Railroad demise opens up real estate land grab

John Barclay owns land adjoining an unused railroad right ofway. The railroad has removed its tracks. Barclay seeks title by reversion tothe adjacent land previously used by the railroad.

By 1990, the nation’s railway system had shrunk from itspeak of 272,00 miles of track in 1920 to about 141,000 miles, and railroadscontinue abandoning track each year. In response, Congress enacted the NationalTrail Systems Act, which allows the Surface Transportation Board (STB) to issueNotices of Interim Trail Use or Abandonment (NITU) while a railroad negotiateswith a potential recreational trail operator for an abandoned railroad line.

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Barclay filed this lawsuit under the Trails Act for takingland that he claims should revert to him after it was abandoned by therailroad.

But the federal government replied the STB issued a Noticeof Interim Trail Use (NITU) in 1995; Barclay’s lawsuit was filed in 2004, wellbeyond the six-year statute of limitations for challenging continued use of theabandoned track area for recreational trails.

Adjacent landowner Barclay responded that the action under theNITU was not final until a trail-use agreement was executed with a trail-useoperator so his lawsuit is within the six-year statute of limitations.

If you were the judge would you rule landowner Barclay’slawsuit was filed too late?

The judge said yes!

Federal law dictates when railroad line abandonment occurs,the judge began. When the STB issues an NITU to allow the railroad to negotiatewith a recreational trail operator, that prevents abandonment of the railroadtrack while the NITU is in effect, he continued.

The barrier to possible reversion of land to adjoiningowners is the NITU, the judge explained. However, when the STB issued the NITU,that triggered Barclay’s cause of action for his alleged federal takings claim,he emphasized.

Because Barclay failed to bring his lawsuit within thesix-year statute-of-limitations period after the NITU was issued, his lawsuitfor alleged taking of his right to the abandoned railroad track area isdismissed, the judge ruled.

Based on the 2006 U.S. Court of Appeals decision in Barclayv. U.S., 443 Fed.3d 1368.

(For more information on Bob Bruss publications, visit his
Real Estate Center

Copyright 2006 Inman News

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