In 1891, the San Joaquin Valley Railroad acquired easements for its railroad right of way. The Southern Pacific Railway later acquired these easements. Later, the Union Pacific Railroad merged with the Southern Pacific.

Menno and Evelyn Toews now own property adjoining one of these railroad easements. In 1994, the railroad abandoned its easement over their property.

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Under the federal Rails to Trails Act, the City of Clovis acquired the right to use the abandoned railroad easement for interim trail use. The city planted trees and fenced the easement area. It is now used for walking, skateboarding, jogging, rollerblading and other activities.

But Menno and Evelyn feel they should be compensated for this public use of part of their property.

Their predecessor’s grant to the San Joaquin Valley Railroad says: “Provided, however, that if said Railroad Company shall permanently discontinue the use of said railroad the land and Rights of Way shall at once revert to the undersigned.”

As owners of the land adjoining the former railroad easement, Menno and Evelyn sued the U.S. government. Pointing to the original easement grant to the railroad, they argue the federal government has taken part of their land without payment under the federal statute and they should be compensated.

If you were the judge, would you rule Menno and Evelyn are entitled to payment for the permanent taking of part of their land under the federal Rails to Trails Act?

The judge said yes!

When the railroad abandoned its use of the easement in 1994, the judge began, under the terms of the easement grant that action entitled Menno and Evelyn to return of their easement beneath their land.

However, the federal Rails to Trails Act provides that abandoned railroad rights of way may be used by local jurisdictions for recreational purposes, as occurred in this situation, the judge continued.

But such a “taking” of private property for public use requires payment to the private property owners, the judge ruled. After the railroad use was abandoned, the easement terminated and the taking under federal law requires payment to the adjoining property owners for the fair market value of their easement area, the judge concluded.

Based on the 2004 U.S. Court of Appeals decision in Toews v. U.S., 376 Fed.3d 1371.

(For more information on Bob Bruss publications, visit his
Real Estate Center


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