CHAPTER 5 RAILROAD RECORDS AND TITLES

• Jurisdiction: United States

Land and Permitting II
(Jan 1996)
CHAPTER 5
RAILROAD RECORDS AND TITLES
Robert L. Bartholic
Hamilton and Faatz
Denver, Colorado

ACKNOWLEDGMENTS

No research project is undertaken, no paper is written, nor presentation made, without opportunity, inspiration, encouragement, and critical evaluation by colleagues, and help from associates, others in the field, staff, and friends, in and out of the legal profession. This paper and presentation is no different.

I am most fortunate to have been tutored by my father, Clarence L. Bartholic, a leading Colorado real estate practitioner and thus afforded the invaluable opportunity to learn all the things that are not in the book about titles, where to find them, how to interpreted them, how to convey them, and how to cure and make them marketable.

The excellent foundation in all aspects of real property law provided by the late Professor Thompson G. Marsh¹ of the University of Denver, College of Law, is priceless. If one disciplined ones self to his "red" "black" "green" and "blue" method of legal thinking, Tom Marsh afforded to you every opportunity to master the subject.

I also have benefitted from the opportunity to work with world class railroad attorneys, land and engineering personnel at Great Northern Railway Company, and after merger with their counterparts at the Northern Pacific Railway Company; Chicago, Burlington & Quincy Railroad Company² ; Saint Louis-San Francisco Railway Company³ ; The Colorado and Southern Railway Company⁴ ; Fort Worth and Denver Railway Company; their subsidiaries and affiliates⁵ .

Particularly prominent among the railroad experts are the late Anthony Kane, Vice President-Law; Herbert B. Krengel, General Counsel; the late John C. Street, Regional Counsel⁶ ; James C. Kenady, former Vice President Industrial Development and Property Management; B. G. Anderson, former Chief Engineer; and M.O. Woxland, former Principal Engineer. These men were tough demanding bottom line oriented taskmasters who provided leadership and direction, along with an invaluable wealth of years of experience, in a dynamic environment of an expanding vital company in the American West⁷ . It was a singular opportunity.

I have been provided with the daily opportunity to deal with the diverse aspects of railroad land, coal, mineral, forest and agricultural holdings, in the American and Canadian West, of major rail carriers, their titles, mortgages, management and disposition.

I have had the Good fortune of knowing Tom Root. I became acquainted with Thomas E. Root at Burlington Northern, in the successful completion of an exchange of Northern Pacific land grant severed coal with the United States of America. Later I

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was able to assist Tom in the research and background preparation of his authoritative and complete Railroad Land Grants From Canals To Transcontinentals.⁸ In the recent past I have collaborated "of Counsel" with to Tom in several E.P.A. superfund actions, providing him with railroad right-of-way and land title data which he has informed me was significant to case resolution.

I have worked in areas of the law in which I possess an enthusiastic interest, for a railroad industry that has been a lifetime vocation and avocation. There never has been a day when I did not enjoy going to the office or doing the work. How lucky I am, and this continues to today. Hamilton and Faatz, provide the congenial atmosphere necessary to good legal work. I am especially indebted to Dwight Hamilton, Clyde Faatz and Jim Marlow.

Unfortunately, no matter how brilliant or knowledgeable a speaker, the steel rail meets the flanged wheel in the preparation of the presentation paper. A good road bed is essential in any railroad endeavor and this was provided by my patience wife, Esther, and the sustained effort of my Legal Assistant George F. Pulver, C.F.A.

Standing naked and alone before you, I take full responsibility for the entire text and its presentation. Thank you for your indulgence.

Denver Colorado, January 1996

Robert L. Bartholic

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RAILROAD RECORDS AND TITLES

BY

ROBERT L. BARTHOLIC

I
INTRODUCTION

A

This presentation will address the topic: RAILROAD RECORDS AND RAILROAD TITLES, to include grant lands, rights-of-way, corporate records, museums and U.S. Government records. How were they acquired? What they are? How to find them? How to obtain them? How are they interpreted? How can they be utilized?

B
RIGHT OF WAY

What is a right-of-way? Does the term have more than one meaning?

Black's Law Dictionary ¹ informs: "Term 'right of way' sometimes is used to describe a right belonging to a party to pass over land of another, but it is also used to describe that strip of land upon which railroad companies construct their road bed, and, when so used, the term refers to the land itself, not the right of passage over it."

In a Pacific Railroad Act case, New Mexico v. United States Trust Company,² construing Sec. 2 of the Atlantic and Pacific Railroad Company Act,³ the U.S. Supreme Court, teaches:

"The right of way is granted to the extent of two hundred feet⁴ on each side of the railroad, including necessary grounds for station buildings, workshops, etc. What, then if meant by the phrase 'the right of way'? A mere right of passage, says appellant. Per contra, appellee contends that the fee was granted, or, if not granted, that such a tangible and corporeal property was granted, that all that was attached to it became part of it and partook of its exemption from taxation. *** Examining the statute, we find that whatever is granted is exactly measured a physical thing — not as an abstract right. It is two hundred feet wide,⁵ and to be carefully broadened so as to include grounds for superstructures indispensable to the railroad.

"The phrase 'right of way,' besides, does not necessarily mean the right of passage merely. Obviously, it may mean one thing in a grant to a natural person for private purposes and another thing in a grant to a railroad for public purposes—as different as the purposes and uses and necessities respectively are."

In Keener v. Union Pacific Railway,⁶ *** defined the words "right of way:" as follows: The term 'right of way' has a twofold significance. It sometimes is used to mean the mere intangible

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right to cross; a right of crossing; a right of way. It is often used to otherwise indicate that strip which the railroad company appropriates for its use, and upon which it builds it roadbed." " ***in Joy v. St Louis,⁷ Now the term 'right of way' has a two fold signification. It is sometimes used to describe a right belonging to a part, a right of passage over and tract; and it is also used to describe that strip of land which railroad companies take upon which to construct their roadbed.' That is the land itself — not a right of passage over it. *** "

"In Smith v. Hall⁸ the Supreme Court of Iowa says, speaking of the right of way of a railroad: 'The easement is not that spoken of in the old law books, but is peculiar to the use of a railroad which is usually a permanent improvement, a perpetual highway of travel and commerce, and will rarely be abandoned by non-user.⁹ The exclusive use of the surface is acquired and damages are assessed on the theory that the easements will be perpetual so that ordinarily the fee is of little or no value unless the land is underlaid by a quarry or mine.'

'The right acquired by the railroad company, though technically an easement, yet requires for its enjoyment a use of the land permanent in its nature and practically exclusive.'"

The New Mexico opinion, with many more cases, discussion and case authorities, continues at length on whether the subject railroad right of way is easement (railroad right-of-way) or fee title for the purposes of the Act and real property taxation, or is exemption from the taxation in question. The decision is that the subject right of way is exempt from taxation, under the Act and facts.

The leading Charter right-of-way title case, Northern Pacific Railway Company v. Townsend,¹⁰ neither cites the New Mexico decision,¹¹ nor engages in any definitional discussion of railroad right-of-way.

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II
ACQUISITION OF RAILROAD RIGHT OF WAY

A
UNITED STATES

A. Private Grant or Reservation.

B. Congressional Grants Across Public Lands of the United States to States and Railroad Companies.

(1) Early grants by individual Acts, 1822 to 1849. The special grants of rights-of-way to railroads, which preceded the general grants which opened up the West, were in the nature of specific Congressional authorizations granting specifically described lands to named grantees.

(2) Mobile and Ohio Railroad Company. First combination grant of a 100 foot wide right of way to railroad company, and 25 foot wide grant of land on each side of the right of way to States through which road passes, for the use of the railroad company¹ .

(3) Illinois Central grant to States of Illinois, Mississippi and Alabama of a 200 foot wide railroad right of way, and every alternate section of land designated by even numbers for six miles on either side of the road and its branches² .

(4) Twenty eight special right of way grants were awarded by Congress in the 32 years between 1830 and 1862, including several which were originally made for canals and were later transferred to railroad right of way. Of these many were later forfeited for failure to construct.

C. Pacific Railroad Acts, 1862-1871.

(1) Union Pacific, Central Pacific and others. Grant to railroad company of a 400 foot wide right of way across the public domain plus a land grant of ten odd numbered sections of land per mile³ .

(2) Northern Pacific. Grant railroad company of a 400 foot wide right of way across the public domain plus a land grant of 10 odd numbered sections of land per mile in the States and 20 odd number section per mile in the Territories⁴ , with indemnity lands to...