In California the state put a time limit on reversionary clauses. I believe it is forty years. If at the end of forty years and the land owner has not filed for an extension, the reversion rights end and the railroads own the land free and clear. I have never seen a case where a land owner filed for an extension. It is not clear to me who can file for an extension as in many cases the current owner was not the owner when the land was sold to the railroad.

In the case where the Western Railway Museum acquired the Sacramento Northern Railway from the Union Pacific, almost all of the land was reversionary. The land had been purchased by the railroad in 1910 and the museum acquired it in about 2000, or 90 years after the railroad had purchased it. So the reversionary rights had expired. But the Museum acquired the land under the Rails to Trails act. So the Union Pacific has the right to require the line if traffic were ever to develop. This is like reversionary rights all over again, as the Museum can never sell the property without offering it first to the Union Pacific. It was the Union Pacific's position that since the railroad, that is ties and rails are still there, and that the ICC never approved abandonment, the land would still be treated just like a railroad.

< Congress should have made the law say that trail use **IS** rail use, and thus,
conversion to trail does not constitute abandonment >

There is more to an abandonment than rail infrastructure and rights-of-way. When a railroad files with the STB (or ICC prior to the STB) to abandon a line of track, in addition to ceding the right-of-way, they are petitioning the government to relieve them of their common carrier obligation, which is attached to their involvement in interstate commerce.

It is the common carrier obligation which is the holy grail, so to speak. The STB is obligated to preserve the national railroad network if at all possible. When another party approaches the STB to acquire such a line of railroad, whether or not it is a railroad, and their intent is to maintain rail service on the proposed line of railroad, that use supercedes all other purposes and the common carrier obligation transfers to the acquiring entity.

If a party, which is not a railroad (rails-to-trails, 501(c)3, municipality, etc) petitions to acquire the property, it then becomes neccesary to negotiate a Notice of Interim Trail Use agreement (NITU) with the abandoning entity.

Case in point: in January 2004, CSX petitioned the STB (AB-55-625-X)to abandon a rail line from Rowlesburg to Albright in Preston County, West Virginia. The petition was approved by the STB three months later pending the negotiation with a non-profit, Friends of the Cheat, for a NITU (notice of interim trail use: i.e. rail banking). An agreement could not be reached and the abandonment was consummated on June 3, 2005.

On January 9, 2006 the proceeding was reopened due to a regulatory requirement overlooked by CSX. Once it was reopened, Friends of the Cheat re-engaged the STB and was successful in getting an extention to negotiate the requisite NITU.

Fast forward to February 2013: after a series of extentions had been granted for Friends of the Cheat to get a NITU with CSX, Friends petitioned to vacate the April 2004 decision and reopen the negotiation with Greer Industries and the West Virginia State Rail Authority

DECISION: (1) REOPENED THIS PROCEEDING; (2) VACATED THE NOTICE OF INTERIM TRAIL USE OR ABANDONMENT (NITU) SERVED ON APRIL 9, 2004; AND (3) ISSUED A REPLACEMENT NITU APPLICABLE TO GREER INDUSTRIES AND WEST VIRGINIA STATE RAIL AUTHORITY.

Greer, a quarry operator, decided that it was in their best interest to ship aggregates via rail. The substitute NITU granted Greer the right to negotiate for the right-of-way from MP 0.0 in Rowlesburg to MP 3.0 in Manheim, and the West Virginia State Rail Authority assumed the NITU obligation from MP 3.0 to a point 9.78 miles down the right-of-way.

Greer, by letter filed October 1, 2012, and West Virginia, by letter filed November 11, 2012, submitted individual statements of willingness to assume financial responsibility for interim trail use and rail banking covering their respective portions of the line. Greer and West Virginia acknowledge that the use of the right-of-way for trail purposes is subject to possible future reconstruction and reactivation of the right-of-way for rail service.

Since then, Greer has consummated its purchase of the first 3.0 miles of the abandonment; CSX and the State of West Virginia are STILL negotiating a NITU. The purpose of this narrative is to highlite the difference between rail use and trail use.

The first three miles is being returned to active service in the national network; therefore no NITU is required because there is no interim use implied with the use of the property established as "rail" use. West Virginia, on the other hand, is required to negotiate a NITU because their use is as a trail, and there may be a day that the "trail" is required for "rail" and therefore is subject to the requisites of rail banking (if we need it back, we get it back).

For this reason, trail use could never be substituted as rail use due to the lack of the interstate commerce and common carrier obligation components mandated by 49 CFR.

If you like your rail line, you can keep your rail line. Period

And the above demonstrates why anyone in this field should pay consultants and lawyers who KNOW the laws.

Much as we may jest about "killing all the lawyers" and our hopelessly ineffective and inefficient political processes, the above example shows WHY we've chosen to make the laws as complex as we have. It's the only reasonable compromise between the "Wild West" of unbridled libertarian business practice versus "protecting the public good".

The "cost" of allowing rail corridor preservation in situ the way we have is that, yes, dammit, we don't care what the trail lovers say, if we need a rail line back in place, it goes back in.

Do you mean this as written, that Union Pacific actually PURCHASED THE LAND (subject to a 40 year reversion clause), and not just an easement to use it? What did WRM do?
Does a California easement turn into actual ownership after 40 years?

If true, that is bizarre legislation.

The way easements work is that the ownership of the land occupied by an easement transfers to each consecutive owner of the adjacent land, while the owner of the "rights" to use the easement transfers to each consecutive owner of those rights (railroad that buys out another railroad). Whoever owned the land in the past doesn't matter, since they transferred their interest to the new owner when they sold the land.

In a way, all easements are a kind of "reversionary", since they can be extinguished if a certain prerequisite circumstance takes place. The reversionary clause for railroad easements just clarifies when the easement rights are extinguished.

Some easements are attached to whoever owns another property, such as an easement granting your neighbor the right to cross your land to get to the road. Common law says you can't hold an easement against yourself, so the way to extinguish such an easement would be to buy your neighbor's land. And if someone else owns the mineral rights on your land, the way to get them back would be to buy out the entity that owns those mineral rights. Any rights can be bought back if an agreement can be reached in voluntary negotiation.

It is a simple system based on property rights and contracts. I don't see why California would want to override that, or how it would be legal under the takings clause.

The ruling in the Brandt case should not effect the status of the Illinois Prairie Path at all. The ownership of titles to the land and any easement concerns and compensation owed should be long worked out for that property by now.

For trails that were built on "railbanked" right of ways", the Supreme Court ruled in 1991 that railroad right of ways on easements can be railbanked to prevent the easement from reverting to the adjacent property owners. However, the railbanking can not take place unless the party that wants the right of way railbanked pays compensation to the owner, because railbanking effectively changes the terms of the original easment. This makes railbanking a form of eminent domain.

The land the Sacramento Northern Railway was built on was, for the most part, not an easement. The land was purchased with a provision in the dead which provided the land would revert back to the original land owner if it was no longer used for a railroad. The state, in the 1960's, put a time limit on these reversion clauses, so if the railroad lasted 40 years the railroad company would own the property outright. All the deeds are written the same way, regardless,of parcel size, the sale is for ten dollars in gold and the property description is 50 feet either side of the center line of the track. Some of the state highways are built on land with this same revisionary provision.

I'm a member of the Wiscasset, Waterville & Farmington Railway Museum in Maine, which enjoys a privileged position with respect to right of way. I think the particulars of the museum's situation may be of interest here as an illustration of the power of fee simple ownership in the context of railroad preservation.

The original WW&F (which the museum is working to restore) was established in 1901 to take over the operations of the earlier Wiscasset & Quebec RR, which was chartered in 1854 (though it didn't get around to actually running any trains until 1894). The WW&F continued in operation until the famous final derailment near Head Tide on June 15, 1933, after which the train crew left engine no. 8 on the ground and literally just walked away. The company promptly announced an embargo and petitioned the ICC for abandonment, which was granted, and the rails were lifted a few years later. (Engine no. 8 on the other hand remained where she lay for another decade before being cut up in place in the 1940s.) This sequence of events is well known to every fan of the Maine two-foot gauge railroads.

The remarkable part of the story is that the original Wiscasset & Quebec RR Co. of 1854 was never actually dissolved, and continues to this day as a registered corporation in the state of Maine. What this dormant paper railroad was doing from the 1930s to the 1990s is a matter I won't get into here, but the important part is that the W&Q has retained ownership of the majority of the right of way, held in fee simple. As I understand it, the only parts of the right of way that the W&Q doesn't still own are those sections the original railroad crossed under easements, which have since expired/reverted, plus some other pieces it formerly owned but which were sold off to adjacent landowners in the ensuing years. In terms of real estate at least, the original railroad is therefore largely intact, though admittedly now broken into several discontinuous sections. The WW&F Railway Museum leases the right of way from the W&Q, reimbursing it for the property taxes which it still owes as a for-profit corporation. The museum has at present restored just 2+ miles of the original 58 miles of the WW&F, but what is holding it back from doing the whole thing is more an issue of the finite supply of money, volunteer labor, and 56-lb rail than access to the right of way -- in a certain legal sense the railroad is still there with most of its rights intact (minus common carrier status), they just need to put the track back. It should be noted however that the restored railroad has yet to cross a public highway at grade and so is not yet under FRA jurisdiction, but that may come in time.

Fee simple ownership of right of way is desirable because it guarantees rights of access and utilization, not just in the present but extending into the future -- perhaps in centuries to come.

I'm very familiar with the Supreme Court "Brandt" decision and with the Federal "Rails to Trails" law. The decision has nothing - absolutely nothing - to do with the status of the Illinois Prairie Path. It relates only to the status of trails created under a provision of the National Trails System Act (a Federal law) providing that reversions of Federally granted railroad rights-of-way go to the United States. In the Brandt decision, the Supreme Court held that the railroad's property interest in a right of way acquired under the Federal 1875 Land Grant Act was merely an easement (as the court had previously held in a 1942 decision), that the easement expired on cessation of rail use, and there was, therefore, nothing to revert to the United States.

The Chicao Aurora & Elgin (the RR which originally owned the Illinois Prairie Path ROW) didn't acquire its right of way under the Federal 1875 Land Grant Act. For that matter, the Prairie Path wasn't even established under the Federal National Trails System Act, since the Rails-to-Trails provisions of this Act were enacted in 1983, long after the Illinois Prairie Path had been established. The property status of the Prairie Path is governed solely by Illinois state property law, not by Federal law, and is therefore not affected by the Supreme Court decision in any way.

As an aside, I believe that there was some question about the status of the Prairie Path right of way under state law in the 1970's, but it was resolved. At this point, the Prairie Path would at least have an "easement by prescription" for the ROW, since it has been in possession of it, and using it for a trail for over 20 years.

In response to rea_reefwagon, the 1991 Supreme Court decision upholding the consitutionality of the National Trails Systems Act's "Rails-to-Trails" is Preseault v. ICC (110 SCT 914 for anyone who wants to read it). The one correction I would make to rea's note is that, while the Preseault decision holds that the reversionary landowner may be entitled to compensation for any "taking" of his property, the trail operator does not have to pay it. Rather, any compensation must be paid by the United States (since any "taking" occurs by reason of Federal law). This is one reason why the Trails Act has been so popular with prospective trail operators.

Thank you Mr. Opal and others for some very high quality info. Well beyond what is normally seen in such discussions.

Thanks for that. That's a pretty big freebie/handout for municipalities, isn't it?