Railroad Rights of Way Interests, Rights, ~ and ~ Rail-To-Trails

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

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]

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.

39 C.J.S., Highways , § 138; 25 Am.Jur., Highways, Section 135.

See p. 14

Railroad Easement

If easement, typically an Easement in Gross

Easement in gross is not appurtenant to any estate in land (or not belonging to any person by virtue of his ownership of an estate in land) but a mere personal interest in, or right to use, the land of another.

Black's Law Dictionary, Fourth Edition, page 600

18 What interest was acquired?

If not an easement – Fee How do we know which – Fee or Easement?!

Fee or Easement?

Word and phrases to consider

• “right of way” • “strip of land” • “for railroad purposes” • “grant, bargain, sell, remise, release, alien, and confirm” • “forever” • “over, across and through”

19 Fee or Easement?

Conditions to consider

• Instrument conveys a “right” • What was the consideration paid? • Without any other clarification: assumed to be a fee conveyance • The caption of a document is not dispositive

Fee or Easement?

[A] railroad is responsible for the printed words when the railroad prepares a conveyance form; thus, we will construe the form in a light most favorable to the grantors .

Conrail v. Lewellen 682 N.E.2d 779 (1997)

20 Fee or Easement?

[I]n interpreting the deed, we do not consider the cover and title of the instrument where the granting language is clear and unambiguous.

Clark v. CSX 737 N.E.2d 752 (2000)

Fee or Easement?

[D]espite the caption "Right of Way Deed," we conclude the instrument conveys fee simple title to the railroad. The cover of the deed is outside the four corners of the document, and therefore, the caption appearing on the cover is not considered.

Clark v. CSX 737 N.E.2d 752 (2000)

21 Fee or Easement?

The Subclass argues that the term " right-of- way " on the cover of the deed creates an ambiguity as to the interest conveyed. Initially, we note that language on the cover of the deed is not dispositive of the grantor's intent. …

Fee or Easement?

Reliance on such language is particularly troubling where notations may have been made by a third person not a party to the instrument or where captions are added to the cover after the grantor has made the conveyance . …

22 Fee or Easement?

Here, "right-of-way" is used to refer to the record in which the deeds are recorded. Given the two meanings of "right of way," the phrase "right-of-way record" is consistent with a conveyance in fee simple and does not create an ambiguity.

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

Fee or Easement?

The first rule of deed construction in Ohio is that when the parties' intention is clear from the four corners of the deed, we will give effect to that intention . Here, both the granting clause … and the habendum clause … convey the property to the railroad company without limitation.

23 Fee or Easement?

The granting clause provides that the grantors "freely Grant bargain sell and convey unto the said Akron Branch of the Cleveland and Pittsburgh Rail Road Company and to its assigns forever " the property in question. The habendum clause again represents that the grant is " forever ":

Fee or Easement?

To Have and to Hold said premises unto the said Akron Branch of the Cleveland and Pittsburgh Rail Road Company and to its assigns forever for the purpose of constructing and using thereon a Rail Road and other works connected therewith under and by virtue of the several acts of the Legislature of the state of Ohio incorporating and regulating said Akron Branch Rail Road Company.

24 Fee or Easement?

The " forever " language is a strong indication of an intent to convey a fee simple absolute; in a fee-simple conveyance to a corporation, the words " heirs " or " successors " are not necessary…. "An estate in fee simple absolute is created in a corporation * * * by an otherwise effective conveyance * * * of land without the use of words of succession, unless an intent is expressed in the conveyance to create an estate other than an estate in fee simple absolute."

Fee or Easement?

{¶ 30} Despite the unequivocal conveyance to the railroad company and its assigns forever , the Bilinoviches and the Koontzes argue that the deed created only a fee simple determinable. They base this argument on the fact that the habendum clause states that the conveyance is " for the purpose of constructing and using thereon a Rail Road. "

25 Fee or Easement?

{¶ 31} "A `determinable fee' has been defined as a fee-simple estate to a person and his heirs, with a qualification annexed providing that it must terminate whenever the qualification is at an end. " The estate ends automatically upon the happening of the contingency , without any further act of the grantor or the grantor's heirs. To create such an estate, deeds use words such as " until ," " during ," " so long as ," and the like.

Fee or Easement?

{¶ 32} Here, the conveyance does not contain any language that limits the conveyance, no words that suggest termination. True, the habendum clause says "for the purpose of constructing and using thereon a Rail Road." But by its plain terms, this kind of language simply describes the reason for the conveyance .

26 Fee or Easement?

Significantly, the language does not condition the railroad company's right to hold the estate on its use as a railroad. "Unless a conditional estate is created by the express language of a deed or will, the grantor or testator will be conclusively presumed to have intended a fee simple. "

Koprivec v. Rails-to-Trails of Wayne Cty., 153 Ohio St. 3d 137 - Ohio: Supreme Court 2018

Fee or Easement?

In Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Central Illinois Public Service Co. (1942), 380 Ill. 130, 131-32, 43 N.E.2d 993, the granting clause of the deed in question provided: "[W]e hereby grant, bargain, sell and release the right of way for said railroad to [the railroad] * * *. And we hereby authorize said company * * * to * * * construct said road, and use said right of way * * *."

27 Fee or Easement?

This court held, based upon the granting clause language which expressly conveyed only a "right of way, " that the deed conveyed a right-of-way easement.

Fee or Easement?

Likewise … our appellate court [has] determined that a deed to a railroad conveyed an easement where the granting clause of the deed conveyed "the right of way use and occupancy" of the described tract of land and the habendum clause provided for a reversion to the grantor should the railroad cease its railway operations on the land.

28 Fee or Easement?

The above-cited cases make it clear that more than a mere reference to the term "right of way" in a deed has been required for that term to act to define or limit the estate granted by the deed. In each case it was apparent that the grant itself was of a "right-of-way." Such is not the case in the Dodson deed.

Fee or Easement?

The Dodson deed contained no grant of a "right-of-way" but rather contained only an incidental reference to the term in the clause prescribing conditions for the conveyance. Further, the Dodson deed neither is captioned "Right-of-Way" nor does it contain any language in the granting clause purporting to limit the estate conveyed.

29 Fee or Easement?

More applicable to the case at bar is Sowers v. Illinois Central Gulf R.R. Co. (1987), 152 Ill.App.3d 163, 105 Ill.Dec. 76, 503 N.E.2d 1082, in which the appellate court construed a deed to a railroad as conveying fee simple title even though the deed referred to a "right-of- way."

Urbaitis v. Commonwealth Edison, 575 NE 2d 548 - Ill: Supreme Court 1991

How was the Railroad R/W acquired?

Express Grant

A written grant consistent with the formalities of a deed is necessary to create an express easement.

Loid v. Kell , 844 SW 2d 428 - Ky: Court of Appeals 1992

See p. 21

30 Express Grant (PA)

The law on the interpretation of easements is clear. A right of way is an easement, which may be created by an express grant. To ascertain the nature of the easement created by an express grant we determine the intention of the parties ascertained from the language of the instrument.

Kline v. LRZ, LTD. , Pa: Superior Court 2018

See p. 22

How was the Railroad R/W acquired?

Prescriptive Easement

Prescriptive easements are generally not favored in the law. For that reason a party claiming a prescriptive easement must meet stringent requirements.

31 Prescriptive Easement (NJ)

In order to establish an easement by prescription, a litigant must prove elements similar to those associated with adverse possession. Thus, the proponent of an easement by prescription must prove an adverse use of land that is visible, open and notorious for at least thirty years. …

Prescriptive Easement (NJ)

The proponent of the easement must establish the elements by the preponderance of the evidence. …

32 Prescriptive Easement (NJ)

A use is adverse or hostile if a person uses the property of another under a claim of right, pursued with an intent to claim against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by claimant before the period of adverse possession has elapsed.

HAWES REALTY, INC. v. Cupo , NJ: Appellate Div. 2012

Prescriptive Easement (PA)

A prescriptive easement is created by (1) adverse, (2) open, (3) notorious, (4) continuous and uninterrupted use for a period of twenty-one (21) years.

33 Prescriptive Easement (PA)

Moreover, the party asserting the easement must demonstrate clear and positive proof. Permissive use defeats a claim of a prescriptive easement. The landowner has the burden of proving consent, but only after the alleged easement holder proves the use was adverse, open, notorious, and continuous for 21 uninterrupted years.

Affordable Outdoor, LLC v. Tri-Outdoor, Inc. , 2019 PA Super 127 - Pa: Superior Court 2019

Prescriptive Easement (NY)

"[a] party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years".

Rosenzweig v Howlan, 166 AD3d 1146, 1148 [2018]

34 How was the R/W acquired?

Condemnation (NJ)

A fee simple absolute title may be obtained by condemnation, if the statute authorizing the taking so provides.

Lehigh Valley RR Co. v. Chapman , 171 A. 2d 653 - NJ: Supreme Court 1961

How was the R/W acquired?

Condemnation (NJ)

48:12-35.1 Authority and extent of condemnation.

60. Any railroad utility incorporated in this State or in any other state and operating in New Jersey may exercise the power of eminent domain as provided herein in taking:

35 How was the R/W acquired?

Condemnation (NJ)

(a) any land and property required for the right- of-way of its main line and branches, not exceeding 200 feet in width, unless more shall be required for slopes of cuts or embankments or retaining walls;

How was the R/W acquired?

Condemnation (NJ)

(b) all such other land and property adjoining such right-of-way as exigencies of business may demand for the erection or expansion of freight and passenger depots and all other railroad purposes, provided, however…

36 How was the R/W acquired?

Condemnation (NJ)

…that any railroad utility exercising condemnation for this purpose must demonstrate to the Department of Transportation that alternative property suitable for the specific proposed use of the property to be taken is unavailable, either through on-site accommodation or through voluntary sale of alternative, reasonably situated property, and…

How was the R/W acquired?

Condemnation (NJ)

…that the interest in the property to be taken does not exceed what is necessary for the proposed use, and shall also demonstrate to the Department of Transportation at an informal hearing the specific use to be made of the land or other property or interest to be acquired and that such proposed use is necessary and consistent with the purposes enumerated for such railroad utility and …

37 How was the R/W acquired?

Condemnation (NJ)

…with the extent of the land or other property or interest to be condemned; and (c) any land and property necessary to comply with any order, determination, rule or regulation of the Department of Transportation.

Examples - What interest did RR acquire?

The mere presence of the term " right of way " does not, in and of itself, indicate an intent to convey an easement.

Clark v. CSX 737 N.E.2d 752 (2000)

38 What interest did RR acquire?

What interest did RR acquire?

When the conveyance identifies a “purpose” for the acquisition, an easement is generally implied.

39 What interest did RR acquire?

What interest did RR acquire?

The Subclass argues that the trial court failed to consider the deed in its entirety; that the mere presence of the term " right-of-way " creates an ambiguity. This argument, extended to its logical conclusion, would completely eliminate the rules of deed construction. We would merely look for the term "right-of- way" in an instrument and then determine that the instrument conveyed an easement.

… See Exhibit 6

40 What interest did RR acquire?

[T]he terms of a contract are not ambiguous merely because controversy exists between the parties concerning the proper interpretation. [W]here the deed conveys a strip of land without limiting language the railroad has a fee simple, despite the caption placed on the deed.

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

What interest did the RR acquire?

41 What interest did the RR acquire?

The court determined that this deed conveyed fee simple to the railroad. In doing so, the court relied on … the absence of limiting language including the term "right-of-way," and the title on the cover, "Warranty Deed." The court also noted that although the word "through " was used in the descriptive clause of the deed, such language did not limit the conveyance [to merely an easement]. We agree.

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

What interest did the RR acquire?

42 What interest did RR acquire?

The deed … conveyed and warranted a strip of land for the consideration of $425.00. None of the three deed clauses contains limiting language. In particular, the habendum clause indicates that the grant is " forever ." Thus, despite the caption "Right of Way Deed" on the cover, we conclude the instrument clearly conveys fee simple title to the railroad.

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

What interest did the RR acquire?

43 What interest did RR acquire?

The deed contains no limiting language. The deed also indicates that the railroad would erect a fence along the railroad corridor .

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

What interest did RR acquire?

[T]he grantor specifically indicated that should the railroad fail to maintain the fence along the corridor, the deed would be void. Such language creates an ambiguity as to whether the grantor intended to convey the land in fee simple. …

See Exhibit 6

44 What interest did RR acquire?

Where as here, the deed was prepared by the railroad, the ambiguity is construed in favor of the grantor and against the drafter. Thus, the deed conveys an easement.

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

What interest did the RR acquire?

45 What interest did RR acquire?

The deed contains language indicating that the grantor intended to convey the land only for "so long as [the railroad] continue[s] to operate ." Also, the grantor specifically indicated that should the railroad fail to maintain the fence along the corridor, the deed would be void. …

See Exhibit 6

What interest did RR acquire?

Such language creates an ambiguity as to whether the grantor intended to convey the land in fee simple. Where as here, the deed was prepared by the railroad, the ambiguity is construed in favor of the grantor and against the drafter. Thus, the deed conveys an easement.

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

46 What interest did the RR acquire?

What interest did RR acquire?

[T]he Subclass contends that the deed conveyed only an easement because the grant was made after surveying and construction of the railroad had begun . Thus, argues the Subclass, the railroad could not receive a greater interest than it could obtain through condemnation proceedings, and in condemnation proceedings, the railroad was limited to an easement. …

See Exhibit 6

47 What interest did RR acquire?

See Exhibit 6

What interest did RR acquire?

CSX contends that the absence of the language "and warrant " does not create an ambiguity; rather, it merely indicates that the grantor made no warranties as to the quality of his title. We agree with CSX. …

See Exhibit 6

48 What interest did RR acquire?

Despite the absence of the warrant language, the deed "conveys" a strip of land to the railroad. The deed is void of any language limiting the use of the land by the railroad. Thus, the deed is unambiguous.

Clark v. CSX 737 N.E.2d 752 (2000)

See Exhibit 6

What interest did the RR acquire?

49 What interest did RR acquire?

The deed that created the easement at issue here referred to it as a "right of way," and contained the following habendum clause: "To have and to hold the said rights and privileges to the use of [Conrail], so long as the same shall be required for the use and purposes of said Road, in as full, perfect and ample a manner as may be necessarily required for the purposes hereby intended."

What interest did RR acquire?

The plain language of the deed's habendum clause refers to the right-of-way over Appellants' land as a "Road.“ It is this property interest in the "Road" that Conrail conveyed to the AVLT. A road is "[a]n open, generally public way for the passage of vehicles, people, and animals," "[t]he surface of a road; a roadbed," "[a] course or path," or "a railroad."

50 What interest did RR acquire?

By the plain language of the deed's habendum clause, there is no reason to confine our understanding of the easement grant as allowing rail service, but not preservation for future rail service. Fundamentally, the deed and its habendum clause create an easement to allow travel through the servient estates.

What interest did RR acquire?

Subsequent holders of the easement may not transgress its boundaries, but they do not transgress the use for which it was granted when they use it for hiking and biking. Interim trail use is consistent with the terms of the easement grant."

Moody v. Allegheny Valley Land Trust , 976 A. 2d 484 - Pa: Supreme Court 2009

51 Fee vs. Easement (PA)

Plaintiffs are the successors in title to Jonathan Major and David Wells who executed releases in favor of the Pickering Valley Railway Company in August and September of 1870. Defendant, The Reading Company, merged with Pickering in 1945, as a result of which it succeeded to Pickering's rights in the land in question. Reading has now undertaken to sell those rights to the other defendant, Valley Forge Scenic Railroad Company, Inc.

Fee vs. Easement

There are two principal questions presented. The answer to the first requires a construction of the releases mentioned above so as to determine what interests, if any, Pickering acquired by reason of their provisions. The second requires a determination as to whether Reading has abandoned the rights it acquired through its merger with Pickering.

52 Fee vs. Easement

Plaintiffs contend that all Pickering acquired under the releases was a "right-of-way for railroad purposes," while defendants assert that it acquired a fee simple title to the land. There is no evidence in addition to the releases themselves as to the circumstances surrounding their executions.

Fee vs. Easement

Reference to the photocopies thereof attached to the pleadings discloses that they were written entirely in longhand. However, there is no indication as to the identity of their scrivener, neither have we been informed as to the interest which he represented.

53 Fee vs. Easement

The rules by which these instruments must be construed have been set forth in a footnote to Brookbank , supra, appearing at page 157 of the court's opinion. They are as follows:

Fee vs. Easement

"(1) [T]he nature of and quantity of the interest conveyed must be ascertained from the instrument itself and cannot be orally shown in the absence of fraud, accident or mistake and we seek to ascertain not what the parties may have intended by the language but what is the meaning of the words. . .;

54 Fee vs. Easement

(2) effect must be given to all the language of the instrument and no part shall be rejected if it can be given a meaning . . .; (3) if a doubt arises concerning the interpretation of the instrument, it will be resolved against the party who prepared it . . .;

Fee vs. Easement

(4) unless contrary to the plain meaning of the instrument, an interpretation given it by the parties themselves will be favored . . .; (5) `To ascertain the intention of the parties, the language of a deed should be interpreted in the light of the subject matter, the apparent object or purpose of the parties and the conditions existing when it was executed' . . ."

55 Fee vs. Easement

Each of the instruments in question was designated a "release." The preamble in each recited that Pickering "have ascertained fixed marked and determined the route for their Railroad . . . and have occupied or intend to occupy for the purposes of said Railroad a strip or piece of land bounded and described as follows to wit . . . ."

Fee vs. Easement

Neither document contained any words of grant. On the contrary, each provided that the one who executed it "have remised released quitclaimed and forever discharged and by these presents do remise release quitclaim and forever discharge the said [Pickering] their successors and assigns of and from all suits claims demands and damages whatever for upon or by reason of their entry upon and taking and occupying the above-described piece or strip of land and the location and construction thereon of the said Railroad and works connected therewith . . ."

56 Fee vs. Easement

Each document contained a covenant to the effect that Pickering should not be required to erect or maintain fences along the boundary lines of each tract and it was further provided in each that "no nonuser of the above- described piece or strip of land or any part or portion thereof by the said [Pickering] their successors or assigns or no user occupation or possession thereof or of any part thereof by me my heirs executors administrators or assigns whether by ...

Fee vs. Easement

… residence cultivation or enclosure or otherwise for any period of time whatever whether for twenty-one years or longer shall in any manner affect the right or title of the said [Pickering] their successors and assigns to the entire and exclusive possession of the same".. ."

57 Fee vs. Easement

[W]e are constrained to hold that the acquisitions here in question amounted to no more than rights of way for railroad purposes and in reaching this conclusion we lay particular stress upon the language employed in those writings.

Fee vs. Easement

We are not unmindful of the provision of the Wells instrument which refers to a loss of access to French Creek; neither have we ignored those portions of both writings which refer to Pickering's "entire and exclusive possession" of the tracts involved.

58 Fee vs. Easement

A right of way for railroad purposes includes many more attributes than does an ordinary easement of passage or right of way for purposes of ingress or egress. Such a right was described by the Supreme Court in the case of Gillespie v. Buffalo, Rochester & Pittsburgh Railway Company , 226 Pa. 31, 32, 33 (1909) as follows:

Fee vs. Easement

"In the latter case … Mr. Justice Mitchell delivering the opinion of the court says: `Such title is sometimes called an easement, but it is a right to exclusive possession, to fence in, to build over the whole surface, to raise and maintain any appropriate superstructure, including necessary foundations and to deal with it within the limits of railroad uses as absolutely and as uncontrolled as an owner in fee.'.

59 Fee vs. Easement

The estate acquired by a railroad company by a condemnation of land is often spoken of as an easement, but the term is used in a loose way for the purpose of distinguishing it from a fee.’” Thus it is obvious that the right to exclusive possession is only one of the attributes of that type of interest which Pickering acquired.

Fee vs. Easement

Such an interest includes many more privileges than does the usual easement but it is an easement nonetheless; it is something less than a complete fee. For that reason the references contained in the instruments before us were not inconsistent with the acquisition of an interest less than a fee simple title.

60 Fee vs. Easement

Indeed, that language is entirely consistent with the position for which plaintiffs here contend.

Bevan v. The Reading Company , 47 Pa. D. & C. 2d 683 - Pa: Court of Common Pleas 1969

Scope of an express easement (PA)

[W]here a right of way is granted or reserved without limit of use, it may be used for any purpose to which the land accommodated thereby may naturally and reasonably be devoted.

PARC Holdings, Inc. v. Killian , 785 A. 2d 106 - Pa: Superior Court 2001

61 Scope of an express easement

[I]t is well established that the same rules of construction that apply to contracts are applicable in the construction of express easements . . .

Scope of an express easement

In ascertaining the scope of the easements, the intention of the parties must be advanced. Such intention [of the parties] is determined by a fair interpretation and construction of the grant and may be shown by the words employed or construed with reference to the attending circumstances known to the parties at the time the grant was made.

Laughlin v. Schnur, Pa: Superior Court 2017

62 The scope of a prescriptive easement?

The purpose of the adverse use giving rise to an easement by prescription determines the extent of the interest.

Howard v. US , 964 NE 2d 779 - Ind: Supreme Court 2012 [internal citations intentionally omitted]

The scope of a prescriptive easement?

The scope of a prescriptive easement is defined by its use.

Sowers v. Tri-County Telephone Co., Inc. , 512 NE 2d 208 - Ind: Court of Appeals, 1st Dist. 1987

63 Railroad Abandonment Process

1. Petition the Surface Transportation Board (STB) 2. STB authorizes abandonment 3. Abandon or 3. Rail bank the right of way pursuant to National Trails System Act

National Trails System Act – 1983 amendment

64 Abandonment

A [railroad] right-of-way is not considered abandoned if the ICC or STB imposes on the right of way a trail use condition under 16 .S.C. 1247(d).

Macy Elevator v. U.S.A. U.S. Court of Federal Claims (2011)

The court noted that many states (including PA, MD, MN and OH) have determined that a rail-to-trails conversion results in no compensable taking. Yet a number of other states have found just the opposite (including VT, WA, WI, MO and FL, and in Indiana based on a federal district court decision applying Indiana law)

65 Abandonment & Rails to Trails

The concept of attempting to establish trails only after the formal abandonment of a railroad right-of-way is self-defeating; once a right-of- way is abandoned for railroad purposes there may be nothing left for trail use.

Preseault v. ICC 494 U.S. 1 (1990)

After abandonment – who owns what?

A matter of title (what) and survey (where) Considerations… • What interest was originally acquired? • Is it been abandoned? When? • Has it been rail banked? • What were the nature and descriptions of initial conveyances of adjoining parcels? • What were the extents of subsequent conveyances of properties adjoining the R/W?

66 Abandonment & Rails to Trails

The question presented is the constitutionality of a federal "rails-to-trails" statute under which unused railroad rights-of-way are converted into recreational trails notwithstanding whatever reversionary property interests may exist under state law. …

Abandonment & Rails to Trails

Petitioners contend that the statute violates both the Fifth Amendment Takings Clause and the Commerce Clause, Art. I, § 8. We find it unnecessary to evaluate the merits of the takings claim because we hold that even if the rails-to-trails statute gives rise to a taking, compensation is available to petitioners under the Tucker Act, 28 U. S. C. § 1491(a)(1) (1982 ed.), and the requirements of the Fifth Amendment are satisfied. …

67 Abandonment & Rails to Trails

We also hold that the statute is a valid exercise of congressional power under the Commerce Clause.

Preseault v. ICC 494 U.S. 1 (1990)

What constitutes abandonment? (NJ)

"Such conduct must consist of some affirmative act on his part which renders use of the easement impossible, or of some physical obstruction of it by him in a manner that is inconsistent with its further enjoyment." Mere nonuse by the railroad does not amount to abandonment.

Moody v. Allegheny Valley Land Trust , 976 A. 2d 484 - Pa: Supreme Court 2009

68 What constitutes abandonment? (NJ)

Where property "is subject to an easement for a railroad right of way," and the railroad abandons rail operations on the right of way, "termination of the easement would be justified because its purpose can no longer be accomplished." Restatement, supra, § 7.10 illustration 4; see also Leach v. Anderl , 218 N.J. Super. 18, 26 (App. Div. 1987).

PPG Industries, Inc. v. J. GOLDENBERG INC. , NJ: Appellate Div. 2017

What constitutes abandonment? (NJ)

PPG Industries, Inc. v. J. GOLDENBERG INC. , NJ: Appellate Div. 2017

69 What constitutes abandonment? (PA)

In evaluating whether the user abandoned the property, the court must consider whether there was an intention to abandon the property interest, together with external acts by which such intention is carried into effect.

What constitutes abandonment? (PA)

In order to establish the abandonment of a right-of-way, the evidence must show that the easement holder intended to give up its right to use the easement permanently.

70 What constitutes abandonment? (PA)

Moody v. Allegheny Valley Land Trust , 976 A. 2d 484 - Pa: Supreme Court 2009

Abandonment & Rails to Trails (PA)

The deed contains no language specifying that the easement terminates upon cessation of rail service. During the interim period when it is railbanked and used as a trail, it is still to be used as a right-of-way, to get from the same point A to the same point B, and points in between them.

71 Abandonment & Rails to Trails (PA)

Appellants, as owners of the servient estates, still have the same rights and responsibilities as they did when the trains were running, just as they will have the same rights and responsibilities when rail service resumes. Just as a bank preserves deposited funds, railbanking preserves the relationship between the easement and the servient estate — this is a primary purpose of the National Act.

Moody v. Allegheny Valley Land Trust , 976 A. 2d 484 - Pa: Supreme Court 2009

Rails-to-Trails Conversion (OH/PA)

We are persuaded by the reasoning expressed in Rieger v. Penn Cent. Corp. (May 21, 1985), Greene App. No. 85-CA-11, unreported, 1985 WL 7919, on both issues. Although Rieger dealt with the transfer of a prescriptive easement of a railroad right-of-way to the state for a recreational trail, its logic is applicable to this lease.

72 Rails-to-Trails Conversion (OH/PA)

To us, it is reasonable and, indeed, Rieger holds that the transformation of a railroad right- of-way to a recreational trail is an equivalent and permissible use of such property. Both serve a public purpose related to public transportation and travel.

Erie Metroparks Bd. of Commrs. v. Key Trust Co. of Ohio , NA, 145 Ohio App. 3d 782 - Ohio: Court of Appeals, 6th Appellate Dist. 2001.

Abandonment & Rails to Trails

We hold that, under Indiana law, railbanking and interim trail use pursuant to the federal Trails Act are not within the scope of railroad easements and that railbanking and interim trail use do not constitute a permissible shifting public use.

Howard v. US , 964 NE 2d 779 - Ind: Supreme Court 2012)

73 Who

Railroad Names: A directory of common carrier railroads operating in the United States, 1826-1997 by William D. Edson, 1999 ISBN #0-9632913-1-9

Who?

Example - Monon Railroad

• Origin - New Albany & Salem Railroad: Southern IN • 1854 - Louisville, New Albany & Chicago Railroad • 1897 - Chicago, Indianapolis & Louisville Railroad • 1882 – Referred to as Monon Route • 1956 – Officially became Monon Route • 1968 - Merged into Louisville & Nashville Railroad • 2015 - Some R/W now owned & operated by CSX

74 Questions?

Gary R. Kent, PS Schneider Geomatics 8901 Otis Avenue Indianapolis, IN 46216 Phone - 317.826.7134 [email protected]