4. Wisconsin Railroad Timeline at Created by Sean Lamb, a Wisconsin-Based Railroad Fan

Federal Land Grants & Rights of way in Aid of Railroads After the Railroad Leaves: Who Owns That Land? SC Johnson 1988 Trust v. Bayfield County 649 F.3d 799, C.A. 7 (Wis. 2011) Reversing 634 F.Supp.2d 956 (W.D. Wis., June 26, 2009) Kees v. NSP & Chippewa Valley Motor Car Association, Ltd. 2012AP000424 NOTE: This presentation was updated in February 2013. 1 Congressional Land Grants & Rights of Way for Railroads 2 Many Sidetracks • Research into the land grant railroads in Wisconsin unveiled rich layers of Wisconsin’s formative historic events in the state’s legal, economic, and political history: – Railroad-Farm Mortgage Crisis – Land Grant Scandal – History of US land grant policy – History of railroads in the state – And Wikileaks! 3 Federal Land Grants & Rights of Way for Railroads • In mid-19th century, Congress used abundant public lands to spur settlement and development. • Congress provided public lands to aid a variety of activities: . Canals, Education, Homesteads, Wagon roads, Plank roads & Macadamized roads . And Railroads 4 5 Grants of rights • Right of Way Act of 1852 & General of way only Railroad Right of Way Act of 1875 Grants of lands • 1856 and 1864 land grant acts that only - No right benefited Wisconsin of way Grants of rights • Transcontinental railroads between of way and 1862 and 1871 lands 6 Wisconsin Land Grant Lines 7 How Did Land Grants work? • Congress specified the route and made a grant of public lands to a state. • State legislature then selected the railroad. • Railroad identified specific route and filed ‘map of definite location’ with the General Land Office. 8 Land Grant Scandal Byron Kilbourn’s La Crosse & Milwaukee Railroad bribed state officials to get the northwest land grant route authorized by the 1856 grant. Governor Coles Bashford, one Supreme Court Justice, 13 senators and 59 assemblymen implicated, also the state bank comptroller, the lieutenant governor, the private secretary of the governor, three officers of the assembly, and 23 persons engaged in lobbying. Legislature rescinded the grant in 1858. Northwest route was later awarded piecemeal to several railroads. 9 Byron Kilbourn, Father of Milwaukee and the Railroad Land Grant Scandal 10 Public Land Subsidies for Railroads 1850-1871 • In Wisconsin, the 1856 & 1864 land grants gave the railroad six square miles of land in a checkerboard pattern for each mile of track built (later increased to 10 miles). • Congress also provided replacement or indemnity lands for the railroads if insufficient public land was available in the main grant. 11 Checkerboard Pattern 12 Checkerboards • The land was provided in a checkerboard pattern of alternating township sections. • Odd-numbered sections went to the railroad. • Even-numbered sections were retained by the US. More Bribery 1874 Wisconsin law split the Superior and Bayfield branches of the Northwest Grant between the Chicago & Northern Pacific Air Line Ry. and the Chicago, St. Paul, Minneapolis & Omaha Railway Company (Omaha Road). The Omaha Road conspired to wrest the grant away from the successor to the Chicago & Northern Pacific Air Line Ry. Omaha Road bribed the directors of the Air Line to repudiate construction contracts to build the line. Omaha Road spread this news to further ruin the Air Line’s reputation and then rushed to Madison and got the state legislature to repeal the grant to Air Line and confer it on the Omaha Road. See Angle v. Chicago, St. Paul, Minneapolis & Omaha Railway Company, 153 US 1, 14 S.Ct. 240 (1894) for more details. 14 What Did Land Grants Provide to the Railroad? As 20-mile • Collateral for bonds sections were completed, • Cash from selling the land and stumpage rights the railroad • Timber and quarried rock to received the construct the railroad subsidy lands • But NO right of way in fee to use: 15 Federal Land Subsidies in Aid of Railroad Construction Wisconsin received land grants in 1856 and 1864 for three routes from southern Wisconsin to northern Wisconsin. 16 Federal Land Subsidies in Aid of Railroad Construction Wisconsin railroads also widely used the 1875 General Railroad Right of Way Act and almost certainly the 1852 Right of Way Act as well. There were 3475 miles of track in Wisconsin by the end of 1882. 17 “Land grant” rail lines in Wisconsin • 970 total miles of land-grant railroad lines in Wisconsin • 660 miles are still in service • 90 miles are Rails-to-Trails • 220 miles are out of service – the most likely source of reversion claims 18 Potential 1875 Right of Way Act Track Miles in Wisconsin • 14 Wisconsin railroads obtained right of way under the 1875 General Railroad Right of Way Act. • Mileage unknown, but extensive. 19 1875 Right-of-Way Act Railroads 1. Chicago, St. Paul, Minneapolis & Omaha Railway 2. Chicago, Milwaukee & St. Paul Ry. 3. Duluth, South Shore & Atlantic Ry. (successor to Detroit, Mackinac, & Marquette Railroad and Duluth, Superior, & Michigan Ry.) 4. Duluth, Superior, & Michigan Ry. (later Duluth, South Shore & Atlantic Ry.) 5. Eastern Ry. of Minnesota. 6. Minneapolis, Sault Ste. Marie & Atlantic Ry. 7. Princeton & Western Railway 8. Menominee River Railroad 9. Milwaukee, Lake Shore and Western Railway 10. Winona, Alma, & Northern Ry. 11. Wisconsin and Michigan Railroad 12. Wisconsin Central Railway 13. Hazelhurst & Southeastern Ry. (added between 1896 and 1903 based on GLO annual reports) 14. Northern Pacific Ry. 20 Potential Track Miles in Wisconsin 1852 & 1875 Right of Way Acts • -0- track miles in 1850 • 3475 track miles by the end of 1882 • 4071 track miles added between 1882 & 1920 – 7546 track miles by the end of 1920 • 1421 tracks miles discontinued between 1920 & 1990 – 6125 track miles by the end of 1990 • 3417 track miles in 2008 21 The Right of Way Act of 1852 Provided a 100’-wide right of way through public lands To any railroad chartered before 1867 Provided the railroad “was begun” by 1867 and Completed construction by 1882 Had an express reversion clause Reverts to US if railroad is abandoned 22 How much land? 1852 Right-of-Way Act Determining whether a the railroad was built on right of way obtained under the 1852 Right of way Act is very much a railroad-by-railroad, line- by-line endeavor. 23 How much land? 1852 Right-of-Way Act The total track miles in Wisconsin obtained under the 1852 Right of way Act is unknown, but my best guess is that the number of miles is not very great. 24 SC Johnson Trust v. Bayfield County US District Judge Crabb 2009 Judge Crabb held: Bayfield County was entitled to a former railroad right of way on a “land grant railroad” for a snowmobile trail – without compensation. 25 Was Judge Crabb’s Decision a Big Deal? American Land Title Association on Judge Crabb’s 2009 decision: – One of the six most important lawsuits in the US – “Significant ramifications on the title insurance industry” 26 Judge Crabb’s Decision Land located on • Is subject to a reversionary a former interest of the United States • Unless the right of way was federal abandoned or forfeited by land-grant Congress or a court of railroad competent jurisdiction right of • Prior to October 4, 1988. way: 27 Judge Crabb’s Decision The 1856 land grant included implied rights-of-way for the actual route of the line or that the railroad obtained its right of way under the 1852 Right of way Act. 28 SC Johnson Trust v. Bayfield County 7th Circuit Court of Appeals 2011 The 7th Circuit Court of Appeals reversed the District Court in a resounding victory for the private landowners. 29 30 31 WHAT PROPERTY RIGHTS DID THE US RETAIN? 32 7th Circuit in SC Johnson Trust 1856 & 1864 Land • No right of way was granted, so nothing grants to retain 1875 General • “Mere easement”. Land within right of Railroad Right of way “reverted” to current owner at time way Act use ceased 1852 Right of way • Express Reversion, but the 1852 Act did Act not apply in this case 33 Transcontinental Railroads Compare the Wisconsin land subsidies to the land subsidies for transcontinental railroads (several were authorized in a ten-year period between 1862 and 1871). The transcontinental railroads received both a right of way and additional land grants. Congressional Research Service Report: Federal Railroad Rights of Way. CRS is part of The Library of Congress 34 Rights of Way with a Difference The Constitution gives Congress special powers with regard to the disposition of “Property belonging to the United States.” Art. IV, § 3, cl. 2 When Congress grants a property interest, Congress is free to specify terms or elements different from those that otherwise would apply either by virtue of the common law or in other statutes. – Federal Railroad Rights of Way, Updated May 3, 2006 CRS is part of The Library of Congress 35 Getting Rid of Discontinued Railroad Rights of Way By the early 1900s, Congress began to look for ways to dispose of lands within the former rights of way. 36 Abandoned Railroad Right of Way Act of 1922 • Gave adjacent landowners a way to acquire title to an abandoned federally granted railroad right of way. • (43 USC § 912) 37 Getting Rid of Abandoned Railroad Rights of Way • Note that this presumes a US property interest in these former railroad rights of way. 38 1922 Abandoned Railroad Right of Way Act CRS Report: • Abandoned federal railroad rights of way become the property of the adjacent landowner or municipality. • “Is unclear in several respects -- for example, as to what procedures are sufficient to constitute an abandonment of a right of way…” 39 Abandoned Railroad Right of Way Act 43 U.S.C. § 912 Whenever public lands of the United States have been…granted to any railroad company for use as a right of way…and use and occupancy…for [railroad] purposes has ceased…whether by forfeiture or…abandonment …then…all right, title, interest, and estate of the United States…shall…be transferred to…any person…or successors in title and interest to whom…title of the United States may have been or may be granted, conveying…the whole of the legal subdivision or subdivisions traversed or occupied by such railroad…and this by virtue of the patent thereto and without the necessity of any other or further conveyance…of any kind…whatsoever…” (Mar.

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