More than 25,000 miles of unused railroad rights-of-way have been converted to walking and biking trails in the United States, according to figures compiled by the Washington, D.C.-based Rails to Trails Conservancy.

The rails-trails now number around 2,400. They range from less than a mile in length to the 240-mile Katy Trail State Park, which runs along the route Lewis and Clark took up the Missouri River after they left St. Louis on their voyage of discovery in 1804.

What do rails-trails have to do with agriculture? Much of the nation’s historic railway system runs through farms or rangeland – the rights-of-way having been obtained by the granting of easements by the landowners when the railroads were built or through eminent domain condemnation proceedings.

Many new, public rails-trails exist throughout the Midsouth, including within Shelby Farm Park in Memphis, Tenn. (Forrest Laws)

And it may be possible for the landowners, their heirs or subsequent purchasers to be compensated when the old railroad lines are abandoned and converted to recreational uses such as Rails to Trails programs.

Compensation filing

Lindsay Brinton and Meghan Largent, attorneys for the Lewis Rice law firm, outlined the process for filing for compensation for rail conversions during a National Agricultural Law Center webinar on Jan. 17.

“Meghan and I represent landowners all across the country, and we file claims for compensation against the federal government for rail-trail conversions,” said Brinton. “Rails to trails cases involve abandoned railroad corridors that are converted into public linear parks. We will be talking about landowners’ rights in these conversions.”

Brinton displayed a photo of the Legacy Trail, a public park built along the route of an abandoned railroad in Sarasota, Fla. It’s one of many cases they’ve handled involving railroad lines that were no longer being used for trains.

“The railroads have determined they’re too expensive to insure, to maintain, and they have no purpose in interstate commerce,” she said. “And through this program, they're converted into public linear parks. Sometimes the trails look like this – they’re nicely maintained. They may not always look this nice.”

Most of the land for the rail corridors was obtained in the 1800s or early 1900s through the voluntary granting of easements or limited rights by the landowners to the railroads or fee simple ownership; condemnation through the railroad’s eminent domain authority; or prescriptive easement or charter.

“Under most state laws, a railroad can only acquire a limited easement for its purposes when it acquires that right-of-way through condemnation,” said Brinton. “Oftentimes, the railroad had the power of eminent domain through its charter, but they may not have gone through a formal condemnation proceeding. This is akin to adverse possession where we call it prescriptive easement.”

Railroad rights-of-way

From 1910 to 1915 the federal government compiled maps of all the railroad rights-of-way with valuations of the properties. “This is a huge source of information for us,” she said. “It shows how every railroad right-of-way was created. In the lower left hand, you see an excerpt that lists whether it’s by deed, charter or condemnation,” she said.

“Once the railroad right-of-way is created, one railroad can sell to another railroad indefinitely because it’s continuing to be used for railroad purposes. When it is no longer needed for railroad purposes, that easement should be extinguished and landowners should regain their property free of any easements.”

But Congress passed the National Trail Systems Act in 1968 and amended it in 1983 to allow rails trails to be built over abandoned railroad corridors; in effect, pre-empting state laws that said abandoned railroad easements were no longer valid.

Presault vs. ICC, which eventually went to the U.S. Supreme Court, was one of the first tests of the law. In it, the Presault family tried to stop the conversion of an abandoned railroad line on their property in Vermont to a public trail. They lost, but the Supreme Court ruled the family was due compensation under the Fifth Amendment when their property was taken for public use.

“This case continues to be one of the seminal cases in this area,” said Brinton. “A lot of times landowners ask ‘How is this allowed? How is it constitutional?’ This is federal law pre-empting a state law. It’s a lesser form of eminent domain, but this is why landowners have the right to be paid when property is taken by the federal government.”

Abandonment proceedings

When a railroad decides to abandon a rail corridor, it has to apply to the Surface Transportation Board (formerly known as the Interstate Commerce Commission). Once the STB determines the rail line has not been used in at least two years, that it’s too expensive to insure and maintain and no shippers want to use the line, it starts abandonment proceedings.

If an organization such as the Rails to Trails Conservancy is interested in converting the right-of-way to a trail, they write the STB, advising it they want to negotiate with the railroad that owned it. If the railroad agrees, the STB issues an order called a notice of interim trail use (NITU) or abandonment.

“They do not care if there is funding for the trail, if it will be built or how it will be built,” said Largent. “The main focus of the 1983 statute is to allow the federal government to keep jurisdiction over these trail lines.

“The NITU is the most important order in our cases,” she said. “Once a NITU is issued, it lasts for a year, but they can be renewed up to three years. We have yet to see a NITU that has not been extended for good cause.”

The NITU triggers a six-year statute of limitations on claims that can be filed against the federal government for compensation when an easement or taking occurs with the transfer of the rights-of-way from the railroad to the trail sponsor.

No one is required to notify the landowners of the transfer. The courts have ruled that filing a notice in the Federal Register is sufficient notice to anyone who might have an interest in the rights-of-way. Once it’s filed, it starts the six-year statute of limitations/

“These are inverse condemnation claims, meaning that the government doesn’t first reach an agreement, pay the landowner and then convert it,” said Largent. “They authorize the conversion, and it's not until the landowner makes a claim for compensation that they are paid. Interest accrues from the day the NITU was issued until the landowner receives compensation.”

To learn more about rails to trails conversions, visit https://bit.ly/3ukWHMg.