The Supreme Court vs Bike Paths

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Henry Vilas
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The Supreme Court vs Bike Paths

Postby Henry Vilas » Mon Mar 10, 2014 5:35 pm

In an eight-to-one decision, the U.S. Supreme Court ruled that bike paths on old railroad tracks could be torn up because easement no longer applies and original property owners can get their land back. Breyer said something wacky about bicyclists peddaling right through a house. Maybe he fell off his one time too many.

Does anyone know if this applies to local bike paths? It might only apply to former federal land in Western states.

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Re: The Supreme Court vs Bike Paths

Postby Sandi » Mon Mar 10, 2014 8:04 pm

Henry Villas wrote:Does anyone know if this applies to local bike paths? It might only apply to former federal land in Western states.


My guess is that it doesn't matter what states, only that it would apply when the easement was on formerly federal land. Other public land, state or local would maybe depend on state easement laws.

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Re: The Supreme Court vs Bike Paths

Postby Henry Vilas » Tue Mar 11, 2014 8:24 am

What are now Western states were federal territories when the railroads expanded. That is why I phrased my post the way I did. Wisconsin was already a state when rail right of ways were granted. Again, does anyone know if private property owners have possession rights to the bike paths in our area that are on former railroad beds?

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Re: The Supreme Court vs Bike Paths

Postby snoqueen » Tue Mar 11, 2014 9:21 am

The bike paths in Madison are indeed mostly on old rail rights-of-way -- so old, in fact, that many of them ran through farmland or even prairie when they were built. I can't see how people who bought lots when that farmland was subdivided would have any claim on the rail property. Their lot descriptions, in surveyors' language, would run up to the rail land but not into or through it.

I'll wait for a real estate lawyer to weigh in here, but that's my common sense take. The Chicago Northwestern line, for example, is the one that now goes north along Sherman Avenue. Its construction was commenced in 1859 according to this link:

http://www.watertownhistory.org/Article ... estern.htm

I didnt find a document saying when the Madison portion was built, but recall that the era of rail, built to transport agricultural and forest products shortly after white settlement, mostly predates the Civil War. Few pieces of real estate in Madison have borders that are intact and have been privately owned since that era.

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Re: The Supreme Court vs Bike Paths

Postby Henry Vilas » Tue Mar 11, 2014 9:26 am

What about bike paths just outside the city? Some are on railbeds abutting farm land that could be family owned for many generations. What side of any dispute to do think our present Wisconsin Supreme Court would favor?

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Re: The Supreme Court vs Bike Paths

Postby snoqueen » Tue Mar 11, 2014 9:47 am

If there are any family farms that stayed in the same family since approximately before the Civil War, they could make a case. Even century farms are a rarity, but who knows.

The state recognizes approximately 7400 century farms at this time, which really isn't a lot:

http://www.wisconsinhistory.org/hp/barn ... ations.asp

The dates at which the state sold off territory in various parts of Wisconsin differ widely, with the southern and eastern parts of the state generally going much earlier than up north. With that narrow a category of properties in question, someone who wanted to test this hypothesis could find out relatively soon whether there was anything to it:

Private land owed by inheritance since original purchase? Adjacent to rail right of way? Original landowner predates this part of the railroad?

Pretty small group. Possibly some industrial or forest land in same category? Interesting historical questions.

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Re: The Supreme Court vs Bike Paths

Postby Henry Vilas » Tue Mar 11, 2014 9:56 am

Even if a farm is sold, wouldn't the former owner's property rights come with the deed?

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Re: The Supreme Court vs Bike Paths

Postby Henry Vilas » Tue Mar 11, 2014 12:53 pm

As the former executive direction of the Wisconsin Bicycle Federation, maybe Dave Cieslewicz could weigh in on this on his Isthmus blog.

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Re: The Supreme Court vs Bike Paths

Postby MPMay » Wed Mar 12, 2014 6:47 pm

Here is a link to the opinion:

http://www.supremecourt.gov/opinions/13 ... 3_nlio.pdf

I have not studied it, but at first glance it appears to be based on the fact that the RR's right of use arose when the land was owned by the federal government, which later sold the surrounding land to a third party. The question was whether the RR's right was a mere easement or something more permanent. The general rule is that if you only have an easement for a specific purpose, and the easement is extinguished, the land reverts to the abutting landowners. (Although not perfectly analagous, the same thing would happen under state law if the City of Madison were, say, to abandon State Street as a street. The land would revert to the abutting owners. Well, actually, now that I think about it, State Street may be a bad example due to federal money and the transit purposes, but you get the drift).

Some folks at least are arguing this doesn't threaten many trails outside the western US, because most of them did not originate as rail property rights from the federal government, but rather from the State governments, or through purchase or condemnation from private owners.

Since I haven't studied the opinion, you may take my instant analysis at cost.

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Re: The Supreme Court vs Bike Paths

Postby snoqueen » Wed Mar 12, 2014 7:35 pm

OK, I read it. I would like to know what if:

-- supposing the land under the Madison bike paths was indeed an easement granted to the railroads, who later abandoned it,

-- but none of the adjacent property owners attempted to exert their claims on the easement either legally or simply by building a garage on it (or whatever),

-- and the city later set up the bike paths on those same easements,

-- does the easement then come back into existence?

After all, in this SC court case somebody (the Marvin Brandt Revocable Trust) attempted to exert claim on the easement in question once the railroad abandoned the part that once crossed the Brandt property. If nobody in Madison took actions similar to those taken by the Brandt people, is anything standing in the way of reinstating the former rail easement in the form of a bike path easement?

And when the railroads in Madison abandoned their rights-of-way, was anything said about to whom those rights went? Did they sign them over to the city? Or did they simply do nothing?

I remember when the rail corridors were abandoned, the city council spent quite a long time debating what should be done. A few people thought the adjacent landowners should get rights to pieces of the corridors, but a far-thinking alder from the near west side (a woman, I can't remember her name, she's since died) said these rights of way are valuable because to put such pathways together again once they are lost would be enormously expensive. The city should therefore keep them intact. Her view prevailed in the council. Apparently the belief was that the rights to the rail corridors somehow reverted to the city itself, though I don't know on what grounds.

The rights of way waited unused for some years before the idea of city bike paths came along, but I don't remember anybody complaining when the bike paths were cleared and paved along the old rail routes. I also don't remember any discussion of whether the rail corridors were easements or were something else.

Somehow this doesn't seem like the same situation the SC had before it in the Brandt case. There's no mention of any third usage of the Brandt R.O.W. story. Maybe there was a third usage but the court didn't consider it relevant.

I bet Paul Soglin would remember more about the Madison railroad/bike path transition (and have more meaningful comments) if anyone's in a position to ask him. Possibly he was either an alder or in his first mayoral term when some of this went down.

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Re: The Supreme Court vs Bike Paths

Postby Igor » Wed Mar 12, 2014 9:55 pm

snoqueen wrote:The rights of way waited unused for some years before the idea of city bike paths came along, but I don't remember anybody complaining when the bike paths were cleared and paved along the old rail routes. I also don't remember any discussion of whether the rail corridors were easements or were something else.


I think the (extremely lively) discussion will occur when (inevitably) it is proposed that they be converted back to rail lines.

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Re: The Supreme Court vs Bike Paths

Postby MPMay » Sun Mar 23, 2014 10:26 pm

Unless something changes, the City (maybe I should say the City Attorney!) does not plan to take any action on this. We think most of our trails fall outside the decision. More practically, we don't intend to do anything unless somebody thinks they have a right to claim the trail.

While the property rights on a lot of this land is complex, most of the rail lines in Wisconsin are outside of the Supreme Court decision. In a vast majority of cases, the State owns the right of way. We expect the State DOT to be looking at this with much more vigor than the City will be required to do, at least for now.

So I am sorry snoqueen, but I am dodging all your questions for the time being because I consider them all hypothetical. You know, the old "case and controversy" rule. :thumbup:

We will deal with them when and if we have to; in the meantime, I think the State as the owner of most of these corridors has to think about this a lot more than the City does.

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Re: The Supreme Court vs Bike Paths

Postby snoqueen » Sun Mar 23, 2014 11:00 pm

Ah, I see. It 's not an issue until somebody goes and makes it an issue, in other words.

Good enough for me.


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