Private Land With Old Rail Lines Isn’t County’s

     CHICAGO (CN) – A rural county in northern Wisconsin cannot build snowmobile trails across two privately held lots without first buying the rights-of-ways or exercising eminent domain, the 7th Circuit held, reversing a lower court decision.

     The property, owned by the Samuel Johnson 1988 Trust, once contained North Wisconsin Railroad lines.
     Bayfield County claimed that it already possessed the proposed trail area as a “reversionary interest” derived from a complex web of federal railroad statues.
     In an effort to encourage the building of railroads, the government had imposed a checkerboard pattern on large areas of federal public domain, dividing the land into alternating even- and odd-numbered sections. Odd sections were given to states to sell to railroads. Even-numbered sections were retained by the government.
     An 1852 statue, Bayfield argued, gave railroads the right-of-way that reverted to the federal government when the railroad’s use ended – an interest that was passed on to the county by a 1922 law.
     But the 7th Circuit rejected the argument, finding that the North Wisconsin Railroad was not chartered within the 15-year period provided by the 1852 act. Another line called the St. Croix and Lake Superior Railroad had taken advantage of the federal statue, but that action was distinguishable from the North Wisconsin, which was chartered in 1871.
     The North Wisconsin had implicitly acknowledged its lack of rights under the 1852 act by using powers of condemnation to obtain the rights-of-way that it needed for its railroad line. Governments can exercise condemnation through eminent domain to take an interest in or ownership of certain privately owned property.
     Federal transfers of land to private individuals do not include rights-of-way transfers in cases where railroads had acquired the rights through condemnation, the court observed.
     Under the county’s theory, “Countless tracts of private land would be encumbered with a federal easement even though no conferral of such an interest appeared in a statute or a chain of title,” Judge Richard Posner wrote.
     Furthermore, when the rail line was abandoned in 1980, federal law allowed the trust to acquire the right-of-way a year and a day later.
     “The County was aware of the abandonment and indeed considered buying the right of way from the railroad at that time,” Posner wrote. “Instead it waited a quarter of a century and then claimed a right to obtain the right of way for nothing.”
     “The County can still build snowmobile trails on the plaintiffs’ lots if it wants, but it hasn’t yet acquired the right to do so, because it failed to invoke the right within the statutory deadline of one year,” Posner concluded. “It will have to buy the right from the plaintiffs or take it by exercise of its condemnation powers.”

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