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News Brief - December 2002:

Government must pay $410,000


Land underlying abandoned Missouri railroad reverted to property owners


Once again, landowners have won their case in court against a government agency that claimed to own land that was once a right-of-way for a railroad.

In November, the federal government was ordered to pay $410,000 to thirteen Missouri property owners whose land was used to build a trail along the abandoned Missouri-Kansas-Texas Railroad corridor. Awards to landowners along this trail could grow to $10 million, according to Gary Heldt, a spokesman for the landowners, because an additional 285 landowners along the trail have filed claims. Katy Trail, a 225-mile hiking and biking path from St. Charles to Clinton, is operated by the state, but the federal government is responsible for the awards because the trail was build under federal guidelines, Mr. Heldt said, according to Associated Press.

This scenario has a ring of familiarity. In cases elsewhere across the country, the railroads have usually owned only partial title, for railroad purposes only. In typical situations, because the railroad's predecessors in title had not acquired title to the underlying land, the succeeding generations of owners of the railroad right-of-way had no right to deed full title to the land to the government agency. Because the government agency built the trail, it was guilty of executing an uncompensated "taking" of the property of the underlying landowners and just compensation under Article 5 of the U.S. Constitution is required.

The amount of the compensation in Missouri was settled in federal court after an earlier ruling in a different federal court system that, because the railroad easements that were no longer used for railroad purposes, the land reverted to underlying landowners under Missouri law.

Unless reforms are accomplished under legislation that has been pending in Congress for several years, landowners will have to continue to pursue compensation for federal takings by taking a two-step process, first prove in one court that their property was taken, then go on to the next court to establish the amount of compensation. This deficiency in the structure of the federal court system discourages property owners from seeking just compensation for takings of their property.

Regrettably, many landowners along unconstitutionally taken trailways are unaware of their right to just compensation, and do not pursue legal remedies. The lavish funding under the successive versions of the federal Intermodal Surface Transportation and Efficiency Act for the "rails to trails" program, which is proceeding apace across the country, has hit many landowners hard along abandoned railroads. No system of compensation for underlying private property owners of railroad rights-of-way has been required under the appropriations under this law. Furthermore, 1983 amendments to the National Trails Act dictated that railroad easements used for trails under that act would not revert to landowners. The problem remains for the landowner to obtain "takings" compensation.

However, compensation has been ordered in the biggest rails to trails "takings" case so far. The U.S. Court of Claims ordered the United States on May 22, 2002 to pay the Presaults of Burlington, Vermont, a total of $1,446,786.90 for the uncompensated taking of their property. Sixteen years after the government authorized the trail, the Presaults had not yet received one cent of compensation .

Nels Ackerson, the Presaults' Washington attorney, emphasized in his testimony before a Congressional Judiciary Subcommittee on June 20, 2002, that, unlike the long-established process for highway construction and other federal eminent domain procedures, there is no compensation procedure for property owners whose land lies in the path of trails. The resulting litigation causes great expense to property owners and the taxpayers, he testified.

In New York, even where county government working with the State Office of Parks, Recreation and Historic Preservation has lost in court to landowners in one geographic area of the state, the state parks office has failed to inform other municipal jurisdictions of the rights of landowners where trails are sought elsewhere in the state. Typically of the rails to trails program, government agencies fail to notify property owners of their legal rights and ride roughshod over protesting landowners, who do not realize that they are facing a repeated, already litigated problem, where their property rights are already clear.

- Carol W. LaGrasse, December 2002

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