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Fox v. Norfolk Southern Corp.

Court of Appeals of Georgia, Fifth Division

June 23, 2017

FOX
v.
NORFOLK SOUTHERN CORPORATION et al.

          BRANCH, J., RICKMAN and REESE, JJ.

          Branch, Judge.

         This appeal arises out of a right-of-way owned by Norfolk Southern Railroad Co. and bisecting a parcel of land owned by C. Randall Fox. After the railroad constructed a passing side track running parallel to the existing track situated in the right-of-way, Fox sued Norfolk Southern Corporation and Norfolk Southern Railroad Co.[1] in Gordon County Superior Court, asserting claims for inverse condemnation and trespass. Fox now appeals from the trial court's order granting summary judgment to Norfolk Southern, as well as the order denying Fox's motion for reconsideration. Fox contends that the trial court erred in finding both that the Railroad constructed the passing track within its right-of-way, and that Fox has not acquired any part of that right-of-way by adverse possession. Additionally, Fox asserts that the trial court erroneously found that his claim for inverse condemnation of his property situated to the east of the railroad tracks is preempted by federal law. For reasons explained more fully below, we find no error in the trial court's grant of summary judgment to Norfolk Southern on Fox's inverse condemnation and trespass claims related to the Railroad's right-of-way, and we therefore affirm the grant of summary judgment on those claims. We further find, however, that the trial court erred in granting Norfolk Southern summary judgment on Fox's claim for inverse condemnation of his property to the east of the railroad tracks. We therefore reverse that part of the trial court's order which found that this claim was preempted by federal law.

         Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). "In reviewing a grant or denial of summary judgment, we owe no deference to the trial court's ruling and we review de novo both the evidence and the trial court's legal conclusions." GAPIII, Inc. v. Seal Indus., 338 Ga.App. 101, 102 (789 S.E.2d 321) (2016). Moreover, we construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. SKC, Inc. v. EMAG Solutions, 326 Ga.App. 798, 798 (755 S.E.2d 298) (2014).

         Here, the relevant facts are largely undisputed, [2] and they show that Fox owns a piece of real property in Gordon County that is bisected by an active railroad track. The property, which totals approximately 160 acres, originally consisted of three separate tracts of land, which the parties have referred to as Tracts 1, 2, and 3. The western boundary of Tract 1 fronts on Old Dalton Road, and Fox uses Tract 1 to access Tracts 2 and 3. Tract 1 is bounded on the east by the Railroad's right-of-way, and Tracts 2 and 3 are bounded on the west by that right-of-way.[3] To access Tracts 2 and 3, therefore, Fox must travel east over the tracks situated in the right-of-way. Fox does this by means of a private railroad crossing that appears to have been in existence as long as the tracks themselves.

         In 1868, Norfolk Southern's predecessor in interest obtained title to the right-of-way in fee simple, and the deed conveying the property describes it as

a strip of land along such line as may be adopted by the [Railroad] of sufficient width through said lot of land . . . [to] build said rail road as well as all sidetracks and turnouts and necessary and sufficient for all purposes of keeping up and repairing the same not to exceed fifty feet from the center of the main line to each side making said strip not to exceed one hundred feet - full width together with all the rights and appurtenances to said strip of land. . . .

The deed further provides that the Railroad "shall construct and keep in repair all necessary stock gaps and road crossings" and that "the landowner may cultivate the soil as close to the track as the ditches will permit." The deed was recorded in April of 1871. The railroad tracks were constructed in approximately 1870, and have been in use since that time.

         In 1915, the Railroad conducted a survey of all its real property to create a valuation map for filing with the Interstate Commerce Commission ("ICC").[4] Fox's land is depicted on the 1916 valuation map, and the map shows the location of the right-of-way granted in the 1868 deed. The map further shows that the right-of-way is 100 feet wide, 50 feet on each side of the track, measured from the track's centerline. The Railroad filed a second valuation map in 1927, and that valuation map also reflects that the Railroad has a 100-foot right-of-way bisecting what is now Fox's land.

         Fox purchased the property in question in the fall of 2001, acquiring Tracts 1 and 3 from Total Investment Properties and acquiring Tract 2 from Edmond Holland and Ted Fuller.[5] Neither of the deeds transferring title to Fox contain metes and bounds descriptions, but the deed conveying title to Tracts 1 and 3 incorporates by reference a plat of survey dated September 9, 1991, and recorded at Plat Book 23, page 35. The deed conveying title to Tract 2 incorporates by reference a September 2001 survey done for Fox in conjunction with his purchase of all three tracts, and recorded at Plat Book 40, page 7. The September 2001 survey depicts all three tracts, and both the 1991 and the 2001 surveys show that the Railroad owns a 100-foot right-of-way that lies between Tract 1 and the remaining property.

         The train tracks bisecting Fox's property are part of Norfolk Southern's "H" line. In approximately 2007, Norfolk Southern began to plan the construction of a new passing side track, [6] to run parallel to the existing tracks on the H line, including those tracks bisecting Fox's property. As part of that process, the Railroad's engineering department decided that the optimal design for the new passing track would require the Railroad to acquire an additional 40 feet of width adjacent to its existing right-of-way. Norfolk Southern thereafter began approaching property owners, including Fox, about purchasing from each of them the additional right-of-way requested by the engineering department. In May 2007, representatives of Norfolk Southern met with Fox, provided him with a plat showing the additional property the Railroad was seeking to purchase, and offered to buy the land for $25, 000. According to Fox, he told the Railroad he would give them the property if they would provide him with a written guarantee that no train would block his private crossing for more than 30 minutes at a time. The Railroad responded that it could not provide such a written guarantee, and Fox therefore declined sell them any additional right-of-way. Engineers at the Railroad then reconfigured the plans for the passing track so that the portion bisecting Fox's property would fit entirely within the existing right-of-way.

         The new passing track became operational in January 2008, and according to Fox, trains routinely sit on the new track and block the private railroad crossing that serves his property for up to 24 hours at a time. The blockages are so frequent that Fox, who had previously grazed cattle on the land, can no longer use the property for that purpose. In September 2010, Fox filed the current lawsuit, alleging that based on both the language of the 1868 deed and historical use, the Railroad's right-of-way was only 45 feet wide. Fox therefore contended that the construction of the sidetrack on property outside of a 45 foot strip constituted an inverse condemnation of and trespass against his property. Norfolk Southern removed the case to federal court, asserting that Fox's trespass claim was preempted by federal law and asking the court to exercise supplemental jurisdiction over his claim for inverse condemnation. To support its preemption argument, the Railroad relied on the Interstate Commerce Commission Termination Act of 1996 ("ICCTA"), 49 USCS § 10501, et seq. That statute vests exclusive jurisdiction in the Surface Transportation Board with respect to legal remedies related to "the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities . . . ." 49 USCS §10501 (b) (2). Specifically, Norfolk Southern argued that Fox's trespass claim sought a remedy related to the construction and operation of a side track because if he prevailed on that claim, the Railroad would be required either to abandon the track or to pay Fox to operate the track. In response, Fox contended that he was seeking damages only for the initial taking of his property and that "[this] trespass claim is duplicative of [the] inverse condemnation claim because both are legal vehicles to ensure that [Fox] is compensated for the loss of his property." Based on this representation, the federal court found that Fox's claims were not preempted because "[t]he issue of whether [the Railroad] wrongfully took [Fox's] property does not relate to the regulation of the Railroad or affect the operation and use of the Railroad. [The Railroad] could continue operating [its] side track and would have to compensate [Fox] only for the initial wrongful taking." The federal court therefore remanded the case to the state court.

         Following extensive discovery, Norfolk Southern moved for summary judgment, arguing that because the passing side track was constructed entirely within its 100 foot right-of-way, Fox could not prevail on his claims for trespass and inverse condemnation. After a hearing, the trial court granted the Railroad's motion and entered judgment in its favor. Fox then filed a motion for reconsideration and sought to file an additional affidavit.[7] In his motion for reconsideration, Fox asserted for the first time that Norfolk Southern's unreasonable interference with his private right of access across the railroad tracks had resulted in the inverse condemnation of that portion of his property situated to the east of the tracks. The trial court accepted the affidavit for filing, and held a hearing on the motion for reconsideration. The trial court thereafter denied the motion, finding that the additional affidavit did not create a factual question as to whether the Railroad had taken Fox's property for construction of the side track. The court further found that Fox's claim for the inverse condemnation of his property east of the railroad tracks (Tracts 2 and 3) was preempted by the ICCTA. Fox now appeals the grant of summary judgment in favor of Norfolk Southern and the denial of his motion for reconsideration.

         1. Before addressing the merits of this appeal, we consider whether we have jurisdiction over the same. As noted above, the trial court granted summary judgment in favor of Norfolk Southern on Fox's claim for the inverse condemnation of his property to the east of the railroad tracks after finding that this claim was preempted by federal law. "The preemption doctrine is a product of the Supremacy Clause, see U.S. Const., Art. VI, Cl. 2, which invalidates state laws that interfere with, or are contrary to, federal law." Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 598 (3) (a) (748 S.E.2d 846) (2013) (citation and punctuation omitted). And under Georgia law, our Supreme Court has exclusive jurisdiction over appeals "involving construction of the Constitution of the State of Georgia and of the United States in all cases in which the constitutionality of a law, ordinance, or constitutional provision has been called into question." Atlanta Independent School System v. Lane, 266 Ga. 657 (1) (469 S.E.2d 22) (1996); Ga. Const. of 1983, Art. VI, Sec. VI, Para. II. Accordingly, it is well-established that appellate jurisdiction lies exclusively with the Supreme Court of Georgia in cases where a party asserts an affirmative claim of preemption. Thus, where a plaintiff sues seeking declaratory or injunctive relief based on an assertion that a Georgia law, ordinance, or regulation is void in its entirety because it is preempted by federal law, appellate jurisdiction lies in the Supreme Court. See, e. g., Ward v. McFall, 277 Ga. 649, 651 (1) (593 S.E.2d 340) (2004) (direct appeal to the Supreme Court where plaintiff sought a declaration that the child support guidelines set forth in OCGA § 19-6-15 (b) were preempted and therefore unconstitutional); Davis v. State, 248 Ga. 783-784 (286 S.E.2d 430) (1982) (direct appeal to the Supreme Court from denial of defendant's motion to dismiss indictment, in which defendant asserted that the Georgia statute punishing "criminal issuance of a bad check" was preempted in its entirety by federal law). Similarly, our Supreme Court has held that it has exclusive appellate jurisdiction where a plaintiff seeks relief based on an argument that preemption precludes the application of an otherwise valid state law in a specific category of cases. See Babies Right Start v. Ga. Dept. of Pub. Health, 293 Ga. 553, 554-555 (1) (748 S.E.2d 404) (2013) (appellate jurisdiction was in the Supreme Court where the plaintiff sought both a declaration that Georgia's Administrative Procedure Act could not apply to an ALJ's ruling regarding vendor eligibility to participate in the federal WIC program and accompanying injunctive relief).

         Traditionally, however, this Court has exercised appellate jurisdiction in those cases that do not involve an affirmative claim of preemption - i.e., where preemption is raised as a defense and where that defense does not involve a direct constitutional challenge to an entire statute, ordinance or regulation on preemption grounds. In other words, we have exercised jurisdiction in those cases where a defendant argues that the plaintiff's otherwise cognizable state law claim is preempted under the circumstances of the particular case. See Perry v. Intl. Longshoremen Assn. Local No. 1414, 295 Ga.App. 799, 801 (2) (673 S.E.2d 302) (2009) (holding that the individual appellants - current and former union members - could not prevail on their defense that federal law preempted the award of amounts each allegedly owed the union); Parks v. Hyundai Motor America, 294 Ga.App. 112, 113-114 (1) (668 S.E.2d 554) (2008) (affirming grant of summary judgment in favor of defendants based on finding that plaintiffs' state law tort claims for defective design and failure to warn were preempted by federal regulations promulgated under the National Traffic and Motor Vehicle Safety Act of 1996); Continental Pet Technologies v. Palacias, 269 Ga.App. 561, 562 (1) (604 S.E.2d 627) (2004) (rejecting employer's defense that the federal Immigration Reform and Control Act of 1986 and regulations promulgated thereunder preempted Georgia law "for employment purposes relating to workers' compensation"); Smith v. Mitchell Constr. Co., 225 Ga.App. 383, 386 (2) (481 S.E.2d 558) (1997) (affirming grant of summary judgment to defendants and holding that plaintiff's state law tort claims resulting from judgment creditor's violation of bankruptcy stay were preempted by federal bankruptcy law); Central of Ga. R. Co. v. Markert, 200 Ga.App. 851, 851-852 (2) (410 S.E.2d 437) (1991) (finding plaintiff's state law negligence claims based on the railroad's alleged failure to equip its locomotive with adequate safety and warning devices and the alleged operation of that locomotive at excessive speeds were preempted by federal law). But see Poloney v. Tambrands, Inc., 260 Ga. 850, 851 (1) (412 S.E.2d 526) (1991) (direct appeal to Supreme Court from trial court's grant of partial summary judgment to defendant based on its finding that federal regulations "expressly preempt state tampon warning label requirements for toxic shock syndrome, including those that emanate from state tort law") (citations omitted).

         As the foregoing demonstrates, the preemption defense cases in which we have exercised jurisdiction have not required us to determine "the constitutionality of a [specific] law, ordinance, or constitutional provision." Instead, they required us to apply well-settled principles of law to determine whether federal law preempts state law in a specific case, thereby barring the plaintiff's state law cause of action. See generally City of Philadelphia v. New Jersey, 430 U.S. 141, 142 (97 S.Ct. 987, 51 L.Ed.2d 224) (1977) (in explaining its decision to remand the case to allow the New Jersey Supreme Court to resolve the question of whether federal law preempted a state statute before it addressed whether that statute discriminated against or unduly burdened interstate commerce, the Court noted that while preemption is "ultimately a question under the Supremacy Clause, analysis of pre-emption issues depends primarily on statutory and not constitutional interpretation") (citation and punctuation omitted). And it appears that our Supreme Court has approved of our exercise of jurisdiction in such cases, at least implicitly. See Perry, 295 Ga.App. 799 (appeal transferred to Court of Appeals from Supreme Court, even though the asserted defense was based, in part, on preemption); Allen v. Wright, 282 Ga. 9, 11-12 (1) (644 S.E.2d 814) (2007) (addressing a preemption defense and affirming this Court's finding that HIPPA preempted OCGA § 9-11-9.2, which required a medical release form to be filed with a complaint alleging medical malpractice; the Supreme Court made no comment regarding this Court's exercise of appellate jurisdiction); Advance PCS v Bauer, 280 Ga. 639 (632 S.E.2d 95) (2006) (addressing a preemption defense and reversing this Court's decision that plaintiff's state law claims were not preempted by ERISA; the opinion raises no question regarding this Court's exercise of jurisdiction).

         Despite our exercise of jurisdiction in appeals involving the assertion of a preemption defense, the Supreme Court's relatively recent decision in Babies Right Start warrants closer consideration. In Babies Right Start, the appeal was originally filed in this Court, but we transferred the case to the Supreme Court, presumably based on the fact that it involved an affirmative claim of preemption. The opinion noted the transfer and broadly stated that the plaintiff's "preemption argument brings the appeal under our constitutional question jurisdiction" and that "the Court of Appeals lack[ed] jurisdiction" over the appeal. 293 Ga. at 554 (1) (citation and emphasis supplied). Although this language arguably could indicate that the Supreme Court has exclusive appellate jurisdiction whenever a preemption question is raised (whether by a plaintiff seeking affirmative relief or by a defendant seeking to avoid liability under traditional state tort or property law), we are mindful that the case involved an affirmative claim of preemption which this Court historically has transferred. Further, this Court has continued to exercise jurisdiction in cases involving a preemption defense.[8] See Midville River Tract v. Central of Ga. R. Co., 339 Ga.App. 546, 549-550 (1) (794 S.E.2d 192) (2016), cert. denied, Case No. S17C0712 (May 30, 2017) (affirming grant of summary judgment in favor of railroad defendants based on a finding that the Federal Railroad Safety Act preempted plaintiff's state law negligence claims); PLIVA, Inc. v. Dement, 335 Ga.App. 398, b 401-402 (1) (a) (780 S.E.2d 735) (2015) cert. granted, Case No. S16C0685 (September 6, 2016) (appeal withdrawn February 10, 2017) (reversing trial court's finding that plaintiff's state law negligence claims based on inadequate warnings on prescription drugs were preempted by federal law). In light of that fact, and given that this case involves a preemption defense rather than an affirmative claim of preemption and does not require us to decide whether a specific statute, ordinance, or regulation is preempted in its entirety by federal law, we have presumed to exercise jurisdiction over this appeal. We do so, however, cognizant of the fact that the ultimate responsibility for construing Georgia's constitutional provisions regarding appellate jurisdiction rests with the Supreme Court, and not this Court. See Saxton v. Coastal Dialysis & Med. Clinic, 267 Ga. 177, 178 (476 S.E.2d 587) (1996).

         2. We turn now to the merits of Fox's appeal. In his first claim of error, Fox does not dispute that Norfolk Southern constructed the passing track entirely within the 100 foot right-of-way it claims under the 1868 deed. He contends, however, that the Railroad does not, in fact, hold title to that entire right-of-way and that the trial court erred in concluding otherwise. Specifically, Fox argues that under the language of the 1868 deed, the Railroad's right-of-way "was determined by the sighting of the new railroad, " and that the "railroad as built stretches no more than [45] feet from ditch to ditch." Fox further contends that the Railroad never used any land beyond the ditches before building the sidetrack. Given these facts, Fox argues that the right-of-way to which Norfolk Southern holds title is, in fact, only 45 feet wide. We disagree. (a) As an initial matter, we note that it appears that Fox's argument on this issue is foreclosed by OCGA § 46-8-100. Enacted in 2008, that statute provides, in relevant part:

A railroad company organized and incorporated as provided in this chapter shall be empowered: . . .
(3) To acquire, purchase, hold, and use all such real estate and other property as may be necessary for the construction and maintenance of said road and of the stations, . . . and all other accommodations necessary to accomplish the object of the corporation; and to condemn, lease, or buy any land necessary for its use; provided, however, that to the extent an issue arises over the dimensions of any such acquisition by a railroad corporation or railroad company which occurred prior to 1913, such dimensions shall be determined by reference to the documents evidencing any such transaction and by examining the official map of the railroad filed with the Interstate Commerce Commission pursuant to the Railroad Valuation Act of March 1, 1913, Stat. 701, as amended, and such depictions contained on such official railroad map shall be conclusive as to the dimensions of any acquisition as of the date of such railroad map; . . .

(Emphasis supplied.) Under the plain terms of this statute, the 1913 valuation map showing the Railroad's 100 foot right-of-way is conclusive evidence as to the dimensions of that right-of-way.

         In an effort to avoid this statute, Fox argues that because this version of OCGA § 46-8-100 did not become effective until after the construction of the sidetrack, it cannot apply to this dispute, because such an application would "retroactively" deprive Fox of his vested rights in the disputed property. To prevail on this argument, however, Fox was obligated to come forward with some evidence showing that he does, in fact, have an ownership interest in the property at issue - either by virtue of title or by acquisition through adverse possession. As is shown below, however, Fox has failed to present any such evidence.

         (b) Fox argues that the language of the 1868 deed, which granted Norfolk Southern's predecessor in interest "a strip of land . . . of sufficient width" on which to build the railroad, not to exceed 100 feet, shows that the deed conveyed to the Railroad only that land which the company actually utilized at the time it built the tracks. Put another way, Fox argues that under the terms of the 1868 deed, the width of the right-of-way was determined by the space physically occupied by the Railroad when it constructed the tracks, that title to the unclaimed portion of the 100-foot ...


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