(CN) - A court cannot retroactively declare a railroad right of way abandoned under the Abandoned Railway Right of Way Act, the 9th Circuit ruled. The judges remanded a dispute over an abandoned railway along Montana's Clark Fork River.
Avista Corp. claimed that Sanders County could not claim and build a roadway on a section of railroad that had not been officially declared abandoned until a recent district court declaration.
The disputed right of way was granted to the Northern Pacific Railroad Co. in the 1880s. In 1923, Congress passed the Abandoned Railway Right of Way Act, which requires the government to turn railroad rights of way into public highways within one year of abandonment, or give the rights of way to the owners of the land the former railroads traversed.
The 9th Circuit concluded that the district court erred in retroactively applying the date of abandonment to 1959 and deprived the county of the right to build a public highway within the one-year statute.
"A declaration of retroactive abandonment would be inconsistent with the plain language of (the Act), which requires both physical abandonment and a formal declaration of abandonment for reversionary interests to vest," Judge Sidney Thomas wrote.
The court remanded to determine if the one-year period for establishing a public highway tolled during the appeal process.