RAILS-TO-TRAILS:
THE MISSOURI EXPERIENCE WITH 16 U.S.C. § 12471
Michael J. Smith
I. Introduction
The state of Missouri is home to over 300 miles of Rails-to-Trails projects.2 The KATY
Trail is the longest in the United States as of this date.3 It is the former right-of-way for the
Missouri-Kansas-Texas Railroad Company and extends 225 miles from Clinton on the west to
St. Charles on the east. There are ten other listed rails to trails in Missouri that total another 100
miles.4 The longest, the Confluence Greenway Project near the Arch in St. Louis is 40 miles in
length and the others range from one to 18 miles.5 Because there are so many miles of trails in
Missouri, it is not surprising that a large number of property owners challenged the conversion
because they believe they have a reversionary claim to the former railroad right-of-way.6 There
have been several lawsuits in the past ten years that mirror the conflict between advocates of the
conversion and those who believe that the greater good is the respect and retention of individual
property rights or, in the alternative, believe that a compensable taking has occurred.
The most recent controversy concerns the Boonville Bridge that spans the Missouri River
in Boonville which is part of the KATY Trail right-of-way. The bridge became an issue late in
1
This paper is dedicated to my late brother-in-law, Ken Holtmann; he understood the land. He was a farmer and
coal miner. It hurt so much when we had to give him back to the earth he loved.
2
Rails-to-Trails website, http://www.traillink.com/TheActive_Pages/TrailSearch/default.asp.
3
Rails-to-Trails website, http://www.railtrails.org/news/trailfacts/tenlong.asp.
4
Rails-to-Trails website, http://www.traillink.com/TheActive_Pages/TrailSearch/default.asp.
5
Id.
6
The number in the initial class action along the KATY Trail challenging the constitutionality of the conversion was
144 (Glosemeyer v. Missouri-Kansas-Texas R.R., 879 F.2d 316 (Eighth Cir. 1989))(hereinafter referred to as
Glosemeyer II). At the time of settlement for all takings along the KATY Trail the class size was 298 (Moore v.
United States, 58 Fed.Cl. 134, 135 (2003))(hereinafter referred to as Moore II). The class size seeking compensation
for the Grant’s Trail easement was 88 (Illig v. United States, 67 Fed.Cl. 47, 49 (2005))(hereinafter referred to as Illig
III).
1
the spring of 2005 when a construction company arrived to dismantle it.7 Although the bridge is
not used for trail purposes (the trail is diverted downstream approximately one quarter of a mile
to another bridge), the bridge represents the formal continuity of the right-of-way. Although
there is a rancorous dispute within the state government of Missouri between the Department of
Natural Resources and the Attorney General’s Office over who has the authority to dispose of
the Boonville Bridge8, that is not the primary issue to be discussed in this paper.
Concerned citizens and trail supporters have sounded the alarm. They fear that if the
bridge is dismantled, the right-of-way will be broken and the underlying rationale for the
banking of the land for future rail needs will be lost.9 Thus, at that time, any reversionary rights
of the adjacent landowners could be asserted. This controversy began this inquiry into the history
of the rails-to-trails efforts in Missouri.
The thesis of this paper is that although there have been three separate types of challenges
to the rails-to-trails conversions, the trails will survive. The first challenge was constitutional
based upon Congress’ authority under the Commerce Clause to retain jurisdiction over the rightof-way itself, which was upheld in Preseault I.10 The second challenge was the result of
Preseault I and the adjacent property owner’s subsequent claims for compensation based upon
5th Amendment takings under the Tucker Act.11 The third is the challenge to the continuity of the
right-of-way and the underlying ‘rail banking’ rationale as evidenced in the Boonville Bridge
7
Sara Agnew, Bridge Debate Cites Trail Agreement, Columbia Daily Tribune, May 7, 2005 at
www.http://archive.columbiatribune.com/2005/may/20050507news007.asp.
8
See Press Release Number 180 of May 26, 2005 from the Missouri Department of Natural Resources, describing
the Attorney General’s suit as a “petty political power grab.” It is available on the Missouri Department of Natural
Resources website, www.dnr.mo.gov/newsrel/nr05_180.htm.
9
Fate of Boonville Bridge Could Threaten Entire Trail, the base article has links to updated information about the
controversy at http://www.bikekatytrail.com.
10
Preseault v. ICC, 494 U.S. 1 (1990) hereinafter referred to as Preseault I; see also Glosemeyer I.
11
See Moore v. United States, 54 Fed.Cl. 747 (2002)(hereinafter referred to as Moore I); Illig v. United States, 67
Fed.Cl. 47 (2005) hereinafter referred to as Illig II; Glosemeyer v. United States, 45 Fed. Cl. 771 (2000) hereinafter
referred to as Glosemeyer III; and Town of Grantwood Village v. United States, 55 Fed. Cl. 481 (2003).
2
controversy.12 The first two challenges have been resolved. Based upon a review of appropriate
Missouri law, the challenge to the continuity and control of the right-of-way will fail.
II. History of the Railroad Right-of-Way and the Rails-to-Trails Act
Officials in Nineteenth century America determined the railroad was the most effective
way to settle the great-unpopulated lands of the United States.13 Railroads had many of the
advantages of commercial corridors as did navigable waters, but without some of the
disadvantages. Rails, the new river, could be constructed at nearly any location and at reasonable
cost. It followed that the expansion and extension of the railroad was uppermost in the minds of
the Congress and Executive branch in the 1800’s. In the west, government grants of not only the
right-of-way, but also extensive land holdings were given.14 In the east, most railroads had
acquired right-of-way by acquisition of fee simple ownership or had negotiated easements with
property owners for the rail lines.15 In Missouri, the two specific railroad rights-of-way that are
discussed in this paper were acquired by easement from the landowner.16
This system was unregulated and free to market forces. Not surprisingly, it suffered from
over expansion without the commercial activity to make every line economically viable. One of
the first regulatory agencies, the Interstate Commerce Commission (ICC), was born of Congress’
desire to bring order to the chaos.17 Although the first regulatory efforts were aimed at fares and
fees, the duties of the ICC were expanded in 1920 by the Transportation Act to provide for
12
See Illig I.
Theodore G. Phillips, Beyond 16 U.S.C. §1247(D): The Scope of Congress’s Power to Preserve Railroad Rightsof-Way, 18 Hastings Const. L.Q. 907, 909-10 (1991).
14
G. Coggins, C. Wilkinson & J. Leshy, Federal Public Land and Resources Law 91 (5th ed., Foundation Press
2002) The extraordinary generosity of the United States to the railroads became what has been described as the
“Great Barbeque.” Over 90 million acres were granted to the railroads and another 35-40 million acres were granted
to the states for the use of the railroads.
15
Richard A. Allen, Does the Rails-to-Trails Act Effect a Taking of Property? 31 Transp. L.J. 35, 37-38(2003).
16
See, Glosemeyer II at 320; Moore at 748; and Illig I at 621.
17
The Interstate Commerce Commission (ICC) has been renamed the Surface Transportation Board (STB) as of
January 1, 1996. (49 U.S.C. § 702 (2000)). For consistency, because all of the challenges occurred when the agency
was called ICC, it shall remain so named. The ICC was created in 1887 by the Interstate Commerce Act, 49 U.S.C.
§1 et. seq (2000).
13
3
federal jurisdiction for all railroad rights-of-way.18 For the first time, railroads had to seek
approval to abandon a line. Additionally, the ICC could establish any conditions in the name of
public convenience and necessity.19 The source for the Congressional power to take regulatory
control of the railroad right-of-way is the Commerce Clause, Art. I, § 8.20
By 1927 the ICC’s goal was to preserve as much of the right-of-way as possible because
the rail system shrank from over 272,000 miles of lines at its peak to approximately 141,000 in
1991.21 According to reported statistics in 2004, just over 121,000 miles of road remained and
were used by seven companies to move all the freight in the United States.22 The loss of over
one half of this system is staggering. Even though Congress had the authority to regulate the
right-of-way, once a railroad petitioned for abandonment, the question presented was what
purpose the right-of-way might serve. The initial requests for abandonment to the ICC centered
on the condition that some other railroad might claim the easement or it might be put to some
other public use, such as a highway.23 In 1973, the First Circuit considered a case for rail
abandonment that was challenged by adjacent landowners seeking their reversionary interest in
the right-of-way when it became clear that the former rail line would no longer be operated as a
freight line. The party who wished to assume control of the line intended to operate a tourist
train. The ICC had determined that change of use was acceptable. The landowners appeal was
unsuccessful. Articulating the reasons for maintaining the line, the court stated:
To assemble a right of way in our increasingly populous nation is no longer
simple. A scarcity of fuel and the adverse consequences of too many motor
vehicles suggest that society may someday have need either for railroads or for
18
Allen, supra note 15 at 41-42 citing Transportation Act of 1920, ch.91, 41 Stat. 426.
Id.
20
Preseault I at 17.
21
Phillips, supra note 13 at 907.
22
2004 Statistics of Class I Freight Railroads, Table 8 at 16. Available at the Surface Transportation Board website,
http://www.stb.dot.gov/econdata.nsf.
23
Allen, supra note 15 at 43 citing Abandonment of Part of Branch By Pennsylvania Railroad Company, 131 I.C.C.
547 (1927).
19
4
the rights of way over which they have been built. A federal agency charged with
designing part of our transportation policy does not overstep its authority when it
prudently undertakes to minimize the destruction of available transportation
corridors painstakingly created over several generations. The ICC has in other
instances imposed right of way preservation conditions even though the right of
way was to be used eventually for a highway rather than a railroad.24
Despite the court’s reading of the ICC’s authority in Reed, Congress did not provide any
specific authority or guidance for what to do with right-of-way. The 1968 National Trails Act
encouraged the development of a system of national recreational trails for recreational and
conservation purposes, but did not provide for the conversion of former railroad right-of-way to
trail usage.25 The Act fragmented the authority for designating trails, with Congress only able to
designate scenic and historic trails while the Secretaries of Interior and Agriculture could
designate recreational trails.26 Because there was no specific language to convert abandoned
rails-to-trails, Congress passed the Railroad Revitalization and Regulatory Reform Act (4-R Act)
in 1976 with the appropriate authorization for the conversion.27 For the first time, the rail lines
that were proposed for abandonment would be given priority as recreational trials. With this
connection between the rail beds that were proposed for abandonment and recreational trials
completed, it appeared a comprehensive program was in place. However, neither of these Acts
clearly made provision for the status of rights-of-way that would keep them from reverting to the
property owner via state law if the line proposed for abandonment operated on an easement
basis. If they did revert and were subject to the appropriate state law, they were beyond the
control of the ICC.
In 1983, Congress addressed the property status issue by passing Amendments to the
National Trails Act. The specific language, now contained in 16 U.S.C. § 1247(d):
24
Reed v. Meserve, 487 F.2d 646, 649-50 (1st Cir. 1973).
National Wildlife Federation v. I.C.C., 850 F.2d 694, 697 (D.C. Cir. 1988) citing 16 U.S.C. § 1241 et. seq.
26
Id. citing 16 U.S.C. §§ 1243, 1244 and 1246.
27
Id. citing 49 U.S.C. § 10906.
25
5
Interim use of railroad rights-of-way
The Secretary of Transportation, the Chairman of the Surface Transportation
Board, and the Secretary of the Interior, in administering the Railroad
Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. § 801 et. seq.) shall
encourage State and local agencies and private interests to establish appropriate
trails using the provisions of such programs. Consistent with the purposes of that
Act, and in furtherance of the national policy to preserve established railroad
rights-of-way for future reactivation of rail service, to protect rail transportation
corridors, and to encourage energy efficient transportation use, in the case of
interim use of any established railroad rights-of-way pursuant to donation,
transfer, lease, sale, or otherwise in a manner consistent with this chapter, if such
interim use is subject to restoration or reconstruction for railroad purposes, such
interim use shall not be treated, for purposes of any law or rule of law, as an
abandonment of the use of such rights-of-way for railroad purposes. If a State,
political subdivision, or qualified private organization is prepared to assume full
responsibility for management of such rights-of-way and for any legal liability
arising out of such transfer or use, and for the payment of any and all taxes that
may be levied or assessed against such rights-of-way, then the Board shall impose
such terms and conditions as a requirement of any transfer or conveyance for
interim use in a manner consistent with this chapter, and shall not permit
abandonment or discontinuance inconsistent or disruptive of such use.28
This language created a property rights twilight zone where the ICC would determine that
the right-of-way was never abandoned and adjacent property owners could never exercise any
reversionary rights. Not surprisingly, adjacent landowners cried foul and headed to court.
III. The Commerce Clause Challenge
The ICC began the rulemaking process to implement Congress’ directive as trail
advocacy groups were waiting to claim unused rail beds for recreational purposes, such as those
that had been envisioned in the 1968 National Trails Act. The final rules were published and
codified in 1986 at 49 C.F.R. §1152.29(2004). They provided that ‘rail banking’ was the
appropriate methodology and set forth the procedural conditions. The relevant portion of the
rules provide for a two-step process. First, if there is no interest in continued rail operation and
the railroad is willing to transfer its rights to a trail operator, a Notice of Interim Trail Use or
28
16 U.S.C. § 1247(d)(2000).
6
Abandonment (NITU) will be issued. If a trail operator is willing to assume responsibility for the
former rail bed, it will have 180 days to enter into an interim trail use agreement with the
railroad.29
About the same time, September 1986, the Missouri-Kansas-Texas Railroad Company
(Railroad) was in the process of seeking the ICC’s permission to abandon its rail bed in
Missouri, Kansas, Oklahoma and Texas.30 It was clear to the adjacent property owners that they
were in danger of having a continuing servitude attached to their property, and many saw that
burden as an even less desirable than a railroad.31
Procedurally, the ICC was required to provide notice to any other interested party who
could acquire the use of the right-of-way either for rail service or a trail.32 The ICC made the
determination on March 16, 1987, that the Railroad could cease operations on the right-of-way
and a Certificate of Interim Trail Use or Abandonment (CITU) would be issued in 10 days
depending upon if any state, political subdivision, or qualified private organization would
assume the three conditions as stated in 49 C.F.R. § 1152.29(a) for taking over the right-ofway.33 The State of Missouri Department of Natural Resources (DNR) expressed interest in the
right-of-way for a trial, and the ICC issued a CITU with the proviso that a final agreement be
reached between the Railroad and DNR within 180 days. An agreement was reached on June 25,
1987 and the Attorney General of Missouri notified the ICC on September 30, 1987.34
In December, 1986, a suit for quiet title in Missouri state court by a group of 144
individuals, led by Maurice and Dolores Glosemeyer, who owned property next to the railway,
29
49 CFR 1152.29(d)(2004).
Glosemeyer II at 319.
31
Id. at 319-20.
32
49 U.S.C. 10905 and 49 CFR 1152.27(2004).
33
52 FR 8120.
34
A complete copy of the letter and agreement can be found on the Missouri Bike Federation website.
http://www.mobikefed.org/katy-trail-interim-agreement.pdf.
30
7
was removed to federal court.35 The property owners sued to quiet title before the ICC could take
any affirmative steps to allow the right-of-way to be used for a recreational trial. The suit
challenged the Constitutionality of the Act based upon three theories, the Commerce Clause36,
the Takings Clause37, and the Contracts Clause.38 The trial court issued upheld the Railroad’s
motion for summary judgment in May, 1988, finding the Act constitutional. The trial court
reviewed the Commerce Clause challenge based upon Congress’ rational basis for wishing to
‘rail bank’ the right-of-way for potential future use. The court was not persuaded by the
Glosemeyer argument that the fiction of future use was beyond Congress’ interstate commerce
authority.39 The court held that before any Takings Clause claim could be made, the
Glosemeyer’s must seek appropriate compensation under the terms of the Tucker Act. 40 The
court dismissed the Contracts Clause argument because the Clause only refers to state law, not
federal law.41 The Glosemeyer’s appealed to the Eighth Circuit which decided the case in July,
1989, affirming the trial court ruling.42 The Glosemeyers filed for certiorari to have the matter
decided by the United States Supreme Court. Their appeal came a few months behind a similar
suit that had been filed in the Second Circuit.
In Vermont, near Lake Champlain, Paul and Patricia Preseault filed a similar suit to stop
the transfer of a former rail line to a trail group.43 They claimed a prior reversionary interest
35
Glosemeyer v .Missouri-Kansas-Texas R.R., 685 F.Supp. 1108 (E.D.Mo. 1988). Hereinafter referred to as
Glosemeyer I. The court retained jurisdiction for these subjects, but did not consider the validity of the ICC action
because that is specifically vested in Courts of Appeal per the Hobbs Act, 28 U.S.C. § 2321(2000).
36
U.S. Const. Art I, § 8, cl. 3.
37
U.S. Const. Amend. V.
38
U.S. Const. Art I, § 10.
39
Glosemeyer I at 1118.
40
Id. at 1120. The Tucker Act, 28 U.S.C. § 1491(a)(1)(2000 ), provides any person with a non-tort claim against the
United States may seek compensation in the U.S. Court of Federal Claims in Washington D.C. If the claim is less
than $10,000, 28 U.S.C. § 1346(a)(2)(2000) provides jurisdiction to any district court.
41
Id. at 1118.
42
Glosemeyer II at 318.
43
Preseault I at 9.
8
when the Vermont Railway ceased operations in 1975.44 The Presault’s had sought to enforce
their reversionary rights in 1981, but were rebuffed by the Vermont Supreme Court because the
ICC retained jurisdiction and had not formally abandoned the line. The Preseault’s sought the
abandonment directly from the ICC without success. The State of Vermont intervened and
entered into an agreement with the ICC and the City of Burlington to use the former rail right-ofway as a trail.45 The ICC had already granted a trail use permit in January of 1986 across the
Preseault property.46
The Preseault’s filed suit in the Second Circuit because the action was a challenge to an
ICC decision.47 The Preseault suit was very similar to the Glosemeyer suit because it raised the
Commerce Clause argument with the Congress’ granting the ICC authority to regulate railroad
right-of-way, and the Fifth Amendment Takings Clause since the continued use of the right-ofway was without just compensation. The Second Circuit heard the Presault’s case in February,
1988, and issued their decision in August, 1988, before the Eighth Circuit issued its summary
judgment in the Glosemeyer appeal.48 The Eighth Circuit acknowledged and relied on some of
the reasoning of the Second Circuit.49
The United States Supreme Court granted certiorari in the Preseault case in 1989. In an
opinion authored by Justice Brennan, the Court held the 1983 Amendments to the National Trails
Act were a valid exercise of congressional power based upon the Commerce Clause. Just as the
trial and appellate courts had found, the Court held that Congress’ determination that rail lines
44
Id.
Id.
46
Id.
47
Preseault v. ICC, 853 F.2d 145, 148 (2nd Cir. 1988), referred hereinafter as Preseault II, citing 28 U.S.C. § 2321
which gives the Court of Appeals jurisdiction for all challenges to ICC rules, regulations or orders.
48
Preseault II at 145.
49
Glosemeyer II at 318.
45
9
were national assets regardless of the interim use and could be ‘rail banked’ for the long-term.50
This represented closure for the question of the Act’s constitutionality based upon the Commerce
Clause. The KATY trail was about to be born.
III. The 5th Amendment Takings Clause and Just Compensation Challenge
A. The Supreme Court’s Deferral of the Takings Question and a Concurrence
The Court left the question of a takings unresolved as it was determined to be premature
because the Preseault’s had not made their claim under the Tucker Act. 51 Perhaps this was to be
expected as the Court was not in a position to determine the validity of individually granted
easements may or may not have warranted a compensible claim. 52 The Court had stated that only
some claims may amount to a taking, some may be owned fee simple by the railroad and others
may be easements that do not require compensation for a new use under state law.53
The takings challenge does not threaten the existence of the KATY trail. As the Supreme
Court said in Preseault, the takings clause does not “. . .limit the governmental interference with
property rights per se, but rather to secure compensation in the event of otherwise proper
interference amounting to a taking.”54 In a concurrence authored by Justice O’Connor and joined
by Justices Scalia and Kennedy, a more direct opinion was given on the question of takings.
Justice O’Connor stated that Congress cannot preempt state property interests without
compensation simply because the ICC can delay formal abandonment. 55 She found that to
interfere with the reversionary property interest would be incompatible with the 5th Amendment.
The concurrence goes on to describe how to analyze if a taking has occurred. Citing Nollan v.
50
Preseault II at 19.
Id. at 11.
52
Id.
53
Id. at 16.
54
Preseault II at 11 quoting First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482
U.S. 304, 314 (1987)(emphasis in the original).
55
Id. at 22.
51
10
California Coastal Commission, if the government appropriates a public easement56; citing
Kaiser Aetna, if the right to exclude others from the property has occurred57; citing United States
v. Causby, the imposition of even a lesser servitude58; and citing First English Evangelical
Lutheran Church, a governmental imposed burden, even for a short time59, would amount to a
compensable taking. Although not binding upon any court, they are certainly worthy of
consideration as a court analyzes the claim from a property owner.
B. Four Commentaries on the Takings Question
Four law journal articles have been written on the subject of takings and the Rails-toTrails Act. Each analyzed the takings question and made observations or suggestions based upon
past cases, some specifically addressing the Rails-to-Trails Act and others drawing parallels to
similar governmental actions that affected private property interests. The first was written prior
to the Supreme Court issuing it’s ruling in Preseault I. The second was written just after
Preseault I and the final two most recent more than a decade later. Any reversionary claim is
fact specific, so no single answer could suffice. For comparative purposes of the articles, the
assumption is that a private property owner has been burdened by a railroad easement. The ICC
process has been completed and a trail operator has been identified. The property owner has
asserted their claim for compensation based upon state law that provides once the easement is no
longer used for that purpose; it will revert.
56
483 U.S. 825, 831-832 (1987).
444 U.S. 164, 180 (1979).
58
328 U.S. 256 (1946).
59
482 U.S. 304, 318-319 (1987).
57
11
The first commentator, Duda, believes that a taking has occurred and the only question is
that of compensation.60 The second, Phillips, argues that depending upon how a court analyzes
the question, a taking may or may not have occurred.61 The third, Wright and Hester, assert that a
taking will not occur if the court uses the appropriate tests.62 The fourth, Allen, posits that a
taking has not taken place and that no additional compensation is due.63
First, each author’s takings arguments will be considered. Second, an examination of the
takings question as applied to Missouri law by the Court of Federal Claims and the Eighth
Circuit and how each court arrived at a different conclusion.64
Duda, writing before the Supreme Court had decided Preseault I, takes the position that
the Missouri Constitution differentiates between land acquired by eminent domain for railroad
purposes and land acquired by political subdivisions for other public purposes.65 Unless there is
very clear language of a voluntary transfer or sale, the railroad could only be granted an
easement.66 When the stated use for the easement was extinguished, the property owner would
retain no burden and would enjoy fee simple title. Railroad easements are unique in state statutes
and require abandonment before the property reverts.67 Because abandonment never occurs
60
Thomas A. Duda, The Use of Discontinued Railroad Rights-Of-Way As Recreational Hiking and Biking Trails:
Does the Nation Trails System Act Sanction Takings?, 33 St. Louis U. L.J. 205 (1988) and Phillips, supra note 13.
61
Phillips, supra note 13.
62
Danaya C. Wright and Jeffery M. Hester, Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the
Shifting Scope of Railway Easements From the Nineteenth to the Twenty-First Centuries, 27 Ecology L.Q. 352
(2000).
63
Allen, supra note 15.
64
Moore v. United States, 54 Fed.Cl. 747 (2002) and Grantwood Village v. Mo. Pac. R.R. Co., 95 F.3d 654 (Eighth
Cir. 1996).
65
Duda, supra note 60 at 211-12 n.33-37 citing the Missouri Constitution Article 1, §§ 26 and 27. Section 26
provides that “[t]he fee of land taken for railroad purposes without consent of the owner thereof shall remain in such
owner subject to the use for which it is taken.” Section 27 allows the political subdivision to acquire fee simple or an
easement.
66
Id.
67
Id. at 212.
12
under 16 U.S.C. § 1247(d), there can never be a reversion under Missouri statutes.68 Duda asserts
this suspension of property rights is at the heart of the issue. If property owners cannot
extinguish the easement, they should be compensated for a taking.
Phillips travels a different path to resolve the question of a taking. Phillips begins his
analysis with the premise that the source authority for the regulatory authority for the ICC lies
within the Commerce Clause, specifically the doctrine of navigational servitude. 69 The
navigation servitude doctrine was originally identified in England in order to extend the Crown’s
jurisdiction to inland waterways connected to tidal waters.70 The doctrine was transferred to the
United States in The Propeller Genesee Chief v. Fitzhugh in 1851 and expanded to provide
admiralty jurisdiction to all navigable waters in the United States.71
Phillips asserts that when the federal government extends jurisdiction through the use of
the Commerce Clause and the navigation servitude doctrine to keep transportation routes open,
this may trump any takings claims under the 5th Amendment.72 Phillips traces the history of the
doctrine to show that once the United States has asserted jurisdiction over navigable waters,
takings claims are disfavored. He cites Twin Cities Power Company as the most compelling why
the Commerce Clause is dominant over any other.73 In Twin Cities, the Court said “[i]t is no
answer to say that these private owners had interests in the water that were recognized by state
law. We deal here with the federal domain, an area which Congress can completely preempt,
leaving no ‘private property’ within the meaning of the Fifth Amendment.”74 However, he
68
Id. at 214.
Phillips, note 12 supra at 912.
70
Id. at 911.
71
Id. citing 53 U.S. (12 How.) 443 (1851).
72
Id.
73
Id. at 917 citing United States v. Twin Cities Power Co., 350 U.S. 222 (1956).
74
350 U.S. at 227.
69
13
describes how in Kaiser Aetna, the Supreme Court has retreated from this most rigid position and
considered the property rights of landowners.75 Phillips reasons that because of the similarities
between the Commerce Clause authority to regulate navigable waters and the interest in railroad
right-of-way, they are nearly equivalent and the reservation of the right-of-way for future rail
use, rail banking, may prevent any takings claims by property owners.76
Phillips goes on to analyze the takings question under the Nollan ‘per se’ formula
(government action entails intrusion and a physical occupation), Agins v. City of Tiburon
77
for
zoning takings (determining if the action is a legitimate state interest), Penn Central
Transportation Co. v. City of New York 78 (no investment-backed expectations), and Duke Power
Co. v. Carolina Environmental Study Group
79
uncertain property interests (a finding of no
taking serves a greater public interest).80 He does not believe that any of these prior findings
would allow for a taking under the Rails-to-Trails Act. He advocates clear language in the Railsto-Trails Act that would compensate property owners.81
Wright and Hester, writing a decade after the Supreme Court’s decision in Preseault I,
examine the railroad right-of-way and the several uses that have been permitted within it, such as
fiber optics, telephone and telegraph.82 They explore three other concepts to determine that a
taking has not occurred. The first is the requisite abandonment of a railroad easement under state
75
Id. citing Kaiser Aetna v. United States, 444 U.S. 164 (1979). In Kaiser Aetna a connection was created between
a formerly private pond and navigable waters. The Court acknowledged that a taking had occurred when the United
States eliminated the right to exclude from a private marina and extended navigable waters to formerly private land.
76
Id. at 920.
77
447 U .S. 255 (1980).
78
438 U.S. 104 (1978).
79
438 U.S.59 (1978).
80
Id. at 921-927.
81
Id. at 927. In fact, H.R. 1261, 109th Cong. (1st Sess. 2005) amends the Act and provides such language for
prospective trail creation, but has not been enacted.
82
Wright and Hester, note 62 supra at 352-54.
14
law.83 According to their analysis the abandonment never takes place in order for a property
owner to claim that as the servient estate the land is free and unburdened from the prior
servitude. Therefore, the property owner claims, any new use, such as a recreational trial is a new
easement and they should be compensated.84 They opine that the two traditional elements of
railroad abandonment, intent to abandon and actual non-use, cannot be met when the right-ofway is ‘rail banked.’85 The retention of the corridor for future possible rail use should trump any
abandonment consideration under state law.86
The second concept is new and they suggest the courts adopt the shifting public use
doctrine (SPUD), an extension of the incidental use doctrine. These are similar concepts that
allow for either newer forms of the basic purpose of the easement (SPUD) or uses that are
incidental to the original use. They cite to Preseault v. United States (Preseault III) where the
Court of Federal Claims discussed the concept of shifting public use to reach a finding that a
compensable taking had not occurred.87 Although ultimately rejected by the Court of Appeals for
the Federal Circuit, other courts have embraced the concept.88 They also encourage courts to
broaden the incidental use concept to include recreational trails because the traditional use of the
railroad also included recreational travel.89
The third and final argument Wright and Hester put forward for denying compensation is
that the underlying property right has been misclassified as a reversionary interest. They believe
83
Id. at 434-41.
Id. at 434.
85
Id. at 454-55.
86
Id.
87
Id. at 442-43 citing 24 Cl.Ct. 818, 832 (1992). The shifting public use doctrine was rejected by the Court of
Appeals for the Federal Circuit in Preseault v. United States, 100 F.3d 1525, 1544 (Fed. Cir. 1996) hereinafter
referred to as Preseault IV.
88
Id. at 451 citing Chevy Chase Land Co. v. United States, 733 A.2d 1055 (Md. 1999).
89
Id. at 452-53.
84
15
it is more correctly identified as a contingent remainder.90 As a contingent remainder, it could be
“extinguished under the rule against perpetuities, marketable title acts, presumptions against
forfeiture, and rules against alienation of possibilities of reverter.”91 Reversionary interests are
confined to the grantor or the grantor’s heirs and should not be transferred to successors in
interest.92 Even if a grantor or the grantor’s heirs should make a claim, Wright and Hester would
only grant the difference in value between a railroad easement and a utility or recreational
servitude.93 Railroad uses are the most intensive and the reduction in impact should only yield a
nominal amount for the new easement.94
Allen’s is the most recent article of the four and is more directly critical of the number of
taking claims that have been determined by the courts.95 His position is that each situation has to
be evaluated on its own merits because there are so many variations on the granting of the
easements and the nature of the allowable uses. However, he believes differing results from the
courts when analyzing the takings question is a result of inconsistent and misapplied prior
Supreme Court holdings.96
Just as the earlier authors discussed the issues of abandonment under state law, changes
in use and the nominal compensation that may be due, and the Penn Central reasonable
investment-back expectations, Allen supports the proposition that none of these should rise to a
taking.97 In addition to the earlier arguments, Allen adds one new theory to the taking per se
90
Id. at 457-58.
Id.
92
Id. internal citations omitted.
93
Id. at 459.
94
Id. citing Chevy Chase.
95
Allen, note 15 supra at 35.
96
Id. at 36 citing Preseault III finding of no compensable taking the reversal and remand in Preseault IV and
Glosemeyer III.
97
Id. at 57-59.
91
16
analysis. He suggests that the better Supreme Court cases are Prune Yard Shopping Center v.
Robbins98 and Heart of Atlanta Motel, Inc. v. United States99. He reasons that once a property
owner has opened their land to the public, such as with a railroad easement, any further use
cannot be held as a taking.100
C. The Takings Question Applied to Missouri Property Law
The United States Federal Court of Claims in Washington D.C. is the appropriate court to
determine if there has been a taking. The Chief Judge of the court, Edward J. Damich, makes it
clear in his welcome that the United States Court of Federal Claims is the “People’s Court.” 101
The court applied Missouri law to the question of takings and found that a taking had
been effected by the creation of a recreational trail.102 The court relied upon Justice O’Connor’s
concurring opinion that real property rights arise from state law and the claim must be evaluated
based upon the appropriate state law.103 In Missouri, a property owner may claim a reversionary
interest in land used as a railroad easement when two conditions are met, intent to abandon and
evidence of the intent, such as non-use.104 The court found both conditions had been met because
the Railroad had initiated the abandonment procedure with the ICC and had removed the track
and roadbed materials.105 Although the government argued that ‘rail banking’ represented the
98
447 U.S. 74 (1980) holding that a state constitutional requirement that property owner must allow hand-bill
distributors on his property when it is already open to the public was not a taking.
99
379 U.S. 241 (1964) rejecting the argument that a taking occurs when a federal law prohibiting exclusion based on
race is enforced.
100
Id. at 55.
101
See the complete text at http://www.uscfc.uscourts.gov/welcome_mess.htm
102
Glosemeyer v. United States, 45 Fed.Cl. 771 (2000)(Glosemeyer III). It was a consolidated case that included
Moore and Grantwood Village as the findings would be applied universally to all Missouri claimants.
103
Id. at 776.
104
Id.
105
Id. at 777.
17
intent to use for future rail or other transportation services, the court rejected those arguments. 106
The court did not rely upon any Missouri law to that effect, but referenced a Missouri Court of
Appeals case, Boyles v. Missouri Friends of the Wabash Trace Nature Trail, Inc., considering a
similar question of abandonment and subsequent use as a recreational trial. 107 However, there are
significantly different facts in Boyles. The Boyles court was considering a railroad easement that
had already been through the ICC abandonment process 15 years earlier and applying the
Missouri Constitution as it applied to easements that were acquired without the consent of the
property owner.108 The Federal Claims court reasoned the core issue was abandonment and the
factual differences were not material. The court did acknowledge that at least two other courts
had come to a different result, but not using Missouri law.109
In Glosemeyer II the court rejected the concept of incidental use or the shifting public use
doctrine.110 The court cited several Missouri cases that had narrowly interpreted railroad
easements to those limited to the operation of the railroad. The court particularly cited Eureka
Real Estate & Inv. Co. v. Southern Real Estate & Fin. Co. as an example when a new use, power
poles, could not be continued once the railroad right-of-way was abandon.111 It also deferred to
the Boyles court when it determined that a recreational trail was not a railroad purpose.112 The
facts in Eureka and Boyles were based upon railroad easements that were acquired by
condemnation. The court dismisses in a footnote any difference between easements acquired by
condemnation and conveyance without any further analysis. This is a remarkable finding as even
106
Id. at 780.
981 S.W.2d 644 (Mo. Ct. App. 1998).
108
Id. at 647-648 citing Mo. Const. Art I, § 26. See also n. 64 supra.
109
Glosemeyer II at 780 n. 17 recognizing Chevy Chase Land Co. (determining Maryland state law allows a
recreational trail within the scope of a railroad easement) and Washington Wildlife Preservation, Inc. v. Dept. of
Natural Resources, 329 N.W.2d 543 (Minn. 1983) (holding a recreational trial was not abandonment).
110
Id. at 778-79.
111
Id. at 779 citing 200 S.W.2d 328, 332 (Mo. 1947).
112
Id. at 779.
107
18
though the court acknowledges Missouri-Kansas-Texas R.R. Co. v. Freer for its limitations on
the use of a railroad easement, no mention is made of another key finding. 113 Freer also held that
in order to answer the question of permissible uses of the easement, the nature of the grant must
be analyzed and the intent of the parties would control.114 Certainly, the Freer court reached the
conclusion that the grant, which was conveyed voluntarily, could not be extended beyond the
intent of the grantors based upon the specific language of the grant; but, according to this court,
once it had determined an abandonment has occurred, the default finding is one of a taking. This
placed the burden upon the United States to show that each parcel was acquired for railroad use
without limitation that might include a recreational trail or that the railroad had acquired the
parcel by fee interest. The court did make determinations on both the KATY and Grant’s Trails
that some property owners did not qualify for a compensable taking because of the nature of the
grant, but they were few in number.115
In contrast, the Eighth Circuit in Grantwood Village v. Missouri Pacific Railroad Co.
noted that after examining Missouri law, abandonment, a key element to find a taking, does not
necessarily occur.116 The issue before the court was an attack on the jurisdiction of the ICC to
grant a NITU to Trailnet when the original grant of easement had not been properly recorded.
Because a finding that Gateway Trailnet (Trailnet) had no valid claim to the former right-of-way
required abandonment by the Missouri Pacific Railroad, the court considered that question.117
The court very clearly determined that the Rails-to-Trails Act preempted state law on the
113
Id. at 779 citing 321 S.W.2d 731 (Mo. Ct. App. 1958).
Freer at 738-39.
115
See Moore v. United States, 58 Fed.Cl. 134 (2003)(hereinafter referred to as Moore II)(holding that three
property owners did not have a compensable claim along the KATY Trail) and Miller v. United States, 67 Fed.Cl.
542 (2005)(finding two property owners along Grant’s Trail did not have a compensable claim).
116
95 F.3d 654 (Eighth Cir. 1996).
117
Id. at 657.
114
19
question of abandonment.118 Unlike the Court of Federal Claims, the Eighth Circuit found that
the elements of abandonment, intent and non-use, under Missouri law did not mandate a
conclusion of abandonment based upon applying to the ICC for abandonment.119 Had the
Grantwood court considered the question of a taking, it might well have come to a different
conclusion.
D. Valuing a Taking Claim
Once the court determined there had been a taking, the only question remaining was that
of valuation. As noted by Wright and Hester, the typical valuation analysis would compare the
difference in value for a railroad easement and a railroad easement plus a recreational trial. 120
They submit that the additional servitude would lead to only nominal claims, if any at all because
the servient owner may have access to the easement but is also relieved of any liability for
claims.121 However, the Court of Federal Claims has adopted a different approach to the matter
in Moore v. United States.122 Moore and twelve other property owners adjacent to the KATY
trail submitted a claim for compensation. The court determined the appropriate method for
valuing the claim was to treat the easement as an entirely new servitude and add on any
severance damage from the additional potentially negative impact of having a recreational trail
run across the property.123 This method of valuing the easement yields some spectacular financial
results for property owners and their attorneys. At the conclusion of the Moore I opinion, the
court finds a value for each parcel and awards that amount. The total for all thirteen parcels is
118
Id. at 658.
Id. at 659 n.5.
120
Wright and Hester, note 62 supra at 459.
121
Id.
122
54 Fed.Cl. 747 (2002)(hereinafter referred to as Moore I).
123
Id. at 749.
119
20
nearly $162,000.124 The court does not mention costs or other details. However, the Property
Rights Foundation of America, Inc. placed the final tab at $410,000.125 The subsequent
settlement amount for the balance of the 288 claims represented by Moore I along the KATY
was $5,065,820.62, representing $1,655,276.28 in principal, $2,326,531.29 in interest and
$1,000,000 for attorney fees and expenses.126 This yields an incredible $26,000 per mile for the
KATY trail when adding both settlement figures.
In a similar action, the same Federal Court of claims granted the Town of Grantwood
Village $19,000 for the taking, $11,530.39 in interest expense for approximately ten years,
$270,722.35 in attorney’s fees and $21,761.28 in costs for a portion of the former Carondelet rail
line.127 This is a stunning total of $323,014.02 for the conversion of a former rail line to a
recreational trial. Further evidence of the cost of such conversions can be found in the testimony
for the Presault’s claim which showed that the total amount due was in excess of $1,446,000.
The valuation for the easement was $234,000. The balance was interest and costs.128
When considering the average cost per mile in Moore I of approximately $26,000 for the
right of the trail to occupy the same space as the former railroad, perhaps Allen’s, Wright and
Hester’s arguments make a great deal of sense. After all, this is only an easement, not ownership
in fee simple. It begs the question of equity that both commentators raise: if one purchases a
parcel with the prior knowledge of a use, can one exact additional compensation for arguably a
124
Id. at 754-55.
Federal Court Orders U.S. to Compensate Landowners at
http://www.prfamerica.org/FedCourtOrderCompensation.html.
126
63 Fed.Cl. 781, 785 (2005) the attorney fee figure is based upon the Uniform Real Property Relocation Act, 42
U.S.C. § 2654 (2000). The property owners attorneys were paid $1.6 million or 34% from the proceeds.
127
Grantwood Village at 483 and 489.
128
Testimony of Nels Ackerson before the Committee of the Judiciary Subcommittee on Commercial and
Administrative Law of the U.S. House of representatives at http://www.home.earthlink.net _dick156/NELSTES.RTF. (Ackerson, even as a plaintiff’s attorney, was arguing for a less costly way to resolve the issue.)
125
21
less intense use?129 The result in Grantwood Village I seems even more extortionary as the funds
went from one public entity, the United States, to another with a population of 883.130
E. The Effect of the Tucker Act Statute of Limitations on Claims
Although the Court of Federal Claims has been very generous with the taxpayer’s funds,
a new twist has developed recently, the application of the statute of limitations for Rails-to-Trails
claims. There had been some uncertainty when the time began for calculating the six-year time
limit under the Tucker Act. A recent case, Caldwell v. United States, decided by the Court of
Appeals for the Federal Circuit has clarified the point with some unexpected results for Missouri
property owners along the former Carondelet rail line.131
Like the Town of Grantwood Village, Sarah and Gale Illig and others were similarly
situated along the former Carondelet line in southwest St. Louis County.132 At issue was 6.2
miles that had been proposed for abandonment by the Missouri Pacific Railroad (MoPac) in
1992.133 Following the procedure set forth in the ICC regulations for proposed abandonment, the
ICC first sought any other railroad interest and secondly any interest from a qualifying party for
use as a recreational trail.134 A private organization, Gateway Trailnet (Trailnet), sought to
acquire the property for use as a recreational trail.135 Even though the regulations require that an
129
Allen, note 15 supra at 61 and Wright and Hester, note 62 supra at 459.
For more community information see http://www.city-data.com/city/Grantwood-Village-Missouri.html.
131
391 F.3d 1226, 1235 (Fed. Cir. 2004). Caldwell also had a similar effect in Kansas. See Barclay v. United States,
351 F.Supp.2d 1169 (D.Kan. 2004) time barring property owner claims along the Meadowlark Trail, Sunflower
Trail and Flinthills Nature Trail.
132
The Illig’s have had a long history with the railroad running across their property. A search revealed a Missouri
case dated January 19, 1886 in the St. Louis Court of Appeals. The plaintiff, Peter Illig, had sued the Missouri
Pacific Railway Company for some matter. Unfortunately, the unpublished opinion only dismisses the action for
failing to file a statement or brief.
133
Illig v. United States, 58 Fed.Cl. 619, 621 (2003) hereinafter referred to as Illig II.
134
Illig I at 48 citing the requirements of 49 C.F.R. § 1152.29.
135
Id.
130
22
agreement between MoPac and Trailnet be reached within 180 days, several extensions were
granted. The ICC approved the final agreement some nine months later and title was passed from
MoPac to Trailnet on January 6, 1993. 136
The former Carondelet line became known as Grant’s Trail (for reasons that will be clear
in the next portion of this paper where the legitimacy of an easement is discussed). The Illig’s
sued for compensation based upon Preseault I in December 1998.137 The Court of Federal
Claims found that liability existed the following November and directed the parties to try and
reach a settlement. A total of eighty-eight class members were affected and the preliminary
settlement figure exceeded $5.1 million dollars.138 The slow pace of resolution resulted in an
unexpected result. In July 2005 the court was forced to follow a new holding from the Federal
Circuit. The Court of Appeals for the Federal Circuit determined in Caldwell the date from
which the statute of limitations in trails matters is calculated is the date that a Notice of Interim
Trail Use (NITU) is given.139 The statute of limitations under the Tucker Act is six years. 140 The
only dispute is when the time begins. The result in Illig I was that instead of being timely, it was
barred because the claim was filed three days outside of the limit.141 The trial court judge was
forced to issue a dismissal. A timely appeal followed, but will likely be denied because of the
Supreme Courts refusal to hear the Caldwell case. Caldwell filed a petition for certiorari in the
Supreme Court in June 2005. The Supreme Court denied certiorari in October 2005. The
Supreme Court will not take this opportunity to clarify the requirements for a takings claim in the
Id. at 49. There was a request from MoPac in 1997 to reopen the proceedings to reconsider a two tenth’s of a mile
section to continue to serve a rail customer. Ultimately, the court did not find this later action to be relevant.
137
Illig v. United States, 67 Fed.Cl. 47, 49 (2005) (hereinafter referred to as Illig III). This valuation yields nearly
$1,000,000 per mile.
138
Id.
139
391 F.3d 1226, 1235 (Fed. Cir. 2004).
140
Id. at 1236 citing 28 U.S.C. § 2501(2000).
141
Illig I at 47.
136
23
Court of Federal Claims for a rails-to-trails conversion. The Illigs and the other class members
had a great deal riding on the outcome of Caldwell certiorari and are even more likely to feel
some resentment towards the rails-to-trails program.
There can be no new takings claims along the KATY trail; the period for timely claims is
over. Because the KATY was approved in March 1987, before the NITU process was developed,
the date for any claims has passed.142 The Caldwell ruling also effectively limits future liability
to those trails that are placed under the Notice of Interim Trail Use after the year 2000. The
Federal Circuit Court of Appeals may have effectively limited one of the problems identified by
Allen, claims by those who arrive after a trail is proposed and seek compensation for a dubious
‘taking.’143
IV. The Continuity and Control of the Right-of-Way Challenge
The most recent potential challenge by property rights advocates, and the one that
introduces this paper, is the loss of continuity and control of the complete right-of-way and
thereby rendering the ‘rail banking’ impracticable. This is the issue that has raised the alarm for
the supporters of the KATY trail. After surviving the constitutional challenge in Preseault I and
the takings issue in Glosemeyer I, the supporters of the KATY may well be concerned about any
new legal theories that could undo the trail. However, it seems the fears are not based upon solid
legal precedent.
The specific concern is that by dismantling the Boonville Bridge, the right-of-way is
disrupted jeopardizing the entire trail. The Missouri Bicycle Federation has articulated arguments
142
143
52 FR 8120.
Allen, note 15 supra at 61.
24
as to why the bridge removal “removes a margin of safety” for the KATY Trail in an on-line
article.144 In short, the Federation believes that ‘rail-banking’ requires a seamless connection to
existing active rail lines in order for future rail service to be restored. The connection points for
the KATY Trail are in St. Charles on the east and Sedalia on the west. The Boonville Bridge
removal severs the connection between those two points. The Federation does not cite any statute
or regulation to support this opinion. The Code of Federal Regulations provides the following
definition: “"[r]ail banking" means the acquisition of an interest in a rail right-of-way sufficient
to ensure its preservation for future rail freight service.”145 There is no mention of any further
requirement that a line proposed for abandonment is connected to an active rail line in any statute
or regulation. Presumably, all lines that are proposed for abandonment are connected to existing
rail lines and the procedure for acquisition only mandates that the responsible party for the trail
understands that the trail use is subject to future reconstruction and use as a railroad line.146
Therefore, when DNR acquired the KATY Trail right-of-way, the agreement was subject only
transfer of the Railroad’s interest in the easement without any reference to maintaining an
unbroken right-of-way for future rail use.147
KATY Trail advocates point to an on-line article that describes the doctrine of
impossibility whereby in an unpublished opinion the Sixth Circuit Court of Appeals upheld that
30.5 miles of an abandoned rail corridor in Michigan would revert to the adjacent property
owners because some of the right-of-way had been abandoned and the fiction of ‘rail-banking’
144
The complete article is available at http://www.mobikefed.rg/2005/06/removal-fo-mkt-bridge-at-boonville.html.
49 C.F.R. § 266.1(2004).
146
49 C.F.R. § 1152.29(a)(3)(2004).
147
A complete copy of the letter and agreement can be found on the Missouri Bike Federation website.
http://www.mobikefed.org/katy-trail-interim-agreement.pdf.
145
25
could not occur.148 Since first viewing the KATY Trail Advocates website, they have dropped
the link to the article about the doctrine of impossibility. The article relied upon a case, Belka,
with very different facts from those surrounding the possible removal of the Boonville Bridge.149
The Belkas sought to quiet title for the former railroad easement across their property. The
district court found for Belka. Penn Central, the defendant, had already sought and was granted
formal abandonment of the line from the ICC. The issue before the court concerned the rights to
the easement that Penn Central believed it retained. In this respect, Belka is similar to Boyles in
Missouri. Both cases rely upon the property law of the state providing that once an easement has
been abandon, the property owner may assert their reversionary rights. The issue of formal ‘rail
banking’ was an argument put forth by Penn Central in its attempt to argue for continuing the
easement. The district court rejected the ‘rail banking’ argument because portions of the rightof-way, approximately three miles, had been disposed of by sale or lost by condemnation and
future rail use was impracticable.150 These facts distinguish Belka from the Boonville Bridge
and KATY Trail right-of-way. There is no question that the right-of-way is not abandoned
according to the definition and 1987 Interim Trail Use Agreement.
However, even if the property rights advocates were to mount a challenge to the control
and continuity of the KATY Trail, the trail advocates would have excellent precedents to cite to.
There are two major reasons why the removal of the bridge will not disrupt the trail. First, the
right-of-way at issue, the riverbed of the Missouri River, is owned and controlled by the State of
Missouri. Thus, Missouri, both the owner of the property and the operator of the trail could
formally grant itself the use of the nearby bridge or any other section of the riverbed for future
148
The original link was found at http://bikekatytrail.com/boonvillebridge.asp and it linked to an article by Joanna
Waugh describing the doctrine at http://members.aol.com/Jwaugh7596/Impossibility.html.
149
Belka v. Penn Central Corp., 74 F.3d 1240 (1996).
150
Id.
26
rail use. The second is that the right-of-way is presumed to remain in tact, even with flaws in the
original granting of the easement.
It is a well-settled point of law that states retain the ownership of riverbeds, while the
federal government may exercise jurisdiction of the navigable waters above the riverbed.151
Missouri, as the property owner of the ground where the Boonville Bridge is located, has both
rights and obligations. Because the state holds both the easement and the underlying fee in an
unusual situation as owner both the dominant and servient estate. Issues concerning the removal
or replacement of a bridge that is not in use are best considered by consulting other Missouri
cases on the topic. The Supreme Court of Missouri explained in Stotzenberger v. Perkins the
traditional relationship between the dominant and servient estate for any improvements that keep
the easement open. The dominant estate may make any repairs or improvements in order to
maintain the right of free passage and the enjoyment of the estate, but the servient estate is under
no obligation to repair.152 Reading this holding in light of the current situation, the Department of
Natural Resources, as the dominant estate holder with the responsibility for the trail may
maintain the right of passage across the river by any means acceptable to the servient estate at its
own expense. The shifting of the trail downriver would qualify as making improvements to
continue enjoyment of the use. The state as the servient estate holder was under no obligation to
repair the bridge, but remains obligated to allow the holder of the easement the right of use.
Therefore, the removal of the bridge would have no effect on the use, although for future rail use,
the state may need to grant a new easement.
151
152
Phillips, supra note 13 at 914 citing Martin v. Waddell, 41 U.S. 367 (1842).
59 S.W.2d 983, 987 (Mo. 1933).
27
The second reason that a challenge to the continuity and control will fail is the Eighth
Circuit in the Grantwood II decision, which considers the issue of a potentially flawed
conveyance for railroad right-of-way.153 In Grantwood II, the Village asserted that because there
was not a formal recording of the easement that could be found from then President Grant to the
railroad, there could be no transferable interest to Trailnet. Although President Grant wrote a
letter to the predecessors in interest of MoPac, the Pacific Railroad, that he would be happy to
grant an easement and sell the railroad twenty acres for a depot, no documents were located that
verified the offer.154 The Eighth Circuit determined that the Pacific Railroad, its successors in
interest the MoPac and finally Trailnet obtained their easement by estoppel because of the
railroads investment and use for over 100 years.155 The Court of Federal Claims also considered
the same issue in Illig II and held that the “. . .Trails Act imposed a new easement across
plaintiff’s properties which retained essentially the same characteristics as the original easement
both in its location and exclusivity.”156
There is no claim of a flawed conveyance with the KATY Trail, but the holdings in both
Grantwood II and Illig II make it clear that the Missouri Department of Natural Resources
obtained a complete and viable easement for all of the Missouri-Kansas Texas Railroad
Company line. The potential breaking of the easement through the dismantlement of the bridge
would be considered a matter of use, not conveyance. As noted earlier, the use question and ‘rail
banking’ must be decided in favor of the continued use, despite any slight variations for alternate
routes.
153
95 F.3d 654 (Eighth Cir. 1996).
Illig II. at 621-22.
155
Grantwood II at 58.
156
Illig II at 631.
154
28
Finally, because the new easement for the KATY Trail has been acquired from the
adjacent property owners there could not be any new claims for a reversionary interest unless the
trail were voluntarily abandon by DNR and the ICC abandonment procedure completed without
any interest from either a railroad or another trail operator. Given the interest of the trail
supporters, it is unlikely that the trail would be abandoned. Perhaps the more interesting question
is whether this would lead to a new taking and if the cost of acquisition would be born by the
United States a second time. This, and other questions, will have to await the outcome of the
political battle.
V. Conclusion
The serenity and beauty of trails belie the controversy surrounding their creation and
continued use. The most recent alarm and potential challenge, to continuity and control of the
right-of-way, will fail for lack of a legal foundation. The State of Missouri, although engaged in
a political battle between a Republican administration and a Democratic Attorney General, has
the ability to resolve any question about the right-of-way, its continued use and future potential
use as a rail corridor. Given the investment of private parties to make the KATY Trail a tourist
attraction and Missouri’s interest in continued economic development, the use of the Trail seems
assured. The ongoing controversy between those who use trails and those who cherish property
rights will eventually fade. What will remain is the beauty of the trails.
29