Protecting Your Privates - Controlling Access Across Your Right of Way

The Library

This Communiqué was originally prepared for e-mail publication in the American Short Line and Regional Railroad Association's (ASLRRA) "Legal Tracks" Newsletter (Volume 3, Issue 1, April 18, 2008).

Most railroads have a variety of people crossing their rights of way – there are public roadway crossings, private crossings and there are trespassers. Potential injuries to railroad employees, as well as the users, and property damage are a continual concern. As a railroad, you have little control over public roadway crossings other than your input on the type of crossing protection. You have little control over where and how trespassers may cross your right of way other than policing your property. What about private crossings?

In its publication, Compilation of State Laws and Regulations Affecting Highway-Rail Grade Crossings, the FRA reported that, in 2002, there were over 100,000 private crossings in the United States. These are primarily industrial crossings, farm crossings, residential access crossings, and temporary crossings for private construction or seasonal activity. Your ability to control, and in some instances to remove, private crossings will depend in large part on the legal basis under which the crossing was established.

Some private crossings may have been created by statute. According to FRA’s Compilation of State Laws, over twenty states have laws requiring or regulating the opening or closing of closing private crossings. These often establish the right to cross a rail line when property has been severed by the rail line (and usually when there is limited public access to one of the parcels), and often limited to farms or other agricultural purposes. While some states have eliminated their farm crossing statutes (Pennsylvania, for example), others continue to consider adopting them. See, for example, American Short Line and Regional Railroad Association (ASLRRA) State Tracks (e-mail publication April 3, 2008) (noting several proposed Louisiana statutes). It is thus important as an initial step to examine the law of the state where you are operating to see what statutory rights your neighbors may have to cross your line, and to be aware of any limitations in use that the statute provides. Just because a farmer has the right to cross your line, it does not mean that he has the right to develop the property for other purposes and continue to use the crossing.

Other private crossings may have been reserved by landowners when the rail line was first laid out. Others may have been granted as property rights by you or by your predecessor. Where rights have been established by deed it may be difficult to eliminate the crossing. However, again it is important to examine the underlying property documents to see if any limitations were included that will allow you to restrict the use to that which was intended.

The recent decision in Island Park, LLC v. CSX Transportation, Inc.^[ii] illustrates that you may not be able to count on the state to help you close private crossings on your line. The case involved a private crossing used by a nursery business that crossed the Hudson Line used by CSXT (as successor to Conrail) and Amtrak. Island Park’s predecessor had previously sued Conrail for raising the tracks and removing the crossing. That action was settled and the implementing court order required damages to be paid, and the crossing to be restored and maintained by the railroad. The New York State Department of Transportation (NYSDOT) started an administrative action under a New York statute giving it the power to regulate crossings, to close the crossing and have the nursery use another crossing approximately 10 miles away. Hearings were held over a number of months, and the NYSDOT ultimately ordered the crossing closed. Island Park sued for lack of due process and for taking its property without compensation. It also raised ICCTA preemption. The Federal District Court ultimately agreed that crossings were part of “transportation” and that ICCTA preempts the New York statute as it related to this proceeding. The Court recognized that states retain traditional police powers to protect public health and safety through laws of general applicability (building codes, electrical codes, etc.), these hearings were specific to the one crossing and not a general regulation. Therefore, the closure order was preempted.^[iii]

There will be, of course, times where the railroad is willing to grant someone the right to cross – for example, for access to an industrial customer of the railroad, or for temporary access to a property for construction. In those instances it is important that the railroad enter into a private crossing agreement that determines the details of the use. (Even where people have statutory or property rights to cross, many of the details of the crossing arrangement are often not set forth, and the best practice is to have an agreement with every user of a private crossing.)

Some important terms you would want to cover in a private crossing agreement –

Type of access, limitation on use – if for farm equipment, don’t allow semi-trailers or conversion to access for a housing development; if for industry, limit to the business of the industry

Type of crossing, protection - depending on type of access and use

Maintenance – by railroad? at expense of user? annual fee? reimbursement of actual costs?

Allocation of (and release from) liability, insurance – remember there would be no liability or damage to your or your train if the crossing were not there (even if the railroad were operating negligently)

Termination – are the rights permanent, or are there rights of termination?

Annual fee – may depend on the basis under which the user has the right to cross

The railroad’s leverage in negotiating the various terms of an agreement will of course be subject to whether the user has an absolute right to cross, or whether the railroad is entering into the agreement voluntarily.

Suppose someone has been regularly using a private crossing and your investigation indicates there is no statutory right or property right to do so, and no agreement in your files. If you are willing to allow the use to continue, you should require the user to enter into a private crossing agreement as discussed above. If you do not want to allow the continued use, or if the user refuses to enter into an agreement to cover the use, then you need to examine your alternatives for removing or blocking the crossing. Unfortunately, the resolution often will involve litigation.

One alternative is for the railroad to bring an action in court seeking a declaration that the user does not have any right to cross the line, and for an injunction requiring the user to stop. You may also be able to include a claim for damages for trespassing on your property. In the litigation, the user would defend trying to establish a right to cross.

A second alternative is to use “self-help” – to remove the crossing or block access to the crossing. The likely response by the user is litigation seeking to have the crossing reinstalled/reopened, and for damages from not being able to use the crossing. Thus, in using self-help, you take the risk that the user can establish that he does have some right to cross your line (and that he has the time, energy and funds to pursue you legally). You should usually give the user notice before blocking the crossing to give him time to investigate and or arrange for alternatives (which would help to mitigate any damages in the event it turns out the user does have some rights.

The railroad may well succeed in the litigation even if the crossing has been in use for a number of years, although the result can vary depending on state law. Under general state law, parties can gain rights over time (usually over 20 years) to use property by adverse possession, or may be able to gain rights by prescription (where other access is not available). However, if your state considers railroad rights-of-ways to be public highways, public utilities, or otherwise to be used for the public benefit, these adverse rights may well be limited.

In Mississippi Export Railroad Company v. Rouse,^[iv]the crossing at issue had been used for over 50 years. However, when a new owner began using the crossing for its nursery business with 18 wheelers and 46 foot trailers, the railroad demanded an agreement. When there was no response, the railroad eventually gave the nursery owner a 30-day notice of removal, and offered an easement along its right of way to reach a public road. The user would not have been able to use the 18 wheelers to service the property, and filed suit seeking a prescriptive easement and an injunction against interference with his use of the crossing. He also sought damages for removal of crossing. The trial court granted relief to the user. The railroad appealed (supported by amicus briefs filed by ASLRRA and by the Mississippi Railroad Association), and the Mississippi Supreme Court found that, in Mississippi, neither prescriptive easements nor adverse possession may be obtained by private citizens across active railroad lines because they are considered by the state constitution to be public highways. Although the decision is limited to Mississippi law, the court cited similar findings in other states limiting prescriptive and adverse possession rights over property affected with a public interest or dedicated to a public use, including Virginia, California, Connecticut, Kentucky, Tennessee and West Virginia. (Pennsylvania has similar law based on railroads being considered public utilities.)

Overall, the key to dealing with private crossings is to determine who is crossing your railroad and what rights and limitations, if any, govern the right do so under the laws of your state. Your best protection is to understand these rights and limitations, and to make sure the users have the same understanding. An agreement between the parties is the surest way to make these understandings clear, and to build in protections to make the use of the crossing as safe as possible. Then, it is up to you to enforce any limitations or restrictions in the use of these crossings, including eliminating crossings for which there are no rights or agreements, in order to protect your employees and your railroad.

i. Chapter 11, “Private Crossings.”

ii. USDC Northern District of NY, 2007 U.S. Dist. LEXIS 46608 (June 26, 2007).

iii. The implications of this decision for state regulation of public crossings is beyond the scope of this article.

iv. Supreme Court of Mississippi, No. 2004-CA-00503-SCT, served December 8, 2005.

For assistance with respect to this subject, please contact Eric Hocky at 215.640.8523 or ehocky@thorpreed.com.

This Communiqué is prepared in summary form and is not to be construed as legal advice or opinion on any specific fact or circumstance. We do not assume any responsibility to revise this Communiqué if there are subsequent changes in the law.To review other Communiqués previously distributed, please visit Thorp Reed & Armstrong’s website at www.thorpreed.com.

April 2008