Friday, July 16, 2010
Jeffrey Hester (William J. Tucker & Assocs.) and Danaya C. Wright (Florida) have posted Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements from the Nineteenth to the Twenty-First Centuries, published in Vol. 27, Ecology Law Quarterly. The abstract:
This article responds to a series of class action suits filed against railroads, telecommunication companies, and the federal government claiming that once railroads abandon their corridors, all property rights shift to adjacent landowners. This article reviews the state law on this matter and offers a theory of how courts should handle these cases. After discussing the history of nineteenth-century railroad land acquisition practices, it analyzes the scope of the easement limited for railroad purposes, then discusses the role of abandonment in affecting the rights of third party users of these corridors as well as successor trail owners. The article concludes with a theory of railroad easements that interprets the railroad's powers based on the public participation that helped create and establish these corridors and the tenuous claims of adjacent landowners.