[00:00:00] Speaker 03: Cargo Coating Company versus US 17-2198. [00:00:30] Speaker 03: Councillor Smith, you reserved five minutes of your time, correct? [00:00:39] Speaker 03: That's correct, Your Honor. [00:00:41] Speaker 03: Okay, you may begin. [00:00:43] Speaker 02: May it please the Court, we are here to discuss the interpretation of two deeds in pursuit of Illinois law. [00:00:49] Speaker 03: Can you speak up just a little bit, please? [00:00:50] Speaker 02: Yeah. [00:00:51] Speaker 02: The two deeds are the Jones Deed and the Wilkins Deed, and the issue specifically is whether these two deeds convey fee symbols in the easement's pursuit of Illinois law. [00:01:00] Speaker 02: The case that controls the outcome with regard to both of these deeds is the Magnolia Petroleum Company versus West case. [00:01:09] Speaker 05: In the blue brief at 19, you say that simply because right of way appears outside the granting clause does not mean it can no longer suggest an easement was meant to be conveyed. [00:01:20] Speaker 05: I don't read the Court of Federal Claims opinion as holding [00:01:24] Speaker 05: that there could never be an easement if right-of-way appeared outside the granting clause. [00:01:28] Speaker 02: I believe that that was more of a response to the defendant's argument. [00:01:32] Speaker 02: OK, OK. [00:01:36] Speaker 02: And the back-of-way decision controls the outcome. [00:01:38] Speaker 03: So does the granting clause of the deed here control the outcome at all times? [00:01:44] Speaker 02: No, Your Honor, it does not. [00:01:46] Speaker 02: And specifically with regard to the use of the term the right-of-way, the only way decisions [00:01:53] Speaker 02: It is, particularly when it is within the granting clause, that it conveys an easement. [00:02:00] Speaker 02: Not certainly that it's within the granting clause. [00:02:03] Speaker 05: The government argues that there's no Illinois case where a deed which preys all interest in a grant clause conveys anything other than a fee simple. [00:02:17] Speaker 05: Do you have any authority in the other way? [00:02:19] Speaker 02: Well, the authority we have is the Tallman case. [00:02:22] Speaker 02: The Tallman case explains that an easement in Illinois can be held in less than its entirety. [00:02:28] Speaker 02: An easement in Illinois pursuant to Tallman can be held in the fee simple. [00:02:32] Speaker 02: The fee simple in the easement, all interest in the easement, that is the mean to be given all interest. [00:02:38] Speaker 02: It's an indication of the extent to which that easement is owned. [00:02:43] Speaker 02: It is, in this case, a fee simple in the easement. [00:02:46] Speaker 02: What does a railroad receive? [00:02:48] Speaker 02: Well, it receives an easement in totality, perpetuity, exclusivity. [00:02:54] Speaker 02: It's an indication of the extent of the duration and enjoyment of the easement. [00:03:00] Speaker 05: Do you agree that the right of reentry was never exercised? [00:03:03] Speaker 05: And if so, does that matter? [00:03:05] Speaker 02: It does not matter. [00:03:06] Speaker 02: I do agree that it was never exercised. [00:03:09] Speaker 02: The CFC and the defendant point to a lot of cases that concern [00:03:16] Speaker 02: or that concern these feasible determinals and rights of reentry and things of that nature. [00:03:22] Speaker 02: Why those cases are not critical to this analysis or should be not given weight is because they're outside the context of the things that are granted in these deeds. [00:03:33] Speaker 07: So we're using up a lot of your time sort of talking about generality. [00:03:38] Speaker 07: We haven't looked at the language of either one of the deeds. [00:03:41] Speaker 07: It would be helpful because that's what goes off here, right? [00:03:44] Speaker 07: It's the words that need to be helpful to me if you took, for example, the Jones deed, whichever one you want to take first, and just walked us through it and told us exactly why it's perfectly clear that there is an easement involved here and not a fee. [00:04:00] Speaker 07: Because that's what you have to do, right? [00:04:02] Speaker 02: Absolutely. [00:04:02] Speaker 02: Absolutely. [00:04:03] Speaker 02: And if we go to the Jones deed first, the Jones deed grants. [00:04:08] Speaker 07: So just for starters, can we agree that the granting clause is statutory in both cases? [00:04:16] Speaker 07: The statutory, I mean the way it works is that like in 1872, the Illinois legislature must have looked at some problems because the railroads going everywhere and nobody knew whether there were leases or fees. [00:04:28] Speaker 07: So they wrote a statute that said if you use certain language, it's presumed that you are conveying a fee. [00:04:36] Speaker 02: Right, although you might be assuming too much with the premise you are because just because they have this conveyances act doesn't necessarily mean that was only meant to apply to [00:04:46] Speaker 02: railroad against the supplies. [00:04:48] Speaker 07: What I'm saying, of course, what I'm saying is nobody's bothered to tell us how that law came about. [00:04:55] Speaker 07: And it's interesting to me that these leases were all struck within two or three years after the law was passed. [00:05:00] Speaker 07: So presumably, everybody and all the country lawyers knew about this, about the law. [00:05:05] Speaker 07: So you start off with your granting clause, has words in it that say to you there's now presumptively going to be a fee unless [00:05:16] Speaker 07: you can demonstrate from the balance, assuming that the granting clause itself didn't say an easement, right? [00:05:27] Speaker 07: Yes. [00:05:28] Speaker 07: Which is not the case here, right? [00:05:30] Speaker 07: You argue that in Jones, I know your argument that the granting clause does contain it, because the way it describes the property. [00:05:36] Speaker 07: But what in the balance of these two deeds shows that it was clearly an easement and not a fee? [00:05:44] Speaker 02: Well, first of all, let's talk about the statutory phrase, conveying worry. [00:05:47] Speaker 02: That is, it doesn't give rise to it. [00:05:50] Speaker 07: You don't want to avoid talking about what's in the text. [00:05:52] Speaker 02: Oh, no, I do. [00:05:53] Speaker 02: I just want to qualify the conveying worry first. [00:05:55] Speaker 02: It is a term like any other term in the deed. [00:05:58] Speaker 02: It is important, but it also must be, it's not to be given to undue weight in this analysis. [00:06:05] Speaker 02: It does give rise to its assumption. [00:06:06] Speaker 07: No, I understand. [00:06:07] Speaker 07: It sets up just a presumption. [00:06:09] Speaker 07: It's a process tool. [00:06:13] Speaker 07: But it says to you that the law, the statute says, if you've used these magic words, which you agree were both used in both these cases, then the burden is on you to demonstrate where, in the balance of the instrument, it is clear that an e is not a fee was intended. [00:06:33] Speaker 02: Correct. [00:06:33] Speaker 02: Well, after conveying what we enter into, by the language of the deed, where we get an overwhelming number of indications [00:06:40] Speaker 03: Can you overcome that presumption only by language that's contained in the granting clause? [00:06:46] Speaker 02: No, you do not. [00:06:49] Speaker 02: That's exactly... So let's look at the Jones Deed then. [00:06:54] Speaker 03: It conveys in the granting clause all interest, correct? [00:06:59] Speaker 03: Yes. [00:06:59] Speaker 03: Does that raise a presumption that it's conveying a fee interest? [00:07:03] Speaker 02: The granting convey gives that presumption. [00:07:06] Speaker 03: I'm sorry? [00:07:07] Speaker 02: The phrase convey and warrant, excuse me. [00:07:09] Speaker 02: It's conveying more. [00:07:10] Speaker 02: It gives rise to the assumption. [00:07:12] Speaker 02: All interest does not give rise to an assumption. [00:07:14] Speaker 07: All interest... Well, all interest is in the statute. [00:07:17] Speaker 07: The statutory language includes all interest. [00:07:21] Speaker 02: No, the only statutory language that's present indeed is... But have you got the statute? [00:07:26] Speaker 07: It's in the back of the government's memory. [00:07:31] Speaker 07: So we know what you're talking about. [00:07:46] Speaker 07: So on page 45 of their tradition, in the granting clause, the grantor convey and quit claim all interest in the following described real estate. [00:08:01] Speaker 07: So that's the statutory language. [00:08:03] Speaker 02: Yes, I understand. [00:08:05] Speaker 02: Right. [00:08:05] Speaker 02: Well, again, all interest can simply [00:08:08] Speaker 02: Here's the thing. [00:08:09] Speaker 02: It's when we talk about all interests, we still have to find all interests in what? [00:08:13] Speaker 02: What are we granting here? [00:08:14] Speaker 02: What real estate is being rented? [00:08:16] Speaker 02: Real estate, in a way, is a very general term. [00:08:19] Speaker 02: It doesn't really have any meaning whatsoever. [00:08:22] Speaker 02: The real estate, when we find out what exact real estate is being conveyed immediately after the term real estate, the right of way for rare purposes over and across a strip of land, that's the definition of the real estate being conveyed. [00:08:34] Speaker 02: The right of way. [00:08:35] Speaker 02: right away in Illinois, synonymous with easement, an easement is conveyed. [00:08:40] Speaker 07: The whole debate is whether or not what follows the granting clause is describing the property or whether it's the interest itself. [00:08:46] Speaker 07: Correct. [00:08:47] Speaker 07: And then that's the question you have to resolve. [00:08:50] Speaker 07: And just to sort of cut to the chase to get some parameters here, because we're going around in general circle, to sort of let you know sort of where I'm from, is it seems to me that this deed, John's deed, looks a lot like Sauer's. [00:09:03] Speaker 07: Because what it is, there is an existing right of existing railroad running over the property. [00:09:08] Speaker 02: There is a compelling difference between the Sowers Deed and the Jones Deed. [00:09:11] Speaker 02: And that is that in the Jones Deed, the interest is said to be limited to a particular purpose, railroad purposes. [00:09:19] Speaker 07: Well, but you've got running against you. [00:09:21] Speaker 07: You've got a homestead restriction in your deed, which is harmful to you. [00:09:26] Speaker 01: Not particularly so. [00:09:28] Speaker 07: Well, does the Homestead law deal with easements, reclaiming easements? [00:09:33] Speaker 01: Well, here's why. [00:09:35] Speaker 07: Yes or no? [00:09:36] Speaker 01: I don't know the answer. [00:09:37] Speaker 01: You don't know the answer to that question? [00:09:39] Speaker 01: No, I've not reviewed the Homestead. [00:09:41] Speaker 01: It's central in your case. [00:09:43] Speaker 07: Because if there's a Homestead retrieval, that's highly suggestive of the fact that it was a fee. [00:09:48] Speaker 02: That is not correct. [00:09:50] Speaker 02: It is not that suggestive of the conveyance of a fee symbol. [00:09:53] Speaker 02: Because again, we have to consider the context of this transaction. [00:09:56] Speaker 02: What are we transferring here? [00:09:57] Speaker 07: Just as a general proposition in the law, my understanding and my research was that the existence of the homestead exemption provision in the deed was highly suggestive of the fact that you were trying to reclaim a fee. [00:10:09] Speaker 02: No, I disagree. [00:10:10] Speaker 02: I don't think it's highly suggestive. [00:10:11] Speaker 02: I think it is another element, like all the others. [00:10:14] Speaker 02: It does not carry the day. [00:10:15] Speaker 02: And furthermore, if we think about what is being conveyed... There's case law on that subject, right? [00:10:20] Speaker 07: There's a case law on that subject? [00:10:22] Speaker 07: on the importance of the Homestead provision? [00:10:25] Speaker 02: Well, what we see among the decisions is that even when it appears in deeds they grant feasible or reasonable, it's not really addressed as essential. [00:10:33] Speaker 07: It's not necessarily dispositive. [00:10:34] Speaker 07: I certainly agree with you that. [00:10:36] Speaker 02: I think it's very little weight because we just don't see it come up. [00:10:40] Speaker 02: We don't see it come up in the discussions of all these many rural cases that we have. [00:10:44] Speaker 02: Besides that, Your Honor, with regard to... But it's something you have to live with in the mix. [00:10:49] Speaker 02: Yes, because at the end of the day, what we have here is an overwhelming number of easement factors. [00:10:53] Speaker 02: The Jones Deed. [00:10:54] Speaker 02: The right of way is granted. [00:10:55] Speaker 02: The right of way is not in this easement. [00:10:57] Speaker 02: We know that it's limited to a specific purpose, rarer purpose. [00:11:00] Speaker 05: You have to read the entire document as a document. [00:11:04] Speaker 02: Oh, absolutely. [00:11:05] Speaker 05: And that's why. [00:11:07] Speaker 05: To evidence the intent of the parties. [00:11:09] Speaker 02: Absolutely. [00:11:10] Speaker 05: That's your whole argument. [00:11:11] Speaker 02: Absolutely. [00:11:12] Speaker 02: And because we have so many. [00:11:14] Speaker 02: This is really an overwhelming number of easement factors that are present in this deed. [00:11:18] Speaker 02: not only is it limited to its specific purpose, we also know that the interest is said to run over and across land. [00:11:25] Speaker 02: An interest in land cannot move over and over. [00:11:27] Speaker 07: Well, that's also describing what's on the land at the time the Joneses did it, was some track with a river running over it. [00:11:33] Speaker 02: But even in the Sowers decisions, the various other decisions too, or the Diaz decision and the McVeigh decision, all these things, in all those cases too, it's consistently referencing [00:11:46] Speaker 02: the right-of-way located, or here's where the right-of-way is. [00:11:51] Speaker 02: This is not the party's announcing where the railroad is. [00:11:59] Speaker 02: This is the party's limiting the estate. [00:12:01] Speaker 02: This is the description of the estate. [00:12:04] Speaker 07: These two, the Jones deed and the Wilkins deed, is this contiguous property? [00:12:11] Speaker 02: No, it is not. [00:12:11] Speaker 02: I believe they're separated by several blocks. [00:12:15] Speaker 07: By several blocks. [00:12:16] Speaker 07: Yes. [00:12:17] Speaker 07: But they're close together. [00:12:19] Speaker 02: I think it's an approximately two mile long stretch of road probably. [00:12:24] Speaker 07: I was curious in the Wilkins deed, there's a reference to the appurtenances that are going along. [00:12:31] Speaker 07: Do we know what the appurtenances were? [00:12:33] Speaker 07: The appurtenances were intuitive. [00:12:34] Speaker 02: No, I don't. [00:12:36] Speaker 02: No, we don't. [00:12:36] Speaker 02: We didn't really engage in that. [00:12:37] Speaker 07: And they refer to the fact that you shall maintain a station. [00:12:41] Speaker 07: Does that suggest there was a station on the property already? [00:12:45] Speaker 07: And the importance is maybe we're track? [00:12:48] Speaker 02: No, it doesn't. [00:12:50] Speaker 07: Well, do we know? [00:12:51] Speaker 07: I mean, I'm just asking you that question. [00:12:53] Speaker 02: Oh, no, we don't know. [00:12:54] Speaker 01: We don't have the answer. [00:12:56] Speaker 05: What's the impact of having any kind of reversionary interest on a fee simple? [00:13:03] Speaker 02: The impact of reversionary in a fee simple in the easement, is that what you're referring to? [00:13:10] Speaker 05: No, in a fee simple, any kind of fee simple. [00:13:13] Speaker 05: Is it a fee simple if there's a reversionary interest? [00:13:17] Speaker 02: No, that's not a matter of certainty. [00:13:20] Speaker 02: Again, it matters about the context that we're talking about. [00:13:22] Speaker 02: If we're talking about a reversion as it applies to a parcel with a building on top, that is one thing. [00:13:29] Speaker 02: But when we start to think about the conveyance of strips of land for their purposes, rights for reversion, rights for entry, those things take on [00:13:37] Speaker 02: different meaning. [00:13:38] Speaker 02: We already have the party saying that they want the party plan to be used for a particular purpose. [00:13:45] Speaker 02: They say, use it for a particular purpose or else. [00:13:48] Speaker 02: Or else what? [00:13:49] Speaker 02: I get to come in there and exercise my right of entry. [00:13:52] Speaker 02: This is an indication not that they're conveying the fee symbol. [00:13:55] Speaker 02: When these things are transferred in the context of a railroad, they take on different meaning. [00:14:02] Speaker 02: They're talking about, [00:14:03] Speaker 02: The fact that they've limited the use of the strip of land for a particular purpose, and if you use it outside that purpose, it's not effective. [00:14:10] Speaker 02: That's what an easement is, to use the land for a particular purpose. [00:14:14] Speaker 02: If they go outside of that, then it makes sense for a grantor to insist that he goes back to it. [00:14:19] Speaker 03: So in the Jones deed, what are the express words that indicate and tend to convey an easement? [00:14:29] Speaker 03: And the problem I have is, [00:14:30] Speaker 03: The granting clause says all interest. [00:14:32] Speaker 03: And to me, that's fee interest. [00:14:34] Speaker 03: Now, you have to overcome that. [00:14:35] Speaker 03: And you say you look at the rest of the deed. [00:14:38] Speaker 03: And I want you to point to the express language in the deed that would help you overcome that presumption. [00:14:46] Speaker 02: All interest in the real estate. [00:14:48] Speaker 02: What is the real estate? [00:14:49] Speaker 02: The right of way. [00:14:50] Speaker 02: The right of way is synonymous with easement. [00:14:53] Speaker 02: If it's a grant of all interest in the land, it makes no sense then for the [00:14:58] Speaker 02: for the deep defense state that is limited to rarer purposes. [00:15:01] Speaker 02: If it's held for all purposes, it makes no sense to identify what purpose it should be used for. [00:15:06] Speaker 02: If that wasn't enough, which it is, the interest itself is said to run over and across something. [00:15:16] Speaker 05: I think your key word is but, as in but this grant is upon express conditions. [00:15:24] Speaker 02: Yes. [00:15:24] Speaker 02: I mean, I think taken together, when you have [00:15:27] Speaker 02: It's just a clear indication of how it's to be used and if it's going to be used. [00:15:32] Speaker 02: But if it's used for a different purpose, it's said to revert. [00:15:35] Speaker 02: That is very compelling. [00:15:36] Speaker 02: These things were really adding up in the Jones-D and the Wilkins-D for this matter. [00:15:41] Speaker 02: Notwithstanding this, even if we take a step back and just look at the fact that this is a grant of a narrow strip of land and it's limited to a specific purpose, and we look at the Magnolia decision, [00:15:52] Speaker 02: based upon those two characteristics and only those two characteristics, that court held that... Well, the condition cuts either way. [00:16:00] Speaker 07: I mean, the condition works whether it's a fee or an easement. [00:16:03] Speaker 02: But it makes much more sense if we give it the meeting. [00:16:07] Speaker 07: Well, when they put it in, they're talking about they're going to re-enter the prophecies to own, meaning they somehow lost ownership. [00:16:16] Speaker 02: Well, that's because when we talk about fee symbols and easements, we need to realize that we're talking about a railroad... You don't own an easement? [00:16:25] Speaker 02: A railroad purposes easement is very nearly the same thing as fee ownership, because the railroad, what can it do? [00:16:30] Speaker 07: All I'm just doing is the data points, the fact that in this clause, and I think, as Judge Walt correctly pointed out, it's important and we have to look at it. [00:16:39] Speaker 07: You have a situation where they're saying, well, by the way, if you don't do this, we'll come in because we want to own, we're going to... [00:16:46] Speaker 07: take back ownership. [00:16:48] Speaker 07: And then they also have, you've got to live with the homestead issue. [00:16:52] Speaker 02: Right. [00:16:52] Speaker 02: And the homestead exemption makes sense, because the railroad gets... Homestead issue only makes sense if you were granting a fee. [00:17:01] Speaker 02: No, it makes sense if you're granting an easement, because the railroad, when it attains a fee symbol and the easement, it... We'll hear from your adversary on that. [00:17:10] Speaker 07: I think I disagree with you on the effect of [00:17:13] Speaker 07: of the homestead language in the day. [00:17:15] Speaker 03: Okay. [00:17:15] Speaker 03: You're well into your rebuttal time, but we're going to restore you rebuttal time because we've kept you. [00:17:21] Speaker 03: So let's hear from the other side now. [00:17:26] Speaker 03: Thank you. [00:17:26] Speaker 03: Mr. Thomas. [00:17:36] Speaker 00: Me and police support. [00:17:37] Speaker 00: Good morning. [00:17:37] Speaker 00: I'm Edward Thomas. [00:17:38] Speaker 00: With me is Erica Krantz from the Department of Justice who represent the United States. [00:17:42] Speaker 00: The court claims in this case correctly held that the two deeds at issue, the Jones Deed, which we discussed a little bit, and the Wilkins Deed both convey fee simple. [00:17:50] Speaker 00: For that reason, we ask this court to affirm. [00:17:52] Speaker 00: I'll address each deed separately as we're going through. [00:17:55] Speaker 00: And I'll give you four reasons in the Jones Deed that the court should find that that deed conveyed fee simple. [00:17:58] Speaker 03: When you read the Jones Deed, there's some language, the all interest, that to me indicates the convenience of a fee interest. [00:18:09] Speaker 03: But all the other language seems to point to [00:18:12] Speaker 03: it not being a fee interest. [00:18:16] Speaker 00: Well, I disagree. [00:18:17] Speaker 00: So the all interest, as has already been pointed out, there's no case in Illinois that I have found or have been cited where that conveys easement. [00:18:23] Speaker 00: So we have that issue already. [00:18:25] Speaker 00: We have the statutory language. [00:18:26] Speaker 00: So all interest is in the statute. [00:18:29] Speaker 00: It is in the statute. [00:18:30] Speaker 00: But what we see in the cases is that oftentimes they don't include all interest. [00:18:34] Speaker 00: For example, the DS case, which is cited in plaintiff's reply here. [00:18:37] Speaker 00: There they convey a quick claim, but they take out all interest. [00:18:40] Speaker 00: It's not there. [00:18:41] Speaker 00: And they're put as and for right of way. [00:18:42] Speaker 00: They put over and across all in the granting clause. [00:18:45] Speaker 00: And so it's significant that they included all interest here, because the statute states that when it's- So if the words all interest are used, and it's open and shut, that's it? [00:18:54] Speaker 03: It's a fee interest? [00:18:56] Speaker 03: There's nothing else in the deed that can indicate otherwise? [00:19:00] Speaker 00: In this instance, yes. [00:19:02] Speaker 00: It should be over and done with that. [00:19:04] Speaker 00: And I'll get to all the other points on that. [00:19:05] Speaker 00: But in the statute, [00:19:07] Speaker 00: It states that when it has this language, it means all the then existing or equitable rights of the grantor. [00:19:14] Speaker 00: So it's giving everything. [00:19:16] Speaker 00: And there's no indication that the grantor here held anything less than fee simple. [00:19:20] Speaker 00: That's not there. [00:19:21] Speaker 00: So it's everything the grantor had. [00:19:22] Speaker 00: And we've cited several cases in different contexts. [00:19:25] Speaker 00: That's the Illinois Supreme Court case and the Floss case stating that when these words, this all interest, it has a broader signification than all the right, title, and interest. [00:19:35] Speaker 00: And we cited other cases as well along that same line. [00:19:37] Speaker 05: Let me ask you this. [00:19:40] Speaker 05: You state that even if the wording of the subject deeds were ambiguous, the actions of the railroad and of the plaintiff's predecessors plainly demonstrate the parties intended to convey fee title, and then you present purportedly supportive extrinsic evidence. [00:20:01] Speaker 05: If we find the Jones deed ambiguous, for example, [00:20:04] Speaker 05: Should we remand to the Court of Federal Claims in the first instance, consider that extrinsic evidence? [00:20:10] Speaker 05: I mean, if not, what authority permits us to consider that evidence in the first instance? [00:20:17] Speaker 00: Well, this is de novo review. [00:20:18] Speaker 00: And so you're able to look at all this, everything that was in the record, and make the legal conclusion as to whether they had... Extrinsic evidence. [00:20:25] Speaker 00: Which was already before the Court of Federal Claims. [00:20:27] Speaker 00: You're right, it's in the record. [00:20:28] Speaker 00: We put it in here for your consideration. [00:20:30] Speaker 00: And you can consider that. [00:20:32] Speaker 00: I don't think you get there. [00:20:33] Speaker 00: It's the first point. [00:20:34] Speaker 00: I don't think we need to get there, just like the Court of Federal Claims found that there was no ambiguity here. [00:20:39] Speaker 00: I simply pointed out, because one of the main cases relied on by plaintiffs in this case is the Magnolia case. [00:20:47] Speaker 00: And there, we have a different situation. [00:20:50] Speaker 00: We have them state a command warrant, so it's the warranty deed, statutory form, description, and then it says to be used as for road purpose. [00:20:58] Speaker 00: And that court said that the single issue before them was whether or not that was restrictive or that was merely descriptive of anticipated use and not restrictive. [00:21:09] Speaker 00: They couldn't make that determination. [00:21:10] Speaker 00: And so they looked at extrinsic evidence to make that determination because it was ambiguous in their determination. [00:21:17] Speaker 00: And then they looked at the extrinsic evidence. [00:21:18] Speaker 00: That means the contemporaneous and the subsequent acts [00:21:22] Speaker 00: And one of the things they looked at, which is cited in our brief, is a subsequent act by the heirs of the grantee, where they didn't the same fee. [00:21:28] Speaker 00: And we have that exact same situation here, which is why we put it before the Court of Federal Claims and also before this Court. [00:21:36] Speaker 07: On your theory, then, are all these cases ambiguous? [00:21:39] Speaker 00: Oh, no. [00:21:39] Speaker 00: I don't believe this is ambiguous at all in this case. [00:21:41] Speaker 06: You don't think they have any argument at all, the other side? [00:21:45] Speaker 00: Well, they certainly have an argument, and we debate on these things all the time. [00:21:49] Speaker 07: I thought the way you said the ambiguity came up in Magnolia was there was an ambiguity between whether or not this was descriptive or whether it was granted. [00:21:58] Speaker 07: That's the very debate we have here. [00:22:00] Speaker 00: You're exactly right on that. [00:22:01] Speaker 00: So the cardinal rule in Illinois is to ascertain the intention of the parties. [00:22:05] Speaker 00: And we look at the four corners of the deed, right? [00:22:07] Speaker 00: That's where we start. [00:22:08] Speaker 00: And so we have to look at the four corners of the deed. [00:22:10] Speaker 00: And in these deeds, we have [00:22:13] Speaker 00: other factors showing us exactly why they're doing what they're doing. [00:22:16] Speaker 00: And so we look at the Jonesy first. [00:22:18] Speaker 00: We have statutory language. [00:22:19] Speaker 00: We have all interests. [00:22:21] Speaker 00: But beyond that, we also have a very important point here. [00:22:24] Speaker 03: Is a term right away for trial road, is that considered to be in the granting clause? [00:22:30] Speaker 06: In the Jonesy, no, it's not. [00:22:33] Speaker 06: You say it's not. [00:22:34] Speaker 06: They say it is. [00:22:35] Speaker 05: In fact, it's definitional, is it not? [00:22:38] Speaker 00: Well, let's look at the deed. [00:22:39] Speaker 00: So this is Appendix 211. [00:22:41] Speaker 05: It defines real estate. [00:22:44] Speaker 05: The grantors convey the following described real estate to wit colon, the right of way for railroad purposes. [00:22:56] Speaker 00: Sure. [00:22:56] Speaker 00: So looking at Dependix 211, we have this. [00:22:59] Speaker 00: So you see it clearly marks on this. [00:23:03] Speaker 05: So the language following the colon is limiting, right? [00:23:06] Speaker 00: No. [00:23:06] Speaker 00: No. [00:23:06] Speaker 00: That's the legal description of the property. [00:23:08] Speaker 00: We see this in all these deeds. [00:23:10] Speaker 00: And so it can be limiting. [00:23:12] Speaker 00: So it depends on what we determine those terms are doing, right? [00:23:17] Speaker 07: Let me point out first all the... How important is it to you that in the Jones case there was a railroad running over right away at the time the deed was signed? [00:23:29] Speaker 00: Extremely important, because that's the context of the deed. [00:23:32] Speaker 00: So that's what I'm about to point out here. [00:23:34] Speaker 07: When they say the real estate to width, they're pointing to, in your view, they're actually pointing to the tracks that are on the ground. [00:23:41] Speaker 00: That's right. [00:23:41] Speaker 00: It's a mistake to read this without reading the whole entire description, right? [00:23:44] Speaker 00: And so in the description, after it says all interests in the following described real estate to width, colon, then separate paragraph, the right of way for rower purposes over and across what? [00:23:53] Speaker 00: A strip of land, 50 feet in width, being 25 feet on either side of the center line, known as? [00:24:00] Speaker 00: the Chicago and Southern Railroad as now located. [00:24:03] Speaker 00: So this is already built. [00:24:04] Speaker 00: They're referring to it. [00:24:04] Speaker 03: Doesn't that say that the railroad's built on the right-of-way, that the right-of-way is existing? [00:24:11] Speaker 00: It's saying that the right-of-way is known as the Chicago and Southern Railroad. [00:24:14] Speaker 00: That's what it is. [00:24:15] Speaker 00: That's what we refer to it as. [00:24:17] Speaker 07: It's built on the physical meets and bounds of dirt. [00:24:22] Speaker 05: So you're looking at the intention of the parties. [00:24:26] Speaker 05: Exactly. [00:24:28] Speaker 05: And following what we're talking about, [00:24:30] Speaker 05: is the next paragraph, which begins with the word, as I pointed out, to your opposing counsel. [00:24:34] Speaker 05: But this grant is upon the express conditions. [00:24:39] Speaker 05: And those conditions, according to your opposing counsel, are not met. [00:24:44] Speaker 00: They're not. [00:24:45] Speaker 00: This is an important point. [00:24:46] Speaker 00: I'm glad you raised this. [00:24:47] Speaker 00: So in Illinois, we have fee simple, subject to condition, subsequent. [00:24:51] Speaker 00: And this is important because this is the Marriott-Holtz case, the 1981 decision. [00:24:55] Speaker 00: It holds that those type of finances are absolute grants. [00:24:58] Speaker 00: It states that, absolute grants. [00:25:00] Speaker 00: And so we look at this, is it a few simple subjective conditions subsequent? [00:25:03] Speaker 00: Well, of course it is, because here we have an express condition that the grand tour, when they're making this conveyance to the railroad, they want something here. [00:25:10] Speaker 00: In Jones, they want passenger trains going to and from downtown Chicago so they have access. [00:25:15] Speaker 00: It states that in the deed. [00:25:17] Speaker 00: And if that's not met, they hold their feet to the fire and say, hey, we have a way to enforce this. [00:25:21] Speaker 00: That's their express condition. [00:25:23] Speaker 07: They want it back whether it was an easement or a fee, right? [00:25:27] Speaker 00: I assume that they would. [00:25:29] Speaker 00: I don't know. [00:25:29] Speaker 07: The thing that Judge Wallach is pointing to is to say, well, there was a condition here and the condition wasn't met because the railroad didn't do what it was supposed to, right? [00:25:37] Speaker 07: The consequence of the railroad not doing what it was supposed to if the landowner had wanted to complain would have been to take back whatever it was, whether it was the fee or whether it was the easement. [00:25:50] Speaker 07: Well, it seemed to me that the condition doesn't tell you whether the original grant was a fee or an easement. [00:25:56] Speaker 07: It just tells you what happens if you don't satisfy it. [00:26:01] Speaker 07: Right? [00:26:02] Speaker 00: Well, this point's important, because in fee simple subject to condition substance, we always have a penalty. [00:26:08] Speaker 05: Why isn't it a condition precedent to keeping the land? [00:26:12] Speaker 05: And how does the role against perpetuity apply? [00:26:17] Speaker 00: Here, Illinois has a statute of repose, right? [00:26:20] Speaker 00: And in the statute of repose, they say, we don't like this language anymore as a matter of law. [00:26:24] Speaker 07: The Joneses didn't come back and complain and say, I'm taking back whatever it was we gave you. [00:26:29] Speaker 00: And as a factual matter, the railroad appears to have had passenger trains going to and from for some time, but they stopped in the early 1900s. [00:26:35] Speaker 00: And so at some point, they stopped complying with this language. [00:26:41] Speaker 00: But it's very important to look at the reversionary interest, which is brought up by the court. [00:26:46] Speaker 00: Because there's an automatic reversion sometimes, and then there's a permissive reversion. [00:26:50] Speaker 00: Here we have a permissive one where they actually have to come back in and reassert themselves. [00:26:55] Speaker 00: If they already owned the property, they wouldn't have stated right to reenter and to own, because they would have already owned it. [00:27:02] Speaker 00: And we see that in easements. [00:27:03] Speaker 00: We see sometimes possibilities of revertor, but it states shall revert, or there's some sort of automatic operation. [00:27:09] Speaker 00: And that's not what we have here, because this is the fee simple deed. [00:27:13] Speaker 00: In addition to that, we have the exemption of the homesteads, which would be the fourth reason. [00:27:16] Speaker 00: So statutory form, all interest, the condition subsequent with that penalty that's not automatic reversion, and the exemption of the homesteads is waived in this committee. [00:27:26] Speaker 07: Do you find the homestead exemption language in clear conveyances of easements? [00:27:33] Speaker 00: Rarely. [00:27:34] Speaker 00: Rarely. [00:27:36] Speaker 00: And so we have, for example, in the Sowers case, we have 28 deeds there. [00:27:39] Speaker 00: All of them have the exemption of the homesteads. [00:27:41] Speaker 00: And they found all of the Murphy's Symbol, Urbitus, which is the most recent Supreme Court case in Alabama. [00:27:46] Speaker 07: Saras was also a case where there was an existing railroad running over the property. [00:27:50] Speaker 00: Exactly. [00:27:51] Speaker 07: So what I'm describing, I'm trying to describe, I'm looking out my window. [00:27:56] Speaker 07: I'm making a conveyance to you of something. [00:27:58] Speaker 07: I'm looking out the window. [00:27:59] Speaker 07: I'm not going to describe to you what it is. [00:28:00] Speaker 07: Well, it's a right-of-way running over 50 feet of my property, right? [00:28:05] Speaker 00: Yeah, no, that's exactly right. [00:28:07] Speaker 00: It is an important distinction in Sowers here as well, because it's already there. [00:28:10] Speaker 00: They're referring to it as right-of-way. [00:28:11] Speaker 00: And that's a distinction in Illinois. [00:28:13] Speaker 00: It's a two-part test, right? [00:28:14] Speaker 00: Is right-of-way restrictive, or is it merely descriptive of what's already there, the roadway being used by the railroad in that case? [00:28:26] Speaker 00: I turn to the Wilkins deed. [00:28:29] Speaker 05: You appear to acknowledge that Wilkins is similar to the date in Magnolia Petroleum. [00:28:36] Speaker 00: No, no, I don't know that I'd say that. [00:28:39] Speaker 00: I say Wilkins' Deed is an easier case than the Jones' Deed in many respects. [00:28:44] Speaker 00: I cite to Magnolia in there because there's purpose language. [00:28:48] Speaker 00: And so that's the only reason. [00:28:49] Speaker 04: Magnolia found the Deed conveyed in an easement. [00:28:53] Speaker 00: It did there after examining extrinsic evidence. [00:28:56] Speaker 00: Yes. [00:28:57] Speaker 05: But in the Wilkins' Deed... If Magnolia is distinguishable, is there any extrinsic evidence that [00:29:04] Speaker 05: that we have to send it back to be examined? [00:29:08] Speaker 00: On Wilkins. [00:29:09] Speaker 05: Yeah, on Wilkins. [00:29:11] Speaker 00: On Wilkins. [00:29:11] Speaker 00: Well, we have the evidence that was before the trial court, before this court, that you can look at. [00:29:16] Speaker 00: It's whether or not this is a legal determination, whether or not the plaintiff's having compensable property interest. [00:29:22] Speaker 00: That's a legal determination, and we've offered some additional evidence for it. [00:29:26] Speaker 07: I think what both of us are asking is that we're aware of what the extrinsic evidence was in Magnolia. [00:29:33] Speaker 07: It was all the conduct of the parties and what they did afterwards. [00:29:37] Speaker 07: Is there evidence of a like-kind with regard to the Wilkins? [00:29:42] Speaker 00: Oh, yes. [00:29:43] Speaker 00: Yes, there is. [00:29:44] Speaker 07: And that's what I think we was asking. [00:29:46] Speaker 00: Well, with Jones, we have a couple different things. [00:29:49] Speaker 00: At Wilkins, we have the same issue. [00:29:51] Speaker 00: So you've asked whether these properties were contiguous. [00:29:53] Speaker 00: They're not. [00:29:54] Speaker 00: There's a few parcels in between them. [00:29:56] Speaker 00: But it is the same line. [00:29:57] Speaker 00: And we saw that after Jones' deed, so this is 12 years after the Jones' deed, [00:30:02] Speaker 00: We have the grantee railroad company who has conveyed fee simple to another railroad company and they felt confident enough to give a warranty. [00:30:11] Speaker 06: We're asking about Wilkins. [00:30:13] Speaker 06: Same. [00:30:14] Speaker 06: It's the same extrinsic evidence because this is the same line. [00:30:17] Speaker 06: So what happened was the railroad later on conveyed it off. [00:30:21] Speaker 06: They conveyed it all. [00:30:22] Speaker 06: Not just this portion. [00:30:23] Speaker 06: It's a much longer strip. [00:30:24] Speaker 07: Do you know what the word appurtenances was meant to mean? [00:30:29] Speaker 07: to define in Wilkins D? [00:30:31] Speaker 00: Well, there's several things that it might mean. [00:30:33] Speaker 00: So the Wilkins D, they state that, hey, we want a station. [00:30:37] Speaker 00: We want it built at Kenzi Avenue. [00:30:39] Speaker 07: We want a permanent station. [00:30:40] Speaker 00: A permanent station built at Kenzi Avenue and Swift Street. [00:30:43] Speaker 06: Suggesting that there might have been a temporary station there earlier? [00:30:47] Speaker 06: There wasn't one, no, at that location. [00:30:51] Speaker 00: There was one several blocks away later. [00:30:54] Speaker 00: But there wasn't one at this time. [00:30:56] Speaker 00: And that's one of the reasons they wanted this. [00:30:57] Speaker 00: They said, we want you to build this within a certain period of time. [00:31:00] Speaker 00: Push up our property value. [00:31:02] Speaker 00: Exactly. [00:31:02] Speaker 00: And we actually see the subdivision. [00:31:03] Speaker 07: No, they talk about you shall maintain and use the station. [00:31:07] Speaker 07: It wasn't suggested that there was an existing one. [00:31:09] Speaker 00: No. [00:31:10] Speaker 00: So they needed to build it and maintain it. [00:31:11] Speaker 00: You're right. [00:31:12] Speaker 00: And they needed to have passenger trains going to and from the city of Chicago. [00:31:15] Speaker 07: Oh, I'm trying to guess. [00:31:16] Speaker 07: I don't simply know whether or not the rails that were running over Jones [00:31:21] Speaker 07: We're also running over a Wilkins. [00:31:24] Speaker 07: I just don't know that. [00:31:24] Speaker 00: It appears that it wasn't built yet in the Wilkins deed. [00:31:28] Speaker 00: It's a three-year gap between those two deeds. [00:31:31] Speaker 03: Was there an agreement that Wilkins and Jones are unambiguous before the court of federal court? [00:31:38] Speaker 00: We argued it was not ambiguous, and so did plaintiffs in that case. [00:31:42] Speaker 00: And the court found that it wasn't ambiguous and decided it on the four corners of the deed. [00:31:46] Speaker 07: Both of you were arguing no ambiguity, right? [00:31:48] Speaker 00: No ambiguity. [00:31:49] Speaker 00: I simply put it forth in case. [00:31:50] Speaker 07: Well, I can understand why he doesn't want ambiguity. [00:31:54] Speaker 07: He doesn't want the intrinsic evidence. [00:31:58] Speaker 00: So beyond that, in the Wilkins deed, we have this convey and warrant. [00:32:03] Speaker 00: And an important point, there's no limiting language in that granting clause. [00:32:06] Speaker 00: It wasn't conveying and warranting a certain strip or parcel of land. [00:32:10] Speaker 00: This isn't the right in land. [00:32:11] Speaker 00: This is a strip of land, the important distinction. [00:32:14] Speaker 00: And then also in the condition subsequent there, if they don't comply with all these things, they don't comply with charging $0.05 to the people that live in the subdivision, they don't comply with the number of trains, they don't comply with the time period, then the railroad has to reconvey by good and sufficient warranty. [00:32:31] Speaker 00: That is a very clear indication of fee simple. [00:32:35] Speaker 00: We have a Supreme Court case in Illinois stating that as much. [00:32:39] Speaker 00: And I see my time is up. [00:32:41] Speaker 00: We ask that this court affirm, because a trial court correctly held, that both of these deeds convey speech. [00:32:46] Speaker 03: OK. [00:32:47] Speaker 03: Thank you. [00:32:52] Speaker 03: Mr. Smith, we're going to restore five minutes of your rebuttal time. [00:33:06] Speaker 02: Thank you. [00:33:07] Speaker 02: Governor, looking at the Jones v. France [00:33:10] Speaker 02: for rarer purposes. [00:33:12] Speaker 02: This does not and cannot describe the land itself, the language, rarer purpose. [00:33:17] Speaker 02: The rarer purpose phrase cannot describe land. [00:33:19] Speaker 02: This is describing the limitation on land. [00:33:22] Speaker 02: It can only make sense if we give it the meaning of easement here. [00:33:25] Speaker 05: What about it being a condition subsequent as opposed to a condition perceived? [00:33:30] Speaker 02: That is the distinction between conditions subsequent or feasible to the terminal or feasible whatever the case may be. [00:33:39] Speaker 02: really doesn't matter here. [00:33:40] Speaker 02: The CFC and the government points to this decision called the Merrenholtz decision. [00:33:45] Speaker 02: They rely on it to a great extent. [00:33:47] Speaker 02: However, that decision is addressed completely in an actual railroad decision, the Diaz case. [00:33:54] Speaker 02: The Diaz case talks about these rights of reentry, these conditions subsequent to whatever they might be. [00:34:00] Speaker 02: It states in the Diaz case that these types of conditions can and do follow [00:34:06] Speaker 02: the grant, the grants of easements. [00:34:07] Speaker 02: It's very, very explicit here. [00:34:09] Speaker 02: The CFC did not, did not acknowledge this. [00:34:13] Speaker 02: It, it, it went on with the, proceeded with its analysis of the marital decision and completely ignored this case. [00:34:18] Speaker 02: This case controls this question of feasible determinants or what not and what their, and what their meaning is. [00:34:24] Speaker 02: The fact that these things are stated to run and be consistent with the grants of easement to, to, with Illinois law, it's what's controlling here. [00:34:34] Speaker 07: But at the time, both of these deeds were drawn. [00:34:37] Speaker 07: The people drawing the deeds were charged with knowledge that there was a statute in Illinois that said if you use certain words, there is presumptively going to be a fee transferred. [00:34:47] Speaker 07: And it is your obligation, if you don't want the fee transferred, to be very clear that you're transferring something other than a fee. [00:34:56] Speaker 07: Right? [00:34:57] Speaker 07: Those are the ground rules. [00:34:59] Speaker 07: Exactly. [00:34:59] Speaker 02: Those are the ground rules. [00:35:01] Speaker 02: Right. [00:35:03] Speaker 07: And if the words you used left some doubt about what it was, this all makes sense. [00:35:10] Speaker 07: If the words you used, even though you knew that you were presumptively, each both Jones and Wilkins, the Scriveners knew they were presumptively giving a fee and that they had an obligation to be clear if they didn't want it. [00:35:27] Speaker 07: If they were not entirely clear, if there was any debate, [00:35:31] Speaker 07: then extrinsic evidence would be brought in. [00:35:33] Speaker 02: But those are the rules, right? [00:35:39] Speaker 02: There's no debate here when it comes to railroad purposes. [00:35:44] Speaker 07: Even though we've been arguing back and forth for half an hour about the exact meaning of these words, it is perfectly crystal clear there's no ambiguity. [00:35:52] Speaker 07: There's no possible ambiguity. [00:35:53] Speaker 02: No, everybody knows what railroad purposes means. [00:35:56] Speaker 07: We know what... Well, of course everybody knows what the railroad purposes is. [00:36:00] Speaker 07: That's just a purpose clause. [00:36:01] Speaker 07: That could cut either way. [00:36:03] Speaker 07: Well, excuse me, you grant an easement for railroad purposes or you grant an easement for a jogging trail? [00:36:10] Speaker 07: Doesn't it make a difference if you want to say what your easement is going to be used for, you say it? [00:36:15] Speaker 02: Well, here's the thing. [00:36:16] Speaker 02: Those decisions that you're referencing... Right, yes. [00:36:20] Speaker 02: Don't fight me. [00:36:21] Speaker 02: When they're put into the consideration clause of the deed, that's just an indication of the motivation for these parties to make this transaction. [00:36:30] Speaker 02: That's how it plays out. [00:36:31] Speaker 07: You could want a railroad to be running over your land either for an easement or a fee. [00:36:36] Speaker 07: You don't care. [00:36:36] Speaker 07: I mean, what you're trying to do is to collect some money and you're going to get off the train and do things. [00:36:43] Speaker 07: It's all going to work, whether it was a fee or whether it was an easement. [00:36:45] Speaker 02: That's exactly right. [00:36:46] Speaker 02: It does work, whether it's a fee simple or an easement. [00:36:49] Speaker 02: That's because the railroad's railroad purposes easement is a very peculiar thing. [00:36:54] Speaker 02: It's very much just like the fee simple. [00:36:55] Speaker 02: They can do all sorts of things with it. [00:36:58] Speaker 02: lay track and whatnot, where they could put telephone poles up there or dig ditches. [00:37:02] Speaker 07: Well, unless there's restriction in the easement, they can do the same thing to the property as they would with a fee. [00:37:08] Speaker 02: Here's the key to this. [00:37:09] Speaker 02: If you really think that this is a close call, we obviously think it's as slandered as it can be. [00:37:16] Speaker 02: But if you think it's a close call, then you could look back to this Magnoi decision where they say, if the object of the transfer can be accomplished by granting the lesser estate [00:37:27] Speaker 02: then we will grant the lesser of state. [00:37:32] Speaker 02: OK. [00:37:32] Speaker 03: Thank you very much. [00:37:34] Speaker 03: That concludes our arguments this morning. [00:37:36] Speaker 03: This court is now in recess.