Abandoned ROW's ?

When a railroad abandons a line, and pulls up the track, do they still own the ROW or do they lose it? How does that work? Could they re track it in the future if it was determined that it would be of use again or would they have to go through environmental studies/impact studies to ascertain the impact of rail use in that area again before getting approval?

It seems to me that with all this talk of freight congestion, RR companies would be less inclined to give up ROW's that could be functional in the future or they may be more likely to re track some old lines that have not seen rails in years.

North Coast Limited wrote:When a railroad abandons a line, and pulls up the track, do they still own the ROW or do they lose it?

Depends on how the ROW was created. Sometimes the railroad company never owned the property, but instead merely had an easement across somebody else's property. Typically such an easement said "You can use it, but only for railroad purposes." Once the railroad stopped using it, the easement was extinguished and typically the ROW was destroyed by people building on it. The Federal Government put a stop to that by creating a railbanking law. It says that a railroad may remove tracks, but the ROW is still a railroad ROW even if it's current use is as a trail, and the railroad might relay tracks in the future.

In other cases, the railroad purchased the land outright. For example, the Rutland Railroad purchased its land, and when it abandoned the property, it sold it to the Vermont government (which foolishly sold it off and is now frantically trying to buy it back), or in New York State, nobody wanted to buy it, so it went for taxes.

Parts of the Lehigh Valley in Central New York were layed out under varyed paper railroads and were under 999 year leases much of the land was eather turned over to local county governments and or sold for taxes for $1.00 with the stipulation that the land was constitered an right of way and that no one was to build on it. This law as far as I know is not reilly inforced.

What happens if the railroad condemned a property but went into receivership in 1856 before the condemnation award is paid; no codemnation award is paid and no survey of the condemned property was prepared since nothing was recorded with the County Commissioners or Registry of Deeds. Yet, the railroad, as required by a federal law, creates a R.O.W. map, dated 1916 that does not have the seal of a professional engineer or surveyor, and the railroad is sold to the state with a R.O.W. width that has no reference to the abutting deed. Who has the superior title, the landowner with the deed that specifies the track as the monument or the state agency that has a 1916 R.O.W. map and a quitclaim deed from the railroad and that specifies a R.O.W that is 41 feet from the centerline of the track?

AndreaLapointe wrote:What happens if the railroad condemned a property but went into receivership in 1856 before the condemnation award is paid; no codemnation award is paid and no survey of the condemned property was prepared since nothing was recorded with the County Commissioners or Registry of Deeds. Yet, the railroad, as required by a federal law, creates a R.O.W. map, dated 1916 that does not have the seal of a professional engineer or surveyor, and the railroad is sold to the state with a R.O.W. width that has no reference to the abutting deed. Who has the superior title, the landowner with the deed that specifies the track as the monument or the state agency that has a 1916 R.O.W. map and a quitclaim deed from the railroad and that specifies a R.O.W that is 41 feet from the centerline of the track?

Wow. That's a REALLY complicated question. Sounds to me like you're a property owner, and the state is trying to put the ROW to use. This sounds like a situation only a lawsuit can resolve.

You are right. It is a question involving a lawsuit and we are pro se litigants (kids in college, no money to hire a lawyer). And its even more complicated then you think. The state got a special exemption from the ICC to purchase the physical assets only and Maine Central Railroad retains a permanent easement so as to carry on its common carrier obligations. The problem is MCR has not operated on the track for many years. There has been a third party lease, which last operated in 2003, but for a seasonal excursion train only, not freight. Does anybody know someone in the ICC?

The problem here is that the facts of the case, assuming that you're relayed them accurately, are always "on the one hand, but on the other" for both sides. A reasonable man could construe them either way. Take the condemnation award. On the one hand you could say "no payment no ownership". On the other hand, if the condemnation had taken place, but the company went into receivership, then you're just one of many people to whom the company owes money. Or if there's an operating railroad, then even if on the one hand the deed says "owned to the centerline of the railroad" then on the other hand the operating railroad has an implicit right of way which is a MINIMUM of seven feet from the centerline, and that assumes that railway workers LIKE to get scraped off the sides of cars by trees and buildings. Hint: they don't.

Basically, this is a suit whose outcome will make nobody happy. Better to propose modifying your deed with easement 15' from the centerline. That's twice as wide as what they really need, and is more or less standard across the industry for a narrow ROW such as would be typical going through a village like yours. If you can live with that, it's probably what a reasonable judge would impose. If you're lucky enough to get a reasonable judge.

Does the state think they have an easement or do they think they own 41' out in fee simple?

At first the state tried to argue that they had the fee. When they first filed the complaint in response to our new fence along the track that replaced an older fence that had been there since 1989, they included charges of trespassing and nuisance, which have no merit if they do not have the fee. They have now relented that they have an easement. The question becomes what space of land is covered by that easement since there is no legal document; they have only a 1916 R.O.W. map. We have a very small lot and when we tried to biuld a garage, the town would not give us a building permit because the tax maps do not show that we own up to the tracks. We were forced to go to the state and they "willingly" gave us a release deed for the land up to 19 feet from the track signed only by the Commissioner. We agreed to 19 feet in one location so they could get into their signal box, but not for the entire length of the property. We attached to that release deed an affidavit saying that we were not giving up out title, right and interest in the land up to the tracks and we referenced the deeds that specify the track as our monument. We had to file the papers with the registry. The Superior court judged decided that the one-sided release deed is now our legal boundary, and it stands alone. He missed the fact that the affidavit was filed with the release deed together. The state set us up, and we recently found the ICC decision that says the state purchased the tracks only; MCR retained the easement. We have filed with the Law Court.

You ask "Does anybody know someone in the ICC?" Just to make it MORE complicated for you, the ICC was abolished several years back. Some of its functions are now handled by the Surface Transportation Board but it's not just a name change. I understand your finances are tight but I hope you have engaged an attorney familiar with this type of issue - it's not the sort of thing you're apt to have much luck with on your own (as you are finding out).

I'm not a lawyer but I wonder if the concept of adverse possession comes into play here. In other words, regardless of whether the railroad obtained the ROW properly in the 1800's, the fact that they have been there, with tracks, and using it for decades MAY mean they have now established a legal right to the property. Whether something obtained by adverse possession can be sold or transfered (in your case to the State) is another question I'm not qualified to answer.

Thank you for the clarification on ICC vs. Surface Transporation Board. When the state purchased the railroad, ICC existed, and now I know why a recent decision, which referenced the ICC decision of relevance to my case, was issued by the Surface Transporation Board. I don't know if adverse possession would come into play. The state seems to be concerned about it, because next year will marked 20 years that our personal property has been in their so called R.O.W. Thus, the haste in pressuring us to move the property. On the other hand there is a state law that exempts the state from adverse possession. But, if the state only owns the tracks, then perhaps adverse possession could apply to Maine Central Railroad.

AndreaLapointe wrote:The Superior court judged decided that the one-sided release deed is now our legal boundary, and it stands alone. He missed the fact that the affidavit was filed with the release deed together.

Oh, well, this sounds much more straightforward. Pray for relief and point to the filing. Unless ... you're trying to get release from the release and gain use of a portion of the right-of-way. There *is* a legitimate need for railroads to have a wider right of way than the mere width of the cars. There are wide loads, and sometimes loads shift, and sometimes cars are dragging chains or banding that have come loose. There's a mile marker near my house which has a notch taken out at the bottom and it's well away from the width of the cars.

I agree that a railroad needs more than the track width to operate, but it may be years if at all that a railroad for passenger or freight will operate on this track. The state has been so underhanded about this whole thing; it reminds me of the BART debacle when the government exagerrated the numbers to garner public support. For one, the current leasor of the track has a lease that ends at a town south before it reaches our section of track. This is because of the rail trail that was newly constructed along the stretch of the track (except for a small gap next to our house due to a lack of space to have a track with trail). There is no lease because the state did not want to force the communities to purchase liability insurance. The state has an agreement with one of the cities that they will buy the insurance if a train starts to operate in the area. But, is one city going to buy the insurance for all four towns. Then there is a question of the train bridge that crosses the Kennebec River; it will cost millions of dollars to restore that bridge for train traffic, not to mention the track next to my house and other places which is completely covered by soil except the metal rails and the ballast has completely eroded away.