United States District Court, D. Vermont
CHARLES GORDON, ALICIA GORDON, DJ. ENTERPRISES LLC, A.C. LAWN MOWING, DENIELLE GORDON, individually and doing business as DEN & COMPANY Plaintiffs,
NEW ENGLAND CENTRAL RAILROAD, INC., Defendant.
OPINION AND ORDER DENYING PLAINTIFFS' MOTION FOR
A PRELIMINARY INJUNCTION (DOC. 2)
Christina Reiss, United States District Court Chief Judge
Charles, Alicia, and Denielle Gordon (the
"Gordons"), DJ. Enterprises LLC, and A.C. Lawn
Mowing, (collectively, "Plaintiffs") bring this
action against Defendant New England Central Railroad, Inc.
("NECR"), alleging that NECR was negligent in its
repair of a raised railroad right of way embankment (the
"embankment") adjacent to the Gordons' land
located at 68 Old River Road in Hartford, Vermont (the
"property") after a July 1, 2017 landslide.
Plaintiffs further allege that NECR is engaged in ongoing
trespass on the property as a result of this repair.
before the court is Plaintiffs' motion for a preliminary
injunction (Doc. 2) seeking an order enjoining NECR from
trespassing on the Gordons' property and requiring it to
remove materials allegedly deposited on the property after
the landslide. Although Plaintiffs initially requested an
order that required NECR to repair the embankment in a manner
that will prevent further trespass onto the property, they
have withdrawn that request.
September 22, 2017, the court held an evidentiary hearing on
the pending motion at which NECR asserted that
Plaintiffs' state law claims are preempted by the federal
Interstate Commerce Commission Termination Act (the
"ICCTA"), 49 U.S.C. §§ 10101-11908, and
the Federal Railway Safety Act (the "FRSA"), 49
U.S.C. §§ 20101-21311. At the conclusion of the
hearing, the court granted Plaintiffs' request to provide
supplemental briefing on the preemption issues which the
parties completed on November 1, 2017. Plaintiffs are
represented by R. Bradley Fawley, Esq. and Timothy C.
Doherty, Jr., Esq. NECR is represented by Michael B. Flynn,
Esq. and Matthew M. Cianflone, Esq.
Findings of Fact.
purposes of the pending motion, based upon the admissible
evidence, the court makes the following findings of fact by a
preponderance of the evidence:
The Parties and the Property.
1. The owners of the property, Plaintiffs Charles and Alicia
Gordon, are married and the parents of Plaintiff Denielle
Gordon, an adult woman who owns a beauty salon. The Gordons
do not live at the property.
Lawn Mowing and D.J. Enterprises LLC are businesses operated
by the Gordons, with headquarters at 136 Beech Street in
White River Junction, Vermont.
is a Delaware corporation with a principal office in
Rochester, New York. It owns a permanent easement and right
of way on the embankment, approximately thirty feet above the
property. NECR operates freight trains along its railroad
tracks on the right of way and provides access to its tracks
to Amtrak for its twice-daily rail passenger service in
property is located immediately adjacent to NECR's right
of way at mile marker 16.25 on the Roxbury subdivision. It
consists of approximately .74 acres bounded to the south by
NECR's right of way on the embankment and to the north by
Old River Road in Hartford, Vermont.
Gordons' deed to the property does not contain a metes
and bounds description.
property includes three buildings which formerly served
several purposes: Charles Gordon stored tools, machinery, and
equipment for his commercial sweeping and bark mulch topsoil
businesses in the garage; Denielle Gordon operated her beauty
salon in a second floor area; several garage bays were rented
to contractors for equipment storage; one portion of the
property was rented to a "therapeutic program for
disabled children, " (Tr. at 115); another portion was
rented to a distributor that sells coffee, tea, honey, and
maple syrup; and the Gordons rented an apartment on the
second floor to a non-family member tenant.
1991, the property's boundaries were surveyed by Roy G.
Hathorn, a licensed surveyor, for the benefit of the
property's prior owners (the '"91 Survey").
On October 3, 1991, CD. Holzwarth prepared a corresponding
map reflecting the '91 Survey.
Joseph Nalette is a licensed land surveyor who assisted Mr.
Hathorn with the field work for the '91 Survey prior to
obtaining his surveyor's license. Mr. Nalette is
qualified as an expert witness in the field of land
surveying. The court found Mr. Nalette's testimony
credible and persuasive.
Nalette determined the property's boundaries by comparing
the railroad's 1917 valuation map with the physical
location of the rail line, and measuring the distance from
the center of the rail line and the center of a highway to
establish a corner of the Gordons' property. He then
measured distances from "stationing" points along
the rail line to determine the length of the boundary between
the right of way and the property. He was unable to locate
metal pins demarcating the Gordons' property line placed
as part of the '91 Survey.
Nalette explained that he discounted the boundaries indicated
on a plan prepared by Robert Farnsworth (the "Farnsworth
Plan") sometime after the '91 Survey was completed.
In particular, Mr. Nalette noted that the Farnsworth
Plan's drawing of the property line diverged from the
railroad's own 1917 valuation map.
NECR did not introduce its own survey. It proffered no
plausible challenge to the accuracy of the '91 Survey.
The July 2017 Historic Rain Event.
July 1, 2017, White River Junction, Vermont experienced a
"250-year [rainfall] event by meteorological
standards." (Tr. at 27.) As a result of this historic
rain event, NECR's tracks on the embankment were
"washed out in two significant locations in the area of
[mile marker] 16.25[.]" (Tr. at 161.) The washout caused
the tracks to be suspended in the air with no support beneath
them. Because this damage rendered NECR's tracks
non-compliant with federal railroad safety regulations, NECR
was forced to suspend operations on its right of way until
repairs could be made. As a result of NECR's suspension
of operations, Amtrak passenger trains that typically use
NECR's right of way were cancelled for a period of
"[approximately four to five days." (Tr. at 165.)
NECRpaid Amtrak compensation during the days the rail line
was out of service.
washout of the embankment generated a landslide of dirt,
rocks, and foliage which caused significant damage to
buildings located on the property, including: caving in a
building's back wall; pushing a vehicle parked in a
garage bay through the bay door; filling several garage bays
with mud, silt, and water; and destroying the interior
shelving and furniture in Denielle Gordon's beauty salon.
The Gordons "cleaned 25 loads of debris out of the
garage bays after the event. (Tr. 121.)
Because of the landslide, the apartment the Gordons were
renting is no longer habitable and their tenant has
Also because of the landslide, Mr. Gordon cannot use the
garage bays in which he previously stored tools and equipment
because the power, propane, and water were turned off as a
result of damage to the building. His businesses are still
operating, "[b]ut not at a hundred percent." (Tr.
the eight tenants using space in buildings on the property
prior to the July 2017 rain event, three remain. Several
tenants have been unable to recover items that are
"still buried in the mud[.]" (Tr. at 140.)
The Repair of the Embankment and the Implications of Removing
the Rip-Rap Rock.
repair the damage to the right of way, NECR contracted with
two engineering firms that recommended that NECR use
"rock material for better drainage and suitable subgrade
to support the structure of the track." (Tr. at 173.) A
long-reach excavator removed loam and the sandy subgrade on
the embankment, and rip-rap rock was installed in its place.
determine the boundary of its property during repair of the
embankment, NECR did not obtain a survey or consult with a
licensed surveyor. Instead, it consulted its own valuation
maps to determine the property line using a wall depicted on
its plans which it believed marked the boundary between the
right of way and the property. NECR's Director of
Engineering, Rick T. Boucher, testified that the wall had a
two-foot vertical exposure and was approximately 50 feet in
length horizontally. In contrast, John P. Mayo, a roadmaster
and track inspector for NECR, testified that the wall used to
define the boundary was approximately four to five feet long.
He testified that he was uncertain whether anyone measured
the property line prior to the embankment's repair. The
wall is only visible in a small area in light of the
placement of the rip-rap rocks.
NECR "used [the wall] as a guideline to repair [and]
reestablish the toe of [the] slope." (Tr. at 174.) Mr.
Boucher explained that NECR rebuilt the slope of the
embankment in its prior location "[t]o the best of what
we could do[.]" (Tr. at 177.) The repair brought the
tracks back into compliance with federal railway safety
regulations and rail traffic resumed.
parties agree that prior to the landslide, the embankment had
undulating contours and a varied pitch slope that was covered
by foliage, which has been altered by NECR's repair.
Boucher credibly opined that the rebuilt slope is "less
steep[, ]" which he considers "an
part of his survey in anticipation of this litigation, Mr.
Nalette measured the extent of the newly placed rip-rap rocks
and determined that a portion of them extend onto the
southern edge of the property. Mr. Nalette depicted the
extent of the rip-rap rock on an annotated version of the
'91 Survey, admitted in evidence as Plaintiffs'
portion of rip-rap rock, marked as pile "A" on
Plaintiffs' Exhibit 3a, lies wholly within the property
but predates the July 2017 rain event. It was placed by the
railroad with Mr. Gordon's consent in an effort to
stabilize a drainage culvert. Plaintiffs represent that they
"are not pursuing pile A ... for the injunction."
(Tr. at 223.)
Gordon credibly testified that rip-rap rock is "still..
. rolling, some of it, into [his] shop" and that
"[e]very now and then [he does] find a stone after a
rainstorm or something that - different sized stones roll off
the bank and right into [his] [garage] bay there." (Tr.
at 126.) Mr. Gordon is no longer "comfortable working in
that bay[.]" Id.
Gordon also explained that the rip-rap rock makes it
"impossible" to access an area "a little bit
wider than a wheelbarrow" between the rear of his
buildings and the embankment, which he previously used to