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  1. #1
    Join Date
    May 2008
    Location
    Hallowell, Maine
    Posts
    1

    Default Rights Of The Dominant Estate Of Railroad Easement

    I have a piece of property that abuts an inactive railroad track owned by the State of Maine. Our warranty deed specifically says that the "track" is our eastern boundary. Our deed references a gore of land that was merged with the principal lot after the track was constructed. The gore was created when the railroad track bisected the land of the owner on the other side of track and created the gore. The merged principal lot and gore was transferred down the chain of title after the track was in place with no encumbrances or reference to a railroad easement. When the state bought the railroad, they obtained a 1916 right of way created by the railroad which has a number of unexplained inaccuracies. The right of way map, along with the quit claim deed, was not filed until 1991 when the state bought the property. The right of way is shown on the map as 41 feet relative to our property. According to the quit claim deed, which was confirmed by an ICC decision and an employee of the Surface Transportation Board, the state bought the physical assets only. The railroad retained the right of way. When we needed a building permit to expand towards the railroad track, the town made us get something from the state. This something was a deed release, which relinquished to us the land up to 19 feet from the track, even though our deed said we owned the fee. Later, when we attempted to replace our wood pile with a fence 6 feet from the track, the state filed a complaint against us for nuisance and trespass. The deed release had became the new property boundary. The lower court gave the state summary judgment. We appealed, but the law court affirmed summary judgment. The state has erected a fence 10 inches from our house. We can no longer maintain the wood siding on our house. Their fence cut off access to our propane tank, which we had to relocate at a cost of $600. The question is whether there is some way to negate the deed release. Also, does the state have a right to erect a fence under their "presumed railroad easement?" They have argued that the fence is needed to protect their right of way, which was retained by the railroad. The lower court did grant the state a motion to enforce the lower court judgment, but the motion did not explicitly say that they could erect a fence.

  2. #2
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,338

    Default Re: Rights Of The Dominant Estate Of Railroad Easement

    Sorry to say this, but it sounds like a done deal.

    Not having any of the documents before me, I would guess that you have been a victim of state and/or federal laws which make it easy to take without compensation.

    Sounds like you have lost by summary in trial and appeal. I assume that your attorney has already answered this question for you.

    I suggest that you google "Rails to Trails" where you will find some moral support and legal encouragement.

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