[00:00:00] Speaker 01:
All right, our last case for argument today is 24-1823, Presley versus United States.

[00:00:06] Speaker 01:
Mr. Adams, please proceed.

[00:00:08] Speaker 04:
Good morning and may it please the court, John Adams on behalf of the United States.

[00:00:12] Speaker 04:
The Court of Federal Claims in this case committed reversible error when it granted judgment to plaintiffs on takings claims for two segments of an Indiana railroad corridor at issue in this appeal.

[00:00:24] Speaker 04:
The first segment concerns the Manship Decree.

[00:00:27] Speaker 04:
In summary, manship is an Indiana trial court decision from 1907 that both quieted title to the same piece of property at issue in this appeal and expressly held that the railroad had fee simple title to the land.

[00:00:41] Speaker 04:
This would settle the matter for the first segment.

[00:00:44] Speaker 04:
In holding that the railroad instead obtained a prescriptive easement, the court of federal claims misapplied the manship decree and in so doing stumbled into a full faith in credit error.

[00:00:54] Speaker 02:
Thus, as to the- What really happened here, the Court of Federal Claims read the Manship Decree differently than you read it.

[00:01:01] Speaker 02:
It read it as finding that the railroad had a fee simple only in an easement and not in land.

[00:01:11] Speaker 02:
Isn't that how the Court of Federal Claims interpreted and gave full faith and credit to that interpretation of what the Manship Decree was doing?

[00:01:20] Speaker 04:
I don't think so, Your Honor.

[00:01:21] Speaker 04:
Let me read from what the Court of Federal Claims found.

[00:01:24] Speaker 04:
The Court of Federal Claims itself acknowledged that the Manship, quote, concluded as a matter of law that the railroad company obtained fee simple title, end quote.

[00:01:34] Speaker 04:
And that's at Appendix 17.

[00:01:35] Speaker 04:
And then what the Court of Federal Claims did afterwards, it took a look at a different case involving different parties, different facts.

[00:01:42] Speaker 02:
I don't know if that's quite fair.

[00:01:43] Speaker 02:
Didn't the Court of Federal Claims say we read the Manship decree as finding a fee simple in an easement?

[00:01:52] Speaker 02:
or in a right of way, I think, was the actual language.

[00:01:55] Speaker 04:
It did ultimately hold that.

[00:01:58] Speaker 04:
I don't think that's how the Court of Federal Claims interpreted manship.

[00:02:01] Speaker 04:
What the Court of Federal Claims did was once it determined that there was fee simple title, and that's from Appendix 17, it took a look at a different Indiana Court of Appeals decision, and that's the Meyer case.

[00:02:12] Speaker 03:
But to just be a little more clear on the claims court decision, what it quoted from manship wasn't just the fee simple language,

[00:02:21] Speaker 03:
that line in the manship opinion goes on to say to wit is right of way.

[00:02:27] Speaker 03:
And so there was a connection between the term fee simple and the term right of way.

[00:02:34] Speaker 03:
And I think the claims court then looked at that and then looked at what happened in Meyer and of course our case Barlow, you know, when we're trying to give a best reading.

[00:02:44] Speaker 03:
I mean, that's all we can do and that's all the claims court can do.

[00:02:47] Speaker 03:
This is impossible to read opinion

[00:02:50] Speaker 03:
Now we're just trying to divine the best meaning from certain key excerpts.

[00:02:55] Speaker 03:
And the fact here is, at least this portion of the Manship Decree connected the simple with right of way, did it not?

[00:03:04] Speaker 04:
It did, Your Honor.

[00:03:05] Speaker 04:
And plaintiff's argument is that right away here means easement.

[00:03:09] Speaker 04:
Importantly, the manship decision itself never mentioned easement.

[00:03:12] Speaker 04:
What it did was it took a look at adverse possession factors and then determined that the railroad likely had a prescriptive easement.

[00:03:18] Speaker 03:
But the United States... Why did the manship decree go through all the adverse possession, you know, considerations?

[00:03:26] Speaker 04:
I think that the manship decree, the judge was just taking a look at that to determine

[00:03:30] Speaker 04:
if the Mr. Manship or the railroad had fee simple title.

[00:03:34] Speaker 04:
And it did.

[00:03:35] Speaker 04:
And let me emphasize one point.

[00:03:37] Speaker 03:
I guess that's the question.

[00:03:38] Speaker 03:
Why would the judge have gone through the adverse possession factors if it included, as you would say, that the railroad had a fee simple title?

[00:03:51] Speaker 04:
Well, it did determine that the railroad had a fee simple title.

[00:03:53] Speaker 04:
It may have been the case.

[00:03:54] Speaker 03:
In conclusion, I know that.

[00:03:56] Speaker 04:
then you don't go through the adverse possession factors, is my point.

[00:04:00] Speaker 04:
You're right, Your Honor.

[00:04:00] Speaker 04:
I don't dispute, the United States doesn't dispute that the Manship Court did go through those factors.

[00:04:05] Speaker 03:
Isn't that an important, useful clue for us to understand the context of what the judge in Manship was trying to get at?

[00:04:11] Speaker 04:
I think it could be, but let me emphasize one point, Your Honor.

[00:04:15] Speaker 04:
Even if

[00:04:16] Speaker 04:
the Manchiff Court went through the adverse possession factors and determined that the railroad had feasible title, which is the United States position.

[00:04:24] Speaker 04:
And as plaintiffs contend that that was an erroneous decision, that erroneous decision, even if that's true, and even if that's the court's opinion, was never appealed at the time.

[00:04:33] Speaker 04:
And it remains valid and binding on the parties and their privities.

[00:04:37] Speaker 04:
And plaintiffs are in privity with Mr. Manchiff.

[00:04:40] Speaker 04:
They are the predecessors in interest to the property at interest in this case for the first segment.

[00:04:46] Speaker 01:
But isn't it fair to say the Court of Federal Claims did not interpret the Manship Degree that way?

[00:04:53] Speaker 04:
I disagree, Your Honor.

[00:04:54] Speaker 04:
The United States position is that the Court of Federal Claims did find that the Manship Degree found, and I'll quote, feast simple title, and that's Appendix 17.

[00:05:03] Speaker 04:
But I do agree that what the Court of Federal Claims did was then take another step and took a look at the Meyer decision from the Indiana Court of Appeals and said the Meyer decision is close to what happened in Manship

[00:05:14] Speaker 04:
and therefore I'm gonna determine that as a matter of law that the Manship decision actually found an easement.

[00:05:21] Speaker 04:
And that's plaintiff's position, but that's not the United States position because as we state in our papers, even if that judgment was erroneous, an erroneous judgment not appealed remains valid and binding on the parties.

[00:05:32] Speaker 03:
Can you show me where on A-17 you're talking about where the claims court judge concluded that in Manship that there was a grant of fee simple?

[00:05:44] Speaker 04:
Yes, and just to be clear, your Honor, Appendix 17, so that would be page 12 of the opinion.

[00:05:52] Speaker 04:
Let me read.

[00:05:53] Speaker 04:
It's right there in the middle of the page.

[00:05:56] Speaker 04:
In both cases, the trial court made findings of fact supporting a conclusion of adverse possession and concluded as a matter of law that the railroad company obtained fee simple title as a result of such adverse possession, end quote.

[00:06:11] Speaker 01:
fee simple title as a result of such adverse possession that, I'm sorry, maybe I'm confused.

[00:06:19] Speaker 01:
I thought that the Court of Federal Claims also acknowledged that the fee simple title could be fee simple to an easement.

[00:06:28] Speaker 04:
That's what it determined after applying the Meyer decision from the Indiana Court of Appeals, which we contend was wrong to do.

[00:06:34] Speaker 01:
I think the easement is what the railroad would get after as a result of adverse possession.

[00:06:40] Speaker 04:
That's not what the Meyer decision.

[00:06:42] Speaker 04:
Our position, Your Honor, is that the Meyer decision determined that it was fee simple title.

[00:06:47] Speaker 03:
I guess Meyer, which is an Indiana appellate court case, said that you can get a fee in an easement, right?

[00:06:57] Speaker 03:
That is right, Your Honor.

[00:06:58] Speaker 03:
So I guess that's what the claims court judge was trying to do here, was trying to interpret what happened in Meyer.

[00:07:07] Speaker 03:
Meyer used language that

[00:07:09] Speaker 03:
admittedly to someone like me is confusing, you know, fee simple in an easement or fee simple as a result of adverse possession.

[00:07:17] Speaker 03:
But necessarily in Meyer, what happened in Meyer was a conclusion that that was an easement that occurred in Meyer.

[00:07:25] Speaker 03:
And so the claims court was simply following suit here with this fee simple language to wit a right of way.

[00:07:37] Speaker 04:
Your honor, as we explained in our reply brief at page nine, right-of-way under our interpretation means the strip of land upon which a railroad is constructed, and we cite an Indian court of appeals decision from 2000.

[00:07:48] Speaker 04:
So there is ambiguity.

[00:07:50] Speaker 04:
And I'd also note to this court that in the ATS forward case that we flagged in our 28-J letter just last week, this court was looking at language such as the right-of-way in the charter that gave the railroad the original ability to construct the rail.

[00:08:03] Speaker 04:
And this court itself concluded that that doesn't mean that it's a prescriptive easement.

[00:08:07] Speaker 04:
In fact, this court said that meant the simple title to the land.

[00:08:11] Speaker 02:
Is the question of what the Manship Decree actually means?

[00:08:14] Speaker 02:
Is that a question of law that we decide de novo?

[00:08:17] Speaker 04:
Uh, no, your honor, it is not is United States position that this court has no ability as just as the court of federal claims had no ability to disturb the holding of mansion because it is decision that was never appealed.

[00:08:28] Speaker 02:
Okay.

[00:08:28] Speaker 02:
I'll concede.

[00:08:29] Speaker 02:
We can't disturb the holding, but there's dispute as to what the holding was.

[00:08:34] Speaker 02:
Do we figure that out for ourselves?

[00:08:36] Speaker 02:
De novo or do we?

[00:08:37] Speaker 02:
defer in some way to the Court of Federal Claims?

[00:08:40] Speaker 02:
Understood, Your Honor.

[00:08:40] Speaker 02:
I don't think we just defer to the United States.

[00:08:42] Speaker 04:
No, there's no deference to the Court of Federal Claims here.

[00:08:46] Speaker 04:
It is de novo review.

[00:08:47] Speaker 04:
So we figure out for ourselves what the Manchuk Decree means.

[00:08:51] Speaker 04:
Yes, you're right, Your Honor.

[00:08:52] Speaker 04:
And if this Court concludes, as the United States reasons, that it does mean fee simple title, then even if the Court concludes that it was erroneous decided, an erroneous judgment not appealed remains valid and binding on the parties.

[00:09:03] Speaker 04:
And I know I'm getting close to my rebuttal time, and there are two segments at issue in this appeal.

[00:09:08] Speaker 04:
And Judge Chen, you had mentioned earlier the Barlow decision.

[00:09:11] Speaker 04:
And just to be clear, the Barlow decision applies to the second segment of the land at issue, and that is governed by the Van Lanningham instrument.

[00:09:19] Speaker 04:
And the United States position is that the Court of Federal Claims misapplied Barlow for a very simple reason.

[00:09:24] Speaker 04:
Barlow applied Illinois law, and this case involves Indiana law.

[00:09:29] Speaker 04:
And the distinction between Illinois law and Indiana law is outcome-determinative in this case.

[00:09:33] Speaker 04:
And this goes to the lost deeds doctrine.

[00:09:36] Speaker 04:
Under Indiana's lost deeds doctrine, if a deed is lost, and importantly, plaintiffs have not produced any evidence that the deed here is lost for the second segment, but if a deed is lost under Indiana law, that allows the plaintiffs to produce secondary evidence to prove the contents

[00:09:52] Speaker 04:
of the deed.

[00:09:53] Speaker 04:
In Illinois, by contrast, and this is the Barlow decision, if a deed is lost, then that means the deed is void and the centerline presumption comes in to fill the gap.

[00:10:02] Speaker 04:
And so that's the distinction here.

[00:10:04] Speaker 04:
And in this case, plaintiffs have not established that the deed is lost because they have not produced evidence or nor have they looked at the place.

[00:10:12] Speaker 01:
I mean, the deed's either lost or it doesn't exist.

[00:10:15] Speaker 01:
It's one or the other.

[00:10:16] Speaker 01:
So which would you rather it be?

[00:10:19] Speaker 04:
Well, Your Honor, it is... That were your choice.

[00:10:21] Speaker 04:
Well, it's undisputed that a written conveyance exists for the second segment, and that's at Appendix 23.

[00:10:29] Speaker 01:
Well, it's undisputed that there's mention in the ICC tables and maps that whatever written thing may have existed is nonexistent, right?

[00:10:41] Speaker 01:
I mean, that's what's, let's see, ICC valuation maps expressly say no more deed, right?

[00:10:50] Speaker 04:
I'm sorry, Your Honor.

[00:10:51] Speaker 01:
Don't the ICC valuation maps expressly say there is no deed?

[00:10:55] Speaker 04:
Your Honor, the valuation maps say that the deed was lost, but then it goes on to say, and this is at appendix 21, there's mention of the Van Lanningham instrument made in the complaint, and that's end quote.

[00:11:09] Speaker 04:
And so the question for this court is... So here's how I see the question.

[00:11:13] Speaker 01:
The question as I see it is, there is no deed in this case.

[00:11:17] Speaker 01:
So what should the default rule be in a case with no deed?

[00:11:21] Speaker 01:
Now, you're absolutely right that Illinois and Indiana are not the same because one of them says what should happen when there's no deed.

[00:11:29] Speaker 01:
The other says nothing.

[00:11:30] Speaker 01:
It's silent.

[00:11:31] Speaker 01:
So we have to define what the legislature would think or a court in that state would think.

[00:11:38] Speaker 01:
Would it surprise you to know that I made my clerk, which is why I just made him bring me, do a survey of every state in the country to find out what happens in this situation?

[00:11:46] Speaker 01:
Do you know that they pretty much all, everyone that has a law has the same law as the Barclay case?

[00:11:53] Speaker 01:
It's meaning it's the case that if a deed is lost, the default is the same default that we recognized in that case as applies under Illinois law.

[00:12:06] Speaker 01:
So why would we not use that same rule here where this state is silent and doesn't have

[00:12:12] Speaker 01:
a particular law that tells us which way to go.

[00:12:15] Speaker 01:
When all the other states do have a law, they're consistent.

[00:12:18] Speaker 01:
They go in that same direction as the case we've already decided.

[00:12:22] Speaker 01:
Why would we not do that?

[00:12:24] Speaker 04:
Chief Judge, I would refer the court to Indiana Code Section 32-23-1110A, which states that the centerline presumption does not apply when a deed does not exist.

[00:12:35] Speaker 04:
And here, in this case, it's undisputed.

[00:12:37] Speaker 03:
Sorry, the centerline presumption does not apply when a deed does not exist?

[00:12:43] Speaker 04:
Under Indiana, let me take a step back.

[00:12:44] Speaker 04:
The centerline presumption, what it does is it allows, if it's a gap-filling function, the centerline presumption presumes that landowners adjacent to a railroad own the adjacent land up to the center of the road, or up to the center of the road.

[00:12:58] Speaker 03:
I understand that part.

[00:12:59] Speaker 03:
The part I don't understand is when a deed doesn't exist to the contested property,

[00:13:05] Speaker 04:
Why wouldn't the centerline presumption exist?

[00:13:09] Speaker 04:
Well, under Indiana's lost deeds doctrine, in contrast... So, not under the lost deeds doctrine.

[00:13:16] Speaker 01:
In general, if there is no deed.

[00:13:18] Speaker 01:
If there's no deed, are you telling me the statute says if there's no deed, the centerline presumption doesn't exist?

[00:13:23] Speaker 04:
Correct.

[00:13:23] Speaker 01:
Which statute is that?

[00:13:25] Speaker 04:
Indiana Code, Section 32, 23, 11, 10A.

[00:13:29] Speaker 02:
Can you read it to us again?

[00:13:31] Speaker 02:
I think you just had an extra knot in there.

[00:13:33] Speaker 04:
I do, Your Honor, and I would have to pull it up, and I can do that.

[00:13:37] Speaker 04:
Just give me a one moment.

[00:13:39] Speaker 02:
I mean, I think, for instance, on page 27 of your blue brief, you said, Indiana's centerline presumption is premised on the nonexistence of a deed.

[00:13:48] Speaker 02:
So the centerline presumption cannot apply where a deed exists, but is lost.

[00:13:54] Speaker 02:
Isn't that your position?

[00:13:55] Speaker 04:
Yes, Your Honor.

[00:13:56] Speaker 04:
I may have misstated earlier.

[00:13:57] Speaker 04:
When a deed exists, as in this case, the centerline presumption does not apply.

[00:14:01] Speaker 04:
I think I was doing a double negative.

[00:14:05] Speaker 04:
I think it was too many negatives.

[00:14:06] Speaker 04:
Yes.

[00:14:06] Speaker 04:
When their deed exists as here, as it's undisputed at appendix 23.

[00:14:11] Speaker 03:
There's really two separate questions here.

[00:14:14] Speaker 03:
One is the burden allocation question.

[00:14:16] Speaker 03:
which is what happens when there is a lost deed and the plaintiffs here made a bona fide attempt to find it and couldn't find it, or there was a bona fide attempt made and it could not be found, then who has the burden to come forward with secondary evidence?

[00:14:34] Speaker 03:
That's a very important... And then assuming that party does not meet its burden with secondary evidence as to what were the contents of the lost deed,

[00:14:45] Speaker 03:
Then the next question is, OK, now we have a deed that is lost.

[00:14:51] Speaker 03:
How do we figure out what to do with the contested piece of property?

[00:14:56] Speaker 03:
And you're saying when a deed does not exist, then the centerline presumption applies, right?

[00:15:04] Speaker 03:
Now we agree on that.

[00:15:07] Speaker 03:
And then as a practical matter, when we have a lost deed, why isn't that

[00:15:13] Speaker 03:
where why wouldn't that be treated the same way as if a deed had not existed ever?

[00:15:19] Speaker 04:
Let me just emphasize one point in your questions, your honor's question, which is plaintiffs alone bear the burden.

[00:15:25] Speaker 03:
Okay, that's the burden allocation piece.

[00:15:28] Speaker 03:
We can get to that if we have time, but this other part, just the final part, why wouldn't we under Indiana state law apply the centerline presumption to a lost deed situation

[00:15:42] Speaker 03:
just as Indiana does quite clearly for a no-deed situation.

[00:15:48] Speaker 03:
I mean, Illinois law.

[00:15:50] Speaker 04:
Understood.

[00:15:54] Speaker 04:
So under the Lost Deeds Doctrine, it's a two-step analysis.

[00:16:00] Speaker 04:
First, you determine if the deed is lost, and we contend that... I'm assuming that's true.

[00:16:04] Speaker 03:
The very end step.

[00:16:06] Speaker 04:
Yep.

[00:16:06] Speaker 04:
So then if a deed is determined that it's lost, what that does is permit, and this is what distinguishes this case from Barlow, it permits plaintiffs to provide secondary evidence of the contents of that deed.

[00:16:16] Speaker 04:
And then if you get there and there's nothing, then plaintiffs have not satisfied their burden and they cannot claim compensation for that.

[00:16:24] Speaker 02:
Why does the centerline presumption, you agree the centerline presumption applies when a deed does not exist, correct?

[00:16:29] Speaker 02:
Correct.

[00:16:30] Speaker 02:
Why does it not apply when a deed is lost?

[00:16:34] Speaker 02:
It's Indiana law, Your Honor.

[00:16:35] Speaker 02:
Where?

[00:16:36] Speaker 04:
You don't cite any Indiana law.

[00:16:38] Speaker 04:
Because you have to get to the stuff that you can provide secondary evidence for.

[00:16:44] Speaker 04:
If the deed is lost, you can provide secondary evidence to prove the contents of the deed.

[00:16:48] Speaker 03:
And the answer to the question that Judge Stark and I have is really premised on the burden allocation thing.

[00:16:54] Speaker 03:
And so I know you're way over your time.

[00:16:57] Speaker 03:
Yes.

[00:16:58] Speaker 03:
It appears that the claims court concluded, and I think Barlow also did this for purposes of Illinois law, concluded that when

[00:17:08] Speaker 03:
The party that's seeking the benefit of the deed as conveying a fee simple title to the railroad, then that's the party that wants that benefit should prove that it was in fact a fee simple title conveyance.

[00:17:32] Speaker 03:
And so the question is, what's wrong with that?

[00:17:35] Speaker 03:
If I understand enough for Barlow in Illinois, why is it all of a sudden very, very wrong to do on the other side of the border in Indiana?

[00:17:43] Speaker 04:
Uh, your honor, I quite frankly, I'm not familiar with that, uh, portion of Barlow, which I'll reference right before, um, rebuttal.

[00:17:49] Speaker 04:
But what I will say is that this court's decision in Cacitus and Clamath cited at appendix 10 clearly established that it is the plaintiff's burden alone to prove that they own the property for which they're seeking, uh, compensation under the fifth amendment and which is that case.

[00:18:04] Speaker 04:
I, I, there's nothing distinct about a rails to trails case in terms of burden for a takings claim.

[00:18:10] Speaker 01:
But so, you know, this is, I have to go back to the state survey that my clerk did.

[00:18:15] Speaker 01:
I know your time's up, but I mean, in all the states that we found that addressed this, let me tell you, like in Texas, if the deed's even ambiguous, the default is just a prescriptive easement.

[00:18:28] Speaker 01:
In every state that has a law about a lost deed or an ambiguous deed,

[00:18:35] Speaker 01:
It's always the default rule that the prescriptive easement is what the railroad got.

[00:18:40] Speaker 01:
So why shouldn't that I just don't understand why that shouldn't apply here.

[00:18:43] Speaker 01:
It feels like we would be making Illinois break stride with how every other state handles this when Illinois has just been silent about it.

[00:18:53] Speaker 04:
You know, I can't.

[00:18:54] Speaker 01:
Sorry.

[00:18:55] Speaker 01:
No, I understand.

[00:18:59] Speaker 04:
I'm not familiar with Texas's law, but it is the plaintiff's burden and there's just no evidence in this record.

[00:19:06] Speaker 04:
So even if this court doesn't want to make a general rule,

[00:19:09] Speaker 04:
about the centerline presumption and what other states are doing.

[00:19:12] Speaker 04:
What this court could do is take a look at this record and determine that plaintiffs have not satisfied their burden by providing any evidence that one, this is for the second segment now, that the deed is lost or two, that any secondary evidence was provided to prove the contents of those.

[00:19:26] Speaker 01:
All right.

[00:19:26] Speaker 01:
Let's hear from the other side.

[00:19:29] Speaker 01:
Mr. Smith.

[00:19:39] Speaker 00:
Michael Smith as a councilor plaintiffs.

[00:19:44] Speaker 00:
Your honor, with respect to lost deed areas, the critical point is that there has been no deed to the railroad produced, which vests the railroad corridor, the railroad corridor in fee simple.

[00:19:54] Speaker 00:
Indiana's common law selling presumption is that the conveyance of land bounded by highway carries with it the fee simple to the highway.

[00:20:01] Speaker 00:
Indiana's presumption statute provides that the fee to the center of the highway vests in the adjacent landowner filing abandonment provided that the railroad does not own the fee.

[00:20:10] Speaker 00:
If a deed transferring the feed to the railroad right-of-way does not exist, what this means is that Indiana's centerline presumption arises as a matter of course due to the landowners' ownership of the adjacent land.

[00:20:22] Speaker 03:
There is no requirement in Indiana that... But is there an Indiana law that tells us what we do when the deed is lost versus when the deed never

[00:20:33] Speaker 03:
existed in the first place.

[00:20:34] Speaker 00:
Well, it's a question of presumptions, your honor.

[00:20:38] Speaker 03:
So the presumption is... I know that, but I'm trying to understand what is the law of what to do in Indiana when the deed is lost.

[00:20:48] Speaker 03:
And that's a different fact pattern.

[00:20:50] Speaker 03:
It's somewhat similar, but it's different than if there never was a deed in the first place.

[00:20:55] Speaker 03:
We know what the law is when a deed never existed in the first place, but it's less than clear to me what does Indiana do

[00:21:03] Speaker 03:
when there was a deed, we know there was some kind of conveyance, but the contents of the deed are unknown.

[00:21:11] Speaker 00:
Right, so the situation there is that the presumption would still be unrebutted because you still need to, there must be a... Where's the Indiana law that says we still run with the center

[00:21:24] Speaker 03:
and presumption in the scenario that we're talking about today.

[00:21:29] Speaker 00:
It says you never get to that point because the party who's alleging ownership of the fee simple has not provided any evidence that gives it ownership of the fee simple.

[00:21:40] Speaker 00:
And it doesn't matter if it doesn't exist, is lost, is just not found, if they just don't bother coming forth with the evidence.

[00:21:47] Speaker 00:
There's no affirmative requirement in Indiana that any deed exists whatsoever or that's ever been lost.

[00:21:54] Speaker 00:
All that's required is for the lander to establish its ownership of the adjacent land.

[00:22:01] Speaker 00:
And that's all that happens.

[00:22:03] Speaker 03:
Before we ever get to that point, you have a burden of proof.

[00:22:09] Speaker 03:
You're the plaintiff.

[00:22:10] Speaker 03:
Yes.

[00:22:11] Speaker 03:
You have to prove that the railroad only has an easement and therefore never got to be simple to the land.

[00:22:20] Speaker 03:
So that's your burden.

[00:22:21] Speaker 03:
And so the question that the United States is raising is,

[00:22:25] Speaker 03:
Why was it appropriate for the claims court to say, okay, the deed has been lost, now we're going to stick the burden on the government, not the plaintiff, to prove the content of the lost deed through secondary evidence?

[00:22:43] Speaker 03:
It would seem that one theory, a logical theory, would be

[00:22:47] Speaker 03:
It's the plaintiff's burden from beginning to end.

[00:22:49] Speaker 03:
And so if there's a lost deed, that's a very unfortunate circumstance, but the plaintiff must carry the water and do its best job of proving what the contents of the deed are.

[00:23:01] Speaker 03:
And if not, then maybe the plaintiff hasn't met its burden of proof that all the railroad ever got was an easement.

[00:23:08] Speaker 03:
Right.

[00:23:09] Speaker 00:
So I think we have, we have the Indiana law and then we have the pre-SOTU requirement that

[00:23:13] Speaker 00:
You have to prove the railroad owns an easement.

[00:23:16] Speaker 00:
Well, how do you do that when you have no way of obtaining the deed whatsoever?

[00:23:20] Speaker 00:
You identify the evidence that plants have, which is to establish that there's no other basis for the railroad's ownership besides adverse possession.

[00:23:29] Speaker 00:
You look at the evaluation schedules, they report no deed is lost.

[00:23:34] Speaker 00:
Okay, then you take the next step.

[00:23:36] Speaker 00:
maybe they've been uncovered in some point in time, what do we do?

[00:23:39] Speaker 00:
We subpoena, we send out five subpoenas.

[00:23:42] Speaker 03:
You're saying it's an impossible task for the plaintiffs, but it's equally an impossible task for the government if they're the ones stuck with the burden.

[00:23:50] Speaker 03:
That doesn't answer the question of who is the right party to assign the burden to, just because it's a hard burden to meet.

[00:23:57] Speaker 00:
Well, I think at that point in time, you have to fall back on what Judge Moore was talking about with respect to

[00:24:02] Speaker 00:
presumptions with respect to, you know, what's the public policy at play here in Indiana?

[00:24:11] Speaker 00:
What's the public policy at play here in Texas?

[00:24:13] Speaker 02:
Why would we go to presumptions and public policy?

[00:24:15] Speaker 02:
Because that's... Hold on.

[00:24:17] Speaker 02:
Ordinarily, if somebody has a burden of proof and they don't meet it, they lose.

[00:24:21] Speaker 00:
If this railroad right-of-way in Indiana disappears, okay, that's the facts, right?

[00:24:26] Speaker 00:
So the railroad right-of-way is abandoned in Indiana.

[00:24:29] Speaker 00:
What happens to that land what happens to land is it goes back to possession of adjacent landowners that's that's that's the presumption okay that's what happened here, the railroad sold its rights for a recreational trail I bring up the public policy because as a way to to illustrate that.

[00:24:47] Speaker 00:
What Indiana is saying here is we don't want these vacant strips of land to be unused.

[00:24:51] Speaker 00:
We don't want to have to have landowners marshal proof of the existence of what might have been in the existence of a deed that doesn't exist anymore.

[00:24:59] Speaker 00:
No, what we're going to say is that landowners should be able to reclaim this land, make it their own, and that's the end of it.

[00:25:06] Speaker 00:
And if there's somebody who says they have that fee ownership, like the railroad or somebody else for that matter, maybe another landowner might have retained the feasible.

[00:25:14] Speaker 00:
Who knows?

[00:25:15] Speaker 00:
But at the end of the day, it's the public policy, which is why we have the standardized presumptions all over the country.

[00:25:21] Speaker 02:
The burden under the lost deed doctrine in Indiana, what the Court of Federal Claims did is a little confusing to me.

[00:25:30] Speaker 02:
It said there's, I think, two burdens, that you as the plaintiff had the burden to prove that the deed actually is lost, but then the burden shifted to the government

[00:25:40] Speaker 02:
to prove the contents of that loss deed.

[00:25:43] Speaker 02:
Is that what the Court of Federal Claims did?

[00:25:45] Speaker 02:
That's exactly right.

[00:25:46] Speaker 02:
What part of Indiana law says that there's a shifting burden?

[00:25:49] Speaker 00:
Well, there's not because the CFC, and we don't disagree that this was the wrong thing to do, the CFC had to come up with something.

[00:25:58] Speaker 00:
The whole loss deed plus burden approving the contents of it,

[00:26:02] Speaker 00:
That arises in a completely different context where the proponent of the lost deed first has to prove it's lost and then admit secondary evidence to prove its contents.

[00:26:14] Speaker 00:
So, you know, the CFC gave the plaintiffs the burden to find the lost deed, although if this was a true lost deed plus prove up the contents of the situation in Indiana,

[00:26:27] Speaker 00:
What would happen is that the person who wants to say, yes, we want to apply this deed, they have to prove its loss, and then they have to prove the contents.

[00:26:35] Speaker 00:
So it's, I don't object.

[00:26:40] Speaker 02:
Right.

[00:26:40] Speaker 02:
Did you advocate at the Court of Federal Claims that both of those burdens should be on the government in this case?

[00:26:48] Speaker 00:
Yes.

[00:26:49] Speaker 00:
Before the CFC, we pointed to the Indiana Centerline Presumption and said, there has never been a fee deed produced that

[00:26:56] Speaker 00:
that rebutts the presumption.

[00:26:58] Speaker 00:
And that's exactly how Barlow ended up ruling, because if the Barlow ruling says that the centerline presumption has, the plaintiffs have proven that the centerline presumption has not been rebutted.

[00:27:08] Speaker 00:
So it's in place.

[00:27:09] Speaker 00:
Their fee simple ownership to the right of way is in place.

[00:27:12] Speaker 00:
The only way that can be disturbed is if the United States carries its burden for summary judgment and comes up with evidence to the contrary.

[00:27:21] Speaker 00:
And the United States didn't come up with any of this.

[00:27:22] Speaker 03:
Correct in remembering Barlow as this court

[00:27:25] Speaker 03:
endorsing for Illinois law purposes, shifting the burden to the government to prove that the lost deed there was a conveyance of a fee simple title?

[00:27:38] Speaker 00:
Yes, the Barlow court did put that on the United States.

[00:27:40] Speaker 00:
Yes, your honor.

[00:27:41] Speaker 03:
Now the government is saying, well, Illinois law is different from Indiana law here on that question.

[00:27:51] Speaker 03:
We shouldn't try to do the same thing in Barlow.

[00:27:55] Speaker 00:
I don't see how that's a distinction with the difference around it because the result is the same.

[00:28:00] Speaker 00:
The result is that there's been no proof for the contents of the lost deed or the conveyance itself.

[00:28:07] Speaker 00:
At the end of the day, in Barlow, the Federal Circuit said, well, there's no deed.

[00:28:14] Speaker 02:
Isn't it clear under Illinois law that a lost deed is void?

[00:28:19] Speaker 00:
Yes, but I don't, I don't think that's the difference.

[00:28:22] Speaker 02:
Hold on, hold on.

[00:28:23] Speaker 02:
Let me get the question out.

[00:28:24] Speaker 02:
Indiana law, that is not, it's not the same, right?

[00:28:28] Speaker 02:
A lost deed is not necessarily void under Indiana law.

[00:28:31] Speaker 00:
Well, you just say that you haven't proven that you have title to the land.

[00:28:34] Speaker 00:
I mean, in Illinois, they say it's void and you don't have title to the land.

[00:28:37] Speaker 02:
Okay, but it is.

[00:28:39] Speaker 02:
that does seem like a distinction to me, and wouldn't it be a material distinction that a lost deed could potentially show up and maybe Indiana treats that differently than Illinois does?

[00:28:50] Speaker 00:
No, I don't think so.

[00:28:51] Speaker 00:
I mean, if you're going to, because it's a quiet title fight, right?

[00:28:56] Speaker 00:
And if you're going to say that your ownership is based on a deed, you've got to produce the deed.

[00:29:01] Speaker 00:
You have to prove

[00:29:02] Speaker 00:
ownership in some fashion, and with respect to this railroad, all they can do is say that we've satisfied the elements of adverse possession.

[00:29:10] Speaker 00:
That's effectively what plaintiff's evidence is, is that there's no evidence in the record that the railroad's title could arise from anything else besides adverse possession.

[00:29:23] Speaker 00:
I think the Varlow case and this case are really on all fours.

[00:29:29] Speaker 00:
And I think this panel should certainly follow the guidance of that panel decision.

[00:29:34] Speaker 02:
If you want more on this segment, at page 33 of the blue brief, the government writes that if a deed once existed but is lost, there can be no prescriptive easement because there was no adverse use and because there were, in fact, written conveyances.

[00:29:52] Speaker 02:
Isn't the government right about that?

[00:29:54] Speaker 00:
No, you're not entirely right, Your Honor, because the

[00:30:00] Speaker 00:
There still has to be, the adverse possession arises when there's no color of title.

[00:30:07] Speaker 02:
But they're saying there was a deed, it's just missing.

[00:30:12] Speaker 00:
Well, they have to go find it.

[00:30:13] Speaker 02:
Since it was missing, but since it existed, there can't be prescriptive easement because the railroad got title

[00:30:22] Speaker 02:
by a written conveyance.

[00:30:23] Speaker 02:
We just don't have it.

[00:30:24] Speaker 00:
Well, then that completely towards the entire concept of adverse possession, I think, because, you know, even if the railroad, even if the document, if there was color of title, so there's a document, but it's invalid, adverse possession with the law of adverse possession would still apply.

[00:30:38] Speaker 00:
That's how the rights are acquired by the railroad, albeit it's limited to an easement.

[00:30:46] Speaker 00:
So I think NUL does address that, whether it's no color of title or simply color of title.

[00:30:52] Speaker 00:
The railroad can only own what's the rights it gets by adversely possessing land.

[00:31:01] Speaker 00:
Going back to the Manship Decree really quick, the CFC, well, the United States said the CFC declined to file the Manship Decree.

[00:31:10] Speaker 00:
It did not.

[00:31:11] Speaker 00:
It absolutely followed it.

[00:31:13] Speaker 00:
The CFC applied the law at the time of the Manship Decree, which was that the railroad only gains a

[00:31:20] Speaker 00:
a prescriptive easement in those areas.

[00:31:24] Speaker 00:
The management degree certainly only said that the railroad gets a fee simple in the easement.

[00:31:29] Speaker 00:
The railroad is the order and fee simple to the following described real estate in Hamlin County, Indiana.

[00:31:36] Speaker 00:
It's right of way.

[00:31:38] Speaker 00:
Right of way in this context means easement.

[00:31:42] Speaker 00:
We have numerous cases that we've identified that all state that right of way means easement.

[00:31:47] Speaker 00:
This is a clear statement by

[00:31:49] Speaker 00:
the Manship Degree Court, that the railroad only owns a fee simple in its easement.

[00:31:57] Speaker 00:
And Your Honor, just to make one more point about that, we know that the Manship Degree Court was right because the fee simple in the land is never litigated in that decision.

[00:32:08] Speaker 00:
There's no decision, there's no finding the facts concerning what should happen in the railroad after it is abandoned, nothing of that nature.

[00:32:18] Speaker 00:
And with that, Your Honor, I think I'll conclude.

[00:32:20] Speaker 00:
I think the owner is pretty clear here that the United States took plaintiff's property and the plaintiff's just compensation for taking.

[00:32:31] Speaker 00:
Thank you.

[00:32:33] Speaker 01:
All right.

[00:32:34] Speaker 01:
Mr. Adams will restore two minutes of rebuttal time.

[00:32:39] Speaker 04:
Thank you, Chief Judge.

[00:32:40] Speaker 04:
Just a few points.

[00:32:42] Speaker 04:
Judge Stark,

[00:32:43] Speaker 04:
The best I have for section 32, 23, 11, 10A is on our reply brief page 11, where we say, but the centerline presumption applies only when the railroad does not own the right of fee and the deed to the right of way does not exist.

[00:32:58] Speaker 04:
I don't have the full statute in front of me, but that's what we quote.

[00:33:01] Speaker 04:
I just want to distinguish.

[00:33:03] Speaker 01:
I'm going to ask you something.

[00:33:04] Speaker 01:
I kind of hate to blindside you with this because I just realized it's not cited in any of the briefs, but it's one of the many cases because I was trying to figure out what the default should be when there's this lost deed and when Indiana does not have this rule and you've got the switching burdens.

[00:33:17] Speaker 01:
But there's an Indiana court Brown versus Penn Central and here's a direct quote from it.

[00:33:22] Speaker 01:
A deed that conveys a right generally conveys only an easement.

[00:33:26] Speaker 01:
This is in the railroad content.

[00:33:28] Speaker 01:
The general rule is that conveyance to a railroad of a strip, piece, or parcel of land without additional language as to the use or purpose to which the land is to be put or an otherwise limited is to be construed as passing an estate in fee but reference to a right of way if conveyed in such conveyance leads to the construction of the conveyance as an easement.

[00:33:49] Speaker 01:
And so what it's, I don't know.

[00:33:52] Speaker 01:
I mean, I just feel like all of the stars are aligning and I,

[00:33:56] Speaker 01:
I mean, maybe I can't really divine what an Indiana state court judge would do, but I kind of feel like with all these cases, the other state laws, they would say under these circumstances, we just have to presume it was any prescriptive easement.

[00:34:10] Speaker 04:
Your honor, I just distinguish one thing.

[00:34:12] Speaker 04:
We distinguish the plaintiff's cases in our reply brief this way.

[00:34:16] Speaker 04:
When you're reading a written instrument as you did, I think that probably case involves a written instrument and right of way is in there.

[00:34:22] Speaker 04:
There are courts that say, yes, that is a prescriptive easement and that is an easement.

[00:34:25] Speaker 04:
But in this case,

[00:34:26] Speaker 04:
we have a court judgment, the Manship Court Judgment from 1907 that held otherwise.

[00:34:31] Speaker 01:
Had the word right away in it.

[00:34:33] Speaker 04:
Understood, Your Honor, but the conclusion being the holding that the Manship Court found is even interpreted by the Court of Federal Claims saying that it was fee simple title.

[00:34:41] Speaker 04:
And that just goes back to the point earlier that the government made about even if the court thinks that was erroneously decided, the court's in no position to reverse state trial court.

[00:34:50] Speaker 04:
And I see on my point, I just asked this court to reemphasize that it's plaintiff's burden

[00:34:55] Speaker 04:
in a takings case to prove that they own the land and to reverse the judgment below and instruct the court to enter judgment in favor of the United States.

[00:35:03] Speaker 01:
Thank you.