreement ran with the land when 3 BNSF conveyed the Beaverton segment to ODOT, "ODOT had authority 4 under Section 11(a) of the ROW to require AT&T to relocate its 5 fiber optic facilities at its expense to accommodate the placement 6 of new railroad tracks." 7 interpretation I set forth is also consistent with the Ninth 8 Circuit's conclusion. 2009 WL 725174, at *1. Thus, the 9 Accordingly, assuming, as defendant does for the purposes of 10 this argument, that ODOT is "the Railroad" under the MCI ROW 11 Agreement, I agree with plaintiff that the request to change the 12 location of the MCI System was made for the relocation or placement 13 of railroad tracks as set forth in Section 13.2 of the MCI ROW 14 Agreement, 15 relocation of the MCI System. 16 IV. triggering defendant's obligation to pay for the Conveyance of the Interest by BNSF to ODOT 17 Defendant seeks summary judgment in its favor, and argues 18 against summary judgment for plaintiff, for the independent reason 19 that, according to defendant, BNSF did not convey the benefits of 20 the MCI ROW Agreement to ODOT and therefore, BNSF remains the 21 Railroad within the meaning of the ROW Agreement. 22 Railroad, then ODOT cannot enforce the payment obligations in 23 Section 13.2 of the MCI ROW Agreement. 24 If BNSF is the As noted in the background section above, in the spring of 25 1998, BNSF conveyed the Rail Corridor to ODOT. 26 documents memorializing this conveyance are the April 24, 1998 27 Donation Contract and the May 12, 1998 Quitclaim Deed. 28 D to Hardiman Declr. 19 - OPINION & ORDER The operative Exhs. C and 1 In the Quitclaim Deed, BNSF quitclaimed to ODOT, "all of 2 [BNSF's] right title and interest . . . in and to parcels of land 3 located in the Counties of Washington, Clackamas, Marion, and 4 Multnomah, State of Oregon, as such parcels of land are more 5 particularly described in Attachment 1[.]" 6 Declr. at p. 1. 7 9 11 12 13 14 15 16 17 18 19 20 This conveyance was SUBJECT, however, to all existing interests in the Premises, including but not limited to the Rail Service Easement granted to Portland & Western Railroad, Inc., on November 25, 1997, and all reservations, easements and other encumbrances, of record or otherwise. 8 10 Exh. D to Hardiman Id. Additionally, the Quitclaim Deed expressly reserved unto BNSF, its successors and assignees, a non-exclusive, permanent easement for construction, reconstruction, maintenance, use and/or operation of one or more pipelines or fiber optic communication lines, together with related facilities and appurtenances in, under, across, along and through any 10-foot wide portion of the Premises, including the right for [BNSF], its successors and assignees, or any of its licensees, to enter, disturb the surface, and occupy the Premises for purposes of constructing, reconstructing, maintaining, using and/or operating one or more pipelines or fiber optics communication lines, facilities and appurtenances in, under, across, along and through all or any portion of the Premises . . . . Id. at p. 2. 21 The Donation Contract recites that ODOT desires to obtain 22 BNSF's ownership interests in "the following rail corridors[.]" 23 Exh. C to Hardiman Declr. at p. 2. 24 the property, the Donation Contract makes clear that the conveyance 25 is of "all of BNSF's ownership interest in the Rail Corridors" 26 except for "any and all rail, ties, spikes," etc., including "other 27 improvements 28 "maintenance equipment on wheels," etc., that are present on the needed 20 - OPINION & ORDER for rail Following the description of service," and any vehicles, 1 2 3 4 5 6 7 8 9 10 Rail Corridors on the date of closing. Id. at pp. 3-4. The Donation Contract then states that the conveyance is "subject to the terms and conditions set forth" in [1] this Agreement, [2] in the Quitclaim Deed, and/or [3] in any agreement assigned by BNSF to ODOT by the terms of this Agreement, including BNSF's retained interests, as specified in more detail in the Quitclaim Deed, for a non-exclusive, permanent easement for construction, maintenance and operation of one or more pipelines or fiber optic communication lines, together with related facilities and appurtenances, in, under, across, along and through any 10-foot wide portion of the Rail Corridors, on conditions that do not significantly increase the liability risk of the rail serve operator over the Rail Corridors and do not significantly interfere with rail operations, construction or maintenance activities on the Rail Corridors[.] 11 Exh. C to Hardiman Declr. at p. 4.6 12 Under both the Quitclaim Deed and the Donation Contract, when 13 BNSF donated its interest in the Rail Corridors to ODOT, BNSF 14 expressly retained for itself a non-exclusive, permanent easement 15 for the construction, etc., of one or more pipelines or fiber optic 16 communication lines. Defendant argues that this reserved easement 17 is the easement BNSF granted to defendant in the MCI ROW Agreement. 18 In support of this argument, defendant primarily relies on 19 20 21 22 23 24 25 26 27 28 6 The language in what I have delineated as the third type of agreement the Donation Contract is subject to is less than clear. Under this provision, the conveyance in the Donation Contract is subject to any agreement assigned by BNSF to ODOT by the terms of the Donation Contract. I take this to refer to Section 2 of the Donation Contract entitled "Assignment of Rail Corridor Contracts" and discussed more fully below. The confusing language is that after stating that the conveyance is subject to any agreements assigned by BNSF to ODOT under the Donation Contract, the following words appear: "including BNSF's retained interests, as specified in more detail in the Quitclaim Deed, for a non-exclusive, permanent easement . . . . " The use of "including," suggests that the interest for the fiber optic easement retained by BNSF was "assigned" by BNSF to ODOT. This makes little sense. 21 - OPINION & ORDER 1 Section 2 of the Donation Contract which addresses assignments of 2 rail corridor contracts. 3 (1) all assignable rights and obligations of BNSF which accrue 4 after closing, (2) to the extent they are related to the rail 5 corridors, and (3) are set forth in any agreement identified in 6 Exhibit D. 7 in Exhibit D. Id. at p. 4. In Section 2, BNSF first assigns to ODOT The MCI ROW Agreement is not identified 8 Next, Section 2 provides that ODOT accepts the assignment of 9 these rights and obligations, in accordance with the terms of each 10 applicable agreement and the Donation Contract. Id. at pp. 4-5. 11 BNSF, not ODOT, is responsible for performing BNSF's duties in 12 assigned agreements which accrue on or before closing. 13 5. 14 duties in assignment agreements accruing after the closing date. 15 Id. Id. at p. ODOT, not BNSF, is responsible for performing all assignee 16 Section 2 then states that BNSF reserves the rights and 17 obligations set forth in any agreement identified in Exhibit D, to 18 the extent those rights are related to (1) one or more other rail 19 corridors or BNSF property, and (2) to the extent those rights are 20 related to BNSF's retained fiber optic easement. Id. 21 Finally, Section 2 provides that "[i]f any contract is related 22 to the Rail Corridors, and not to rail service provided over the 23 Rail Corridors or fiber optic facilities now located on the Rail 24 Corridors, but inadvertently is not identified in Exhibit D," BNSF 25 is to provide ODOT a copy of the contract and assign it to ODOT, 26 and ODOT is to assume the rights and obligations in that contract 27 to the extent they are related to the Rail Corridors. 28 Id. Defendant argues that Section 2 of the Donation Contract makes 22 - OPINION & ORDER 1 clear that the parties to that contract did not intend to convey, 2 as part of the Donation Contract, any contracts relating to fiber 3 optic facilities, including defendant's facilities, then located on 4 the Rail Corridors. 5 not listed in Exhibit D to the Donation Contract. 6 under the final provision in Section 2, the parties underscored 7 their intent to omit any contract related to fiber optic facilities 8 then located in the Rail Corridor from being identified in Exhibit 9 D. Defendant notes that the MCI ROW Agreement is Additionally, Thus, defendant contends, by reserving and not conveying 10 responsibility for defendant's fiber optic facilities in the Right- 11 of-Way, BNSF remains the Railroad under the MCI ROW Agreement. 12 I agree with defendant that Section 2 makes clear that a 13 contract related to fiber optic facilities then located in the 14 Railroad Corridor was not identified in Exhibit D and was not meant 15 to be identified in Exhibit D. 16 was purposefully excluded from the list of agreements in Exhibit D, 17 then, under the language of Section 2, it follows that BNSF did not 18 assign to ODOT any assignable rights and obligations of BNSF 19 related to the MCI ROW Agreement which accrued after closing 20 because such rights and obligations were not set forth in an 21 agreement identified in Exhibit D and clearly were not meant to be 22 set forth there. 23 Notably, however, Assuming that the MCI ROW Agreement Section 2 concerns assignments. As 24 discussed below, I conclude that the initial conveyance by BNSF to 25 ODOT of all of BNSF's "right title and interest" subject to "all 26 existing interests . . . including but not limited to . . . all 27 reservations, 28 otherwise" included the easement created by the MCI ROW Agreement easements 23 - OPINION & ORDER and other encumbrances, of record or 1 because the easement runs with the land. With the easement being 2 transferred to ODOT by virtue of the conveyance itself, then there 3 was simply no need for BNSF to assign it to ODOT in Section 2. 4 Accordingly, the absence of the MCI ROW Agreement from Exhibit D 5 does not persuade me that the parties intended that BNSF reserve to 6 itself the easement created by the MCI ROW Agreement. 7 I agree with plaintiff that defendant's position that when 8 BNSF conveyed the property to ODOT, BNSF also retained its interest 9 in the MCI ROW Agreement, is illogical, is inconsistent with Oregon 10 property law, and is inconsistent with the conclusions made by 11 Judge Aiken and Judge Haggerty in their respective, related cases. 12 First, plaintiff indicates that it makes little sense for BNSF 13 to have retained only a "burden" on the estate when it conveyed the 14 remainder 15 plaintiff contends that it makes little sense for BNSF to have 16 conveyed the property to ODOT subject to the MCI ROW Agreement, and 17 then retain the power to require defendant to move defendant's 18 fiber optic system at defendant's expense due to railroad track 19 relocation or placement or due to railroad operational improvements 20 when BNSF no longer owned the track and no longer conducted 21 railroad operations in the property. 22 of Second, its property under Oregon interest law, the to ODOT. Additionally, I agree with plaintiff. burden of an easement is 23 presumed to run with the servient estate. The Oregon Supreme Court 24 has explained that 25 26 27 28 [r]ights conferred by an easement attach to the estate and not to the person of the dominant tenement and they follow that estate into the hands of the assignee thereof. On the other hand, they are a charge upon the estate or property of the servient tenement and follow it into the hands of any person to whom such tenement or any part thereof is subsequently conveyed. 24 - OPINION & ORDER 1 Monese v. Struve, 155 Or. 68, 77, 62 P.2d 822, 825 (1936); see also 2 Beck v. Lane County, 141 Or. 580, 592, 18 P.2d 594, 598 (1933) 3 ("The [property] . . . passed to the [successor] incumbered [sic] 4 by the easement, so covenanted or reserved, and the right and 5 burden thus created passed to and was binding upon all subsequent 6 grantees of the respective properties."). 7 The express language in the Quitclaim Deed that the grant to 8 ODOT was subject to all existing interests in the property, 9 including all easements of record or otherwise, is consistent with 10 Oregon property law. Under Oregon law, when BNSF conveyed the 11 Railroad Segment to ODOT, the "burden" of the easement created by 12 the MCI ROW Agreement ran with the Railroad Segment land. 13 Third, both Judge Aiken's and Judge Haggerty's opinions are 14 instructive. Judge Aiken construed the same MCI ROW Agreement, but 15 in the context of a conveyance from BNSF to TriMet, not ODOT. 16 Telecomms., Op. at p. 3. 17 rights under the MCI ROW Agreement to TriMet as required by Section 18 26.1 of the MCI ROW Agreement and therefore, TriMet possessed no 19 rights under the MCI ROW Agreement to require MCI to relocate its 20 fiber optic system at its own expense. MCI MCI argued that BNR never assigned its Id. at p. 4. 21 Judge Aiken ruled for TriMet on the basis that the easement 22 passed with the land and thus, TriMet succeeded to BNR's rights 23 under the easement as a matter of law. 24 then had the authority to require MCI to relocate its system at 25 MCI's expense under Section 13.2 of the MCI ROW Agreement. 26 Id. at pp. 4-7. TriMet Id. Judge Aiken noted that under the deed from BNR to TriMet, 27 TriMet took possession 28 encumbrances," which thus included the MCI ROW Agreement. 25 - OPINION & ORDER of the property "subject to all Id. at 1 pp. 4-5. 2 enforce the MCI ROW Agreement's easement rights, but not to enforce 3 the reciprocal obligation by MCI to pay for relocation. 4 rejected this position because both the rights and obligations of 5 the easement were created by the same instrument. 6 She further explained that the common law rule that an easement 7 runs with the land enables the easement to survive in the absence 8 of 9 position. 10 an She explained that MCI's argument required the court to assignment, thus avoiding the She Id. at p. 5. contradictions of MCI's Id. at pp. 6-7. The Ninth Circuit affirmed Judge Aiken. The Ninth Circuit 11 noted that the MCI ROW Agreement expressly provided that "[t]his 12 Agreement shall be binding upon and inure to the benefit of the 13 parties hereto and their respective successors or assigns." 14 WL 1000903, at *1. 15 easement was personal to MCI. 16 words "successors or assigns" was traditionally seen as strong 17 evidence that the parties did not intend the covenants to be 18 personal. 19 extending the benefits and burdens of the Agreement to the parties' 20 successors 21 "Section 22 successor in its interest in the fee." Id. and 26.1 1999 This language negated MCI's argument that the The court assigns entitled as Id. The court noted that use of the "view[ed] decisive." Tri-Met to the Id. provision It expressly concluded Burlington's rights that as a Id. at *3. 23 Although Judge Aiken's decision addressed a different land 24 conveyance, the decisions issued in the case are relevant here. 25 First, as Judge Aiken noted, a conveyance of property "subject to 26 all encumbrances," meant that under the deed, the grantee took the 27 property subject to the MCI ROW Agreement. 28 conveyance in the instant case is not materially different from 26 - OPINION & ORDER The language of the 1 that in the conveyance discussed in Judge Aiken's case. 2 Second, as the Ninth Circuit noted, Section 26.1 of the MCI 3 ROW Agreement reveals the drafters' intent to have the agreement 4 run with land. 5 argument that it retained easement rights, but not the relocation 6 obligations under the MCI ROW Agreement, while the grantee assumed 7 the obligation of the easement without its accompanying rights, "is 8 not a feasible legal proposition." 9 Third, as Judge Aiken noted, the defendant's Judge Haggerty's case is more directly on point. There, both 10 Judge Haggerty and the Ninth Circuit considered a nearly identical 11 easement and the identical land conveyance from BNSF to ODOT. 12 that case, TriMet argued that the AT&T ROW Agreement ran with the 13 land when it was conveyed from BNSF to ODOT. 14 reserved its rights and obligations under the AT&T ROW Agreement 15 when it conveyed its interest in the Railroad Corridor to ODOT. In AT&T argued that BNSF 16 Judge Haggerty concluded that BNSF had conveyed the property 17 to ODOT subject to the easement and therefore, ODOT succeeded to 18 BNSF's right 19 relevant provision of the AT&T ROW Agreement. 20 *8. Judge Haggerty noted that the right to compel AT&T to relocate 21 its facilities at its own expense to allow for placement of 22 railroad tracks was a term and condition of AT&T's easement. 23 to make AT&T relocate the facilities and obligations Id. AT&T argued that 24 BNSF retained 25 Agreement "despite conveying to ODOT in fee simple title to the 26 land governed by the ROW, and that those rights and obligations did 27 not run with the land." 28 Aiken's case, the court first looked at the provision in the ROW 27 - OPINION & ORDER rights the 2006 WL 3408035, at The Ninth Circuit affirmed Judge Haggerty. its under under 2009 WL 725174, at *1. the AT&T ROW As in Judge 1 agreement providing that the ROW was to be binding upon and inure 2 to the benefit of the parties "and their respective successors or 3 assigns." 4 "indicates that AT&T and BNSF intended the easement to run." 5 Then, the court continued, because the AT&T ROW Agreement ran with 6 the land when BNSF conveyed the Rail Corridor to ODOT, ODOT had 7 authority to require AT&T to relocate its fiber optic facilities at 8 AT&T's expense 9 railroad tracks. Id. The court concluded first that this language in order to accommodate the placement of Id. new Id. 10 Notably, both Judge Haggerty and the Ninth Circuit quickly 11 disposed of the argument that BNSF reserved the ROW agreement to 12 itself when conveying the real property to ODOT subject to the 13 easement. 14 conveyed to ODOT subject to the AT&T ROW Agreement, ODOT could 15 enforce the relocation expense provision against AT&T. 16 the AT&T ROW Agreement is not the agreement at issue in this case, 17 any difference between that agreement and the MCI ROW Agreement at 18 issue 19 conveyance from BNSF to ODOT was at issue before Judge Haggerty and 20 the Ninth Circuit. Both courts stated clearly that once the property was here is immaterial. Most importantly, the Although same land 21 Defendant's argument is not supported by Section 2 of the 22 Donation Contract, common sense, Oregon law, and the opinions 23 issued 24 Instead, logic and the relevant law (both Oregon property law and 25 the decisions in Judge Aiken's and Judge Haggerty's cases) combine 26 to compel a conclusion that BNSF did not retain the MCI ROW 27 Agreement 28 property to ODOT. in Judge Aiken's easement unto and Judge itself when Haggerty's it related conveyed the cases. subject Rather, plaintiff succeeded to the rights and 28 - OPINION & ORDER 1 obligations of the MCI ROW Agreement and under Section 13.2, has 2 the authority to require defendant to pay for the relocation of its 3 fiber optic system. 4 Defendant offers two additional arguments that are not 5 persuasive. 6 Easement Deed related to the easement created by the MCI ROW 7 Agreement. 8 Agreement was executed in 1990, the parties to that agreement did 9 not actually execute a deed until October 1998. 10 Separate from the MCI ROW Agreement is the actual Exh. 2 to Sarratt Declr. Although the MCI ROW Id. recorded in Washington County on January 20, 1999. The deed was Id. 11 Section 2.6 of the MCI ROW Agreement provides that upon 12 completion of the construction of the MCI System, defendant "may, 13 at its option, deliver to Railroad documents evidencing one or more 14 easement grants, executed by MCI or one or more of its affiliates 15 exactly in the form of Exhibit B . . . ." 16 Declr. at p. 11. 17 the Railroad was to execute the documents and return them to 18 defendant. 19 appropriate jurisdiction. 20 "Easement Deed and Agreement." 21 executed by defendant and BNSF is identical to this form. 22 Id. Exh. A to Hardiman If the documents are acceptable to the Railroad, Defendant could then record the documents in the Id. Exhibit B is a form entitled Id. at p. 50. The Easement Deed BNSF executed, and defendant recorded, the Easement Deed after 23 the spring 24 Defendant argues that the post-conveyance execution and recording 25 of 26 reserved, and not conveyed, the corresponding property interest to 27 defendant's fiber optic easement. 28 Agreement the 1998 Easement conveyance Deed required 29 - OPINION & ORDER the of evidences Easement the Rail BNSF's Corridors belief that to ODOT. BNSF had That is, because the MCI ROW Deed to be executed by "the 1 Railroad," BNSF's execution of the deed after it conveyed the Rail 2 Corridors subject to the easement to ODOT, indicates that BNSF saw 3 itself, and not ODOT, as "the Railroad" at that time. 4 Plaintiff suggests that the late recording of the Easement 5 Deed is better explained by the fact that MCI did not complete the 6 initial construction of the MCI System until 1998, or simply, that 7 having previously completed the MCI System, defendant neglected to 8 prepare the Easement Deed until 1998, and then, BNSF executed it 9 upon presentation because it was required to do so by the terms of 10 11 the MCI ROW Agreement. While plaintiff's explanation makes some sense, it is 12 unsupported by any evidence in the record such as when the initial 13 construction of the MCI System was completed, or any deposition 14 testimony, for example, from defendant or BNSF about the timing of 15 the Easement Deed. 16 interpretation unpersuasive in light of the discussion above. Even 17 if BNSF thought, at the time it executed the Easement Deed, that 18 BNSF had retained the easement as defendant suggests, BNSF did not, 19 in light of the language used in the conveyance documents, common 20 sense, and Oregon law, sufficiently and reasonably articulate that 21 belief. Nonetheless, I find defendant's proferred 22 Finally, defendant states that it has provided, and continues 23 to provide, communication services to BNSF in exchange for the 24 easement created by the ROW Agreement. I agree with plaintiff that 25 the consideration defendant "paid," or continues to "pay" to BNSF 26 for the easement, is irrelevant to whether BNSF retained the 27 easement in the subsequent conveyance of the property to ODOT. 28 / / / 30 - OPINION & ORDER 1 2 3 4 CONCLUSION I grant plaintiff's motion for summary judgment (#18) and deny defendant's motion for summary judgment (#26). IT IS SO ORDERED. 5 Dated this 31st day of March , 2010. 6 7 8 /s/ Dennis James Hubel Dennis James Hubel United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 31 - OPINION & ORDER

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