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Abbott, Inc. v. Guirguis

Court of Appeals of Kentucky

March 23, 2018

ABBOTT, INC. AND THE ESTATE OF JOHNNY BROWN RUSSELL, BY AND THROUGH ITS EXECUTOR, WARREN K. HOPKINS APPELLANTS
v.
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

          APPEAL FROM HOPKINS CIRCUIT COURT HONORABLE JAMES C. BRANTLEY, JUDGE ACTION NO. 08-CI-00177

          BRIEF FOR APPELLANT: Sheryl G. Snyder Louisville, Kentucky Thomas E. Springer III Madisonville, Kentucky ORAL ARGUMENT FOR APPELLANT: Thomas E. Springer, III Madisonville, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEE SAMUEL GUIRGUIS: William G. Deatherage, Jr. Hopkinsville, Kentucky Mark Alexander Gilbert Hopkinsville, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEES DARIN G. TABOR; DIANA P. HERRIN & HOMESTEAD AUCTION & REALTY, INC.: Todd Andrew Farmer Paducah, Kentucky

          BRIEF AND ORAL ARGUMENT FOR APPELLEES JAMES E. SPEAKS; DWIGHT E. WEST, INDIVIDUALLY AND AS EXECUTOR OF BRENDA WEST: Richard E. Peyton Madisonville, Kentucky

          AMICUS 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.

          OPINION AFFIRMING

          LAMBERT, D., JUDGE.

         Abbott, 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         This 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 until 2001.

         This 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.

         Resolving this dispute requires an examination of the ownership and usage history of both tracts.

         The rail line across the property was constructed in the late 1800's by the Illinois Central Gulf Railroad[1] ("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.

         P&L 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 freight.

         P&L sought permission from the Surface Transportation Board[2] 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 ...


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