Daily Development for Monday, July 9, 2001

 

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

 

RAILROADS; RIGHTS OF ADJACENT LANDOWNERS: Railroad right of way created by grant by the U.S. does not uniformly revert to ownership of adjacent owners.

 

Smith v. Malone, 742 N.E.2d 785, (Ill. App. 4 Dist. 2000)

 

Owners of land on one side of an abandoned railroad right.of way brought claims of ejectment and quiet title, alleging title in the right of way by reversion.  The right of way was originally granted by Congress in

1850s to Illinois Central Railroad Company.

 

Both sides relied upon the language of 43 U.S.C. 912, a very convoluted statute that appears to provide that, upon the railroad's abandonment, the federal government reversion shall be "transferred to and vested in any person, firm, or corporation, assigns, or successors in title and interest to whom or to which title of the United States may have been or may be granted, conveying or purporting to convey the whole of the legal subdivision or subdivisions traversed or occupied by such railroad or railroad structures of any kind as aforesaid"

 

In February of 1988, the Railroad had quitclaimed all of its right, title, and interest to the original 200 foot wide railroad right of way in the subject parcels to William C. Edwards, who has subsequently engaged in various conveyances regarding the right of way.

 

The plaintiffs claimed that the conveyance to and among the various defendants, starting with Edwards, were void.  They asserted that the Railroad could not have conveyed any interest to Edwards because the Railroad's interest in the right of way was a limited fee subject to right of reverter and terminated when the Railroad ceased to use or retain the right of way for the purposes for which the United States granted it.

 

The court determined that the question of the validity of the grant to Edwards was moot in this litigation.  Plaintiffs themselves had the burden to establish title to the land underlying the right of way. The court noted that a fundamental requirement in an action to quite title is that the plaintiff must recover on the strength of his own title, although it is not required that a perfect title be established.  To prevail in a quite title action, a plaintiff must establish title superior to the defendant's title.

 

Here, all of the plaintiff=s deeds had boundary descriptions which referenced the right of way as a boundary, but did not necessarily the land underlying the right of way.  In one case, the deed described property "lying west of the right of way," while in the other the deed described a line along the eastern edge of the right of way.   There was also some doubt as to whether the grantors of those deeds indeed were successors in interest to the United States, but this uncertainty was not the decisive issue.   The court determined that the plaintiffs, under the deeds described above, were   not successors in interest to those to whom title from the United States may have been granted, because their deeds did not include the land underlying the right of way.  As a result, the Appellate Court of Illinois affirmed the trial court's decision to dismiss the complaint.

 

Comment 1: Although this case deals with a railroad right of way being viewed as a conditional fee, the lesson here might also be appropriately applied to cases in which the railroad interest is viewed as an easement.

 

The grantor of the easement, usually a nineteenth century farmer, retained the underlying fee, of course, subject (usually) to an exclusive right of use by the railroad.  When the owner subsequently transferred title to lands adjacent to the railroad's interest, the question arises whether that transfer included the transferor's servient estate in the easement.  Remember that many of these rights of way were quite wide and, at least in modern times, could constitute one or more usable parcels where the railroad terminates use and there is a reversion to the servient owner. (In this case, the right of way was 200 feet wide.)

 

Even where the railroad remains in operation, the question is whether adjacent owners can object to what might be found to be nonrailroad uses, notably today the use of the right of way for third party telecommunications facilities (whether or not these are inconsistent with the easement is an unresolved question, and may differ from one transaction to another.)

 

There are a number of cases finding that the where the grantor's deed uses a public road as a boundary, and the roadway is an easement, the presumption is that the grantor has transferred the reversion to the centerline of the road.  But this hardly comprehends all the situations.

 

As this case demonstrates, the presumption does not arise if describes the boundary as a distance "along the right of way."   One would assume that the same would be true if the grantor describes the edge of the parcel in metes and bounds, but that edge in fact is the right of way.

 

What about a situation the right of way originally was taken from the edge of an identified quarter section, in a situation where the grantor owns an adjacent quarter section.  If the grantor subsequently conveys entire  quarter section subject to the right of way, and later conveys land in the adjacent quarter section showing the railroad as a boundary, one would assume that there was no intent to transfer any portion of the servient estate in the second transfer.  But what if the grantor first transferred the adjacent property.   Does this change the presumptions?

 

What about transfers of the "north forty acres" where the railroad runs along the edge of the acreage?  Such transfers were common in divisions among children at death or otherwise.  Isn't that situation quite similar to the language of the deeds at issue here?  Or is it not similar enough?

 

Comment 2: In short, one should be quite cautious when reading case law suggesting that property along a right of way easement reverts to the owners on either side of the easement.  Even if this is presumed in certain circumstances, there are many others in which the presumption is not justified.

 

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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