Railroad Rights of Way Interests, Rights, ~ and ~ Rail-To-Trails
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Railroad Rights of Way Interests, Rights, ~ and ~ Rail-to-Trails New Jersey Society ~ of ~ Professional Land Surveyors Atlantic City, New Jersey February 6, 2020 Presented by Gary R. Kent, PS Schneider Geomatics Indianapolis, Indiana © 2020, Gary R. Kent, PS The Schneider Corporation Indianapolis, Indiana 1 Biography of Gary R. Kent Gary Kent is a Professional Surveyor with Schneider Geomatics, a land surveying and consulting engineering firm based in Indianapolis. He is in his 37th year with the firm and his responsibilities include account and project management, safety, corporate culture, training, coaching and mentoring members of the surveying staff. Gary is a graduate of Purdue University with a degree in Land Surveying; he is registered to practice as a professional surveyor in Indiana and Michigan. He has been chair of the committee on ALTA/NSPS Standards for NSPS since 1995 and is the liaison to NSPS for the American Land Title Association. He is also past-president of the American Congress on Surveying and Mapping and a twice past president the Indiana Society of Professional Land Surveyors. A member of the adjunct faculty for Purdue University from 1999-2006, Gary taught Boundary Law, Legal Descriptions, Property Surveying and Land Survey Systems and was awarded “Outstanding Associate Faculty” and “Excellence in Teaching” awards for his efforts. Gary is on the faculty of GeoLearn (www.geo-learn.com), an online provider of continuing education and training for surveyors and other geospatial professionals. He is also an instructor for the International Right of Way Association. Gary has served on the Indiana State Board of Registration for Professional Surveyors since 2004 and is currently chairman. He is frequently sought as an expert witness in cases involving boundaries, easements, riparian rights, survey standards and land surveying practice. Gary regularly presents programs across the country on surveying and title topics, and he also writes a column for The American Surveyor magazine. Contact Information Gary R. Kent, PS Schneider Geomatics 8901 Otis Avenue Indianapolis, IN 46216 Phone - 317.826.7134 [email protected] 2 Railroad Rights of Way ~ Interests, Rights and Rails-to-Trails ~ New Jersey Society of Professional Land Surveyors Atlantic City, New Jersey February 6, 2020 Presented by Gary R. Kent, PS Discussion Items • Background • What interest did the railroad supposedly acquire & how? • How was that interest acquired? • Easements, Licenses and Right of Way defined • What interest was acquired: evaluating Fee or Easement? • How is right of way acquired? • Express grant • Prescriptive easement • Condemnation • Example acquisition documents – What interest was acquired? • Fee vs. Easement • Scope of acquired easement • Railroad abandonment/Rails-to-Trails • Which railroad are you dealing with? 1 Background Class I Railroads • Annual carrier operating revenue over $250 million (1991 dollars) Class II Railroads • $20 million-$250 million Class III Railroads • Less than $20 million Background Eight Class I Railroads operating in the U.S. • BNSF • CXS • Norfolk Southern • Union Pacific • Canadian National • Canadian Pacific • Kansas City Southern • Amtrak • Only Illinois and Missouri have all seven freight 2 Background Short Line Railroads • Small or mid-sized operating over a relatively short distance (as compared to larger, national railroads) • Class II or Class III • Generally exist to: • Connect two industrial concerns that require rail freight together (e.g., coal mine and power plant) • Interchange revenue traffic with other, usually larger, railroads; • Operate a tourist passenger train service. Background Short Line Railroads https://en.wikipedia.org/wiki/Shortline_railroad • New Jersey – 6 • Indiana – 26 • Ohio – 29 • Illinois – 11 Genesee and Wyoming is the largest short line conglomerate in the U.S. (121 lines in North America, Europe and Australia) (1977 – it was one 14.5 mile short line serving one customer) 3 Background – Surveyors and Railroads • Surveys of former rights of way or adjoiners • Permits/Licenses/Easements (rarely) Permits for crossings License agreements for crossings Pay attention to: Time lines (remember the hierarchy) Fees Requirements Relationships What interest was acquired? And how? Railroad Right of Way - Fee or Easement? Railroad Charter • What interest was the railroad allowed to acquire? • Easement only? • Fee? • Either/Both? • May depend on how it was acquired • Deed, grant, condemnation, use 4 By warranty deed? Warranty Deed with recording information By grant of easement? Easement with recording information 5 By prescriptive easement? By adverse possession? 6 By adverse possession? By condemnation? Condemnation 7 What interest was acquired? Railroad Right of Way - Fee or Easement? Original acquisition document • Interest acquired may be clear … or not • Acquisition document may not exist (perhaps a claim of prescriptive easement or adverse possession) What is an Easement? A limited non-possessory interest in the land of another 8 Easement (NJ) An easement is "defined as a nonpossessory incorporeal interest in another's possessory estate in land, entitling the holder of the easement to make some use of the other's property." MAUTONE v. CAPPELLUTI , NJ: Appellate Div. 2014. Easement (PA) An easement is defined as "[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose." KEYSTONE RIVER PROPERTIES, LP v. CANESTRALE, Pa: Superior Court 2016 9 Easement (NY) An easement is "an incorporeal right which is appurtenant to the ownership of the dominant estate," i.e., plaintiff's property, and "which constitutes a charge upon the servient estate," i.e., defendant's property. "An easement is more than a personal privilege to use another's land, it is an actual interest in that land"." IRONWOOD, LLC v. JGB PROPS., LLC, 99 AD 3d 1192 - NY: Appellate Div., 4th Dept. 2012 Easement in Gross An easement in gross … is not appurtenant to any estate in land and does not belong to any person by virtue of ownership of an estate in other land. It is a mere personal interest in or right to use land of another. Village of Ridgewood v. Bolger Found. , 6 NJ Tax 391 - NJ: Tax Court 1984 10 What is a license? Black's Law Dictionary defines "license" in the context of entry on real property as a "personal or revocable privilege to perform an act or series of acts on the land of another." See Black's Law Dictionary 830 (5th ed. 1979). License (NJ) "A license is simply a personal privilege to use the land of another in some specific way or for some particular purpose or act." Mandia v. Applegate, 310 NJ Super. 435 - NJ: Appellate Div. 1998 11 License (NJ) [W]hen the use is permissive, it is by definition not adverse, but rather entails a revocable license. LAMANNA v. Swan , NJ: Appellate Div. 2012 License (PA) [A] license is a mere personal or revocable privilege to perform an act or series of acts on the land of another, which conveys no interest or estate. Hill v. Clawson, Pa: Superior Court 2018 12 License (NY) [A license is a revocable privilege given to another to do one or more acts of a temporary nature upon the property without granting any interest in land itself. A license is a revocable and non-assignable privilege. Orman v. Curtis, 2017 NY Slip Op 50010 - NY: Supreme Court, Steuben 2017 Right-of-Way • Originally the term “Right of Way” indicated a Right of Easement. • More specifically, an easement for passage purposes (hence “right of way”) such as for a railroad, pipelines, pedestrians, vehicles, aqueducts, etc. 13 Right-of-Way • However, “Right of Way” has also come to mean the land burdened • In the context of “the land burdened” a right of way may be owned in fee, or something less See p. 11 Right of Way (PA) The law presently applicable is clear. A right of way is an easement. Lease v. Doll, 403 A. 2d 558 - Pa: Supreme Court 1979 14 Right of Way (NY) A right-of-way is a type of easement. Hoffmann v. Delbeau, 139 AD 3d 803 - NY: Appellate Div., 2nd Dept. 2016 Right-of-Way A right-of-way is an easement and is usually the term used to describe the easement itself or the strip of land which is occupied for the easement. 25 Am. Jur. 2d Easements & Licenses, §§ 1 and 8. 15 Right of Way [The term "right of way“] when appearing outside of the granting clause, … is of limited value because it has two meanings. Right of way refers to 1) a right to cross over the land of another, an easement, and 2) the strip of land upon which a railroad is constructed.. Clark v. CSX 737 N.E.2d 752 (2000) Right of Way “Right-of-way" is " a general term denoting land, property, or the interest therein , usually in the configuration of a strip, acquired for or devoted to for transportation purposes.” Akers v. Saulsbury , 2010 Ohio 4965 - Ohio: Court of Appeals, 5th Appellate Dist. 2010. 16 Right of Way There appears to be considerable conflict in the cases as to the construction of deeds purporting to convey land, where there is also a reference to a right of way. Some of the conflict may arise by virtue of the twofold meaning of the term "right of way," as referring both to land and to a right of passage. Maberry v. Gueths , 777 P. 2d 1285 - Mont: Supreme Court 1989 See p. 12 Right of Way "[a] right of way is an easement which may be created by an express grant. Laughlin v. Schnur, Pa: Superior Court 2017 See p. 22 17 Right of Way (“Limited Fee”) Though the owner of a fee in an easement existing for public road purposes may technically have title to the surface of the way not useful or necessary in the construction or maintenance of the road, he can not utilize it in any manner that will interfere with the use by the public or with the control of the way by the State.