The Feds Take It on the Chin Again on Rails-to-Trails Litigation

You may recall our recent post on the mysterious behavior of the Feds who, having lost a bunch of inverse condemnation cases regarding rails-to-trails legislation, keep on trying and losing. Click here. In a nutshell, a lot of railroad rights of way are easements, so that when the railroads stop operating, the land underlying the easement area reverts to the owner of the underlying fee title free and clear of the easement that has thus been abandoned, and therefore the owner of that land (formerly the owner of the servient estate while the railroad was operating) becomes the fee simple absolute owner of the strip of land in question. So far, so good — that much is first-year law school Property I stuff.
But congress passed a law giving the feds the right to convert these abandoned railroad rights-of-way to hiking and biking trails, which amounts to a taking of the servient owners’ land for which compensation is payable. At this point, we knew we needed to get a lawyer on our case, so we looked around for an Easement Attorney San Diego and surrounding areas, and were fortunate enough to find one on our doorstep. However, the U.S. Supreme Court made it much clearer when in Preseault v. I.C.C. it held that the aggrieved owner’s remedy for such a taking is a suit in inverse condemnation in the U.S. Court of Federal Claims. And so, the [servient] opwners of those abandoned railroad railroad rights of way have been filing these suits and consistently winning, as against the feds’ obdurate resistance.
More recently, the feds tried a new tack. They asked the Indiana courts to rule as a matter of Indiana state law that when a railroad abandons operations, its former right of way nonetheless does not revert to the servient owner, because the feds say that what they mean to accomplish is to establish “rail banking” which is to say that perhaps some day in the future somebody may want to use those abandoned railroad rights of way again for railroad use, so in a manner of speaking the current railroad operations abandonment is not a real abandonment of their easement.
They just got their answer from the Indiana Supreme Court in Howard v. United States, Case No. 94S00-1106-CQ-333, opinion filed March 20, 2012. The answer is “No.” Concluded the court:
“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 shiftung public use.”
So will the feds now stop beating this dead horse? We shall see.

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