Case Law and Disputes Over Railroad Right of Way October 23, 2015

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1 Case Law and Disputes Over Railroad Right of Way October 23, 2015 JASON P. LUEKING BAMBERGER, FOREMAN, OSWALD & HAHN, LLP Capital Center, 201 N. Illinois St, Suite 1225 Indianapolis, Indiana (317)

2 BRANDT V. UNITED STATES, 134 S.Ct (2014) 2

3 BRANDT V. UNITED STATES, 134 S.Ct (2014) 3 General Railroad Right of Way Act of 1875 Powers Granted: Railroads have rights of way through the public lands of the United States 1976 Land Patent granted to Brandt family for land in Wyoming Railroad Abandoned Right of Way 1996 Notice to Surface Transportation Board 2004 Removal of tracks and completion of abandonment 66 miles- 200 feet wide area Brandt Ownership Interests: ½ mile across 10 acres of Brandt land Quiet Title Action brought in 2006 by U.S.

4 BRANDT V. UNITED STATES, 134 S.Ct (2014) U.S. Position: Implied Reversionary Interest Brandt Position: Merely an easement Court: Opposite position taken by U.S. in 1942 case 1976 Land Patent to Brandt family subject to rights for railroad purposes No rights reserved by U.S. to Right of Way 4

5 BRANDT V. UNITED STATES, 134 S.Ct (2014) Sotomayor Dissent Railroad rights of way are sui generis property rights not governed by common law Sui Generis = Of its own kind or class; Peculiar Limited Fee vs. Easement Exclusive use and possession 1903 and 1915 cases give implied possibility of reverter to U.S. 5

6 FARMERS VS. RAILROADS IN INDIANA FENCE RIGHTS Indiana Code (1885) Application- Construct, build, run, control or operate any railroad Fences must be constructed along both sides of railroad Prevent harm to cattle, horses, mules, sheep, hogs or other livestock Not required for unimproved or unenclosed land until it is enclosed on 3 sides 30 day notice; Self-help remedies 6

7 FARMERS VS. TRAIL DEVELOPERS INDIANA'S RECREATIONAL TRAILS PROGRAM (I.C et seq.) Established 1995 Provide funding and support for acquisition, construction and improvement of trails Public use or dedication to public Administered by Indiana Department of National Resources (DNR) 7

8 ELIGIBILITY FOR GRANTS State Agency Political Subdivision Non-Profit Organization 8

9 PROJECT ELIGIBILITY Local, area, regional or statewide plan Scenic use of trails At least 20% matching funds 9

10 COSTS ALLOWED Acquisition Surfacing Construction Bridge and culvert repair Engineering Signage and fencing 10

11 COSTS NOT ALLOWED Routine maintenance Snow removal Auditing, legal and administrative Predesign engineering and planning Integral part items- traffic signs, present markings 11

12 FENCING REQUIREMENT Indiana Code Fencing must be installed at request of property owner Posting of bond required Fencing to comply with INDOT standards for urban or rural settings 12

13 HOWARD V. UNITED STATES, 964 N.E.2d 779 (Ind. 2012) Certified question presented by U.S. Court of Federal Claims Are Federal Railbanking and Interim Trail use within the scope of railroad easements acquired by prescription, condemnation or deeds? 13

14 HOWARD V. UNITED STATES, 964 N.E.2d 779 (Ind. 2012) (continued) 21 Miles of railroad easements Railroad sought authorization from Surface Transportation Board to abandon easements for use as a public trail National Trails System Act (16 U.S.C. 1247) Trails Act authorizes STB to facilitate trails transaction for possible reactivation 14

15 HOWARD V. UNITED STATES, 964 N.E.2d 779 (Ind. 2012) (continued) Holding: Public Trail is not within the scope of easements acquired for purpose of operating a railway Government Position: Indiana has a shifting public use doctrine Installing utility lines across railroad and highway easements is permitted Public trails similar to railroad use No Additional Burden Court: Look at purpose of easement when acquired Indiana has never recognized shifting public use Public trail is recreation not transportation 15

16 PRESAULT V. INTERSTATE COMMERCE COMMISSION, 110 S.Ct. 914 (1990) National Trails System Act Federal Statute deals with shrinking rail trackage ICC can preserve railroad areas for future railroad use Every rail line is a potentially valuable national asset meriting preservation Preservation calls for interim use of land as recreational trails Rails to Trails statute 16

17 PRESAULT V. INTERSTATE COMMERCE COMMISSION, 110 S.Ct. 914 (1990) (continued) Abandonment vs. Discontinuing Service Abandoned lines no longer a part of national transportation system Discontinued lines Operations cease for an indefinite period of time while preserving corridor for possible reactivation Federal Law vs. State Law Railroads are interstate commerce Reversionary rights and easements are governed by state law Can Congress preclude reversion of state property interests? 17

18 PRESAULT V. INTERSTATE COMMERCE COMMISSION, 110 S.Ct. 914 (1990) (continued) Fifth Amendment Private property cannot be taken for public use without just compensation Ruling Taking claims are premature Tucker Act has jurisdiction Claims involving constitution 18

Railroads & Title Insurance Issues. Dave Lawson, Fidelity National Title Group

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