UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-2482

TAMMY A. SKIDMORE,

Plaintiff − Appellant,

v. NORFOLK SOUTHERN RAILWAY COMPANY, a Virginia corporation,

Defendant – Appellee.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Thomas E. Johnston, District Judge. (2:18−cv−01308)

Argued: January 27, 2021 Decided: June 14, 2021

Before WILKINSON, AGEE, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion. Judge Diaz wrote the opinion, in which Judge Wilkinson and Judge Agee joined.

ARGUED: Jason Patrick Foster, THE SEGAL LAW FIRM, Charleston, West Virginia, for Appellant. Raymond A. Atkins, SIDLEY AUSTIN LLP, Washington, D.C., for Appellee. ON BRIEF: Scott S. Segal, Robin Jean Davis, THE SEGAL LAW FIRM, Charleston, West Virginia, for Appellant. John H. Mahaney, II, Ellen M. Jones, William C. Brown, III, DINSMORE & SHOHL LLP, Huntington, West Virginia, for Appellee. DIAZ, Circuit Judge:

This case pits two important interests against one another: Tammy Skidmore’s interest in preventing her home’s foundation from eroding into the creek next to her property, and Norfolk Southern Railway Company’s (and, indeed, the nation’s) interest in protecting land within the national railway corridor against those who wish to adversely possess it. At this junction, however, we need only resolve whether state or federal courts must decide whose interest prevails. As we explain, the district court correctly rejected Skidmore’s attempt to litigate in state court because federal law completely preempts two of Skidmore’s state-law claims. But the court was wrong to then dismiss the case on the ground that it lacked subject matter jurisdiction over the claims. So we vacate the district court’s judgment and remand for further proceedings.

I.

Tammy Skidmore owns a home in Kincaid, West Virginia. About 70 to 80 feet east of her home lies a set of railroad tracks owned and operated by Norfolk Southern Railway Company, which transports goods by rail throughout much of the United States. Loop Creek, a tributary of the Kanawha River, runs in between Skidmore’s home and Norfolk Southern’s tracks.

In 2001, Norfolk Southern secured permission from local authorities to install a culvert to drain surface water from its tracks into Loop Creek near Skidmore’s home. It built the culvert to drain the water at an angle perpendicular to the direction of Loop Creek’s natural flow. According to Skidmore, the water streaming from the culvert caused

2 “bars” to form in Loop Creek’s riverbed, J.A. 23, which diverted the creek’s flow into the bank on her side of the creek. She claims that the “constant and continuous” soil erosion caused by the creek’s altered flow has washed away three to five feet of the creek bed on her side of the water. That erosion has begun “threaten[ing] the foundation of her home.” J.A. 24.

Skidmore sued Norfolk Southern in West Virginia state court in March 2017, initially alleging only state-law claims for negligence, private nuisance, and trespass. In response to the suit, Norfolk Southern obtained the relevant property deeds and conducted a survey of the land on both sides of Loop Creek. The survey and deeds revealed that, in 1903, Norfolk Southern obtained a right of way extending 75 feet from the center of its tracks, across Loop Creek, and over a portion of the land on the other side. A portion of Skidmore’s house now sits atop the land over which the right of way runs. 1

After learning about the right of way, Norfolk Southern amended its answer on March 16, 2018 to include as an affirmative defense that Skidmore lacked sta