Norfolk Southern Corporation v. Bellsouth Telecommunications, LLC, d/b/a AT&T Alabama (Certified Question from the United States District Court for the Northern District of Alabama, Southern Division: 2:25-cv-00375-GMB).
CourtSupreme Court of Alabama
Date FiledNovember 13, 2026
DocketSC-2025-0840
StatusPublished
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Full Opinion
Rel: November 13, 2026
Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2026-2027
_________________________
SC-2025-0840
_________________________
Norfolk Southern Corporation et al.
v.
Bellsouth Telecommunications, LLC, d/b/a AT&T Alabama
(Certified Question from the United States District Court for
the Northern District of Alabama, Southern Division: 2:25-cv-
00375-GMB)
PER CURIAM.
SC-2025-0840
Earlier this year, this Court agreed to answer a question certified
to us from the United States District Court for the Northern District of
Alabama concerning the installation of telecommunications equipment
at railroad crossings:
"In Alabama, does a telecommunications provider
installing any kind of telecommunications facilities within the
margin of the right-of-way of a public roadway have an
unqualified right to cross a rail corridor without the
permission of the railroad?"
Today, after careful consideration and deliberation, we exercise our
discretion to decline to answer this question.
QUESTION DECLINED.
Stewart, C.J., and Shaw, Bryan, Sellers, Mendheim, Cook, and
McCool, JJ., concur.
Parker, J., concurs specially, with opinion.
Wise, J., recuses herself.
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PARKER, Justice (concurring specially).
I concur with our decision not to answer the certified question. The
certified-question procedure is a vital aspect of our federal system. And
the current question points to state-law issues that are important and
unsettled. But after due consideration, I have concluded that now is not
the right time to try to resolve them.
I.
A great deal of litigation in this State occurs in federal courts, and
those federal courts must frequently apply Alabama law. But this Court
remains the final arbiter on all matters of Alabama law. See Arizonans
for Official English v. Arizona, 520 U.S. 43, 75-80 (1997).
Recognizing this tension, the certified-question procedure
establishes a system of "cooperative federalism." Berkley Reg'l Ins. Co. v.
Doe Battery Manufacturer, 173 F.4th 989, 993 (8th Cir. 2026). Under this
procedure, our Court may give clear guidance to the federal courts on
unsettled matters of Alabama law -- at least when doing so will prove
"determinative" of a particular case pending in federal court. Ala. R. App.
P. 18(a). This procedure allows our Court to answer questions of Alabama
law rather than simply leaving the federal courts to guess at what we
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might say. See Berkley Reg'l, 173 F.4th at 992. For all its costs and delay,
the certified-question procedure is also more efficient than another
alternative -- federal-court abstention (that is, a stay of the federal case)
in favor of a "full round of litigation in the state court system before any
resumption of proceedings in federal court." Arizonans for Official
English, 520 U.S. at 76.
The Alabama Constitution expressly grants this Court "original
jurisdiction" to "answer questions of state law certified by a court of the
United States." Ala. Const. 2022, Art. VI, § 140(b). And ordinarily, "[w]e
have no more right to decline the exercise of jurisdiction which is given,
than to usurp that which is not given." Cohens v. Virginia, 19 U.S. 264,
404 (1821). But it should also go without saying that we cannot and
should not answer every conceivable state-law question that might arise
during federal litigation. This, presumably, is why the federal courts
have acknowledged our broad discretion in deciding how, and even
whether, to answer a certified question. See, e.g., Alabama State Conf. of
NAACP v. Attorney General of Alabama, 161 F.4th 1286, 1300 (11th Cir.
2025).
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The question thus becomes: "What considerations should justify us
in not answering a certified question?" Without attempting to exhaust all
possible answers to that question, I can think of at least a few:
The question should be determinative. Our appellate rules say
that the answer to any certified question must be
"determinative" of the federal litigation. Ala. R. App. P. 18(a); see
also New York Times Co. v. Spears, [Ms. SC-2025-0370, Apr. 10,
2026] ___ So. 3d ___ (Ala. 2026) (declining to answer a certified
question after initial acceptance because it proved not to be
determinative).
The question should relate to an unsettled area. Our appellate
rules also say that there must be "no clear controlling
precedents" from this Court. Ala. R. App. P. 18(a).
The question should be important. Any certified question should
likely be one of "widespread [public] importance." Berkley Reg'l,
173 F.4th at 992.
The question should be purely legal. A certified question should
ideally be "purely legal" in nature -- in other words, cleanly
presented and capable of clean resolution through traditional
legal reasoning. Executive Plaza, LLC v. Peerless Ins. Co., 717
F.3d 114, 118 (2d Cir. 2013). A "clean" question can still turn on
facts, but the facts should be sufficiently developed to permit an
informed answer, capable of ready determination.
By working through these (and perhaps other) considerations, we, and
the federal courts themselves, can be sure that any certified question is
truly capable of being answered -- and that any answer we provide will
truly matter.
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This case presents difficulties related to the first and last of the
above considerations. The federal district court in this case certified this
question of Alabama law following the filing of a motion for a preliminary
injunction. But at that point, there had been little factual development,
and the issues had not been narrowed or sharpened by the ordinary
course of litigation. Cf. Stewart Title Guar. Co. v. Shelby Realty Holdings,
LLC, 83 So. 3d 469 (2011) (declining to answer a certified question after
initially consenting). As further explained, this circumstance makes it
unclear whether the question is a purely legal one -- and, relatedly,
whether our answer would truly be determinative.
II.
The parties' dispute centers on an Alabama statute that grants a
right-of-way to certain people and corporations to construct "electric
transmission, telegraph, or telephone lines … along the margin of the
right-of-way of public highways." Ala. Code 1975, § 23-1-85. The dispute
certainly entails a question of statutory interpretation. But it also
includes an antecedent question about property rights. Difficulties arise
in answering both of these questions.
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A.
Because the right-of-way statute essentially conveys an easement,
it can convey only those property rights already held by the government
in the public-highway right-of-way. After all, "one cannot convey more
property than one owns." Hinote v. Owens, 248 So. 3d 964, 967 (Ala.
2017). So, before AT&T can build anything in reliance on the right-of-way
statute, we must first ask whether the government could build the same
thing without exceeding the government's own right-of-way.
My research suggests that the answer to this question may vary by
location. In general, the government has broad rights to control the
public-highway right-of-way. See, e.g., Crawford v. Alabama Power Co.,
221 Ala. 236, 238-39, 128 So. 454, 457-58 (1930). And, in general, railroad
companies have broad rights to control the railroad right-of-way. See,
e.g., Central of Georgia Ry. Co. v. Faulkner, 217 Ala. 82, 84, 114 So. 686,
687 (Ala. 1927). But where public roads and railroads intersect, it
appears that a new use may interfere with a preexisting use only
sparingly. Specifically, the new use may be permissible if (1) "it can be
done without destroying the use of the original way" and (2) it
"interfere[s] as little as possible with the original use." Southern Ry. Co.
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v. Todd, 279 Ala. 260, 263, 184 So. 2d 341, 344 (1966); see also Ala. Code
1975, § 18-1A-72.
On my reading of the law, then, the scope of a right-of-way is fact-
intensive and dependent upon the manner in which the right-of-way
arose. See Western Ry. of Alabama v. Alabama Grand Trunk R.R., 96
Ala. 272, 277-79, 11 So. 483, 485 (1892) (discussing differences between
express dedication, condemnation, and prescription). But therein lies the
rub for purposes of our certified-question procedure: This fact-intensive
and location-specific nature of the issue makes it virtually impossible to
fashion any general answer to the certified question. For this same
reason, it is also difficult to see how we can arrive at a statement of the
law that in any respect would be "determinative" of the federal dispute.
B.
Related problems arise in interpreting the right-of-way statute.
Here, the overarching question boils down to whether fiber-optic cables
fall within the statute's reference to "electric transmission, telegraph, or
telephone lines." § 23-1-85. Although the parties did not raise the
question before the district court, the district court's certification order
pointed out that the answer is at least not obvious. Deciding how to
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interpret statutory language over a century old in light of technological
developments can pose both legal and factual difficulties.
Some of the legal questions include: How general is a word like
"telephone?" What about when it is paired with "line?" What do we do
with the history of statutory amendments given that "telegraph" was
added to the right-of-way statute in 1855,1 "telephone" was added in
1897,2 and "electric transmission" was added in 1975?3 How broadly or
narrowly should such terms be read when faced with technology not in
existence at the time? At what level of generality should we understand
the original public meaning of such terms? What other statutes can
inform our understanding of this one?
Factual questions include issues of how the relevant technology
works: What, exactly, do fiber-optic cables do? To what extent do they
facilitate telephone service? And how has fiber-optic cables' relationship
to telephone service changed over time? Similarly, are there factual
differences in telegraph and telephone technology that might explain
1 See Ala. Acts 1855-1856, Act No. 6.
2 See Ala. Code 1897, § 2490.
3 See Ala. Code 1975, § 23-1-85.
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why the Legislature presumably concluded that the word "telegraph" did
not include telephone lines and thus necessitated the addition of
"telephone" in 1897?
Having answers to these questions would be helpful if not essential
to a proper interpretation of the right-of-way statute. Their existence
underscores why the question is not sufficiently "clean" as to permit us
to answer the question.
III.
Today's nonanswer to the certified question may be frustrating, but
a job worth doing is a job worth doing right. Perhaps there will be another
occasion to consider this question -- perhaps with a more narrowed
question and more developed arguments and record. In the meantime, I
remain fully committed to answering certified questions when feasible
and appropriate. I only reluctantly conclude that the circumstances
prevent us from providing such an answer at this time.
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