Pub. 10 2015 Issue 1

www.ucls.org 8 Issue 1 2015 / UCLS Foresights E arly in 2014, the problematic nature of railroad right- of-way (RR R/W) from a title perspective was vividly displayed in the case of Brandt Revocable Trust v United States (US) (134 S. Ct. 1257) and the potential impact of that decision upon certain very popular yet highly controversial surface uses of former RR R/W has been well doc - umented. In reaching the High Court, the Brandt case focused the attention of land rights professionals around the nation upon the fate of RR R/W that is no longer in use for its originally intended purpose, which of course is not an uncommon scenar- io, since extensive railroad abandonment has occurred in recent decades. Near the close of 2014 however, the California Court of Appeals (CCOA) addressed another case involving RR R/W, which appears to be well positioned to unleash an even more powerful legal shock wave, with truly enormous consequences for participants in the utility industry, as this time the contro - versy relates to subsurface land use of both former RR R/W and currently active RR R/W. While both the Brandt case and the one reviewed herein are, at their core, controversies implicating title to land, this latter battle, which is now awaiting attention from the California Supreme Court, could ultimately produce the most explicit and detailed clarification of the legal status of vast portions of the existing network of RR R/W traversing the American West that has ever been handed down. The historical developments underlying and leading up to the case of Union Pacific Railroad (UP) v Santa Fe Pacific Pipe - lines (SF) (231 Cal. App. 4th 134) superficially appear to present an example of typical commercial and industrial collaboration and progress, of a mutually beneficial nature, with respect to both the collaborators and the public. As we shall see however, serious adverse consequences can arise from unfounded and unwise assumptions regarding land rights, even after the rele - vant legal issues have effectively remained dormant for several decades, only to be subsequently exposed when friction be - tween partners over financial matters brings those latent issues finally to the forefront. As is typically true, proper legal inter - pretation of granting language is the straw that stirs the drink, and in this instance the use of highly general language, char- acteristic of early grants made by the US, necessitates judicial analysis of certain very basic words, the full or exact meaning of which we may rarely pause to ponder. It could certainly be suggested, with the benefit of hindsight after the passage of a century and a half, that the original language employed in many US grants was chosen unwisely or without sufficient foresight, but our courts today recognize, as they must, the futility of such protests, and proceed to address the legal implications of the selected language with stern objectivity. The panoramic scope of this powerful case, covering an incredible number of miles of RR R/W passing through 6 of our largest states 1 is especially well outlined by Judge Kussman of Los Angeles, making this 81 page opinion one of the most lucid and penetrating statements of the law to appear within the Defining the True Title Status of Railroad Right-of-Way in the American West A review of the California position announced November 5, 2014 BY BRIAN PORTWOOD 1 The states bearing the RR R/W directly impacted by this specific battle are Arizona, California, Nevada, New Mexico, Oregon and Texas. A CCOA ruling obviously does not control the law outside California, but every other state in which federally granted RR R/W exists will be likely to observe the outcome of this contest in California, and view the California position on this matter with high regard.