Railroads do not own there land outright in many cases and only have a right to run on that land in the form of easements and right of ways. When the tracks gone the land is suposed to go back to its oringakl owner unless the land is rail banked for futurre use as a bike trail.
So when I see Railroad -private property! or a railroad gets sold should not the new railroad have to neigotiate a new contract to have teh easement?
How are power line easments any different?
In a lot of cases, that’s true; the railroad does not hold the title for the land. In the case of a railroad, in the US, we’re generally talking about an “easement in gross” (as opposed to an easement appurtenant.) An easement in gross is one that is attached to a person or entity, in our case, the railroad company, instead of some particular patch of real estate. For railroads, this easement is commercial.
Although the railroad may not hold actual title of the land, it is considered to be private property by both the RR and the state. They have the right to post it, patrol it, use it for whatever purpose the easement grants, including building and maintaining the infrastructure. They can prosecute you as a tresspassor, because the easement applies to them, not you.
As far as re-negotiating, easement rights are alienable, or transferrable.
Sometimes it becomes neccessary to re-negotiate, such as when the term of use expires.
In the case of my railroad, we own the vast majority of our land outright. However, there is one section that is on another person’s property. When the railroad was built, the original owner of that property granted the easement to build and operate a railroad on his land. We have a swath, about 10 feet wide. If we need to do tie repair or anything, we do not need his permission to do so. If we see a random person walking the tracks along our easement, we prosecute them for tresspassing. Likewise, if our neighbor dismantled any of our track, or cut a tree down over it, we could prosecute him. He can be on our easement (which he technically owns) so long as he doesn’t pose a danger to our operation. He cannot plant trees, crops, or build fences in it, though. He can move animals and equipment over our easement to get to the rest of his property, so long as it’s done safely and does not interfere with our operation.
Both the rai
The answer is in the name Easement, they are different only in what they allow. A more common easement is for a road. Say a man owns 10 acres of land with a public road running down one side. Now he decides to sell off 5 of the acres, but keeps the 5 acres closest to the road, however he grants you an easement across a specified portion of his property for an access road to your property. The difference between just selling you the necessary strip and granting an easement is that he retains some measure of control over what the strip is used for, the downside is that he retains some liability for what you do on the easement. An easement is normally in perpituity so long as it is used for the specified purpose and either party may sell their rights, in other words if he sells his property the new owner cannot cancel your easement.
This distinction actually gave rise to quite a bit of litigation. Some of you may know that fiber-optic companies decided to contract with railroads to use the rail ROW for the fiber-optic cable. However, as the railroad did not own the land in fee simple, there was a massive class action filed against the fiber optic companies and the railroads for using the property inconsistent with their easement.
Gabe
I always found this lawsuit troubling to the extent that I don’t agree with the premise of it. Perhaps the railroads simply failed to pursue this use. Had they used the fibre optic lines for railroad communications it seems that the suit could have been readily dismissed even if the lines were also being used for private purposes. For example, the Western Union Company used railroad telegraph lines for years for private communication by telegram even while those same lines were used for internal railroad communication. If memory serves the railroad subsidiaries involved in the class action decided to settle with the landowners rather than use this obvious argument.
LC
Your argument was floated and lost. I think it had something to do with the specific language of the easements and predominant use. But, I am not sure. Also, several of the cases involved abandoned right of ways.
However, the railroads, to my knowledge, all got out of this case fairly cheaply, as I believe they were smart enough to sign indeminification contracts with the fiber optic companies. The fiber optic companies are the ones that are really on the hook–to the extent there is a hook to begin with.
The aspect of this lawsuit that always bothered me was damages. A home owner owns a piece of property near a rail line that carries several million gallons of hazardous material a day and loud noisy rumbling trains, but a fiber optic line burried ten feet beneath the
It had nothing to do with hazardous materials or nuisance, and this mis-states easement law.
The railroads in many/most cases operated on easements.
With an easement, the adjacent landowner still owns the land; his “use” of it simply cannot interfere with the easement holder.
However, that does not give the easement holder the right to use the land “exclusively” and particularly in that the railroad cannot grant additional easements over the landowner’s land. The landowner can create additional easements – and should be paid for them – if they do not interfere with the railroad easement, but not the other way around.
In some states, railroad ROW is a statutory easement and state law controls no matter what the railroad claims its deed says.
In Kansas, for instance, railroads take only an easement in strips taken for railroad right-of-ways regardless of how the railroad took the deed, whether by condemnation, by purchase, by fee simple or by easement. If it was for ROW, upon abandonment the strip reverts back to the original landowners. Harvest Queen Mill & Elevator Co. v. Sanders, 189 Kan. 536, 542, 370 P.2d 419 (1962).
The railroads knew better; they were attempting to take advantage of the passage of time and most people’s naivete on the matter to sell to the fiber optic companies what was not theirs to sell in the first place. Basically, trying to make a fast buck at someone else’s expense.
(1) You clearly have never looked at a railroad DV-107 land schedule and seen how a railroad got title to its operating property. You have fallen victim to one of the larger misconceptions about the industry propagated by some terribly “off” history texts (and teachers dumber than the textbooks) and “local legends/ wives tales”. You need to sit down and understand the term “color of title”. You also joined the crowd that has often abused the terms right-of-way and easement. (Hint: Right of Way on a highway does not imply the same thing as right-of-way on a railroad. )
[Has Gabe seen last year’s Indiana Supreme Court decision involving the Indiana & Louisville Railroad of abuse of the concept of a state charter by an electric utility?]
(2) NITU (National Interim Trail Use under 49CFR1152.29/ 16USC1247d) does not immediately imply the concept of bike trail. Neither does “railbanking”, except it might be closer to the truth. I see, almost daily, the abuse of the system…Better than half of the trails people fail to comply with the rules and then scream when the NARPO folks or local regulators throw the trail nuts off the property. (Go back to (1) and study color of title again) The problems seem to be getting worse instead of better. The rules do not say that a trail can automatically appear post abandonment. Plenty of bad assumptions and ignorant concepts out there that create ugly situations. Most state and local government agencies, lawyers and landmen are clueless as to what c
I would question this theory, you may be surprised that many railroads DO own the land AND many also own the mineral rights too. In Canada, Canadian Pacific Railway owns so much land it’s unbelievable and they own the mineral rights (OIL) also, I believe in the U.S. many railroads reaped as much money from leasing mineral rights as did the railroad itself, and I believe today some still are.
Well, let’s not confuse issues here. Land grant railroads got plenty of land in fee, and could buy right of way as well. Nothwithstanding that, the land grant railroad that passes through my property does so on an easement, and the easement grant requires the railroad to provide a private crossing, incidentally.
I suspect that if all the paperwork over RR ROW that has been filed (including surveys) and generated by the courts over the years were laid end to end - the combined length would exceed the length of the track.
dd
There’s also the matter of paying property taxes on the right of way. One does not do that unless one is the owner.
Michael can you give a opinion on what a court would likely hold in a case where the Railroad came into property ownership before the land was part of a State? i.e. in the case of Land granted to the NP in what was then Dakota Territory, but now is Montana.
Where I do title research, the title originates in Skamania County, Washington Territory. It encompassed much of the Pacific Northwest.
Gradually, Skamania County was whittled down into smaller county units, including Missoula County, Washington Territory. Missoula County predates Montana territory. Skamania County is now a little piece of real estate on the Columbia River, about 10,000 people, county seat Stevenson. That’s west of the Continental Divide. Whether this was originally British Crown property or Hudson’s Bay Company property through a Crown Grant is an interesting part of NorthWest history, culminating in The Pig War of 1859.
East of the Continental Divide, original title rested in the Spanish Governor at Santa Fe, or Crown Grants from Madrid. These were recognized when the US government acquired title to the Crown property, after a French interlude, in the Louisiana Purchase. The US Government subsequently recognized exceptions to Spanish Crown lands relating to indigenous claims. Title considerations have been pretty consistent. Federal lands passed under Federal law, private lands passed under English Law, the Common Law, recognizing Spanish grants, which has remained remarkably consistent under statutory enactments. One of the provisions of territorial recognition was adopting federal property law, and recognizing federal grants.
The Land Ordinance of 1785 provided for standardized surveys and title descriptions in the US, and was uniformly applied to the Dakotas and Montana.
This may be OT, but there’s a book ‘Measuring America’ by Andro Linklater that goes into the history of the standardized surveys (took a few tries to get it right). One of the themes in his book is that the reason that the imperial units (in particular, feet, miles and acres) still used by the US are based on the Gunther’s chain. In addition, one reason why 66 feet is a common width for a right-of-way is that is the length of the Gunther’s chain.
Linklater pretty much implies that the metric system was originally Thomas Jefferson’s idea and that Jefferson had a better idea for the unit of length (a rod that would have the period of one second when used as a pendulum) than what the French came up with. Jefferson was vindicated ca 1960 when the meter was redefined such that it could be determined in any relatively well equiped optics lab.
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By the way, that was a nice summary of the geopolitical history of the Pacific Northwest.
A period of two seconds, wasn’t it? But once you’ve built such a pendulum, how exactly would you measure it to reproduce your “meter”?
That’s an exercise left for the reader [:P]. Don’t think it would be too hard to come up with a repeatable method of measuring the legth of said rod. The state of the art in timekeeping would have allowed for better than one part in ten thousand or better. Jefferson’s first idea for a decimal unit of length was a foot that was one ten-thousandth of a nautical mile.
Linklater posited that if weren’t an unfortunate storm, the US may have gone metric in 1793-94, but once the land surveys began in earnest in 1795, it was too late to go metric. On the other hand, the US Geological Survey used metric measurements from the start…
G’day, Y’all,
I don’t remember ever seeing such an informative post. I learned tons of information. I might point out that in e-mail parlance that IMHO is for sarcasm. IMO is for a real opinion. This according to my daughter who seems to be always on the computer.
So if there is a easement does that give the land holder a right to cross the tracks or walk along the tracks for hunting fishing ext… that is adjatant to his property? Or to cross the tracks to get to his other half of his property or to get from his backyard to a public park on the other side of the tracks?..
These are generally access easements, although I’ve seen two “gravel” easements. Access means access across, not fiddling around along the way, and they are not recreational easements or “for taking a walk.” An “owner” would likely not be able to access a park across the tracks because that is not a use of the easement for egress and ingress to his own property – probably wouldn’t be an easement in the first place.
Contrary to one of the earlier posts, easements – even deeded easements – do/can expire when their purpose expires, by agreement, or when the easement use has been abandoned for a statutory time period.