Eastern Railroad Discussion > Reversion of non-operating rail lines

A thread below mentioned rails-to-trails.  In southern Ohio a rail line was not abandoned, but there had been no trains on it for at least 10 years.  Now it seems that a rail company wants to resume service.  In an inspection they noted that one farmer had removed on one-half mile all rails and ties and was farming the ground.  I am assuming there will be a nasty legal battle, but the farmer will lose because he has taken the railroad property without any proper claim to it, as well as the rails & ties.  

Are you referring to NS's former N&W Peavine between Cincinnati and Portsmouth? I hadn't heard of this. Any information would be appreciated.

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Some old leases have reversion clauses. If the line (or canal) hasn't been used in some period of time, or if rent hasn't been paid, the easement expires and the land reverts to the original owner.

I would agree that the farmer will have some "splaining" to do especially since the line was not abandoned. While there
may have been some easement as to a crossing it certainly didn't extend for a half mile down the line. 

Out 

callum_out Wrote:
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> I would agree that the farmer will have some
> "splaining" to do especially since the line was
> not abandoned. While there
> may have been some easement as to a crossing it
> certainly didn't extend for a half mile down the
> line. 
>
> Out 

You'd really need to look at the original documents to be sure.  Here in the east, many older rights of way were entirely easements granted for building a railroad. In the west, that was less common.

This difference became an issue in the 1990s when some railroads found they needed to update their easements to allow fiber optic lines for outside vendors in the ground alongside their tracks. Others just claimed the right, and did it.  There's a website (of course) which tracks the dozens of class action lawsuits (hey, this is the USA) and settlements for railroad and communications company intrusions.

 

My Grandpa and I talked to a couple who had bought a farm with an abandoned railroad easement. The original railway dated back to the 1860's or 1870's and eventually became the Detroit Toledo and Ironton Railroad. When it was abandoned by the Grand Trunk Western the owners of the farm had to go to court to get their land back even though it was originally an easement. This was from memory of a conversation over thirty years ago but seams what they had explained.

Jim

This gets back to an easement being used continuously by other than the owner, reversion to the owner is
sometimes tough.

Out 

Thumb nail sketch - The National Trails System Act of 1968 gave the ICC (now STB) the ability to regulate abandoning rail corridors through the use of a Certificate of Interim Trail Use (CITU)  Essentially, this a legal way of declaring that a right of way is still being used as a transportation corridor and is still subject to all terms and conditions of the original easement., thus not reverting to adjoining property owners when tracks are abandoned.  In theory, it's pretty black and white - when a rail line is legally ABANDONED through the STB (previously ICC), IF a CITU is issued, right of way remains a transportation corridor and the property of the railroad until such time the railroad sell the property to the the Trail Authority.  If no CITU is issued, then normal real estate law prevails - if property is a simple easement, and easement is abandoned, property goes back to original owner, usually adjoining property owner.  If railroad has "clear title" to property, then it is their to do with as they please.   On paper - it's black and white.

But the real world is messy.  "Clear Title" to a rail line is not as easy to prove as one would think.  You are often dealing with documents hat have not been touched since the 1800s, and are hard to find in in dusty boxes in courthouse basements, even if they exist at all.  So a lot of times, its hard for anyone to "prove" who really owns the right of way once tracks are abandoned and it becomes a case of who is willing to spend the most for lawyers for get what they want.  Even abandonment records are sketchy, especially for line that where not included in Conrail and Penn Central "kept" as assets in their bankruptcy.  Some of those lines simply ceased to exist and it becomes a convoluted mess to figure who actually owns it - often it turns out to belong either to Penn Central corporate successor or to Conrail Shared Assets.  As side note, Penn Central is still around today.  HQ'ed in Cincinnati, they are now known as American Premier Underwrites and are part of American Financial Group, parent of Great American Insurance who has naming rights of the Cincinnati Reds stadium, Great American Ball Park. 

Now if a CITU is filed, it is supposed to make it "easier" as only the railroad tracks and railroad common carrier obligations are abandoned - NOT the right of way.   Right of way remains property of the railroad until such time it is sold to the Trail Authority as regulated by the STB.  Selling railroad is able to make any contractual demands as part of the sale's agreement, and a standard one is right of first refusal should common carrier status every be reapplied to corridor or Trail Authority looks to sell corridor.  But the Trails Act is fraught with Constitution Challenges, particularly under the terms of the 5th Amendment, specifically, the portion of the 5th Amendment that states "nor be deprived of life, liberty, or property without the due process of law; nor shall private property be taken for public use, without just compensation"   Organizations such as National Association of Revisionary Property Owners (NARPO) has made successful legal arguments that converting a railroad to a public trail is depriving property with due process, and/or taking private property without just compensation. 

The thread about the Hoosier Sub (Monon) is what spurred this thread.  The Hoosier Sub was legally abandoned in 2018, but abandonment has not been consummated because CST has been negotiating with the Trail Authority under the abandonment case with the STB.  Successful legal challenges by organizations like NARPO has resulted in the railroads not consummating the abandonment (legal term for removing the track) until AFTER the right of way is sold to Trail Authority.   Argument has successfully been made that if track is removed before property is conveyed to Trail Authority, the easement is ceases and Trail Authority taking constitutes a violation of the 5th Amendment by taking private property without just compensation.  So, you let the tracks lay in the weeds until Trail Authority can purchase and commence trail construction.   CSXT and the Trail Authority came to an agreement way back in 2018, and both have been consistently jointly filing with the STB for extensions to negotiation period and abandonment consummation and Trail Authority worked on financing.  As a result of the Hoosier Sub (and others),  one of NARPO's new challenges they are trying to get to the Supreme Court is to limit the number of times the railroad and trail authority can file for extensions.  



Edited 1 time(s). Last edit at 01/20/23 05:30 by scraphauler.

Good explanation, thank you.

> But the real world is messy.  "Clear Title" to a rail line is not as easy to prove as one would
> think.  You are often dealing with documents that have not been touched since the 1800s, and are
> hard to find in in dusty boxes in courthouse basements, even if they exist at all. 

Particularly true for RRs in the south that were built prior to the Civil War. Many courthouses were burned. 

Even in cases of simple reversion, it can be maddingly difficult to identify and communicate with the heirs of the pre-RR title holders.  

ctillnc Wrote:
-------------------------------------------------------
> > But the real world is messy.  "Clear Title" to
> a rail line is not as easy to prove as one would
> > think.  You are often dealing with documents
> that have not been touched since the 1800s, and
> are
> > hard to find in in dusty boxes in
> courthouse basements, even if they exist at
> all. 
>
> Particularly true for RRs in the south that were
> built prior to the Civil War. Many courthouses
> were burned. 
>
> Even in cases of simple reversion, it can be
> maddingly difficult to identify and communicate
> with the heirs of the pre-RR title holders.  

Give the relevant railorad emminent domain....then it's all academic...here's your money I'm taking the land. 

ctillnc Wrote:
-------------------------------------------------------
> Particularly true for RRs in the south that were
> built prior to the Civil War. Many courthouses
> were burned. 

Even after the Civil War, you had the problem of court houses burning to the ground.

 

"Now if a CITU is filed, it is supposed to make it "easier" as only the railroad tracks and railroad common carrier obligations are abandoned - NOT the right of way". 

This is not correct.  Under the NITU (Notice of Interim Trail Use) the common carrier obligation is not removed.  That is the whole point, the line can be reactivated for common carrier use by the railroad at any time.  Now, if the common carrier obligation holder has been paid for the railroad track and the ROW, there may be an issue where the money needs to be repaid.  If the party holding the common carrier obligation wants to abandon that obligation then they have to reopen an abandonment petition and then the OFA (Offer of Financial Assistance) process comes into play before the abandonment can be approved and consummated.

"....abandonment (legal term for removing the track)...."  

This would not be correct either, as abandonment can be approved (removing it from common carrier service) and the line can remain in place, at least for a while.  Normally the filing railroad will notify the STB when the consummation has occurred.  By that point the ROW is no longer under Federal jurisdiction but falls under the laws of the state where the ROW lies.  Adverse possession and reversion can happen at that point if applicable. 

It should be noted that the NITU process leaves great latitude as to what an interim use might be.  In at least one case today, a line in ITU status is still operating trains, albeit not in common carrier or interstate service.

If so inclined to learn more about this subject search in yahoo under "interim trail use" or try this link.

https://www.law.cornell.edu/cfr/text/49/1152.29