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  1. #1

    Question Easement for Defunct Railroad

    I am researching the rights and disposition of easements once used by a now defunct railroad.

    The railroad company went bankrupt and is now dissolved; a salvage company bought the salvage rights for the railroad infrastructure. The land is owned by private individuals.

    Are railroad easements public or private? Is a private easement transferable when no access is required due to dissolution of the railroad and removal of all rails?

    What rights to the property owners have to prevent trespass?

    Pennsylvania

  2. #2
    Join Date
    Mar 2009
    Posts
    327

    Default Re: Easement for Defunct Railroad

    That depends on the language of the easement and federal law. Current law has adopted what has been termed the “shifting public use” doctrine, a theory recognizing that conceptions of property rights, and the burden imposed upon the owners of the fee underlying the easement cannot be reasonably fixed to what was contemplated at the time of the easement’s formation. If an easement was intended to be used exclusively by the dominant tenement (railroad), in relation to the underlying fee (property owner), then the easement in gross will be found to be apportionable and can be shifted for other uses. If for example, the presence of “its successors and assigns forever,” language is in the easement agreement, it has been held sufficient to sustain a finding of the right to apportionment.

    In my opinion, that means that just because a railroad is now defunct does not mean the easement has expired, but could be shifted for public use. The County or City may claim the easement for public use for a "rail trail" for example.

    You really need to talk to a real estate attorney.

  3. #3
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Easement for Defunct Railroad

    I am researching the rights and disposition of easements once used by a now defunct railroad.
    Well, you certainly have your work cut out for you. First, you will need to find the original grant. In Pennsylvania, it could be as early as the 1840's. It may mention "right of way" but actually be worded so as to convey a fee simple ownership. You will also frequently find reversionary language in the grant if it is indeed an easement. If the defunct railroad was an electric interurban, different types of restrictions may be found. This is a very complicated subject.

    For a good discussion of reversionary rights and a full discussion of the Presault cases, I would recommend that you look here:

    http://home.earthlink.net/~dick156/row.htm

    Good Luck!

  4. #4

    Default Re: Easement for Defunct Railroad

    Thank you for the coments and link.

    Are such land use disputes state or federal jurisdiction?

    Is there a better search tool than google?

  5. #5
    Join Date
    Oct 2007
    Location
    Ohio
    Posts
    2,592

    Default Re: Easement for Defunct Railroad

    Are such land use disputes state or federal jurisdiction?
    There are more than 800 cases on record. They seem to typically be state supreme court, U.S Supreme Court, and Federal Court of Claims cases. Many have been decided at the state level.

    Is there a better search tool than google?
    Not that I know of. If you are researching cases, access to Westlaw or something similar would be very useful.

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