The Indiana Supreme Court answered a certified question concerning some federal “rails-to-trails” litigation. It has to do with whether an easement on land originally granted for the purpose of operating a railroad could later be used for public trails when the railroad was abandoned. The Indiana Supreme Court decided that the easement did not extend to such a use.
The original easement was for a “commercial enterprise for transport.” This explains why the original easement of running a railroad could be shifted to laying down an oil pipeline in the same easement without the easement reverting back to the original property owner. By contrast, the Supreme Court reasoned, a public trail is an “activity of recreation not transportation.” Chief Justice Shepard dissented.
The Court doesn’t get into this, but I think the upshot is that a trail can’t be created along the rail line simply by negotiating with the rail line or its successor; rather, to create a public trail in this location, new deals or condemnations have to be made as to the 128 landowners along the 21 mile stretch.
As a cyclist who commutes around Indy, primarily on streets, I’m thankful for the trails when they come along. Two of which are near my home, one of which being the Monon which is arguably the most used trail in the state. I’m a little miffed that trails are viewed in the same light as playground equipment.
The issue of ownership of the rail road right of ways is a long standing battle. It includes not only the “current issue of rails to trails” but all issues associated with abandonment by the rail road. Generally it goes back to the original manner in which the right of way was obtained. In many cases the rail road (and sometimes the “barons” that controlled them) used variety of means including “taking” to obtain thus for the last several years the issue has arisen again and again. Hopefully documentation still exists to clear the title situation. Would contend that simply wanting to change useage is not sufficient legal reason to be able to do so.
Jon,
I don’t know why they needed to certify the question to the Supreme Court. This is black letter real estate law. There have been numerous cases where the holder of a railroad easement sold the easement to a government entity for a recreational trail. The owner of the fee simple title or adjoining landowners sue and always win. They have to condemn. You can’t buy a railroad easement and use the land for something else. The Ackerson law firm has made a bundle off of class actions on this very topic.
Oh, and also Indiana has a statute that say when a railroad easement is no longer used for a railroad, the property goes to the underlying fee owner or to the adjoining property owners, split down the middle.
Maybe there is some subtlety I don’t know about but it doesn’t seem like a complicated legal issue.
Paul- It’s only complicated by the lack of documentation in so many cases. Very few railroads can demonstrate their own fee simple title to the land. I’ve come across exactly one in my own right-of-way work- a line that is now the Wheeling & Lake Erie in north-central Ohio. Outside of clear title, few can demonstrate an easement document for the affected land owned by others. In many cases, I’ve seen the railroad’s valuation maps used by local authorities such as Assessor’s Offices as if they were deeds or easements.
In my experience, easement rights aren’t transferable. ‘A’ owns the land and may grant an easement to ‘B’, but ‘B’ cannot then go and convey further rights to ‘C’ on land which they do not own. Only ‘A’ can do that. I’ve seen a great deal of confusion over ‘non-exclusive’ easements to this end. The non-exclusivity merely allows ‘A’ to convey additional easements to ‘C’ over the same land as they may have previously granted to ‘B’.
Tell that to all of the people that commute by bike. Converted railroad lines have caused many people to commute that wouldn’t have without them. See the Monon Trail for an example.
Compare that to the number of people that ride the train for recreation instead of transportation. The only reason people ride trains is for the fun of it or because of a severe phobia. They are slower and more expensive than every other form of travel.
millions of people commute by train every day. in cities with light-rail public transit, taking the train is often faster, less hassle, and less expensive than owning a car.
Sorry, I was speaking of Amtrak city-to-city type service.
I totally agree about light-rail public transit.
My point is that if hauling oil down these old, abandoned lines is Ok because it is “transportation”, than it should also be OK for bike trails designed for transportation.
Could some one, anyone, PLEASE PLEASE PLEASE email me that they KNOW that railroads have NEVER owned “right of way easements for railroad purposes only” and in this FACT and TRUTH, no railroad can ever LEASE nor SELL these easement lands because the railroad never held a POSSESSORY interest.
Thank you……….”Ship”
Hi – I know I’m commenting on a really old thread, but curious if anyone can help me out. Do you know how to determine whether an easement is a recently recorded right-of-way, or if it’s a legacy from the railroad days (and judging from this post and comments, not valid today)? I’m trying to work with my neighbors to figure out a permanent, public access point to the Monon, and was just poking around on the indy.gov maps site and it appears there is an easement already that’s not being treated as such. It would be a HUGE win for us if it’s already ‘on the books’. Thanks!!