She’s Not Coming Around the Mountain No More - Abandoned Railroad Lines

What happens to abandoned railroad land? After a railroad abandons a line and pulls up its ties and rails, it is not uncommon for neighbors to resort to land-grab tactics. Those neighbors may think that the first to assert a claim to the land gets to keep it, but that is usually not the case. Unfortunately, the laws that granted the land to railroad companies are archaic, antiquated, and rarely reviewed in most court systems. Accordingly, those who may be entitled to rightful ownership of the land often do not know about it. If your property sits next to an abandoned tract of railroad land, here are some things to know:

The Pacific Railroad Acts

Following the expansion of the United States’ Western territory during the period of Louisiana Purchase in 1803 through the Gadsden Purchase in 1853 America looked to tame the Western lands of what today constitutes the contiguous United States. Marvin M. Brandt Revocable Trust v. U.S., 572 U.S. 93, 95. The United States needed a fast and reliable way to transport people to the frontier lands, and the invention of the railroad provided the answer. Id. The benefits a transcontinental railroad could bring were clear, but building it was no simple matter. Id. Public sentiment grew for the Government to support the massive project. Id. However, due to the constraints of funds caused by the Civil War, Congress had to get creative to see the project through. Id. While cash was limited, the Country did have substantial land which it could give away in swaths in hopes that such grants would increase the appeal of the railroad to private investors. Id.

In the early 1860s, Congress began granting railroad companies rights of way through the public domain, accompanied by outright grants of land along those rights of way. Id. at pp. 96-97. The railroads could either develop the lots or sell them to finance the construction of rail lines and encourage Western settlement. Id. at p. 97. This process was achieved through the passing of “An Act to Aid in the Construction of a Railroad and Telegraph Line from the Missouri River to the Pacific Ocean, and to Secure to the Government the Use of the Same for Postal, Military, and Other Purposes” in 1864 (hereinafter the “1864 Act”). See H.R. 216, 38th Cong. (1st Sess. 1864), attached hereto at Exhibit 9,

Section 3 of the 1864 Act empowered Union Pacific to “enter upon, purchase, take, and hold any lands or premises that may be necessary and proper for the construction and working of said road, not exceeding in width one hundred feet on each side of its centre line . . . .” Id. at § 3. In addition to granting Union Pacific the rights to public lands, the 1864 Act also granted Union Pacific with the government’s eminent domain and condemnation power to enter onto privately held land and construct the transcontinental railroad for use as public highway across the West. Id. After construction of the railroad was complete, the railroad was required to pay damages to the landowner in an agreeable amount or, if Union Pacific and the landowner “cannot agree as to the damages, the amount shall be determined by the appraisal of three disinterested commissioners, who may be appointed upon application by any party to any judge of a court of record in any of the territories in which the lands or premises to be taken lie.” Id.

By the 1870’s the railroad companies obtained title to huge strips of land in what the public deemed a windfall, causing public resentment to grow against the government’s arrangement with the railroads. Marvin M. Brandt, 572 U.S. at 97. By the 1870s, legislators across the political spectrum had embraced a policy of reserving lands for settlers rather than granting them to railroads. Id.  This resulted in the passing of several acts to scale back the land grants available to railroads. Id. at p. 98. The fifteen acts passed between 1871 and 1875 still encouraged construction of the railroad by granting to designated railroads “‘the right of way’ through public lands, without any accompanying land subsidy.” Id. And the railroad’s conferred eminent domain and condemnation powers remained intact, though that power was more restrained in scope. Great Northern R. Co. v. U.S., 315 U.S. 262, 274 (1942).

Rights Granted to Railroads Through the Acts

In the years following the passing of the Pacific Railroad Acts, several railroad companies proved unviable, causing them to go out of business and abandoning or selling their lines. Id. at p. 100. The non-use or abandonment of these lines resulted in a string of lawsuits seeking a ruling regarding who had rights to the land underlying the railway. See, e.g., N. Pac. Ry. Co. v. Townsend, 190 U.S. 267 (1963); Rio Grande Western Ry. Co. v. Stringham, 239 U.S. 44 (1915); Great Norther R. Co. v. U.S., 315 U.S. 262 (1942); Marvin M. Brandt Revocable Trust v. U.S., 572 U.S. 93 (2014); Wyo. v. Udall, 379 F.2d 635 (10th Cir. 1967); Weiser v. Union Pacific R.R. Co., 247 P.3d 357 (Utah 2010).

Through these cases, the Supreme Court of the United States had oft occasion to consider the scope of the land grants and eminent domain powers assigned to railroads through Congressional acts between 1864 through 1875. The Court determined that 1871was the pivotal year. Udall, 379 F.2d at 638. In Townsend, the Court considered a pre-1871 right-of-way grant. 190 U.S. at 271. The Court in that case said that the pre-1871 grant “was of a limited fee, made on an implied condition of reverter.” Id. The Court affirmed in Marvin M. Brandt that these pre-1871 “limited fees” provided railroads with not only surface rights, but also the mineral rights beneath their lines. 572 U.S. at 102. However, if a railroad grant was obtained after 1871, the Court affirmed that the Acts provided the railroads with nothing more than an easement over property. Id. at 104-05 (noting the conclusion in Great Northern that, in the period after 1871, “only an easement for railroad purposes was granted”).

What is clear from these landmark decisions is that, regardless of the year the right-of-way was granted, the railroad was never granted anything more than a “limited fee” in the lands over which their lines ran. And if a limited fee, the railroad’s right-of-way was subject to “an implied condition of reverter.” Townsend, 190 U.S. at 271. Moreover, if the railroad right-of-way was a mere deeded easement, the easement could be terminated upon the recording of a quit-claim deed to the servient property’s owner, or through cessation of the railroad. Gillmor v. Macey, 2005 UT App 351, ¶ 8, 121 P.3d 57; see also Wykoff v. Barton, 646 P.2d 756, 758 (Utah 1982) (holding that “a right-of-way founded on a deed or grant is limited to the uses and extent fixed by the instrument”).

What This Means

Once a railroad ceases operations over a line, the land should revert to the original landowner or their successors in interest. However, just because a railroad ceases operations doesn’t mean that the underlying landowner is entitled to immediate ownership and use of the land. It gets complicated. If you own property next to an abandoned line and think you may have ownership rights, call us to discuss how to assert or preserve those property rights.