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Rails To Trails: are landowners railroaded?

A discussion of railbanking from the landowner's perspective by Susie Rogers of Yampa, Colorado.

By Susie Rogers
From the Fence Post, Vol. 20, nos. 8, 9, & 10 in February and March, 1999

"The first lesson is to involve a broad base of support early on."

Patsy and Robert Bridges of the Iron Horse Ranch in Sunset, La., faced a problem they never expected. Like most cattle folk, farmers and other landowners across America, the Bridges— whose property has railroad tracks lying across it— were not aware how easy state and local governments could convert those tracks into recreational trails. While they eventually won their fight, it took them four years of legal barding to do it.

Miles away in another stat, Nebraska landowner Bill Schneider lost his fight against a trail conversion on his property; Schneider now has a Rail Trail 200 yards from his garage and 300 yards from his house.

Yet another Northwest Nebraska couple has rails running across the middle of their property. If these rails are converted to trails, more people may travel across this rail corridor than ever did when trains traveled it. From Fort Robinson, west to the state line, this couple and 24 neighboring landowner are affected by this pending rails to trails project, the outcome of which has yet to et determined.

All across America railroad track corridors which are no longer used for moving grains are being converted into recreational trails for public use by walkers, joggers, cyclists and on designated trails, equestrians. Some landowners support the conversion while others, however, argue against the railroad company's right to convert these rails to trails, claiming that if the railroad only owns easement rights-of-way and if trains no longer run on the rails, then they should be officially declared abandoned and the land they rest on (i.e., corridors) should revert back to the landowners.

At issue between the railroad and these landowners is whether or not the original landowners sold these corridors to the railroad or just granted an easement or right-or-way. If the corridors were bought outright then the railroad has the right to use the corridor for tracks. If it purchased only an easement, on the other hand, and depending on the intent expressed in original deeds, the railroad could be violating a landowner's property rights by converting the corridor's use from rails to trails because "in most easements," the president of American Farm Bureau, Dean Kleckner, says, "title remains with the landowner and the use of the land reverts back to the landowner when the railroad stops running trains on that route." In Becker vs. the U.S., a group of property owners sued the ICC, now the Surface Transportation Board, because an Interim Trail Use certificate was issued on a line in Kansas that had been abandoned; the land should have reverted back to Becker. Consequently, Becker received $56,000 in attorney fees from the government.

However, as James Baarda, a partner in the Washington, D.C., law firm handling legal cases such as these, says, "(the process) can be a difficult and expensive proposition." Records may be 100 or more years old, written in vague or ambiguous terms, the corridors may not be officially abandoned, and/or the railroad may have railbanked the corridors for future use.

The problem started decades ago as the first track was laid.

About 170 years ago there was no such thing as a railway system anywhere in the world— walking and animals provided the only means of travel on land. Then in 1825 Europe opened the first railroad followed by the United States in 1830 when it built 13 miles of track to carry passengers between Baltimore and Ellicott's, Md. Soon distances that the pioneers had crossed plodding along in covered wagons were being crossed by train in relative comfort.

Railroad companies sometimes bought private strips of land (corridors) on which to build their tracks; however, more often they only bought easements which gave the railroad permission to run their railroads on the corridors but allowed the landowner to retain the corridor's ownership.

In 1852 a statute authorised condemnation for railroad use, i.e., the right of eminent domain, so when landowners refused the railroad's offer to buy their lands outright or to purchase easements, the railroad could exert its state-granted powers to condemn the property for public use.

By 1926 the U.S. claimed the world's most extensive railroad system and by 1920 almost 300,000 miles of track lay across the United States at which time Congress passed the Transportation Act which granted the ICC a.k.a. Surface Transportation Board the authority to regulate the construction, operation, and abandonment of railroad lines.

In the 1920s and '30s the trucking industry competed with rail transportation; subsequently, this competition increased with cars, buses, and airplanes such that by the 1940s the railroads abandoned hundreds of miles of track each year and today still abandon more than 2,000 miles of track annually.

But whether the railroad has abandoned its corridors or not is often arguable. Legally, abandonment means tracks are taken up, equipment is removed, and future use of the corridor is eliminated when the ICC issues a Certificate of Abandonment. If the certificate is issued and the original records show the railroad purchased only easements right-of-way, the land reverts back to the landowners (i.e., reversionary rights).

On the other hand, if the railroad discontinues use of the tracks it retains future possible use by designating the corridor railbanked, then the railroad may sell its rights to other entities (e.g., communication companies for fiber optic cable installation or recreations groups for trails— to use until such time the railroad decided it wants to use the corridor again.

Railbanking came about from two Congressional laws.

By the 1970s the nation faced extensive losses in its rail system from disuse and reversion, so Congress enacted the Railroad Revitalization and Regulatory Reform Act of 1976 which prescribed the preservation of abandoned rails for public use.

Then, in 1983, in an effort to preserve the nations's rapidly dismantling railroad systems, Congress passed, the "Railbanking statute." This called for rail corridors to remain intact for future transportation use by allowing them to be used in the interim as public trails. Therefore, when a railbanking takes place, no abandonment takes place, thus no property reverts back to the landowner even if that landowner has title to the corridor.

"So what the railbanking law does," says one landowner," is to allow the railroad, when they want to abandon the line, to go ahead and abandon it and maintain the rights to it." This landowner believes the railbanking laws were designed "to protect the railroad rights-of-way that might be desirable for reactivation, even though the railroad has full right to dispose of those lands that are undesirable or not needed."

Believing the railroad abandoned the rails on their property which they say is proven by the railroad's having quit using the line, this same Nebraska landowner says, "(The railroad) had no intent of future use of the corridor for railway purposes and demonstrated total disregard and complete rejection of their responsibilities in the care of the land and the damage to it and adjacent landowners." In response to the landowner's inquiry about why the rail line was not required to clean up the corridor, Nebraska Sen. W,. R. Wickersham said, "(cleanup) was controlled by the ICC and the provisions of the cleanup were sufficient. Sufficient by who's standards, asks the landowner.

But the railroad rarely if ever legally abandons their lines as verified by Union Pacific's Mike Horn who said, "they are all railbanked."

Horn believes Railbanking is done so "(the railroads) do not have to meet their prior agreements, purchase back lands at today's fair market value, instead of 1885 or thereabouts and (to) avoid legal issues."

And trail supporter Rick Kahn admits it may be 75 or 150 years before alternative forms of transportation might use these corridors. The unlikelihood of using these abandoned lines makes some landowners, who are opposed to trails being build across their property, believe that railbanking is just a loophole for the railroad, on akin they believe, to saying the wagon-wheel rutted trails of the Westward pioneers should have been preserved just in case we decided to use them again.

In 1987 President Regan's Commission on American Outdoors (PCAO) moved the rail issue further by recommending that thousand of miles of abandoned rail lines should become hiking, biking, and bridle paths, creating a national system of greenways, a network of natural and manmade corridors connecting communities, parks and recreation areas across the countryside.

Railbanking then became a valid use, declared by a Supreme Court decision, and Railbanking overrode reversionary rights. Many rural landowner, in particular those whose original records contain reversionary rights or rail corridors, started arguing that to deny them the land without compensation is a taking and is illegal.

Besides compensation, some landowners feel that they are fighting not only for their property rights but also for their lifestyles.

Nebraska landowner, Bill Schneider, believes his home is now an inviting target for vandalism and other crimes saying, "It gives people access to your property that nobody else— nobody has control over. There's no sheriff patrol cars going up and down here. Once they get in here, they can do anything they want." Schneider believe his tractor was messed with by people coming in from the rail-trail.

And lower South Platte, Neb., farmer, David Potter, says without the rail-trail he could have "opened up the right-of-way and farmed it connecting both sides."

In Nebraska, 4,611 miles of active rail line remain, less than half of what existed at the turn of the century, much having been converted to farmland. When corridors run across this farmland, agricultural use of broad areas is diminished, sometimes eliminated.

Additional, adjacent landowners see problems relating to trespassing, harassment of animals, noise from trail users, off trail hiking, and vandalism.

Trail supporter Glenn Johnson admits, "obviously there's a concern about people coming off the trail, off the corridor and trespassing. Fences and signage are things that can be done (to curb these problems). The Uncompahgre Trail at Montrose, Colorado is paved, featuring rest stops with benches and interpretive signs. Fences make real good neighbors. But putting up fences and signs doesn't make a lot of sense to landowners like Schneider whose trail is 200 yards from his garage and 200 yards from his house, or to farmers and ranchers who have rail-trails crisscrossing their lands. Fences would only further restrict their use of their land, so why should their lands be restricted by fences?

Trail supporter Rick Kahn says rail-rails give urban visitors access to rural Nebraska, to unspoiled scenery and undisturbed history, yet some landowners claim rail-trails give visitors trespass access to their properties. A Nebraska landowner remembers, "Where I moved from, trails are located in areas such as flood plains, established open space, parks and recreation areas. But here out land that we now own is cut in half by the previous railroad rights-of-way. To open this up to the public would be a burden on us as well as many of our neighbors.

Many towns along the Cowboy Recreation and Nature Trail in north-central Nebraska are working to provide camping facilities, showers and other amenities along the trails. Ultimately, they say, there will be some real economic benefits to corridor communities— trail users will pay a daily fee of $2. Yearly passes will cost $10 for users over 120 years old. Adjacent landowners opposing the trails say the economic benefits will not help them in the least, and the detriments will hurt them considerably.

It took 20 years to open the first 100 rail trails and only 10 months to open the most recent 100 trails. Today there are more than 1,000 complete rail trails with more than 10,000 miles for users and 1,200 more projects planned. Some trails get as many as 400,000 users annually, like the Iron Horse Trail in San Francisco's suburbs. In rural southwestern Pennsylvania, the Ghost Town Trail counts an annual 75,00 users. In 1999 rail-trails are expected to be used more than 100 million times.

And while some landowners give their easements to the trails' projects, others file claims, like on hotel owner Byron Center Township in Michigan. The hotel owner filed suit against Kent County over ownership of the easement that runs adjacent to his business, arguing that he wants the trail off his property and complains of hikers' cars filling up his parking lot and visitors making excessive use of his restroom facilities. Roger Storm of Michigan's Rail-to-trails Conservancy says most opposition is from local landowners like this.

So even though less than half of the original 300,000 miles of railroad track exists today, the same frustrations that besought landowners 170 years ago exist for landowners today who oppose trails and the visitors those trail bring.

Who owns the corridors?

By Susie Rogers, Yampa, Colo. -- Part 2 of a 3-part series

One of the first Rails-to-Trails concepts was articulated by May Theigaard Watts, a naturalist who saw an opportunity to create a pathway for bicyclists and walkers along an abandoned corridor outside her Chicago home. Thirty years later, the Illinois Prairie Path stretched 55 mile through 19 communities and a dozen state forest preserves. Since Theigaard's initial efforts, 6,740 miles of abandoned rail corridors have been made into 541 open trails nationwide.

But some projects have been fraught with controversy. For example, Mary smith and her husband run a general store, tavern and campground called Smitty's Place on the 25-mile route along the Little Maquoketa River Valley in Dubuque County, Iowa. Their business runs along the Heritage Trail in northeastern Iowa. The trail controversy here centers around reversionary rights issue, fencing problems, gate crossings for farmers, and vandalism, according to Smith. Fortunately, things worked out, Smith concludes, when gates were put in for crossings, fences were put up at no cost to adjacent landowners and no vandalism occurred.

That's not the case, however, with some trail projects. In 1990, a rail-to-trail conversion created opposition against a 25-mile Missouri Pacific line between Lincoln and the village of Wabash in Cass County, Neb. Following extensive flood damage in 1984, the railroad officially abandoned the line in 1990. In 1991, the Nebraska Trails Foundation bought the abandoned corridor and transferred title to the local Natural Resources District (NRD) for development into the MoPac East hike-bike trail.

However, adjacent landowners who have property adjoining the trail (including a couple near Wabash on the eastern end of the MoPac East Trail who have farmed in the area for more than 40 years and have a corridor dividing through their land were plagued by trespassing, trash, vandalism, and illegal hunting, a result of the easy access along the railroad line. The trail, they feared, would provide even easier access and make a bad situation worse.

Sentiments like these were expressed by another group in 1993. Two hundred locals and an NRD trails' subcommittee met in Valparaiso to discuss a proposed 12-mile trail along an abandoned Union Pacific line between Valparaiso and Brainard, Neb. The corridor in question was being negotiated for railbanking, a term used when the railroad secures the right to use the rails in the future but approves public trail use in the interim.

Although controversies like these occur for different reasons, if the corridor is privately owned, it must be made public before any work can proceed.

Nels Ackerson, an attorney with the Ackerson Group, a Washington law firm, filed a class action suit in federal court in Wichita, Kan., Swisher vs. U.S., on behalf of landowners in Kansas, Nebraska, Iowa, and Texas, saying the railroads often do not own the land on which they operate trains but rather have only a right to use the land for railroad purposes. And when the railroad abandons rail operations on the easements, their legal rights to use the land are extinguished.

Yet, even when confronted with a deed, railroads often refuse to admit this, so Ackerson is fighting on behalf of the landowners confronted with this dilemma. A federal claims court in Washington, D.C., ruled in 1997 that landowners who rightfully own land granted for trails under the Rails-to-Trails Act have a claim against the government for the land taken. The trouble is that the federal law has even restricted claims by landowners who realize they owned the right-of-way," says James Baarda, a partner in the Ackerson Group.

Ackerson's class action petition applies only to cases where the federal law was used to convert the use of the corridor for trails. Many conversions have been made without application of that law, but the right to the corridors varies greatly from state to state, from company to company, and from rail line to rail line.

For example, one Nebraska couple who owns property on which a rail runs and 24 adjacent landowners are currently fighting a trail conversion project. An original deed of the couple's land, dated Oct. 27, 1885, between the original rail line and landowner states: "Provided that if said railroad shall not be located and granted within 10 years from this date hereof or if at any time after said railroad shall have been constructed, the said Grantee, its successors or assigns, shall abandon said road or the route thereof, shall be changed so as not to be continuous over said premises, the land shall revert to said grantor, his heirs and assigns."

This, simply put, means if the line were ever abandoned, the corridor should revert back to the current owner, who asserts that because the line has been abandoned for years, the corridor should revert back to them.

However, trail supporter argue that under the Trails Systems Act, federal law permits the railroad to sell control of the land to trail sponsors. In reply some landowners say trail sponsors have jumped on a "free land wagon," because the federal law was passed without recognizing that someone other than the railroad companies might have claim to the corridor. Ackerson argues that the federal government ignored the constitutional requirement for just compensation when it adopted the National Trail System act.

Additionally, in 1996, Presault vs. United States mandated that landowners have a legitimate claim against the United States for just compensation when their land is taken for trails under federal law.

Yet, as of November, 1998, not one landowner, according to Ackerson, has been paid for a federal taking because of the complicated and expensive federal claims process. Consequently, the class action suit filed in Kansas is on behalf of all relevant landowners, and if upheld, it will relieve the need of each landowner to file a separate lawsuit. Ackerson says he has even "witnessed cases where landowners adjacent to abandoned lines have paid for land they already own."

But if the class action suit wins, numerous trail projects— some already complete and others in progress— may be postponed or eliminated. And the suit will likely have ramifications from the Atlantic to the Pacific. American Farm Bureau Federation (AFBF) spokesman Mace Thorton said that since the court petition was filed landowners from states not even named in the suit— such as Indiana and Wisconsin— have already contacted the AFBF.

Is it recreational trespass?

By Susie Rogers, Yampa, Colo. -- Part 3 of 3

They didn't believe there was anything they could do, but now they're joining together, hoping to see their lands returned to them. Current lawsuits, including a class-action suit, Swisher vs. the United States, by property owners adjacent to abandoned railroads being converted to trails (i.e., Rails to Trails) are challenging title to the rail corridors, claiming the sale of rail line rights-of-way is illegal.

When records of the formal transactions between the original landowners and the rail line survive, the original terms of the transaction remain valid, even if the owners of the trail beds and the names of the railroads have changed numerous times. Nels Ackerson is an attorney with the Ackerson Group, a Washington law firm which filed the class action suit in federal court in Wichita, Kan., on behalf of landowners in Kansas, Nebraska, Iowa, and Texas. Ackerson says the railroads often do not own the land on which they operated trains, but have only a right to user the land for railroad purposes, and when the railroad abandons rail operations on these easements, the legal right to use the land is extinguished. Ackerson also says," It usually is not difficult to track the types of arrangements to determine who— the railroad or adjacent landowners— really owns the land."

The first step is determining whether or not a railroad has abandoned the line. Discontinuation of services and removal of the track constitutes abandonment. The line must be abandoned before it can revert back to the landowner.

The second step is determining which of three conditions existed when the original transaction took place between the rail line and the landowner. The first condition is known as fee simple absolute. This is the most complete and comprehensive right to a piece of real estate recognized under our law. Fee simple absolute includes all rights to use the property as long as that use is legal.

The second condition is defensible fee. This condition carries with it a limitation or a condition on the land's use.

The third condition is grant of easement or right of way over the land. In the case, a specified entity or entities may use the land for specific purposes, over a period of time.

Difficulties arise when original deeds contain a combination of these conditions, and it is unclear what was originally intended. When deeds are difficult to interpret, the courts decide vague, ambiguous, or general language by making educated guesses.

In the case of abandoned and right-or-way, abandoned can mean vacated, clearing of all materials, just not in use at the present time. Right-of-way can mean to pass through, or to actually have a vested interest in the land of the right-of-way, such as right of passage over a strip of land. Thus, determining an exact meaning of conditions between the original rail line and landowner can be difficult at best.

Beyond this confusion is the question of determining who currently holds the original grantor and grantees interests. Rights must be recorded and maintained if the original interest in the land is to be preserved. Considering that most original transactions were made between 50 and 170 years ago, the task of locating original documents and subsequent recordings can be more daunting than interpreting the vague language.

Next, the courts may be faced with ambiguous deeds between adjoining landowners and numerous recorded documents which increase the confusion— various facts, dates, circumstances, and opinions of various entities through the years.

Yet even if all of these obstacles are overcome and accurate deeds are found, Ackerson asserts that railroads often refuse to admit they do not own the land. Ackerson says he is fighting such questionable business ethics and tactics employed by the railroads.

Considering the expense, the time, and the odds of winning, how many landowners can take on the Goliath? Say you're burying some property. You're given a contract with a one-line statement, and a 20-second overview of the trails-to-rails activity, told that "It may never happen to your land," given a legal opinion that the paperwork looks in order, and asked if you're ready to buy. You, like so many landowners, confronting the rails-to-trails dilemma, would not be likely know what problems might exist down the line! Only later would you learn what farmers in the mid-1800s claimed:

"The railroads influenced legislation to suit themselves by bribing venal legislators to betray the true interests of the constituents... by false representations and subterfuge induced the people to subscribe funds to build roads, whose rates, when built are so exorbitant that in many instances transportation by private conveyance is less burdensome... They procured a law of Congress by which they dispossessed hundreds of farmers of the homes that by years of toil they built up; induced others to mortgage their farms for roads that never intended to be build, and after squandering the money left their victims to the mercy of the courts over which they have held sway. They have obstructed the administration of justice." (From "The Farmers' Declaration of independence.")

Annually, hundreds of agricultural acres are being lost to development. Rails-to-Trails supporters say recreational trails are different from urban sprawl; however, private landowners, many of them farmers and ranchers see walkers, joggers, and cyclists sightseeing across their property and feel just as the speaker does in Robert Frost's poem, "Trespass":

No, I had set no prohibiting sign,
And yes, my land was hardly fenced.
Nevertheless, the land was mine:
And I was being trespassed on and against.

--The Poetry of Robert Frost

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