Boundary Survey of General Series Survey 2969 in Missouri: Soulard vs. General Land Office

There has been a lot of interest lately in the private land claim that was confirmed to Peter Delassus Deluzieres and which is now known as General Series Survey 2969 (also known as U. S. Survey 2969). It is located in Farmington, Missouri, and since there has been so much speculation, I thought it would be interesting to examine and compare the survey performed by Antoine Soulard in 1799 under the authority of the Spanish government and the survey performed by William Bartlett in 1835 under the authority of the United States General Land Office. I personally found the comparison to be very enlightening and instructive, so I thought I would share it.

To review the basic background information, in 1793, Peter Delassus Deluzieres had entered into a five year contract with the Spanish government to deliver thirty thousand pounds of lead. He, therefore, petitioned the lieutenant governor of Upper Louisiana on March 3, 1795 for a grant of land of one league square, being equal to 7056 arpents (French measure) or 6002.5 acres (English measure). On April 1, 1795, Lieutenant Governor Zenon Trudeau conceded the tract of one league square of land as had been requested (American State Papers, Public Lands, Vol. 6, pgs 809-812).

Antoine Soulard had been commissioned as Surveyor General of Upper Louisiana on February 3, 1795, but had not yet set up shop and begun work (Territorial Papers of the United States, Vol. 14, pg 30). As a result, a few years passed before a boundary survey of the Delassus concession could be performed. On November 29, 1799, Antoine Soulard was directed by Lieutenant Governor Charles Dehault Delassus (Peter's son) to perform the boundary survey.

On March 5, 1800, Soulard certified that he had performed the survey on December 14, 1799 and that all measurements had been made with the perch of Paris of 18 feet in length, agreeably to the custom adopted in the province of Louisiana. He subsequently recorded his plan and notes in the Registre d'Arpentage (Archive of Surveys) as shown here:

Let's take a closer look at the information that Soulard provided.

First of all, we notice that the text is in French, so a translation is necessary.

Next, we notice that the only dimensions included are for the boundary. The courses and distances progress in a counterclockwise direction: beginning at the northeast corner, then West 84 arpents (lineal measure), South 84 arpents, East 84 arpents and North 84 arpents. One lineal arpent is equal to the length of the side of one square arpent of area. Twelve (12) lineal arpents are equal to thirty-five (35) chains (American State Papers, Public Lands, Vol. 4, pg 22), where one chain equals sixty-six (66) english feet.

The magnetic declination is shown as 7 1/2 degrees East and it should be noted that no correction was made. This is not explicitly stated here, but that was Soulard's practice. Thus, to obtain the bearings relative to astronomic north the figure would need to be rotated clockwise 7 1/2 degrees.

Next, we see small circles at the corners of the tract and distributed along the boundary lines. Each circle has a number beside it. There are no dimensions indicating the distance between intermediate circles along the line. So, what do the circles and numbers mean?

Let's look at the lower part of the drawing:

Here, we see that the circles represent "Bournes de Pierres, sur témoins de morseau [morceau] des marmites de fer," which translates to stone markers with pieces of iron pots for witness.

Here, we see the numbers defined:

1. piquêt = stake or post

2. chêne blanc = white oak

3. noyer = hickory

4. frêne = ash tree

 5. nogalon noyer, chêne Galleux, au lieu de noyer (I'm not sure on the translation for this) some kind of hickory, then some kind of oak in place of the hickory

It is noted that tous marqués DL = all the trees are marked DL

So, at this point I know what the circles mean and what the numbers stand for, but I'm not real sure what the circles and numbers together mean. Are the numbers indicating witness trees or are they part of the corner? Is it either a stone or a tree/post or both?

Okay, well, let's move on:

Next, we see that the tract is located 25 miles to the W. S. W. of the Village of New Bourbon and that tous les arbres de lignes sont plaqués = all the trees on the lines are marked.

Lastly, we see that the survey was performed on December 14, 1799 in virtue of the decree of the Lieutenant Governor Mr. Charles Dehault Delassus, dated November 29 of the same year. The certificate of survey was completed on March 5, 1800. Signed with the mark of Antoine Soulard.

So, there's the explanation for Soulard's survey. The information provided is brief and creates more questions than it provides answers. The drawing does also contain topographic features for reference, including a branch of the St. Francis River, creeks, hills and the location of the lead mine site (mine de plomb site), along with a statement that the land is generally good (terre generallement bonne).

After the United States took possession of the province of Louisiana, the process for confirmation of private land claims began. See my book, It was not Quick and It Was Not Simple: The Saga of Private Lands Claims in Missouri (go to book), for a more detailed description of that process. The Delassus claim was not confirmed until it was taken all the way to the United States Supreme Court (U. S. Reports, Vol. 34, pg 117). The Court confirmed the claim during the January term of 1835.

Under instructions from the Surveyor General of the United States for Illinois and Missouri, dated September 27, 1835, William Bartlett proceeded to make a boundary survey of the confirmed Delassus land claim, beginning on October 27, 1835 and ending on November 2, 1835 (Record of MO Private Surveys, Vol. 16, pgs 47-57).

He proceeded as follows (please, note that not all of the notes will be transcribed here, only those relevant to this discussion):

Compass adopted to the Variation of 7 1/2° East to conform to the original lines of Survey.

Examined for the North East Corner of Charles Dehault Delassus Survey and found a Hickory marked DL but no stone nor pieces of Iron Pot, therefore at the intersec[tion] of the North and East boundary lines of said Survey, set a post Corner from which a Hickory 12 inch Diam[eter] b[ear]s N43°W 55 Lks [36.3 feet] and a Black Oak 12 inch diam[eter] b[ear]s S78°W 108 Lks [71.3 feet]

Referring back to the Soulard survey, it notes a circle for a stone and a number "3," indicating a noyer or hickory marked DL. Marked hickory found, but no stone. Also noteworthy is that the intersection of boundary lines did not correspond with the location of the marked tree.

Thence N 82 1/2° W

[At a distance of] 0.71 [chains (46.9 feet) from the Northeast corner, found] Hickory 12 inch diam[eter] marked DL mentioned before

[At a distance of] 58.40 [chains (3854.4 feet) from the Northeast corner] Examined for witness as marked on plat A, but found none

This, then, would be the next circle on the Soulard survey, which is annotated with the number "3" for hickory. Nothing found, but what is the distance in arpents?

(58.40 chains)*(12 arpents/35 chains) = 20.0 arpents

Continuing: 

[At a distance of] 175.20 [chains (11563.2 feet) from the Northeast corner] Examined for witness as pr Plat A, but found none

It appears that the second line marker was skipped, so this would be the third circle on the Soulard survey, which is annotated with the number "5." Nothing found, but what is the distance in arpents for this one?

(175.20 chains)*(12 arpents/35 chains) = 60.1 arpents

So, it's looking like the line markers a being set every 20 arpents.

Continuing:

[At a distance of] 233.60 [chains (15417.6 feet) from the Northeast corner] Examined for witness as pr plat A, but found none

the last mile of this line appears not to have been blazed

This would be the fourth line mark on the Soulard survey, which is annotated with the number "1" for stake or post. Nothing found, but what is the distance in arpents to this one?

(233.60 chains)*(12 arpents/35 chains) = 80.1 arpents

Again, it appears the line marks are being set every 20 arpents.

In regard to the lines not being blazed for the last mile, that part of the line would appear to correspond with the creek bottom where the quality of the trees may not have been as good.

Continuing:

[At a distance of] 245.00 [chains (16170.0 feet) from the Northeast corner] Examined for Corner, but found none, therefore set a Corner post [for Northwest corner] from which a Gum 14 inch diam[eter] b[ear]s N58°W 15 Lks [9.9 feet] & a Gum 14 inch diam[eter] b[ear]s N60°E 69 Lks [45.5 feet]

William Bartlett, therefore, did not find a Soulard stone at the Northwest corner, so he set a post.

Continuing:

Thence S 7 1/2° W

[At a distance of] 29.61 [chains (1954.3 feet) from the Northwest corner] A Black Oak 12 inch diam[eter] here we find that we are on the Old line

[At a distance of] 58.40 [chains (3854.4 feet or 20 arpents) from the Northwest corner] Examine for witness as pr Plat A, but found none

So far, William Bartlett has been following the old blazed line, but has only found one tree marked as called for by Soulard. We may also note here that the old blazed line reappeared once Bartlett left the creek bottom.

Continuing:

[At a distance of] 117.80 [chains (7774.8 feet) from the Northwest corner, found] A white Oak 18 inch diam[eter] marked DL but found no stone nor pieces of Iron pot

Okay, so this would be the second line mark on the Soulard survey south of the Northwest corner, which is annotated with the number "2," which indicates a white oak. White Oak marked DL found!, but no stone. What is the distance in arpents?

(117.80 chains)*(12 arpents/35 chains) = 40.4 arpents

Continuing:

[At a distance of] 175.20 [chains (11563.2 feet or 60.1 arpents) from the Northwest corner] Examined for witness as pr plat A, but found none

This would be the third line marker on the Soulard survey south from the Northwest corner, which is annotated with the number "5." Nothing found.

Continuing:

[At a distance of] 233.60 [chains (15417.6 feet or 80.1 arpents) from the Northwest corner] examined for witness as per plat A, but found none

[At a distance of] 244.96 [chains (16167.4 feet or 84 arpents) from the Northwest corner, found] A white Oak 16 inch diam[eter] marked DL with a stone placed at the root, we raised the stone but found no pieces of Iron pot, this tree is at the intersec[tion] of the West and South boundary lines of Survey therefore I established it for the Corner from which a white Oak 14 inch dia[meter] b[ear]s S63°E 62 Lks [40.9 feet] and a white Oak 14 inch diam[eter] b[ear]s S43°W 93 Lks [61.4 feet]

Finally, he found a stone! The Soulard survey indicated a white oak (number 2) here and that's what Bartlett found marked as expected. The interesting thing to note here is that the stone was placed at the root of the tree indicated. So, it would appear that the stone and tree together form the corner.

Continuing:

Thence S 82 1/2° E

[At a distance of] 58.40 [chains (3854.4 feet or 20 arpents) from the Southwest corner] Examined for witness as per plat A, but found none

[At a distance of] 116.41 [chains (7683.1 feet or 39.9 arpents) from the Southwest corner, found] A white Oak 20 inch diam[eter] marked DL with stone placed at the root

Nothing found at the first line mark, but the second line mark from the Soulard survey found as expected. Here again the stone is at the root of the tree.

Continuing:

[At a distance of] 233.60 [chains (15417.6 feet or 80.1 arpents) from the Southwest corner] Examined for witness as pr Plat A, but found none

[At a distance of] 245.00 [chains (16170.0 feet or 84 arpents) from the Southwest corner] Examined for Corner and found the East boundary line

[At a distance of] 245.65 [chains (16212.9 feet) from the Southwest corner] Set a Corner post at the intersec[tion] of the South and East boundary lines from which a white Oak 10 inch diam[eter] b[ear]s S53°E 29 Lks [19.1 feet] & a white Oak 24 inch diam[eter] b[ear]s S19°W 25 Lks [16.5 feet]

Thence N 7 1/2° E

[At a distance of] 0.45 [chains (29.7 feet) from the Southeast corner, found] A white Oak 20 inch diam[eter] with stone placed at the root

Now this is a little curious. Bartlett found the stone and white oak as expected, but not at the intersection of the boundary lines. He marked the actual intersection with a post.

Continuing:

[At a distance of] 58.76 [chains (3878.2 feet or 20.15 arpents) from the Southeast corner, found] A Hickory 14 inch diam[eter] marked DL

This would be the first line mark on the Soulard survey, where a hickory was found as expected. Apparently, no stone, though.

Continuing:

[At a distance of] 117.15 [chains (7731.9 feet or 40.2 arpents) from the Southeast corner, found] A Hickory 14 inch Diam[eter] with stone and Pieces of Iron Pot.

 [At a distance of] 175.20 [chains (11563.2 feet or 60.1 arpents) from the Southeast corner] Examined for witness as pr plat A, but found none

 [At a distance of] 233.60 [chains (15417.6 feet or 80.1 arpents) from the Southeast corner] Examined for witness as pr plat A, but found none

[At a distance of] 245.48 [chains (16201.7 feet) from the Southeast corner] Closed at the beginning Corner. November 2, 1835

A curious thing to note here is that the length of this east line is 48 links long and the distance from the intersection of boundary lines at the southeast corner to the found stone and tree is 45 links. The distance from the stone and tree at 45 links to the found tree at 58.76 chains from the intersection of boundary lines is 58.31 chains (58.76 - 0.45) or 20.0 arpents. The distance from the stone and tree at 45 links to the stone and tree at 117.15 chains from the intersection of boundary lines is 116.7 chains (117.15 - 0.45) or 40.0 arpents. Remember also that the tree found at the northeast corner did not correspond with the intersection of boundary lines. Why the discrepancy? Were the marked boundary lines not those of Soulard? If the marked boundary lines are those of Soulard, did he mark the nearest available tree when a tree did not coincide with the corner? We can't ask Soulard now, so I guess we're left to speculate.

So, out of a total of twenty (20) markers set by Soulard, each of which was supposed to be a stone with a tree or post, William Bartlett only recovered seven (7) trees and only four (4) of those had stones. It should be noted that only one corner, the southwest corner, was actually found marked. Many of the markers set by Soulard were likely destroyed, obliterated or lost to natural deterioration before Bartlett got there. And, I suppose, there is always the possibility that Bartlett just missed some of markers.

I hope you found this interesting and that it helped in your understanding of how Soulard actually conducted his surveys.

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original composition by Steven E. Weible

updated 11-19-2023

It Was Not Quick and It Was Not Simple: The Saga of Private Land Claims in Missouri

 

I've written a book!

I've taken the articles about private land claims in Missouri that I have written over the past several years and have put them together in a .pdf "book."

This book, however, is not simply a collection of those previous articles. By the time I finished with the last article in March 2022, I had more information than I did when I started, so I rewrote some of the earlier articles, supplemented others and have included additional material.

This book has been written particularly for Missouri land surveyors as an educational resource, so that they can be fully informed about these oddities within the fabric of the orderly system of public land surveys, but other land professionals, genealogists and local history enthusiasts may also find the information useful.

The book was completed in March 2023 and is now available for download on the website of the Missouri Society of Professional Surveyors on the "Resources" page:

http://www.missourisurveyor.org/images/1185/document/itwasnotquick-ed1_671.pdf

You can also use the link on the right under "Published Articles."

 

Missouri's Katy Trail and the Court of Federal Claims

The Supreme Court of the United States had settled the matter. The National Trails System Act as amended in 1983 (Public Law 98-11, Section 208, 97 Stat 42), allowing the interim use of railroad corridors for recreational purposes, was a valid exercise of Congressional authority (Preseault v. ICC, U.S. Reports, Vol. 494, pg 1). The application of the legislation, however, might block or delay the recovery of property encumbered by railroad easements that would have been extinguished upon abandonment of the railroad corridor. This denial of recovery could constitute a taking of property rights without compensation. If a taking or denial of property rights did occur as a result of federal legislation, the United States would be liable for compensation under the Fifth Amendment to the United States Constitution.

Although the Supreme Court of the United States determined the constitutionality of the legislation, it did not determine whether or not its application created a liability for the United States to provide compensation. The Court recognized that not all rail-to-trail conversions would result in a taking of property rights, since the nature of the interest originally acquired by the railroad would be the determining factor. Railroad corridors were generally acquired in numerous parcels, so each parcel would have to be evaluated on its own merits and a claim for compensation pursued through the United States Court of Federal Claims.

The United States Court of Federal Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department ... (28 USC 1491(a)(1)).

Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues (28 USC 2501).

A claim for compensation had to be filed in a timely manner after the claim first accrued, but it would take some court examination before it could be determined exactly when a claim first accrues. The case of Caldwell v. United States was the first to consider at what point in the railbanking process it is appropriate to initiate a claim for compensation.

When a railroad decides to abandon any part of its railroad line, it files an application with the Surface Transportation Board (STB), formerly the Interstate Commerce Commission. Standard abandonment proceedings are governed by the provisions of 49 USC 10903 (49 CFR 1152). If there has been no local traffic over the railroad line for at least two years and any overhead traffic on the line can be rerouted over other lines, the railroad may apply for an exemption from the standard abandonment proceedings under the provisions of 49 USC 10502 (49 CFR 1152.50(b)).

If a state, political subdivision or qualified private organization is interested in using the railroad corridor for interim trail use in accordance with the amended National Trails System Act, it must make a filing to that effect with the Surface Transportation Board. Under standard abandonment proceedings the filing is in the form of a “comment” or “request.” For an exemption proceeding a “petition” is required (49 CFR 1152.29).

If the railroad agrees to negotiate an interim trail use/railbanking agreement with the trail sponsor, then the STB will issue a “Certificate of Interim Trail Use or Abandonment” (CITU), for standard abandonment proceedings, or a “Notice of Interim Trail Use or Abandonment” (NITU), for exemption proceedings. If a railroad is unwilling to enter into an interim trail use agreement, it cannot be forced to do so (National Wildlife Federation v ICC, 850 F.2d 694 (1988)).

The issuance of a CITU or a NITU allows the railroad to discontinue service, cancel any applicable tariffs and salvage track and material consistent with interim trail use and railbanking. The railroad and trail sponsor then have a set period of time to negotiate an interim trail use agreement. If agreement cannot be reached in this set amount of time, an extension may be requested. Once an agreement is reached, the STB is notified. The CITU or NITU remains in effect indefinitely as long as the trail sponsor maintains its obligations under the National Trails System Act. If negotiations fail and no interim trail use agreement results, the railroad is permitted to fully abandon its line.

The Railway Company in the Caldwell case filed a notice of exemption to abandon its line on July 5, 1994. A trail sponsor came forward and a Notice of Interim Trail Use or Abandonment (NITU) was issued by the Interstate Commerce Commission (ICC) on August 31, 1994. Several extensions were granted before an agreement was reached and a notice to the ICC was filed on July 5, 1996. The actual transfer was executed on October 9, 1996 and filed for record on October 11, 1996. Plaintiffs filed their claim for compensation in the United States Court of Federal Claims on October 7, 2002 (57 Fed. Cl. 193 (2003)). That court determined the claim to be barred as untimely, not having been filed within six years of the date of the Trail Use Agreement. Upon appeal, the United States Court of Appeals, Federal Circuit, affirmed the decision of the Court of Claims, but for a different reason (391 F.3d 1226 (2004)). The Appeals Court made the following statements:

The taking, if any, when a railroad right-of-way is converted to interim trail use under the Trails Act occurs when state law reversionary property interests that would otherwise vest in the adjacent landowners are blocked from so vesting ... We conclude that this occurs when the railroad and trail operator communicate to the STB their intention to negotiate a trail use agreement and the agency issues an NITU that operates to preclude abandonment under Section 8(d).

The issuance of the NITU is the only government action in the railbanking process that operates to prevent abandonment of the corridor and to preclude the vesting of state law reversionary interests in the right-of-way.

Thus, the NITU operates as a single trigger to several possible outcomes. It may, as in this case, trigger a process that results in a permanent taking in the event that a trail use agreement is reached and abandonment of the right-of-way is effectively blocked ... Alternatively, negotiations may fail, and the NITU would then convert into a notice of abandonment. In these circumstances, a temporary taking may have occurred. It is not unusual that the precise nature of the takings claim, whether permanent or temporary, will not be clear at the time it accrues.

This decision was challenged by Barclay v. United States, 443 F.3d 1368 (2006), but it was reaffirmed by the United States Court of Appeals, Federal Circuit.

In the case of Ladd v. United States, 90 Fed. Cl. 221 (2009), a NITU had been issued, but negotiations failed and a trail use agreement was not reached. Plaintiffs filed a taking claim after the NITU was issued in accordance with the Caldwell decision, claiming they had been prevented from enjoying the unencumbered use of their property. The United States Court of Federal Claims dismissed the case, stating that no taking had occurred, since no interim use resulted. On appeal, the United States Court of Appeals, Federal Circuit, affirmed its former decisions in Caldwell and Barclay, stating that “where no trail use agreement is reached, the taking may be temporary ... However, physical takings are compensable, even when temporary” (630 F.3d 1015 (2010)). The decision of the Court of Claims was reversed and sent back for a determination of compensation.

The Katy Trail was realized when the Missouri-Kansas-Texas Railroad Company chose to abandon part of its corridor in Missouri in 1986. The Missouri Department of Natural Resources requested an interim use under the National Trails System Act as amended in 1983 and the Interstate Commerce Commission issued a Certificate of Interim Trail Use or Abandonment in April 1987. An interim trail use agreement was negotiated and the property was transferred later in 1987. Claims for compensation would follow as landowners adjoining the corridor were outraged at being denied the recovery of property occupied by the railroad.

Landowners opposing the Katy Trail took their argument to the United States District Court of Missouri, Eastern District, and were denied (Glosemeyer v. Missouri-Kansas-Texas R.R., 685 F. Supp. 1108 (E. D. Mo. 1988)). Appealing that decision, they took their argument to the United States Court of Appeals, Eighth Circuit, and again were denied (Glosemeyer v. Missouri-Kansas-Texas Railroad, 879 F.2d 316 (1989)). They then recognized that the Katy Trail was not going away and the only option left was a claim for compensation in the United States Court of Federal Claims. Interested landowners were advised that Mountain States Legal Foundation would file a class action suit on their behalf. A few days before the six-year time limit expired, however, Mountain States informed landowners that it would not be able to file the suit as a class action.

Mountain States Legal Foundation did represent Maurice and Delores Glosemeyer, but the remaining landowners were left to scramble for other options. On the day that the six-year limit would expire in 1993, these remaining landowners were able to file a motion for certification of their case as a class action in the United States Court of Federal Claims (Moore v. United States, 41 Fed. Cl. 394, Action No. 93-134L (1998)). They asserted that there were over two thousand (2000) potential class members owning property along the Katy Trail. Action on this case was delayed pending a decision by the United States Court of Appeals, Federal Circuit, in Preseault v. United States, 100 F.3d 1525 (1996), being an appeal of a decision of the United States Court of Federal Claims.

When the Court resumed its consideration of whether or not to certify the case as a class action, it identified the following eight criteria:

(1) whether the potential litigants constitute a large but manageable class;

(2) a common question of law is present;

(3) that [a] common issue predominates over any separate factual issues affecting individual members;

(4) the claims of the present plaintiffs must be typical of the claims of the class;

(5) the government must have acted on grounds generally applicable to the whole class;

(6) the claims of the class must be so small that it is doubtful they would be otherwise pursued;

(7) the current plaintiffs will adequately protect the interests of the class; and

(8) there is risk of inconsistent adjudications if individual actions were maintained separately, some in district court and some in this court.

More generally, class actions are appropriate only where they serve the interests of justice. [at page 397]

The Court decided that the case was well-suited for class action treatment. It, therefore, certified the action on July 2, 1998 as a class action on an “opt-in” basis. The class was to “consist of landowners whose property is burdened by the Katy Trail.” Potential class members were to be notified and those interested in joining were required to file a “Notice of Appearance.”

The Notice of Appearance shall have attached to it documentation that establishes (1) ownership of the parcel of land in question, (2) an affidavit that the parcel of land is presently burdened by the Katy Trail, and (3) proof of the property interest conveyed to the railroad. [footnote 4, page 401]

The government may contest the eligibility of any individual to join the class on the grounds that (1) the individual is not the fee owner of the burdened land, (2) the interest conveyed to the railroad contains no limitation and was in fee simple absolute, (3) the supporting documentation attached to the Notice of Appearance is inadequate, or (4) any other similar reason. [at page 401]

These preceding court actions had been specifically for those landowners adjoining the Katy Trail from Machens in Saint Charles County to Sedalia in Pettis County. There was, however, a separate abandonment proceeding in progress for the section of Missouri-Kansas-Texas Railroad corridor from Sedalia to Clinton in Henry County. The MKT had merged with Missouri Pacific Railroad Company in December 1989 and a Certificate of Interim Trail Use or Abandonment was issued in April 1991, so that Missouri Pacific could negotiate for an interim trail use agreement. An attempt was made to add landowners adjoining this second segment of corridor to the original class action suit, but the Court of Federal Claims denied this request, noting that it was both untimely and inappropriate (Moore v. United States, 42 Fed. Cl. 595 (1998)).

The Court of Federal Claims cases of Glosemeyer v. United States, Action No. 93-126L, Moore v. United States, Action No. 93-134L, and Grantwood Village v. United States, Action No. 98-176L, were consolidated for the purpose of resolving common issues of federal and Missouri law (45 Fed. Cl. 771 (2000)). The Court determined that interim trail use in accordance with the amended National Trails System Act did not constitute a railroad purpose under Missouri law where an easement had originally been acquired for railroad purposes only. Such an easement would have been extinguished whenever the use for railroad purposes ended. Therefore, delaying abandonment of the corridor and allowing interim use for recreation created a new easement for which compensation is required. The cases were then unconsolidated for further action.

For the class action suit of Moore v. United States, Action No. 93-134L, two hundred and ninety-eight (298) landowners opted into the class. The properties were grouped into categories and a representative parcel from each category was presented for examination by the Court with the intention that the decision on a representative parcel could be applied to the other parcels in the same category. A bench trial was conducted in Saint Louis, Missouri from November 12 through 22, 2002 on thirteen (13) representative parcels (54 Fed. Cl. 747 (2002)). The parties and the Court conducted a site visit of the representative parcels and then fact and expert witnesses were presented to show the competing views as to the value of the easement taken.

The Court described the procedure for determining the amount of compensation as follows:

It is settled that a landowner claiming a physical, partial taking of property is entitled to the difference in value before and after the taking. In this case, each landowner suffered a partial taking in two senses. First, the new easement is less than the fee estate. Second, the new easement potentially negatively impacts a larger piece of land than the right of way itself. This is known as severance damage and constitutes a pedigreed element of compensation, assuming it can be proved.

The calculation, therefore, involved “a determination of the fair market value of the entire affected parcel as if the easement did not exist and then another determination in light of the taking.”

Each parcel was appraised to determine a highest and best use and the acreage was determined. There was some disagreement about how the right-of-way parcels should be evaluated, but the Court decided “the right of way parcel should be diminished 100% in the “after” analysis because the landowners had no effective remaining use of the property ... Accordingly, the parties should value the land underlying the right of way in the “after” calculation at zero.” Where there was inconsistency in the values presented by each side, the court determined a compromise value, often by averaging the acreage calculations and taking the higher per unit land valuation. Compensation for the thirteen (13) representative parcels was fixed to facilitate settlement of the remaining claims.

Based on this representative determination, the parties agreed on the amount of compensation for a total of two hundred and eighty (280) claims out of the two hundred and ninety-eight (298). In a further proceeding of Moore v. United States, 58 Fed. Cl. 134 (2003), the Court of Federal Claims examined and dismissed seven (7) claims. The parties were able to resolve the amount of just compensation for eight (8) more claims. In a subsequent proceeding of Moore v. United States, 61 Fed. Cl. 73 (2004), compensation was established for the three (3) remaining claims.

After twelve years of litigation in the United States Court of Federal Claims (1993-2005), a final proceeding was held in January 2005 to approve a final settlement in the class action suit (Moore v. United States, 63 Fed. Cl. 781). Judgment against the United States was entered in the total amount of $5,065,820.62 (including $4,065,820.62 for principal and interest and $1 million for attorney fees, expert fees, and all other litigation expenses). The award was paid to the class action attorney for distribution to class members. Deductions from the award by the attorney of $356,745.33 for litigation expenses and $1.6 million for a contingency fee were approved by the Court. The remaining $3,109,075.29 was distributed to the two hundred ninety-one (291) class members for which compensation had been approved.

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original composition by Steven E. Weible