Federal Government Must Pay Landowners For Rail Trail Taking.

The plaintiffs, landowners adjacent to a railroad track that had been converted to a recreational trail, claimed that the government took their property without paying just compensation when the Surface Transportation Safety Board (STSB)  issued a Notice of Interim Trail Use (NITU) under the National Trail System Act Amendments of 1983 to allow the Union Pacific Railroad (U.P.) and the local county to negotiate trail use over a portion of the rail corridor in the county.  The plaintiffs claimed that they owned the underlying fee simple interest in the corridor.  The government argued that the property deeds subject to easements for railroad use in the early 1900s did not belong to the current landowners because the land surrounding the railroad was exempt from the deeds upon their transfer and contemplated public recreational use.  The court disagreed with the government's position.  The court determined that the easements did not contemplate public recreational use and state (OR) law clearly stated that rail traffic and pedestrian or cycling uses within the same space not compatible.  However, the court found that a few deeds included a simple transfer of land to the railroad companies and those landowners were not entitled to compensation.  However, deeds using "right of way" language and where the railroad's fee interest was "nominal" transferred only an easement and not ownership.  Thus, approximately 80 percent of the landowner/plaintiffs will be entitled to compensation for the taking triggered by the conversion to a trail.  Boyer, et al. v. United States, No. 14-33L, 2015 U.S. Claims LEXIS 1236 (Fed. Cl. Sept. 25, 2015).