CHAMBERS v. SPRINT CORPORATION, (W.D.Wis. 2001)

OPINION AND ORDER

BARBARA B. CRABB, United States District Judge

This is a civil action for monetary relief in which plaintiffs Everett E. Chambers, Joanne Chambers, Ray Vinney and all others similarly situated bring state law claims of trespass and unjust enrichment. Plaintiffs allege that without their knowledge or permission defendants Sprint Corporation and Union Pacific Railroad Company installed fiber optic cable beneath the railroad right-of-way running across plaintiffs' properties and that in doing so, exceeded the scope of defendant Union Pacific's property rights in the right-of-way, which are limited to the sole purpose of operating a railroad. Jurisdiction is present under 28 U.S.C. § 1332. Presently before the court is plaintiffs' motion for class certification under Fed.R.Civ.P. 23(b)(3).

Plaintiffs seek certification of a class that would include all landowners on the cable side of defendant Union Pacific's right-of-way in Wisconsin who did not consent to defendant Sprint's installation of the fiber optic cable. Defendants oppose the certification of any class, arguing that plaintiffs cannot satisfy the prerequisites of Fed.R.Civ.P. 23(a) or (b)(3). Specifically, defendants contend that the questions of law or fact are not common to the proposed class, the claims or defenses of the representative parties are not typical of those of the potential class members, the representative parties will not adequately protect the interests of the proposed class, individual issues predominate and class action is not superior to all other methods of resolving the dispute. Further, defendants oppose the proposed class definition on the ground that it depends on the merits of the case and requires extensive factual inquiry to determine who is a class member. Because I conclude that the class proposed by plaintiffs fails to meet the requirements of Rule 23(a) and Rule 23(b)(3), plaintiffs' motion for class certification will be denied.

Also before the court is defendant Sprint's motion for order setting oral argument. Because I am denying plaintiff's motion for class certification, I will deny the motion as moot.

From the exhibits and pleadings filed by the parties and for purposes of this motion only, I find the following facts are undisputed.

ALLEGATIONS OF FACT

Plaintiffs own several parcels of land in Monroe County, Wisconsin, that are adjacent to a portion of defendant Union Pacific Railroad Company's right-of-way. Defendant Union Pacific is a Utah corporation. Defendant Sprint is a Kansas corporation doing business in the state of Wisconsin through Sprint Communication Company Ltd. Partnership, a wholly-owned long distance fiber optic division. Defendant Sprint is engaged in the installation and maintenance of fiber optic telecommunications systems in locations throughout the United States.

In acts of Congress dated June 3, 1856, and May 5, 1864, the federal government conveyed certain lands to the state of Wisconsin "for the purpose of aiding in the construction of a railroad . . . ." Act of Congress June 3, 1856, Ch. 43, 11 Stat. 20 § 1; Act of Congress May 5, 1864, Ch. 80, 13 Stat. 66 §§ 2 and 3. Pursuant to acts of the state legislature on April 1, 1863, and March 29, 1965, the state of Wisconsin granted the same lands to defendant Union Pacific's predecessor, Tomah Lake St. Croix Railroad Company. In the land grant of 1863, the state legislature stated:

For the purpose of aiding in the construction of said railroad, there is hereby granted to the "Tomah and Lake St. Croix railroad company," herein created, all the interest and estate, present and prospective, of this state in and to so much of the lands granted by the government of the United States to the State of Wisconsin . . . by virtue of an act of congress entitled "an act granting a portion of the public lands to the state of Wisconsin, to aid in the construction of railroads," approved June 3d 1856 . . . together with all and singular the rights, privileges and immunities conferred or intended to be conferred by said act of congress . . . .

Private and Local Laws of Wisconsin, April 1, 1863, Ch. 243. In the land grant of 1865, the state legislature affirmed the earlier grant and implemented the 1864 act of Congress:

That there be and is hereby granted to and upon the Tomah and Lake St. Croix railroad company, all and singular the rights, privileges, and interest granted and conferred and bestowed to and upon the state of Wisconsin, by an act of congress approved May 5th, 1864, any and all the lands in said act of congress mentioned, granted and conferred to the state of Wisconsin, for the purpose of aiding in the construction of a railroad . . . .

General Laws of Wisconsin, March 29, 1865, Ch. 232.

In 1866, the state of Wisconsin authorized the Tomah and Lake St. Croix Railroad Company to change its name to the West Wisconsin Railway Company. The renamed railroad received all the "grants, rights, and privileges of every name and nature" of its predecessors upon the change in name. Private and Local Laws of Wisconsin, April 5, 1866, Ch. 285. The West Wisconsin Railway Company was succeeded by the Chicago, Saint Paul, Minneapolis and Omaha Railway Company, which was succeeded in turn by the present Union Pacific Railroad Company.

Without notifying plaintiffs, defendant Union Pacific reached an agreement with defendant Sprint, allowing defendant Sprint to install and maintain a fiber optic cable beneath defendant Union Pacific's right-of-way. Defendant Sprint owns and operates hundreds of miles of fiber optic cable in Wisconsin, representing a small portion of its extensive telecommunications network throughout the United States. A large portion of this network is installed within railroad rights-of-way for the use of which defendant Sprint pays significant annual fees.

Extensive records document defendant Union Pacific's title to the right-of-way and the placement of defendant Sprint's fiber optic cable. Valuation maps plot the course of the railroad's right-of-way and identify the parcels that make up the right-of-way. Thousands of acquisition documents identify the type of interest defendant Union Pacific possesses in the right-of-way parcels and how defendant Union Pacific obtained that interest. Most of the acquisition documents are on file with defendant Union Pacific; the remaining ones are located at the office of the register of deeds for each county. Plaintiffs have engaged Alan Madry, Associate Professor of Law, Marquette University Law School, to analyze and categorize the deeds memorializing the private conveyances to defendant Union Pacific's predecessors. "As built" maps prepared by defendant Sprint chart the location of its fiber optic cable. Publicly available property tax records provide the names and addresses of those who receive property tax bills for land adjacent to defendant Union Pacific's right-of-way. Commercially produced books of plat maps show the location and boundaries of parcels on a county by county basis as well as the name of the owner.

OPINION

For the reasons stated in Chambers v. MCI Worldcom, Case number 00-C-348-C, a copy of which is attached, plaintiffs' motion for class certification will be denied, plaintiffs' motion to file a sur-rebuttal brief will be denied and defendant Sprint's motion for oral argument will be denied.

ORDER

IT IS ORDERED that the motion of plaintiffs Everett B. Chambers, Joanne Chambers and Ray Vinney for class certification is DENIED. Further, defendant Sprint's motion for order setting oral argument is DENIED as moot.