 |
Re: Congratulations -- Maybe not...
Author: T Judah
Date: 01-21-2011 - 12:16
> As far as I know railroad property is immune from prescriptive easements.
I'm not a lawyer (am a paralegal), but I know of nothing intrinsic in the law that would necessarily prevent a railroad from being burdened by a prescriptive easement.
I imagine that it could happen if a neighboring farmer (for example) was using a railroad's maintenance access path alongside the tracks to access an otherwise land locked field, and the railroad never did anything to stop it. But even if they did eventually try, other forms of easements could still easily attach. Especially if the railroad was actually itself built on a r.o.w. easement that caused the field to become isolated in the first place.
Approximately 85% of all railroad r.o.w. in the United States is actually on a "Railroad Right Of Way Easement". It is not actually owned by the railroad, but by the abutting property owners. The easement merely grants the right to use someone else'e land for that express purpose - only. In most of these cases, when the purpose of the easement is abandoned, the easement terminates and the abutting owner can reclaim full and exclusive ownership and use. The entire r.o.w. is lost if there are no additional active easements on the same r.o.w. with the railroad at the time of railroad abandonment.
The use of any easement is usually very restricted and specific. Indeed, a railroad cannot share its r.o.w. with a common carrier fiber optic line, power line, or pipeline (for example) without first obtaining additional easements (always at additional cost), as the railroad's original easement rarely granted the right to use the land in that way. Not even a trail can be put there - whether or not the railroad was abandoned!
According to a 1990 Supreme Court Ruling, to put in a trail on such an abandoned railroad r.o.w. requires that a whole new easement be obtained first; compensated at full going market rate - even if done so by eminent domain.
A railroad easement is truly a case of "Use it or lose it". Indeed, even if a trail easement is successfully negotiated with abutting landowners, thus preserving the r.o.w.; according to that same Supreme Court Ruling, it is now a trail easement and not a railroad easement. No subsequent railroad can be built there without first not only compensating the trail owner, but also paying for a whole new railroad easement to boot. So much for the concept of "Rail Banking"
Funny how our vaulted politicians never seem to actually accomplish what they claim they voted for!
If anyone has the vision to preserve railroad R.O.W., then it behooves them to find a new "railroad use". No matter how lame that use may currently seem, it is the only way to assure preservation for actual railroad use in the future - period.
I'm not a lawyer (am a paralegal), but I know of nothing intrinsic in the law that would necessarily prevent a railroad from being burdened by a prescriptive easement.
I imagine that it could happen if a neighboring farmer (for example) was using a railroad's maintenance access path alongside the tracks to access an otherwise land locked field, and the railroad never did anything to stop it. But even if they did eventually try, other forms of easements could still easily attach. Especially if the railroad was actually itself built on a r.o.w. easement that caused the field to become isolated in the first place.
Approximately 85% of all railroad r.o.w. in the United States is actually on a "Railroad Right Of Way Easement". It is not actually owned by the railroad, but by the abutting property owners. The easement merely grants the right to use someone else'e land for that express purpose - only. In most of these cases, when the purpose of the easement is abandoned, the easement terminates and the abutting owner can reclaim full and exclusive ownership and use. The entire r.o.w. is lost if there are no additional active easements on the same r.o.w. with the railroad at the time of railroad abandonment.
The use of any easement is usually very restricted and specific. Indeed, a railroad cannot share its r.o.w. with a common carrier fiber optic line, power line, or pipeline (for example) without first obtaining additional easements (always at additional cost), as the railroad's original easement rarely granted the right to use the land in that way. Not even a trail can be put there - whether or not the railroad was abandoned!
According to a 1990 Supreme Court Ruling, to put in a trail on such an abandoned railroad r.o.w. requires that a whole new easement be obtained first; compensated at full going market rate - even if done so by eminent domain.
A railroad easement is truly a case of "Use it or lose it". Indeed, even if a trail easement is successfully negotiated with abutting landowners, thus preserving the r.o.w.; according to that same Supreme Court Ruling, it is now a trail easement and not a railroad easement. No subsequent railroad can be built there without first not only compensating the trail owner, but also paying for a whole new railroad easement to boot. So much for the concept of "Rail Banking"
Funny how our vaulted politicians never seem to actually accomplish what they claim they voted for!
If anyone has the vision to preserve railroad R.O.W., then it behooves them to find a new "railroad use". No matter how lame that use may currently seem, it is the only way to assure preservation for actual railroad use in the future - period.
