Pub. 10 2015 Issue 1

13 Issue 1 2015 / UCLS Foresights www.ucls.org parties notified by the CCOA that arguably at least, none of their prior agreements are ripe for financial enforcement, since those agreements may have no valid legal basis in the context of title, making their ceaseless debate over financial valuation entire - ly useless and meaningless, with respect to a large portion of the RR R/W at issue, if not all of it. Of course it is quite possible, and probably even likely, that some portions of the contested RR R/W were acquired by UP or its predecessors in fee simple, presumably by means of a typical deed from John Doe or any other fee land owner, independent of the aforementioned fed - eral grants. In such locations, a perfectly legitimate relationship may exist between UP and SF, as fee land holder and easement holder respectively, so the current land use and rental agree - ment between these parties is presumably applicable to some locations, in which the federal land grant issue is irrelevant, thus their current agreement could not simply be entirely set aside, the CCOA determined, it required judicial scrutiny. Moving on from the historical scenario, related above, to the legal analysis performed by the CCOA with reference to title, the first pivotal issue addressed by the CCOA is highly el - ementary in nature, establishing the definition and meaning of the word “property” in the relevant context. This was neces- sary because the location of the rights acquired by SF from UP and its predecessors were expressly described in their agree- ment as being on or within the “property” of UP, suggesting that when they composed the contractual language the parties simply presumed that all RR R/W is comprised of the land upon which it rests, thereby acting upon a very common misconcep - tion. In the course of addressing this issue, the CCOA initially clarified that “land is not property” 5 highlighting the fact that the terms “land” and “property” are not synonymous, so they cannot properly be used as if they were identical in meaning, since property rights are most definitely not limited to land and can consist of many intangible things, such as a R/W easement, which is a right that blankets land, but is clearly not equivalent to land itself. Thus the CCOA had taken judicial notice of a key flaw in the contractual language that had been either employed by UP or agreed to by UP, which held the potential to devas - tate the landlord position taken by UP, and the CCOA set out to ascertain and define the legal consequences of that major lin - guistic defect. In electing to focus upon this issue, relating to the manner in which the location of the relevant SF facilities had been de - scribed by the parties in their agreement, the CCOA declined to take the shortcut that was taken during all prior judicial efforts to resolve this rental dispute, and pass directly to the rent valu- ation issue. Instead, the CCOA treated the locational issue raised by the use of the word “property” in a descriptive manner as a threshold issue, which had to be dealt with before moving on to tackle the valuation issue, in order to determine which SF facilities were really within the scope of the existing contrac - tual agreement. It was obviously unnecessary to engage in any valuation assessment, the CCOA understood, with reference to any locations in which UP had no valid basis upon which to control the activities of SF, so an enormous portion of the pipe - line mileage at issue, perhaps the vast majority of it, stood to be dismissed from consideration, if the scope of the agreement were to be limited to SF facilities that actually utilized property of UP. For the past 20 years, throughout all of the prior litiga - tion, the CCOA pointed out, those charged with reviewing this controversy had “essentially decided not to decide” 6 the prop- erty rights issue, perhaps deliberately steering a course around it on the grounds that it was an issue of such complexity as to be unfathomable. In addition, judicial attention had evidently been wrongly diverted from the title issue, the CCOA noted, by expert witnesses who misleadingly treated, or even express- ly identified, the RR R/W as land held in fee by UP, which the CCOA naturally deemed to be wholly unsatisfactory, since that position is clearly unsupportable under the law. Undoubtedly, the CCOA knew and acknowledged, UP holds some form of property right associated with each portion of the RR R/W, the core issue however is the physical extent of that right in the vertical dimension, because unless the rights of UP extend below the surface, those rights bear no direct relation - ship to the subsurface land use being made by SF in all typical locations. In other words, the litigants may be merely holders of vertically parallel rights, which do not physically intersect at all, in those locations where the pipe is below the surface, and that in turn obviously calls the alleged right of UP to issue subsur- face easements or charge SF any amount of money, based solely upon the presence of an underground pipeline, into serious question. Fee simple title extends earthward and skyward indef - initely, but the same is definitely not true of easements, since they are all axiomatically limited to a specific purpose or set of purposes, which can operate to define the easement’s physical extent and limitations, in a manner that allows the easement to fully serve the intended purpose, yet pose no greater burden than is truly necessary upon the servient land. While the rights of UP to the surface within the RR R/W are undeniable, and may even be properly classified as exclusive, that fact is legally insufficient to justify UP, the CCOA found, in exerting control over all subsurface land use. Thus the distinction between fee and easement interests was truly critical, the CCOA well real - ized, to the determination of the relative rights of the parties to occupy vertically separated corridors with their respective facilities, and the judicial failure to fully address that issue in the prior proceedings was potentially fatal to the monetary triumph of UP. On the crucial property definition issue, the CCOA held that the parties must be bound by the full legal implications of the language which they selected for use in their contractual agreement, thus there can be no justification for any finan - RAILROAD RIGHT OF WAY continued from page 10 RAILROAD RIGHT OF WAY continued on page 14 5 See page 17. 6 See page 20.