There's a little puzzle question in the comments here, right at the end

Daily Development for Tuesday, May 14, 2002

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

ADVERSE POSSESSION; RAILROADS; NATURE OF CLAIM: When a railroad has adversely possessed land it has used as a railway for the statutory period, it may claim an easement by prescription but not an interest in the fee estate. Strother v. Bootheel Rail Properties, Inc., 66 S.W.3d 751 (Mo. Ct. App. 2001).

Defendant railroad had long since abandoned any operation of trains on the right of way in question. Under Missouri law, cessation of operation of trains constitutes abandonment of a railroad right of way. But, of course, the abandonment doctrine doesn't operate where right of way property is owned outright, rather than as an easement.

The defendant railroad, unable to produce deeds to several tracts of land over which it had operated its railway, claimed that it had obtained fee title to the tracts of land by adverse possession. It had not operated a railroad in many years, and had continued to treat itself as owner of the properties.

The court cited prior case law setting forth two general rules regarding a railroad's ownership interest in the land over which it lays its track. First, "[a] railroad may hold, purchase, or convey the fee in land when acquired by general warranty deed without restriction on the quantum of title conveyed and for valuable consideration." And second, "[w]here the acquisition is for right-of-way only, . . . whether by condemnation, voluntary grant, or conveyance in fee upon valuable consideration, the railroad takes only an easement over the land and not the fee." The defendant railroad's adverse possession claim could not be easily determined by reference to these rules; but the court relied on cases from other jurisdictions for the proposition that "a railroad company acquires by prescription or adverse possession only an easement in a right of way." The court explained that the nature of the railroad's use requires nothing more than an easement; therefore, the railroad does no t acquire fee title by adverse possession. Because the defendant railroad had since abandoned the land at issue, it reverted back to the abutting land owners.

Comment: This is a subtle question, and the court acknowledged, one of first impression in Missouri. The decision is based upon a public policy notion that acknowledges the special authority railroads had in obtaining right of way during the late 18th and early 19th centuries when huge landholdings were built up to create right of way. The notion appears to be that to permit railroads to exploit that privilege and expand into ownership through adverse possession seems to be bad policy, even though railroads always had the power to acquire fee ownership by grant, and often did.

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