Baltimore County v. AT & T Corp. (735 F. Supp. 2d 1063, 2010)

ENTRY ON PENDING MOTIONS FOR SUMMARY JUDGMENT

DAVID F. HAMILTON, Circuit Judge Sitting by Designation.

This case is the last contested portion of Multi-District Litigation No. 1313, In re AT & T Corporation Fiber Optic Cable Installation Litigation. The MDL case has managed and resolved claims arising from AT & T’s installation of fiber optic cable in the 1980’s along railroad corridors with permission from the railroads but without permission from the adjoining landowners. The plaintiffs have been owners of adjoining land who asserted claims against AT & T for trespass, slander of title, and unjust enrichment. The MDL proceeding has provided an umbrella under which the court and parties have resolved state law claims of tens of thousands of landowners adjoining thousands of miles of railroads. Those claims have been resolved through a series of more than 30 statewide class action settlements. None of the landowners have objected to the settlements, under which the owners received substantial cash and AT & T received a clear title to an easement.

This remaining case is based on AT & T’s installation of underground fiber optic cable in railway corridors that pass through Baltimore County, Maryland. Baltimore County itself owns twelve parcels of property along one of those railroad lines, now known as the CSX line from Baltimore to Finksburg. As the owner of those parcels, Baltimore County fell within the definition of a nationwide plaintiff class certified by an Indiana state court before the action was removed to federal court in this district.

The claims of most Maryland property owners were resolved by a class settlement. Baltimore County exercised its right to opt out of the class settlement, however, and filed its own complaint seeking damages, an injunction, and ejectment against AT & T and an AT & T employee under theories of trespass, unjust enrichment, and fraud. See Dkt. No. 17 (Second Amended Complaint). Over the course of this litigation, the County has narrowed its property-based claims to only twelve parcels of land, all of which lie along the CSX Baltimore-to-Finksburg railway corridor. See Dkt. No. 95, ¶ 4; see also Dkt. 104, Exs. A-C (Lathrop Report).

The defendants have filed several motions for summary judgment. The court has chosen to address them in an order different from the order of filing, but this entry resolves all of the pending motions. In summary, the court grants summary judgment for AT & T regarding four of the twelve disputed parcels. The railroad owns the title in fee simple to one parcel, and the claims arising from the other three parcels were resolved through the class settlement before the County acquired them. The court also grants partial summary judgment for AT & T to bar damages based on the County’s franchise ordinance, and the court grants summary judgment for the one individual defendant. The court rejects AT & T’s other arguments for summary judgment on the remaining parcels, including theories that the cables are authorized by the railroad easement and that the statute of limitations bars the County’s claims. The court will retain jurisdiction of this case for a further brief period to resolve a discovery problem, but will then invite the Judicial Panel on Multi-District Litigation to transfer this case to the District of Maryland for final resolution.

Standard for Summary Judgment

The purpose of summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment must be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c)(2). The motion should be granted so long as no rational fact finder could return a verdict in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When deciding a motion for summary judgment, the court considers those facts that are undisputed and views additional evidence, and all reasonable inferences drawn therefrom, in the light reasonably most favorable to the non-moving party. See Fed.R.Civ.P. 56(c)(2); Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, a party must present more than mere speculation or conjecture to defeat a summary judgment motion. The issue is whether a reasonable jury might rule in favor of the non-moving party based on the evidence in the record. Id. at 251-52, 106 S.Ct. 2505.

I. The Scope of the Grants to the Railroad (Dkt. No. 121)

The County contends that AT & T trespassed and continues to trespass on parcels of land owned by the County when it installed its underground fiber optic cable in the CSX Baltimore-to-Finksburg corridor. In one of its motions for summary judgment, AT & T argues that the original grantors of eleven of the twelve parcels effectively transferred all of their property interests in the corridor to CSX’s predecessor, abandoning their property interests and granting what amounted to a title in fee simple to the railroad. If CSX, as successor in interest to those original land grants, owned the corridor in fee simple, then it had the authority to grant AT & T permission to install the cable. In that case, the County, as merely the owner of the adjoining property, would not have a viable trespass claim based on AT & T’s installation of the cable on these eleven properties. In the alternative, AT & T argues that if the original grants created only easements and were not grants in fee simple, the act of installing the cable was still within the scope of the railroad’s easement and again could not have amounted to a trespass against the County’s property rights. The court finds that CSX had a title in fee simple to only one of the eleven properties. AT & T is entitled to summary judgment on that parcel, but not the other ten. AT & T’s installation of the cable is beyond the scope of the original grants of rights-of-way for the railroad.

A. Undisputed Facts

The County has limited its claims to the twelve Parcels identified in the Lathrop Report and its supplements, see Dkt. No. 123, Exs. A-C, prepared by Wendy Lathrop, a surveyor who assisted the County in this suit. Each of these properties is adjacent to the CSX Baltimore-to-Finks-burg railroad corridor in Baltimore County. Between 1853 and 1857, a company called the Western Maryland Rail Road Company, CSX’s predecessor in interest, acquired interests in eleven of the twelve parcels in granting documents. Joel Leininger, a Maryland surveyor who assisted AT & T, reviewed the Lathrop Report, examined the deeds pursuant to which the County claims ownership of the Lathrop Parcels, examined the nineteenth-century Western Maryland Rail Road Company granting documents, and examined valuation maps supplied by CSX for the CSX corridor. Dkt. No. 123, Ex. W. ¶¶ 2-5. Leininger correlated the Lathrop Parcels with the adjoining sections of the CSX rail corridor and identified the granting document(s) that corresponded to each Lathrop Parcel. Id., ¶ 6. Leininger prepared a chart showing which Exhibit applies to which Parcel. Dkt. No. 122 at 4-5; Dkt. 123, Ex. W, ¶ 7. The County has not raised a genuine issue of fact as to the accuracy of the chart. For ease of reference, the court replicates it here in part:

Lathrop Parcel No. Date Grantor Exhibit:

1 7/6/1857 Francis Humbrays (Humphreys) Exhibit R

6/23/1857 Johnsey Gardner Exhibit S

6/22/1857 Johnsey Gardner Exhibit T

6/23/1857 Johnsey Gardner Exhibit S

6/23/1857 Johnsey Gardner Exhibit T

12/15/1853 Elijah Gore Exhibit U

7/6/1857 Elijah Gore Exhibit R

12/15/1853 Elijah Gore Exhibit U

7/6/1857 Elijah Gore Exhibit R

4 12/15/1853 Johnsey Gore Exhibit U

5 12/15/1853 Elijah Gore Exhibit U

7/6/1857 Elijah Gore Exhibit R

6 7/6/1857 Isaac Snavely (Schnavely) Exhibit R

8 7/6/1857 Allison Shipley Exhibit R

9 7/6/1857 Christian Weishampel (Weisampel) Exhibit R

10 7/6/1857 Isaac Snavely (Schnavely) Exhibit R

11 7/6/1857 Isaac Snavely (Schnavely) Exhibit R

None of the granting documents pertain to Lathrop Parcel 7.

The legal issue of ownership depends on the language used in these key documents. Exhibits R, S, T, and U used the following language, with minor variations:

TO ALL WHOM THESE PRESENTS SHALL COME, GREETING:

WHEREAS, the General Assembly of Maryland has passed a law incorporating the WESTERN MARYLAND RAIL ROAD COMPANY, for the purpose of opening and making a Road either from the City of Baltimore, or some suitable point on the Northern Central Rail Road [Baltimore and Susquehanna Rail Road], or any branch of the same, to be by the President and Directors of said Company determined, to the town of Westminster, and thence westardly to some point on the Monoeacy River, in the direction of Hagerstown: And whereas, the President and Directors of said Company, aware that the lands lying in the Route that may be selected for the Road will be greatly enhanced in value by the passage of the Road through or near them; and conceiving that the owners of such lands, as an equivalent for that advantage, should relinquish such portions thereof as may be required for the Road, as well as what may be excavated in making the Road, without making any charge upon the said WESTERN MARYLAND RAIL ROAD COMPANY for the same, unless in making the Road any buildings upon the lands should be destroyed, and then only for such sum as upon a fair valuation, to be estimated by disinterested persons, may be determined to be their actual value; and should, moreover, permit stone, gravel, clay and such other materials as may be required for the construction of the Road, and to which otherwise no value would be attached, to be used for that purpose, free of expense, are desirous of ascertaining if the owners of lands lying in the several routes which have been contemplated or may be examined for the location of the Road, will consent to the relinquishment, and grant the permission adverted to, before the route of the Road, is determined on, as the advantage of two or more routes, being otherwise equal, the preference would be given to that, to which these additional advantages may be recorded to the greatest extent.

NOW, THEREFORE, WE, the subscribers, having been notified, that our lands are supposed to be situated on one or more of the routes contemplated for the Road referred to, and being called upon to state, whether or not, we will give the consent above stated, do hereby bind ourselves, our heirs, executors, administrators and assigns, for the consideration above mentioned, to make the relinquishment and grant the permission above required, for the purposes before mentioned.

See Dkt. No. 123, Exs. R-U (emphases added). The documents also contain additional references to “roads” and “rights of way.” For instance, on June 22, 1857, Johnsey Gardner signed Exhibit T with the above language, but just above his signature is written the sentence: “I will give the right of way provided the road passes south of the Reisterstown Turnpike.” Elijah Gore’s grant in Exhibit U includes the following additional language: “I hereby agree to give the right of way through my land. Provided the Company will make the necessary fencing along said Road through my land at their expense, and make the necessary cross ways.” Each of the documents is titled “Right of Way” or “Release of Right of Way.” Dkt. No. 123, Ex. R-U. The documents do not contain metes-and-bounds descriptions of the property being conveyed, and they do not contain “habendum” or “granting” clauses.

The remaining Lathrop Parcel 12 was conveyed by Christopher Hofmann to the Western Maryland Rail Road Company on October 20, 1905. Hofmann agreed to the following:

WITNESSETH, that in consideration of the sum of Fifty five Dollars, the receipt of which is hereby acknowledged by the party of the first part, the said Christopher Hofmann doth grant and convey unto the said THE WESTERN MARYLAND RAILROAD COMPANY, its successors and assigns, in fee simple, all that piece and parcel of land situate, lying and being in the County of Baltimore in the Second Election District near McDonough Station on the Western Maryland Railroad, containing .048 acres, said parcel of land being particularly described as follows ...

Dkt. No. 123, Ex. V (metes-and-bounds description omitted). The County concedes that this grant amounted to a grant of title in fee simple and has withdrawn its claims regarding this parcel. AT & T is entitled to summary judgment on all claims concerning Lathrop Parcel 12.

B. The Meaning of “Relinquish”

Based on these nineteenth-century documents “relinquishing” certain rights to Lathrop Parcels 1-6 and 8-11 to the railroad, AT & T argues that the grantors granted the railroad the land in fee simple. The court disagrees.

Under Maryland law, the construction of granting language is a question of law for the court, and the usual principles of contract interpretation apply. Chevy Chase Land Co. v. United States, 355 Md. 110, 733 A.2d 1055, 1062 (1999), citing Buckler v. Davis Sand & Gravel Corp., 221 Md. 532, 158 A.2d 319, 322 (1960). These principles require consideration of “the character of the contract, its purpose, and the facts and circumstances of the parties at the time of execution.” Calomiris v. Woods, 353 Md. 425, 727 A.2d 358, 363 (1999) (quotation omitted). In the construction of deeds, “the intention of the parties, to be ascertained from the whole contents of the instrument, must prevail unless it violates some principle of law.” D.C. Transit Systems v. S.R.C., 259 Md. 675, 270 A.2d 793, 798-99 (1970) (quotation omitted). If unambiguous language is interpreted, the plain meaning of the words should control. All State Home Mortgage, Inc. v. Daniel, 187 Md.App. 166, 977 A.2d 438, 447 (2009), quoting Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 952 A.2d 275 (2008).

AT & T relies primarily on United States v. 1.14 Acres of Land, 304 F.Supp. 1063 (D.Md.1969), in which the United States sought to condemn land that was part of an abandoned trolley line. In construing one deed, the court interpreted the granting words “give, bargain and sell, alien, enfeoff, release and convey ... forever.” Id. at 1071. The court examined the deed as a whole, focusing on the word “forever” and the fact that the grant was for “all the estate, right, title, and interest either at law or in equity or otherwise.” In light of the defendant’s exercise of ownership over the property, the court concluded that the deed had conveyed title in fee simple. Id. at 1072. In the same opinion, however, the court interpreted another deed that “grant[ed] and convey[ed]” to the railway, its successors and assigns “a right of way for its chartered purposes upon and over the strip of land” as granting only an easement. Id. at 1070-71.

In this case, the use of the term “right-of-way” in the granting documents indicates that only easements were intended. D.C. Transit Systems, 270 A.2d at 800 (“The addition of the language for ‘a right of way’ in the habendum clause ... makes clear the intent of the parties to grant an easement....”); Richfield Oil Corp. v. Chesapeake & C.B.R. Co., 179 Md. 560, 20 A.2d 581, 587-88 (1941) (“ ‘Where the intention to convey a fee does not appear, as in the conveyance of a right of way for the railroad through certain lands, the company takes an easement only.’ ”), quoting 2 Elliott on Railroads § 1158, at 627-28 (3d ed.1907) (internal quotation marks omitted); Greenwalt v. McCardell, 178 Md. 132, 12 A.2d 522, 524 (1940) (“Where a right of way is established by reservation, the land remains the property of the owner of the servient estate, and he is entitled to use it for any purpose that does not interfere with the easement.”). Maryland courts presume that the grant of a right-of-way to a railroad is an easement if the deed fails to convey expressly the grant- or’s intent to create a fee simple interest. See Miceli v. Foley, 83 Md.App. 541, 575 A.2d 1249, 1264 (1990). There is no express grant of a fee simple interest in the ten documents at issue here. The words “right-of-way” are not found in the granting language (though they are in the documents’ titles), but neither are words indicating a grant in fee simple. The mere use of the word “relinquish” is not enough to override the presumption that unless a fee is specified, an easement has been created. After all, the grantors here were certainly relinquishing something. The choice of the verb tells us nothing about the identity of the object of the verb. The grantors could have “relinquished” easements as easily as they could fee simple titles.

Although perhaps not dispositive by itself, it is highly relevant that whatever interests these grantors “relinquished,” they gave up for no monetary compensation. Maryland courts and courts in other states have looked to the amount of compensation received to discern whether a grant was of a fee simple or an easement. See Hodges v. Owings, 178 Md. 300, 13 A.2d 338, 340 (1940) (looking to nominal consideration in determining that the purpose of the grant was to build a railroad and that the grantor was willing to cooperate by giving an easement); Daugherty v. Helena & Nw. Ry., 221 Ark. 101, 252 S.W.2d 546, 548 (1952) (“The recited consideration reflects that the grantors accepted a nominal sum for the deed because they were interested not in selling land but in assisting the company to complete its line.”); Tamalpais Land & Water Co. v. Northwestern Pac. R.R. Co., 73 Cal.App.2d 917, 167 P.2d 825, 830 (1946) (“[T]he fact no monetary consideration, or only a nominal monetary consideration was paid for the grant is a factor of considerable importance indicating that the grant conveys an easement and not a limited fee.”); Gabbard v. Short, 351 S.W.2d 510, 511 (Ky.1961) (considering “amount of consideration paid” in determining that title passed in fee simple); Battelle v. New York, New Haven & Hartford R.R. Co., 211 Mass. 442, 97 N.E. 1004, 1005 (1912) (presumed payment of full value for land was evidence that a fee was intended); Texas & Pac. Ry. Co. v. Martin, 123 Tex. 383, 71 S.W.2d 867, 870 (1934) (consideration for fair value of the parcel of land was evidence that land was granted in fee simple). The nineteenth-century grantors of the Maryland properties in dispute here received no compensation other than the privilege of hosting the railroad and its tracks on their land. That fact bolsters the conclusion that the railroad received only an easement for the ten parcels still disputed on this point.

Maryland also recognizes substantial policy reasons for construing ambiguous grants made to railroads as easements rather than fee simple titles. As the State’s highest court explained:

A great number of railroad corridors have been abandoned in recent years. See Preseault v. ICC, 494 U.S. 1, 5, 110 S.Ct. 914, 108 L.Ed.2d 1 (1990) (observing that the nation’s railway system has lost about 130,000 miles of track since 1920 and noting that “experts predict that 3,000 miles will be abandoned every year through the end of this century”) (footnote omitted). Whether a right-of-way is construed as an estate in fee simple or an easement has significant implications for the utility of the land upon abandonment. If the deed of a right-of-way is construed as an estate in fee simple, the railroad will retain the right-of-way even after it is no longer used for any transit purposes — effectively severing otherwise contiguous pieces of property, and for no useful purpose.

Chevy Chase Land, 733 A.2d at 1064. The Chevy Chase Land court recognized that a deed to a railroad purporting to convey a right-of-way may sometimes convey an estate in fee simple but reaffirmed the presumption against a fee: “when a deed conveying a right-of-way fails to express a clear intent to convey a different interest in land, a presumption arises that an easement was intended.” Id. AT & T has not rebutted that presumption here. The court finds as a matter of law that the granting documents at issue conveyed easements across the parcels identified as Lathrop Parcels 1-6 and 8-11.

Before moving on to the next major issue, the court addresses and rejects several other arguments the County has made in opposition to summary judgment based on the terms of the granting documents. First, the County requested the court to strike Exhibits R, S, T and U because those exhibits were not provided to the County in discovery. AT & T has come forward with evidence that the documents were obtained from a non-party (CSX) from its old property records in Florida. AT & T produced the documents to the County on September 6, 2006. Dkt. No. 157, Ex. CC. The County had a fair opportunity to respond to these documents. The County also requested the court to strike surveyor Leininger’s affidavit, which is attached to AT & T’s motion as Exhibit W. The County argues that Leininger’s affidavit contains expert opinions, but when he was deposed, Leininger did not indicate that he would be providing such opinions. See Dkt. No. 144 at 1-2. The court agrees with AT & T that Leininger’s correlation of different land records and maps was not necessarily an expert opinion but can be described fairly as lay opinion testimony. The County has not actually disputed Leininger’s opinions correlating the different records and maps. The County’s requests to strike Exhibits R, S, T, U and W are denied.

The County also challenged the validity of Exhibits R, S, T, and U. The County argued that the Maryland Code requires that deeds be recorded to be valid. See Md. Real Prop.Code § 3-101. These nineteenth-century documents were not recorded by CSX until October 2006, a few weeks after AT & T produced copies to the County. Additionally, under current Maryland law, a deed or instrument of conveyance must contain the names of the grantor and the grantee, a description of the property sufficient to identify it with reasonable certainty, and the interest or estate intended to be granted. Md. Real Prop.Code § 4-101. Exhibits R, S, T and U, the County argued, do not contain descriptions of the properties the grantors intended to transfer to the railroad, so that the documents cannot constitute deeds or instruments of transfer under Maryland law. The County argued further that the documents could not convey a fee simple title because they do not contain habendum or granting clauses, which would begin with the language “to have and to hold.”

The court finds that Exhibits R, S, T, and U are valid, even though, for reasons explained above, they do not grant fee simple interests for the ten parcels in dispute (Lathrop Parcels 1-6 and 8-11). Any challenge to these exhibits’ validity based on a failure to record was mooted when CSX recorded the exhibits in October 2006. Furthermore, whether these documents were recorded or not, they have been effective against Baltimore County and adjoining landowners for many years. Under Maryland law, when a grantee is in possession under an unrecorded deed that is inconsistent with the record title, the grantee’s possession gives notice of what an inquiry of the grantee would disclose as to the existence of such unrecorded deed. Md.Code Real Prop. § 3-202. As applied to this situation, in other words, a person looking at the active railway corridor would be on notice, by virtue of the obvious physical presence of the railroad track, that CSX or one of its predecessors had certain rights to the land even if those rights were not formally recorded at the time. Because Maryland is a race-notice state, AT & T’s unrecorded interest in the property was therefore effective against Baltimore County as of the date long ago when railroad track was first laid in the railway corridor. See Md.Code Real Prop. § 3-203 (making recorded deed take effect against subsequent grantees having constructive notice of that deed). Upon the later recording of the granting documents, the railroad’s interest was made effective against the County from the effective dates on the granting documents. See Md.Code Real Prop. § 3-201 (“Every deed, when recorded, takes effect from its effective date as against ... every purchaser with notice of the deed ... ,”).

Regarding the County’s “metes-and-bounds” argument, at the time the agreements were made, neither the grantors nor the grantee (the railroad) were certain of the precise route the railway corridor would take. An exact metes-and-bounds description therefore would have been impossible. But to the extent a description of the property being transferred “sufficient to identify it with reasonable certainty” is required for the documents to be operative under Maryland law, one has existed here for more than 100 years — in the form of the railroad corridor running through the properties. See O’Connor v. Baum, 54 Ind.App. 195, 100 N.E. 581, 582 (1913) (a railroad right-of-way is a visible monument), citing Pence v. Armstrong, 95 Ind. 191, 1883 WL 5823 (1884).

Finally, although the authorities cited by the County certainly recognize the existence of habendum clauses in granting documents, see, e.g., County Comm’rs of Charles County v. St. Charles Assocs., LP, 366 Md. 426, 784 A.2d 545, 568-69 (2001); Williams v. Skyline Dev. Corp., 265 Md. 130, 288 A.2d 333, 341 (1972); Hill v. Towson Realty, Inc., 221 Md. 389, 157 A.2d 796, 797 (1960), those cases do not support the County’s assertion that the absence of this language necessarily preeludes their treatment as deeds or instruments of transfer. Without such support, this argument fails.

In any event, the County’s validity arguments are off-target because the issue here is not the underlying validity of the original grants. No one seriously disputes the legitimacy of the railroad track’s presence on Lathrop Parcels 1-6 and 8-11. The real question is not whether the railroad had permission from the grantors to build, maintain, and use its track, but how far that permission extends. If the County wishes to attack the railroad’s property rights, perhaps there are (or were) other forums for such claims. The real issue here is the scope of the easement or right-of-way that was granted to the railroad.

C. Scope of the Easement

AT & T’s alternative argument for summary judgment is that even if the railroad had only an easement, the easement was broad enough to allow the railroad to permit AT & T to install its fiber optic cable in the railroad corridor without permission of the owners of the servient estates.

AT & T relies most heavily on Chevy Chase Land, which found that the scope of the easement at issue was broad enough to permit the government to convert a railroad corridor into a recreational hiker/biker trail. In reaching that conclusion, the court looked to the language of the easement itself and found that “nowhere does language ‘for railroad purposes’ appear, and there are no other express limitations on the use of the right-of-way.” 733 A.2d at 1073 (distinguishing the easement from narrower railroad easements), citing East Wash. Ry. Co. v. Brooke, 244 Md. 287, 223 A.2d 599, 603 (1966) (deed language “for railroad purposes” limited scope of right-of-way). Without such express limitations, the Chevy Chase Land court attempted to discern what the parties would have reasonably expected to be giving and receiving when the grant was made, being “generous in its interpretation.” 733 A.2d at 1074 (quotation omitted). Generally, the court instructed that the scope of the easement should be determined from the language of the grant, with any doubtful language “resolved in favor of the grantee, i.e., the railroad.” Id. AT & T argues that, like the deed construed in Chevy Chase Land, the grants in Exhibits R, S, T and U imposed no express limitations on the use of the CSX land corridor, and in particular, did not expressly limit the grant to railroad purposes.

AT & T’s argument runs into a major obstacle. In AT & T v. Smith, 71 Md. 535, 18 A. 910 (1889), Maryland’s highest court addressed a question very close to this case, involving overhead telegraph lines rather than buried fiber optic cables. Landowners in Smith sought an injunction against AT & T when it began putting up telegraph poles and lines within the railway easement. The court found that the railway company could use its right of way for its track or any building or structure (including telegraph poles) that “ ‘reasonably tend[ed] to facilitate its business of transporting freight and passengers,’ ” and in doing so would not exceed the scope of the easement. Id. at 912, quoting Telegraph Co. v. Rich, 19 Kan. 517 (1878). In language applicable here, however, the court explained that AT & T was not entitled to use the railroad easement to install cables for its general communications network:

If, then, this [telegraph] line is in process of construction ... over the right of way of this railway company, in good faith, for the use and benefit of the latter in the operation of its road, and to facilitate its business, or is reasonably necessary for that purpose, the landowners have no ground of complaint, because such use of their land is within the scope of the original easement, for which they have already received compensation. But, on the other hand, if this is not the motive for its construction, and the main object in constructing it is to establish an extensive line of telegraph and telephone communication through this and other states, for general commercial purposes, for the use and benefit of the defendant, and such a line is not reasonably necessary for the purposes of the railroad, then it will be a new easement, and put a new and additional burden upon the land, for which the owners are entitled to compensation.

Id. at 913 (emphases added). Ultimately, the Smith court found that the line was not being built to serve the purposes of the railroad and thus was an impermissible expansion of the easement. 18 A. 910 at 915-16.

AT & T attempts to distinguish AT & T v. Smith by arguing that the easement at issue in that case specified that it was for “railroad purposes.” 18 A. at 914. AT & T contends that the easements at issue here, like the easement in Chevy Chase Land, contain no such restriction and therefore should be read broadly. The court disagrees.

The grants here were grants of permission to construct and use a “road.” The landowners were paid nothing for the rights they gave up, but by the terms of the land grants, received only the benefits that would go along with the “passage” of the road through their lands. Would the owners have been equally privileged by the “passage” of a utility cable? Probably not. Even if these long-dead landowners could have imagined that the right-of-way would be used for a buried communications cable, it is difficult to conceive that the “passage” of that cable would have been such a boon to them that they would have permitted even the modest additional burden without compensation.

It is true that nothing in the documents specifies that the “road” should only ever be a railway or should be used exclusively for railway purposes. But it is also true that nothing in the land grants suggests that the landowners gave leave for anything other than a means of transport of people or goods (i.e., a “road”) to be built on the right-of-way. The encroachment at issue here is not a means of passage of people or goods. It is a fiber optic cable used to facilitate the transmission of information. The question is fairly debatable, but the court finds the better view is that a fiber optic cable is not a reasonable expansion of the meaning of the word “road” under Maryland law. AT & T is not entitled to summary judgment on the ten parcels (Lathrop Parcels 1-6 and 8-11) on the theories that the railroad received title in fee simple or that the installation of the cable is within the scope of the easements granted.

II. The “Post-Installation Properties” (Dkt. No. 102)

AT & T also moves for summary judgment on the ground that, of the twelve properties at issue, the County did not own ten of them at the time AT & T installed the cable. The properties are those identified as Lathrop Parcels 1-5, 7, and 9-12. See Dkt. No. 123, Exs. A-C. Of these ten “post-installation properties,” AT & T contends that the owners of three of the properties settled their claims as part of the prior class action before the County acquired the properties. For the remaining seven properties, AT & T contends that, because the cable was in the ground when the County acquired the property, the County cannot bring a trespass claim.

AT & T’s motion is granted with respect to all claims based on the three properties — Lathrop Parcels 7, 10, and 11— whose prior owners’ potential claims were covered by the class action settlement with AT & T. AT & T is not entitled to summary judgment on this theory with respect to the other seven properties.

A. Undisputed Facts

All twelve properties still at issue in this case are adjacent to the CSX Baltimore-to-Finksburg railway corridor in Baltimore County. Dkt. No. 104, Exs. A-C (Lathrop Report). AT & T completed its installation of the cable in the CSX corridor in 1989. Dkt. No. 104, Ex. D, ¶4 (Slapinski Aff.); Dkt. No. 104, Ex. E, ¶ 4 (Miller Aff.). At the time of the installation, the County did not own ten of the twelve properties. (The two exceptions are Lathrop Parcels 6 and 8.)

Eight of the ten post-installation properties were later conveyed to the County. Those include Lathrop parcels 1-5, 9, and 12. The property known as the “Gwynnbrook” property (Lathrop Parcel 7) was conveyed to the County by deeds dated November 19, 2003. Dkt. No. 104, Ex. B at 3. Two other properties, known as the “Worthington Glen” properties (Lathrop Parcels 10 and 11) had not been conveyed to the County by deed as of the date that Lathrop’s report was prepared, or as of the date that AT & T’s summary judgment motion was filed. See id. at 6-8. Record plats of the Worthington Glen and Gwynnbrook properties were prepared and recorded on March 31, 1989 and November 7, 2001, respectively. Dkt. No. 115, Ex. 1, ¶ 3 (White Aff.).

This court entered its final order and judgment approving the Maryland “Telecommunication Cable” Railroad Corridor Class Settlement Agreement in Nance v. AT & T Corp., 1:99-cv-01892-DFH-TAB on November 7, 2003. Gwynnbrook Development Corp. was notified of its right to opt out of the settlement with regard to the Gwynnbrook properties (Lathrop Parcel 7). NV Land, Inc. was notified of its right to opt out of the settlement with regard to the Worthington Glen properties. Dkt. No. 104, Ex. P, ¶¶ 7-8 (Straup Aff.). Neither entity opted out of the settlement or submitted a claim to the settlement center. Id. at ¶¶ 9-10. Baltimore County was not provided with notice of the settlement with regard to the Worthington Glen or Gwynnbrook properties. Dkt. No. 115, Ex. 1, ¶ 5.

The final judgment pursuant to the class settlement released AT & T from any and all claims relating to AT & T’s installation of fiber optic cable on property covered by the settlement. The final judgment also permanently barred class members and their successors in interest from making claims against AT & T relating to property covered by the settlement:

Each member of the class (and each of their respective successors in interest) is barred and permanently enjoined from instituting, asserting, or prosecuting against AT & T or any Released Party any and all Covered Property Claims, and any and all such claims asserted herein are dismissed with prejudice.

The final judgment also provided:

As provided in the Settlement Agreement, this Final Order and Judgment provides AT & T with a sixteen and one-half (16]£) foot wide easement for telecommunications purposes through the Settlement Corridor (as defined in the Settlement Agreement) vis-a-vis all Current Landowners, as defined in the Settlement Agreement (and their respective successors in interest).

Dkt. No. 104, Ex. O, ¶¶ 5, 7, 8.

B. The Gwynnbrook and Worthington Glen Properties

Gwynnbrook Development and NV Land owned the Gwynnbrook and Worthington Glenn properties, respectively, at the time the court approved the class action settlement in Nance. Those entities received proper notice and did not opt out. In the current suit, the County has brought claims based on the same set of facts as the claims that were asserted on behalf of its predecessors in interest in the Nance case that was settled. AT & T contends that the County, which later acquired the property deed to the Gwynnbrook property and, as of the time of filing, had not received the deed to the Worthington Glen properties, may not bring claims that are based on the same set of facts as the claims brought and settled by its predecessors in interest. The court agrees.

The preclusive effect of a judgment is referred to as res judicata, which has two components: claim preclusion and issue preclusion. Taylor v. Sturgell, 553 U.S. 880, 892, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). Under claim preclusion, “a final judgment forecloses successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’ ” Id. at 892, 128 S.Ct. 2161, quoting New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001). (The issue here is the preclusive effect of a federal court judgment, so federal common law controls. Taylor, 553 U.S. at 891, 128 S.Ct. 2161, citing Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-08, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001).) Issue preclusion “bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Taylor, 553 U.S. at 892, 128 S.Ct. 2161, quoting New Hampshire, 532 U.S. at 748-49, 121 S.Ct. 1808.

A person who was not a party to a suit generally has not had a full and fair opportunity to litigate, so res judicata applies to non-parties only in limited circumstances. Taylor, 553 U.S. at 892, 128 S.Ct. 2161. One recognized exception is where there is a substantive legal relationship between the person to be bound and a party to the judgment, such as prior and successive owners of property. Id. at 893, 128 S.Ct. 2161, citing D. Shapiro, Civil Procedure: Preclusions in Civil Actions 78 (2001), and Restatement (Second) of Judgments § 43. Another exception is that “a nonparty may be bound by a judgment because she was ‘adequately represented by someone with the same interests who [wa]s a party’ to the suit.” Taylor, 553 U.S. at 894, 128 S.Ct. 2161, quoting Richards v. Jefferson County, Ala., 517 U.S. 793, 798, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996). “Representative suits with preclusive effect on nonparties include properly conducted class actions.... ” Taylor, 553 U.S. at 894, 128 S.Ct. 2161, citing Martin v. Wilks, 490 U.S. 755, 762 n. 2, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989), superseded by statute on other grounds, 42 U.S.C. § 2000e-2(n). Because Baltimore County was a successor to Gwynnbrook Development’s and NV Land’s ownership interest in the Gwynnbrook and Worthington Glen properties, its claims against AT & T for those properties are precluded.

To avoid this result, the County argues that Gwynnbrook Development and NV Land held only “bare legal title” to those parcels at the time of the settlement and that the County was the equitable owner. Dkt. No. 115 at 4, citing Wolf Organization Inc. v. Oles, 119 Md.App. 357, 705 A.2d 40, 46 (1998) (defendants who had executed a contract to buy real property but had not yet received title in fee simple were not “owners” of the property under Maryland Mechanics’ Lien statute, so their “equitable” interest was not subject to mechanics lien). As the Wolf Organization court explained, “A bona fide executory contract for the sale of real property vests equitable ownership of the property in the contract purchaser. During the executory period, the purchaser owns equitable title to the property and the seller retains bare legal title, which it owns in trust for the purchaser, as security for payment of the purchase money.” Id. at 45, citing DeShields v. Broadwater, 338 Md. 422, 659 A.2d 300 (1995). No evidence before the court suggests that, at the time of the settlement, either Gwynnbrook Development or NV Land was holding only “bare legal title” in trust for the County. This argument fails.

The County also argues that it had “equitable ownership” of the Worthington Glen and Gwynnbrook properties at the time of the settlement pursuant to plats that had been prepared, filed, and recorded in the Plat Records as required under Maryland Real Property Code § 3-108, which governs the local development permitting process. These plats, the County argues, show that the properties were already dedicated to the County. Two of the four Gwynnbrook property plats — plat two of ten and plat four of ten- — that the County submitted to the court as Exhibit 3 are illegible and therefore are not competent evidence to support the County’s contention. The other two Gwynnbrook property plats — plat one of ten and plat eight of ten — are barely legible, but the General Notes on them show that they offer certain interests “for dedication to Baltimore County, Maryland.” Dkt. No. 115, Ex. 3 at 6, 9. The copies of the Worthington Glen plats are also barely readable but indeed provide under “General Notes”:

Highways and highway widening, slope easements, drainage and utility easements, access easements, and stormwater management areas, no matter how entitled, shown hereon, are reserved unto the owner and are hereby offered for dedication to Baltimore County, Maryland. The owner, his personal representative and assigns shall convey said areas by deed to Baltimore County, Maryland, at no cost.

Dkt. No. 115, Ex. 3 at 3-4. Based on these notes, the County argues that when the plats were recorded in the plat records and the land was developed by Gwynnbrook Development and NV Land, the developers made an “offer” and the County “accepted” the dedication, so that the County was entitled to exclusive possession of those parcels of land.

The County relies on Maryland-National Capital Park and Planning Comm’n v. McCaw, 246 Md. 662, 229 A.2d 584, 589 (1967), which held that a county became the owner of property dedicated to the county on plat records at the time the plats were recorded. The flaw in the County’s argument is that the court in McCaw was construing the statutes of Prince George’s County, which provided that Prince George’s County accepted the property at the time the plats were recorded. McCaw, 229 A.2d at 586, 589. The Baltimore County Code, on the other hand, provides the contrary:

(1) Only the County Executive may accept formal offers of dedication of the public improvements including streets, easements, parks, open space, and other public areas.

(2) The recording of a plat does not constitute or imply the acceptance by the county of any public improvement including streets, easements, parks, open space, or other public areas shown on the plat.

Baltimore County Code § 32-4-271(d) (emphasis added). In harmony with this provision, the General Notes on the Worthington Glen plats state: “The recording of this plat does not constitute or imply acceptance by the County of any street, easement, par, open space or other public area shown on the plat.” Dkt. 115, Ex. 3 at 3-4. The General Notes on the legible Gwynnbrook plats contain virtually identical language. Id. at 6, 9.

Even assuming that the illegible Gwynnbrook plats do not contain similar language (though it is likely that they do, as required by the Baltimore County Code), the County’s argument still fails as a matter of law. “The presence of an offer to dedicate is only half the equation. There must also be acceptance.” Windsor Resort, Inc. v. Mayor and City Council of Ocean City, 71 Md.App. 476, 526 A.2d 102, 107 (1987). Here, the County executive accepted the dedication for the Gwynnbrook Property on April 28, 2004 — five months after entry of the Nance final judgment. There is no evidence before the court that the County executive has ever accepted the dedication of the Worthington Glen Property. Accordingly, AT & T’s motion for summary judgment is granted with regard to the Gwynnbrook and Worthington Glen Properties, i.e., Lathrop Parcels 7, 10, and 11.

C. Trespass Claims on Other Post-Installation Properties

Regarding the remaining seven post-installation properties (Lathrop Parcels 1-5, 9, and 12), AT & T argues that the County has no right to bring a trespass claim because the County did not own those properties at the time the cable was installed. This argument depends on the sometimes subtle distinction between permanent trespasses and continuing trespasses. See generally W. Page Keeton et al., Prosser & Keeton on the Law of Torts § 13, at 83 (5th ed.1984). AT & T relies on the Restatement (Second) of Torts, which provides that where a trespass “permanently changes the physical condition of the land” by “destroying] or removing] a structure,” “dig[ging] a well or making] some other excavation, or removing] earth or some other substance from the land,” “the [present] possessor’s right is to full redress in a single action for the trespass, and a subsequent transferee of the land, as such, acquires no cause of action for the alteration of the condition of the land.” Restatement (Second) of Torts § 162, Comment E; see also Charles T. McCormick, Damages for Anticipated Injury to Land, 37 Harv. L.Rev. 574 579-80, n. 9 (1924) (noting that in a permanent trespass action, only the owner at the time of the original wrong may bring the action— not a subsequent purchaser).

The County points out that Maryland has not adopted the Restatement, and the County in any event relies on the concept of continuing trespass. Comment D to the same Restatement section explains:

If the conduct of the actor is a continuing trespass, any person in possession of the land at any time during its continuance may maintain an action for trespass. Thus, if the possession of land upon which the actor has tortiously erected a structure is transferred while the structure remains there, the person in possession of the land at the time of such entry has a cause of action in trespass for the entry as well as for the continuance of the trespass until the time when such person transferred his possession, and the transferee of the possession has a cause of action for the actor’s wrongful continuance of his trespass after the possession of the land was acquired by such transferee.

Restatement (Second) of Torts § 162, Comment D (emphasis added). Although this comment refers only to structures, the relevant reporter’s note cross-references another section of the Restatement defining a continuing trespass as “the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there.” Restatement (Second) of Torts § 161(1).

In this case, whether the County, which acquired these properties after the cable was installed, can sue for the alleged wrong depends on whether AT & T’s underground cable installation would be deemed a “permanent” trespass or a “continuing” trespass (assuming it was wrongful at all). Aspects of each kind of trespass are present here. The cable is certainly a ■ “thing” still present on the land (implying continuity), but the cable’s placement involved an “excavation” of sorts (implying permanence). Maryland law has not addressed this question directly.

In the court’s view, the Maryland courts would likely treat this case as one of continuing trespass. The critical fact is that AT & T’s ongoing use of the cable requires not just the one entry for the cable’s original installation but would almost certainly involve additional entries to repair, replace, and maintain the cable. See Sexton v. Mason, 117 Ohio St.3d 275, 883 N.E.2d 1013, 1019 (2008) (holding that one-time trespass causing annual flooding downstream was only a permanent trespass; “defendant’s ongoing conduct or retention of control is the key to distinguishing a continuing trespass from a permanent trespass”); Carpenter v. Texaco, Inc., 419 Mass. 581, 646 N.E.2d 398, 399 (1995) (stating that “a continuing trespass ... must be based on recurring tortious or unlawful conduct”); Breiggar Properties, L.C. v. H.E. Davis & Sons, Inc., 52 P.3d 1133, 1135 (Utah 2002) (holding that onetime act of dumping debris on property was a permanent trespass: “We characterize a trespass as ‘permanent’ to acknowledge that the act or acts of trespass have ceased to occur. We characterize a trespass as ‘continuing’ to acknowledge that multiple acts of trespass have occurred, and continue to occur .... ”). The need for maintenance distinguishes this buried cable from permanent trespasses in which there is a one-time entry causing damage to or alteration of the property, followed by no further activity by the defendant. See Sexton, 883 N.E.2d at 1019 (“A permanent trespass occurs when the defendant’s allegedly tortious act has been fully accomplished.”); Restatement (Second) of Torts § 162, Comment E (noting that permanent trespass involves “conduct [that] has once for all produced a permanent injury to the land” (emphasis added)). Assuming for purposes of argument that the County’s trespass claim is otherwise viable for a given parcel, the better view under Maryland law is that the installation and maintenance of buried cables is a continuing trespass, at least as long as the company operating the cable intends to and claims the right to maintain and repair or replace the cable. AT & T is not entitled to summary judgment on this basis with respect to Lathrop Parcels 1-5, 7, and 12.

AT & T’s motion for summary judgment (Dkt. No. 201) is granted with respect to the Gwynnbrook properties (Lathrop Parcel 7) and the Worthington Glen properties (Lathrop Parcels 10 and 11), and denied with respect to the other post-installation properties.

III. Evidence of Actual Encroachment (DM. No. 128)

AT & T has also moved for summary judgment on the County’s claims on the theory that the County cannot establish that AT & T’s underground cable actually encroaches on any property owned by the County. The cable runs along only one side of the railroad tracks. If the County’s property does not include the side of the tracks where the cable is installed, then the County has no claim. This motion applies to Lathrop Parcels 1-10 and 12 of the Lathrop Report. AT & T’s motion on this issue is denied without prejudice to renewal after a brief opportunity for discovery that should resolve the issue definitively. This is an issue that should be resolved on the basis of physical inspection and physical evidence rather than the guesswork that is now in the record.

A. Facts for Summary Judgment

The installation of the AT & T fiber optic telecommunications cable in the CSX corridor in Baltimore County was completed in 1989. Dkt. No. 130, Ex. A, ¶6 (Dougherty Aff.). Michael Dougherty was employed by AT & T from 1964 to 1990. Dougherty Aff. ¶ 3. In the 1980s, Dougherty worked as either an engineering supervisor or an engineering staff supervisor for AT & T and had engineering responsibilities in Maryland, including the Baltimore-to-Finksburg CSX railroad corridor in Baltimore County on which AT & T’s fiber optic cable was installed. Dougherty Aff. ¶ 3; Dkt. No. 130, Ex. R. at 7 (Dougherty Dep.). The contractors used a rail plow to install the fiber optic cable. Dkt. No. 130, Ex. S, ¶ 4 (Slapinski Aff.). The rail plow was placed on a railroad car and had a large mechanical arm that went into the ground along the rails and plowed as the rail car moved down the tracks. Slapinski Aff. ¶ 4. The plow normally reached seven feet laterally beyond the rail. Dougherty Dep. at 53-54.

During the installation of the fiber optic cable along the CSX corridor, AT & T prepared as-built drawings showing the approximate location of the cable in relation to the railroad tracks. Dougherty Dep. at 129-30, 132, 165-66. Sheets 3 through 13 of 15 of the AT & T as-built drawings show the installation of the fiber optic cable along the CSX corridor through Baltimore County. Dougherty Dep. at 107-08; see also Dkt. No. 130, Ex. T (Sheets 3 through 13 of 15 as-built drawings). The far left column of the AT & T as-built drawings (“Table A”) reflects the location of the cable as measured from the near rail of the CSX railroad tracks. Dougherty Dep. at 118, 129-30, 132; Dkt. No. 130, Ex. T. The term “offset” used in Table A means the distance from the cable to the near rail, either to the left side or the right side of the railroad tracks. Dougherty Dep. at 129. The AT & T as-built drawings do not show the location of the cable in relation to the centerline of the tracks or to the centerline of the CSX railroad corridor. Dougherty Dep. at 51-55,132.

The County intends to rely on the expert testimony of Wendy Lathrop, a professional land surveyor, regarding the location of AT & T’s underground fiber optic cable along the CSX rail corridor in relation to County-owned property. Dkt. No. 130, Ex. Q (Lathrop Dep.). Lathrop has opined that the AT & T fiber optic cable was buried in the twelve parcels of land at issue. Dkt. 104, Exs. A-C (Lathrop Report). In forming her opinions, Lathrop relied upon railroad valuation maps that depict the outer boundaries of the railroad corridor right-of-way. Dkt. No. 130, Ex. Q at 107; Dkt. No. 130, Exs. U-X (Right-of-Way and Track Maps of Western Maryland Railroad Company (now CSX Transportation) numbered V.l-1/8, V.l-1/7, V.l-1/9, and V.l-1/5) (collectively, the “valuation maps”). The railroad valuation maps on which Lathrop relied depict a baseline running between the right-of-way boundaries. Dkt. No. 130, Ex. Q at 107-08. The baseline is a line of reference from which the railroad makes all of its measurements, but it is not necessarily where the tracks are located. Dkt. No. 130, Ex. Q at 136-37.

Lathrop admitted that she did not know how the AT & T as-built drawings were prepared. Dkt. No. 130, Ex. Q at 92. Lathrop believed that the acronyms “LOEC” and “ROEC” seem to mean “left of easement center” and “right of easement center,” and she admitted that the numbers on Table A were not set up in accordance with the location of the center of the CSX railroad corridor easement. Dkt. No. 130, Ex. Q at 128. She interpreted Table A on the AT & T as-built drawings as showing that the cable was offset a certain number of feet from the baseline or reference line on the railroad valuation maps, and not from the center of the railroad corridor easement. See Dkt. No. 130, Ex. Q at 114,126-28,130-31.

In making her report, Lathrop relied on the documents the County provided and did not physically inspect the twelve land parcels at issue. Dkt. No. 104, Ex. A at 1 (Lathrop Report); Dkt. No. 130, Ex. Q, at 73, 78. Lathrop did not know the exact location of AT & T’s cable. Dkt No. 130, Ex. Q at 83-84. Lathrop did not review any deposition testimony given by witnesses in this case, including Dougherty. Dkt. No. 130, Ex. Q at 125.

B. The Actual Encroachment Issue

Each of the County’s claims hinges on whether the cable is actually buried on its property. The County claims an ownership interest in only half of the railroad corridor that borders on the Lathrop Parcels (other than No. 11). Some of the County’s claimed land lies on one side of the rail corridor, some on the other. AT & T argues that the County cannot meet its burden of proving that the cable was installed through the County’s side of the railroad corridor. Specifically, AT & T attacks Lathrop’s opinion, alleging that she has not determined the precise location of the fiber optic cable within the CSX railroad corridor and cannot know with confidence that the cable runs through the County’s property.

AT & T’s argument, in essence, is that Lathrop cannot testify as to the location of the tracks within the corridor — whether, for example, the tracks are on the far side of the corridor from the County’s property, whether the tracks are in the center of the corridor, or whether the tracks run on the half of the corridor closest to the County’s property — and that without knowing where the tracks run, knowing that the cable was installed within seven feet to the left or right of the near rail of the track does not meet the County’s burden of proof. AT & T hypothesizes that, if the railroad tracks lie seven feet or more from the County’s property, then the plow’s mechanical arm with its seven-foot reach could not have dug the trench for the cable within the County’s property, and Lathrop’s methodology does not foreclose that possibility.

AT & T has presented no evidence to demonstrate that the tracks actually lie far enough away from the County’s property to undermine its claims. At trial, the County will have the burden of proving the location of the cable. If there simply is no evidence either way other than guesswork, the County will lose. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (summary judgment may be granted against party with burden of proof on issue if there is no evidence to meet burden). But a district court may manage discovery in relation to summary judgment. The fact that the parties have even been having this expensive and abstract debate between lawyers and experts is hard to understand. AT & T ought to know where its cable is. In fact, AT & T says that it knows (or is able to ascertain readily) where the cable is located: its signs in the railroad corridor warn against digging and invite calls: “FOR FREE LOCATION, CALL 1-800-257-7777.” See Dkt. No. 123, Ex. Q, ¶ 6 (Miller Aff.). (It is unclear whether the County has called for the “free location” as part of this lawsuit.)

The County is not entitled to enter the railway corridor and to start digging or even probing to find the cable, at least not without consent or court supervision. (The court will happily provide authority and supervision so that this issue can be resolved definitively.) If the County’s claims have significant monetary value, that digging or probing may become necessary in those parcels where the County’s claims otherwise survive summary judgment, and if AT & T cannot provide reliable evidence itself. As an exercise of its power to supervise discovery, and in the interests of resolving this issue on the merits rather than by default rules, the court declines to grant summary judgment at this time to give the County a further opportunity to conduct discovery to determine the actual location of the cable. AT & T’s motion with regard to encroachment into Lathrop Parcels 1-6 and 8-9 (Dkt. No. 128) is denied without prejudice to renewal after further discovery on this elementary question. With regard to Lathrop Parcels 7, 10, and 12, AT & T’s motion is denied without prejudice as moot.

IY. Possession (Dkt. No. 33)

AT & T also moves for summary judgment on the theories that the County is not entitled to possession of the railroad right-of-way and that AT & T itself also is not entitled to possession. From each of these premises, AT & T argues that there can be no viable claim for trespass or for ejectment, even if AT & T’s installation of the cable was beyond the scope of the railroad’s power to authorize and in violation of the County’s rights.

A. The County’s “Possessory” Interest

AT & T asserts that a trespass claim may be asserted only by a party that is in actual possession of the property. See McAuliffe v. Lerch, 189 Md. 672, 57 A.2