ARMSTRONG COUNYY PROPERTY OWNERS WIN OVER TRAIL ADVOCATES. JUDGE RULES FOR PROPERTY       OWNERS

        The case of Moody et al. v. Allegheny Valley Land Trust, after over ten years and many appeals, Judge Carson V. Brown granted the property owners Motions for Summary Judgment.

       The Court ruled that the property owners owned their property in fee simple and the railroad only obtained an easement to operate a rail road. which was abandoned by Conrail. Conrail abandoned the right of way in Armstrong County from Schenley at mile post 30, to Red Bank at mile post 63.4.

       The case was filed by Attorney William Claney Smith. Attorney Donald Bartlett Smith argued the Motions for Summary Judgment.

Attached is the Court's Order and Opinion.

For more information: W, C. Smith. 412 366 0050.




 IN THE COURT OF COMMON PLEAS OF ARMSTRONG QOUNTY PENNSYLVANIA
                                                   CIVIL DIVISION                    			 SALLY L MOODY, ROBERT J, MOODY,    )
                   FRED J. BR1ENT JR.CYNTHIA L BRIEN  )
                   WILLIAM DUFF McCRADY, WILLIAM A.   )    EQUITY
                   LUCAS, A.J. LUCAS, GLENN G. BEATTY )
                   SHARON L. BEATTY. RODNEY J,        )     No. 1995-0963
                   DENARDO, MELISSA DENARDO, DENNIS   )
                   H, ISEMAN, WILLIAM R. ISEMAN and   )    
                   Estate of MARY E. KELLER, DAVID J. )                       				  KUSHON, AND JANIE B. KUSHON,       )                                                 						Plaintiffs 
						
						Vs.

                  ALLEGHENY VALLEY LAND TRUST,        )                         				 ARMSTRONG COUNTY CONSERVANCY        )
                  CHARITABLE TRUST. ARMSTRONG RAILS   )
                  TO TRAILS ASSOCIATION,              )
                  CONSOLIDATED RAIL CORPORATION.      )
                  JERRY F. LONGWELL, LEE J. CALARIE,  )
                  DAVID R. RUPERT. NORMAN KARP, and   )
                  WILHELMINADECOCK,                   )
                                      Defendants      )

                                    ORDER
        Re: Plaintiffs' Motions for Summary Judgment

                AND NOW. December 30, 2005. following the filing of briefs and  oral argument on the above-referenced Motions held on July 27 2005 IT IS HEREBY
 ORDERED that said Motions be granted as follows:

         (1) That Plaintiffs are the fee simple owners of real estate subject to a railroad right of way originally granted to the Allegheny Valley Railroad which is the subject of this litigation.

       (2) That the railroad right of way in question was given as an easement only and not as a fee simple conveyance of the underlying right of way

      (3) The Consolidated Rail Corporation abandoned said railroad right of way easement between Milepost 30 at Schenley and Milepost 63.4 in Armstrong County on or before June 16, 1989 without timely action being taken by any party or entity to petition the Interstate Commerce Commission for rail banking under the National Trails Systems Act. The railroad right of way is thus deemed to be extinguished by the Consolidated Rail Corporation's abandonment.


(4) The remaining issues relating to injunctive relief, damages for tres-
pass, and libel and slander and disparagement of title and punitive damages shall be reserved for a non-jury trial as provided by the Rules of Civil Procedure.

      This Order is being issued for the following reasons:
 
      (a) The Court is satisfied that there is no genuine issue of material fact relating to Plaintiffs' ownership of the real estate either traversed by          or adjoined by the railroad right of way in question. Similarly the Court is satisfied that the interest held by Allegheny Valley Railroad was merely a right of way or easement interest.

      (b) The issue of whether Consolidated Rail Corporation abandoned the railroad right of way has been the subject of acrimonious dispute between the parties over the life of this litigation both from a factual standpoint and a legal standpoint. After much review of the facts which are reasonably not in dispute, the Court concludes that there is no genuine issue of material fact on this issue. Consolidated Rail Corporation intended to abandon the right of way on the basis it was no longer needed for rail service; service was in fact terminated; the property interest was marketed for sale after the abandonment; the track and other items were sold for salvage, and a rail banking agreement was refused by Consolidated Rail Corporation. The legal authorities cited by Plaintiff are more persuasive than those put forth by Defendants, and accordingly the Court deems a summary judgment to be in order.
                                        
	(c) Plaintiffs' demand for a jury trial has been considered in the context of Pa. R.C.P. No. 1038.3. The Court considers the case to fall within the guidelines of Plaintiffs' seeking equitable relief and the use of a jury being discretionary with the Court with the jury's verdict being advisory only The remaining issues can be handled by the Court without the assistance of a jury.
                                                                                BY THE COURT
                                                                                   ___________________________
                                                                                Carson V. Brown         S.J.
                                                                                Specially presiding                   I
25th Judicial District of Pennsylvania
Assignment No. 95 R 1176                                                                               
                                                                            




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