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Gordon v. New England Central Railroad, Inc.

United States District Court, D. Vermont

December 8, 2017

CHARLES GORDON, ALICIA GORDON, DJ. ENTERPRISES LLC, A.C. LAWN MOWING, DENIELLE GORDON, individually and doing business as DEN & COMPANY Plaintiffs,
v.
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

         Plaintiffs, 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.

         Pending 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that required NECR to repair the embankment in a manner that will prevent further trespass onto the property, they have withdrawn that request.

         On 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.

         I. Findings of Fact.

         For the purposes of the pending motion, based upon the admissible evidence, the court makes the following findings of fact by a preponderance of the evidence:

         A. 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.

         2. A.C. Lawn Mowing and D.J. Enterprises LLC are businesses operated by the Gordons, with headquarters at 136 Beech Street in White River Junction, Vermont.

         3. NECR 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 Vermont.

         4. The 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.

         5. The Gordons' deed to the property does not contain a metes and bounds description.

         6. The 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.

         7. In 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.

         8. 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.

         9. Mr. 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.

         10. Mr. 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.

         11. NECR did not introduce its own survey. It proffered no plausible challenge to the accuracy of the '91 Survey.

         B. The July 2017 Historic Rain Event.

         12. On 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.

         13. The 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.)

         14. Because of the landslide, the apartment the Gordons were renting is no longer habitable and their tenant has relocated.

         15. 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. at 135.)

         16. Of 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.)

         C. The Repair of the Embankment and the Implications of Removing the Rip-Rap Rock.

         17. To 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.

         18. To 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.

         19. 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.

         20. The 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.

         21. Mr. Boucher credibly opined that the rebuilt slope is "less steep[, ]" which he considers "an improvement[.]" Id.

         22. As 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' Exhibit 3.

         23. A 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.)

         24. Mr. 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.

         25. Mr. 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 ...


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