STILL WATER MILLING COMPANY, INC <strong>v</strong>. United States

8/31/2026

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[[COURTLISTENER_SUBOPINION {"id":"11431223","type":"010combined","part":"opinion","author":null,"source_field":"html_with_citations"}]]
In the United States Court of Federal Claims

STILLWATER MILLING
COMPANY, INC. et al.,

Plaintiffs,
No. 24-1243
v. (Filed: August 31, 2026)

THE UNITED STATES,

Defendant.

Thomas S. Stewart, Reed W. Ripley, Stewart, Wald & Smith LLC, Prairie Village, Kansas,
Steven M. Wald, Michael Smith, Stewart, Wald & Smith LLC, St. Louis, Missouri, for
Plaintiffs.
Alexis E. Smith, Trial Attorney, Devon Lehman McCune, Adam R.F. Gustafson, Deputy
Principal Assistant Attorney General, Environment & Natural Resources Division,
Washington, DC, United States Department of Justice, for Defendant. 1
OPINION AND ORDER
HADJI, Judge.
Plaintiffs filed this action seeking just compensation under the Fifth Amendment
for the Government’s alleged appropriation of their land for recreational trail use under the
National Trails Systems Act,
16 U.S.C. §§ 1241-51
(Trails Act). See ECF 1. The core
dispute is whether Plaintiffs have a property interest in the land within the rail corridor.
Before the Court are Plaintiffs’ Motion for Partial Summary Judgment (ECF 18) and the
Government’s Cross-Motion for Summary Judgment (ECF 25). For the following reasons,
Plaintiffs’ Motion for Partial Summary Judgment is GRANTED IN PART and DENIED
IN PART, and the Government’s Cross-Motion for Summary Judgment is GRANTED
IN PART and DENIED IN PART.
BACKGROUND
Plaintiffs collectively have real property interests in 43 parcels of land along a 3.2-
mile strip of a rail corridor in Stillwater, Oklahoma. ECF 16 at 1; ECF 18 at 8; ECF 18-1

1
Alexis E. Smith was counsel of record at the time of briefing. On August 13, 2026, Ms. Smith filed a
Notice of Withdrawal, terminating her involvement with the case. ECF 27. Because Ms. Smith was counsel
of record during briefing, her name appears in the introduction.
and Donna P. Thompson
Trust under Revocable
Trust Agreement
Charles C. Hendrix and
Michelle E. Hendrix, Co-
Trustees of the Charles C.
4 600013449
and Michelle E. Hendrix
Trust under Revocable
Trust Agreement
Matthew L. Mueggenborg
5 600013440
and Bridget Mueggenborg
Jasper T. Parker 6 600013501
Greg F. Hilovsky and
7 600017017
Sara A. Skiba
G.J. Mains, as Sole
Trustee of the G.J. and
8 600017004
Jacqueline T. Mains
Family Trust
Richard W. Tenbrink and
Julia E. Tenbrink, Co-
Trustees of the Julia E. Jones Warranty Deed (18/561)
9 600017308
Tenbrink Trust under Map V3-9; Parcel 4
Revocable Trust
Agreement
Fred R. Van and
Josephine V. Van, Co-
Trustees of the Fred R. 10 600017306
and Josephine V. Van
Revocable Trust
Lance Leon Munson 11 600017305
Clark Realty Corp. 12 600044099 Act of Congress March 2, 1899
Legacy Park Apartments, Beavers Condemnation (5/622)
13 600000452
Limited Partnership Map V3-9; Parcel 7
Robert W. Barnes 14 600017644
Shane Hoffman 15 600017643 George Warranty Deed (18/64)
Kenneth Paul Duke III 16 600017641 Map V3-9; Parcel 8
Teresa R. Goodner 17 600017638
Mary Esther Bradley,
Trustee of the Mary Esther 18 600017713 Act of Congress March 2, 1899
Bradley Revocable Trust Wittum Condemnation (5/618)
Justin and Susan Wichert, Map V3-9; Parcel 9
19 600013121
and Jerry and Lise Wichert
George Warranty Deed (18/64)
James Scott Smith 20 600017719
Map V3-9; Parcel 8
600013119 Act of Congress March 2, 1899
Dublin Rentals, LLC 21
600013111 Wittum Condemnation (5/618)

3
Celestine E. Johnson, Map V3-9; Parcel 9
Trustee of the C.E. 600013209
22
Johnson Family Trust 600013191
and Malinda Lea Duncan
600017687
Frits Properties, LLC 23
600017685
JAF Holdings, LLC 24 600013142
Act of Congress March 2, 1899
Wittum Condemnation (5/618)
Map V3-9; Parcel 9
25A 600052429
Husband Condemnation (5/602)
Map V3-S9; Parcels 1, 2
Act of Congress March 2, 1899
Palmour Condemnation (5/610)
Canfield Condemnation (5/607)
25B 600008886 Abercrombie RofW 6/181)
Palmour RofW (6/183)
Thomas RofW (6/185)
Map V3-S9; Parcels 3, 7, 18-21
Stillwater Milling Co. Act of Congress March 2, 1899
Canfield Condemnation (5/607)
Abercrombie RofW (6/181)
25C 600008852
Palmour RofW (6/183)
Thomas RofW (6/185)
Map V3-S9; Parcels 7, 18-21
Hutto Warranty Deed (17/340)
Standley Warranty Deed (17/344)
Lewis Warranty Deed (17/345)
Farrar Warranty Deed (17/339)
25D 600019794
Farrar Condemnation (5/597)
Act of Congress March 2, 1899
Canfield Condemnation (Misc./600)
Map V3-S9; Parcels 4-6, 8, 9, 23 4
Miller Warranty Deed (17/346)
ABI 401 Holdings, LLC 26 600000640 Lowery Warranty Deed (16/474)
Map V3-S9; Parcels 14, 15/16
Thomas D. Berry
27A 600019736
Revocable Trust Lowery Warranty Deed (16/474)
Thomas D. Berry Map V3-S9; Parcel 16
27B 600019739
Revocable Trust

4
The parties note that they disagree as to the source conveyance associated with Parcel 23. ECF 16 at 7
n.1. The parties only stipulate that Parcel 23 applies to Claim 25D but do not stipulate the applicable source
conveyance. ECF 16 at 7 n.1. The parties further disagree as to whether Parcel 22 applies to Claim 25D.
ECF 16 at 7 n. 1.

4
Guy M. Cooper 28A 600019732
Guy M. Cooper 28B 600019735
M Properties LLC 29A 600019523
M Properties LLC 29B 600019687
Harmon Warranty Deed (18/63)
M Properties LLC 29C 600010725
Map V3-9; Parcel 6
Southside Baptist Church 30 600008457
Allie Williams 31 600008476 Act of Congress March 2, 1899
Tracy Corbett 32 600008469 Donart Condemnation (7/200)
Barry L. and Terry L. Map V3-9; Parcel 10
33 600016701
Adams

ECF 16 at 2-8; ECF 18 at 8; ECF 25 at 10-11.
LEGAL STANDARD
Rule 56(a) of the United States Court of Federal Claims permits summary judgment
“if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” 5 “[A]ll evidence must be viewed in the light
most favorable to the nonmoving party, and all reasonable factual inferences should be
drawn in favor of the nonmoving party.” Dairyland Power Co-op. v. United States,
16 F.3d
1197, 1202
(Fed. Cir. 1994).
The Supreme Court has instructed that “the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-248
(1986) (emphasis omitted). A fact
is material if it “might affect the outcome of the suit,” and a dispute as to a material fact is
genuine if “the evidence is such that a reasonable [trier of fact] could [rule in favor of] the
nonmoving party.”
Id. at 248
. Disputes over facts that are not outcome-determinative will
not preclude the entry of summary judgment.
Id.
Though the moving party bears the initial
burden to demonstrate the absence of any genuine issue of material fact, Celotex Corp. v.
Catrett,
477 U.S. 317, 323
(1986), once this burden is met, the onus shifts to the non-
movant to point to an evidentiary conflict on the record; mere denials or conclusory
statements are insufficient to defeat summary judgment. See Anderson,
477 U.S. at 256
.
A summary judgment motion is properly granted “against a party who fails to make
a showing sufficient to establish the existence of an essential element to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S at 322. A
nonmovant will not defeat a motion for summary judgment “unless there is sufficient
evidence favoring the nonmoving party for [the trier of fact] to [rule in favor of] that party.”
Anderson,
477 U.S. at 249
. “A nonmoving party’s failure of proof concerning the existence
of an element essential to its case on which the nonmoving party will bear the burden of

5
Court of Federal Claims Rule 56(a) is the same as Federal Rule of Civil Procedure 56(a). Compare RCFC
56(a) with Fed. R. Civ. P. 56(a).

5
proof at trial necessarily renders all other facts immaterial and entitles the moving party to
summary judgment as a matter of law.” Dairyland Power,
16 F.3d at 1202
.
“With respect to cross-motions for summary judgment, each motion is evaluated on
its own merits and reasonable inferences are resolved against the party whose motion is
being considered.” Marriott Int’l Resorts, L.P. v. United States,
586 F.3d 962, 968-69
(Fed.
Cir. 2009) (citing Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1391
(Fed.
Cir. 1987)). “The fact that both the parties have moved for summary judgment does not
mean that the court must grant summary judgment to one party or the other.” Bubble Room,
Inc. v. United States,
159 F.3d 553, 561
(Fed. Cir. 1998). “Rather, the court must evaluate
each party’s motion on its own merits, taking care in each instance to draw all reasonable
inferences against the party whose motion is under consideration.” Mingus,
812 F.2d at
1391
.
DISCUSSION
To establish a Fifth Amendment taking, a plaintiff must possess a protectable
property interest in the subject of the taking. Palmyra Pac. Seafoods, L.L.C. v. United
States,
561 F.3d 1361, 1364
(Fed. Cir. 2009). In Trails Act cases, the determinative issues
for takings liability are:
(1) who owns the strip of land involved, specifically, whether
the railroad acquired only an easement or obtained a fee
simple estate;
(2) if the railroad acquired only an easement, were the terms of
the easement limited to use for railroad purposes, or did
they include future use as a public recreational trail (scope
of the easement); and
(3) even if the grant of the railroad’s easement was broad
enough to encompass a recreational trail, had this easement
terminated prior to the alleged taking so that the property
owner at the time held a fee simple unencumbered by the
easement (abandonment of the easement).
Ellamae Phillips Co. v. United States,
564 F.3d 1367, 1373
(Fed. Cir. 2009) (citing
Preseault v. United States,
100 F.3d 1525, 1533
(Fed. Cir. 1996)).
Only the first factor is currently before the Court. 6 See ECF 18 at 9; ECF 25 at 38-
39. To make this determination, the Court looks to state law. Castillo v. United States, 952

6
In their brief, Plaintiffs raise the second factor (scope of the easement) as well. ECF 18 at 32-33. Per the
parties’ request (ECF 14), the Court limited summary judgment briefing to “title issues” only. ECF 15.
“Title issues” are often understood to exclude the scope of the easement. For example, in Club Car Wash,
the Court limited briefing to “title issues alone” and clarified that “title issues” meant “any issue related to
the title documents only.” Order, Club Car Wash Stillwater 6th, LLC v. United States, No. 24-1240 (Fed.
6
F.3d 1311, 1319
(Fed. Cir. 2020). “When the federal courts are called upon to interpret
state law, the federal court must look to the rulings of the highest state court, and, if no
such rulings exist, must endeavor to predict how that high court would rule.” MicroStrategy
Inc. v. Bus. Objects, S.A.,
429 F.3d 1344, 1359
(Fed. Cir. 2005) (quoting Johnson v. Riddle,
305 F.3d 1107, 1118
(10th Cir. 2002)).
I. Oklahoma Supreme Court’s Presumption of Easement
The Court turns first to the properties involving source conveyances arising from
condemnation proceedings. The parties disagree about whether the condemnation
proceedings conveyed fee simple estates or easements to the Original Railroad. ECF 18 at
14-21; ECF 25 at 15-25. In Club Car Wash, a case concerning the same rail corridor, this
Court recently reviewed the interpretive rules that the Oklahoma Supreme Court applies to
condemnation proceedings involving railroads. See Club Car Wash Stillwater 6th, LLC v.
United States,
181 Fed. Cl. 331
(2026). That case also involved interpretation of the
Husband, Wittum, Donart, and Morris Condemnations.
Id. at 338-43
.
The parties here advance similar arguments to those presented in Club Car Wash
regarding the effect of condemnation proceedings under Oklahoma state law, and the Court
will apply the same legal principles as it did in that case. See
id. at 336-43
. The Government
argues that a condemnation conveys a fee simple interest, unless the condemnation reflects
an intent to take a lesser estate. ECF 25 at 16 (citing Elliott v. City of Guthrie,
725 P.2d
861
, 864 n.19 (Okla. 1986)). In contrast, Plaintiffs argue that a condemnation conveys only
an easement, unless the proceedings show an intent to convey fee simple. ECF 18 at 14
(citing Martin v. City of Bethany,
182 P.2d 517, 518
(Okla. 1947)).
In Club Car Wash, the Court recognized that the Oklahoma Supreme Court has
equivocated over which rule to apply.
181 Fed. Cl. 336
-38.. The Government’s preferred
rule, set forth in Jones v. Oklahoma City,
137 P.2d 233, 238
(Okla. 1941), stands in sharp
tension with Plaintiffs’ favored rule, promulgated in Missouri, K. & T.R. Co. v. Miley,
263
P.2d 415, 417
(Okla. 1953). Accordingly, the Court deemed it necessary to examine a series
of cases in which the Oklahoma Supreme Court confronted pre-statehood condemnations.
See Club Car Wash,
181 Fed. Cl. 336
-38. After careful review, the Court determined that
the Oklahoma Supreme Court has progressively moved toward Plaintiffs’ preferred
approach, consistently declining to apply the Jones rule and endeavoring to cabin Jones to
its facts. See
id. at 338
(summarizing this trend).

Cl. June 10, 2025), ECF 28. The parties did not brief the scope of the easements. See Motion for Partial
Summary Judgment, Club Car Wash Stillwater 6th, LLC v. United States, No. 24-1240 (Fed. Cl. July 3,
2025), ECF 29 at 15 n.3 (“As directed by the Court, Plaintiffs will not address the scope of the railroad’s
easement ….”); see also Arnold v. United States,
137 Fed. Cl. 524
, 545 n.25 (2018) (declining to address
scope arguments for similar reasons and distinguishing between scope of easement issues and “issues of
title and adjacency”). The Court considers title issues to include only the threshold issue of whether
plaintiffs have a property interest subject to a taking. Therefore, the Court will not evaluate Plaintiffs’
argument about the scope of easement at this stage. See ECF 18 at 32-33.

7
Consistent with the Court’s review of the relevant caselaw in Club Car Wash, the
Oklahoma Supreme Court’s legal analysis in Miley controls.
Id. at 336-39
. In Miley, the
Oklahoma Supreme Court recognized a presumption that railroad condemnation
proceedings convey an easement, unless the proceedings “clearly show an intention to
acquire [fee simple] title and that such a title was in fact acquired under the condemnation
decree.” Chi., Rock Island, & Pac. R.R. v. Morgan,
421 P.2d 268, 272
(Okla. 1966)
(quoting Miley,
263 P.2d at 417
). The Court will apply this rule from the Miley Court to
analyze the condemnations in the present case. See Club Car Wash, 181 Fed. Cl. at 338.
II. Beavers, Wittum, Husband, Canfield, Palmour, and Donart
Condemnations
The parties disagree as to whether the condemnation proceedings involving the
Beavers, Wittum, Husband, both Canfield, 7 Palmour, and Donart Condemnations
conveyed an easement or a fee simple interest to the Original Railroad. 8 Central to their
disagreement, the parties dispute the legal effect of the phrase “right of way” as written in
the condemnation reports. ECF 18 at 15; ECF 25 at 19. The parties do not dispute any facts
related to the condemnation proceedings. Under Oklahoma law, contract interpretation is
a question of law. K & K Food Servs., Inc. v. S & H, Inc.,
3 P.3d 705, 708
(Okla. 2000).
Therefore, the Court finds that summary judgment is appropriate. The Court will review
the relevant language within the condemnations to determine whether they show a clear
intent to convey fee simple. See Club Car Wash, 181 Fed. Cl. at 338-40; Miley,
263 P.2d
at 417
.
Plaintiffs argue that the condemnations convey easements because the
condemnations “expressly state that the property is appropriated as a right of way, not
merely for a right of way.” ECF 18 at 16 (emphasis added). As support for this proposition,
Plaintiffs point to two phrases in the Beavers Condemnation as exemplar language: “J.M.
Beavers … may sustain [injury] by reason of such railroad and … damages which [he] will
sustain by the appropriation of a part of his said land as [and] for a right of way for the
Eastern Oklahoma Railway Company,” and “[t]he Eastern Oklahoma Railway Company
has located its said line of Railway over and across the same, and that it is necessary for
the said Eastern Oklahoma Railway Company to appropriate as and for its right of way
over and across the same, a part of said real estate ….” ECF 18 at 16. Beyond correctly
noting that the term “right of way” has two meanings in Oklahoma railroad parlance, see
Aubert v. St. Louis-San Francisco Ry. Co.,
251 P.2d 190, 193
(Okla. 1952), the
Government contends that other language in the condemnation reports indicates a fee

7
Two separate Canfield Condemnations are at issue, Canfield 600 and Canfield 607. ECF 18-40; ECF 18-
41. When referring to them individually, the Court distinguishes them by their record book numbers. See
ECF 16 at 6.
8
Plaintiffs allege that, as to these seven condemnations, ICC Valuation Maps and Schedules additionally
identify federal land grants as having conveyed the corridor interest. ECF 18 at 17. However, the parties
agree that the condemnation reports are conclusive in determining what interest the Original Railroad
obtained. ECF 18 at 17; ECF 25 at 23.

8
simple interest, such as “appropriation of a part of his said land,” “a part of said real estate,”
and “the value of the land taken.” ECF 25 at 19 (citing ECF 18-39 through 18-47).
In Club Car Wash, the Court followed the Oklahoma Supreme Court’s reasoning in
Morgan that various phrases, such as “will be taken and appropriated” and “real estate so
taken” did not establish a clear intent to convey fee simple. See 181 Fed. Cl. at 339;
Morgan,
421 P.2d at 272
. The phrases cited by the Government here are strikingly similar
to the phrases that the Morgan Court found did not overcome the presumption of easement.
See Morgan,
421 P.2d at 272
. Because the Husband, Wittum, and Donart Condemnations
are the same condemnations that were at issue in Club Car Wash, and the Court’s reasoning
remains unchanged, the Court concludes that those condemnations do not establish an
intent to convey fee simple. Club Car Wash, 181 Fed. Cl. at 338-40. Applying Morgan to
the Beavers, Canfield, and Palmour Condemnations, the language in the condemnation
reports, such as “as and or for a right of way” and “to appropriate,” does not express a clear
intent to convey fee simple to the Original Railroad. This language is dissimilar to the
unambiguous fee simple language present in cases in which the Oklahoma Supreme Court
has held that railroad condemnation proceedings conveyed fee simple interests. For
example, in Jones, the condemnation at issue transferred “all the right, title and interest,”
to the railroad.
137 P.2d at 237
(emphasis added). Therefore, the language here does not
overcome the presumption of easement. See Morgan,
421 P.2d at 272
.
Resisting this reasoning, the Government attempts to distinguish Morgan. See ECF
25 at 20 n.3. Specifically, the Government maintains that Morgan concerned a “defective
condemnation proceeding” and failed to include actual language from the condemnation
report.
Id.
But under Morgan, the fact that a condemnation proceeding is defective is of
little consequence when an entity with the power of eminent domain enters into actual
possession of the land, provided certain conditions are met. See Morgan,
421 P.2d at 271
.
There, the Oklahoma Supreme Court held that, despite defects in the condemnation
proceeding, the title held by the railroad company was “the equivalent of a ‘title by
condemnation regularly acquired,’” and proceeded to “look to the condemnation
proceedings” to determine whether the railroad took a fee simple title or only an easement.
Id. at 271-72
. The Government’s attempt to distinguish the instant case based on the
defective condemnation proceeding in Morgan is thus misguided.
Nor does the Court agree with the Government’s claim that Morgan is
distinguishable because it “does not contain the actual language from the condemnation
report.” ECF 25 at 20 n.3. The Government’s Reply appears to back away from this
argument by engaging with direct quotes from “[t]he condemnation report in Morgan.” See
ECF 27 at 10. But to be clear, the Morgan majority quotes several phrases from “the 1901
condemnation proceedings,” and it is not at all apparent that this is a reference to something
other than the condemnation report. See Morgan,
421 P.2d at 272
. And in any case, the
partial dissent explicitly attributes some of these same phrases to “the Report of
Commissioners.”
Id. at 274-75
(Davison, J., dissenting in part). Accordingly, Morgan is

9
not distinguishable on the basis that it lacked analysis of the “actual language” from the
condemnation report.
The Government’s reliance on the grammar-based “direct object test” likewise fails,
because it is inapplicable to involuntary conveyances. See ECF 27 at 9. Under this test,
Oklahoma courts construe the language of a deed and ask, “What is the direct object of the
verb or verbs of conveyance?” to determine the nature of the conveyed interest. St. Louis-
S.F. Ry. Co. v. Humphrey,
446 P.2d 271, 276
(Okla. 1968). For example, in Humphrey, the
Oklahoma Supreme Court found that a deed conveyed fee simple when the direct object of
its verbs of conveyance (“bargain, sell and convey”) was “[a] strip of land,”
notwithstanding a separate reference to a right of way.
446 P.2d. at 276-77
. However,
Humphrey is not applicable here because Humphrey involved a voluntary conveyance.
Id.
at 276
. The Court in Morgan explained that voluntary conveyance cases are inapposite
because different presumptions apply. See Morgan,
421 P.2d at 272-73
(distinguishing the
case from Aubert,
251 P.2d 190
, and Midland Valley R.R. Co. v. Arrow Indus. Mfg. Co.,
297 P.2d 410
(Okla. 1956)). Not only did the Morgan Court decline to apply the direct
object test, but it even reached the opposite result to the direct object test. In that case, the
direct object of the verbs of conveyance, “taken and appropriated,” was “land.” Morgan,
421 P.2d at 274-75
(Davison, J., dissenting in part) (reciting language from the
condemnation proceedings). If this language were present in a deed, Humphrey would
suggest that fee simple was conveyed, yet the Morgan Court concluded that condemnation
conveyed an easement. Therefore, the Court will not apply the direct object test to the
condemnations in the present case.
Because nothing in these conveyances overcomes Oklahoma’s presumption of
easement in condemnation proceedings involving railroads, the Court finds as a matter of
law that the Beavers, Wittum, Husband, Canfield, Palmour, and Donart Condemnations all
conveyed easements to the Original Railroad. Whether Plaintiffs have established a
property interest in the rail corridor based on the centerline presumption is discussed infra
Section IX.
III. Morris and Farrar Warranty Deeds and Condemnations
The Court turns next to the Morris and Farrar source conveyances, which involve
both condemnation reports and corresponding deeds that were executed close in time. The
parties do not dispute the facts surrounding the condemnations and warranty deeds. Rather,
they dispute the legal effect of these conveyances, making summary judgment appropriate
for resolving these disputed questions.
The parties disagree regarding which conveyance controls in both circumstances.
Plaintiffs “concede that both the Farrar Deed … and the Morris Deed … include language
otherwise apt to convey a fee interest,” ECF 18 at 20, but argue that “the Farrar and Morris
Condemnations and Deeds are interrelated instruments that are part of a single transaction”
that “must be interpreted together” and construed as easements. ECF 26 at 20. The
Government contends that both voluntary deeds control under the Oklahoma Supreme

10
Court’s holdings in Oklahoma City v. Dobbins (Dobbins I),
44 P.2d 148, 151
(Okla. 1935),
and the merger doctrine. ECF 25 at 21. Plaintiffs do not address Dobbins I’s relevance to
the Farrar and Morris conveyances. The Court’s Club Car Wash opinion considered the
Morris conveyances and concluded that the Morris Warranty Deed controlled and
conveyed fee simple. 181 Fed. Cl. at 340-43.
The Court will again adhere to its reasoning set out in Club Car Wash, to find that
Dobbins I controls the outcome here. Id. at 341-42. Dobbins I and a later iteration of the
case, Oklahoma City v. Dobbins (Dobbins II),
117 P.2d 132
(Okla. 1941), dealt with
voluntary conveyances made during ongoing condemnation proceedings. In Dobbins I, the
Oklahoma Supreme Court held that condemnation proceedings cannot “be used, within
themselves, to limit the title conveyed by the execution of [a] deed.”
44 P.2d at 151
.
Dobbins II clarified that the court had reached this holding when confronted with a
landowner that had executed a deed conveying her land to a railroad company after
condemnation proceedings involving the land had begun.
117 P.2d at 134
. The Morris and
Farrar conveyances occurred under similar circumstances.
Turning first to the Morris conveyances, prior to the issuance of the Morris
condemnation report, the landowner executed a fee simple deed for the land on November
22, 1899. See ECF 18-49. The condemnation report was then issued on November 25,
1899, however, by statute condemnation proceedings were required to be initiated at least
ten days before the condemnation report. ECF 18-47; see Stat. of Okla. Terr. c. 17, art. 9,
§ 28, p. 256 (1893). As in Dobbins I, the fee simple deed was executed after condemnation
proceedings had started, and therefore, the condemnation could not “limit the [fee simple]
title conveyed by execution of the deed.” See Dobbins I,
44 P.2d at 151
. As in Club Car
Wash, the Court concludes that the Morris Warranty Deed conveyed a fee simple estate to
the Original Railroad. See 181 Fed. Cl. at 340-43.
With respect to the Farrar conveyances, there is no meaningful difference. The
condemnation report was issued November 25, 1899. ECF 18-46. Then the warranty deed
was executed on November 29, 1899. ECF 18-48. As Plaintiffs acknowledge, the deed
contains fee simple language. See ECF 18 at 20. As in Dobbins I and with the Morris
conveyances, the fee simple deed was executed after condemnation proceedings had
started, and thus the condemnation proceedings cannot limit the fee simple estate conveyed
by the warranty deed. See Dobbins I,
44 P.2d at 151
. The Court therefore concludes that
the Farrar Warranty Deed conveyed a fee simple estate to the Original Railroad. 9
The merger doctrine further supports these conclusions. “[W]hen a greater and a
lesser estate coincide and meet in the same person, the lesser estate is absorbed or merged
into the greater estate ….” Bank of Wichitas v. Ledford,
151 P.3d 103, 114
(Okla. 2006).
Here, in two separate circumstances, landowners conveyed both a lesser interest and a

9
This outcome comports with common sense. It is plausible that a property owner may convey a lesser
interest, such as an easement, and then choose to convey the remainder of their interest. Holding that a
condemnation report necessarily controls over a later executed warranty deed ignores this possibility.

11
greater interest to the Original Railroad within a matter of days. Under Ledford, the lesser
interests merge into the fee simple interests. See
id.
Plaintiffs argue that the conveyances
must be “taken and construed together.” See ECF 18 at 19-21 (citing Okla. Stat. § 158
(1910); Pauly v. Pauly,
176 P.2d 491, 495
(Okla. 1946); ECF 26 at 19-21 (same)). Yet,
Plaintiffs do not offer authority explaining why the condemnations should control over the
fee simple deeds. See ECF 18 at 19-21; ECF 26 at 19-21. Indeed, the merger doctrine
requires the opposite. See Ledford,
151 P.3d at 114
. Accordingly, the Morris and Farrar
Warranty Deeds control, and the Court finds that the Original Railroad obtained a fee
simple interest in the land. Therefore, the Government is entitled to summary judgment
with respect to these conveyances.
IV. Parcel Allegedly Conveyed via Federal Land Grant
Next, the parties dispute title to Parcel 22. Further, the Government disputes whether
Parcel 22 is even “applicable.” See ECF 16 at 7 n.1; ECF 18 at 21 n.14; ECF 25 at 13, 26.
Plaintiffs argue that the Original Railroad acquired an easement through a federal land
grant because all post-1875 federal land grants are easements. ECF 18 at 21. Plaintiffs
believe Parcel 22 was conveyed via a federal land grant based on the ICC maps’ indication
that the Original Railroad acquired its interest in Parcel 22 via an Act of Congress dated
March 2, 1899. See id.; ECF 26 at 22. The Government, in turn, disputes that the cited Act
applies to Parcel 22. See ECF 25 at 13, 26. Under the Court’s review of a summary
judgment motion, the Court’s inquiry ends where there is a genuine issue of material fact.
Celotex,
477 U.S. at 323
. Here, there is a dispute as to whether Parcel 22 is “applicable.”
In their joint stipulations, the parties represented as follows: “[T]he parties note their
disagreement as to whether Valuation Parcel 22 applies and reserve that issue for further
proceedings.” ECF 16 at 7 n.1.
This reservation notwithstanding, Plaintiffs argue that the Government “admitted in
its Cross-Motion that the Federal Land Grant is applicable,” thus “clear[ing] up the last
‘disputed’ fact issue regarding applicable source conveyances.” ECF 26 at 22 n.24 (citing
ECF 25 at 26). Specifically, Plaintiffs reference the following language in the
Government’s brief: “Plaintiffs have also not demonstrated that the parcels listed on the
ICC valuation maps as being acquired through federal land grant (Parcel 22) or adverse
possession (Parcel 23) (both applicable to Stillwater Milling Company, Claim 25.D) are
easements.” ECF 25 at 26. The Court disagrees with Plaintiffs’ characterization of this
language as a concession on applicability. That is because the Government’s point
regarding applicability can reasonably be understood in two different ways: (1) as an
admission that Parcel 22 is an applicable valuation parcel, reversing the Government’s
previous position; or (2) simply as an acknowledgment that Parcel 22 has been raised in
relation to Claim 25D. The fact that the Government maintains that Plaintiffs have not
provided evidence that the relevant statute applies or that a land grant was issued suggests
the latter interpretation is correct, as those arguments cannot be reconciled with an
admission that “the Federal Land Grant is applicable.” See ECF 25 at 26; see also ECF 27
at 14 (describing the parcels as “parcels that Plaintiffs assert the [R]ailroad acquired only

12
through federal land grant or adverse possession”) (emphasis added). Accordingly, the
Court finds that the parties continue to disagree as to whether Valuation Parcel 22 applies.
See ECF 16 at 7 n.1. This disagreement alone is enough for the Court to hold that summary
judgment is not appropriate with regard to Parcel 22.
V. Parcel Allegedly Obtained via Adverse Possession
Turning to Parcel 23, Plaintiffs argue that Original Railroad acquired an easement
through adverse possession. ECF 18 at 21. Plaintiffs rely on Morgan for the proposition
that continuous possession of a corridor for railroad purposes results in an easement being
acquired through adverse possession.
Id.
(citing Morgan,
421 P.2d at 269-71
). The
Government disputes that Parcel 23 was acquired through adverse possession and
maintains that Plaintiffs have not adequately demonstrated they possess an interest in the
parcel. See ECF 16 at 7 n.1; ECF 25 at 26-27; ECF 27 at 14. While the Government
concedes that adverse possession may be treated as a condemnation under Oklahoma law,
it relies on Jones to disagree as to whether the interest conveyed is fee simple or easement.
See ECF 25 at 26.
As with Parcel 22, the parties have not stipulated to the source conveyance
associated with Parcel 23. In particular, “[t]he parties disagree regarding the identity of the
original source conveyance associated with Valuation Parcel 23, and therefore at this time,
the parties stipulate only to Valuation Parcel 23’s applicability to Claim 25D and not to the
particular source conveyance with which Valuation Parcel 23 applies.” ECF 16 at 7 n.1;
see also ECF 18 at 21 n.14 (“[A]lthough the government stipulated to Parcel No. 23’s
applicability, it did not stipulate as to Parcel No. 23 having been acquired through adverse
possession.”).
However, Plaintiffs again argue that the Government “has now admitted that
adverse possession applies.” ECF 26 at 23 n.25 (citing ECF 25 at 26). Plaintiffs view the
same language quoted above as a concession from the Government that Parcel 23 was
acquired through adverse possession. ECF 26 at 23; see ECF 25 at 26 (“Plaintiffs have also
not demonstrated that the parcels listed on the ICC valuation maps as being acquired
through federal land grant (Parcel 22) or adverse possession (Parcel 23) (both applicable
to Stillwater Milling Company, Claim 25.D) are easements.”). Again, Plaintiffs make too
much of the Government’s phrasing. The Government’s acknowledgement that Parcel 23
was “listed on the ICC valuation maps as being acquired through … adverse possession”
is simply an acknowledgement of what the ICC maps state and cannot be construed as a
concession that Parcel 23 was acquired through adverse possession. ECF 25 at 26. This
understanding is bolstered by a broader reading of the Government’s argument that
discusses Parcel 23 as one of “the parcels that Plaintiffs assert the railroad acquired only
through adverse possession ….” ECF 27 at 14 (emphasis added).
Critically, Plaintiffs have not put forth any primary documents substantiating that
the Railroad acquired Parcel 23 through adverse possession. See ECF 18 at 21; see also
ECF 26 at 23. Instead, Plaintiffs supply a conclusory statement: “Ex. 25.B clearly

13
demonstrates that Plaintiffs’ description[] of Parcel No.[] … 23 [is] correct.” ECF 18 at 21
n.14. 10 From this statement, the Court understands Plaintiffs to rely on their demonstrative
parcel map and the ICC valuation map. 11 But Plaintiffs concede that their demonstrative
mapping “is not intended as standalone evidence.” ECF 26 at 25. Rather, they acknowledge
that “[t]he maps are merely visual aids to provide context to the factual issues in dispute.”
Id. at 26.
Likewise, the ICC maps alone are unavailing to establish Plaintiffs’ interest in
Parcel 23 such that summary judgment is appropriate under the facts of this case. This
Court has previously recognized that “[t]he purpose of [ICC] maps was to identify parcels
for valuation, not to distinguish types of ownership.” Amaliksen v. United States,
55 Fed.
Cl. 167, 175
(Fed. Cl. 2003). Accordingly, ICC maps are considered secondary evidence
and interpretive aids in rails-to-trails cases. See Mills v. United States,
147 Fed. Cl. 339
,
343, 348 (2020); Loveridge v. United States,
149 Fed. Cl. 64
, 79 (2020). The Court may
properly consider ICC maps under particular circumstances, such as when plaintiffs do not
have access to instruments of transfer despite efforts to obtain additional records. Mills,
147 Fed. Cl. at 348 (finding use of ICC maps proper where “[p]laintiffs have done what
they can” to locate information regarding a conveyance); see also Loveridge, 149 Fed. Cl.
at 79 (relying on ICC maps where plaintiffs sought additional evidence by issuing a
subpoena to the railroad and conducting a title search). While here, Plaintiffs are limited in
the type of evidence that may be available to demonstrate that the Original Railroad
adversely possessed Parcel 23, they have not demonstrated that they made any attempts to
collect additional documentation. Accordingly, the Court finds that the ICC maps alone are
unavailing to establish Plaintiffs’ interest in Parcel 23 at this time. See Loveridge, 149 Fed.
Cl. at 79. Because there is a dispute as to whether Parcel 23 was acquired via adverse
possession, the issue is not ripe for summary judgment.
VI. Abercrombie, Thomas, and Palmour Deeds
Plaintiffs go on to allege that the Abercrombie, Thomas, and Palmour Deeds contain
reversionary language that only conveyed an easement or, at most, fee simple determinable
interest to the Original Railroad. ECF 18 at 22-24. The Government concedes these deeds
contain reversionary language but argues that Plaintiffs hold no reversionary interest in the
parcels because (1) the cited reversionary language is personal to the grantor and did not

10
Given that Parcel 22 is allegedly associated with Stillwater’s Claim 25D, see ECF 16 at 6-7 n.1, Plaintiffs
presumably meant to refer to the portion of Ex. 25A-B that relates to Stillwater’s Claim 25D. See ECF 18-
30 at 28-59.
11
Plaintiffs represent that each exhibit has two categories of documents (identified as #.A and #.B for each
claim), consisting of: (A) ownership deeds and tax parcel reports; and (B) a demonstrative parcel map along
with the applicable source conveyance and corresponding ICC valuation maps. See ECF 18 at 13. Because
Ex. 25A-B does not include any primary evidence demonstrating that Parcel 23 was acquired through
adverse possession, the Court understands Plaintiffs’ reference to “Ex. 25.B’ to refer specifically to the
demonstrative parcel map contained within Ex. 25A-B titled “Claim No. 25.B-D—Stillwater Milling
Company” as well as the applicable ICC valuation map. See ECF 18-30 at 33-34.

14
necessarily transfer with the land; and (2) Plaintiffs have not put forth any evidence to show
that they now hold any reversionary interests. ECF 25 at 27-28.
A determinable fee simple “is immediately terminated by the happening of some
possible event, subsequently. The estate remaining in the grantor after the conveyance of
such an estate is a possibility of reverter which he may convey ….” Frensley v. White,
254
P.2d 982, 984
(Okla. 1953). This results in a transferable interest, and the occurrence of
the specified condition triggers reversion of the interest to the grantor or a party to whom
the grantor has transferred the interest. Bonebrake v. McNeill,
491 P.2d 269, 271
(Okla.
1971); Ator v. Unknown Heirs, Pers. Reps., Devisees, Trs., Successors & Assigns of Ator,
146 P.3d 821, 826
(Okla. Civ. App. 2006) (citing Ludwig v. William K. Warren Found.,
809 P.2d 660, 662-63
(Okla. 1990)).
Here, all three deeds include a reversionary clause, as demonstrated by the
Abercrombie deed:
[I]f at any time said Eastern Oklahoma Railway Co., its
successors or assigns, shall discontinue the use of said spur or
industry track and wholly abandon the same, the title to said
Railway Company herein conveyed shall vest in and revert to
the grantors herein, their heirs, executors, administrators or
assigns, together with all the improvements thereon and
appurtenances thereto belonging and warrant title to the same.
ECF 18-50 at 1; ECF 18 at 23. Plaintiffs argue that this limiting language “satisf[ies]
Oklahoma’s standard to determine the Deeds were intended as easement conveyances.”
ECF 18 at 23. However, the Court cannot agree. The mere facts that the deeds “are deeds
to a railroad for its railroad” and “are identified as ‘Right of Way’ deeds on the ICC
Valuation Maps and Schedules” are insufficient without more to limit the quantum of
estate. See ECF 18 at 23. Oklahoma courts have long recognized the dual meaning of the
phrase “right of way,” to indicate either an easement or a fee simple estate. See Aubert,
251
P.2d at 193
. Here, Plaintiffs acknowledge that the relevant conveyances granted property
identified as a “strip of land” and that the granting clauses would normally invoke
Oklahoma’s fee simple presumption for deeds. See ECF 18 at 23. Accordingly, the Court
finds that the Abercrombie, Thomas, and Palmour Deeds did not convey easements.
Instead, they granted a fee simple determinable interest to the railroad with a possibility of
reverter.
The parties do not dispute that the reversionary interests are transferable under
Oklahoma law. ECF 18 at 24; ECF 25 at 28. Rather, the parties dispute who currently holds
them. It is Plaintiffs’ burden to establish a cognizable property interest. Casitas Mun. Water
Dist. v. United States,
708 F.3d 1340, 1348
(Fed. Cir. 2013). Plaintiffs may have acquired
the interests at some point since the conveyance to the Original Railroad. See Bonebrake,
491 P.2d at 272
(heirs retained a possibility of reverter through an initial conveyance but
subsequently transferred the interest through quitclaim deed). However, Plaintiffs have not

15
provided any documentation to support that the interests were transferred to Plaintiffs or
their predecessors-in-interest from the original grantors or their heirs, executors,
administrators, or assigns. Instead, they argue that a possibility of reverter is transferred
with the land, but that is not necessarily true under Oklahoma law. ECF 18 at 22-24; see
Oklahoma City v. Wainwright,
187 P.2d 226, 231
(Okla. 1947) (recognizing that a
reversionary property interest is alienable and may be devised or transferred through
intestacy); see also Bonebrake,
491 P.2d at 272
(recognizing that a grantor’s heirs
possessed an alienable reversionary interest).
Plaintiffs may be able to provide evidence that they received a reversionary interest;
however, they have only provided the source conveyances containing the reversionary
language. Therefore, Plaintiffs’ failure to present this evidence precludes summary
judgment in their favor. With respect to the Government’s cross-motion, the Court must
generously infer that such evidence could be produced in Plaintiffs’ favor. Therefore,
neither party is entitled to summary judgment on this issue.
VII. Hutto, Standley, Lewis, Miller, and Lowery Fee Deeds
For the remaining deeds, Plaintiffs concede that the source conveyances conveyed
fee simple to the Original Railroad, but they allege that they are nonetheless entitled to just
compensation. ECF 18 at 25. First, Plaintiffs argue that modern evidence establishes that
certain Plaintiffs have a property interest in the railroad corridor, irrespective of the Hutto,
Standley, Lewis, Miller, and Lowery Fee Deeds.
Id.
Plaintiffs present demonstrative maps
that they claim incorporate data from both Plaintiffs’ current ownership deeds and publicly-
available information from Payne County, to show that Plaintiffs’ properties overlap with
the railroad corridor. Id. at 25-28 (referencing 18-30 through 18-34). The Government
takes issue with Plaintiffs’ demonstrative maps and alleges the maps constitute
inadmissible evidence in violation of Federal Rules of Evidence Rules 901(a) and 805.
ECF 25 at 29-32.
Plaintiffs’ maps are insufficient to support their Motion for Summary Judgment.
First, the Court shares the Government’s admissibility concerns. Court of Federal Claims
Rule 56(c)(2) states “[a] party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.” See Bannum, Inc. v.
United States,
151 Fed. Cl. 755
, 762 (2021) (“While the non-moving party may defeat a
motion for summary judgment with evidence, such as hearsay, that would not be admissible
at trial, such evidence must be corroborated or reflect some indicia of reliability.”).
Plaintiffs concede their demonstrative maps are nothing more than visual aids. ECF 26 at
26. Plaintiffs further acknowledge that the maps’ boundaries may be “indeterminate.”
Id.
at 32
. 12 However, although Plaintiffs represent that their maps are based on underlying

12
The Government alleges that the maps inaccurately depict certain boundaries and cannot be relied on as
Plaintiffs themselves acknowledge that the boundaries are “indeterminate.” ECF 27 at 15-16. However,
Plaintiffs do not concede that the maps are necessarily indeterminate. ECF 26 at 32 (“[T]o the extent the

16
evidence and documentation, the Court cannot just take Plaintiffs at their word; some
corroboration or indicia of reliability is required. Instead, Plaintiffs assert, “[t]he
government has stipulated to the applicability of every single source conveyance and parcel
identified on Plaintiffs’ demonstrative mapping, and so, clearly, the mapping reasonably
depicts the parcels and boundaries at issue.” ECF 26 at 26. The Court cannot agree that,
just because the Government stipulated to the applicable source conveyances and parcels,
the maps drawn by Plaintiffs must be accurate. This conclusory argument does not prevent
the Government from challenging Plaintiffs’ self-created maps, and it does not displace
Plaintiffs’ obligation to provide evidence that could be presented in an admissible form.
See Rule 56(c)(2).
Further, Plaintiffs have not provided any legal foundation for their contention that
their modern deeds and maps displace the source conveyances. These assertions are only
backed by Plaintiffs’ demonstrative maps; they do not refer to any language in the modern
deeds themselves to support their argument. See ECF 18 at 25-29. In addition, Plaintiffs
have made no attempt to show how their modern deeds could provide superior title under
Oklahoma law. As a result, Plaintiffs have not provided sufficient evidence or legal bases
to show that their modern deeds overcome the source conveyances, and thus, are not
entitled to summary judgment. 13
Nor is the Government entitled to summary judgment. The Government draws
parallels between the present case and this Court’s decisions in Bevirt v. United States,
177
Fed. Cl. 275
(2025) (rejecting claims of superior title based solely on modern deeds) and
Bevirt v. United States,
180 Fed. Cl. 217
(2026) (denying reconsideration). ECF 27 at 18-
19. Plaintiffs’ argument that their modern title evidence defeats the Original Railroad’s
ownership from the source conveyances is similar to the plaintiffs’ argument in the Bevirt
cases. ECF 27 at 19. However, the present case is distinguishable from Bevirt because the
plaintiffs in that case: (1) conceded the successor railroad held the same rights as its
predecessor-in-interest; and (2) actually argued that they held superior title under relevant
state (North Carolina) law. See Bevirt, 180 Fed. Cl. at 219; Bevirt, 177 Fed. Cl. at 278 n.1.
Unlike in Bevirt, the Government here has not pointed to a concession or other basis to
demonstrate that Plaintiffs cannot show they have a property interest. Because Plaintiffs
may be able to present evidence that they came to hold superior title to the relevant land,
the Government is not entitled to summary judgment with respect to claims arising in
relation to these source conveyances.

exact boundaries are indeterminate, that is easily remedied through obtaining boundary surveys ….”)
(emphasis added). Plaintiffs’ acknowledgment that the boundaries may be more clearly defined cannot be
viewed as a concession by Plaintiffs that the maps are unreliable.
13
Plaintiffs also note that a strip of Plaintiffs Hilovsky and Skiba’s property is within the corridor, and as
such, should be entitled to summary judgment on this basis. ECF 18 at 29 n.28. The Court disagrees for the
same reasons as those stated with respect to the other claims within this section.

17
VIII. George, Harmon, and Jones Fee Deeds
Finally, for the parcels stemming from the George, Harmon, and Jones Fee Deeds,
the Government moves for summary judgment “[b]ecause the Railroad owns fee and these
Plaintiffs own no land subject to the NITU.” ECF 25 at 28. Although Plaintiffs concede
that they do not have an interest in the corridor, ECF 18 at 25, they nonetheless argue that
the Government’s intended use of the corridor burdens Plaintiffs’ adjacent property in such
a manner that the future use presently amounts to a non-invasive taking of Plaintiffs’
property. ECF 18 at 29-32. In response, the Government contends that Plaintiffs: (1) failed
to raise a non-invasive takings theory in their pleadings; (2) lack standing at this time to
bring a takings claim; and (3) fail to support the legal basis for their claims. ECF 25 at 34-
38.
The Government is correct. In their Motion for Summary Judgment, “Plaintiffs
concede that the Fee Deeds convey fee interests, and that Plaintiffs exclusively associated
with the Fee Deeds (and who do not otherwise own the corridor land) would not have a
claim for just compensation based on any reversionary interest in the corridor.” ECF 18 at
29. Plaintiffs’ concession is fatal to the claims arising from the George, Harmon, and Jones
Deeds. See Chi. Coating Co. v. United States,
892 F.3d. 1164, 1170
(Fed. Cir. 2018) (“If
the railroad company owns the land in fee simple, then the Government cannot have
committed a taking and the analysis ends.”).
Plaintiffs’ non-invasive takings theory cannot save their claims. First, Plaintiffs
cannot raise a claim for the first time in a summary judgment motion. See The Redland Co.
v. United States,
97 Fed. Cl. 736, 756
(2011). A non-invasive taking claim may occur when
“[t]he United States…impos[es] such burdens upon the use of property as to deprive the
owner of the enjoyment of the land.” Argent v. United States,
124 F.3d 1277, 1283
(Fed.
Cir. 1997) (citing United States v. General Motors Corp.,
323 U.S. 373, 378
(1945)).
However, Plaintiffs’ Complaint only alleges physical takings claims, not this novel non-
invasive taking theory. See ECF 1 at ¶ 43. Plaintiffs point to paragraph 45 of their
Complaint as sufficiently pleading this claim, but this paragraph does not address the
Government’s actions on adjacent land or how such actions burden their use and enjoyment
of their land. Put differently, it says nothing about a non-invasive takings claim. See ECF
1 at ¶ 45 (“The United States’ actions damaged Plaintiffs by taking a portion of their
property, by diminishing the value of the remaining property, and by attenuating delay
damages based upon the delayed payment of compensation.”). Consequently, Plaintiffs
have not properly pled this claim.
Even had Plaintiffs properly pled a non-invasive takings claim, Plaintiffs lack
Article III standing to pursue such a claim at this time. The question of when a non-invasive
taking has occurred “is a factual matter that depends on matters such as when the alleged
increase in [the interfering activity] occurred.” Argent,
124 F.3d at 1287
. But here, no
“peculiarly burdensome” activity has started. See id. at 1824. Thus, Plaintiffs’ claims are
entirely speculative; no harm has occurred. Moreover, Plaintiffs attempt to distinguish their
non-invasive takings claims from other rails-to-trails cases. See ECF 26 at 33. Yet,

18
Plaintiffs simultaneously rely on these supposedly dissimilar cases for the proposition that
Plaintiffs’ damages started at the time of the issuance of the NITU. ECF 26 at 33 n.35.
Plaintiffs’ logic is flawed in this regard. For purposes of a non-invasive takings claim, the
taking occurs at the time of the substantial interference. Argent,
124 F.3d at 1287
. Here,
Plaintiffs have not alleged that any particularly burdensome activity has actually caused
any harm to Plaintiffs’ land.
Finally, apart from Plaintiffs’ failure to plead this claim and lack of standing, they
do not even establish how the trail, once it is constructed, will lead them to experience any
sort of interference peculiar to them. Plaintiffs rely on two key non-invasive takings cases
to support the alleged burden that will occur on their land as a result of the Government’s
use of the adjacent land for a recreational trail. First, Argent involved plaintiffs living next
to a Navy air station that launched over 100 low-altitude flights over or adjacent to the
plaintiffs’ land every week.
124 F.3d at 1284
. In Richards, an adjacent train tunnel caused
“the outpouring of gases and smoke from the entire length of the tunnel” onto the plaintiff’s
land. Richards v. Wash. Term. Co.,
233 U.S. 546, 557-58
(1914). Unlike the Plaintiffs in
Argent or Richards, Plaintiffs have not shown that a recreational trail will “impos[e] such
burdens upon the use of [their] property as to deprive the owner of the enjoyment of the
land.” Argent,
124 F.3d at 1283
. In fact, the Court is not persuaded that a biking and
walking trail would cause even a generalized harm. For these reasons, Plaintiffs’ unpled
and unsupported non-invasive takings argument cannot save their claims. Because the
Railroad owns the property at issue in fee and these Plaintiffs do not have any interest in
the corridor, the Court grants summary judgment in the Government’s favor.
IX. Centerline Presumption
Finally, the parties disagree as to the application of the centerline presumption.
Plaintiffs allege that they are entitled to the centerline presumption with respect to all
claims. ECF 18 at 34-36. In contrast, the Government argues against application of the
presumption because, in its view, all of the claims involve fee simple conveyances. ECF
25 at 39. In the alternative, the Government seeks to rebut the centerline presumption with
respect to certain claims. ECF 25 at 39-40.
The parties agree that the centerline presumption applies only to claims underlain
by source conveyances transferring easements. ECF 25 at 39; ECF 26 at 35. In Oklahoma,
[t]he grantor of land bordering or abutting upon a railway right
of way, who owns the fee of such right of way subject to the
burden of the right of way, and who subsequent to the grant
owns no part of the land on either side of the right of way, is
presumed to have conveyed his interest in the right of way,
unless a contrary intention clearly appears or is expressed.
Cuneo v. Champlin Refining Co.,
62 P.2d 82, 83
(Okla. 1936) (Syllabus by the Court). The
Government bears the burden of rebutting the presumption and, in order to do so, “the

19
means of rebuttal must be within the conveyance itself.” Kassner v. Alexander Drug Co.,
147 P.2d 979, 981
(Okla. 1943).
Turning first to Claim 23, 14 the Government attempts to rebut the presumption, or
potentially argue that the presumption would be inapplicable, based upon aerial imagery
and GIS data from the City of Stillwater that depict a road “near the subject parcels.” ECF
25 at 40. Yet, the Government does not actually provide an explanation as to how the
presence of the road rebuts the presumption nor does the Government put forth an argument
regarding ownership of the road. See
id.
Indeed, Oklahoma law provides that “[a]n owner
of land bounded by a road or street is presumed to own to the center of the way, but the
contrary may be shown.” 69 Okla. Stat. § 1202 (1968). Accordingly, the Government’s
conclusory argument does not rebut the centerline presumption with respect to Claim 23.
The Government next argues that the language within Plaintiffs’ modern warranty
deed associated with Claims 25A and 25B excepts the railroad. 15 ECF 25 at 39. The
particular language from the warranty deed transfers an interest “LESS AND EXCEPT the
Eastern Oklahoma Railroad (now Atchinson, Topeka and Santa Fe Railroad) right of way
lying on the West side of the above described tract.” ECF 18-30 at 3. The property
description provided by the Payne County Assessor’s Office also states “Less Rr R/W On
W.” ECF 18-30 at 20.
However, neither the language in the deeds nor the description from the Payne
County Assessor’s office contain language sufficient to rebut the centerline presumption.
The presence of the phrase “less and except” in the deed does not necessarily evince the
grantor’s intention to reserve its interest in the land. See Bryan v. Everett,
365 P.2d 146,
148
(Okla. 1961) (“The terms ‘reserving’ and ‘excepting’ will give way to manifest intent,
even though the technical term to the contrary is used.”). Rather, the language appears
merely to acknowledge that the land was burdened by the railroad easement, but it is silent
with respect to whether the grantor intended to keep its interest. See ECF 18-30 at 3;
Kassner,
147 P.2d at 981
(“[I]f a grantor…desire[s] to retain the right of reversion to a strip
of abutting easement way, he must see to it that it clearly appears from the language of the
conveyance that such reservation was actually intended.”) (internal quotation marks
omitted). The description from the Payne County Assessor’s office likewise does not
demonstrate any reversionary intention. See ECF 18-30 at 20. As the Government has not
supplied evidence establishing that the grantor intended to reserve the interest, the
Government has not rebutted the centerline presumption as to Claims 25A and 25B.

14
The Government particularly cites to “Parcel 23A and 23B.” ECF 25 at 40 n.4. The aerial imagery cited
by the Government is associated with Payne County Account Numbers: 600017685 and 600017687. See
ECF 18-28 at 4, 6. These Account Numbers are associated with Claim 23; therefore, the Court understands
the Government’s argument on this point to be in reference to Claim 23. ECF 16 at 4.
15
The Government makes a similar argument with respect to Claims 26 and 27. ECF 25 at 40. However,
because Claims 26 and 27 are not associated with conveyances transferring easements, the centerline
presumption does not apply. See Cuneo,
62 P.2d at 83
.

20
The Government additionally objects to the presumption’s application with respect
to Claim 25D, and alleges that the former Park Street, which was dedicated to the City of
Stillwater, underlays the corridor. ECF 25 at 40. Because the Canfield 600 Condemnation
associated with Parcel 9 is applicable to Claim 25D, it is possible that the centerline
presumption applies to portions of that land, absent a showing by the Government that
rebuts the presumption. See ECF 16 at 6-7; ECF 13-30 at 33. However, as discussed supra
Section IV, the parties have yet to agree on all of the applicable parcels and all of the source
conveyances associated with Claim 25D. See ECF 16 at 7 n.1. Because answering the
centerline presumption question requires resolving these unsettled issues, the Court finds
that further factual and legal development is necessary. With respect to the Canfield 600
Condemnation, the Court finds it conveyed an easement to the Original Railroad but the
Court reserves the centerline presumption issue for further proceedings.
Because the Government has not rebutted the centerline presumption with respect
to the Beavers, Wittum, Husband, Canfield 607, Palmour, and Donart Condemnations, the
Court finds that Plaintiffs own the associated portions of their properties up to the
centerline of the railroad corridor.
CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Partial Summary Judgment (ECF
18) is GRANTED IN PART and DENIED IN PART. Plaintiffs’ Motion is GRANTED
with respect to the claims or portions of claims arising from the Beavers, Wittum, Husband,
Canfield 607, Palmour, and Donart Condemnations, and those claims may proceed to the
next phase of litigation. Plaintiffs’ Motion is otherwise DENIED. The Government’s
Cross-Motion for Summary Judgment (ECF 25) is GRANTED IN PART and DENIED
IN PART. The Government’s Motion is GRANTED with respect to the claims or portions
of claims arising from the Farrar and Morris conveyances and the George, Harmon, and
Jones Deeds, and it is otherwise DENIED. The parties SHALL FILE a joint status report
within 14 days of the filing of this opinion, including a detailed proposal for further
proceedings.

IT IS SO ORDERED.

PHILIP S. HADJI
Judge

21

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