ACQUIRING ABANDONED RAILROAD RIGHT-OF-WAY PRIVATE USE
Generally speaking, railroad companies have acquired title to their right-of-way (ROW) in one of several ways:
(I) TITLE BY FEE SIMPLE ABSOLUTE. Fee Simple Absolute or Warranty Deed mean, in simple terms, that the railroad acquired
the land outright or received it through a federal land grant and has complete rights to the property.
(ii) TITLE BY FEE SIMPLE DETERMINABLE. Fee Simple Determinable is similar to an easement in that there are conditions
and restrictions on the use of the property. For example, a seller may include conditions and restrictive terms in the deed
which allows the railroad to hold title to the property “only so long as the property is used for ‘rail operations’ or ‘rail purposes’.”
If the railroad does not use the property as set out in the deed, then the property reverts to the seller, the seller’s
heirs, successors or assignees.
(iii) EASEMENT / EMINENT DOMAIN. An Easement provides for a specific and limited use of property which is owned by another. When the property is no longer used for the specific purpose set forth in the easement document it reverts to the owner. Title to the property acquired under the power of Eminent Domain is considered to be only an Easement.
Parties interested in acquiring abandoned railroad ROW should notify the railroad company’s real estate department in writing, enclosing a legal description of the property, as soon as possible after the abandonment proceeding have been started. The prospective buyer should obtain a title opinion to determine the quality of title held by the railroad
company and if the title is transferable before negotiations have reached the point of commitment. Because of the complexities involved in this process, it is advisable to get the help of an attorney or real estate
In some instances, it may be advisable for parties interested in acquiring abandoned railroad ROW to form a group and purchase the ROW in one block and make their own divisions afterwards. Approaching the railroad company as a group might mean a reduction in the price of the property because the cost and expenditure of time is greater when
dealing with each individual buyer than when dealing with a group.
Again, it is advisable to have the professional help of an attorney because this method requires a great deal of cooperation and some special legal preparations.
Although interested parties can direct their inquiries to the railroad company regarding the purchase of abandoned railroad ROW any time after the abandonment proceeding have begun, no sale can be consummated until after the abandonment becomes effective. Negotiation for abandoned railroad ROW are carried on in the same manner as between any private parties or businesses. Neither the state nor the STB can act as intermediary in these negotiations.
The STB may, in accordance with 49 CFR 1152.28, defer the sale of abandoned railroad right of way by the railroad company for up to 180 days from the effective date of the abandonment if the rail properties are suitable for use for other public purposes. The STB reserves to itself the right to determine the definition of public use. Game preserves, hiking and biking trails, utility lines and erosion control barriers are some of the uses that have been identified in the past as suitable public uses.
Parties seeking a PUBLIC USE condition in an abandonment proceeding must file a written request for public use condition with the STB no later than 45 days after the application is filed. The written request must contain the following information:
(i) The condition sought;
(ii) The public importance of the condition;
(iii) The period of time for which the condition would be effective (up to the statutory maximum of 180 days); and
(iv) The justification for STB to impose the time period requested.
A copy of the written request must also be sent to the railroad company. A decision on the public use request will be issued prior to the effective date of the abandonment. The decision does not force the railroad company to accept an offer to purchase for public use...it only prescribes the time period, up to 180 days, during which negotiations may progress. If at the end of that time period no agreement has been reached, then the railroad company is free to accept any other offer.
INTERIM TRAIL USE AND RAIL BANKING
The STB may, in accordance with 49 CFR 1152.29 and 16 USC 1247 (d) (the National Trails Act), defer the abandonment to give interested parties the opportunity to negotiate a voluntary agreement with the railroad company for interim use of the right-of-way (ROW) for recreational trails. Trails use is subject to future restoration and reconstruction of the right-of-way for rail purposes should rail service ever be reinstated.
Parties interested in acquiring or using the railroad’s ROW for interim trail use and rail banking pursuant to 49 CFR 1152.29 and 16 USC 1247 (d) must, within the 45 day comment period, submit a written request or petition to the STB with a copy to the railroad, indicating their desire to use the ROW for trail purposes. The request or petition must include:
(i) A map, along with an accurate description (including mileposts), depicting the ROW or portion thereof which is proposed to be acquired or used for trail purposes,
(ii) A statement indicating the user’s willingness to assume full responsibility for:
• managing the right-of-way;
• any legal liability arising out of the use of the ROW, or if immune, indemnify the railroad against any potential liability; and
• the payment of any and all taxes assessed against the ROW.
(iii) An acknowledgment that interim trail use is subject to the user continuing its responsibilities described in (ii) above and subject to possible future reconstruction and reactivation of the ROW for rail service.
The interim trail use statement must be in the following form:
Statement of Willingness to Assume Financial Responsibility
In order to establish interim trail use and rail banking under 16 U.S.C. 1247 (d) and 49 CFR 1152.29, (Name of Interim Trail
User) is willing to assume full responsibility for management of, for any legal liability arising out of the transfer or use of
(unless user is immune from liability, in which case it need only indemnify the railroad against any potential liability), and for the payment of any and all taxes that may be levied or assessed against the right-of-way owned by (Name of Railroad) and operated by (Name of Railroad . The property, known as Name of Branch Line) , extends from railroad milepost
_______ near (Station Name) , to railroad milepost ______ near (Station Name) , a distance of ______ miles in (Name of County(ies) and State(s) . The right-of-way is part of a line of railroad proposed for abandonment in Docket No. STB AB-
___ (Sub No. ____).
A map of the property depicting the right-of-way is attached. (Name of Interim Trail User) acknowledges that use of the
right-of-way is subject to user’s continuing to meet its responsibilities described above and subject to possible future reconstruction and reactivation of the right-of-way for rail service. A copy of this statement is being served on the railroad(s) on the same date it is being served on the Board.
Under regular abandonment proceedings the STB will, provided abandonment would have been permitted and the railroad agreed to negotiate an interim trail use / rail banking agreement, issue a Certificate of Interim Trail Use or Abandonment (CITU) to the railroad and the interim trail user. Thirty days after the CITU is issued the railroad is permitted to discontinue service, cancel any applicable tariffs, and salvage track and materials consistent with interim trail use and rail banking conditions.
If no interim trail use / rail banking agreement is reached within 180 days from the date the CITU is issued, the railroad will be permitted to fully abandon the line. If the abandonment is being sought under Exempt Proceedings, then a
petition containing the interim trail use statement must be filed concurrently with the STB and the Railroad within 10 days after the Notice of Exemption (or within 20 days after the Petition For Exemption) is published in the Federal Register. If rail service does not continue and the railroad agrees to negotiate an interim trail use / rail banking agreement, the STB will issue a Notice of Interim Trail Use or Abandonment (NITU) to the railroad and the interim trail user. As with the CITU, the NITU permits the railroad to discontinue service, cancel any applicable tariffs, and salvage track and materials consistent with interim trail use and rail banking conditions thirty days after the NITU is issued. If no interim trail use / rail banking agreement is reached within 180 days from the date the NITU is issued, the railroad will be permitted to fully abandon the line.