• Issues with rail-trails being hammered out by Supreme Court

  • General discussion related to Rail Trails nationwide, including proposed rail trail routes. The official site of the Rails-To-Trails Conservancy can be found here: www.railstotrails.org.
General discussion related to Rail Trails nationwide, including proposed rail trail routes. The official site of the Rails-To-Trails Conservancy can be found here: www.railstotrails.org.

Moderator: railtrailbiker

  by Milwaukee_F40C
Something that railfans and bike path enthusiasts might want to pay attention to. A case regarding railbanking has made it to the supreme court and will be ruled on.

I receive surveying journal updates and first became aware of this a few weeks ago. The issue is whether property owners are owed compensation when a government builds a trail within a railbanked right of way on private property.

http://www.scotusblog.com/case-files/ca ... ed-states/" onclick="window.open(this.href);return false;

http://www.courthousenews.com/2013/10/02/61672.htm" onclick="window.open(this.href);return false;
The Supreme Court on Tuesday said it will take up the question of whether the United States retains an interest in rights-of-way after the underlying lands were patented into private ownership.
Basically, the supreme court is going to decide whether or not the easement for the abandoned railroad right of way should be extinguished, with ownership of the land returning to Brandt Revocable Trust, the owners of the land around the right of way. They will also determine whether or not the government owes compensation to Brandt Revocable Trust if the easement is not extinguished.
  by Milwaukee_F40C
Here’s some background based on my understanding of railroad easements:
An easement is a right to use somebody else’s land for some specified purpose without having full ownership of it. Many, but not all*, U.S. railroad right of ways are actually easements across the private property of the owners of adjacent land. The way the typical railroad easement works is that the initial railroad obtains temporary rights to use land in order to construct and operate a railroad across somebody’s property, in exchange for some form of compensation (such as a one-time monetary transfer to the property owner or the right of the property owner to receive the benefits of rail service).

The easement exists as long as the railroad is in operation, and can be transferred to successor companies (railroads that buy out other railroads). But, as soon as the railroad is abandoned, as is common with all kinds of easements granted to a particular entity for a particular use, the easement is extinguished and full ownership of the land upon which the right of way exists is supposed to revert to the current owners of the adjacent land (split down the center if separate parties own land on each side of where the tracks were). This is based on old English common law precedent pertaining to easements before railroads even existed, but specific statutes dealing with railroad right of way easements were written to formalize the precedent in the United States.

Railbanking was a radical change to the way railroad right of way easements were traditionally treated in the United States. The idea is that without railbanking, abandoned railroad lines will be broken up and redeveloped by the people who take ownership of the property. Railbanking is supposed to keep the right of way intact, and also allows it to be used for other linear infrastructure, such as recreational trails (“Rails to Trails”).

The problem is that railbanking ignores established property precedent, and the original intent of easements to be extinguished when the easement holder discontinues use. Furthermore, railbanking can force property owners to accept what are basically new terms not mentioned in the original easement when the right of way is put to use for something like a trail or a pipeline rather than the rail service specified in the easement. Similar problems have occurred in the past when active railroads have allowed telecommunications companies to install cable within railroad right of ways, without the actual property owner’s agreement.

Railbanking is basically a workaround for governments to take control of unused railroad right of ways without extinguishing the original easement and forming a new one, and without compensating the actual property owner for new uses such as trails. Compensation, in the “takings clause” of the fifth amendment is an important part of the constitution that requires governments to pay for depriving an owner of the use of their property.

So what will happen? The supreme court could rule that rails-to-trails in combination with railbanking is perfectly okay, in which case nothing will change. The supreme court is good at making rulings that take no strong position one way or the other- they don’t usually want to shock the system. So no existing bike paths are in danger of being shut down. However, they could easily rule that compensation to property owners is required when existing easements are taken for trails. This would mean that property owners must be compensated whenever new bike paths are built across private property, and may even retroactively entitle property owners to compensation for paths that have already been built on their property. No doubt, this would put the brakes on some new bike path proposals where easements are involved.

As a railfan, I am conflicted about railbanking. While I hate to see the obliteration of any potentially productive rail corridor (most abandoned ones aren’t), I favor strict property rights more. I definitely think that property owners should be compensated when easements are taken over for bike paths or any other use that was not mentioned in the original easement.

*Some right of ways were granted directly to the initial railroad company by a state or federal government when the land was previously unowned, while the full ownership of some right of ways were negotiated for (or seized) by railroads and deeded to them. These possibilities would not likely be affected by a ruling on easements.
  by RussNelson
This case has almost *nothing* to do with any existing or planned rail-trails. The railroad did not railbank the right-of-way, but instead (for whatever reason) sought and got a straight-out-abandonment. Well OF COURSE the easement is extinguished.

They filed for abandonment with the STB on May 15, 1996. They removed the tracks and ties in 1999 and 2000. On December 31, 2003, the STB completed the abandonment.
  by Milwaukee_F40C
Actually in this case, the U.S. Forest Service wants the land to build a trail. So it is the federal government that is attempting to retake the abandoned railroad right of way without compensating the land owners, even though the easement should legally be considered extinguished.

The government actually seems to be claiming that the right of way should go to the government just because the land now owned by the Brandt trust was originally owned by the government- that since the railroad is there, the trust never actually owned the right of way itself. It is ridiculous that a case like that would ever get this far, since the legal description in the title(s) for the land owned by the Brandt trust should describe either one continuous parcel or two geometrically separate parcels with a strip of land (the railroad right of way) between the two parcels. If it is one parcel, the railroad right of way is an easement, and it should revert to the Brandt trust.
  by RussNelson
These kind of things can get confused over time. I know that a local rail-trail has an abutting property owner who claims that the railroad was created via an easement, even though he is fully aware that there is a separate parcel describing the railroad which has changed hands a number of times since abandonment. I haven't done the necessary research to see if he's right, but his claim is why people end up in court.
  by TheOneKEA
I would be interested to know how any ruling by the Supreme Court would affect the legal status of the WB&A roadbed in Anne Arundel County, Maryland. The dispute there is that the abandonment of the line extinguished the easement and returned all ownership to the property owner on either side of line, and that current records showing ownership by the county are allegedly not valid.

http://www.thewashcycle.com/2013/10/wba ... rward.html" onclick="window.open(this.href);return false; is a recent posting on the diversion that the trail will have to take due to the dispute.
  by Milwaukee_F40C
The supreme court case could set precedent that affects certain details in all kinds of rail-trail cases, such as the WB&A.

If the easement for the WB&A would have been rightfully extinguished, then any government entity could end up owing compensation to adjacent landowners if it wants to use the right of way for something else. It is probably unlikely that a court would demand any existing trails to be removed, just the same as long existing encroachments between two private properties are rarely demanded to be removed. But the encroachers often end up owing compensation if they don't want to remove or forfeit the encroachment.

Most likely the supreme court will make a very limited decision that only directly affects extremely similar situations to the case they are making the ruling on, like they always do.

In this case, the supreme court is basically determining whether the railroad right of way is an easement at all, since it regards a government land grant that gave a private railroad company the right to construct and operate a railroad across a portion of land, but not necessarily permanent ownership of the land itself. This may or may not mean that owners of the surrounding land (likely non-subdivided quarter-quarter sections offered through the public land survey system) would have rightful ownership claims to the right of way if the railroad is ever abandoned, if a full title for the right of way was never created. If the court does rule that it is an easement, the question of the government owing compensation for using it for something new could just get pushed back to a lower court.
  by ThirdRail7
I meant to put this up a few days ago. The ramifications of this ruling may impact trails across the land.

Supreme Court rules for landowner in `rails-to-trails' case

Please allow a brief "fair use" quote:

http://dfm.whittierdailynews.com/articl ... 929b82a867" onclick="window.open(this.href);return false;
The Supreme Court is hearing yet another case about protesters' constitutional rights. Tom Williams/CQ Roll Call / Getty Images

Robert Barnes,

The Washington Post

Posted Tuesday Mar. 11, 2014 08:35AM EST |Updated 1 week ago

WASHINGTON — The Supreme Court sided Monday with a Wyoming landowner in a dispute with the federal government that raises legal doubts about "rails-to-trails" programs that turn abandoned railroad lines into recreational venues for the public.

The court, on an 8 to 1 vote, threw out the government's claim that it retains control of a 200-foot-wide trail that crosses part of Marvin Brandt's 83 acres of land in Fox Park, Wyo. Brandt was the only one of dozens of landowners who objected to the government's claim to the land and its conversion into a trail.

The railway line was abandoned in 2004. Brandt argued that the rail line was an easement, which becomes part of his property under an 1875 law. The government said the right of way reverts to the public.

Chief Justice John Roberts sided with Brandt. Once the railroad abandoned the line, "Brandt's land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the Fox Park parcel," Roberts wrote.

Court Decision Could Slow Expansion of Rail Trails
Ruling states that land must revert to original owner when railroad ceases to exist.
Jon Marcus
March 19, 2014
  by RussNelson
This case has nothing to do with most rail-trails. The only ones it affects are the ones where the federal government created a right-of-way for a private railroad. The railroad went out of business, and the railroad transferred ownership to other private parties. The federal government was trying to say that after the railroad went out of business, it no longer owned the land, and that (as the Supreme Court has ruled in the past) the easement was extinguished and the land reverted to the original owner.

The key to this ruling is that the federal government made a gift of the land with no conditions, not an easement conditioned on continued railroad use. That was kinda stupid, but there it is. So if your rail-trail is some place where the federal government owned the land (mostly out west), it may not be a rail-trail anymore.
  by dowlingm
http://www.scotusblog.com/2014/03/opini ... andowners/" onclick="window.open(this.href);return false;
If some of the land governed by this case, formerly lying beneath railroad tracks, has been turned into bike and hiking trails for the public’s use, the government faces claims for compensation to private owners, sums that the government has said may run into hundreds of millions of dollars. Justice Sonia Sotomayor noted that prospect as she dissented alone from the eight-to-one ruling in the case of Marvin M. Brandt Revocable Trust v. United States.

Chief Justice John G. Roberts, Jr., the author of the Court ruling, made clear that the decision only applied to former railroad rights-of-way that lay across private parcels that the government had conveyed to private individuals under the General Railroad Right-of-Way Act of 1875. The decision would not apply to the rights-of-way property that railroads abandoned after October 1988, because a law passed by Congress that year made clear that those lands would return to federal ownership once the railroads gave them up.
  by Milwaukee_F40C
The grounds of the case and the supreme court's ruling pretty much mean this: The federal government originally "owned" all the unsettled land through "manifest destiny". At some point after 1875 the government granted a railroad company the right to a strip of land on the condition that they construct and operate a railroad on it. They didn't call it an easement, but in the Brandt case, the supreme court determined that in effect that is what it was. At some point after the railroad was in use, the Department of the Interior released the land around the railroad for homesteading or conveyance to a private owner. The ownership of the land underlying any easement always transfers to the new property owner with the easement holder retaining rights to the easement, the only difference in this case was that the original owner of the underlying land was the federal government. When the railroad shut down and vacated the right of way without railbanking, the full ownership of the land reverted to the owner of the title to the land. The supreme court ruling means that when the federal government gave title to the land to Brandt, it included the land underlying the railroad right of way, not just the land on each side of the railroad.

So wherever the government has built a trail or put former railroad right of ways in this kind of situation to other uses, it now owes compensation to property owners if they seek it, or must vacate use of the land if it can not pay compensation. For the trail in the Brandt case, the government still has the option of taking the land through eminent domain and paying compensation. For other potential cases, land owners probably have a limited amount of time to bring a case to court, whether they know they have a right to the land or not. The government will not automatically shut down any trail or write a check to land owners, because the actual rightful title owner will have to be determined in each individual case.

The 1988 law referred to in the excerpt that dowlingm posted is an amendment to the railbanking law. That law only applies to right of ways that are legally railbanked through the process set up by the legislation, rather than fully abandoned. My comment regarding railbanking in the second message of this thread was incorrect. The supreme court has already previously determined in 1990 that property owners are owed compensation when railroad right of way easements are railbanked. When a right of way is railbanked, the original terms of the railroad easement are effectively extinguished and the land becomes the property of the government. In other words, railbanking is a form of eminent domain. Railroads are not automatically railbanked if they are abandoned- the railroad or a government must do so by following a process handled by the Surface Transportation Board at the time of abandonment.