Preserving Transportation Corridors for the Future: Another Look at Railroad Deeds in Washington State

• Publication year: 2001

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1FALL 2001

Preserving Transportation Corridors for the Future: Another Look at Railroad Deeds in Washington State

Gregg H. Hirakawa(fn*)

Introduction and Overview

The advent of recreational trails throughout the country has allowed thousands of citizens the opportunity to casually bike, hike, jog, walk, and in some cases rollerblade along miles of urban waterfront or through the pastoral rural countryside. The light clicks of shifting de-railleurs or muffled taps of air-soled shoes, however, mask one of the country's most contentious property issues over the past 30 years.(fn1) The dispute has been over preserving unused railroad corridors by converting them into public recreational trails or pathways.(fn2) In Washington State alone, the prospect of new recreational trails has led to ongoing litigation and news headlines around the Seattle -Puget Sound area. Landowners adjacent to a proposed trail through farmland in Skagit County, north of Seattle, have filed federal and state class action suits hoping to stop trail construction.(fn3) Rural residents east of Tacoma in Pierce County have filed suit to halt development of one trail and have organized to oppose the trail's extension.(fn4) Homeowners along the eastern shore of Lake Sammamish outside of Seattle have filed multiple state and federal suits, challenging King County's land acquisition process and regulatory compliance.(fn5) Suburban city residents in Kirkland have threatened litigation upon the City Council's voting to study the possibility of a trail.(fn6)

Hiking and biking trails are extremely popular with citizens in both rural and urban settings.(fn7) According to the Rails-to-Trails Conservancy, there are currently 1,109 recreational trails stretching 11,313 miles across the country.(fn8) The organization reports that another 1,225 trails totaling an additional 17,131 miles have been proposed throughout the nation.(fn9) The country's two most heavily used trails attract an estimated two million users annually.(fn10) Hiking and biking trails provide dedicated pathways for public recreational activity and alternative forms of transportation for daily commuters. Furthermore, trails provide needed public open space in areas with limited available recreational land.

In 1983, Congress amended the National Trails System Act of 1968,(fn11) recognizing the value of public rail corridors. The 1983 Amendment was intended to promote the preservation of abandoned railroad rights of way for potential future railroad use.(fn12) The Act authorizes private or public entities to purchase inactive or unused rail lines from railroad companies for conversion into public recreational use.(fn13) Railroads retain the option to repurchase the trail and reinstall tracks should rail operations become once again necessary through the corridor.(fn14) Abandonment of the right of way is thus postponed and "banked" with a state, municipality, or private organization responsible for the trail.(fn15) Railroads are relieved of tort liability and property tax payments of between $18,000 and $24,000 per mile per year within the corridor.(fn16) Local residents enjoy a recreational pathway isolated from automobile traffic,(fn17) and public transportation corridors are preserved for a variety of alternative public purposes including highways, utility corridors, wildlife habitat, and recreational trails.(fn18)

Landowners adjacent to railbanked corridors, however, claim converting railroad corridors into recreational trails constitutes an unconstitutional taking, requiring compensation under the Fifth Amendment.(fn19) Homeowners living next to proposed recreational trails have also argued trails lead to increased crime and public safety problems from trail users in the immediate area,(fn20) additional trespassing,(fn21) loss of privacy,(fn22) and to diminished property values because of the public use.(fn23) Trail critics generally substantiate their claims with little more than anecdotal evidence, but the prospect of adverse impacts has prompted significant litigation over an otherwise popular public amenity.

Landowners adjacent to railbanked corridors have challenged, among other things, administrative rail abandonment procedures,(fn24) the constitutionality of the 1983 Amendment,(fn25) and the conversion of rail right of way to recreational use.(fn26) More recently, adjacent landowners and property rights advocates have sought compensation for perceived property loss through class action litigation(fn27) and legislative changes to the National Trail System Act.(fn28) They have even tried collateral challenges, seeking state relief from the federal regulation.(fn29)

Railbanking opponents have become creative in attempting to stop proposed trails. One homeowners group has attempted to circumvent the Act by establishing a fictitious railroad within the unused rail corridor in order to maintain the rail bed for active rail use.(fn30) A husband and wife have tried a self-help route, erecting barbed wire topped chain linked fences across the inactive rail bed, hoping to stop trail construction.(fn31)

The litigation has led to additional costs for taxpayers and delays in trail construction. Furthermore, settlements and court decisions can lead to unjust windfalls for property owners falsely claiming property interests in the rail corridor.(fn32)

This Comment will analyze the recent approach the Washington court has incorporated in settling trail development disputes across the State. In particular, the Comment will examine the court's use of common law deed interpretation principles in upholding property rights while preserving valuable public transportation corridors. Furthermore, the Comment will show how the Washington court's recent approach in interpreting railroad deeds has made recreational trail construction more appropriately a legislative matter, rather than a legal one.

Section I of the Comment will begin with an historical overview of railroads in the United States, background on the public "Rails-to-Trails" movement, and an explanation of the underlying public policy and enabling federal law. Section II will then examine the leading federal case on railbanking. Section III will look at how Washington courts have addressed the railroad corridor preservation issue, particularly the Washington Supreme Court's reasoning pertaining to deed interpretation in Brown v. State. (fn33) Section IV will address how the court has handled rail corridor quiet title actions subsequent to Brown. Finally, Section V will conclude with observations for future trail construction within Washington State.

I. History of Rails-to-Trails

A. The Rise of Railroads in the United States

The advent of rail travel fueled industrial growth in the United States during the 1800's. The amount of the country's railroad tracks grew from about 100 miles to over 27,000 miles between 1830 and I860.(fn34) Congress facilitated the rapid rail expansion by invoking its eminent domain power in acquiring land needed to support the national infrastructure.(fn35) In addition, federal lawmakers embarked on a policy of providing railroads with lavish public land grants.(fn36) The federal government in 1835 began granting an estimated ninety million acres of land directly to railroads and another forty million acres indirectly to rail carriers through various state grants.(fn37) By 1890, Congress had transferred more than 1.2 billion acres of public land to private parties.(fn38) Many states also passed laws giving railroads plenary powers to condemn and acquire private land for railroad uses.(fn39) Acquiring property for railroads, however, was hardly an exact practice. Some railroad companies armed with quasi-governmental power established corridors based on convenience and economy, rather than on pre-existing property boundaries.(fn40) Railroad representatives would appear on landowner's doorsteps with form deeds in hand.(fn41) Landowners could either sell their property or have it taken under eminent domain.(fn42) The process led to ambiguous conveyances sometimes stating fee simple acquisitions but using terms such as rights of way, easements, reversions, and other limiting language such as "for railroad purposes only."(fn43)

Congress acted to define the scope of railroad property interests by enacting the Transportation Act of 1920.(fn44) The Act granted the Interstate Commerce Commission (ICC) the authority to regulate construction, operation, and abandonment of railroad lines.(fn45) At the time of the Act's passage, U.S. railroads had laid down more than a quarter of a million miles of tracks.(fn46)

Ten years later, however, railroads began facing stiff competition from the country's trucking industry.(fn47) The federal government was directly subsidizing the nation's highways.(fn48) Truckers, having no need to own roads or pay property taxes, enjoyed lower costs.(fn49) Until the 1920's, railroads had a virtual monopoly on the nation's freight revenue.(fn50) In the early 1930's, rail companies began consolidating and abandoning lines in order to remain profitable, as U.S. industry discovered other modes of freight transport.(fn51) By 1940, rail carriers' freight revenue market share dropped to 75.42 percent, while motor carriers captured 17.74 percent.(fn52)

B. The Subsequent Fall

By the 1960's...