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Adverse Possession over an easement and against a railroad
a-harris replied 5 years, 2 months ago 19 Members · 33 Replies
- Posted by: A. Sellman
I can only imagine how the Kingston Trio would put this scenario into a song… 🙂
Maybe Charlie is in a car on an orphaned section of track on the other side of the building all because the MTA refuses to abandon the R/W, so vote for George O’Reilly for MTA Board to get Charlie off the MTA.
An easement can be considered abandoned when the dominant estate takes affirmative action to permanently vacate the easement. Non-use of the easement alone does not qualify as abandonment.
In my mind the removal of the physical plant appurtenances (tracks) is an affirmative action of non-use by the dominant estate. Whether that rises to the level of vacation is yet to be determined.
An easement can be created by implication. Simply put, if there is use over lands by others that has gone uncontested by the fee estate; and by all visible means an easement is in use, an easement can be considered to exist without the benefit of a conveyance. I’m thinking the reciprocal could be proven: If the easement in question has gone unused by the dominant estate AND use by the underlying fee has been continuous since removal of the physical appurtenances the easement has been vacated by implication.
(and that’s probably why I’m not an attorney…)
https://www.stb.gov/stb/docs/Abandonments%20and%20Alternatives1.pdf
I know there is a formal process that has to be done to abandon a railroad. I would think this might not be the case here since its not a main line.
I also know people often make the assumption you can’t get adverse possession from a government entity. Same thing applies to shorting a ROW width for a street if all the lots are short on distance. People think you shouldn’t short the ROW but give it its full width. Jeff Lucas says this is not the case. Problem is most of the time people can’t fight “city hall” so the issue rarely comes to court let along an appeals court. He did quote some cases where people did win cases but its just rare since the expense is high to fight something like this in court.
- Posted by: David Livingstone
I know there is a formal process that has to be done to abandon a railroad. I would think this might not be the case here since its not a main line.
I also know people often make the assumption you can’t get adverse possession from a government entity. Same thing applies to shorting a ROW width for a street if all the lots are short on distance. People think you shouldn’t short the ROW but give it its full width. Jeff Lucas says this is not the case. Problem is most of the time people can’t fight “city hall” so the issue rarely comes to court let along an appeals court. He did quote some cases where people did win cases but its just rare since the expense is high to fight something like this in court.
In most states it really is not possible, but that does not mean the ROW always gets its full width.
- Posted by: Paul in PA
By removing the sidetrack and switch to it the RR overtly shows no interest in the use of the easement, thus it is abandoned.
Paul in PA
That may be true in PA, but in many states its not that easy.
i got kicked a similar one recently – two brothers had bought a gas station out in the relative boonies. TxDOT comes to them in the course of the design and public comment phase of a new overpass, says their gas station is encroaching in the old highway r.o.w. (which ran behind the station).
they paid the title company to run a 75 year chain, which comes back clean. title company refers to me, find that 77 years ago the old highway was dedicated as a uniform 100-foot r.o.w. and never abandoned when the new alignment was dedicated in front of the station some 12 years later. old highway still has some old Type I (concrete obelisk) monuments here and there along it’s 4500′ length, but for the most part it’s 15′ of lumpy, potholed asphalt hemmed in by 40′ of unkempt vegetation on either side that serves as a neighborhood road for a dozen or so homes and businesses.
i call the county, thinking perhaps TxDOT had ceded maintenance to them at some point and the owners could possibly go to the county for a quitclaim (which said county would undoubtedly be more likely to do than TxDOT). they punted on maintenance. TxDOT claims they maintain it, but can’t produce any evidence of doing so, and by all outward appearances nobody maintains it at all.
i tell the owners the deal and they basically said that’s what they were afraid of. sad part for them is TxDOT doesn’t even want anything to do with the old r.o.w. that the building encroaches upon, they’re just using it as a bargaining chip to elbow the dudes out of free r.o.w. along the front.
it’s yet another reminder, for me at least, that we- as surveyors- work in a nice little theoretical bubble, but that owners and occupiers operate in much more of a money talks/bul*s*it walks environment. there’s what we determine is right, then there’s what $ decides is right.
and i go pounding my head sometimes at how governmental entities can be so ruthless, but then remember that their charge is to protect the public interest. most of these cases exemplify various agencies doing just that- defending the public’s fee (or easement) interest to an extent that probably every private land owner wishes they could. now of course the point could be made that the public’s interest is not always best served by going tooth and nail over a 60-year old brick building encroaching 12 feet into a right-of-way that was, for all intents and purposes, abandoned by its dominant entity 65 years ago… but as a default angle to take in such cases, it’s probably not a bad one.
A good lesson in why we always need to do our research.
A lot of you may be right on the abandonment but the MTA has made it clear to the land owner that they will not go down without a fight. The buyer walked away yesterday saying that because of all of this the value of the property is significantly lower. Said it wasn’t worth fighting. The seller does not have the funds to go after MTA and is still figuring out what to do. Right now there are two tenants in the buildings with long leases so he’s probably going to sit on it until he gives it to his kids in his will.
I work for a government agency. Often the executive leadership doesn’t want to give an inch anywhere because they’ve got a thousand other cases just like this where all those people will say hey what about us so the thinking is hold the line everywhere.
I have had one case where I convinced them the facts are very unique and there was good faith confusion in the area and some of our past generations of people had added to the confusion so maybe in this one case we should solve the issue by granting an easement and it won’t create an undesirable precedent because this particular section is messed up in a unique way.
But other than that it’s very hard to solve difficult RE problems, we can’t just q/c it like a private entity could. We would have to declare it surplus and I can tell you the forest doesn’t want their forest declared surplus.
- Posted by: NESurveyor
…But not just any Railroad…A public benefit corporation/authority…The Metropolitan Transportation Authority in NY. The lawyers are going to have a field day with this.
We surveyed an old and very thin piece of property for a re-development project and found that there was an old sidetrack easement through it. Currently the location of the easement runs through two buildings and a parking lot. All of this sits on top of about 15 feet of fill were trucks used to sit under the tracks to get coal. The tracks have been gone for around 60 years and the buildings erected shortly thereafter…but there is no mechanism for release of the easement in the documents.
So after a year or so of negotiations with the MTA they come back and say they want six figures in payment in order to release a 50’x500′ easement that hasn’t been used in over 60 years and that currently has buildings on it. Currently the lawyers say that adverse possession cannot happen against a public benefit corporation/authority but are looking for other means.
“…w(h)ere trucks used to sit under the tracks to get coal.” What a compelling public interest in the sidetrack easement. /s
“The tracks have been gone for around 60 years and the buildings erected shortly thereafter..”
That may be a good argument in itself.
I wonder if the MTA can lobby, or if it is dependent on public funds? If so, there’s always some legislator that doesn’t like them for one (probably good) reason or another. They can be a valuable ally, both in power and information about soft spots in the belly.
Then there’s the press. That can actually be fun.
I’ve always wanted to do an op-ed about the railroad’s appetite for million’s in public taxpayer money, while all the time stiffing reasonable requests for things like this. – drool.
Any updates?
Most every RR that I have ever encountered is an entity to itself and are protected against many situations like this in the same way States and Nation are protected against claims of use and overlap.
What their deeds, grants and sovereignty quotes and monuments mark are what they own fee simple absolute and no claims can be made against that.
They also do not use terms like adverse possession and easement for what is happening to their land.
It is possible to obtain a permit to travel alongside or cross their property when it is done properly and does not hinder their purposes in any way.
good luck
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