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Outlining property rights of railroads

Protection of private property rights means recognizing the rights of railroads as well.

By Danaya Wright

I would like to respond to and correct some misleading statements in the editorial "Of trails and takings" by Andrea Neal's accompanying column, "A legacy of the age of railroads," in The Star April 10.

First, the railroads paid real money for their interests in the corridor land they acquired. Because they brought wealth and business to the state, the Indiana legislature gave them the power to condemn whatever land they needed.

"My property can only be protected if we have laws that protect everyone else's property, and that includes the railroad's property as well."

However, they rarely had to proceed to condemnation proceedings because most landowners recognized the benefits of nearby rail service (they wouldn't have to drive their crops to market over dirt roads anymore) and gladly sold a portion of their land to the railroads.

In most cases, the railroads acquired full title to their corridor lands and any attempt through state legislation to take away their rights constitutes a taking of their property. The 7th Circuit has already struck down as unconstitutional one Indiana law that would terminate railroad property interests.

Second, in some instances, the railroads purchased permanent easements over the lands held by others. These easements are property rights, just as important as full title, and also cannot be taken without compensation. The only way easements can be terminated under Indiana law is by abandonment of the easement. This abandonment is different from discontinuation of rail services or even removal of track. Abandonment of the easement can only occur when the railroad shows a manifest intent to relinquish its property rights and consummates that intention with unequivocal acts.

Third, only if the railroad acquired an easement, and then gave up its interest in the easement, does the propriety of the rails-to-trails come into play. That was the narrow set of facts in the Vermont takings case.

But the U.S. Supreme Court has held that the federal government has the power, under the Interstate Commerce Clause, to postpone indefinitely the termination of easements under state law without constituting a taking in order to promote railbanking and trail conversions. Hence, if the railroad has not given up its property rights in the easement, it can convey those rights to trail groups without legal difficulty.

Fourth, some trail opponents are under the mistaken impression that the adjoining landowners have an automatic right to retake abandoned corridor land. That is patently untrue. It is a basic rule of property law that one can only acquire property rights on the strength of one's own title. In a vast majority of cases, because of the length of time the railroads ran and for simplicity's sake, many adjacent landowners do not have a description of the corridor land in their chain of title. They are therefore not entitled to the land if the railroad's property interests are terminated.

Fifth, Congress has legislated that railbanking (the preserving of these rail corridors for future use) is a legitimate and important public purpose. As we all realize, the growth and expansion we have witnessed in the lat 50 years cannot continue in the same manner. We cannot expand our multilane highways indefinitely.

High-speed trains are becoming a reality in Europe and Japan. One of the crown jewels of American development is our vast network of railroad corridors ideally suited for conversion to high-speed train use. If we allow these corridors to be broken up and destroyed, we will never have the option of moving toward future, more efficient transportation choices.

The symbol of private property is a powerful tool in our legal arsenal. There is no question that private property must be protected from unlawful and illegitimate intrusions by the state. but my property can only be protected if we have laws that protect everyone else's property, and that includes the railroad's property as well.

When the railroads own their land outright, they are entitled to sell it, just as I am. When they own an easement, they are also entitled to sell it, just as I am. Protection of private property requires protection of everyone's property.

December 2000

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