Pub. 10 2015 Issue 1

9 Issue 1 2015 / UCLS Foresights www.ucls.org realm of land rights in recent years. This CCOA opinion, lengthy as it must necessarily be, in order to thoroughly cover the rele- vant issues, is a model of well- conceived thought organization, which advances through an entirely logical progression, making it highly understandable, even for those who may be novices at reading the law, and it is in no sense tedious or overblown. Herein, we will initially trace the key points specified in the ju - dicial narrative outlining the essential events that comprise the backstory, before examining the vital legal analysis and conclu- sions leading to the decision itself, and ultimately we will take note of the potentially major ramifications this battle may hold within the arena of title law. As is always the case, the reader is advised to strive to maintain an objective perspective, dis - carding any personal biases, inclinations or preferences, while recognizing the particular parties for what they are, mere play - ers on a stage, in whose shoes as litigants a myriad of others have stood before. As the Civil War drew to a close, a renewed national fo - cus upon populating the west, and fully utilizing the valuable resources therein, lifted the national expansion effort to a posi - tion of elevated priority. Many of our western states were not yet formed of course, and the west was substantially comprised of public domain, land which was subject to use or disposal by the federal government. Railroads, representing a still rela - tively new form of technology at that time, were poised to aid mightily in the opening of the west, and this was recognized by all, leading to legislation which was intended to exploit that technology in the subjugation of the vast and remote expanses stretching to the Pacific Ocean. Even before and during the Civil War the value of the rapid new form of transportation provided by railroads, for both military and national expansion purposes, became clear to leaders at the federal level. During the 1850s & 1860s, the US Congress issued various railroad grants, most notably the Pacific Railroad Act of 1862, amended in 1864, un - der which the creation of RR R/W upon the public domain was authorized, and which also bestowed title to countless sections of that land, although much of it was as yet unsurveyed, upon numerous railroads. In hindsight, the wisdom of such grants may be questionable, and certainly as we now know, their lack of linguistic specificity was destined to precipitate untold num - bers of controversies, but the grants were clearly not absolute in nature, and quite significantly, as noted by the CCOA, mineral rights were expressly excluded and reserved unto the US. Even at the time of the earliest grants, the true or exact nature of the legal interest embodied and conveyed in those grants was at least somewhat unclear, and there is scant if any evidence that any deep thought or concern was given to that matter. National urgency was present and seemingly boundless opportunities beckoned, so legal technicalities were definite - ly not the foremost considerations of the day, thus the railroad work went furiously forward, based at least in part upon the un- sound notion that the railroads had been legally endowed with full control over all RR R/W. During the 1870s however, serious concerns relating to the land rights associated with RR R/W began to arise, in effect the tremendous power of the railroads became clear to all, and settlers began to realize that they were effectively competing with the railroads for valuable lands, so many of them came to view the railroads as enemies. The polit- ical impetus generated by this swing in the public perception of railroads motivated the General Right-of-Way Act of 1875, wide - ly regarded as the most important nineteenth century Act of its kind, which was enacted with the objective of limiting such grants going forward. Aside from less relevant matters, the Act of 1875, as well as many subsequent Acts which were modeled upon it and were enacted in the same spirit, clarified that all RR R/W created thereafter upon the public domain was to be granted to the railroads only as an easement interest, while the fee interest in the lands bearing the railroads was retained by the US, for subsequent disposal to settlers. Reams have been devoted to railroad title controver - sies set in every western state, and the resultant litigation and legislation that came to pass during the late 1800s and early 1900s, yet much more still could be written on that subject, particularly on the matter of railroad abandonment and it’s legal consequences, but that separate pathway leads to the aforementioned Brandt case. For the sake of brevity here, we will observe only, as did the CCOA, that during the first cen - tury of railroad construction and development in this country the US Congress “passed laws governing subsurface oil and gas pipelines through federal lands, providing for annual rental pay- ments to the government” 2 while pointing out that such federal action was fully consistent with the federal retention of existing subsurface interests such as mineral rights, under all prior fed- eral laws pertaining to RR R/W. As all experienced land rights professionals know, the intent of a grantor always represents a powerful factor, whenever disputes over land rights arise, and as this case richly demonstrates, when the US is the grantor that rule is only amplified in significance. Having thus set the stage for the players, we next turn to the portion of this saga outlin - ing the acts of the parties themselves, commencing with the relevant acts of their predecessors, in whose shoes the present litigants stand. In the relevant areas, Southern Pacific was a predeces - sor of UP, and was evidently the holder of the RR R/W at issue, operating trains thereupon, during the 1950s. SF already had an existing corporate relationship with Southern Pacific, the two entities were legally sisters, subsidiaries or branches of the same organization, functioning as partners, and presumably some SF facilities already existed within the relevant RR R/W, so their relationship was genuinely close and mutually beneficial at the time of its advent. With the national economy humming along during the post war boom, and the need for further de- velopment of rail and pipeline delivery services plain to see, the original pipeline easement and rental agreement, which would RAILROAD RIGHT OF WAY continued on page 10 2 See page 7 of the published decision, which is available to the public on the web.