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Legislature rescinded the grant in 1858.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. 8, 1922, c. 94, 42 Stat. 414.)
40 “Abandonment” 1922 Act
The purpose of the 1922 statute is “to provide a method for…disposing of the United States’ interest in railroad rights-of-way to adjacent landowners.”
Samuel C. Johnson 1988 Trust v. Bayfield County, 634 F. Supp. 2d 956, 974 (W.D. Wis. 2009), reversed on other grounds, 649 F.3d 799 (7th Cir. 2011)
41 “Abandonment” 1922 Act
Ownership of railroad right of way across federal land reverts to private property owners (or municipalities) when its use as railroad property is abandoned.
Samuel C. Johnson 1988 Trust v. Bayfield County, 634 F. Supp. 2d 956, 974 (W.D. Wis. 2009), reversed on other grounds, 649 F.3d 799 (7th Cir. 2011)
42 Requirements for “Abandonment”
The Abandoned Railroad Right of Way Act required that the railroad be declared or decreed by a court of competent jurisdiction or by Act of Congress. (43 U.S.C. § 912)
43 Requirements for “Abandonment”
Judge Crabb ruled that abandonment certificate from the Interstate Commerce Commission did not satisfy this requirement.
44 Abandonment Requirements 7th Circuit
The 7th Circuit disagreed:
An ICC (now STB) certificate of abandonment satisfies the Abandoned Railroad Right of way Act
45 Rails to Trails Act
By 1982, Congress became concerned about the loss of railroad corridors as a result of extensive abandonments of railroad rights of way (whether acquired with public aid or not).
Enacted the Rails to Trails Act (16 U.S.C. § 1248) to preserve the United States' interest in the rights of ways for use as recreational trails and potential future use for rail lines. The law went into effect in 1988.
46 7th Circuit Answers All
The 7th Circuit opinion answered the unresolved questions – and seemingly answered some un-asked questions as well.
47 7th Circuit – Right of way Not Included in Land Grants
Congress provided the means by which the railroad could build the tracks, not a continuous right of way.
48 7th Circuit – Right of way Not Included in Land Grants
The railroad had to acquire the right to cross the even-numbered sections from the private party that obtained the patent from the US.
The railroad could purchase these lands outright, buy an easement, or exercise eminent domain.
49 Width of Right of Way?
The 1852 and 1875 right of way acts both provided defined rights of way (100’ wide in the 1852 act and 200’ in the 1875 act).
The 1856 and 1864 land grants acts did not identify a defined right of way.
50 7th Circuit – A Right of way Is Not Included in Land Grants
7th Circuit: “If grants under the 1856 and 1864 Acts create… rights of way, how wide are they? The Acts don't say; they don't mention rights of way. How would a court determine their width?”
51 7th Circuit – A Right of way Is Not Included in Land Grants
“The statutes…did not create railroad rights of way…There was no federal grant of a railroad right of way on which to base an inference of a federal reversion.” SC Johnson 1988 Trust v. Bayfield County, 649 F.3d 799, 804-805, C.A. 7 (Wis.)
52 7th Circuit –No Federal Right of Way, so No Reversion
“Right of way” did not revert to the US because there wasn’t a federally granted “right of way” in the first place.
53 7th Circuit: 1875 Right-of-Way Act Mere Easements
The 7th Circuit held that these 1875 Act rights-of-way were mere easements and did not revert to the US, but terminated when railroad use ceased.
54 7th Circuit: 1875 Right-of-Way Act Mere Easements
The ruling places the 7th Circuit among the majority of the federal appellate courts that have considered the issue.
But does this conclusion harmonize the 1875 Right of Way Act and the 1922 Abandoned Railroad Right of Way Act?
55 1875 Right-of-Way Act – Mere Easements
Judge Posner: The [1875] Act does not hint at a reversionary interest, and who searching the chain of title of a lot never owned by a railroad would suspect a lurking governmental right so unsettling to the security of private property rights? Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 803 (7th CA 2011) Italics in original.
56 1875 Right-of-Way Act – Mere Easements
…Countless tracts of private land would be encumbered with a federal easement even though no conferral of such an interest appeared in a statute or a chain of title.” Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 804 (7th CA 2011)
57 7th Circuit: 1852 Right of Way Act - Inapplicable
The railroad that eventually built the Bayfield line wasn’t chartered until the 1852 act had expired and had no corporate relationship with the railroad that originally received the grant.
The 7th Circuit thus held that the 1852 Right of way Act could not have been the source of the railroad’s “right of way”.
58 Acquisition by Private Conveyance May Defeat an 1852 Act Claim 7th Circuit & Right of Way of 1852
The North Wisconsin implicitly acknowledged its failure to comply with a condition precedent to obtaining a right of way under the 1852 Act by using condemnation to obtain the rights of way that it needed for its railroad line.
Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 802-803, C.A.7 (Wis.), June 17, 2011
59 7th Circuit’s Bottom Line
“So the County has no right to build a snowmobile trail across the plaintiffs' lots without obtaining that right by purchase or condemnation...”
– Court of Appeals Judge Richard Posner in S.C. Johnson 1988 Trust v. Bayfield County, 649 F.3d 799, 808 C.A. 7 (Wis. 2011)
60 After SC Johnson Does Federal Reversion Still Lurk?
SC Johnson would seem to have buried claims that former railroad rights of way granted by the federal government might have reverted to US ownership, but…
61 Can Former Railroad Rights of Way Still Be Subject to Reversion to US?
Even after the 7th Circuit decision in SC Johnson, the answer is ‘Yes’.
62 1852 Right of Way Act Case Is Now Pending in the Wisconsin Court of Appeals
Kees v. NSP and Chippewa Valley Motor Car Association, Ltd., 2012AP000424 http://wscca.wicourts.gov/caseDetails.do?caseNo=2012AP000424
63 After SC Johnson Does Federal Reversion Still Lurk?
There is a split in the federal circuits about the 1875 Act, meaning the US Supreme Court could take up a claim of federal reversion rights and might see it differently than the 7th Circuit.
64 1875 Right-of-Way Act – Mere Easements?
Marshall v. Chicago & Northwestern Transportation Co., 31 F.3d 1028, 1031 (10th Cir.1994), holds…the 1875 Act created a reversionary interest in the federal government, in which event a right of way abandoned by a railroad would revert to the federal government… Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 803-804 (7th CA 2011)
65 Split in the Circuits on the 1875 Act
1875 Act created a reversionary interest in the federal government: Marshall v. Chicago & Northwestern Transportation Co., 31 F.3d 1028, 1031 (10th Cir.1994). U.S. v. Marvin M. Brandt, 2012 WL 3935613 (10th Cir. 2012) Not for publication. Avista Corp. v. Wolfe, 549 F.3d 1239, 1242 (9th Cir.2008).
1875 Act did not create a reversionary interest in the federal government: Hash v. United States, 403 F.3d 1308, 1316–17 (Fed.Cir.2005), and Beres v. United States, 64 Fed.Cl. 403, 425–28 (Fed.Ct.Cl.2005).
Hash and Beres are criticized in: Darwin P. Roberts, “The Legal History of Federally Granted Railroad Rights–of–Way and the Myth of Congress's ‘1871 Shift,’ ” 82 U. Colo. L.Rev. 85, 150–64 (2011).
66 Congressional Research Service Report for Congress
“The courts have interpreted the right of way interests conveyed to railroads in various ways, and it has become increasingly difficult to reconcile the sequence of congressional enactments and judicial holdings into a coherent body of law.”
67 Federal Reverter Claims Are Not Dead
Successful Reversion Claims Can Still Be Made Using the Right of Way Act of 1852…&
Maybe the 1875 Act as well (by adjacent landowners to force non-railroad uses & users off the former right of way).
68 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
69 Kees v. Northern States Power Co. & Chippewa Valley Motor Car Association, Ltd.
Robert Kees and Helen Kees v. Northern States Power Company (XCEL ENERGY, INC.) and Chippewa Valley Motor Car Association, Ltd. 2012AP000424 On Appeal from the Circuit Court of Pepin County The Honorable Thomas E. Lister Pepin County Case No. 2009CV000039 http://wscca.wicourts.gov/caseDetails.do?caseNo=2012AP000424
70 1884 Railroad Map
71 The Kees Dispute: What and Where?
A line of the Milwaukee Road ran through Pepin and Buffalo Counties from the Mississippi River up the Chippewa Valley to Durand.
The Milwaukee Road ceased service on the line after a train derailed near Ella, Wisconsin in 1977.
72 1884 Railroad Map A Milwaukee Road Derailment
74 The Kees Dispute: What and Where?
The Milwaukee Road was in bankruptcy in the 1977-78.
The bankruptcy trustee obtained permission to seek abandonment from the ICC.
75 The Milwaukee Road (Chicago, Milwaukee, St. Paul and Pacific Railroad Company)
76 The Kees Dispute: What and Where?
The ICC granted abandonment in 1979.
However, the ICC also approved the sale of a 14.1 mile stretch of the line to Northern States Power (NSP).
77 Timeline: March 26, 1979 NSP Buys Milwaukee Road Right of Way
14.1-miles of right of way
Bankruptcy Court & ICC authorized the sale
After ‘abandonment’ orders
By quitclaim deed
Tracks Never Removed
78 Timeline: 1995
•Pepin County Register of Deeds 1995 – Kees buy the farm by land •Government Lot 7, Section 29, the NW ¼ of the NW ¼, Section 32, and in the SW ¼ of the NW contract ¼ , Section 32.
1995 – Chippewa •Has cleared vegetation Valley Motor Car •Transports passengers Association leases right of way from •http://www.chippewavalleymotorcarassociation.ellawisc.com/
NSP
79 Fairmont A4 Speeder
A4 Speeder – Built by the Fairmont Railway Motors of Fairmont, Minnesota. Carried railroad maintenance of way workers and light equipment.
80 Chippewa Valley Motor Car Association
81 Who Owns That Right of Way? NSP or the Kees?
The right of way runs across the Kees’ property.
The Kees object to the maintenance activities and operations of the CVMCA.
The Kees claim they, not NSP, owns this 100’- wide ‘abandoned’ railroad right of way.
82 Who Owns That Right of Way? Northern States Power or the Kees?
The Kees filed suit against NSP and CVMCA in Pepin County Circuit Court.
Kees claim ownership of the right of way as successors in interest to the United States under the Right of Way Act Of 1852.
Could they have made a claim under the 1875 Right of Way Act, too?
83 Who Owns That Right of Way? Northern States Power or the Kees?
The trial court granted summary judgment in favor of NSP and CVMCA. The case is on appeal to the Wisconsin Court of Appeals.
84 The Dispute:
•No longer in use by 1977 Kees claim and abandoned in 1978 by NSP does Milwaukee Road. not own the •That upon abandonment, ownership reverted to the right of way owners of the land crossed because: by the right of way, i.e., the Kees.
85 The Dispute:
•It bought the line from the Milwaukee Road. NSP claims •The purchase was approved by it owns the the ICC & the Bankruptcy right of way Court. •The right of way wasn’t subject to because: federal reversion. •The line was never abandoned.
86 To Win, the Kees needed to:
Prove that the Chippewa Valley Railroad (CVRR) obtained the right of way under the Right of Way Act of 1852;
Connect that railroad as a corporate predecessor to the Milwaukee Road; and
Prove that the right of way was abandoned under the Abandoned Railroad Right of Way Act of 1922.
87 TrialCourt’s Summary Judgment
Right of way was not established under the Right of Way Act of 1852, but rather over private property
The CVRR was not a predecessor in interest to the Milwaukee Road
Right of way was not abandoned within the meaning of the reversionary statute
88 Trial Court’s Summary Judgment
Kees have no reversionary claim to the right of way under 43 U.S.C. § 912.
89 Wisconsin Railroads & the 1852 Right of way Act
Any railroad chartered before 1867 could have used the 1852 Act to secure a right of way across public lands.
90 Railroad Historical Timeline
Which railroad built the rail line?
When?
How did they acquire the right of way?
91 Railroad Historical Timeline 1857-1858 Chippewa Valley Railroad
The Kees argued:
That the Chippewa Valley Railroad was the Milwaukee Road’s original predecessor on this line; and
That CVRR obtained its right of way under the Right of Way Act of 1852.
92 Railroad Historical Timeline 1857-1882
NSP response:
No connection between the Chippewa Valley Railroad and the railroad that actually built the line in 1882.
1881-1882 – The Milwaukee Road’s predecessor in interest (Chippewa Valley & Superior Railway Company) was organized, acquired right of way by private conveyance, and constructed the rail line.
93 Railroad Historical Timeline 1857-1858 Chippewa Valley Railroad
Chartered in 1857-1858 by state legislature to build a railroad “from a point on the Mississippi River in the town of Pepin in the county of Dunn” to at Lake Superior by way of Eau Claire and Chippewa Falls.
Questionable whether the line that CVRR proposed was in the same location as the line in question Kees.
CVRR never built the rail line.
94 Official State Railroad Map - 1989
95 Kees – Abandonment
96 ICC Approved Abandonment
February 28, 1978 – The ICC issued its Order permitting abandonment of the Milwaukee Road’s Winona to Durand line.
97 ICC Allows Purchase by NSP
Delayed the effectiveness of its decision to allow the Milwaukee Road and NSP time to negotiate the NSP’s purchase of this 14.1-mile section the rail line.
Allowing the Milwaukee Road to sell to NSP complicates the abandonment question.
98 Kees - Abandonment
Authorized the Milwaukee Road to sell the right of way to NSP within weeks of the effective date of the ICC abandonment order.
99 Trial Court: No Abandonment
Despite the ICC order, the trial court concluded that the railway was not “abandoned” as that term is construed under 43 U.S.C §912.
100 “Abandonment in Fact”
The Trial Court concluded that “abandonment in fact” of a railroad “requires that the tracks be pulled up.”
101 7th Circuit & “Abandonment”
The regulator's (the ICC's or STB's) permission to abandon, coupled with the removal of the tracks (abandonment in fact), was sensibly accepted as adequate proof of abandonment in Keife v. Logan, 119 Nev. 372, 75 P.3d 357, 358 (2003) (per curiam). A formal declaration was necessary only if contrary proof was presented or surprise claimed. Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 806 C.A.7 (Wis.), June 17, 2011
102 CRS: Abandonment Under the 1922 Act
What constitutes abandonment remains, however, somewhat uncertain. The relevant statutes do not define abandonment, and no single court decision has definitively resolved the question…
103 CRS: Abandonment Under the 1922 Act
The courts…have often looked to common law principles in interpreting the term. A particularly influential case has read § 912 to require a present intent to abandon as well as physical abandonment, evidenced by the cessation of tax payments related to the property, discontinuation of service and other railroad-related use, and removal of tracks. [Idaho v. Oregon Short Line Railroad Co., 617 F.Supp. 213, 218 (D.Idaho 1985).] Additional requirements, however, vary from circuit to circuit. CRS Report at page 10
104 CRS: Abandonment Under the 1922 Act
105 7th Circuit & “Abandonment”
We are supported in thinking…by reflection on how onerous the process for obtaining regulatory authorization to abandon a rail line is… Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 807 C.A.7 (Wis.), June 17, 2011
106 7th Circuit & “Abandonment”
With permission to abandon granted…and with the permission sure to be acted on by removal of the tracks, a requirement of a judicial proceeding issuing in a decree of abandonment would be a waste of time and money. Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 808 C.A.7 (Wis.), June 17, 2011
107 7th Circuit & “Abandonment”
Would a judge have to demand testimony that the railroad really did remove the tracks? And that it didn't remove them just to clean and polish them, meaning to re-lay them later? The proceeding would be empty. Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 808 C.A.7 (Wis.), June 17, 2011
108 Kees Loses at the Trial Court
1. That the Kees failed to establish that the right of way was obtained by acquisition of federal lands and
2. The right of way had never been formally declared abandoned by a federal court of competent jurisdiction.
109 Consistent with SC Johnson & Prior Caselaw?
Was the trial court’s ruling regarding the effect of an ICC certificate of abandonment consistent with SC Johnson?
Probably.
Was it consistent with prior case law?
Maybe not.
110 ICC Authority Over Rights of Way Subject to Federal Reversion
Assuming the right of way was subject to federal reversion, did the ICC exceed its authority by allowing the sale of the right of way for non- railroad purposes?
111 Was Bankruptcy Order No. 43 a Judicial Declaration of Abandonment?
Kees & NSP dispute the meaning of an order of the Bankruptcy Court Judge in the Milwaukee Road Bankruptcy.
Did the Bankruptcy Court order abandonment or merely grant authority to the Trustee’s to seek abandonment from the ICC? (May 8, 1978 - Order No. 43)
112 Was Bankruptcy Order No. 43 a Judicial Declaration of Abandonment?
If Bankruptcy Order No. 43 was a judicial declaration of abandonment, then the right of way reverted to the adjacent owners one year after that order (assuming it was subject to federal reversion).
113 Trial Court: No Abandonment
Concluded that Order No. 43 did not constitute an order of abandonment for the purposes of 43 U.S.C. § 912.
114 Wis. Stat. § 85.09 “Determination of abandonment” Oddly, neither party cited Wis. Stat. § 85.09(3)(b)
“Determination of abandonment. “For purposes of this section, rail property shall be deemed abandoned if par. (a) or (b) applies:
(b) A certificate or approval of abandonment is not required and the use of the rail property for railroad or railway purposes has been discontinued with the intent not to resume. Intent not to resume may be inferred from circumstances including, but not limited to, the following: 1. If the rail property is not used for railroad purposes for 2 consecutive years. 2. If the facilities on the rail property are removed or rendered unfit for service. 3. If the rail property is used for other than railroad purposes.
115
Inside Baseball: Conditions Precedent & Subsequent and In Praesenti Easements & Corporate Successors & Arguments of the Parties on the Bankruptcy Court Order
116 Significance of conditions precedent and conditions subsequent
If conditions precedent are met, the grant takes effect immediately.
Only the US can complain about failure to meet conditions subsequent.
117 1852 Act: Conditions Precedent
Chartered by 1867
Authorized to build the line by the state legislature
118 Kees – Condition Precedent
If the conditions precedent are met then the railroad obtained an in praesenti grant of right- of- way.
Such a grant would be effective immediately even though public lands comprising the right of way had not yet been identified. St. Joseph & Denver Railroad Co. v. Baldwin, 103 U.S. 426, 429 (1880).
119 1852 Act: Conditions Subsequent
“Begun” by 1867
Completed by 1882
120 Kees - Appellant brief In praesenti grants
The Supreme Court followed Schulenberg with its decision in McGee, where the Court addressed the issue of the disposition of lands granted in praesenti when a condition subsequent is broken:
[L]ands granted by congress to aid in the construction of railroads do not revert after condition broken until a forfeiture has been asserted by the United States, either through judicial proceedings instituted under authority of law for that purpose, or through some legislative action legally equivalent to a judgment of office found at common law.
St. Louis, I.M. & S. Ry. Co. v. McGee, 6 S. Ct. 123, 125, 115 U.S. 469, 473-74, (1885).
The Seventh Circuit reiterated this principle in S.C. Johnson 1988 Trust v. Bayfield County, 649 F.3d 799 (7th Cir. 2011). Writing for the S.C. Johnson Court, Judge Posner noted that in the matter of conditions subsequent, if such a condition (such as “beginning a railroad”) is not met, then the government is entitled to rescind the grant, but “if the government isn’t interested in doing that, no one can butt in.” Id. at 803.
121 Kees – Loss of in praesenti right of way Condition Subsequent
The Trial Court concluded that the Chippewa Valley Railroad lost its in praesenti right of way for failure to commence “construction” of a railroad in the time allotted by the 1852 Act. … Any in praesenti rights granted by the 1852 [A]ct, were lost by the failure of the Chippewa Valley Railroad to commence construction within the time allotted.
122 Conditions Subsequent and In Praesenti Grants
Kees argued that:
Even if railroad failed to “begin” by 1867, the right-of- way grant did not cease because the right of way grant under the 1852 Act is an in praesenti grant.
How in praesenti grants are affected by conditions such as “completion” or “construction” was settled long ago by the U.S. Supreme Court in Schulenberg:
The provision in the Act of Congress of 1856, that all lands remaining unsold after ten years shall revert to the United States, if the road be not then completed, is no more than a provision that the grant shall be void if a condition subsequent be not performed.
Schulenberg v. Harriman, 88 U.S. 44, 62 (1874).
If a condition subsequent be not performed, the Schulenberg Court concluded, “no one can take advantage of [its] nonperformance…but the grantor or his heirs…” Id. at 63.
123 Does “begun” mean to begin construction? Or something less?
124 Kees – “Begun” – Construction or Something Less?
Kees argued that the 1852 Act did not contain any requirement that a railroad commence “construction” at some date certain.
The Right of Way Act of 1852 states:
Provided Further, That the said grants…shall cease and determine, unless the road or roads be begun within [fifteen] years from and after the passage of this act, and completed within fifteen years thereafter.
Ch. 80, 10 Stat. 28 (Aug. 4, 1852) as amended.
125 Kees - “Begun” Construction or Something Less?
Kees argued that 1852 Act did not require commencement of construction and might be met by:
1. Maps from the 1850s and 1860s showing the conception of the Chippewa Valley Railroad running from Wabasha, through Eau Claire.
2. Founding the railroad and mapping a possible railroad right of way satisfied the 1852 Act’s requirement that the railroad “be begun” by 1867.
126 Condition Subsequent Right of Way Act of 1852
Described by Judge Crabb (Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 634 F.Supp.2d 956 (Jun 26, 2009) at 961):
The grants were conditioned on the companies' transmitting a correct plat of the survey of the road to the Commissioner of the General Land-Office and beginning construction within ten years. The Act provided that “if any road, at any time after its completion, be discontinued or abandoned by said company or companies, the grants hereby made shall cease and determine, and said lands hereby, granted, revert back to the general government.” Id.
Note that Judge Crabb read the “begun” requirement as “construction”.
127 Kees – Successor Corporate Relationships
128 Connecting Corporate Successors
The parties disputed whether a sufficient corporate relationship existed so that the chartering of the earlier railroad was the chartering of the later railroad.
129 Connecting Corporate Successors
The Trial Court concluded:
In order to establish that the Milwaukee Road was a successor in corporate interest to the Chippewa Valley Railroad, it would be necessary to show a continuing chain of corporate relationships sufficient to carry forward an original right of way grant.
130 Railroad Historical Timeline: The Milwaukee Road and Its Predecessors in Interest
NSP argues this railroad had no corporate connection to the Chippewa Valley Railroad.
1. 1882 – CMSP succeeded to the interests of the Chippewa Valley and Superior Railway Company. 2. The Milwaukee Road (incorporated in Wisconsin on March 31, 1927) succeeded to the interests of the Chicago, Milwaukee, and St. Paul Railway Company (CMSP).
131 Connecting Corporate Successors 7th Circuit & Right of Way of 1852
And as there was no corporate relationship between the St. Croix and North Wisconsin railroads—no asset or stock acquisition that might have made the latter a successor to the former (and no mention of the 1852 Act in the North Wisconsin's charter)—the chartering of the St. Croix could not be deemed the chartering of the North Wisconsin. [Citations omitted]
Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, 802, C.A.7 (Wis.), June 17, 2011
132 Arguments of the Parties on whether the Bankruptcy Court Order Was an Order of Abandonment
133 Kees – Bankruptcy Court – Court of Competent Jurisdiction?
That the court in the Milwaukee Road Bankruptcy was a court of competent jurisdiction for the purposes of 43 U.S.C. § 912 and that Order No. 43 was a final order of abandonment for the purposes of 43 U.S.C. § 912.
134 Abandonment by Court under § 912?
That the ICC order suffices to declare the right of way abandoned for purposes of reversion under § 912.
135 Abandonment by Court under § 912?
That the ICC only addresses the obligation of common rail carriers to provide service to the public, not real interests in the underlying property.
136 Abandonment by Court under § 912?
In the words of the trial court, the ICC order “is only a determination that secession of services would not hinder ICC purposes.”
137 Abandonment by Court under § 912?
In contrast, a judicial declaration of abandonment for the purposes of § 912 abandonment is a court’s determination that “use and occupancy of said lands for [railroad right of way] purposes has ceased.”
138 Distinguished from SC Johnson
That a “formal declaration” by a court is “necessary” in cases where “contrary proof” suggests there is no intent to accomplish abandonment in fact.
The trial court found that the timely bankruptcy court- authorized sale of the right of way “was an alternative to abandonment and no abandonment-in-fact … ever occurred.”
139 “Abandonment in Fact”
Abandonment-in-fact does not require that the tracks be pulled up. On the contrary, the ICC has acknowledged that abandonment can occur “even if the tracks remain in place.” Consolidated Rail Corp. v. Surface Transportation Board, 93 F.3d 793, 798 (D.C. Cir. 1996).
What abandonment really comes down to is a question of intent rather than some physical talisman such as track removal. Id.
140 Kees - “Abandonment in Fact
The US Supreme Court has described abandonment as “an intention of the carrier to cease permanently or indefinitely all transportation service on the relevant line.” Chicago and North Western Transportation Co. v. Kalo Brick & Tile Co., 450 U.S. 311, 314 n.2 (1981).
141 “Abandonment in Fact
During the Milwaukee Road Bankruptcy, the Milwaukee Road confirmed to the ICC that: “[s]ervice on the [Winona to Durand] lines [including the Railway] had been discontinued and…tariffs cancelled effective February 15, 1979…”
The Milwaukee Road’s express intention to “cease...all transportation service” on its line constituted abandonment under the Kalo Brick decision.
142 Kees – Abandonment NSP Brief
U.S. Supreme Court’s has concluded that the ICC must act first before a court can dispose of interests in rail lines slated for abandonment. Thompson v. Texas Mexican Ry. Co., 328 U.S. 134 (1946).
The Texas Mexican Court examined the interplay between the bankruptcy court’s authority and the ICC’s authority and noted that railroad operations “may not be discontinued until a certificate of abandonment is obtained” from the ICC. Id. at 148. The Court further noted that “[t]he Commission has the power . . . to refuse to allow abandonment of the operations.” Id. at 149. It is precisely because the ICC retains such power that “[o]nce the Commission has acted, the court may then proceed to enter judgment in conformity with the terms and conditions specified by the Commission.” Id. at 148-49 (emphasis added).
143 Kees –Abandonment NSP Brief
Numerous courts that have considered the issue have reached the same conclusion. See, e.g., Vieux v. E. Bay Reg'l Park Dist., 906 F.2d 1330, 1339 (9th Cir. 1990) (extensively considering the role of the ICC in the context of § 912’s reference to an Act of Congress and declaring that “I.C.C. approval of abandonment, even in formal abandonment proceedings, . . . is not a determination that the railroad has abandoned its lines”); see also Avista Corp. v. Wolfe, 549 F.3d 1239, 1246-47 (9th Cir. 2008) (“for any reversionary property rights to vest, the use and occupancy of the land must have ceased by abandonment or forfeiture and the abandonment or forfeiture must have been declared by Congress or a court of competent jurisdiction”); Idaho v. Oregon Short Line R.R. Co., 617 F. Supp. 213, 217 (D. Idaho 1985) (finding that regardless of use, the right of way is considered to be “occupied” as long as railroad tracks and other railroad structures remain on the right of way).
144 145 1856 Railroad Map of the Old Northwest
146 147 1885 Railroad Map
148 http://railroads.unl.edu/views/item/bryan_rr_ch ars?p=9 Railroad Network Expansion in the United States University of Nebraska at Lincoln
149 http://railroads.unl.edu/views/item/bryan_rr_chars?p=7 Railroad Network Expansion in the United States University of Nebraska at Lincoln
150 151 152 Federal Public Lands for Railroads in Wisconsin
• In 1856 & 1864, Congress provided lands for three routes in Wisconsin, including a Northwest route: • Madison-Portage-Hudson-Superior & a branch to Bayfield • S.C. Johnson & Mauler involved lands on the Northwest route. • 1864 act extended time & split Northwest grant
153 1875 Rights-of-Way in Wisconsin
• At least 13 railroads in Wisconsin received rights-of- way under the 1875 right of way Act. – 1896 Annual Report of the Commissioner of the General Land Office, on pages 223-229. • Determining which tracks were built on the 1875 right of way is difficult. Federal archives may hold the necessary records.
154 Public Land Survey
Congress at the urging of Thomas Jefferson began to survey public lands and that was the beginning of the Public Land Survey System (PLSS).
The PLSS is used to divide public domain lands, which are lands owned by the Federal government for the benefit of the citizens of the United States.
155 Wisconsin Public Land Survey Grid
156 157 158 Statutes & Cases
159 Federal Statutes – 1852 Right of way Act & 1856 Grant & Amendments
1. Right of Way Act of 1852, Ch. 80, 10 Stat. 28 (Aug. 4, 1852), amended by Ch. 179, 12 Stat. 577 (July 15, 1862). Provides 100’ right of way; 200’ where terrain requires it. In 1855, Congress extends Right of way Act of 1852 to “all of the public lands of the United States, in the Territories of the United States.” Ch. 200, 10 Stat. 686 (Mar. 3, 1855). 2. 1856 Land grant – An Act granting Public Lands to the State of Wisconsin to aid in the Construction of Railroads in said State, Statutes at Large, XI, 20 [Ch. 43, 11 Stat. 20 (June 3, 1856)]. Grants the Northeast and Northwest routes. 3. 1862 Joint Resolution authorizes shift in the 1856 Northeast route between ranges 16-23 east of the 4th principal meridian. [Res. 80, 12 Stat. 618 (April 25, 1862)]. 4. 1864 Land grant – An Act granting Lands to aid in the Construction of Certain Railroads in the State of Wisconsin, Statutes at Large, XIII, 66. [Ch. 80, 13 Stat. 66 (May 5, 1864)]. Grants a 3rd route & breaks Northwest route in to: 1. St. Croix Lake or river- Bayfield & Superior; 2. Tomah-St. Croix river. 5. 1865 – Extends time for Northeast route completion to June 3, 1871. [Ch. 53, 13 Stat. 520 (Mar. 3, 1865)].
160 Federal Statutes 1864 Grant & Amendments
6. 1864 Land Grant Act – An Act granting Lands to aid in the Construction of Certain Railroads in the State of Wisconsin, Statutes at Large, XIII, 66. [Ch. 80, 13 Stat. 66 (May 5, 1864)], amended by Ch. 82, 18 Stat. 28 (Mar. 3, 1875). Extends to end of 1876 time for Wisconsin Central to complete third route. 7. 1865 – Extends time for Northeast route completion to June 3, 1871. [Ch. 53, 13 Stat. 520 (Mar. 3, 1865)]. 8. 1866 – Allows adjustment in WC route to include Ripon & Berlin as requested by state legislature. Res. 53, 14 Stat. 360 (June 21, 1866)]. 9. 1875 – Authorizes WC to straighten route by dropping Ripon & Berlin as requested by state. [Ch. 176, 18 Stat. 511 (Mar. 3, 1875)]. 10. 1875 – General Railroad Right of Way Act of 1875, 43 U.S.C. § 934, provided right of way (easements) across public lands. 11. 1922 – Abandoned Railroad Right of Way Act, 43 U.S.C. § 912 12. 1982 – National Trails System Act (Rails-to-Trails), 16 U.S.C. § 1248
161 Abandoned Railroad Right of Way Act 43 U.S.C. § 912
§ 912. Disposition of abandoned or forfeited railroad grants Whenever public lands of the United States have been or may be granted to any railroad company for use as a right of way for its railroad or as sites for railroad structures of any kind, and use and occupancy of said lands for such purposes has ceased or shall hereafter cease, whether by forfeiture or by abandonment by said railroad company declared or decreed by a court of competent jurisdiction or by Act of Congress, then and thereupon all right, title, interest, and estate of the United States in said lands shall, except such part thereof as may be embraced in a public highway legally established within one year after the date of said decree or forfeiture or abandonment be transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind as aforesaid, except lands within a municipality the title to which, upon forfeiture or abandonment, as herein provided, shall vest in such municipality, and this by virtue of the patent thereto and without the necessity of any other or further conveyance or assurance of any kind or nature whatsoever: Provided, That this section shall not affect conveyances made by any railroad company of portions of its right of way if such conveyance be among those which have been or may after March 8, 1922, and before such forfeiture or abandonment be validated and confirmed by any Act of Congress; nor shall this section affect any public highway on said right of way on March 8, 1922: Provided further, That the transfer of such lands shall be subject to and contain reservations in favor of the United States of all oil, gas, and other minerals in the land so transferred and conveyed, with the right to prospect for, mine, and remove same. (Mar. 8, 1922, c. 94, 42 Stat. 414.)
162 Right of Way Act of 1852
Right of Way Act of 1852 provided that a right of way:
“shall be, and is hereby granted to all [railroad] companies that are now or that may be chartered within ten years hereafter, over and through any of the public lands of the United States, over which any [railroads] are or may be authorized by an act of the legislature of the respective States in which public lands may be situated; and the said company or companies are hereby authorized to survey and mark through the said public lands, to be held by them for the track of said road, one hundred feet in width…. Provided further, That the said grants herein contained, as well of the use of the public lands . . . shall cease and determine, unless the road or roads be begun within ten years from and after the passage of this act, and completed within fifteen years thereafter… Provided further, That when a location for … said railroads … shall be selected, the proper officers of such road or roads shall transmit to the Commissioner of the General Land-Office a correct plat of the survey of said road or roads … before such selection shall become operative…”
Congress subsequently extended the deadlines, and to comply with the Right of Way Act (as amended) “a chartered railroad company had until 1867 to begin construction of a line and fifteen years thereafter to complete construction, or until 1882.” 1988 Trust, 634 F. Supp. 2d at 962.
163 Railroad conveyances Section 190.11 Wis. Stats.
190.11 Railroad conveyances, how executed and filed. (1) Every conveyance or lease, deed of trust, mortgage or satisfaction thereof made by any railroad corporation shall be executed and acknowledged in the manner in which conveyances of real estate by corporations are required to be to entitle the same to be recorded, and shall be filed with the department of financial institutions, which shall endorse thereon “filed” and the date of filing. (2) A record of filing under sub. (1) shall from the time of reception of the instrument have the same effect as to any property in this state described therein as the record of any similar instrument in the office of a register of deeds has as to property in his or her county, and shall be notice of the rights and interest of the grantee, lessee or mortgagee by such instrument to the same extent as if it were recorded in all of the counties in which any property therein described may be situated. (3) The department of financial institutions shall collect a fee of $1 per page filed under sub. (1). (4) The department of financial institutions shall collect a fee at the rate under s. 77.22 and, on or before the 15th day of the month after the fee is collected, shall remit that fee to the department of administration for deposit in the general fund. Sections 77.21, 77.22 and 77.25 to 77.27 apply to the fee under this subsection. History: 1981 c. 20; 1985 a. 29; 1991 a. 39; 1993 a. 412; 1995 a. 27.
164 Cases
1. Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 649 F.3d 799, C.A.7 (Wis.), June 17, 2011 (NO. 09-2876, 09-2879) 2. Samuel C. Johnson 1988 Trust v. Bayfield County, Wis., 634 F.Supp.2d 956 (W.D. Wis., Jun 26, 2009) (NO. 06-CV-348-BBC). 3. Samuel C. Johnson 1988 Trust v. Bayfield County, 520 F.3d 822, 833 (7th Cir.2008). 4. Mauler v. Bayfield County, 204 F.Supp.2d 1168 (W.D.Wis.2001), affirmed by the Court of Appeals for the Seventh Circuit. Mauler v. Bayfield County, 309 F.3d 997 (7th Cir.2002). Right of way was subject to reversion despite claim that the grant to the railroad did not state explicitly that it a “right of way.” The land grant was made for the limited purpose of constructing and operating a railroad, and recognized the long-term interest of the United States in the transportation corridor. 5. Northern Pacific Ry. Co. v. Townsend, 190 U.S. 267, 271, 23 S.Ct. 671, 47 L.Ed. 1044 (1903). Held that US gave railroads a limited fee for right of way. Right of way is subject to reversion to US. 6. Great Northern Railway Co. v. United States, 315 U.S. 262, 273, 62 S.Ct. 529, 86 L.Ed. 836 (1942). Held that after 1871, the US only gave railroads an easement for the right of way. No reversion to US.
165 Cases
7. Hash v. U.S., C.A.Fed. (Idaho) 2005, 403 F.3d 1308. Controversial decision by the Federal Circuit held the United States retained no interest in rights-of-way granted after 1871. Successors to original land patentees who took fee title “subject to” pre- existing railroad right of way suffered taking when, after their fee title was disencumbered by railroad abandonment of right of way, government converted land under former easements to public trail. Concern that the ruling will greatly increase cost for Rails-to-Trails in states that only received post-1871 right of way for railroad and no land grant subsidy. 8. Phillips Co. v. Denver and Rio Grande Western R. Co., C.A.10 (Colo.) 1996, 97 F.3d 1375. Authorization from Interstate Commerce Commission (ICC) to abandon railroad line is prerequisite to court's determination that determination that railroad has abandoned right of way under 43 USC s. 912. 9. U.S. v. Marvin M. Brandt Revocable Trust, Slip Copy, 2008 WL 7185272 (D.Wyo.,2008) describes split of the federal circuits on whether the US retains a reversionary interest in post-1871 railroad rights-of-way.
166 Cases
10. Beres v. United States, 64 Fed.Cl. 403 (2005), concludes that the US retained no reversionary interest in rights-of-way granted under 1875 Right of way Act. 11. Vieux v. East Bay Regional Park District, 906 F.2d 1330, 1335 (9th Cir.1990) US retains a reversionary interest in ROW grants under the 1875 act. 12. Marshall v. Chi. & Nw. Transp. Co., 31 F.3d 1028 (10th Cir.1994), US retains a reversionary interest in ROW grants under the 1875 act. 13. Pollnow v. State Dept. of Natural Resources, 88 Wis.2d 350, 355, 276 N.W.2d 738, 741 (1979). 14. State v. Holmgren, 111 Wis.2d 700, 332 N.W.2d 311 (Ct.App.1983) (unpublished disposition). State court ruling of abandonment.
167 St. Joseph & Denver Railroad Co. v. Baldwin 103 U.S. 426, 429-430 (1880)
St. Joseph & Denver Railroad Co. v. Baldwin, 103 U.S. 426, 429-430 (1880): The language of the act here, and of nearly all the congressional acts granting lands, is in terms of a grant in proesenti. The act is a present grant, except so far as its immediate operation is affected by the limitations mentioned. ‘There is hereby granted’ are the words used, and they import an immediate transfer of interest, so that when the route is definitely fixed the title attaches from the date of the act to the sections, except such as are taken from its operation by the clauses mentioned. This is the construction given by this court to similar language in other acts of Congress.
But the grant of the right of way by the sixth section contains no reservations or exceptions. It is a present absolute grant, subject to no conditions except those necessarily implied, *430 such as that the road shall be constructed and used for the purposes designed. Nor is there anything in the policy of the government with respect to the public lands which would call for any qualification of the terms. Those lands would not be the less valuable for settlement by a road running through them. On the contrary, their value would be greatly enhanced thereby.
The right of way for the whole distance of the proposed route was a very important part of the aid given. If the company could be compelled to purchase its way over any section that might be occupied in advance of its location, very serious obstacles would be often imposed to the progress of the road. For any loss of lands by settlement or reservation, other lands are given; but for the loss of the right of way by these means, no compensation is provided, nor could any be given by the substitution of another route.
The uncertainty as to the ultimate location of the line of the road is recognized throughout the act, and where any qualification is intended in the operation of the grant of lands, from this circumstance, it is designated. Had a similar qualification upon the absolute grant of the right of way been intended, it can hardly be doubted that it would have been expressed. The fact that none is expressed is conclusive that none exists.
168 About Old Wisconsin Statutes
• Prior to 1911, the statutes were published at irregular intervals. State statutes were compiled and published in 1849, 1858, 1871, 1878, 1889, and 1898. The statutes have been published annually since 1911. • Prior to a constitutional amendment in 1871, the legislature adopted General Acts and also Private and Local Laws. The private laws were often much longer than the general laws. • Railroads were granted charters as private laws. A law providing for the incorporation of railroads was adopted in 1872. • http://legis.wisconsin.gov/lrb/pubs/wb/ 06wb10.pdf
169 More about Old Wisconsin Statutes
• These old statutes are available through Google Books. Be aware that the title displayed in search results is not always accurate. Private & Local Laws are sometimes shown as “Session Laws”. • Digest of laws 1858-1868 Wisconsin http://books.google.com/books?id=9ELTAAAAMAAJ&dq=private %20and%20local%20laws%20of%20wisconsin%201864&pg=PA6 5#v=onepage&q&f=false
• Synoptical Index of Wisconsin laws up through 1873 http://books.google.com/books?id=7HgZAAAAYAAJ&ots=poTgiC zfuG&dq=synoptical%20index%20wisconsin%201873&pg=PA83 #v=onepage&q=railroad&f=false
170 State Law History of the Northwest Grant
Madison to Portage Segment Year State Law Page # Railroad Comments 1856 Ch. 118 137 None State accepts 1856 grant from US 1856 Ch. 122 General 217 La Crosse & Milwaukee For entire NW route; Later (L&M) revoked 1861 Ch. 233 P&L 333 Sugar River Valley Partially revokes grant to L&M Railroad & confers partial NW grant – Madison to Portage City
1866 Ch. 542, P&L 1345 Sugar River Valley Extends time to 1869 and (Part Two) Railroad don’t have to build Columbus- Portage 1870 Ch. 117 P&L 284 Madison & Portage Confers all rights of Sugar Railroad River Valley Railroad to Madison & Portage
171 State Law History of the Northwest Grant
Portage - Tomah – Hudson – Superior & Bayfield Year State Law Page # Railroad Comments 1856 Ch. 118 137 None State accepts 1856 grant from US
1856 Ch. 122 General 217 La Crosse & Milwaukee For entire NW route; Later revoked (Gen’l) 1856 (L&M) 1857 Ch. 230 Private & 529 St. Croix & Lake Superior Partially revokes grant to L&M & Local (P&L) 1857 confers partial NW grant – Lake St. Croix to Bayfield & Superior 1863 Ch. 243 SUPP. TO 47 (Online Tomah & Lake St. Croix Partially revokes L&M grant and P&L version has confers partial NW grant – Tomah to pages Black River Falls to Lake St. Croix missing) 1865 Ch. 232 Gen’l. 265 Tomah & Lake St. Croix Confirms Tomah to Black River Falls to Lake St. Croix grant after Congress Act of 1864 amended the 1856 grant. 1865 Ch. 174 Gen’l. 153 St. Croix & Lake Superior Confirmed Partial NW grant – Lake Railroad St. Croix to Bayfield & Superior under grants of 1856 1865 Ch. 175 Gen’l. 154 St. Croix & Lake Superior Conferred Partial NW grant – Lake Railroad St. Croix to Bayfield & Superior under grants of 1856 & 1864.
172 State Law History of the Northwest Grant
Portage - Tomah – Hudson – Superior & Bayfield 1871 Ch. 113 P&L 168 Tomah & Lake St. Croix (West Repeals grant of Tomah-Lake St. Croix Wisconsin) portion of route. 1872 Ch. 46 P&L 138 Tomah & Lake St. Croix (West Reinstates land grant that was repealed in Wisconsin) ch. 113, P&L 1871. 1872 Ch. 83 P&L 176 St. Croix & Lake Superior Railroad Repeals charter in ch. 74 of 1854 for this railroad. 1872 Ch. 89 P&L 181 St. Croix & Lake Superior Railroad Revokes land grant in ch. 175 of 1865 above
1872 Ch. 98 P&L 192 Wisconsin Railroad Land Named successor to lands granted to L&M Mortgage Co. Railroad. 1873 Ch. 31 Gen’l. 33 West Wisconsin Ry. (former Relay the tracks Warrens Mill to Tomah or Tomah & Lake St. Croix) lose grant from ch. 243 of P&L laws of 1863; references earlier construction from Warren’s Mill to Camp Douglas to Elroy.
1873 Ch. 176 Gen’l. 406 Milwaukee & St. Paul Railroad Conferred NW grant – Lake St. Croix to Bayfield & Superior under grants of 1856 & 1864. Forfeited by failure to meet conditions.
173 State Law History of the Northwest Grant
Portage - Tomah – Hudson – Superior & Bayfield 1874 Ch. 126 Gen’l. 186 No. Wisc. Ry (later Chicago, Conferred NW grant – Lake St. Croix to St. Paul, Minneapolis & Bayfield under grants of 1856 & 1864. Omaha Railway Company or “Omaha Road”) 1874 Ch. 126 Gen’l. 186 No. Wisconsin Ry. (Omaha Conferred NW grant – Lake St. Croix to Road) & Chicago & Northern Superior under grants of 1856 & 1864. Pacific Air Line Ry.
1877 Ch. 218, Session 474 No. Wisconsin Ry. (Omaha Extend time to meet 20-mile laws Road) construction requirement by 1 year.
1878 Ch. 213, Session 425 No. Wisconsin Ry. (Omaha Extend time to meet 20-mile laws Road) construction requirement by 1 year.
1878 Ch. 229, Session 442 Chicago & Northern Pacific Air Extend time to construct by 3 years. laws Line Ry. 1882 Ch. 10, Session laws 11 Chicago & Northern Pacific Air Revokes 1874 grant and confers grant Line Ry. (later the Chicago, to Omaha Road Portage, & Superior) 1883 Ch. 29, Session laws 19 Omaha Road Confirms 1882 grant to Omaha Road and revocation of Air Line grant
174 State Law History of the Central Route Grant
Central Route under 1864 Grant Year State Law Page # Railroad Comments 1866 Ch. 314 P&L 730 Winnebago & Lake Charters railroad & confers 1864 grant. Route: Superior Doty’s Island-Waupaca-Stevens Pt.-Bayfield- Superior. 1866 Ch. 362 P&L 869 Portage & Superior Charters railroad & confers 1864 grant. Calls for route through Ripon if Congress assents to change in terms of grant. Portage-Ripon-Berlin- Stevens Pt.-Bayfield-Superior. Congress agrees in Res. 53, 14 Stat. 360 (June 21, 1866)].
1869 Ch. 257 P&L 578 Portage, Winnebago & Consolidates Winnebago & Lake Superior and Superior Portage & Superior. 1871 Ch. 27 P&L 42 Wisconsin Central Changes name from Portage, Winnebago & Superior to WC. 1875 Ch. 6, General 12 Wisconsin Central Changes route to drop Ripon and Berlin. Congress assents [Ch. 176, 18 Stat. 511 (Mar. 3, 1875)]. Congress extends time to end of 1876 for Wisconsin Central to complete third route. Ch. 82, 18 Stat. 28 (Mar. 3, 1875). All but 10 miles between Butternut Creek & Chippewa Crossing were completed by that date.
175 State Law History of the Northeast Grant
Northeast Route Year State Law Page # Railroad Comments 1856 Ch. 137 239 Wisconsin & Superior Charters Wisconsin & Superior & General confers northeast grant.
1857 Ch. 17 P&L 25 Chicago, St. Paul & Consolidates with Wisconsin & Fond du Lac Railroad Superior & transfers grant
1862 Ch. 34 P&L 36 Chicago & Chicago, St. Paul & Fond du Lac Northwestern (CNW) Railroad & Consolidates with Wisconsin & Superior & implicitly transfers grant.
A 1862 Joint Resolution authorizes shift in the 1856 Northeast route between ranges 16-23 east of the 4th principal meridian. [Res. 80, 12 Stat. 618 (April 25, 1862)].
176 Key Resources & Suggested Reading
1. Sanborn, John Bell. Congressional grants of land in aid of railways, Bulletin of the University of Wisconsin, (Economies, Political Science, and History Series, vol. 2, no. 3, pp. 263-392.) August 1899. 2. Greiner, Gordon Oswald., Wisconsin national railroad land grants, Thesis (M.S.)--University of Wisconsin--Madison, 1935. 3. Railroad maps at State Historical Society: http://www.wisconsinhistory.org/libraryarchives/maps/search.asp (Click on “Type of Map”, choose “railroad map”. 4. Wisconsin Railroad Timeline at http://riptrack.net/wisconsin created by Sean Lamb, a Wisconsin-based railroad fan.
177 Key Resources & Suggested Reading
5. Kaysen, James P. The Railroads of Wisconsin, 1827-1937. (Boston: The Railway and Locomotive Historical Society, 1937). Online facsimile at http://www.wisconsinhistory.org/turningpoints/search.asp?id=63 6. First Annual Report of the Railroad Commissioners of Wisconsin, 1874, Madison, Wisconsin http://books.google.com/books?id=AGgaAQAAIAAJ&pg=PP4#v=onepage &q&f=false 7. Haney, Lewis Henry, A Congressional History of Railways in the United States, 1850-1887, Bulletin of the University of Wisconsin, , (Economies, Political Science, and History Series, vol. 6, no. 1, pp. 1-336.) January 1910. 8. Hunt, Robert S., Law and Locomotives: The Impact of the Railroad in Wisconsin Law in the Nineteenth Century (June 1958)
178 Key Resources & Suggested Reading
9. Gates, Paul W. History of Public Land Law Development, United States. Public Land Law Review Commission (1968). 10. Donaldson, Thomas. The public domain: its history, with statistics, United States. Public Lands Commission (1903-1905). Excellent statistical compilation, but be careful to note which edition. 11. Ranney, Joseph A., Imperia in Imperiis: Law and Railroads in Wisconsin, 1847-1910, Wisconsin Lawyer Magazine. 12. Merk, Frederick Economic history of Wisconsin during the Civil War decade, Madison, The Society, 1916. Publications of the State Historical Society of Wisconsin.
179 Key Resources & Suggested Reading
13. Bernd, John Muth, The La Crosse and Milwaukee railroad land grant, 1856, Wisconsin Magazine Of History. Volume: 30 /Issue: 2 (1946-1947) 14. Cronon, William, Nature's Metropolis: Chicago and the Great West, W. W. Norton & Company (1992) 15. Railroad maps at Library of Congress: http://memory.loc.gov/ammem/gmdhtml/rrhtml/rrhome.html
180 Contemporary Commentary
181 General Historical Sources Cited by Appellant in Kees
See e.g., Jan M. Long, The Footprints of a Wisconsin Lumber Executive, 98-99 (Jan M. Long 2001); (specifically referring to William Wilson’s use of Ch. 331 § 9 to convey franchise rights from one company to another); Malcolm Rusholt Lumbermen on the Chippewa 233 (Malcolm Rosholt, 1982) (documenting principal of one company carrying rights over to another company by virtue of Ch. 331 § 9); Frederick Merk Economic History of Wisconsin During the Civil War Decade 93 (State Historical Society of Wisconsin, 1916) (verifying the purpose and broad application of Ch. 331 § 9).
182 Contemporary Commentary
1. Federal Railroad Rights of Way, Congressional Research Service Report for Congress, Updated May 3, 2006. Pamela Baldwin & Aaron M. Flynn, Legislative Attorneys, American Law Division. CRS is part of The Library of Congress. 2. Top Lawsuits Impacting the Title Industry, by ALTA Title Counsel Committee, TitleNews, May 2010 - Volume 89, Number 5 at page 10. 3. Roberts, Darwin P. The legal history of federally granted railroad rights- of-way and the myth of congress's “1871 shift”, University of Colorado Law Review, Winter 2011 4. Wright, Danaya C. The Shifting Sands of Property Rights, Federal Railroad Grants, and Economic History, 38 Envtl. L. 711, 716
183 Wikileaks!
• This CRS report was obtained by Wikileaks from the United States Congressional Research Service. • The CRS is a Congressional "think tank" with a staff of around 700. Reports are commissioned by members of Congress on topics relevant to current political events. Despite CRS costs to the tax payer of over $100M a year, its electronic archives are, as a matter of policy, not made available to the public. • Individual members of Congress will release specific CRS reports if they believe it to assist them politically, but CRS archives as a whole are firewalled from public access. • This report was obtained by Wikileaks staff from CRS computers accessible only from Congressional offices.
184 Disclaimer
The views expressed are solely my own and not the official position of the Office of the Commissioner of Railroads or the state of Wisconsin generally.
185
Douglas S. Wood Legal Counsel Office of the Commissioner of Railroads 608-266-9536 [email protected] http://ocr.wi.gov/
186 A Successful Claim Under the 1852 Act
i. A railroad chartered by 1867. ii. The line authorized by the state legislature by 1867 iii. The line is “begun” by 1867 iv. The line is completed by 1882 v. There must be corporate succession between the chartered railroad and the railroad that constructed the line; vi. Abandonment of the rail line before 1988; vii. Abandonment causes ownership to revert to the US
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