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© 2013 Parker Poe Adams & Bernstein LLP
Par
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LPA
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Railroad & Public Road Rights of WayJeff Bandini
Never Assume Anything
What is a railroad right of way?
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A riddle wrapped in an enigma?
Why is railroad right of way special?
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It’s not, except...
Why does railroad right of way cause confusion?
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“Charter” Right of WayElusive RecordsVarying WidthsAbandonment
Raleigh & Gaston’s 1835 Charter
Section 12:
“the land so laid out on the line of the Rail Road shall not exceed . . . eighty feet in
width . . .”
Charter does not state what property interest can be obtained by possessing
land without condemnationCSX owns at least an easement
for railroad purposes no wider than 80 feet
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Elusive Records
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Varying Widths
When does railroad right of way go away?
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When a railroad intends for it to.
Abandonment
Use at your own risk.
N.C.G.S. 1-44.1Any railroad which has removed its tracks
from a right-of-way and has not replaced them in whole or in part within a period of seven (7) years after such removal and which has not made any railroad use of any part of such right-of-way after such removal of tracks for a period of seven (7) years after such removal, shall be presumed to have abandoned the railroad right-of-way.
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Other than a railroad, who can say a railroad right of way has been abandoned?
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A court.
Abandonment
If a railroad has not expressly made clear its intent to abandon, what will a court consider?
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Evidence of any intent of RR
Railroad agreementsRemoval of tracks & facilities
Detrimental reliance
Abandonment
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Who owns land under abandoned easements?§ 1-44.2. Presumptive ownership of abandoned railroad easements.(a) Whenever a railroad abandons a railroad easement, all right, title and interest
in the strip, piece or parcel of land constituting the abandoned easement shall be presumed to be vested in those persons, firms or corporations owning lots or parcels of land adjacent to the abandoned easement, with the presumptive ownership of each adjacent landowner extending to the centerline of the abandoned easement. In cases where the railroad easement adjoins a public road right-of-way, the adjacent property owner's right, title and interest in the abandoned railroad easement shall extend to the nearest edge of the public road right-of-way.
The side boundaries of each parcel so presumptively vested in the adjacent property owner shall be determined by extending the side property lines of the adjacent parcels to the centerline of the abandoned easement, or as the case may be, the nearest edge of the public road right-of-way. In the event the side property lines of two adjacent property owners intersect before they meet the centerline or nearest edge of the public road right-of-way, as the case may be, such side property lines shall join and run together from the point of intersection to the centerline of the easement or nearest edge of the public road right-of-way, as the case may be, perpendicular to said centerline or edge.
(b) The presumption established by this section is rebuttable by showing that a party has good and valid title to the land.
Presumption:Adjoining landowners to centerline.
Practice Tips: Never…
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Assume anythingRely solely on prior plats/surveys
Use terms “abandoned” or “released” or “former”
Practice Tips: Always…
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Consult with railroad
Disclaim liberallyConsult with a title attorney
What is a public road right of way?
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Any non-private road.
Why is public road right of way complicated in North Carolina?
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CreationElusive or No RecordsOwnership & ControlAbandonment
When does public road right of way go away?
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When the NCDOT AND the County or Municipality formally abandon road ownership – not just discontinuance of maintenance
Other than NCDOT or County/Municipality, who can say a public road has been abandoned?
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A court.
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Who owns land under abandoned public road?
Presumption:Adjoining landowners to centerline for easements.
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How do you gain access to a public road?
Must obtain driveway permit from NCDOT or Municipality
Practice Tips: Never…
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Assume anythingRely solely on prior plats/surveys
Use terms “abandoned” or “released” or “former”
Practice Tips: Always…
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Consult with NCDOT and County/Municipality
Disclaim liberallyConsult with a title attorney
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Jeff Bandini
Infrastructure - Utilities, Roads, Public Facilities, Railroads, Transit
Development & Infrastructure Agreements
Easements & Rights of Way Land Use & Zoning Real Property Disputes
Questions & DiscussionPractice Tips
