That is a good question.

An article from the Foundation for Economic Education stated that the” basic property-law principle is clear at least to some courts involved in rail-trail cases. When a landowner has land taken by the government for a railroad easement and it later is abandoned, the landowner (or more typically his or her successors) again owns the land outright. In property-law parlance, an easement across someone’s property, once abandoned, is extinguished, or ceases to exist. The reason is that easements are messy and thus somewhat disfavored in the law, and in any case, an easement is a right of use only, not a right of possession. ” This position from the FEE organization was at least in part based on a relatively recent ruling from the United States Supreme Court decision from September, 2013 that was summarized in an article from the Anderson & Kreiger law firm in which it was stated that “the railroad’s right of way was an easement and that the railroad’s abandonment terminated the easement.”

In fact, there are ongoing current property rights cases in the country and also close to home with a recent case in Western Massachusetts in the Town of Williamsburg where abandonment of the rail bed meant that the property reverted back to the landowner from whom the railroad took it in the first place. Property rights advocates regard this transformation of abandoned railroads as theft, because the properties were often originally taken by eminent domain or the railroads were granted easements. Unless you can prove that a fee was paid for ownership of the land called “fee simple estate” the land likely has an easement for the railroad and the railroad only. A “right of way” as listed on most deeds means the use is for a railroad easement only. In the Western Massachusetts case, the Massachusetts Supreme Judicial Court ruled in favor of the landowner Linda Rowley but only after she spent approximately $300,000 on legal fees. The court not only ruled that the land was hers but also that the Town of Williamsburg had to pay all her legal fees. The bottom line is that although the railroad has the easement it is not their legal decision to change the use into anything else including into a trail.

 

An organization called the National Association of Reversionary Property Owners (NARPO) have joined together to educate all landowners in the United Staes about the true ownershipof railroad, utility, road and other governmental types of Rights-Of-Way (ROW).  They advocate that most users of ROWs (e.g., railroads and utilities) do not own the underlying land that the right-of-way is on; they only have an easement for a specific purpose. When this specific use is extinguished (railroad abandoned, road closed, utility moved to another location, sewer line not now needed), the land reverts back to the then existing abutting or adjacent property owner, free of encumbrance or easement. This is a well established constitutional and statutory precedence in all the states of the Union. Click here for additional resources to learn more about the legal basis for terminating easement rights.
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