United States District Court, D. Utah
L.K.L. ASSOCIATES, INC., a Utah corporation; and HEBER RENTALS, LC, a Utah limited liability company, Plaintiffs,
UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Defendant and Counterclaim Plaintiff.
MEMORANDUM OPINION AND ORDER
S. Jenkins Senior District Judge
L.K.L. Associates, Inc. ("LKL") and Heber Rentals,
LC ("Heber Rentals") (hereinafter collectively
"Plaintiffs") filed a Motion for Summary Judgment
on July 28, 2017.After the motion was fully briefed by the
parties,  the matter came before the court for
hearing on August 24, 2017. David R. Nielson appeared on
behalf of Plaintiffs. Julianne P. Blanch and Adam E.
Weinacker appeared on behalf of Defendant Union Pacific
Railroad Company ("Union Pacific"). After lengthy
arguments and discussion, the parties requested the court
reserve on the matter until September 7, 2017, in order to
give the parties time to revisit settlement
negotiations. The parties were unsuccessful in their
settlement attempts. On September 8, 2017, Union Pacific
submitted to the court a Notice of Supplemental Authority,
attaching a copy of a newly issued Memorandum from the U.S.
Department of the Interior's Office of the Solicitor (the
"2017 M-Opinion") regarding the scope of railroad
right of ways under the General Railroad Right-of-Way Act of
March 3, 1875 (the "1875 Act"). The court held a
status conference regarding Union Pacific's supplemental
authority on September 19, 2017, during which the court set
deadlines for the parties to submit additional briefing,
additional briefing was completed on November 13,
considered the parties' briefs, the evidence presented,
the arguments of counsel, and the relevant law, the court
hereby GRANTS IN PART and DENIES IN PART Plaintiffs'
Motion for Summary Judgment. The court denies Plaintiffs'
Motion for Summary Judgment as to its claim for rescission
and return of lease payments. The court finds rescission
unwarranted because (i) the claim is untimely, and (ii)
rescission is redundant because the lease agreements do not
serve a railroad purpose and therefore are unenforceable. The
court further denies Plaintiffs Motion for Summary Judgment
as to its claims for declaratory relief, as the declarations
sought are in excess of the necessities of this case. As to
Union Pacific's counterclaims, the court grants
Plaintiffs' Motion for Summary Judgment.
following provides an overview of the relevant undisputed
facts for purposes of Plaintiffs' Motion
for Summary Judgment:
• In 1856, C.L. Craig of the United States Government
Land Office surveyed Township 6 South, Range 2 East, Salt
Lake Meridian, in the Utah Territory. This case involves
property located in the west half of the northwest quarter of
Section 16 of that Township.
• In 1873, Utah Southern Railroad ("Utah
Southern") finished construction of a railroad from Salt
Lake County to Utah County. The railroad enters Section 16
from the north, a little east of the west section corner, and
traverses in a south-easterly direction until it exits the
west half of the northwest quarter of Section 16 in the
south. This section of the track shall be referred to
hereinafter as the "Provo Industrial Lead." This
case involves the property located to the west of the
railroad track in this particular area.
• In 1875, the United States passed the General Railroad
Right of Way Act of 1875 ("1875 Act") granting
railroads (including Utah Southern) a right of way across the
public lands of the United States to the extent of one
hundred feet on each side of the central line of the
railroad. See 43 U.S.C. § 934. By virtue of the
1875 Act, Utah Southern acquired a right of way to the extent
of 100 feet (in both directions) from the center line of the
Provo Industrial Lead.
• On or about January 4, 1896, the State of Utah
received from the federal government, through the Fundamental
Enabling Act of July 16, 1894, 28 Stat. 107, all parts of
Section 16 that had not "been sold or otherwise disposed
of by or under the authority of any act of Congress" for
• Union Pacific acquired full ownership of the Provo
Industrial Lead in 1987.
• Heber Rentals owns and has been deeded property within
Section 16, 
• The Provo Industrial Lead runs parallel to the east
boundary of Heber Rentals' property.
• The deeds of conveyance leading up to Heber
Rentals' current ownership describe real property lying
within the western portion of Union Pacific's claimed
right of way, if the property descriptions are taken from the
survey monuments that are currently in place.
• There is a fence to the west of, and parallel to, the
Provo Industrial Lead, and it separates Heber Rentals'
claimed property from the track. The fence is located less
than 50 feet west of the center line of the current location
of the Provo Industrial Lead.
• Plaintiffs are currently using and occupying property
up to the fence. Heber Rentals has never claimed to own, nor
has it ever used, any portion of Union Pacific's claimed
right of way east of the fence.
• The dispute in the present case is limited to the
property located to the west of the fence-an area Plaintiffs
characterize as the "Disputed
• In 1979, Plaintiffs constructed a building on the
northern portion of their claimed property. A portion of this
building falls within the 100-foot right of way being claimed
by Union Pacific.
• If Heber Rentals' deed descriptions are taken from
the existing county monument locations, then the building is
situated within the boundaries of the
• In 1997, and many times thereafter, Union Pacific
represented to Plaintiffs that the property located west of
the fence, but within 100 feet of the center line of the
Provo Industrial Lead, was the railroad's property and
could not be used or occupied by Plaintiffs without a signed
• On or about January 14, 1997, Heber Rentals agreed to
lease a portion of the property located within Union
Pacific's claimed right of way.
• In 1998, LKL entered into a lease directly with Union
Pacific, and the lease between Heber Rentals and Union
Pacific was canceled at that - - ■ time.
• Pursuant to the terms of the lease agreements, Union
Pacific was obligated to deliver possession of the Disputed
Property, or the portion thereof identified in the lease
agreements, to Plaintiffs.
• When the parties entered into each of the lease
agreements, the parties believed Union Pacific had an
exclusive right to use and possess the Disputed
• Plaintiffs Heber Rentals and LKL have paid Union
Pacific at least $8, 884.00 and $120, 010.69, respectively,
in lease payments.
• On March 10, 2014, the U.S. Supreme Court issued its
decision in Marvin M. Brandt Revocable Trust v. United
States, 134 S.Ct. 1257 (2014)
• After Brandt, Plaintiffs interpreted the
decision to mean that Union Pacific did not have exclusive
use and possession of its right of way. Consequently, LKL
stopped making lease payments to Union Pacific. The last
lease payment was made on January 5, 2015.
• On April 16, 2015, Plaintiffs filed a lawsuit in Utah
state court. Their Complaint seeks an order rescinding the
leases on the grounds of mutual mistake, claiming that the
parties mistakenly believed that Union Pacific had the
exclusive right to possess the Disputed Property at the time
the leases were created. The Complaint also seeks declaratory
relief declaring the leases to be null and void and further
declaring that neither Plaintiffs nor their successors are
required to make lease payments to Union Pacific or its
successors in connection with their use of the Disputed
• On May 12, 2015, Union Pacific removed the lawsuit to
• On May 19, 2015, Union Pacific filed its answer and
counterclaim, wherein Union Pacific asks the court to issue
an order compelling Plaintiffs to remove their building and
property from the Disputed Property and also seeks an award
of damages for breach of contract and trespass, among other
things. Union Pacific also requests an award of attorney fees
pursuant to the attorney fee provision in the
• The precise location of the boundaries of Heber
Rentals' property is disputed by the
• In 1874, A.J. Stewart of the Government Land Office
performed a retracement survey of Section16 and reset the
survey monuments for the northwest corner and the west
quarter corner of Section 16.
• In 1898, the Utah County surveyor performed a survey
on the western half of the northwest quarter of Section 16
and created a map (hereinafter "Map
• In Map 80, the half quarter section was divided into
• Map 80 was filed with the State Board of Land
Commissioners, as indicated on the signature block on the
bottom right of Map 80.
• The State issued patents to Lots 1, 3, 4, and 5 based
on Map 80.
• Lot 2 was retained by the State of Utah and never
patented to any other person or entity.
• The location of Lot 2 and the location of Union
Pacific's Provo Industrial lead tracks within Lot 2 are
disputed by the parties.
• The patents refer to the acreage transferred as
calculated from the acreages shown on Map 80.
• In 1909, the northwest section corner and west quarter
corner on Section 16 were re-monumented.
• The current section corner marker and quarter section
marker are perpetuations of the 1909
• Through a series of transfers and court orders, Heber
Rentals became the owner of properties located within the
properties depicted as Lots 3 and 4 on Map 80.
• The relationship between Map 80 and the location of
existing county monument locations-and whether there is a
discrepancy between them-is disputed by the
Motion for Summary Judgment seeks the following relief: (i)
summary judgment on Count I of the Complaint (Rescission -
Mutual Mistake); (ii) summary judgment on a portion of Count
VIII of the Complaint (Declaratory Relief); and (iii)
dismissal of all of Union Pacific's
addressing Plaintiffs Motion for Summary Judgment, the court
first answers two fundamental questions.
first fundamental question presented in this case is the
existence of an overlap between Plaintiffs' claimed
property and Union Pacific's right of way. The court
finds that there is such an overlap, borne out by using the
railroad track as located on the ground and measuring out
from its centerline. While there is an alleged dispute as to
the extent of the overlap, the parties have conceded that
there is an overlap between the railroad right of way and a
portion of the building constructed by Plaintiffs.
width of the right of way is defined by the 1875 Act itself.
The 1875 Act provides:
The right of way through the public lands of the United
States is granted to any railroad company * * * which shall
have filed with the Secretary of the Interior a copy of its
articles of incorporation, and due proofs of its organization
under the same, to the extent of one hundred feet on each
side of the central line of said road.
affirming an earlier case arising out of this district, The
Tenth Circuit stated the following:
The district court held that actual construction of the track
plus the filing of the specified documents perfected the
Railroads' right of way to the extent of 100 feet on each
side of the center line of the track.
citing to Jamestown and Northern R. Co. v. Jones,
111 U.S. 125, 130-31 (1900), wherein the Supreme Court
adopted the rule that "the right of way may be
definitely located by the actual construction of the road,
" the Tenth Circuit stated that "[a]ctual
construction is notice of location whether it occurs before
or after the  Act."
the railroad track as located on the ground, as the cases
require, the right of way of the railroad as measured from
its centerline extends beyond the west fence and overlaps a
portion of the land claimed by Plaintiffs. Information in the
record seems to indicate that in the eastern portion of
Plaintiffs' claimed land there is an unresolved gap in
land description which may well reside in the state of Utah,
a non-party to this litigation.
Plaintiffs suggest that the railroad track may have been
moved since its original location, there is an absence of