DEPT OF NATURAL RESOURCES V CARMODY-LAHTI REAL ESTATE INC
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 27, 2005
MICHIGAN DEPARTMENT OF NATURAL RESOURCES,
Plaintiff-Appellee and Cross-Appellant,
v
No. 124413
CARMODY-LAHTI REAL ESTATE, INC, a
MICHIGAN CORPORATION
Defendant-Appellant and Cross-Appellee.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
In
1873,
interest
in
Michigan,
parties
the
real
to
written deed.
Mining
property
the
labeled
Quincy
Mineral
this
located
Range
interest
a
Company
in
conveyed
Houghton
Railroad
“right
County,
Company.
of
way”
an
in
The
the
The precise nature of this right-of-way—
whether it was an easement or a fee estate, whether it was
limited
to
railroad
purposes
and,
if
so,
what
such
a
limitation would mean—is the subject matter of this appeal.
Plaintiff,
Resources,
is
the
the
Michigan
successor
in
Department
of
Natural
interest
the
Mineral
of
Range Railroad Company.
It asserts that it owns a fee
simple interest and is therefore entitled to use the rightof-way as a snowmobile and recreation trail.
Carmody-Lahti
Real
Estate,
Inc.,
is
the
Defendant,
successor
in
interest of the Quincy Mining Company and maintains that
plaintiff’s
predecessor
in
interest
enjoyed
only
an
easement, which it abandoned before purporting to convey it
to plaintiff.
We
conclude
that
the
Court
of
Appeals
correctly
determined that the 1873 deed conveyed an easement rather
than a fee simple.
However, we conclude that the panel
erred in holding that the easement was neither limited to a
specific purpose nor abandoned by plaintiff’s predecessor
in interest.
an
easement
plaintiff’s
Properly construed, the instrument conveyed
for
railroad
purposes
predecessor
in
only.
interest
Thus,
when
unambiguously
manifested its intent to relinquish any use of the rightof-way
for
railroad
purposes
and
took
action
with that intent, the easement was abandoned.
consistent
Defendant,
as successor in interest to the original grantor, now has
an unencumbered fee simple interest in the land formerly
subject to the easement.
We
Appeals
therefore
and
reverse
remand
to
the
the
judgment
circuit
of
the
Court
of
court
for
entry
of
summary disposition in defendant’s favor.
2
I.
FACTS AND PROCEDURAL HISTORY
In 1873, Quincy Mining conveyed a “right of way” to
Mineral Range through a written instrument that provided:
This indenture made this twentyfirst day of
October in the Year of Our Lord [1873] between
the Quincy Mining Company . . . and The Mineral
Range Railroad Company . . . witnesseth that
[Quincy Mining] for and in consideration of the
sum of one dollar to it in hand paid by [Mineral
Range], the receipt whereof is hereby
. . .
acknowledged
has
granted,
bargained,
sold,
remised, aliened and confirmed and by these
presents does grant, bargain, sell, remise,
release, alien and confirm unto [Mineral Range]
its successors and assigns forever a right of way
for the railroad of [Mineral Range] as already
surveyed and located by the engineer of [Mineral
Range] and according to the survey thereof on
file in the Office of the Registrar of Deeds for
the County of Houghton, Michigan to consist of a
strip of land one hundred feet in width being
fifty feet on each side of said surveyed line
across the following described tracts or parcels
of land situated in said county of Houghton:
[describes parcels/plats].
Also a right of way for said railroad
surveyed and located as aforesaid and according
to the survey thereof on file as aforesaid to
consist of a strip of land one hundred feet in
width being twenty feet in width on the north
side of said surveyed line and eighty feet in
width on the south side of said surveyed line
across the tract or parcel of land known
. . .
as [describes parcels/ plats].
Reserving to [Quincy Mining] and to its
successors and assigns all ore and minerals on
said strip of land and the right to mine the same
from underneath the surface in
such manner as
not to interfere with the construction or
operation of said railroad.
Provided that
[Quincy Mining] shall not in any case mine within
fifteen feet of the surface of the [rock?]
without the consent in writing of [Mineral Range]
together with all and singular the hereditaments
3
and appurtenances thereunto belonging or in
anywise appearing to have and to hold the said
strip of land with the appurtenances, for the
purpose and uses above stated and subject to the
reservations aforesaid unto [Mineral Range] its
successors and assigns forever In Witness Whereof
[Quincy Mining] has caused its corporate seal to
be affixed and these presents to be executed by
its President and Secretary the day and year
first
above
written.
Signed,
sealed
and
delivered . . . .
Quincy Mining, the grantor, subsequently transferred
its remaining interest in the Houghton County property to
the Armstrong-Thielman Lumber Company, which, in turn, sold
its interest to defendant Carmody-Lahti Real Estate, Inc.
Mineral Range later conveyed its right-of-way to the Soo
Line
Railroad
continued
to
Company,
which,
utilize
the
until
the
right-of-way
early
for
1980s,
railroad
purposes.
Although
economic
the
vitality
railroad
of
our
industry
nation
was
in
the
central
to
the
mid-nineteenth
century, its dominance began to wane in the late nineteenth
and
early
following
the
initial transfer of the Houghton County right-of-way.1
But
even
the
as
twentieth
railroading
centuries—the
itself
declined
years
in
importance,
United States Congress determined that the rail corridors
1
See, generally,
Wright & Hester, Pipes, wires, and
bicycles:
Rails-to-Trails,
utility
licenses,
and
the
shifting scope of railroad easements from the nineteenth to
the twenty-first centuries, 27 Ecology L Q 351 (2000).
4
themselves might prove vital for future economic growth.2
Accordingly,
Congress
enacted
1920,
required,
among
which
the
other
Transportation
things,
that
Act
of
railroad
companies seek and obtain the permission of the Interstate
Commerce Commission (ICC) before abandoning any extant rail
line.3
Congress has since amended this procedure with the
Railroad Revitalization and Regulatory Reform Act (RRRRA)
of 1976,4 and again with the Staggers Rail Act of 1980.5
2
See Preseault v Interstate Commerce Comm, 494 US 1,
5-6; 110 S Ct 914; 108 L Ed 2d 1 (1990). See also Wild, A
history of railroad abandonments, 23 Transp L J 1 (1995).
3
Transportation Act, 41 Stat 456 (1920).
See Wild,
supra, p 4 (noting that the Transportation Act was largely
concerned with “railroad rate policies”).
Abandonment is
to be distinguished from mere discontinuance of service.
See Preseault, supra at 6 n 3.
The former involves
relinquishing rail lines and underlying property interests.
Discontinuance, on the other hand, “allows a railroad to
cease operating a line for an indefinite period while
preserving the rail corridor for possible reactivation of
service in the future.” Id.
4
1976,
7-8.
5
Railroad Revitalization and Regulatory Reform Act of
PL 94-210, 90 Stat 31 (1976). See Wild, supra, pp
Staggers Rail Act of 1980, PL 96-448, 94 Stat 1895
(1980).
See also Wild, supra,
p 9.
Congress abolished
the ICC in 1995, ICC Termination Act of 1995, 109 Stat 803,
and vested authority over railroad abandonment in the
Surface Transportation Board, 49 USC 10903.
See RLTD R
Corp v Surface Transportation Bd, 166 F3d 808, 810 (CA 6,
1999). After Soo Line abandoned its Houghton County rightof-way in 1982, Congress
amended the National Trails
System Act, 16 USC 1241 et seq., to create a “railbanking”
program. See 16 USC 1247(d).
5
In
September
right-of-way
1982,
Soo
originally
Line,
granted
which
to
the
then
owned
Mineral
the
Range
Railroad in 1873, sought federal permission to abandon the
railway.
on
The ICC granted this request in a written order
September
29,
1982.
The
order
placed
specific
conditions on Soo Line’s abandonment of its railway:
Soo Line shall keep intact all of the rightof-way underling [sic] the track, including all
the bridges and culverts, for a period of 120
days from the decided date of this certificate
and decision to permit any state or local
government agency or other interested party to
negotiate the acquisition for public use of all
or any portion of the right-of-way. In addition,
Soo Line shall maintain the Houghton Depot for
120
days
from
the
decided
date
of
this
certificate and decision.
During this time, Soo
Line shall take reasonable steps to prevent
significant alteration or deterioration of the
structure and afford to any public agency or
private organization wishing to acquire the
structure for public use the right of first
refusal for its acquisition.
Six years after the ICC granted its request to abandon
the
railway,
plaintiff,
(MDNR).
the
Soo
Line
Michigan
conveyed
the
Department
of
right-of-way
Natural
to
Resources
By that time, the railroad tracks that originally
occupied the right-of-way had been largely removed.
The
record reveals that, by 1988, there were no railroad tracks
on the thirty-foot strip of land at issue in this case and
there
were
easement.
only
remnants
of
track
scattered
along
the
Thus, the task of reconstructing the path of the
railroad for litigation purposes was a difficult one.
6
The
parties
offered
surveyors,
on
and
this
each
issue
described
the
a
testimony
painstaking
of
several
process
in
which they consulted a number of maps and searched for
remaining physical evidence of the railroad.
The MDNR used the right-of-way as a snowmobile and
recreation
fence
trail
that
until
blocked
substantially
1997,
a
interfered
when
portion
with
defendant
of
its
installed
a
the
right-of-way,
recreational
use,
and
spawned the present litigation.
In December 1997, plaintiff filed a complaint seeking
an order to enjoin defendant from blocking the right-of-way
with its fence.
Plaintiff argued that it had an unlimited
right to use the right-of-way for any purpose because the
1873
deed
conveyed
to
Mineral
Range
Railroad,
predecessor in interest, a fee simple estate.
argued
in
response
that
the
deed
had
easement limited to railroad purposes.
the
scope
of
the
easement,
defendant
its
Defendant
conveyed
only
an
The MDNR exceeded
argued,
and
had
thereby extinguished the right-of-way.
The trial court initially granted summary disposition
in plaintiff’s favor, concluding that the 1873 instrument
conveyed a fee
estate rather than an easement and that
plaintiff was therefore permitted to use the right-of-way
as a snowmobiling trail.
The Court of Appeals reversed and
remanded
the
the
matter
to
7
trial
court.
Unpublished
opinion
per
222645).
curiam,
issued
June
5,
2001
(Docket
No.
The panel held that the 1873 deed conveyed an
easement
rather
than
a
fee
simple
and,
accordingly,
remanded to the circuit court for a determination whether
the easement had been extinguished.
When the matter returned to the trial court, defendant
filed a motion for summary disposition, arguing that the
right-of-way had been extinguished by abandonment or by a
1920 tax sale of the servient estate.
rejected
both
claims,
granted
and
ordered
the
plaintiff,
The trial court
summary
injunctive
disposition
to
relief—removal
of
to
of
defendant’s fence—sought by plaintiff.
Defendant
Appeals.
appealed
this
judgment
the
Court
There, defendant no longer asserted that Soo Line
had abandoned the easement as a result of the 1920 tax
sale.
Rather,
defendant
maintained
predecessor abandoned the easement.
that
plaintiff’s
The Court of Appeals,
like the trial court, rejected this argument. The panel
affirmed
Quincy
the
judgment
Mining
“particular
had
purpose”
of
not
the
trial
conveyed
and,
court,
the
therefore,
holding
easement
that
for
Soo
that
any
Line’s
termination of rail service through the right-of-way was
not an abandonment of its easement.
Unpublished opinion
per curiam, issued June 3, 2003 (Docket No. 240908).
8
Assessing
the
specific
language
of
the
1873
instrument, the Court of Appeals stated:
[W]e believe that the phrase in the 1873
deed, “a right of way for the railroad of [the
Mineral Range Railroad],” cannot be construed as
a defeasance clause or as granting the easement
for a particular purpose only.
In making this
determination, Quinn [v Pere Marquette R Co, 256
Mich 143; 239 NW 376 (1931)] is instructive. The
phrase is akin to a statement of purpose.
The
declaration that the easement was for the Mineral
Range Railroad’s construction of a railroad was
"merely an expression of the intention of the
parties that the deed is for a lawful purpose."
Quinn, supra at 151. Thus, Soo Line’s cessation
of rail service and subsequent sale of the
easement to be used for non-railroad purposes did
not automatically extinguish the easement. [Slip
op at 6-7.]
The
panel
also
rejected
the
argument
that
Soo
Line’s
abandonment application to the ICC in 1982 constituted an
abandonment
of
the
easement.6
In
the
end,
the
panel
determined that Soo Line had a legitimate property interest
to convey to plaintiff and that plaintiff was therefore
entitled to summary disposition.
6
The Court stated:
In regards to the ICC certificate of
abandonment, the ICC only regulates and approves
cessation of railroad operations, it “does not
determine abandonment.”
[Id. at 9 (citation
omitted).]
9
This Court granted defendant’s application for leave
to appeal on June 3, 2004, and solicited amicus briefs.7
We
initially
to
denied
cross-appeal
plaintiff’s
from
(holding
that
However,
after
the
the
first
1873
hearing
application
Court
deed
of
for
Appeals
conveyed
oral
leave
an
arguments,
opinion
easement).
we
requested
additional briefing on the question whether the 1873 deed
conveyed a fee simple or an easement.8
II.
A
trial
court’s
STANDARD OF REVIEW
decision
to
grant
or
deny
summary
disposition under MCR 2.116(C)(10) is subject to review de
novo.9
Under
this
court
rule,
a
party
is
entitled
to
summary disposition when “there is no genuine issue as to
any material fact, and the moving party is entitled to
judgment . . . as a matter of law.”10
III. ANALYSIS
Plaintiff,
the
Michigan
Department
of
Natural
Resources, asserts the right to use of a former railroad
right-of-way
in
Houghton
County,
Michigan,
as
a
public
7
v
Carmody-Lahti
Real
8
v
Carmody-Lahti
Real
Dep't of Natural Resources
Estate, Inc, 470 Mich 868 (2004).
Dep't of Natural Resources
Estate, Inc, 687 NW2d 298 (2004).
9
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611
(2004).
10
MCR 2.116(C)(10).
10
snowmobile
and
outdoor
recreation
trail.
Defendant,
Carmody-Lahti Real Estate, Inc., purports to own the land
underlying the trail in fee simple and claims the legal
right to bar public recreational use of the right-of-way.
At first blush, then, this case seems to concern land use
policy.
Moreover, it is a policy question on which both
our federal and state legislatures have spoken: Congress
has enacted the National Trails System Act,11 which codifies
a federal policy of preserving our nation’s rail corridors;
the
Michigan
Legislature
has
Transportation Preservation Act
legislative
preference
for
enacted
the
State
in 1976, which declares a
using
dormant
railways
as
recreational trails.12
But the question of how the land ought to be used is
not before us.
more
modest
Instead, this appeal presents us with the
task
of
discerning
nineteenth century deed.
the
meaning
of
a
late-
In order to determine whether
plaintiff is entitled to the injunctive relief granted on
remand
by
the
trial
court,
we
must
determine,
first,
whether the “right of way” conveyed by the 1873 deed in
question is an easement or a fee simple.
way
is
an
easement,
we
11
16 USC 1241-1249.
12
must
MCL 474.51 et seq.
11
then
If the right-ofestablish
whether
plaintiff has exceeded the scope of the easement or has
abandoned it.
A. RIGHT-OF-WAY
AS
FEE SIMPLE
OR
EASEMENT
Our initial task is to establish the precise contours
of
the
property
interest
conferred
upon
Mineral
Railroad, plaintiff’s predecessor in interest.
Range
According
to plaintiff, the 1873 deed conveyed the land itself to
Mineral Range Railroad.
Thus, plaintiff argues that, as
Mineral Range’s successor in interest, it owns the land
described
argues,
by
the
1873
deed
however,
that
the
in
fee
deed
simple.
transferred
Defendant
only
an
easement—the right to use the land—rather than the land
itself.
An inquiry into the scope of the interest conferred by
a deed such as that at issue here necessarily focuses on
the deed’s plain language,13 and is guided by the following
principles:
(1) In construing a deed of conveyance[,] the
first and fundamental inquiry must be the intent
of the parties as expressed in the language
thereof; (2) in arriving at the intent of parties
as expressed in the instrument, consideration
must be given to the whole [of the deed] and to
each and every part of it; (3) no language in the
instrument
may
be
needlessly
rejected
as
meaningless, but, if possible, all the language
of a deed must be harmonized and construed so as
to make all of it meaningful; (4) the only
purpose of rules of construction of conveyances
13
Quinn, supra at 150.
12
is to enable the court to reach the probable
intent of the parties when it is not otherwise
ascertainable.[14]
These
four
principles
stand
for
a
relatively
simple
proposition: our objective in interpreting a deed is to
give effect to the parties’ intent as manifested in the
language of the instrument.
The
instrument’s
granting
clauses
are
a
natural
starting point for discerning the parties’ intent.15
The
deed purports to convey a “right of way” that “consist[s]”
of a “strip of land . . . across [the parcels described in
the deed].”
As we recognized over seventy years ago in
Quinn, a deed granting a right-of-way typically conveys an
easement,
whereas
appropriately
a
deed
characterized
granting
as
land
conveying
itself
is
more
a
or
some
fee
other estate:
Where the grant is not of the land but is
merely of the use or of the right of way, or, in
14
Purlo Corp v 3925 Woodward Avenue, Inc, 341 Mich 483,
487-488; 67 NW2d 684 (1954) (citations omitted).
15
Although it may look at first glance as though the
deed grants two separate rights-of-way, the instrument
grants only a single right-of-way, one that is positioned
slightly differently within the first and second sets of
plats described in the deed.
The entire right-of-way is
measured from a single line surveyed across a series of
plats.
For the first set of plats, the right-of-way is
one hundred feet total in width, measured
fifty feet on
either side of the survey line.
For the second set of
plats, the right-of-way is still one hundred feet total in
width, but it is measured twenty feet on one side of the
surveyed line and eighty feet on the other.
13
some cases, of the land specifically for a right
of way, it is held to convey an easement only.
Where the
for railroad
designation of
in fee and not
land itself is conveyed, although
purposes only, without specific
a right of way, the conveyance is
of an easement.[16]
Here, the deed’s granting clause conveys only a right-ofway.
The plain language of the deed, as well as the rule
of construction articulated in
that
the
deed
conveyed
an
Quinn,
easement
therefore indicate
rather
than
a
fee
simple.
Plaintiff relies on Quinn for the proposition that the
term “right-of-way” “has two meanings in railroad parlance:
the strip of land upon which the track is laid, and the
legal right to use such strip.”17
The former meaning, in
plaintiff’s view, is an estate in real property, whereas
the latter—the right to use property—is an easement only.
16
Quinn, supra at 150-151 (citations omitted).
A
similar distinction was made in Jones v Van Bochove, 103
Mich 98, 100; 61 NW 342 (1894):
We think the court below was correct in
holding that the deed conveyed an easement only,
and not a fee.
It does not purport to convey a
strip of land 40 feet wide, etc., but the right
of way over a strip 40 feet wide.
Cases,
undoubtedly, can be found in which the operative
words of the grant relate to the land itself; but
such construction cannot be given to this deed.
17
Quinn, supra at 150.
See also anno: Deed to
railroad company as conveying fee or easement, 6 ALR 3d 973
(1966); 65 Am Jur 2d, Railroads, § 40, p 234.
14
Because
“right-of-way”
may
be
defined
in
two
ways,
plaintiff contends that the 1873 deed is ambiguous.
The initial flaw with this argument is this: although
“right-of-way” is susceptible to two meanings, it does not
follow that the phrase is equally susceptible to either
meaning in this case.
As already noted, application of the
principles articulated in Quinn shows that this deed—which
grants a “right of way” rather than, for example, a strip
of land to be used as a right-of-way—conveys an easement
only.
Moreover,
it
would
make
little
sense
to
read
the
phrase “right of way” as referring to a strip of land.
Recall
that
the
deed
conveys
a
right-of-way,
and
subsequently describes that right-of-way as “consist[ing]
of a strip of land . . . .”
interpreted
as
conveying
If “right of way” is to be
the
land
itself
rather
than
passage over a strip of land, then the instrument must be
interpreted as transferring “[a strip of land] . . . to
consist of a strip of land . . . .” This reading produces a
redundancy
and
violates
the
principle
that
“all
the
language of a deed must be harmonized and construed so as
to make all of it meaningful . . . .”18
an interpretation we must reject.
18
Purlo, supra at 487-488.
15
Accordingly, it is
According to the granting clause, the right-of-way to
which the deed refers appears to be “the legal right to use
the . . . strip”—or, in other words, an easement.19
The
deed contains no language that belies this conclusion or
affirmatively indicates that the parties intended to convey
a
fee
simple.
Although
the
deed
refers
to
“strips
of
land,” even a cursory reading of the deed reveals that
these references are merely descriptive of the right-ofway,20 the object of the granting clauses, and are not an
attempt to convey an interest in the land itself.
Indeed, one need only examine the language describing
the right-of-way as consisting of a “strip of land . . .
across” the described parcels to confirm this fact.
That
the parties described the interest as going “across” the
land reveals that they understood the right-of-way as being
distinct
from
the
land
itself.
As
in
Westman
v
Kiell,21“[t]his language evidences an intent to convey a use
19
See Quinn, supra at 150 (noting that “[w]here the
grant is not of the land but is merely of the use or of the
right of way . . . it is held to convey an easement only”).
20
Compare Jones v Van Bochove, 103 Mich 98; 61 NW 342
(1894) (described earlier in this opinion).
21
183 Mich App 489; 455 NW2d 45 (1990).
16
or right of way upon and across the land, or, in other
words, an easement.”22
The language of the habendum clause is also consistent
with conveyance of an easement.
This clause states that
Mineral Range Railroad was “to have and to hold the said
strip of land with the appurtenances, for the purpose and
uses above stated and subject to the reservations aforesaid
. . . forever . . . .”
The reference in the habendum
clause to the “purpose and uses above stated and . . . the
reservations aforesaid” demonstrates the parties’ intent to
convey
only
the
limited
property
described in the deed.
interest
previously
Although the habendum clause
refers to a “strip of land,” the context of this phrase—
particularly
the
references
to
“strip[s]
of
land”
in
clauses that precede the habendum clause—shows that this
reference
describes
the
geographical
placement
of
the
easement rather than the nature of the property interest
conveyed.
Plaintiff contends that Quincy Mining’s reservation of
mineral rights indicates that the parties intended the deed
to
convey
a
fee
simple
argument is unpersuasive.
rather
than
an
easement.
This
Indeed, plaintiff’s assertion
that this reservation would have been unnecessary if Quincy
22
Id. at
494.
17
Mining
had
conveyed
difference
only
between
an
easement
railroad
overlooks
easements
and
the
key
ordinary
easements.
Typically, the owner of a servient estate may continue
to
use
land
easements,
encumbered
however,
other [easement].”24
railroad
are
by
easement.23
an
“essentially
Railroad
different
from
any
As one commentator recently noted, “a
right-of-way
easement
granted
by
a
landowner
cannot be used by the landowner for any reason, even if the
use
does
not
holder.”25
way
have
interfere
with
the
use
by
the
easement
For this reason, grantors of railroad rights-ofincluded
language
in
deeds
to
delineate
their
continuing use rights in the portion of their fee estate
burdened by a railroad easement.
In Michigan Limestone &
Chemical Co v Detroit & M R Co, for example, a railway
enjoyed a “right of way through plaintiff’s property”26—an
23
Harvey v Crane, 85 Mich 316, 323; 48 NW 582 (1891).
24
65 Am Jur 2d, Railroads, § 71, p 254.
See also
Sennewald, The nexus of federal and state law in railroad
abandonments, 51 Vand L R 1399, 1412 (1998).
25
26
Sennewald, supra, p 1411.
238
Mich
221,
223;
213
added).
18
NW
221
(1927)
(emphasis
easement according to the standards articulated in Quinn.27
Yet the deed expressly reserved for the grantor the right
to build a road, pipeline, or conduit across the railroad
right-of-way
continued
to
ensure
access
to
nothing
incongruous
mineral
rights
conveyed
in
reservation
and
1873
might
that
Lake
about
the
Huron.28
the
conclusion
was
an
that
easement.
expected
in
quarry
Therefore,
a
had
there
is
reservation
grantor’s
our
be
grantor’s
of
the
right-of-way
Rather,
deed
such
a
conveying
a
railroad right-of-way, particularly when the grantor is a
mining company and has a strong interest in protecting its
mining interests.
Although our sole concern is the intent of the parties
as manifested in the plain language of the deed at issue
here, it is worth noting that this analysis of the deed is
consistent with our prior jurisprudence in this area.
In
general, this Court has construed deeds that purport to
convey
a
right-of-way
as
transferring
an
easement.
In
fact, we have been unable to discover a single case in
27
Quinn, supra at 150 (“Where the grant is not of the
land but is merely of the use or of the right of way . . .
it is held to convey an easement only.”).
28
Limestone & Chemical Co, supra at 223.
See also
Mahar v Grand Rapids Terminal R Co, 174 Mich 138, 143; 140
NW 535 (1913), noting that a deed conveying an easement
“reserve[d] to the [grantors] the right of sewage and
drainage across the premises.”
19
which this Court construed a deed conveying a “right of
way”
as
transferring
a
fee
estate,
and
plaintiff
has
directed us to none.
In Jones v Van Bochove,29 for example, we considered a
deed with a granting clause that conveyed
“[a]ll that certain piece or parcel of land
situate * * * and described as follows, to wit:
The right of way for a railroad, running from the
marl bed of said cement company to their works,
on the west side of the Kalamazoo river, and
described as follows: ‘A strip of land 40 feet
wide * * * and 952 feet in length.’”[30]
We
held
that
this
granting
clause
conveyed
an
easement
rather than a fee, noting that the deed “does not purport
to convey a strip of land 40 feet wide, etc., but the right
of way over a strip 40 feet wide.”
31
Likewise, in Mahar,
supra, we determined that the following language conveyed
an easement rather than a fee estate:
“That the said parties of the first part,
for
and
in
consideration
of
the
future
construction,
continued
maintenance
and
operation of a first-class, standard-gauge steam
railroad
(over
which
shall
be
transported
passengers and freight) within the time, limits
and conditions hereinafter to be defined, . . .
29
103 Mich 98; 61 NW 342 (1894).
30
Id. at 100. See also Westman v Kiell, 183 Mich App
489, 494; 455 NW2d 45 (1990), holding that a deed conveying
a “‘right of way upon and across lands of Henry Salee . . .
for the uses and purposes of said Railroad Company’”
transferred an easement rather than a fee. (Emphasis in
original.)
31
Jones, supra at 100 (emphasis added).
20
have granted, bargained, sold and conveyed and by
these presents do grant, bargain, sell, convey
and quitclaim unto the party of the second part,
his successors or assigns, for a right of way for
a railroad forever . . . .”[32]
In contrast, deeds that this Court and the Court of
Appeals
have
easement
conveys
read
typically
an
estate
as
conveying
contain
in
land
a
fee
language
and
rather
that
are
than
unambiguously
therefore
distinguishable from that at issue here.
an
readily
In Quinn, this
Court held that a deed conveying a “‘parcel of land’” “‘to
be
used
estate.33
“right
of
for
railroad
purposes
only’”
conveyed
a
fee
Not only did that deed omit any reference to a
way,”
but
it
specifically
conveyed
“all
the
estate, right, title, claim and demand whatsoever of the
[grantor], both legal and equitable, in and to the said
premises . . . .”34
This language unambiguously
grantors’ intent to convey
showed the
their entire estate.
Similarly, the Court of Appeals held that the deed in
O’Dess v Grand Trunk W R Co35 concerned a fee.
In that
case, the deed at issue conveyed “all the estate, right,
title, claim, and demand of the party of the first part,
32
Mahar, supra at 139-140 (emphasis added).
33
Quinn, supra at 146.
34
Id. (emphasis added).
35
218 Mich App 694; 555 NW2d 261 (1996).
21
both
legal
unequivocally
and
equitable.”
manifested
an
Again,
intent
to
this
convey
language
all
the
grantor’s rights to the property.
This Court also held that the instrument at issue in
Epworth Assembly v Ludington & Northern Railway36 conveyed a
fee
determinable.
That
conveyance
purported
to
be
a
“quitclaim” deed:
“Provided, however, if, for any reasons, the
property
. . . above described shall, for one
year or longer, cease to be used for railroad
purposes and trains shall not be run over the
railroad track built or to be built on the land
described, then and in that case all of the land
herein described, together with all and singular
the hereditaments and appurtenances belonging or
in anywise appertaining thereto shall revert to
the Epworth Assembly, of Ludington, Michigan, its
heirs and assigns, and this quitclaim deed become
null and void and of no effect and all rights,
title and interest in and to the lands above
described remain the same as would have been the
case if this quitclaim deed had never been
executed.”[37]
A quitclaim deed is, by definition, “[a] deed that conveys
a
grantor’s
complete
interest
or
claim
in
certain
real
property but that neither warrants nor professes that the
title
is
Epworth
valid.”38
Again,
then,
the
deed
at
showed the grantor’s intent to convey
36
in
all
its
236 Mich 565; 211 NW 99 (1926).
37
issue
Id. at 573 (emphasis added).
38
Black’s Law Dictionary (7th ed) (emphasis added).
See also Putnam v Russell, 86 Mich 389; 49 NW 147 (1891).
22
interest in the property and lacked any language indicating
that the grantor intended to convey merely an easement.
In
short,
we
have
consistently
held
that
conveying a right-of-way transferred an easement.
deeds
And we
have reached a contrary conclusion only in cases in which
the
deed
unmistakably
expressed
convey a fee simple.
the
grantor’s
intent
to
As shown above, the deed at issue
here falls squarely within the first group.
B. THE NATURE
Although
we
have
OF THE
GRANTEE’S RIGHT-OF-WAY
determined
that
the
1873
deed
conveyed an easement rather than a fee estate, our inquiry
into the scope of the interest conveyed to Mineral Range
Railroad, plaintiff’s predecessor in interest, is not yet
complete.
An easement is, by nature, a limited property
interest.
It is a right to “use the land burdened by the
easement” rather than a right to “occupy and possess [the
land] as does an estate owner.”39
39
Accordingly, an easement,
Bruce & Ely, The Law of Easements and Licenses in
Land, § 1:1 (2004). See also Rusk v Grande, 332 Mich 665,
669; 52 NW2d 548 (1952), quoting Morrill v Mackman, 24 Mich
279, 284 (1872), and McClintic-Marshall Co v Ford Motor Co,
254 Mich 305, 317; 236 NW 792 (1931) (“‘An easement is a
right which one proprietor has to some profit, benefit or
lawful use, out of, or over, the estate of another
proprietor. * * * It does not displace the general
possession by the owner of the land, but the person
entitled to the easement has a qualified possession only,
so far as may be needful for its enjoyment.’”).
23
whether appurtenant40 or in gross,41 is generally confined to
a specific purpose.42
40
An easement appurtenant is one “created to benefit
another tract of land, the use of easement being incident
to the ownership of that other tract.”
Black’s Law
Dictionary (7th ed).
41
An easement in gross is one “benefiting a particular
person and not a particular piece of land.”
Black’s Law
Dictionary (7th ed).
42
See St Cecelia Society v Universal Car & Service Co,
213 Mich 569, 576-577; 182 NW 161 (1921), quoting 9 RCL,
Easements, § 2 (“‘An easement has been defined as a
liberty, privilege or advantage in land without profit,
existing distinct from the ownership of the soil. It is a
right which one person has to use the land of another for a
specific purpose.’”); 28A CJS, Easements, § 2, pp 166-167
(“Generally, an easement is a right that one has to use
another’s land for a specific purpose that is not
inconsistent with the other’s ownership interest . . . .”);
25 Am Jur 2d, Easements and Licenses, § 71, p 568 (“The
rights of any person having an easement in the land of
another are measured and defined by the purpose and
character of the easement.”).
The dissent asserts that “[w]e infer also that the
parties intended that the permitted use of an easement will
change over time absent language to the contrary in the
deed.”
Post at 7.
For this proposition, it cites
Restatement Property, 3d, § 4.10, p 592.
This passage
provides:
Except as limited by the terms of the
servitude determined under § 4.1, the holder of
an easement or profit as defined in § 1.2 is
entitled to use the servient estate in a manner
that is reasonably necessary for the convenient
enjoyment
of
the
servitude.
The
manner,
frequency, and intensity of the use may change
over time to take advantage of developments in
technology and to accommodate normal development
of the dominant estate or enterprise benefited by
the servitude. Unless authorized by the terms of
the servitude, the holder is not entitled to
24
In order to determine whether the easement at issue
here is limited to a specific purpose, we must discern the
parties’ intent as
deed.43
shown by the plain language of the
Here, the parties conveyed a right-of-way “for the
railroad” of the original grantee.
quite
clearly
that
the
easement for a railroad.
parties
This language shows
intended
to
convey
an
Even the paragraph reserving the
grantor’s rights to extract minerals from the strip of land
at issue states that such extraction must be performed “in
such manner as not to interfere with the construction or
operation of said railroad.”
clause
expressly
states
Finally, the deed’s habendum
that
the
right-of-way
is
the
grantee’s “to have and to hold . . . for the purpose and
uses above stated and subject to the reservations aforesaid
.
.
.
.”
The
only
purpose
and
use
mentioned
in
the
instrument is the construction and operation of a railroad.
cause unreasonable damage to the servient estate
or interfere unreasonably with its enjoyment.
This passage suggests that the “manner, frequency, and
intensity” of the grantee’s use of the easement may change
through time; this is an assertion with which we have no
quarrel. But, where a deed grants an easement limited to
railroad purposes, it is only the “manner, frequency, and
intensity” of railroad uses that may change over time. The
Restatement does not suggest that the fundamental nature of
an easement may change through time.
Moreover, while the
dissent acknowledges that specific language in the deed may
curb the extent to which an easement adapts to changing
circumstances, post at 7, it fails to recognize the limits
imposed by the specific language in the deed at issue here.
43
Purlo, supra at 487-488.
25
We conclude, therefore, that the easement conveyed by the
1873 deed is limited to railroad purposes.44
Plaintiff maintains that the interest conveyed by the
1873 deed is not limited to railroad purposes, referring us
to Quinn, supra, as support for its argument.
In Quinn, we
held that the landowners had conveyed a fee simple (rather
than an easement) to the defendant railway company and,
thus, that the defendant was entitled to drill for oil and
gas in the subject property.
Court,
reasoned,
although
for
“Where
railroad
Justice Fead, writing for the
the
land
purposes
itself
only,
is
without
conveyed,
specific
designation of a right of way, the conveyance is in fee and
not of an easement.”45
He then rejected the proposition
that the fee was limited to a specific use: “Had the grant
contained a reverter clause the title would have been a
determinable fee upon condition subsequent.”46
Plaintiff
argues, therefore, that the lack of a defeasance clause in
44
The dissenting opinion concludes that “the deed
created a right-of-way for a transportation corridor where
the grantee could run a railroad.” Post at 8. We can find
no mention of a “transportation corridor” in the deed, and
cannot locate any “broad language,” id., that would support
such a reading (nor does the dissent cite any such
language). We simply see no principled way to justify the
dissent’s reading in light of the applicable rules of
construction.
45
Quinn, supra at 150-151.
46
Id. at 152.
26
the
1873
deed
interest
indicates,
conveyed
was
as
not
shown
by
intended
Quinn,
to
be
that
limited
the
to
railroad purposes.
Plaintiff’s reliance on Quinn is misplaced, for that
case is distinguishable in an important sense from the case
at bar.
At issue in Quinn was a fee simple—an estate in
land.
Here,
we
are
concerned
easement—an interest in land.47
with
the
scope
of
an
Fee simple estates revert
to the grantor only if they contain language providing for
reversion.
Easements, on the other hand, are inherently
limited estates in land.48
Thus, the principles applicable
to the fee simple in Quinn do not translate to the easement
under consideration in this case.
We conclude, therefore, that the plain language of the
1873 deed limited the easement conveyed to the original
grantee to railroad purposes.
C. ABANDONMENT
OF THE
EASEMENT
Finally, we turn to the question whether plaintiff has
a
valid
interest
in
this
easement
47
limited
to
railroad
See Kitchen v Kitchen, 465 Mich 654, 659; 641 NW2d
245 (2002).
The dissenting opinion makes similar errors,
first relying on Quinn to (mis)interpret the language of
the deed at issue here, post at 4-5, and then citing the
absence of “defeasance or reverter language” to argue that
the easement was not limited to railroad purposes. Id. at
8.
48
See note 33.
27
purposes.
This easement, limited as it is to a particular
purpose, will “terminate[] as soon as such purpose ceases
to
exist,
is
abandoned,
accomplishment.”49
easement
was
plaintiff’s
determine
or
rendered
impossible
of
In this case, defendant alleges that the
terminated
predecessor
whether
is
because
in
of
interest.
plaintiff’s
the
actions
Thus,
predecessor
we
in
of
must
interest
abandoned its interest in the Houghton County right-of-way.
Before determining whether plaintiff’s predecessor in
interest abandoned the easement, however, a brief overview
of
federal
necessary.
summarized
and
state
rails-to-trails
legislation
is
The Sixth Circuit Court of Appeals succinctly
the
applicable
federal
legislation
in
RLTD
Corp v Surface Transportation Bd:50
In the Transportation Act of 1920, Congress
gave the Interstate Commerce Commission (“ICC”)
jurisdiction over railroad track abandonments.
Pursuant to the ICC Termination Act of 1995, the
ICC ceased to exist.
Authority over abandonment
applications
is
now
held
by
the
[Surface
Transportation Board (STB)].
Prior to the enactment of the Transportation
Act, state and local authorities constrained
railroad companies in their efforts to abandon
unprofitable tracks.
In giving the ICC/STB
authority to grant or deny applications for
abandonment, Congress sought to balance the
railroad companies’ need to dispose of trackage
that was no longer profitable with the public’s
49
25 Am Jur 2d, Easements and Licenses, § 96, p 594.
50
166 F3d 808 (CA 6, 1999).
28
R
need for a working interstate track system. If a
railroad track falls within its jurisdiction, the
ICC/STB has exclusive authority to determine
whether abandonment will be permitted.
The
ICC/STB may approve an abandonment after a full
administrative proceeding, or it may authorize
abandonment by granting an exemption from the
section 10903 process for “out-of-service” rail
lines. The ICC/STB loses its jurisdiction over a
rail line once the line is abandoned pursuant to
an ICC/STB authorization.
Actual abandonment
pursuant
to
authorization
is
known
as
[51]
“consummation.”
The
1976
Michigan
State
Transportation
Preservation
Act (MSTPA) works in concert with the federal legislation.
It declares that the “preservation of abandoned railroad
51
Id. at 810-811 (citations omitted).
In 1983,
Congress amended the National Trails System Act to create a
“railbanking” program.
See 16 USC 1247(d); Wright and
Hester, supra at 356-357 (“The rails-to-trails program was
born after President Johnson signed the National Trails
System Act in 1968 and Congress, responding to the alarming
increase in railroad abandonments and the growing need for
alternative transportation corridors, implemented what has
come to be called its “railbanking” policy
through its
amendment of the Trails Act in 1983.”).
Federal law, as
the Sixth Circuit Court of Appeals noted, now
allows a railroad wishing to cease operations
along a stretch of track to negotiate with the
state, municipality, or private group concerning
the transfer of
financial and managerial
responsibility for the railroad corridor and the
maintenance of the corridor for possible future
rail use—called “railbanking”. Railbanking is an
alternative to abandonment.
With railbanking,
the railroad maintains ownership of the rail
corridor, a third party makes interim use of the
rail corridor, and the ICC/STB’s jurisdiction
over the rail corridor continues.
When a track
is
abandoned,
however,
ICC/STB
jurisdiction
ceases, and, in the usual case, reversionary
interests in the rail corridor become effective.
[RLTD R Corp, supra at 810-811.]
29
rights of way for future rail use and their interim use as
public trails” is a “public purpose.”52 The act therefore
requires railroad companies wishing to abandon a railway to
notify
the
state
Department
of
Transportation
and
authorizes the Department of Transportation or the MDNR to
acquire abandoned railways.53
If a right-of-way is acquired
under the MSTPA, the acquiring department “may preserve the
right-of-way for future use as a railroad line and, if
preserving it for that use, shall not permit any action
which would render it unsuitable for future rail use.”54
With
this
background
in
the
applicable
federal
and
state law, we turn now to the question whether Soo Line,
plaintiff’s predecessor in interest, abandoned the rightof-way at issue here.
On September 29, 1982, the ICC authorized Soo Line’s
abandonment, for purposes of federal law, of the railway at
issue in this case.
reports
that
originally
terms
the
Michigan
provided
established
The ICC “certificate and decision”
Department
financial
by
the
of
assistance
ICC.
After
Transportation
to
Soo
the
Line
on
financial
assistance agreement expired on October 1, 1982, the ICC
52
MCL 474.51(3).
53
MCL 474.56, 474.58.
54
MCL 474.60(11).
30
granted Soo Line permission to abandon the railway.
The
ICC’s decision included the following terms:
Soo Line shall keep intact all of the rightof-way underling [sic] the track, including all
the bridges and culverts, for a period of 120
days from the decided date of this certificate
and decision to permit any state or local
government agency or other interested party to
negotiate the acquisition for public use of all
or any portion of the right-of-way. In addition,
Soo Line shall maintain the Houghton Depot for
120
days
from
the
decided
date
of
this
certificate and decision.
During this time, Soo
Line shall take reasonable steps to prevent
significant alteration or deterioration of the
structure and afford to any public agency or
private organization wishing to acquire the
structure for public use the right of first
refusal for its acquisition.
Soo Line followed the procedures necessary to abandon
the railroad and, after the 120-day period ordered by the
ICC, was free to abandon its right-of-way.
That is not to
say, however, that the easement, a creature of state law
distinct from the rail that physically occupied the rightof-way, was necessarily abandoned at the end of the 120-day
period prescribed by the ICC.
An easement holder abandons a railroad right-of-way
when “non-user is accompanied by acts on the part of the
owner of either the dominant or servient tenement which
manifest an intention to abandon, and which destroy the
object for which the easement was created or the means of
31
its
enjoyment
.
.
.
.”55
This
principle
was
recently
summarized by the Court of Appeals in Ludington & Northern
Railway v Epworth Assembly:
To prove abandonment, both an intent to
relinquish the property and external acts putting
that intention into effect must be shown.
Nonuse, by itself, is insufficient to show
abandonment.
Rather, nonuse must be accompanied
by some act showing a clear intent to abandon.[56]
In
this
longer used.
case,
it
is
clear
that
the
railway
is
no
The question, therefore, is whether Soo Line
manifested an intent to abandon the underlying easement and
not simply the railway that utilized the easement.
This intent cannot necessarily be inferred from the
fact that a railroad company sought and obtained permission
from
the
ICC/STB
to
abandon
a
railway
and
consistent with that federal authorization.57
55
took
action
A railway
Van Bochove, supra at 101.
56
188 Mich App 25, 33; 468 NW2d 884 (1991) (citations
omitted).
57
On this point, we agree with the dissent. We part
company, of course, in assessing the legal significance of
Soo Line’s petition to abandon its railroad under Michigan
real property law.
The majority and dissent also differ on a related
point. The dissenting opinion presumes that we may rely on
the views of Congress and federal agencies on questions of
state real property law such as abandonment. See post at 9
(“Congress has made clear that use of a rail line as a
recreational trail after the issuance of a certificate of
abandonment should not be equated with abandonment of the
easement.").
Assuming the dissent’s assertions about the
32
located on an easement is analytically distinct, after all,
from
the
easement
easement
in
this
itself.
case
is
But
as
itself
purposes under the 1873 deed.
already
limited
shown,
to
the
railroad
Therefore, in both seeking
federal permission to abandon its railroad and removing the
rails themselves, Soo Line manifested an intent to abandon
the
underlying
easement
(which
was
limited
to
railroad
uses) and took action consistent with that intent.58
The
United
States
District
Court
for
the
Western
District of Michigan reached a similar conclusion in Belka
views of Congress are correct, we believe that Justice
Kelly’s reliance on those views is misplaced.
Unless
federal law expressly or implicitly preempts state law in
this area, we see no reason to defer to Congress in
determining when an easement is abandoned for purposes of
Michigan’s common law of real property. See Crosby v Nat'l
Foreign Trade Council, 530 US 363, 372-373; 120 S Ct 2288;
147 L Ed 2d 352 (2000) (describing federal preemption
principles).
58
Plaintiff’s argument to the contrary relies largely
on the Court of Appeals opinion in Strong v Detroit & M R
Co,
167 Mich App 562; 423 NW2d 266 (1988).
Read
carefully, Strong does little to advance plaintiff’s cause.
In that case, there was no indication that the easement was
limited to railroad purposes as was the right-of-way at
issue here. It is not surprising that the Court of Appeals
would not hold that mere removal of a railroad track
constituted abandonment of an underlying property interest
when the interest was not limited to railroad purposes.
Moreover, the easement holder in Strong filed notice of its
easement under the marketable record title act, MCL
565.103. This filing “indicated that [the easement holder]
intended to preserve its interest.” Strong, supra at 569.
33
v Penn Central Corp.59
the
easement
railroad
In Belka, the plaintiffs argued that
possessed
purposes60
by
and,
Penn
Central
therefore,
was
that
limited
Penn
to
Central
59
1993
US
Dist
LEXIS
15836
(WD
Mich,
1993)
(unpublished), aff’d without opinion 74 F3d 1240 (CA 6,
1996).
60
The conveyance at issue in Belka provided:
This indenture, Made this
day of
A.D. 18
, BETWEEN
of
in the County of
, and State of Michigan, of the first part,
and the Kalamazoo, Allegan and Grand Rapids Rail
Road Company, of the second part, Witnesseth,
That the said parties of the first part, in
consideration of the sum of
, to them in hand
paid, the receipt whereof is hereby acknowledged,
do grant, bargain, sell and confirm unto the said
party of the second part, and to their assigns
FOREVER, a RIGHT OF WAY in and over a certain
strip of LAND, situate, lying and being in [legal
description] reference being made, for more
certain description of said strip, to the map of
the route of said Company, on file in the offices
of the Register of Deeds for the Counties of
Kalamazoo and Allegan and Kent respectively, for
the said party of the second part, and their
assigns and their servants and agents to build,
construct and maintain a Rail Road in and over
the said strip of land, and at all times freely
to
pass
and
re-pass
by
themselves,
their
servants,
agents
and
employees,
with
their
engines, carts, horses, cattle, carts, wagons and
other vehicles, and to transport freight and
passengers, and to do all other things properly
connected with or incident to the location,
building, maintaining, and running the said Road,
and to use the earth and other materials within
said strip of land, for that purpose, TO HAVE AND
TO HOLD the said easements and privileges to the
said party of the second part, and to their
assigns, FOREVER. And the said parties of the
first part for themselves and their heirs, doth
covenant and agree that they will WARRANT AND
34
abandoned the underlying easement when it manifested its
intent to abandon all railroad operations.
that,
in
abandoning
its
easement
with
The court held
STB
permission,
removing its tracks, and attempting to sell its easement,
Penn Central had abandoned its railway under state property
law.
Penn Central’s contention that it intended to keep
the underlying easement, even as it abandoned the railway,
was rejected:
This argument has superficial appeal, but it
breaks down under scrutiny.
The flaw in this
argument is that while Defendants claim no intent
to abandon their “property interest” they do not
specify what that property interest is.
Whether
Defendants intended to abandon their property
rights cannot be determined without consideration
of
the
nature
of
that
property
interest.
Defendants did not own a fee simple interest in
the railroad corridor.
They had an easement to
use it “for railroad purposes.” Accordingly, the
issue for this Court is not whether Defendants
intended to abandon some nebulous concept of
“property rights”, but whether they intended to
abandon their right to use the property “for
railroad purposes”.[61]
We
find
persuasive.
Range
the
The
Railroad,
district
easement
court’s
originally
subsequently
analysis
granted
transferred
to
in
to
Belka
Mineral
Soo
Line
Railroad, and finally conveyed to plaintiff was limited to
railroad purposes.
Therefore, Soo Line’s decision to seek
DEFEND the above granted RIGHT OF WAY in the
peaceable and quiet possession of the said party
of the second part, and their assigns, FOREVER.
[Id. at *2 n 2.]
61
Id. at *14-*15.
35
federal
permission
to
cease
all
rail
operations
on
the
right-of-way, its subsequent cessation of those activities
after the 120-day period prescribed by the ICC, and its
removal
of
constituted
all
an
railroad
tracks
abandonment
of
on
the
the
strip
underlying
of
land
property
interest.
We
have
determined,
therefore,
that
the
1873
deed
conveyed an easement limited to railroad uses and that Soo
Line
abandoned
that
easement
for
state
property
law
purposes when it sought, obtained, and acted on the ICC’s
permission to abandon the railway in 1982.
Consequently,
Soo Line did not have a valid property interest in the
Houghton
1988.
County
right-of-way
to
convey
to
plaintiff
in
Defendant has an unencumbered fee simple interest in
the right-of-way and, as any property owner in Michigan may
do with its property, may limit its use as it sees fit.
D. RESPONSE TO THE DISSENT
The dissenting opinion insists that we should not have
entertained defendant’s appeal at all because the ICC/STB
has exclusive jurisdiction over what is left of Soo Line’s
railroad
in
this
area.62
The
dissent’s
argument,
essence, is this:
The record in this case contains nothing
that shows that the Soo Line ever advised the ICC
62
Post at 8.
36
in
that
it
had
completed
abandonment
as
the
certificate required.
It appears that no notice
of consummation was filed with the ICC or the
STB.
Consequently, in 1983, a year after the
certificate
was
issued,
the
abandonment
authorization would have expired.
The rail line
cannot be abandoned without a new proceeding.[63]
As an initial matter, we note that the dissent does
not argue that Soo Line actually failed to notify the ICC,
but argues instead that the record contains no evidence
that Soo Line provided notice.
Of course, it would be just
as accurate to say that the record contains no evidence
that Soo Line failed to provide notice because, in fact,
neither party has raised the notice issue on which the
dissent now relies.
It is hardly surprising, therefore,
that
in
there
question.64
is
a
gap
the
evidentiary
record
on
this
We would be unwise indeed to draw sweeping
inferences from this sort of evidentiary “gap.”
Even if there were a factual basis for the dissent’s
argument, its legal rationale is deeply flawed.
First and
foremost, the dissenting opinion relies on a provision of
the Code of Federal Regulations that was enacted almost
63
64
Post at 7-8.
That is not to say that the parties may waive or
concede the question of subject-matter jurisdiction.
To
the contrary, subject-matter jurisdiction cannot be waived.
Travelers Ins Co v Detroit Edison Co, 465 Mich 185, 204;
631 NW2d 733 (2001).
37
fifteen years after Soo Line’s application to abandon its
railroad and is, therefore, inapplicable here.65
The dissent also relies on the fact that the ICC had a
“practice”66
of
requesting
notice
of
abandonment
in
the
early 1980s67 and that the ICC operated on the belief that
it lacked jurisdiction once a notice of abandonment had
been filed.
We believe that the dissent misconstrues the
legal significance of this “practice.”
While
the
ICC
has
determined
that
its
jurisdiction
terminated once notice of abandonment was filed, neither
the ICC nor the STB has ever concluded, as the dissent
does, that state courts lack jurisdiction as a matter of
law
until
notice
of
abandonment
is
filed
or
until
the
65
See post at 8, citing 49 CFR 1152.29(e)(2). 49 CFR
1152.29, which provides that notice to the STB is necessary
in order to consummate a railway abandonment, did not exist
until 1997. See, e.g., Becker v Surface Transportation Bd,
328 US App DC 5, 6 n 2; 132 F3d 60 (1997).
66
See Consolidated Rail Corp v Surface Transportation
Bd, 320 US App DC 130, 135; 93 F3d 793 (1996), citing St
Louis Southwestern R Co—Abandonment—in Smith & Cherokee
Cos, Tx, 9 ICC 2d 406, 410 n 8 (1992) (noting that the
“practice” of requiring notice ended in 1984).
67
Post at 7 n 6, citing 363 ICC 132, 142 n 2 (1980).
The authority cited is an ICC opinion that states: “When a
rail line has been fully abandoned, it is no longer rail
line and the transfer of the line is not subject to our
jurisdiction.”
Id. at 135.
The opinion provides in
footnote 2 that “[a] line is fully abandoned after a
certificate of public convenience and necessity has been
issued, and when operations have ceased, tariffs have been
canceled and a letter has been filed with the Commission
that the abandonment has been consummated.”
38
ICC/STB
has
declared
that
its
jurisdiction
has
ended.68
Indeed, even now that notice is actually required by STB
regulations,
notice
of
abandonment
is
not
necessary
to
terminate the STB’s jurisdiction.69
It is simply conclusive
evidence
has
that
abandonment.70
the
railroad
consummated
its
Abandonment may occur—and, thus, the STB’s
jurisdiction may terminate—even in the absence of written
notice.71
68
Although the STB “retains exclusive, plenary
jurisdiction to determine whether there has been an
abandonment sufficient to terminate its jurisdiction,”
Lucas v Bethel Twp, 319 F3d 595, 603 (CA 3, 2003),
plaintiff has not requested such a determination from the
STB and the STB itself has not intervened in this case.
69
See 49 CFR 1152.29(e)(2) (“Notices will be deemed
conclusive on the point of consummation if there are no
legal or regulatory barriers to consummation . . . .”).
70
See, e.g., Consolidated Rail Corp, supra, at 798
(“In its October 5, 1995 Decision, the ICC also suggested
that Conrail’s failure to notify the Commission that the
line
had
been
abandoned
was
evidence
of
Conrail’s
uncertainty of purpose [regarding abandonment].”) (emphasis
added); 61 FR 11174, 11177-11178, which included the
following explanation of the proposed rule that became 49
CFR 1152.29:
[U]nder our proposal, notices that are filed
would be deemed conclusive on the point of
consummation if there are no legal or regulatory
barriers to consummation . . . . If no notice of
consummation of abandonment has been filed, we
would continue to look at the other facts and
circumstances to determine if consummation of the
abandonment had occurred.
71
See 49 CFR 1152.29(e)(2) (providing that notice is
“deemed conclusive” on the point of consummation in the
39
In short, the dissent has offered neither a factual
nor legal basis to support its assertion that the STB has
exclusive
jurisdiction
over
conclude,
therefore,
that
the
the
present
dispute.
dissenting
We
opinion’s
jurisdictional argument is in error.
IV.
CONCLUSION
We conclude that the Court of Appeals erred in holding
that plaintiff is entitled to summary disposition.
limited
easement
owned
by
plaintiff’s
predecessor
The
in
interest had been abandoned by the time the predecessor
purported to sell that property interest to plaintiff.
We
therefore reverse the judgment of the Court of Appeals and
remand the matter to the trial court for entry of summary
disposition in defendant’s favor.
Robert P. Young, Jr.
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman
absence of “legal or regulatory barriers to consummation.”
See also Lucas v Bethel Twp, 319 F3d 595, 603 n 11 (CA 3,
2003) (“Historically, the STB determined whether an
abandonment was consummated by evaluating the carrier's
objective intent to cease permanently or indefinitely all
transportation service on the line.
This test leaves a
great deal of uncertainty as to the rail line's status,
however. Since 1997, the STB has taken steps to alleviate
this problem by renewing a requirement that railroads file
with the agency a letter confirming consummation of
abandonment.”) (citation omitted).
40
S T A T E
M I C H I G A N
O F
SUPREME COURT
MICHIGAN DEPARTMENT OF
NATURAL RESOURCES,
Plaintiff-Appellee,
Cross-Appellant
v
No. 124413
CARMODY-LAHTI REAL ESTATE, INC.,
a Michigan corporation,
Defendant-Appellant,
Cross-Appellee.
_______________________________
KELLY, J. (dissenting).
I
agree
with
the
majority’s
conclusion
that
plaintiff’s property interest is an easement rather than a
fee simple.
However, I conclude that this Court should not
find that the easement was abandoned.
Defendant has not shown that plaintiff’s predecessor,
the
Soo
Line
Railroad
Company,
regulatory process for abandonment.
completed
the
federal
Therefore, it appears
that the rail line remains under the jurisdiction of the
Surface Transportation Board1 for future reinstatement of
1
The Surface Transportation Board (STB) assumed the
functions of the Interstate Commerce Commission (ICC)
effective January 1, 1996. 49 USC 10101-16106; 49 USC
10903; 49 USC 10501(a)(1). Railroad Ventures, Inc v Surface
Transportation Bd, 299 F3d 523, 530 (CA 6, 2002).
For
simplification, I refer to them both as the ICC because
service.
If that is the case, defendant may not circumvent
federal jurisdiction by obtaining a state court judgment of
abandonment.
Even if abandonment of the line were consummated with
the
ICC,
we
should
conclude
that
the
Soo
Line
never
abandoned the underlying easement before conveying it to
plaintiff
for
a
trail.
The
mere
fact
of
the
sale
demonstrates that the Soo Line intended to retain dominion
over the easement until disposing of it.
believed
interest,
in
1982
it
that
would
not
it
was
have
If the company
abandoning
sold
a
this
portion
property
of
it
to
plaintiff in 1985.
Moreover,
the
parties
who
originally
created
the
easement did not intend to limit its use to a rail line.
Rather, they created a right-of-way to last forever, one
that can be used today as a recreational trail.
Therefore, the result reached by the trial court and
the Court of Appeals should be affirmed.
FACTUAL BACKGROUND
In 1873, the Quincy Mining Company granted an easement
for a right-of-way to the Mineral Range Railroad Company.
that was the agency that governed the Soo Line at the time
in question.
2
Defendant now owns a portion of the mining company’s former
property through which this right-of-way runs.
The Mineral Range Railroad built and for many years
operated
a
rail
line
on
the
right-of-way.
It
then
transferred the rail line and right-of-way to the Soo Line
Railroad.
In the 1980s, the Soo Line discontinued running
trains on the rail line.
Sometime after 1986, it removed
some of the tracks and, in 1988, sold the right-of-way to
plaintiff
Michigan
Plaintiff
maintained
recreational
trail.
Department
the
of
former
But,
nine
Natural
railway
years
Resources.
grade
later,
as
a
defendant
installed a fence across the trail, blocking its use as a
trail.
PROCEEDINGS BELOW
Plaintiff filed suit seeking an injunction to force
removal of the fence.
The trial court initially held that
Mineral Range had an unrestricted fee simple interest that
it
passed
to
plaintiff
by
deed.
The
Court
reversed that holding and remanded the case.
opinion
per
222645).
curiam,
issued
June
5,
2001
of
Appeals
Unpublished
(Docket
No.
It held that the deed conveyed an easement, not a
fee simple interest, and remanded the case to the circuit
court for a determination whether the easement remained in
existence.
3
On
remand,
the
circuit
court
motion for summary disposition.
granted
plaintiff’s
It held that the easement
was not limited to use as a rail line.
Moreover, it found
that the Soo Line had not abandoned the easement.
Thus,
plaintiff was entitled to maintain the right-of-way as a
recreational trail.
decision.
2003
The Court of Appeals affirmed that
Unpublished opinion per curiam, issued June 3,
(Docket
No.
240908).
We
application for leave to appeal.
STANDARD
OF
granted
defendant’s
470 Mich 868 (2004).
REVIEW
The existence of an easement is a question of law.
Mahar v Grand Rapids T R Co, 174 Mich 138, 142; 140 NW 535
(1913); Epworth Assembly v Ludington & N R, 236 Mich 565;
211 NW 99 (1926).
In contrast, the permissible use of an
easement is a question of fact.
Hanselman v Grand Trunk W
R Co, 163 Mich 496, 499; 128 NW 732 (1910); 65 Am Jur 2d,
Railroads, § 60, pp 247-248.
Trial
7.316(A)(6).
courts
may
draw
inferences
of
fact.
MCR
They are presumed correct2 and may not be set
aside unless found to be clearly erroneous.
MCR 2.613(C).
We review actions to establish title de novo.
Farmer v
Fruehauf Trailer Co, 345 Mich 592, 595; 76 NW2d 859 (1956).
2
Beason v Beason, 435 Mich 791, 804; 460 NW2d 207
(1990).
4
A STATE COURT MAY NOT DECLARE A RAILROAD EASEMENT ABANDONED BEFORE
ABANDONMENT OF THE RAIL LINE HAS BEEN CONSUMMATED WITH THE ICC
Under federal transportation law involving rail lines,
abandonment has a specific meaning.
Bingham Twp v RLTD R
Corp, 463 Mich 634, 635-636; 624 NW2d 725 (2001), citing
RLTD R Corp v Surface Transportation Bd, 166 F3d 808, 810811 (CA 6, 1999).
the
national
It refers to removal of a rail line from
transportation
system.
Nat’l
Ass’n
of
Reversionary Prop Owners v Surface Transportation Bd, 332
US App DC 325, 327; 158 F3d 135 (1998) (NARPO), citing
Preseault v Interstate Commerce Comm, 494 US 1, 5-6 n 3;
110 S Ct 914; 108 L Ed 2d 1 (1990) (unanimous).
Under the federal Transportation Act,3 a rail carrier
may not remove a rail line from national service until it
obtains a certificate of abandonment from the ICC.
10903(a)(1)(B).
Hayfield
N
R
Co
v
Chicago
49 USC
&
N
W
Transportation Co, 467 US 622, 628; 104 S Ct 2610; 81 L Ed
2d 527 (1984) (unanimous).
The certificate verifies that
future public convenience and necessity will accommodate
cessation of the company’s rail service on the line.
Id.
It reflects the ICC’s determination that the line is no
longer
needed
for
interstate
3
rail
service.
Railroad
Transportation Act of 1920, ch 91, § 402(18)-(22), 41
Stat 477-478, recodified at 49 USC 10903(a) (1976 ed, Supp
III).
5
Ventures, Inc v Surface Transportation Bd, 299 F3d 523, 531
n 4 (CA 6, 2002), citing Preseault at 6 n 3.
Years ago, the ICC developed a mechanism to retain
jurisdiction over a rail line if a carrier did not realize
its
stated
intent
to
abandon
the
line.
It
imposed
conditions on its issuance of a certificate of abandonment,4
maintaining
jurisdiction
conditions were met.
use,
but
later.
not
In
the
rail
Preseault at 8.
officially
the
over
abandoned,
meantime,
it
was
line
until
the
A line no longer in
could
termed
be
reactivated
“discontinued.”
NARPO at 328.
In this case, the Soo Line sought, and in 1982 was
issued, a certificate of abandonment.
It expressly stated:
1.
This
certificate
and
effective October 1, 1982. . . .
decision
is
2.
If
the
authority
granted
by
this
certificate and decision is exercised, Soo Line
shall
advise
this
Commission
in
writing,
immediately after abandonment of the line of
railroad, of the date on which the abandonment
actually took place.
3.
If
the
authority
granted
in
this
certificate and decision is not exercised within
one year from its effective date, it shall be of
no further force and effect. [ICC Certificate and
Decision, Soo Line Railroad Company, Docket No.
AB-57 (Sub-No. 7) (Decided September 29, 1982).]
4
The ICC could even impose postabandonment conditions.
Hayfield at 633.
6
The
majority
followed
line.
the
Ante
erroneously
procedures
at
34.
states
necessary
The
record
to
in
that
the
“Soo
abandon”
this
case
Line
the
rail
contains
nothing showing that the Soo Line ever advised the ICC that
it had completed abandonment as the certificate explicitly
required.
It appears that no notice of consummation was
filed with the ICC or the STB.5
Consequently, in 1983, a
year
issued,
after
the
certificate
was
authorization would have expired.
5
the
abandonment
The rail line cannot be
As early as 1980, an ICC Notice of Final Rules and
Exemptions made clear that the ICC retains jurisdiction of
a rail line for which the notification of abandonment has
not been submitted. 363 ICC 132, n 2 (1980). For a period
in the mid-1980s, the ICC did not require the notice of
consummation of abandonment.
This period was after the
abandonment certificate in this case expired.
Also, the
ICC later reinstated and codified the requirement to
eliminate uncertainty over whether a line has been
abandoned and is no longer under the jurisdiction of the
ICC. This served to preclude a rail carrier from holding a
track indefinitely in an uncertain status.
Becker v
Surface Transportation Bd, 328 US App DC 5; 132 F3d 60, 61
n 2, 63 n 4 (1997). See 49 CFR 1152.24(f), 1152.29(e)(2),
1152.50(e).
7
49 CFR 1152.29(e)(2);6
abandoned without a new proceeding.
NARPO at 329 n 7.7
Moreover,
defendant
may
not
divest
the
ICC
of
its
jurisdiction over the rail line through a collateral state
court proceeding.
Phillips Co v Southern Pacific R Corp,
902 F Supp 1310, 1317 (D Colo, 1995).
ICC jurisdiction
over a rail line precludes a state court from making a
finding
that
a
state
property
law
interest
extinguished by evidence of abandonment.
Therefore,
jurisdiction
to
it
find
appears
that
the
that
Soo
has
been
Preseault at 8.
this
Line
Court
abandoned
lacks
its
easement.
EVEN IF THE SOO LINE ABANDONED THE RAIL LINE,
IT DID NOT ABANDON THE EASEMENT
However, the majority is unpersuaded and finds that
the Soo Line did abandon the easement.
I believe that,
even if the Soo Line consummated abandonment of the rail
6
The majority asserts that I rely “First and foremost”
on this provision. Ante at 41. Actually, I rely primarily
on the explicit terms of the certificate issued to the Soo
Line. I cite the regulation to substantiate my conclusion
that, because the authorization to abandon granted to the
Soo Line appears to have lapsed, a new proceeding is
required.
7
I note that the federal railbanking program was but a
glimmer in Congress’s eye when the STB issued its
certificate of abandonment to the Soo Line in 1982.
The
Soo Line could not have used this program at that time
because it did not exist.
8
line with the ICC, it did not abandon the easement on which
the line was built.
Abandonment,
like
question of fact.
the
scope
of
an
easement,
is
a
McMorran Milling Co v Pere Marquette R
Co, 210 Mich 381, 391, 393-394; 178 NW 274 (1920).
Whether
it
of
has
occurred
parties.
is
determined
by
the
actions
the
Van Slooten v Larsen, 410 Mich 21, 50; 299 NW2d
704 (1980), app dis sub nom Craig v Bickel, 455 US 901
(1982).
Congress has made clear that use of a rail line as a
recreational trail after the issuance of a certificate of
abandonment should not be equated with abandonment of the
easement.
The
ICC’s
corridors
includes
regulatory
conserving
them
authority
for
over
future
use
commerce and for current use as recreational trails.
rail
for
The
Railroad Revitalization and Regulatory Reform Act of 1976
(4-R Act)8
provided for mandatory transfers of corridors
proposed for abandonment to other carriers, and
directed the ICC to impose conditions barring the
disposition of railroad rights-of-way for 180
days in order to allow for possible transfers for
public use, including for trails.
[H R Subcomm
on Com and Admin L of the Jud Comm, Litigation
and Its Effect on the Rail-to-Trails Program,
107th Cong at 57 (June 20, 2002) (statement of
8
Pub L 94-210, 90 Stat 144, as amended, 49 USC 10906
(1982 ed).
9
Andrea Ferster, General Counsel, Rails-to-Trails
Conservancy).]
See Preseault at 5-6.
The
Rails-to-Trails
Act9
gave
the
ICC
oversight
authority in the conversion of railroad rights-of-way to
recreational trails when a rail carrier seeks permission
from
the
ICC
to
cease
service.
Id.
at
59-60.
This
authority extends to rights-of-way that are not in use for
railroad transportation.
Preseault at 6; Caldwell v United
States, 391 F3d 1226, 1229-1230 (CA Fed Cir, 2004).
The United States Supreme Court has stated that, when
a railroad company “abandons” a line, it does nothing more
than divest the ICC of authority over the line.
The Court
said that Congress intended, when writing the act,
that interim use of a railroad right-of-way for
trail use, when the route itself remains intact
for
future
railroad
purposes,
shall
not
constitute an abandonment of such rights-of-way
for railroad purposes. This finding alone should
eliminate many of the problems with this program.
The concept of attempting to establish trails
only after the formal abandonment of a railroad
right-of-way is self-defeating; once a right-ofway is abandoned for railroad purposes there may
be nothing left for trail use. This amendment
would ensure that potential interim trail use
will
be
considered
prior
to
abandonment.
[Preseault at 8, citing H R Rep No. 98-28, pp 8-9
(1983); S Rep No. 98-1, p 9 (1983).]
9
National Trails System Act Amendments of 1983, Pub L
98-11, § 208, 97 Stat 42, 48 (1983) (codified as amended at
16 USC 1247(d) (Supp II, 1996).
10
The
Court
potentially
opined
valuable
that
every
national
rail
asset
line
that
is
“a
merits
preservation even if no future rail use for it is currently
foreseeable.”
conversions
right
do
under
Preseault
not
state
at
19.
constitute
law,
Thus,
abandonment
even
if
rail-to-trail
of
the
a
property
easement
specifically created for railroad purposes only.
was
Preseault
at 8.10
The
majority
states
that
the
Rails-to-Trails
Act
requires a railroad company to “bank” its right-of-way in
order to preserve its property interest.
This is untrue.
Buffalo Twp v Jones, 571 Pa 637, 651; 813 A2d 659 (2002),
cert
den
Jones
v
Buffalo
Twp,
540
US
821
(2003).
Authorization by the ICC to put a railway right-of-way into
interim use as a trail is not required as a matter of law.
10
Accordingly, courts have not considered the ICC’s
certification of a railroad company’s abandonment of a line
as evidence that the company abandoned its easement.
See
Rail Abandonments–Use of Rights-of-Way as Trails; Rail
Abandonments–Use of Rights-of-Way as Trails–Supplemental
Trail Act Procedures, 5 ICC 2d 370, 3 (1989) (“Once a
carrier exercises the authority granted in a regular
abandonment certificate the line is no longer part of the
national transportation system.”); Barney v Burlington N R
Co, Inc, 490 NW2d 726, 729, 730 (SD, 1992), cert den sub
nom Kaubisch v South Dakota, 507 US 914 (1993); Chevy Chase
Land Co v United States, 355 Md 110, 169-171; 733 A2d 1055
(1999), cert den 531 US 957 (2000); State of Minnesota, by
Washington Wildlife Preservation, Inc v Minnesota, 329 NW2d
543, 548 (Minn, 1983), cert den 463 US 1209 (1983).
11
Citizens Against Rails-to-Trails v Surface Transportation
Bd, 347 US App DC 382, 391; 267 F3d 1144 (2001); Southern
Pacific Transportation Co—Exemption—Abandonment of Service
in San Mateo Co, Ca, 1991 WL 108272 (ICC, 1991).
THERE IS ABUNDANT EVIDENCE THAT THE
SOO LINE DID NOT ABANDON THE EASEMENT
The trial court found that the Soo Line had no intent
to give up its easement.
Because there was ample evidence
supporting this ruling, it was not clearly erroneous.
The Soo Line did not immediately remove its tracks.
They remained in place on this parcel at least through 1986
when it was appraised.
Some of the tracks remain today, as
do other structures elsewhere on the right-of-way, such as
bridges.
The facts of the Belka v Penn Central Corp11 decision
cited by the majority, and Becker, contrast with the facts
in this case.
In Belka, the transportation corridor was no
longer intact.
The land had been broken into segments that
could not be restored for future rail service.
Belka at
18-19.
In contrast, the right of way in this case remained a
viable
transportation
corridor
11
in
use
by
recreational
1993
US
Dist
LEXIS
15836
(WD
Mich,
1993)
(unpublished), aff’d without opinion 74 F3d 1240 (CA 6,
1996).
12
vehicles until defendant erected its fence.
Although its
path may have been difficult for some to identify during
the litigation,
ante at 7, it is without question that
plaintiff identified and maintained it as a corridor for
recreational vehicles.
In Becker, the rail carrier refused to negotiate to
sell the rail line.
property interest.
It preferred to walk away from its
The Soo Line’s conduct, on the other
hand, demonstrates an intent not to abandon its property
interest in the right-of-way.
Three years after filing its
notice of abandonment with the ICC, the Soo Line sold a
utility
easement
over
the
land
to
the
Michigan
Bell
Telephone Company.
In other cases, perhaps in this one, a rail line would
file a notice of abandonment with the ICC as a first step
in obtaining financial assistance.
secure
a
means
abandoning it.
of
maintaining
The intent might be to
operation
rather
than
Chevy Chase Land Co v United States, 355 Md
110, 172-173; 733 A2d 1055 (1999).
Intent
to
abandon
is
ascertained
totality of the circumstances.12
12
by
examining
the
The Soo Line stopped using
In Glosemeyer v United States, 45 Fed Cl 771 (2000),
the United States Court of Federal Claims held that an
application to the ICC for authority to abandon was clear
evidence of intent to abandon an easement only if
13
the right-of-way for a period in this case.
However, that
may not have signified an intent to abandon it.
at 394.
McMorran
Ceasing operation, removing track, and canceling
tariffs are consistent with an intent to retain the right
to resume service.
Becker at 62, quoting Birt v Surface
Transportation Bd, 319 US App DC 357, 362-363; 90 F3d 580
(1996).
See also Strong v Detroit & M R Co, 167 Mich App
562, 569; 423 NW2d 266 (1988).
More is needed in order to
conclusively prove an intent to abandon a property right.
That evidence is lacking here.
evidence
supporting
the
trial
Because there was ample
court’s
factual
findings,
they should be upheld.
THE EASEMENT
WAS
NOT PERPETUALLY RESTRICTED
TO
USE
AS A
RAIL LINE
Even if the Soo Line retained its property interest in
the easement until conveying it to plaintiff, the easement
cannot
be
trails.
used
The
for
a
trail
unless
majority
finds
that
railroad purposes only.
its
the
scope
easement
includes
was
for
It is incorrect.
Where an easement is granted and the scope of its use
is in question, we attempt to discern the parties’ intent.
Intent
is
determined
by
applying
principles
similar
to
“confirmed by conduct.”
Id. at 777.
The Pennsylvania
Supreme Court has also held that filing a certificate “must
be
coupled
with
external
acts
in
furtherance
of
abandonment.”
Buffalo Twp v Jones, 571 Pa 637, 647; 813
A2d 659 (2002).
14
those used when contracts are construed.
Property, 3d, § 4.1, comment d, p 499.
the conveyance itself are examined.
v
Pere
Marquette
R
Co,
256
Mich
1 Restatement
First, the terms of
Epworth at 575; Quinn
143,
150;
239
NW
376
(1931).
In this case, the conveyance was by deed.
Under its
terms, Quincy gave Mineral Range and “its successors and
assigns forever a right of way for the railroad of” Mineral
Range.
It later stated that Mineral Range would have and
hold the strip of land “for the purpose and uses above
stated . . . .”
This Court has held that such a statement of purpose
in a conveyance for a railroad does not mean that the land
can be used only for a railroad.
conveyed
only.’”
in
Quinn
a
parcel
“‘to
Id. at 146.
did
not
be
In Quinn, a warranty deed
used
for
railroad
purposes
Like the deed in this case, the deed
contain
a
reverter
clause.
After
considering the circumstances surrounding the conveyance,
the Court concluded that the statement in the deed was
merely a declaration of the purpose of the grant.
not
prevent
other
the
purposes.
right-of-way
Id.
at
from
151.
being
Accord
Railroads, § 61, p 248, and § 68, p 252.
15
used
65
Am
It did
later
for
Jur
2d,
By contrast, a right-of-way can be limited to use only
for
a
railroad
conveyance.
where
it
is
explicitly
stated
in
the
In Epworth, supra at 568, the deed to the
railroad
recited
railroad
purposes
that
the
parcel
only.’”
It
was
“‘to
continued,
be
used
for
“If,
for
any
reason, the property . . . shall . . . cease to be used for
railroad purposes and trains shall not be run over the
railroad track,” then the property reverts to the grantor.
Id. at 573.
In that case, the Court held that the parties
clearly intended the property never to be used for anything
other than a railroad.
These
easements.
principles
apply
also
to
deeds
creating
In Hickox v Chicago & C S R Co,13 the deed for a
right-of-way stated that if the property ceased “‘to be
used and operated as a railroad . . . then . . . the rightof-way . . . shall terminate.’”
Id. at 619.
The Court
held that the land had to be used to operate a railway,
even though it was not limited to running trains, or the
easement ceased.
13
Id. at 620-621.14
78 Mich 615; 44 NW 143 (1889).
14
See also MacLeod v Hamilton, 254 Mich 653; 236 NW
912 (1931). In that case, a right-of-way to build a drain
was granted “‘for no other purpose whatever . . . .’” Id.
at 656. When it ceased to be used for a drain, the rightof-way ceased to exist.
Id. at 656-657.
Contrary to the
16
It is not uncommon for a deed creating an easement to
describe the scope of the easement in general terms.
a
controversy
over
scope
of
usage
arises,
it
When
falls
to
courts to determine whether the parties intended to allow
the land to be put to uses not specified in the deed.
1
Restatement Property, 3d, § 4.1, comment b, pp 498-499.
As a general statement, the easement holder is said to
enjoy all rights reasonably necessary and proper to fully
use the easement.
Unverzagt v Miller, 306 Mich 260, 265;
10 NW2d 849 (1943), citing 9 RCL, p 784; 1 Restatement
Property, 3d, § 4.10, p 592; 5 Restatement Property, § 450,
comment e, pp 2904-2905.
If the wording in a deed is not definitive, we infer
from
the
circumstances
surrounding
the
conveyance
unspecified uses the parties intended to allow.
what
Newaygo
Mfg Co v Chicago & W M R Co, 64 Mich 114, 122-123; 30 NW
910 (1887); 1 Restatement Property, 3d, § 4.10, comment a,
p
592,
and
comment
d,
p
595.
easements are permanent rights.
3d, § 4.1, comment b, p 498.
We
bear
in
mind
that
1 Restatement Property,
Also, the rights of the
easement holder are superior to those of the owner in fee
majority’s assertion, before today’s decision, this Court
has consistently applied these principles both to deeds for
fee simple interests and to easement interests.
Ante at
27.
17
simple.
Cantieny v Friebe, 341 Mich 143, 146; 67 NW2d 102
(1954), quoting Hasselbring v Koepke, 263 Mich 466, 475;
248 NW 869 (1933), quoting Harvey v Crane, 85 Mich 316,
322; 48 NW 582 (1891), citing Herman v Roberts, 119 NY 37;
23 NE 442 (1890), East Tennessee, V & G R Co v Telford’s
Executors, 89 Tenn 293; 14 SW 776 (1890), and Kansas C R Co
v Allen, 22 Kan 285 (1879).
We
infer
also
that
the
parties
intended
that
the
permitted use of an easement will change over time absent
language
to
effectuates
entertained,
the
contrary
the
intent,
that
the
in
the
which
deed.
we
right-of-way
This
presume
remain
the
inference
parties
viable.
1
Restatement Property, 3d, § 4.10, p 592.
In this case, the deed created a right-of-way for a
transportation corridor, a kind of highway available for
public
use.
See
Elliott
on
Roads
and
Streets,
§
1,
Marthens v B & O R Co, 170 W Va 33, 38; 289 SE2d 706
(1982), citing Eckington & Soldiers’ Home R Co v McDevitt,
191 US 103; 24 S Ct 36; 48 L Ed 112 (1903), and United
States v Trans-Missouri Freight Ass’n, 166 US 290; 17 S Ct
540; 41 L Ed 1007 (1897).15
The deed assigned the right-of-
15
Thus, it would have been redundant for the parties
to describe the easement as both a right-of-way and as a
transportation corridor, as the majority seems to require.
Ante at 26 n 44.
18
way “forever,” thus creating a permanent interest.
Its
initial purpose was to permit the Mineral Range Railroad to
build and run a railroad artery.
It contains no defeasance
or reverter language suggesting that the parties intended
to forever limit the use of the right-of-way to a railroad.
The
parties
had
to
know
that
easements
transferable and binding on subsequent owners.
are
The fact
that they used broad language suggests that they intended
to create a corridor that over time might accommodate modes
of transportation other than railroads.16
Thus, I would
hold that this deed created a right-of-way that the parties
intended
not
to
limit
to
a
railroad.17
It
was
not
extinguished as a matter of law when it ceased to be used
for railroad purposes.
PLAINTIFF’S RIGHT-OF-WAY MAY BE USED AS A RECREATIONAL TRAIL
This Court has held that, where broad language in an
easement
permits
uses
not
stated,
those
uses
must
not
16
This is similar to the concept that a right-of-way
for a road to be used by horse-drawn buggies might later be
used by automobiles.
“[A]n easement holder may utilize
such technological improvements as are reasonably necessary
to carry out the purpose of the grant . . . .” 25 Am Jur
2d, Easements and Licenses, § 76, p 575 (2004).
17
Defendant likely understood this at the time it
acquired the servient estate. It did not object later when
the Soo Line granted a utility easement in the right-ofway.
Nor did it object during the first nine years that
plaintiff used the right-of-way as a recreational trail.
19
impose an additional or increased burden on the servient
estate.
Crew’s Die Casting Corp v Davidow, 369 Mich 541,
546; 120 NW2d 238 (1963), quoting Delaney v Pond, 350 Mich
685, 687; 86 NW2d 816 (1957).
Use for recreational travel
may include foot travel, bicycles, horses, and recreational
vehicles.
All have been adjudged to be within the scope of
a right-of-way.
See WWP, supra.
Uses of a right-of-way interfere with the enjoyment of
servient
estates
to
varying
degrees.
With
respect
to
recreational uses, hikers, equestrians, and bicyclists pose
little
interference.
Snowmobiles
vehicles are more intrusive.
recreational
vehicles
is
and
other
off-road
But the most intrusive of
less
intrusive
than
trains.
Trains may travel all hours of the day or night.
Defendant’s argument that the easement is more heavily
used as a recreational trail than it was as a railroad
misunderstands
the
scope
of
the
easement.
Defendant
assumes that trains may run intermittently merely because
that had been the custom.
no
restrictions
trains.
on
the
However, the easement here put
scheduling
of
Mineral
Range’s
They could have run incessantly and still been
within the scope of the easement.
Trains
are
loud
and
cause
damaging
vibration.
Snowmobiles and recreational vehicles are less noisy and
20
cause less vibration.
basis.
Also, they are used on a seasonal
Other remedies are available to address problems
associated
with
recreational
excessive
trail,
speed
or
traffic
such
as
speed
least
as
great
volume
limits
and
on
a
permit
requirements.
Trains
have
at
a
capacity
as
have
recreational vehicles to serve as a means of transportation
for lawbreakers.
Trains can be boarded or departed from at
locations where they must pass slowly.
such
a
location,
in
a
town
near
a
This case involves
bridge.
A
public
recreational trail represents no greater safety hazard to
adjacent landowners than trains that vagrants ride.
Trains
do not impose a substantially different burden on adjacent
landowners than highways or harbors.
use
of
the
right-of-way
here
does
Hence, recreational
not
substantially
increase the burden on plaintiff’s estate over its use by a
railroad.
CONCLUSION
From the record in this case, it appears that the
section of the Soo Line railway corridor involved remains
under the jurisdiction of the Surface Transportation Board.
As a consequence, this Court is without jurisdiction to
determine whether the easement on which it was built has
been abandoned.
21
Moreover, even if the Soo Line consummated abandonment
of the line through the STB’s predecessor, it does not
follow
that
it
abandoned
the
underlying
easement.
The
trial court made the finding based on ample evidence that
it did not.
The Court of Appeals agreed.
I have reached
the same conclusion.
In addition, I agree with the lower courts that the
easement was not restricted to use for a railroad.
Quincy
Mining Company and the Mineral Range Railroad intended to
create a perpetual easement for a right-of-way.
Initially,
it was for a rail line, but it was not explicitly limited
to that use.
Also, the deed did not provide that the
property right would revert to Quincy or its successor if
the railroad abandoned its line.
Consequently, I would
find that the parties intended to create a transportation
corridor that would remain viable “forever” as the easement
holder’s transportation needs developed.
Today’s
use
of
the
right-of-way
for
recreational
travel is consistent with its former use as a railway.
The
burden on the servient estate was not increased when the
change occurred.
In fact, recreational travel imposes a
lesser burden.
22
Thus, I would affirm the result of the trial court and
the Court of Appeals and hold that plaintiff may use the
right-of-way for its trail.
Marilyn Kelly
23
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