ABBOTT, INC. AND THE ESTATE OF JOHNNY BROWN RUSSELL, BY AND THROUGH ITS EXECUTOR, WARREN K. HOPKINS APPELLANTS
SAMUEL GUIRGUIS; DARRIN G. TABOR; DIANA P. HERRIN; HOMESTEAD AUCTION & REALTY, INC.; JAMES E. SPEAKS; DWIGHT WEST, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF BRENDA WEST; MICHAEL RUSSELL, INDIVIDUALLY AND AS ATTORNEY-IN-FACT FOR BRENDA RUSSELL; PATSY E. HOLLAND; AND SHARON RUSSELL APPELLEES
FROM HOPKINS CIRCUIT COURT HONORABLE JAMES C. BRANTLEY, JUDGE
ACTION NO. 08-CI-00177
FOR APPELLANT: Sheryl G. Snyder Louisville, Kentucky Thomas
E. Springer III Madisonville, Kentucky ORAL ARGUMENT FOR
APPELLANT: Thomas E. Springer, III Madisonville, Kentucky
AND ORAL ARGUMENT FOR APPELLEE SAMUEL GUIRGUIS: William G.
Deatherage, Jr. Hopkinsville, Kentucky Mark Alexander Gilbert
AND ORAL ARGUMENT FOR APPELLEES DARIN G. TABOR; DIANA P.
HERRIN & HOMESTEAD AUCTION & REALTY, INC.: Todd
Andrew Farmer Paducah, Kentucky
AND ORAL ARGUMENT FOR APPELLEES JAMES E. SPEAKS; DWIGHT E.
WEST, INDIVIDUALLY AND AS EXECUTOR OF BRENDA WEST: Richard E.
Peyton Madisonville, Kentucky
CURIAE BRIEF FOR PADUCAH & LOUISVILLE RAILWAY, INC.: Lisa
H. Emmons Paducah, Kentucky NO BRIEF FILED FOR APPELLEES
PATSY HOLLAND; SHARON RUSSELL; OR MICHAEL RUSSELL
BEFORE: COMBS, JOHNSON, AND D. LAMBERT, JUDGES.
LAMBERT, D., JUDGE.
Inc., and the Estate of Johnny Brown Russell appeal the entry
of a summary judgment by the Hopkins Circuit Court. The
Appellants ask this Court to determine whether the trial
court properly awarded fee simple ownership of real estate
formerly used as a railroad bed to the Appellee, Samuel
Guirguis. Having thoroughly reviewed the record, we find the
trial court committed no reversible error, and affirm.
FACTUAL AND PROCEDURAL HISTORY
dispute concerns an elevated strip of land approximately 66
feet wide and 1500-2000 feet long, which runs west-to-east
and divides 1, 066 acres of land owned by Guirguis into
northern and southern portions. Abbott, Inc.
("Abbott"), and Guirguis both claimed ownership of
this strip of land, which had been used as a railway line
from its construction in the late 19th century
action began when Guirguis filed suit against David West, his
wife, Brenda West, and James Speaks, the prior owners of his
property who sold it to him; Darrin Tabor and Diana Herrin,
the individual realtors through whom the transaction was
executed; and Homestead Auction and Realty, Inc.
("Homestead"), the seller's realtor. Guirguis
asserted claims for damages for fraud, breach of contract,
misappropriation, and failure to disclose. He argued that
these defendants had misrepresented to him that the land he
was purchasing was contiguous and had adequate road access.
The Wests and Speaks filed an amended cross-claim adding
Abbott as an adverse party at the suggestion of the trial
court, who noted during a motion hearing that the ownership
status of the railroad bed needed to be resolved.
this dispute requires an examination of the ownership and
usage history of both tracts.
rail line across the property was constructed in the late
1800's by the Illinois Central Gulf
Railroad ("Illinois Central"). The
construction of the rail line required elevating the land
approximately fifteen feet above the level of the surrounding
wetlands. How Illinois Central came into possession of the
land which became the railroad bed was never resolved.
According to the deposition testimony of Tom Garrett, former
general counsel and current president of Paducah &
Louisville Railroad, Inc. ("P&L"), business
records-a plat map prepared by Illinois Central in
1915-indicated that Illinois Central acquired title by
adverse possession sometime prior to the map's creation.
Illinois Central only used the land for transportation, and
lined its northern and southern boundaries with fences to
prevent trespassing by both people and wildlife.
purchased the line from Illinois Central in 1986. Thereafter,
P&L transmitted freight on the subject property until
2001. Garrett testified by deposition that P&L shipped
commodities-primarily coal-over that line. P&L also
conducted inspections of the line twice weekly, performed
maintenance on the rails and any related equipment, and
performed vegetation control actions annually or
semi-annually. Additionally, P&L paid the ad
valorem taxes on the property and insured it. Garrett
further testified that the railroad ceased maintaining the
line in 2001, when P&L stopped using it for transmitting
sought permission from the Surface Transportation
Board to abandon the operation of the line in
2003. Garrett testified that, in the railroad context, the
term "abandonment" has a specific definition and
procedure provided in the United States Code and the Code of
Federal Regulations ("C.F.R."). Garrett explained
that the definition boils down to ceasing to operate as a
common carrier on a specified stretch of federally regulated
track. The Surface Transportation Board approved the
abandonment, and P&L removed the track. However, Garrett
testified that P&L continued to pay the ad
valorem taxes assessed on the property, and take ...