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Thursday, June 3, 2010

Hester and Wright on The Evolution of Railroad Easements

Jeffrey Hester (William J. Tucker & Associates) 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 on SSRN.  Here's 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.

Ben Barros

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http://lawprofessors.typepad.com/property/2010/06/hester-and-wright-on-the-evolution-of-railroad-easements.html

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Of course, the so-called "adjacent" landowners' claims are not "tenuous," they are blackletter law-- generally in these cases the plaintiffs actually own the land, which was formerly servient to a railroad easement. When the railroad is abandoned, by venerable and settled law the easement terminates and the landowners' rights to possession are no longer dominated by the former railroad's former rights. That is why the Rails-to-Trails law which confiscates landowners' reversionary rights works Fifth Amendment takings, as the U.S. Supreme Court recognized in PRESEAULT V. ICC, 494 U. S. 1 (1990).

Hester and Wright's paper is a pile of sophistry (and selective history) intended to support and reinforce the shameful practice of confiscating and damaging landowners' properties to benefit unauthorized users such as utility companies plowing fiber optic cables or running electric transmission lines along former rail rights-of-way and to please the sensibilities of "trails" proponents, 99.999% of whom never, ever walk or bike the "trails," but who derive vicarious pleasure from imagining themselves "environmentalists" because they vote to put trails for burglars and dope fiends across other people's back yards (or front yards, here on the East side of Lake Sammammish near Seattle).

These cases are all "easy" in that simple justice would be to recognize that with the railroad gone all rights to occupy the land revert to its owners. Other folks who want to use the land would then negotiate to purchase the right to do so from the owners. If the public wanted to take land for a "trail" the public could condemn it and pay just compensation. Utility companies, too, could bargain-for or condemn the easements they need to route fiber-optic cables and so-forth, paying landowners appropriately.

The only reason for all the litigation over former railroad easements is that neither the government nor private utility company users wish to pay for the land they take. ("Trails" folks, in particular, recognize that they cannot afford to pay just compensation for the land they want, which is often extremely valuable.) Both government and utilities estimate that litigating against landowners is cheaper than honestly paying them.

Actually, Hester & Wright's survey of the legal landscape is valuable, but it would be much more useful if it were not so tendentious: according to them, all of the State and Federal legislation and all of the appellate decisions down through the decades delineating or recognizing or vindicating landowners' rights are mistaken or confused or obsolete or bad policy-- in the end, Hester and Wright will have nothing but that today's judges should dispense with all of the settled law in this area and substitute the authors' vision of "the rights of the railroads, the utilities, and the public to put these corridors to changed public uses" [ibid., p. 46] without paying for them. (The authors don't seriously mean "the railroads," which wish to literally abandon the land, not use it, and when they write "the public" they mean "train proponents" almost exclusively. For some reason Hester and Wright are only willing to name the utility companies honestly.)

Posted by: Mark Seecof | Jun 5, 2010 7:26:18 PM

By the way, Hester and Wright suggest that there is no difference between and railroad and a trail so far as the landowner is concerned. That is quite wrong. The difference is gigantic: railroads exclude the public (except as passengers confined to passing trains) and go to some trouble to police the right of way. Trails invite the public, who then gain unpoliced access to property along the trails. Experience, not theory, shows that trails accommodate criminals. Near Seattle burglars and rapists frequent the trails and use them to victimize occupants of adjacent homes. The local police, of course, hardly ever get out of their cars-- which don't fit on the trails-- so the trails serve criminals the way bikeways serve cyclists.

Posted by: Mark Seecof | Jun 5, 2010 7:38:57 PM

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