Rails to Trails. Or Is It the Other Way Around?

Buried somwhere in our consciousness we always had an idea that this was going to happen, and now it appears that it is happening. You may recall how a while back, local do-gooders glommed on to the idea that abandoned railroad rights-of-way should be converted into hiking an biking trails. But there was a problem. Historically, rights-of-way are easements, and American property law clearly holds that when an easement is abandoned by its user (known in the law as the dominant tenant) the area covered by it reverts unencumbered to the owner of the land underlying the easement (known as the servient tenant). So when local goverment entities purporterd to establish their rails-to-trails paths, the servient owners objected, being as under the law they now owned the whole shebang, and as far as they were concerned the would-be trail users were trespassers.

State courts generally sided with that view, and the U.S. Supreme Court held in Preseault v. I.C.C. that, while it would not declare the rails-to-trails legislation unconstitutional as an act of inverse condemnation, the servient tenants would be within their rights to sue in the U.S. Court of Federal Claims for just compensation, being as the rails-to-trails legislation effected a taking of the servient owners’ right to reversion of the easement area upon the discontinuation of railway use. No sooner said than done, and eventually the U.S. Court of Federal Claims held awarded compensation to the servient tenants.

So the rails-to-trails legislation was amended to say that though trains would no longer be running on those rights of way (which would be difficult, being as rails and ties once used by the railroads were removed) they weren’t reallly abandoned because — who knows? — maybe some day someone may want to reactivate railroads. Which, under the name of “rail banking”¬†was a sneaky way of depriving the servient tenants of their rights in the now unused railway rights-of-way

So guess what? Over in Pennsylvania some folks are now actually demanding that some of those trails be converted back to railroad use, being as we are now into energy conservation and trains use a lot less energy per pasenger than cars. At the moment, these things are in their preliminary design states, and it will likely take years (and hundreds of millions of dollars) to get those trains running again. We also have a hunch that there is going to be some NIMBY opposition, but, hey men, these days that’s par for the course.

You can find the story in the Philadelphia Enquirer on line edition (Philly.com), in a story by Paul Nussbaum, entitled How to Use Old Bethlehem Rail Line?, January 29, 2010.