Chevy Chase Land Co. v. United States

¹¹⁷ CHASANOW, Judge. This case comes to us by a certified order pursuant to Maryland Code (1974, 1998 RepLVol.), Courts & Judicial Proceedings Article, §§ 12-603 to 12-609 from the United States Court of Appeals for the Federal Circuit. That court seeks our resolution of the parties’ state law property disputes so that it may determine whether an uncompensated taking of private property has occurred in violation of the Fifth Amendment of the United States Constitution. 1 The questions pertain to a right-of-way in Montgomery County called the “Georgetown Branch” that was granted to a railroad in 1911 and that has been converted for use as a hiker/biker trail under the federal “Rails-to-Trails” Act (the Act). Specifically, the case requires that we construe a 1911 deed from appellant Chevy Chase Land Company of Montgomery County (CCLC or the land company) to the Metropolitan Southern Railroad Company (MSRC or the railroad), 2 which is a predecessor in interest to the right-of-way now owned by appellee Montgomery County (the County).

Additional parties to this appeal include appellant Columbia Country Club (Country Club), which claims an interest in the right-of-way for which it should be compensated, and appellee the United States, which along with the County was named as a defendant in this takings claim. The certified questions are as follows: 1. Under Maryland law, did the 1911 deed convey an interest in fee simple absolute or an easement? 2. If the deed conveyed an easement, is the easement subject to any limitations as a matter of law? ¹¹⁸ 3.

If the deed conveyed an easement, has the easement been abandoned as a matter of law since its conveyance and, if so, when? We examine each of the certified questions, in seriatim. Addressing the first question in Part II, we conclude that the 1911 deed granting a “right-of-way” to the railroad conveyed an easement. The use of the “right-of-way” language provides a strong indication that the parties intended to convey an easement as opposed to an estate in fee simple absolute.

We find nothing in the deed to indicate that anything more than a right of passage was intended, particularly in light of the deed’s separate grant “in fee simple” of other land upon which a passenger station was to be located. Our conclusion is confirmed by the circumstances of the conveyance, including the 20-year existence of the railway and the nominal consideration paid by the railroad for the right-of-way. Moreover, the conveyance of the right-of-way in fee simple would not have furthered any purpose of the railway not served by its conveyance as an easement and could adversely affect the public’s interest in the best use of the land. See Part H.B., infra.

Regarding the second certified question, we conclude in Part III that use of the right-of-way as a recreational trail falls within the scope of the easement. The language of the deed includes no express limitations on the use of the right-of-way; rather, it indicates through its use of terms such as “free” and “perpetual” that the parties contemplated general use of the land as a way of passage through Montgomery County. In light of our decisions holding that easements for public highways are subject to reasonable changes in mode of transportation and the railroad’s status as a highly regulated public service corporation, recreational trail use of a general use right-of-way is within the legally anticipated scope of the 1911 deed. Finally, the use of the right-of-way as a trail poses no unreasonable burden on the underlying fee simple estate, as it is self-evident that bikers and walkers inflict less of a burden on a right-of-way than a freight railroad. ¹¹⁹ In Part IV we explain why, as a matter of law, the railroad did not abandon its easement prior to assigning it to Montgomery County in 1988.

To the extent that the appellants’ arguments regarding abandonment hinge on their contention that the scope of the easement is limited to railroad purposes, our holding in Part III also disposes of this issue. Even if appellants’ abandonment arguments are not contingent upon a more limited scope, there is insufficient evidence for appellants to meet their burden of proving abandonment. When determining whether thei’e is an abandonment, the fact that the easement is regulated by federal railroad law is a circumstance that may be relevant to the intent to abandon. The railroad’s actions in conformance with federal law cannot supply the decisive and unequivocal act necessary to prove that it abandoned its state law property interest.

This is particularly the case when the railroad’s actions were entirely consistent with an intent to sell the right-of-way and when a finding otherwise would mean that the railroad intended to violate federal law, exposing itself to criminal and civil liability, when no evidence would support the finding of such an intent. Finally, appellants presented no other evidence that would be sufficient to support a finding of abandonment. I. BACKGROUND A. Factual Background The stipulated facts show the following. The property alleged to have been taken and for which the appellants seek compensation is a strip of land approximately one mile long and 100-feet wide, spanning some 12 acres in Montgomery County, Maryland, that lie on either side and across Connecticut Avenue in Chevy Chase.

The mile-long stretch is a segment of an approximately 6.4 mile former railroad line in Montgomery County known as the Georgetown Branch, which runs from Silver Spring southwesterly into the District of Columbia. The land company was founded in 1890 in part to develop the residential area now known as Chevy Chase and it then ¹²⁰ owned all the land relevant to this case. In 1891, the land company and the railroad entered into an agreement whereby the land company would convey the “right-of-way” over the mile-long stretch of land and a second parcel “for the purposes of a passenger and freight depot.” As part of the agreement, the railroad agreed to erect a passenger station on the second parcel to cost not less than $4,000 (or it would contribute $4,000 toward the land company’s construction of the station), to build the tracks to Connecticut Avenue on or before August 31, 1891, and to charge the land company half rates on freight delivered over the line. The railroad missed the August 31, 1891, deadline, but built that portion of the line in 1892, while the rest of the line was not completed until 1910; it never built the passenger and freight station nor did it pay the $4,000 toward the land company’s construction of the station.

In 1909, the Country Club bought more than 125 acres of land from the land company primarily for use as a golf course. The deed conveyed the property in two separate parcels described by metes and bounds with one parcel on each side of the railroad’s right-of-way. In 1911, after the railroad line had been constructed and in operation for 19 years, the land company executed a deed conveying to the railroad, “its successors and assigns, a free and perpetual right of way” over the land referred to in the 1891 agreement. The deed also conveyed, in “fee simple,” the parcel of land on which the depot was to have been built.

The railroad paid $4,000 for the conveyance, and the deed stated that the 1891 agreement was “mutually abrogated, canceled and set aside, and the [railroad] is hereby released and discharged from the obligation ... of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars.” See Part II.C.l. The railroad used the right-of-way for shipping freight continuously from 1892 until 1985, when damage to a bridge on the right-of-way prevented its use. Between 1969 and 1985, however, traffic over the line had decreased by over 90%. In 1983, in conformance with federal law, the railroad posted a notice on the Georgetown Branch that it would be the ¹²¹ subject of an abandonment application before the Interstate Commerce Commission (ICC).

A series of internal corporate decisions were made by the railroad in 1984 and 1985 to abandon service over the Georgetown Branch. On April 9, 1986, the railroad applied to the ICC for authorization to abandon rail service on the line, as required by federal regulation. See 49 U.S.C. § 10908 (1988); 3 49 C.F.R. §§ 1152.20-22 ; and Part IV.A.2. The ICC issued a tentative decision on February 25, 1988, permitting abandonment on condition that the railroad continue to maintain the right-of-way in order to facilitate the possible acquisition of the right-of-way for public use pursuant to the Rails-to-Trails Act, which is codified at 16 U.S.C. § 1247 (d)(1988)(*ee footnote 3).

After the ICC’s tentative decision, Montgomery County began discussions with the railroad about acquiring the right-of-way for a light-rail system as well as a hiker/biker path pursuant to the Rails-to-Trails Act. On December 12, 1988, the ICC approved the purchase and transfer of use of the right-of-way to Montgomery County. Four days later the railroad conveyed the entire Georgetown Branch to Montgomery County by quitclaim deed for the County’s payment of $10 million. As described in more detail in Part IV.A.2., as a result of the ICC’s actions pursuant to the Act, regulatory abandonment of the railroad right-of-way was delayed indefinitely.

We will provide more facts as we examine each of the certified questions. Additional facts are also available in the opinion of the federal trial court, Chevy Chase Land Co. of Montgomery v. U.S., 37 Fed.Cl. 545 (1997). B. Summary of Arguments and Case History The plaintiffs/appellants assert that the 1911 deed conveyed an easement. They further argue that the proposed use of the easement as a hiker/biker trail is beyond its scope, ¹²² which they contend is limited to railroad uses.

Alternatively, they contend that the easement was abandoned prior to the railroad’s conveyance of the quitclaim deed to the County. Accordingly, appellants conclude that a reversion of the easement occurred and that they own the right-of-way unencumbered by any other interest. Thus, they are seeking compensation in federal court for the “taking” of their interest in the right-of-way by Montgomery County under the Rails-to-Trails Act. Defendants/appellees Montgomery County and the United States, on the other hand, argue that the 1911 deed conveyed to the railroad an interest in the right-of-way in fee simple absolute and therefore the appellants have had no interest in the property since 1911.

Alternatively, should the deed be found to have conveyed an easement, they contend that the use of the right-of-way as a hiker/biker trail pursuant to federal law is within the scope of the easement and that the railroad never abandoned the easement. Accordingly, they conclude that no taking occurred. We are concerned only with the state law property issues and not with the takings claim itself. The United States Court of Federal Claims (CFC), where appellants filed their takings claim, found in favor of Montgomery County and the United States.

Chevy Chase Land Co. of Montgomery, supra. The CFC concluded that the 1911 deed conveyed a fee simple absolute and granted summary judgment in favor of appellees. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 565-75 . Although that conclusion disposed of the case, the CFC went on, in dicta, to conclude that if it was an easement that was conveyed, the easement was abandoned by the railroad prior to its conveyance to the County.

Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 575-80 . Also in dicta, the CFC stated that the language of the 1911 deed did not limit the scope of the easement to railroad purposes (thereby implying that the use as a hiker/biker trail would not cause a reversion) but that if the deed were limited to railroad purposes, the proposed use would be beyond the scope of the easement, thereby causing a reversion ¹²³ giving rise to a takings claim. Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 585-87 . The land company and the Country Club appealed to the United States Court of Appeals for the Federal Circuit, which certified the state law property questions to this court.

II

THE RAILROAD’S PROPERTY INTEREST The first question asks whether the 1911 deed conveyed an interest in fee simple absolute or an easement. The question requires that we construe the 1911 deed between the land company and the railroad. We begin with a summary of the principles involved in construing a deed. We then consider how the courts of this State and other states have construed the phrase “right-of-way.” We then apply those principles to the deed conveyed by the land company to the railroad.

A. Basic Principles of Deed Interpretation In construing a deed, we apply the principles of contract interpretation. Buckler v. Davis Sand, Etc., Corp., 221 Md. 532, 537, 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, 436 , 727 A.2d 358, 363 (1999)(quoting Pacific Indem. v. Interstate Fire & Cas., 302 Md. 383, 388 , 488 A.2d 486, 488 (1985)). At least initially, the construction of a deed is a legal question for the court, and on appeal, it is subject to de novo review.

Calomiris, 353 Md. at 433-35, 727 A.2d at 362-63 . “It is a cardinal rule in the construction of deeds that ‘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, 686 , 270 A.2d 793, 798-99 (1970)(D.C. Transit /)(quoting Marden v. Leimbach, 115 Md. 206, 210 , 80 A. 958, 959 (1911)). Thus, we must consider the deed as a whole, viewing its language in light of the facts and circumstances of the transaction at issue as well as the governing law at the time of conveyance. ¹²⁴ B. Right-of-Way In railroad parlance, “the term ‘right of way’ has two meanings: in one sense it is ‘the strip of land upon which the track is laid’; in the other sense it is ‘the legal right to use such strip,’ and in this sense it usually means the right of way easement.” Ma. & Pa. RR. Co. v. Mer.-Safe, Etc., Co., 224 Md. 34 , 36-37 n. 1, 166 A.2d 247 , 248 n. 1 (1960)(quoting Quinn v. Pere Marquette Ry.

Co., 256 Mich. 143 , 239 N.W. 376, 379 (1931)). See also Joy v. City of St. Louis, 138 U.S. 1, 44 , 11 S.Ct. 243, 256 , 34 L.Ed. 843, 857 (1891)(“[T]he term ‘right of way’ ... sometimes is used to describe a right belonging to a party, a right of passage over any tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their road-bed.”). Cf. Philip A. Danielson, The Real Property Interest Created In a Railroad Upon Acquisition of Its “Right of Way, ” 27 Rocky Mtn.

L.Rev. 73, 74 (1954)(noting the two meanings and stating that “[i]n law [right of way] is synonymous with ‘easement’—a legal concept”). Nevertheless, it has generally been held by courts of this and other states that “deeds which in the granting clause convey a ‘right of way’ are held to convey an easement only.” Deed to Railroad Company as Conveying Fee or Easement, Annotation, 6 A.L.R.3d 973 , § 3, at 977 (1966); The Real Property Interest Created In a Railroad Upon Acquisition of Its “Right of Way, ” 27 Rocky Mtn. L.Rev. at 84 (“[I]f the conveyance is of a ‘right of way,’ or of land ‘for a right of way,’ the courts tend to find an easement ”)(emphasis in original; footnote omitted). As explained in Professor Elliott’s 1907 treatise on railroad law: “ ‘Right of way,’ in its strict meaning, is ‘the right of passage over another man’s ground;’ and in its legal and generally accepted meaning, in reference to a railway, it is a mere easement in the lands of others, obtained by lawful condemnation to public use or by purchase.

It would be using the term in an unusual sense, by applying it to an absolute ¹²⁵ purchase of the fee-simple of lands to be used for a railway or any other kind of way.” 2 Elliott on Railroads § 1158, at 628 n. 77 (3d. ed,1907)(quoting Williams v. Western Union Railway Company, 50 Wis. 71 , 5 N.W. 482, 484 (1880)). See also Richfield Oil Corp. v. Chesapeake & Curtis Bay Railroad Co., 179 Md. 560, 572 , 20 A.2d 581, 587 (1941); D.C. Transit I, 259 Md. at 688 , 270 A.2d at 799 (both quoting Elliott on Railroads). Maryland courts have often construed deeds of “rights-of-way” to railroads as easements or have used the terms “easement” and “right-of-way” synonymously. See, e.g., D.C. Transit I, 259 Md. at 689 , 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 ----”)(emphasis in original); Richfield Oil Corp., 179 Md. at 572 , 20 A.2d at 587 -88 (quoting 2 Elliott on Railroads § 1158, at 627-28 (3d ed. 1907))(“ Where the intention to convey a fee does not appear, as in case of the conveyance of a “right of way” for the railroad through certain lands, the company takes an easement only.’ ”); Greenwalt v. McCardell, 178 Md. 132, 136 , 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 easemewf.”)(emphasis added); Miceli v. Foley, 83 Md.App. 541, 570 , 575 A.2d 1249, 1264 (1990)(“Absent an express intention to convey a fee, a grant of a right of way to a railroad is generally considered to be an easement.”).

Our eases are consistent with those of other jurisdictions. 4 ¹²⁶ The general rule that the terms “right-of-way” and “easement” are synonymous came about because the rule is consistent with the likely intent of the parties to a deed when the term “right-of-way” is used. As we observed in Green, Tr. v. Eldridge, 230 Md. 441, 448 , 187 A.2d 674, 678 (1963): “The fact that the word ‘easement’ was not used to designate the property interest passing is not of particular significance, since use of the phrase ‘right of way is generally understood to mean that only an easement is being granted.” See also Pub. Serv. Commn. v. Gas Etc.

Corp., 162 Md. 298, 312 , 159 A. 758, 763 (1932)(quoting Bosley v. Susquehanna Canal, 3 Bland 63 , 67 (1830))(“ ‘A right of way, whether public or private, is essentially different from a fee simple right to the land itself over which the way passes. A right of way is nothing more than a special and limited right of use.... ’ ”). Furthermore, policy considerations support interpreting the conveyance of a “right-of-way” to a railroad as an easement where the intent to convey an estate in fee is not clearly expressed. 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, 918 , 108 L.Ed.2d 1, 10 (1990)(observing that the nation’s railway system has lost about 130,000 miles of ¹²⁷ 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. As the Indiana Supreme Court has explained: “Public policy does not favor the conveyance of strips of land by simple titles to railroad companies for right-of-way purposes, either by deed or condemnation.

This policy is based upon the fact that the alienation of such strips or belts of land from and across the primary or parent bodies of the land from which they are severed[ ] is obviously not necessary to the purpose for which such conveyances are made after abandonment of the intended uses as expressed in the conveyance, and that thereafter such severance generally operates adversely to the normal and best use of all the property involved.” Ross, Inc. v. Legler, 245 Ind. 655 , 199 N.E.2d 346, 348 (1964). See also The Real Property Interest Created In a Railroad Upon Acquisition of Its “Right of Way, ”27 Rocky Mtn. L.Rev. at 74 (observing that construing a right of way as an easement “seems socially more desirable, since it helps clear titles and prevents long narrow strips of agricultural land from being separated from the adjoining farms, with attendant waste and inconvenience.”). We have previously recognized that the construction of a right-of-way as a fee simple would not further any significant interest that is not served by construction as an easement.

See D.C. Transit I, 259 Md. at 688 , 270 A.2d at 800 (construing a deed to a railroad as an easement in part because it would not serve any useful purpose to convey “a strip of land 80 feet wide” as an estate in fee); Ma. & Pa. RR. Co., 224 Md. at 37 , 166 A.2d at 249 (following the “general rule ... that a railroad company acquires only an easement in a right of way by prescription .... [because] the nature of the ¹²⁸ user by the railroad requires no more than an easement in the right of way”). See also Daugherty v. Helena & Northwestern Ry., 221 Ark. 101 , 252 S.W.2d 546 (1952)(holding that a deed conveying a strip of land for a right-of-way created an easement rather than a fee primarily because the parcel would be useful for little else because of its shape); Hartman v. J. & A. Development Co., 672 S.W.2d 364 (Mo.Ct.App.1984)(recognizing that long narrow strips of land serve little or no function other than for easements or rights-of-way).

This is not to say that a deed conveying a “right of way” to a railroad cannot convey an estate in fee simple. It is well settled that a deed to a railroad, even though it characterizes the grant as conveying a right-of-way, may convey an estate in fee simple. See Hodges v. Owings, 178 Md. 300, 303 , 13 A.2d 338, 339 (1940)(observing that the railroad’s charter authorized it to take an estate in fee). However, 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. “The logical rule ... is that where the deed is ambiguous and the granting clause is not specific, references to the interest being conveyed as a right-of-way gives rise to a presumption that an easement was intended.” Danaya C. Wright, Private Rights and Public Ways: Property Disputes and Rails-to-Trails in Indiana, 30 Ind.

L.Rev. 723, 740 (1997). See also Miceli, 83 Md.App. at 571 , 575 A.2d at 1265 (“As there is insufficient evidence to rebut the presumption that a condemning railroad takes an easement, we hold that the railroad did not acquire a fee simple absolute in the property at issue.”) C. Application to the 1911 Deed 1. The deed in question was executed on March 22, 1911, and recorded on April 4, 1911. In pertinent part, the granting clause of the deed states: “[T]he said party of the first part [the land company] for and in consideration of the sum of FOUR THOUSAND ¹²⁹ (4,000) DOLLARS, to it paid by the said party of the second part, does hereby grant and convey unto the said party of the second part [the railroad], its successors and assigns, a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as ‘Parcel A’ and does hereby grant and convey unto the said party of the second part [the railroad], its successors and assigns, in fee simple, the land and premises, hereinafter designated as Parcel B’.... ” (Emphasis added).

The deed then provides a metes and bounds description of Parcel A, the “right-of-way,” and Parcel B, the land granted in “fee simple.” Parcel A is summarized as “being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of [t]he Chevy Chase Land Company.. .. ” (Emphasis added). The granting clause pertaining to Parcel A is made subject to an “existing right of way for highway and other purposes over what is known as Connecticut Avenue Extended.” The deed’s warranty clause states: “AND the said party hereto of the first part hereby covenants to warrant specially the property hereby conveyed, and to execute such further assurances of said land as may be requisite.” Finally, the deed provides that “in consideration of the execution and delivery of this Deed, and of the payment of the consideration herein expressed, the ... agreement entered into on [April 21, 1891] ... is mutually abrogated, canceled and set aside, and [MSRC] is hereby released and discharged from the obligation set forth in said contract, of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars, or of contributing the sum of Four Thousand (4,000) Dollars toward the erection by ... [CCLC] of a passenger station on the hereinbefore described parcel of land designated as Parcel “B”; and the said [MSRC], as is evidenced by its acceptance of this conveyance, hereby releases [CCLC] from any obli ¹³⁰ gation ... to erect or cause to be erected the passenger station aforesaid.” As the cases just reviewed demonstrate, and as appellees and the CFC acknowledge, we have consistently construed conveyances of rights-of-way to railroads as easements and not estates in fee simple. The use of the term “right of way,” however, does not ipso facto create an easement; rather the language of the deed must be viewed as a whole in the context of the entire transaction. As explained next, we believe that the express language of the deed in light of the circumstances makes sufficiently clear the intention of the land company and the railroad to create an easement.

See Desch v. Knox, 253 Md. 307, 310-11 , 252 A.2d 815, 817 (1969)(holding deed conveyed “right-of-way” based on the language of the deed); Fedder v. Component Struct. Corp., 23 Md.App. 375, 380 , 329 A.2d 56, 60 (1974)(holding that the “intention of the parties [to convey an easement was] crystal clear” when deed conveyed a “right-of-way” and “[w]hen the simple language of the contract is considered in the surrounding circumstances.”) We first examine the language of the deed itself and only then turn to the circumstances of the conveyance. 2. Initially, we note what is obvious about the deed. The granting clause does not state that a piece of land is being conveyed nor does it provide any indication that an estate in fee simple was intended to be conveyed.

The language “free and perpetual” sheds no light on whether a nonpossessory or possessory interest is being conveyed, since an estate in fee or an easement may be “free and perpetual.” See Md.Code (1974, 1996 Repl.Vol.), Real Property Art., § 4-105 (“[E]very grant or reservation of an easement passes or reserves an easement in perpetuity.”). Rather, the granting clause of the deed directly conveys a “right of way.” The appellees therefore have a high hurdle to overcome in order to demonstrate that the term right-of-way was used “in [the] unusual sense ... [ofj an absolute purchase of the fee-simple of lands.... ” ¹³¹ 2 Elliott on Railroads § 1158, at 628 n. 77 (3d ed.l907)(quoting Williams, 5 N.W. at 484 ). That hurdle is elevated upon further examination and a contrasting of the deed’s dual granting clauses. The two granting clauses each declare the land company’s intent to “hereby grant and convey.” First, the land company conveyed “a free and perpetual right of way, one hundred (100) feet wide, over the land and premises hereinafter designated as ‘Parcel A.’ ” Second, the land company conveyed to MSRC “in fee simple, the land and premises, hereinafter designated as ‘Parcel B.’ ” Appellees contend that because each clause contains the word “grant” the land company intended to pass an estate in fee simple even though the first clause grants a “right of way” while the second clause conveys the “land and premises” in “fee simple.” The CFC concluded that the use of the term “fee simple” in reference to Parcel B merely referenced duration of the estate conveyed and not the estate itself.

Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 571 . Relying in part on extrinsic evidence, the CFC concluded that the language “fee simple” in reference to Parcel B was synonymous with the term “perpetual” in reference to Parcel A and thus both granting clauses conveyed estates in fee. Id. We believe that the CFC’s and appellees’ construction of the deed is overly strained.

If the land company intended to convey estates in fee over both parcels, it would have been unnecessary to include two separate granting clauses. Moreover, given that two granting clauses were used, if they had intended to convey the same interest, we believe the author of the deed would have used the same language. Neither the CFC nor appellees explain why different language was used if the intent was to convey the same interest in both parcels. To hold that both Parcel A and Parcel B conveyed estates in fee would be to ignore what we believe is self-evident from the deed: that the parties intended to convey different interests, one for the “right of way” designated as Parcel A and the other for “the land and premises” in “fee simple” and designated as Parcel B. If the intent was to convey Parcel A as an estate in fee, no drafting hurdles would have prevented mak ¹³² ing such intent explicit.

Cf. United States v. 1.44 Acres of Land, Etc., Montgomery County, Md., 304 F.Supp. 1063, 1071 (D.Md.1969)(applying Maryland law)(“[A] legal draftsman ... would not use such [right-of-way] language to convey a fee title to a railroad.”). Appellees further attempt to bootstrap the description of Parcel A as a “parcel of land” into the granting clause to show that an estate in fee of the right-of-way was intended to be conveyed. As noted above, the description of Parcel A is found in a separate paragraph of the deed, which summarizes Parcel A as a “parcel of land ... being a strip of land fifty (50) feet wide on each side of the center line of the Metropolitan Southern Railroad through the land of [t]he Chevy Chase Land Company.” We disagree as to the implications of the language “parcel of land” in the description of “Parcel A” in the deed.

The language is used in the portion of the deed establishing the location of the right-of-way, not the interest granted. Language used in a descriptive clause is less important than the language of the granting clause in denoting what interest in land is conveyed by a deed. See Marden, 115 Md. at 209 , 80 A. at 959 (observing that, when determining the interest conveyed by a deed, in the case of conflict the granting clause generally prevails over the habendum clause). Indeed, the granting clause for Parcel B explicitly stated that what was being conveyed was “the land and premises” while the disputed grant was of a “right of way ... over the land and premises.” (Emphasis added).

Furthermore, as discussed next, in previous eases we have construed language similar to the “parcel of land” language upon which appellees rely. In these cases the deed language was found not in a descriptive clause but in the granting clause itself, and we nevertheless found that the deed conveyed an easement in lieu of the reference to! the interest as a “right-of-way.” In Green, the deed was entitled a “Right of Way Deed.” 230 Md. at 447-48 , 187 A.2d at 677 . The granting clause conveyed in fee simple “‘the free and uninterrupted use, ¹³³ liberty and privilege of, and passageway in and along a certain right of way....”’ Despite the reference to the grant in “fee simple,” we concluded based on the entire instrument and the circumstances of the transaction that the deed granted an easement only, “with the fee remaining in the original grantor, his heirs and assigns.” Green, 230 Md. at 448 , 187 A.2d at 677 . Another example is East Wash.

Railway v. Brooke, 244 Md. 287 , 223 A.2d 599 (1966). In that case, the granting clause of the deed conveyed a “ ‘strip of land for a right of way through said lands.’” Brooke, 244 Md. at 293 , 223 A.2d at 603 (emphasis added). A description of the strip of land summarized it as being “ ‘land sixty feet in width ... as now located and used for railroad purposes.’ ” Brooke, 244 Md. at 294 , 223 A.2d at 603 (emphasis in original). Even though the granting clause conveyed a “strip of land” (which seems synonymous with “parcel of land”), we concluded that “[i]t is plain that the conveyance was of an easement for railway purposes and use only.” Id.

A final example is D.G. Transit I, supra. In that case, the deed we interpreted “ ‘grant[ed] and convey[ed] ... all the piece or parcel of land’ ” described in the deed. D.G. Transit I, 259 Md. at 679 , 270 A.2d at 795 . The habendum clause stated as follows: “ ‘To have and hold the same unto and to the use of ... [the railroad company] for a right of way and such other purposes as said Railway Company is authorized under its act of incorporation ... and the General Incorporation Law of this State to acquire, dispose of or deal in real estate.’” (Emphasis in original.) D.G. Transit I, 259 Md. at 680 , 270 A.2d at 795 .

The granting clause thus conveyed “all the piece or parcel of land” (emphasis added) with the only reference to the “right-of-way” being in the habendum and not the granting clause. Moreover, the deed explicitly stated that the right-of-way could be used for purposes for which the railroad company was authorized under the law, and the deed itself noted that such authorization ¹³⁴ included the acquisition and disposal of real estate. Nevertheless, we concluded based on the deed language and the circumstances that the parties intended to convey an easement only. We observed that the statute authorizing the railroad to acquire and dispose of real estate was for the purpose of “laying out town sites, erecting buildings and opening and working quarries” and “a strip of land 80 feet wide is hardly a town site .... [and] is an unlikely place for the erection of buildings of consequence.” D.C. Transit I, 259 Md. at 688 , 270 A.2d at 800 .

Moreover, we observed that the use of the term “right of way” in the habendum clause was “obviously intended to have some meaning [and] makes clear the intent of the parties to grant an easement.” D.C. Transit I, 259 Md. at 689 , 270 A.2d at 800 . That the deed in this case conveys an easement and not an estate in fee follows, a fortiori, from G-reen, Brooke, and D.C. Transit I. Unlike Green, in the instant case there is no express language suggesting that the right-of-way was conveyed in “fee simple” (even though Parcel B was conveyed “in fee simple”). Furthermore, we do not see any legally significant difference between the “strip of land” in Brooke and the “parcel of land” in this case, and, unlike the instant case where the express grant was of a “right of way,” the grant in Brooke was expressly of a “strip of land.” Therefore, the deed in Brooke provided a much stronger reason under appellees’ analysis to conclude that an estate in fee simple was conveyed rather than a servitude. We nevertheless found it “plain” in Brooke that the grant conveyed an easement only.

Finally, that the 1911 deed conveyed an easement seems compelled by our holding in D.C. Transit I, where the granting clause conveyed “all the piece or parcel of land” and the only reference to a right-of-way was in the deed’s habendum clause. The deed in the instant case contains nearly identical language as in D.C. Transit I (“right of way” and “parcel of land”), but it more clearly indicates an easement was granted than D.C. Transit I since the granting clause directly conveys a right-of-way and the only reference to a “parcel of land” is in the descriptive clause—the opposite locations in which the ¹³⁵ phrases were used in the deed at issue in D.C. Transit I. Therefore we find unconvincing appellees’ creative attempt to argue that, given the definition of Parcel A as a “parcel of land” in the descriptive clause, the “right of way” in the granting clause refers not to the legal right to use the land but rather to the strip of land itself. 3. The circumstances and positions of the parties to the 1911 deed confirm that the deed conveyed an easement and not an interest in fee simple absolute. Both the CFC and appellees emphasize the lack of conditional language in the 1911 deed restricting the uses of the right-of-way or setting forth its purposes.

Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 569 (emphasizing “the outright grant of the right-of-way and the absence of purpose limitations”). They argue that the lack of conditional language in the 1911 deed is what distinguishes the term “right-of-way” in that deed from the rights of way in the numerous Maryland cases that were construed to be easements. For example, the CFC stated that “[t]he 1911 deed does not even refer to the word ‘railroad,’ let alone restrict the use of the land to railroad purposes.” Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 571 . Turning to evidence extrinsic to the deed, the CFC supported its conclusion by quoting from other deeds executed by the land company to railroad companies that conveyed easements which contained purpose language.

Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 570 . For example, the court quotes from a deed stating that the “right-of-way” is subject to the railroad “construct[ing] and completing] and commencing] regular operations] within nine months” and another deed conveying a “right of way for the purpose of constructing and operating the railroad.” Id. While the CFC and appellees correctly point out that there are no purpose limitations in the 1911 deed, they entirely overlook the fact that the railway for which the conveyance was executed had already been built and was in operation for nearly 20 years prior to the 1911 conveyance. Thus, unlike ¹³⁶ the right-of-way deeds examined in our prior cases, and unlike the land company’s deeds to other railroads, the 1911 deed did not convey an undeveloped railroad corridor but rather a railway that had been in existence for quite some time.

As a result, there was little need to state in the deed the purposes for which the right-of-way was conveyed. Regardless, contrary to the intimations of appellees and the CFC, our prior cases have never stated that a right-of-way deed must include purpose language. Rather, we have looked to the circumstances and positions of the parties. In this case, the fact that both parties to the deed were well aware that the right-of-way was to be used for a freight and passenger railroad that had been in operation for many years overcomes any need for limiting language in the deed itself for purposes of creating an easement as opposed to an estate in fee simple absolute.

Furthermore, construing the deed to convey an easement is consistent with the 1891 agreement between the land company and the railroad. That agreement was made “in contemplation of] the construction of a line of road ... to traverse the property” of the land company. It further explained the land company’s intention “to donate and convey to the said railroad company a right of way 100 feet wide.” 5 The 1891 agreement also required the railroad to construct a passenger and freight depot on the tract of land that in the 1911 deed was denoted as “Parcel B,” or, if the railroad did not construct the depot, the agreement provided that it would contribute $4,000 toward ¹³⁷ the cost of the land company’s construction of the depot. The agreement was never recorded.

After the agreement, the railroad constructed the railway but it never built the passenger and freight depot on Parcel B. The CFC concluded that “it is fairly clear that [the 1891 agreement] contemplated the conveyance of an easement.” Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 572 . Despite its conclusion that the 1891 agreement contemplated an easement, the CFC considered extrinsic evidence to conclude that the 1911 deed conveyed an interest in fee simple absolute. The CFC relied on a 1910 letter from a land company official referencing the conveyance to occur in the next year. The letter stated that “ ‘the arrangement was that the Baltimore and Ohio Railroad Company pay to the Chevy Chase Land Company Four Thousand Dollars in cash, and in consideration of this payment, have conveyed to it, all the property covered by its right of way contract with the Land Company, entered into some years ago.’ ” (Emphasis added).

Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 572 . The CFC concluded that the letter “indicates” that the 1911 conveyance was to involve estates in land and not an easement. Id. Even assuming, arguendo, that this letter was properly used to construe the interest that was conveyed in the deed, we fail to see the letter’s significance in determining whether the right-of-way in the 1911 deed conveyed an estate or an easement.

The use of the language in the letter “all the property” is no more convincing as to intent to convey in fee simple than appellees’ arguments rejected earlier relating to the description of the right-of-way as a “parcel of land.” As we see it, the letter has less significance than the language in the deed describing Parcel A as a “parcel of land.” The letter’s statement of intent to “convey[] all the property covered by its right of way contract” can be interpreted as an intent to convey an easement just as convincingly as it may be ¹³⁸ interpreted to show an intent to convey an estate in fee simple absolute. Appellees contend that the 1891 agreement should not be considered because it was “mutually abrogated, canceled and set aside” in the 1911 deed. Indeed, as discussed above, we need not turn to the 1891 agreement to reach our conclusion that an easement was conveyed in the 1911 deed. However, the abrogation language of the 1911 deed was “in consideration of the execution and delivery” of the new deed.

Thus, it is relevant to the 1911 deed since it supplied consideration for the transaction. Moreover, the relevant portion of the deed states in full that the 1891 agreement is “mutually abrogated, canceled and set aside, and [MSRC] is hereby released and discharged from the obligation set forth in said contract, of erecting a passenger station to cost not less than Four Thousand (4,000) Dollars, or of contributing the sum of Four Thousand (4,000) Dollars toward the erection by ... [CCLC] of a passenger station [on Parcel B]; and [MSRC], as is evidenced by its acceptance of this conveyance, hereby releases [CCLC] from any obligation ... to erect or cause to be erected the passenger station aforesaid.” (Emphasis added). Thus, the 1891 agreement was abrogated only when the 1911 deed was properly executed and delivered, and that abrogation was linked in express contractual terms to the primary outstanding obligation of the 1891 agreement—to either spend $4,000 on a passenger depot or pay $4,000 to MSRC for its own construction of a passenger depot. This leads to an additional factor that courts consider in determining whether a fee simple estate or an easement is granted by a deed conveying a “right-of-way”—the amount of consideration paid for the deed. “Deed to Railroad Company as Conveying Fee or Easement,” Annotation, 6 A.L.R.3d 973 , § 3, at 1038 (1966)(“A factor which might be considered relevant in determining whether a deed to a railroad company should be construed as conveying a fee or easement is the amount of the consideration shown to have been paid by the ¹³⁹ company for the conveyance in question.”). “The fact that the consideration paid was less than the value of a fee simple estate in the land, weighs strongly in favor of finding that they intended an easement.” Restatement (Third) of Property § 2.2, “Intent to Create a Semtude” cmt. g (Tentative Draft No. 1, 1989).

We applied this principle in Hodges, supra, where we found that a deed to a railroad conveyed an easement. We noted that “[t]he purpose of the grantee was the building of a railroad, in which the grantor was willing to cooperate with the grantee by a gift of this piece of right of ruay.” Hodges, 178 Md. at 304, 13 A.2d at 340 (emphasis added). See also Tamalpais Land & Water Co. v. Northwestern Pac. R. Co., 73 Cal.App.2d 917 , 167 P.2d 825, 830 (1946)(“[T]he fact that no monetary consideration, or only 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.”); Weeks v. Missouri Pacific Railroad Company, 505 S.W.2d 33, 37-38 (Mo.1974)(finding that deed conveyed an easement interest based in part on evidence that defendant paid no consideration for the grant).

Appellees argue unconvincingly that the $4,000 the railroad paid to the land company was for an estate in fee simple of the land occupied by the right-of-way and not for release from the obligation in the 1891 agreement to expend or pay that amount for the construction of a passenger depot. They go on to contend that the $4,000 for Parcels A and B was more than nominal consideration, which they argue demonstrates that the deed conveyed an estate in fee simple. The CFC apparently accepted appellees’ arguments, finding “more than nominal consideration,” but it went on to conclude that the “consideration tendered does not militate in either direction.” Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 573-74 . We disagree that the consideration was more than nominal and believe the lack of more than nominal consideration further militates toward construing the deed to convey an easement.

We must look no further than the deed itself to see that the consideration paid was nominal. The granting clause states ¹⁴⁰ that the property conveyed by the land company was “in consideration of FOUR THOUSAND (4,000) DOLLARS.” As noted above, the deed provides that “in consideration of the execution and delivery of this Deed,” the land company would release MSRC from its contractual obligation to pay $4,000 for the construction or the land company’s construction of a passenger depot. Thus, the railroad paid $4,000 for release of a $4,000 contractual obligation and the conveyances of Parcel A and Parcel B, which were promised to be conveyed in the agreement of 1891. In lieu of its outstanding $4,000 contractual obligation, the consideration the railroad paid for the property was clearly nominal, which supports our interpretation of the deed as conveying an easement.

In sum, we do not believe, as the appellees intimate and the CFC apparently accepted, that it was sheer coincidence that the $4,000 the railroad paid for the 1911 deed was of the same amount as the railroad’s outstanding $4,000 contractual obligation. Finally, we are unconvinced by appellees’ arguments that the Maryland statute in effect in 1911 suggests that the deed conveyed a fee simple estate. That statute declares that “[t]he word ‘grant,’ the phrase ‘bargain and sell,’ in a deed, or any other words purporting to transfer the whole estate of the grantor shall be construed to pass to the grantee the whole interest and estate of the grantor in the lands therein mentioned, unless there be limitations or reservations showing, by implication or otherwise, a different intent.” Md.Code (1904), Art. 21, § 12. Appellees contend that the statute applies because of the use of the term “grant” in the 1911 deed.

As described above, the limitations in the 1911 deed are inherent in the grant of a right-of-way to a railroad company. Thus, “there [are] limitations or reservations showing, by implication or otherwise, a different intent” than to convey the whole estate of the grantor. Id. Our previous cases construing deeds to railroad companies containing the term “grant” nevertheless have concluded that the instruments conveyed easements and not estates in fee, notwithstanding the statute relied on by appellees.

See Brooke, 244 Md. at 293 , 223 A.2d at 603 (noting Article 21’s “principle that ¹⁴¹ the word ‘grant’ must be construed to pass all of the grantor’s interest unless there are indications otherwise” but concluding nevertheless that deed to railroad using term “grant” conveyed an easement); Richfield Oil Corp., supra (refusing to apply statute to deed using term “grant” to convey a “right of way”); Hodges, 178 Md. at 303-04 , 13 A.2d at 339-40 (refusing to apply the statute when deed used term “grant” but language showed that grantor “gave the [railroad] a right of way,” which conveyed an easement); Ross v. McGee, 98 Md. 389, 394 , 56 A. 1128, 1130 (1904)(holding that the statute “was never intended to apply to ... the granting of an easement”). 4. In conclusion, the use of the term “right-of-way” in the deed provides a strong indication that the railroad and the land company intended the 1911 deed to convey an easement. Our cases and the cases from other states consistently have construed deeds to railroads of “rights-of-way” as conveying easements and not estates in fee simple absolute. The language of the deed at issue in this case provides no reason to deviate from our previous cases.

This is especially the case in light of the dual granting clauses of Parcel A, conveying a “right of way” and Parcel B, conveying the parcel “in fee simple.” Finally, the circumstances of the deed confirm the conclusion that the deed conveyed an easement only. In particular, the fact that the railway had already been built and was in operation obviated any need for limiting language in the deed to indicate that less than a fee simple was being conveyed, and the nominal consideration given the land company by the railroad is a factor more consistent with the conveyance of an easement than an estate in fee simple absolute. 6 ¹⁴² III. THE SCOPE OF THE EASEMENT Since we have determined that the 1911 deed granted an easement, we must now consider the second certified question regarding the scope of the easement. We initially determine whether the express language of the deed limits the available uses of the right-of-way.

After that determination, we consider the extent to which Maryland common law on railroad easements imposes any implied limits on use of the right-of-way that would prevent the right-of-way in the instant case from being used for a hiker/biker trail. This part then concludes with an examination of whether the use of the right-of-way for a hiker/biker trail unreasonably increases the burden of the easement on the servient estates. ¹⁴³ A. Interpretation of the 1911 Deed Appellants contend that the proposed interim use of the right-of-way as a hiker/biker trail is beyond the scope of the easement. Instead of the language of the deed, appellants emphasize the circumstances at the time of the original agreement between the railroad and the land company in 1891, contending that the “evidence is clear” that the land company intended that the easement was for purposes of freight railroad only. The land company cites the Brooke and D.C. Transit I decisions as support for its view that when a right-of-way is conveyed to a railroad, it is ipso facto restricted to railroad uses.

Appellees, on the other hand, emphasize the deed itself, which contains no express limitations on the right-of-way conveyed. They contend that the easement was for a right-of-way to be used for general transportation purposes and that its use as a recreational trail is consistent with those purposes and imposes no additional burden on the servient estates. We agree with appellees that the primary consideration in construing the scope of an express easement is the language of the grant. “[T]he extent of the rights [of an easement acquired by express grant] must necessarily depend upon a proper construction of the conveyance or that part of it by which the easement was created.” Parker v. T & C Dev. Corp., 281 Md. 704, 709 , 381 A.2d 679, 682 (1978)(quoting Buckler, 221 Md. at 537 , 158 A.2d at 322 ).

See also Reid v. Washington Gas Lt. Co., 232 Md. 545, 549 , 194 A.2d 636, 638 (1963)(stating that the “scope of the easement is to be determined from the language of the grant”); 4 Powell on Real Property § 34.12[2], at 34-178 (1998 Supp.)(observing that courts interpreting easements conveyed by express grant “stress the primary control exercised by the language of the creating conveyance” (footnote omitted)). No language in the deed in the instant case suggests that the right-of-way was limited to railroad purposes only (and much less so to freight railroad purposes, as the land company contends). The deed conveyed a “free and perpetual right of ¹⁴⁴ way.” The use of the terms “free” and “perpetual” provide a clear indication that few, if any, conditions were intended to be placed on the railroad’s use of the right-of-way. “[F]ree” is defined as “[n]ot [being] subject to [the] legal constraint of another.” Black’s Law Dictionary 663 (6th ed.1990).

The use of the term “perpetual” clearly indicates that the easement was intended to be of indefinite duration and, particularly when combined with the term “free,” suggests that the use of the easement was to be dynamic, i.e., adaptable to the evolving circumstances and transit needs of those intended to benefit from the right-of-way—in particular the general public whom the land company was attempting to attract to the areas served by the railroad. The language making the easement transferable to “successors and assigns” further supports a broad construction of the deed language. Unlike many of the grants of easements that we have addressed in the past, the deed in the instant case does not suggest any limit on the use of the right-of-way. It is clear that a right of passage was granted, and, as noted above in Part II.C.3, the circumstances clearly indicate that the original instrumentality was a railroad.

But nowhere in the granting clause or. elsewhere in the deed does the language suggest that a railroad was the only instrumentality for use of the perpetual right-of-way. For example, nowhere does language “for railroad purposes” appear, and there are no other express limitations on the use of the right-of-way. Cf. Brooke, 244 Md. at 294 , 223 A.2d at 603 (concluding that deed language “for railroad purposes ” limits scope of right-of-way).

Even if we consider the 1891 agreement to convey the right-of-way to the railroad, that agreement includes no express limitations; it states only that the agreement was made “in contemplation of] the construction of a line of road ... to traverse the property” of the land company. As the Minnesota Supreme Court observed in addressing the scope of an easement granted to a railroad: “[N]one of the deeds expressly limit the easement to railroad purposes, provide that the interest conveyed terminates if use for railroad purposes ceases, or provide that the ¹⁴⁵ easement would exist only for so long as the right-of-way was used for railroad purposes. While the grantors were undoubtedly aware that a railroad would be constructed on the land, none of the deeds limit the use to railroad purposes.” State by Wash. Wildlife Preservation v. State, 329 N.W.2d 543, 546 (Minn.), cert. denied 463 U.S. 1209 , 103 S.Ct. 3540 , 77 L.Ed.2d 1390 (1983).

In sum, it seems undisputable that the deed sweeps broadly by conveying an interest that is “free and perpetual” and making it freely transferable to “successors and assigns.” While the deed presents no express limitations on the use of the right-of-way, that does not end our analysis. Keeping in mind the broad language in the grant, we must determine whether the appellees have the right to substitute, at least for the interim, the use of the right-of-way as a recreational trail for the previous use of the right-of-way as a railroad corridor. We must consider whether the use of the right-of-way as a hiker/biker trail is of the same quality of use as anticipated in the original grant and whether it imposes any unreasonable new burdens on the dominant tenement. Before analyzing those questions, we note that because of the broad language of the grant any doubts about its use will be resolved in favor of the grantee, i.e., the railroad: “If the grant contains no limitations, the court will attempt to discern what the parties would have reasonably expected, and will usually be generous in its interpretation.

The language of the easement can grant to the easement holder a good deal of discretion in the use of the easement or limit the use very narrowly; if the grant is not clear, the court will interpret the scope of the easement in favor of ‘free and untrammeled use of the land.’” (Footnotes and citations omitted). 7 Thompson on Real Property § 60.04(a), at 451 (Thomas ed.1994). See also Washington Gas Lt. Co., 232 Md. at 549 , 194 A.2d at 638 (“[T]he scope of the easement is to be ¹⁴⁶ determined from the language of the grant and any doubtful language must be resolved in favor of the grantee.”). 7 B. Public Transit Use of the Right-of-Way We have long accepted the view that railroads are public service corporations. Whalen v. Balto. & Ohio R. Co., 108 Md. 11, 21 , 69 A. 390, 393 (1908).

See also Ma. & Pa. RR. Co., 224 Md. at 39 , 166 A.2d at 250 (referring to a railroad as a “qwcm-public corporation”); Read v. Montgomery County, 101 Md.App. 62, 68 , 643 A.2d 476, 479 (observing that railroads operating the Georgetown Branch “function[ ] to promote the public welfare”), cert. denied, 336 Md. 301 , 648 A.2d 203 (1994). In Whalen , we accepted the notion that a railroad is “ ‘obliged to use its powers and privileges for the benefit of the public, and in aid of the public good.’ ” 108 Md. at 21 , 69 A. at 393 (quoting the appellant’s brief).

Indeed, as the CFG acknowledged, the statutes in place at the time of the conveyance did not restrict railroad corporations to conducting rail service only. See Chevy Chase Land Co. of Montgomery, 37 Fed.Cl. at 585-86 . For example, Maryland law empowered the legislature to “regulate, modify or change the control, use ¹⁴⁷ and estate of any rail road constructed by such corporation, in such manner as it may deem equitable towards the said corporation and necessary to ike accommodation of the public travel or use of the said rail road or rail roads.” Md.Code (1860), Corporations Art., § 71 (emphasis added). See also Chapter 231 § 1 of the Act of 1882 (authorizing railroad to engage in telegraph business); Ch. 279 of the Acts of 1880 (railroad authorized to operate other railroads and works facilitating commerce).

Because the public nature of the railroad business was obvious at the time of the 1911 deed, we must assume that the land company knew that its grant was subject to reasonable accommodations for the public use and that, if it wanted to limit the uses of the right-of-way to rail use only, it would have included appropriate limiting language in its deed. We have long considered a railroad line as analogous to a public highway. Whalen, 108 Md. at 21 , 69 A. at 393 (“A railroad is in many essential respects a public highway, and the rules of law applicable to one are generally applicable to the other.”); Hessey v. Capital Transit Co., 193 Md. 265, 272 , 66 A.2d 787, 790 (1949)(observing that “a railroad company, organized and conducted for private corporate profit, ... devot[es] its property to the use of the public”). Just like highways, railroad lines are subject to public use as is evidenced by their common carrier obligations.

And railroads historically have had the power of eminent domain, a power reserved only to the government and those the government has annointed. Thus, our cases interpreting the scope of public highways provide a solid framework upon which to construe the grant of a general use “right-of-way” to a railroad. Our highway cases have construed easements for public highways as including within their scope changing means of transportation. In Baltimore County Water & Electric Co. v. Dubreuil, 105 Md. 424 , 66 A. 439 (1907), we explained that “we have been governed by the fact that such [electric railway] uses, of both streets and rural highways, were only new modes of travel and transportation, and the right, ¹⁴⁸ originally acquired, to use them was not simply for the then existing modes, but for all such as might arise in the ordinary course of improvement.

It could therefore be presumed that such improved modes of travel and transportation were within the contemplation of the parties.... ” 105 Md. at 431 , 66 A. at 441 . About a decade earlier, in Poole v. Falls Road Electric Ry. Co., 88 Md. 533 , 41 A. 1069 (1898), we noted that the purpose of a highway easement is for “passing and repassing” and only when a use is “not incident to such right of passage” does it create an additional servitude. 88 Md. at 537 , 41 A. at 1071 . We therefore concluded that the “test ... of what is a new use would seem to be found not necessarily in the nature of the structure nor in the number of the tracks but in the use itself; whether it is promotive of the objects and purposes for which the easement in the public was acquired.” Id.

See also 5 Restatement op Property § 484 (1944)(“In ascertaining ... whether additional or different uses of the servient tenement required by changes in the character of the use of the dominant tenement are permitted, the interpreter is warranted in assuming that the parties to the conveyance contemplated a normal development of the use of the dominant tenement.”). The early decisions of this state adhere to the view that the purpose for which the public easement was acquired is the overriding factor in the analysis rather than the mode or instrumentality of use. In Peddicord v. B., C. & E.M.R.R. Co., 34 Md. 463 (1871), we held that a right-of-way conveyed to a turnpike company could be used for a horse railway for passengers even though “it was not actually contemplated by any of the parties to the acquisition and grant.” 34 Md. at 480-81 . We recognized that the turnpike company had a perpetual easement over the highway, lasting “forever,” and we observed that its conversion to a horse railway was an appropriate improvement “consistent with its character and purpose as a public highway.” Id.

Further, we concluded ¹⁴⁹ that the conversion to horse railway did not cause an additional burden on the land or operate to impair the incidental rights of the dominant tenement. Id. See also Hodges v. Balto. Union P. Ry.

Co., 58 Md. 603, 619 (1882)(similarly holding that a “horse railway is but one of the legitimate contingencies within the objects and purposes for which the street was dedicated to the public”). In Koch v. North-Ave. R.R. Co., 75 Md. 222, 23 A. 463 (1892) and Green v. City & Suburban R.R. Co., 78 Md. 294, 28 A. 626 (1894), we extended the holdings in Hodges and Peddicord to electric railways, concluding that electricity was a normal development consistent with the purpose of public travel. See also Lonaconing Ry.

Co. v. Consol. Coal Co., 95 Md. 630 , 53 A. 420 (1902)(hold-ing that the owner of the fee of a country road was not entitled to an injunction to prevent the building of an electric railway in the county because it was not an additional servitude). In this regard, the law in Maryland is consistent with the law of other jurisdictions that recognize the public attributes of railroad lines. As the West Virginia Supreme Court of Appeals has observed, “railroads are not viewed strictly as private corporations since they are publicly regulated common carriers.

Essentially, a railroad is a highway dedicated to the public use. This dedication imports to the railroad the status of a quasi-public corporation. Eckington & Soldier’s [Soldiers’] Home R. Co. v. McDevitt, 191 U.S. 103 , 24 S.Ct. 36 , 48 L.Ed. 112 (1903); United States v. Trans-Missouri Freight Assoc., 166 U.S. 290 , 17 S.Ct. 540 , 41 L.Ed. 1007 (1897). As such, the rights and duties of a railroad are in most instances determined by constant consultation with the public interest.” Marthens v. B & O Railroad Co., 170 W.Va. 33 , 289 S.E.2d 706, 711 (1982).

See also State by Wash. Wildlife Preservation, 329 N.W.2d at 546 (quoting Marthens); Lawson v. State, 107 Wash.2d 444 , 730 P.2d 1308, 1311 (1986)(“[R]ailroads must hold their property in trust for the public use.”); id. (“A railroad is a public highway, created for public purposes.”); ¹⁵⁰ Faus v. City of Los Angeles, 67 Cal.2d 350 , 62 Cal.Rptr. 193 , 431 P.2d 849, 856 (1967)(holding that right of way “primarily intended to provide public transportation” that was initially used for electric railroad could be converted to motor bus transportation). C. Compatibility of Trail Use with Prior Uses As discussed above, the starting point for determining whether the current use of the Georgetown Branch as a hiker/biker trail is compatible with its prior use is the deed itself.

The phrase “right-of-way” as used in the context of the grant is a “right belonging to a party to pass over land of another.” Black’s Law Dictionary 1326 (6th ed.1990). Since the deed contains no limits on the use of the right-of-way, we apply the rule that “[a] grant in general terms of an easement of way will ordinarily be construed as creating a general right of way capable of use in connection with the dominant tenement for all reasonable purposes.” 3 Herbert Thorndike Tiffany, The Law of Real Property § 803, at 322 (3d ed.l939)(footnote omitted). We believe it indisputable that use of the right-of-way as a trail is consistent with its essential nature relating to the “passing] over land of another” and is a reasonable use of a general right of way. Accordingly, the scope of the right-of-way in the instant case encompasses use as a hiker/biker trail.

It follows from our cases that the fact that a recreational trail may not have been actually contemplated by the parties when the deed was conveyed in 1911 is not outcome determinative. Rather, we assume that the parties anticipated that the use of the right-of-way would conform over time to the reasonable demands of the public. Just like the highway easement in Peddicord lasted “forever,” the deed in this case was made “perpetual,” and although use as a hiker/biker trail “was not actually contemplated by any of the parties to the acquisition and grant, ... it may be said to have been within the legal contemplation of all that it was to be used for all purposes by which the object of its creation, as a public highway, could be promoted.” Peddicord, 34 Md. at 480-81 . In other words, ¹⁵¹ the use of the right-of-way as a public trail was legally contemplated by the parties to the 1911 deed and is of the same nature as the public railway in existence for some 90 years, i.e., the use involves the passage over land consistent with the needs of the public.

The 1891 contract and 1911 deed both clearly anticipated that the right-of-way would be put to use for public transportation, as evidenced by the plans to build a “passenger station” (the 1911 deed) or a “freight and passenger depot” (the 1891 agreement). Use of the right-of-way as a hiker/biker trail constitutes a change in instrumentality consistent with the essential purpose anticipated at the time of the original grant in 1911— passage through Silver Spring, Chevy Chase, and Bethesda. The primary change is one of instrumentality from railcars to bikes and walking, and our highway cases make clear that changes in mode of use are presumed to be -within the contemplation of the parties. Indeed, the state legislature has seen fit to define “highway” as including “bicycle and walking paths.” Md.Code (1977, 1993 RepLVoL, 1998 Supp.), Transportation Art., § 8—101(i)(l).

See also the cases cited in Part III.B., supra, and Washington Gas Lt. Co., 232 Md. at 551 , 194 A.2d at 839 (holding that the replacement of an existing pipe to a larger pipe was within the scope of the easement because the change “involved merely an alteration of the instrumentality of the easement”)(emphasis in original); Tong v. Feldman, 152 Md. 398 , 136 A. 822 (1927)(similar holding). As the South Dakota Supreme Court stated, “the Railroad has transferred the right-of-way to the State for use as a public highway. Hikers, bikers, skiers, and snowmobilers will use the right-of-way, and, as such, the right-of-way will continue to be used as a public highway compatible and consistent with its prior use as a public railway.” Barney v. Burlington Northern R. Co., 490 N.W.2d 726, 732 (S.D.1992), cert. denied sub nom.

Kaubisch v. South Dakota, 507 U.S. 914 , 113 S.Ct. 1265 , 122 L.Ed.2d 661 (1993). D. The Reasonableness of the Burden We must next consider whether use of the right-of-way as a hiker/biker trail unreasonably increases the bur ¹⁵² den on the underlying fee simple estates. It is “the generally accepted rule that since an easement is a restriction upon the rights of the servient property owner, no alteration can be made by the owner of the dominant estate which would increase such restriction except by mutual consent of both parties.” Washington Gas Lt. Co., 232 Md. at 548-49 , 194 A.2d at 638 .

See also W. Arlington L. Co. v. Flannery, 115 Md. 274, 279 , 80 A. 965, 967 (1911)(“[B]eeause an easement is a restriction upon the rights of property of the owner of the servient estate ... no alteration can be made by the owner of the dominant estate, which would be to increase such restriction.”). As we explained in Washington Gas Lt. Co., the test used to determine whether the restriction on the servient estate, i.e., the burden imposed, is “whether the change is so substantial as to result in the creation and substitution of a different servitude from that which previously existed. In other words, if the alteration is merely one of quality and not substance there will be no resulting surcharge to the servient estate.” (Citation omitted).

Washington Gas Lt. Co., 232 Md. at 549 , 194 A.2d at 638 . It is self-evident that the use of the right-of-way as a transportation corridor for walking, biking, and other transportation purposes, including its possible use in the future for light rail, imposes no new burdens on the servient tenements and does not result in the “substitution of a different servitude from that which previously existed.” Id. The use to which the County proposes to use the right-of-way is reasonable and consistent with a grant of a right-of-way “in general terms.” See 3 Herbert Thorndike Tiffany, The Law of Real Property § 803, at 322 (3d ed.1939).

Indeed, “[recreational trail use of the land is compatible and consistent with its prior use as a rail line, and imposes no greater burden on the servient estates.” State by Wash. Wildlife Preservation, 329 N.W.2d at 547 . In comparison to our public highway cases that have permitted a change in use from a highway to a horse or an electric ¹⁵³ railway, the change of use proposed in the instant case is considerably less burdensome. That use of the right-of-way by bikers and walkers poses less of a burden than the use required by a freight train is obvious.

Bikers and walkers, even in large groups, simply cannot be said to be more burdensome than locomotive engines pulling truck-sized railroad cars through the corridor. “The legitimate burden presented by frequent, loud, and even dangerous, railroad use far outstrips any burden presented by foot or bicycle traffic.” Lawson, 730 P.2d at 1320 (Utter, J., dissenting). See also Barney, 490 N.W.2d at 733 (observing that conversion from railway to recreational trail poses “[n]o greater burden ... on the servient estate.”) Moreover, the conversion from a railway to a trail is consistent with the general rule of property law that easements are non-exclusive. Wagner v. Doehring, 315 Md. 97, 104 , 553 A.2d 684, 687 (1989)(“[T]he holder of a right-of-way does not ordinarily have exclusive use of the way.”). On the other hand, an easement held by a railroad tends to exclude use of the easement by the owner of the servient tenement.

See, e.g., State v. Preseault, 163 Vt. 38 , 652 A.2d 1001, 1003 (1994)(“[T]he holder of a railroad easement enjoys the right to the exclusive occupancy of the land, and has the right to exclude all concurrent occupancy in any mode and for any purpose.”); State ex rel. Fogle v. Richley, 55 Ohio St.2d 142 , 378 N.E.2d 472, 475 (1978)(“There can be no greater burden upon property than that which results from [a railroad’s] appropriation of a right to exclusive use.”); Missouri-Kansas-Texas Railroad Company v. Freer, 321 S.W.2d 731, 737 (Mo.Ct.App.1958)(“[S]omewhat as a matter of public policy, the holder of a railway right of way easement can ... exclude the owner of the servient tenement.”)(footnote omitted). Thus, the change in use in this case actually decreases the burden on the servient tenement because, inter alia, the shift is from an exclusive to a non-exclusive use. In this case, the owners of the underlying fee estates with property abutting the Georgetown Branch have access to a corridor to which they did not have access prior to conversion to a trail.

See also Marc A. Sennewald, The Nexus of Federal and State ¹⁵⁴ Law in Railroad Abandonments, 51 Vand. L.Rev. 1399, 1411 (1998)(observing that railroad right-of-ways are “exclusive use easement[s]” and that “railroad easements are- among the most burdensome of easements, especially as compared to easements used for interim recreational trails”); Charles H. Montange, Conserving Rail Corridors, 9 Temp Envtl. L. & Tech. J. 139, 158 (1991)(contending that the shift in use “from a burdensome form of public highway—rail—into a less burdensome form—trail” is “de minimis ”)(footnote omitted).

The fact that the right-of-way may be used for recreational as well as transportation purposes has no bearing on our analysis, since the “recreation” involved—biking and hiking— consists of the enjoyment one may have in transporting oneself. See Webster’s Third New International Dictionary 2430 (Unabridged ed., 1986)(defining “transportation” as involving “travel from one place to another”). Indeed, that hiking and biking may be recreational in addition to fulfilling transportation needs is not all that different from the enjoyment that some derive from driving a car or even riding a train; the enjoyment that some derive from those activities does not detract from their essential character as transportation-related. Indeed, by the very nature of the right-of-way— a confined, narrow strip of land—the “recreational” use is limited to those uses involving transportation itself, including biking, running, and walking, each of which involves moving from one place to another.

Cf D.C. Transit I, 259 Md. at 688 , 270 A.2d at 800 (observing that the useful purpose of “a strip of land 80 feet wide” is limited); Ma. & Pa. RR., 224 Md. at 36-37 , 166 A.2d at 248-50 (making a similar observation). E. Conclusion The right-of-way in the instant case is affected by the public interest. That railroad companies are in the nature public service corporations has been a constant theme of statutory and case law, and we have recognized the public nature of such easements in our jurisprudence regarding the scope of public easements well before the conveyance of the deed in the instant case.

See Part III.B., supra. The public policies have ¹⁵⁵ been evidenced by the comprehensive federal regulatory scheme that governs many aspects of the railroad business (see Part IV. A.2, infra), by a railroad’s status as a common carrier, and by state regulation, even at the time the right-of-way was deeded to the railroad in this case. See generally Benson v. Public Service Comm,., 141 Md. 398 , 118 A. 852 (1922).

Federal and state laws explicitly recognize the value to the general public of railroad rights-of-way. The federal Rails-to~Trails Act, which serves as the impetus for this lawsuit, is an obvious example of the perceived public value of railroad corridors. See 16 U.S.C. § 1247 (d); Preseault, 494 U.S. at 18 , 130 S.Ct. at 925, 108 L.Ed.2d at 17 (quoting H.R. Rep. No. 98-28, at 8 (1983) U.S.Code Cong. & Admin.

News 1983 at 112, 119)(upholding the Act as a legitimate exercise of congressional power and observing that “Congress intended ‘to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use’ ”). The Maryland legislature has also recognized the public value of railroad rights-of-way. See Md.Code (1974, 1997 Repl.Vol.) Natural Resources Art., § 5-1010(a)(2)(“Abandoned railroad corridor property is a unique source of land corridors that are, in many cases, suitable for recreational trails.”); Md.Code (1977, 1993 RepLVol.), Transportation Art., § 7-901 (authorizing the state to acquire railroad corridor property). Thus, our holding furthers, rather than frustrates, legitimate state and federal policy interests.

Our conclusion here also is consistent with the decisions of courts in other states that have held that trail use falls within the scope of the right-of-way conveyed to the railroad. As the Supreme Court observed in Preseault, some rights of way “are held as easements that do not even as a matter of state law revert upon interim use as nature trails.” 494 U.S. at 16 , 110 S.Ct. at 924 , 108 L.Ed.2d at 16 (citation omitted). For example, in State by Wash. Wildlife Preservation, supra, the Minnesota Supreme Court construed a giant of a right-of-way to a railroad that included no express limitations.

The court ¹⁵⁶ concluded that “[u]se of the right-of-way as a recreational trail is consistent with the purpose for which the easement was originally acquired, public travel, and it imposes no additional burden on the servient estates.” 329 N.W.2d at 545 . See also Barney, 490 N.W.2d at 732-33 (similar holding). A different outcome was reached by the Supreme Court of Washington in Lawson, swpra. That court held that a right-of-way conveyed to a railroad reverted to the fee owners when it was conveyed to the local government for use as a recreational trail.

The Lawson court’s decision, however, turned on its acceptance of the deeds at issue as being expressly limited to “railroad purposes only.” 730 P.2d at 1312 . That court stated: “[W]e hold that a change in use from ‘rails to trails’ constitutes abandonment of an easement which was granted for railroad purposes only.” Lawson, 730 P.2d at 1313 (emphasis added). While appellants allege that the right-of-way in the instant case was for railroad purposes only, as discussed above, the language of the deed simply provides no support for its contention. The deed in this case is similar to the deed construed in State by Wash.

Wildlife Preservation, supra, and therefore that case provides the more persuasive authority. In sum, the deed in this case conveyed the general use of a right-of-way. The grantee railroad is obligated under statutory and common law to operate and use its assets for the furtherance of the general public welfare. This obligation runs to its rail corridors, which, in effect, are public highways that must conform in their use to new modes of transportation so long as they are reasonable and are no more burdensome to the servient estate.

Finally, the conversion of a railway used for freight to a footpath is consistent and compatible with the prior railway use. As the Minnesota Supreme Court stated: “The right-of-way is still being used as a right-of-way for transportation even though abandoned as a railroad right-of-way. Recreational trail use of the land is compatible and consistent with its prior use as a rail line, and imposes no greater burden on the servient estates. The use is a public use, which is consistent with the purpose for which the easement was originally acquired.

State and federal stat ¹⁵⁷ utes encouraging the conversion of railroad rights-of-way to recreation trails also support our holding.” State by Wash. Wildlife Preservation, 329 N.W.2d at 547 .

IV

ABANDONMENT The final issue we address is the certified question regarding whether the railroad’s easement has been abandoned. We initially observe that appellants’ arguments on abandonment appear to be predicated on their contention that the scope of the easement was for railroad purposes. The Country Club contends, for example, that various facts show “that the Railroad was not going to be using this property for railroad purposes again.” (Emphasis added). .Along the same lines, the land company contends that the railroad “had no intent to continue railroad use.” (Emphasis added). These arguments of the appellants in part reflect the overlapping nature of the questions of scope and abandonment.

As we stated in Peck v. Baltimore County, 286 Md. 368 , 410 A.2d 7 (1979): “The use to which the County proposes to put the land in question is relevant to whether it has an intention to abandon. If it were to be found that the contemplated use were within the scope of the easement this could be evidence of a lack of intention to abandon. If the contemplated use were not within the scope of the easement, then unless it be found that some other permitted use is being made, it is possible that an intention to abandon might be found, although if the contemplated use is found not to be within the scope of the easement this would not necessarily establish an intention to abandon.” (Emphasis in original). 286 Md. at 377-78 , 410 A.2d at 11 . As Peck suggests, in the instant case if the scope of the easement were limited to railroad purposes, then an intent to abandon railroad use could indicate an intent to abandon the easement.

However, the converse is also true. If the easement is not limited in its scope to railroad purposes, then, in order for there to be an abandonment, the party alleging abandonment must show more than an intent to abandon ¹⁵⁸ railroad service. In Ma. & Pa. RR.

Co., we addressed whether an easement held by a railroad had been abandoned and explained: “The general rule is that the right and title to a mere easement in land acquired by a quasi-public corporation, either by purchase, condemnation or prescription, for a public purpose is dependent upon the continued use of the property for that purpose, and when such .public use is abandoned the right to hold the land ceases, and the property reverts to its original owner or his successors in title.” (Emphasis in original and added). 224 Md. at 39 , 166 A.2d at 250 . Since we have held that the scope of the easement permits use of the right-of-way as a trail, the facts indicating that the railroad did not intend to resume rail service prove unhelpful to appellants’ abandonment arguments. We held in Part III that the trail use, in the words of Ma. & Pa. RR.

Co., is a “continued use of the property for th[e] purpose” for which it was conveyed, i.e., transit uses. Id. To the extent that appellants’ abandonment arguments rest on their contention that the scope of the easement is limited to railroad purposes, they fail to meet their burden of proving abandonment. Nevertheless, we will assume, arguendo, that appellants’ allegations that the right-of-way has been abandoned does not hinge upon the issue of the scope of the easement.

We therefore begin with an examination of Maryland law on easement abandonment and a description of the federal regulatory scheme, which is crucial to an understanding of the various actions the railroad took in the years immediately preceding its conveyance to the County. A. State Law “Abandonment” Versus Regulatory “Abandonment” 1. In Vogler v. Geiss, 51 Md. 407 (1879), our predecessors set forth the standard by which to measure whether an easement has been abandoned. In that case, we said: ¹⁵⁹ “It is now very well settled, by authorities of the highest character, that a party entitled to a right of way or other mere easement in the land of another may abandon and extinguish such right by acts in pais, and without deed or other writing.

The act or acts relied on, however, to effect such result, must be of a decisive character; and while a mere declaration of an intention to abandon will not alone be sufficient, the question, whether the act of the party entitled to the easement amounts to an abandonment or not, depends upon the intention with which it was done, and that is a subject for the consideration of the jury. A cesser of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference whatever to time.” (Emphasis in original and citations omitted). Vogler, 51 Md. at 410 . See also D.C. Transit v. State Rds.

Comm'n, 265 Md. 622, 627 , 290 A.2d 807, 810 (1972)(D.C. Transit //)(“The rule of Vogler has been approved and followed.”); Brooke, supra; 1 .44 Acres of Land, 804 F.Supp. at 1069 (quoting Vogler). Since there is rarely direct evidence of an intent to abandon, the question of abandonment hinges upon the manifestations (or lack thereof) of an intent to abandon, and “the issue in most cases is reduced to the question of what factors or circumstances are sufficient to justify an inference that there existed an intent to abandon.” What constitutes abandonment of a railroad right of way, 95 A.L.R.2d 468 , § 2, at 470 (1964). No single factor is usually sufficient to establish the inference of abandonment. Id.

Rather, Vogler and its progeny make clear that non-use alone is insufficient to show an intent to abandon; there must be an act or a combination of acts that unequivocally demonstrate an intention to abandon. See Shuggars v. Brake, 248 Md. 38, 46 , 234 A.2d 752, 758 (1967)(“An easement may not be lost unless there is some act clearly and unequivocally indicating an intention to abandon it, and mere non-user is not enough.”); Cooper v. Sanford Land Co., 224 Md. 263, 266 , 167 A.2d 602, 604 (1961)(“[T]wo ele ¹⁶⁰ merits are necessary to show an abandonment, namely, an intention to abandon, and an overt act, or an omission to act, by which such intention is carried into effect.”); Ma. & Pa. RR. Co., 224 Md. at 40, 166 A.2d at 250 (“[T]he law is well settled that the intent to abandon may be shown by the acts of a party indicating such an intention.”); Klein v. Dove, 205 Md. 285, 295 , 107 A.2d 82, 87 (1954), citing Lichtenberg v. Sachs, 200 Md. 145, 156 , 88 A.2d 450, 455 (“Mere non-user of a right of way is not necessarily an abandonment of it.”); Knotts v. Summit Park Co., 146 Md. 234, 240 , 126 A. 280, 282 (1924)(“[W]here a right of way is acquired by grant, as in this case, it cannot be lost by mere non-user, for however long a time, unless such non-user is accompanied by some act indicating clearly and unequivocally an intention of the grantee to abandon it.”); Green v. Pennsylvania R. Co., 141 Md. 128, 132 , 118 A. 127, 128 (1922)(“Intention is an essential element of abandonment.”); Canton Co. v. Balto. & Ohio R. Co., 99 Md. 202, 218 , 57 A. 637, 638-39 (1904)(observing that nonuse “will not per se operate as abandonment, unless there is some decided and unequivocal act of the owner inconsistent with the continued existence of the easement”); Glenn v. Davis, 35 Md. 208, 217 (1872)(“Unquestionably, the law is well settled that an easement may be abandoned by the acts of a party indicating such an intention.”). 8 ¹⁶¹ Finally, while the determination turns on the acts of the holder of the easement indicating an intention to abandon, it is well-settled that “the burden of proving abandonment rests on the one who asserts or relies on it.” Ma. & Pa.

RR. Co., 224 Md. at 40, 166 A.2d at 250 . See also D.C. Transit I, 259 Md. at 691 , 270 A.2d at 801 ; Ayres v. Hellen, 235 Md. 258, 261 , 201 A.2d 509, 510 (1964); Klein, 205 Md. at 295 , 107 A.2d at 87 . In several of our previous cases, we have upheld findings that an easement has been abandoned, concluding that the necessary unequivocal acts were present.

For example, in Stewart v. May, 119 Md. 10 , 85 A. 957 (1912), we affirmed a finding that an easement had been abandoned when no use had been made of it for “at least twelve years” and, among other factors, the holder of the easement “had built over the [easement] in such way as to make it impossible for them to enjoy [it].” 119 Md. at 19 , 85 A. at 960 . In Cityco Realty Co. v. Phila., B. & W.R. Co., 158 Md. 221 , 148 A. 441 (1930), we concluded that an easement had been abandoned in an action brought to compel the railroad to construct and maintain a farm crossing that had not been used for more than 20 years before the acquisition of land by the plaintiff and where the land had been conveyed without reservation. And in Hagerstown & F. Rwy. Co. v. Grove, 141 Md. 143 , 118 A. 167 (1922), we upheld a finding of abandonment after a railroad had removed its tracks from the right-of-way four years after it was constructed and after it had begun using another route.

In deciding the certified question, we therefore must decide whether there has been a sufficiently “decided and unequivocal act of the owner inconsistent with the continued existence of the easement.” Canton, 99 Md. at 218 , 57 A. at 639 . Before examining the facts to see if any one of them or taken together they are