Read the last few posts and it piqued my interest. I’m not going back to read all 200 posts so I apologize in advance if my post is duplicative.
The issue for rail trail conversions is really, who owned the right of way and are the rails still “active”.
First, it is very difficult under federal law to “take” an active rail right of way. This has been trace to laws written in the 1800’s when rail was king. Seems to me that that if they are running trains along Paugus Bay they are still active.
Second, there is the ownership issue. Most older rail right of ways were created by a federal law from 1875 that granted rail companies an easement over a parcel of property. A 2014 US Supreme Court ruling said that this easement was removed when the track was abandoned and “ownership” reverted to the property owner. This ruling is being used by abutter groups (including one in my town) to contest the right of the state to transfer (or lease) a right of way that they acquired from a RR company to municipalities for rail trails. Not being a lawyer, I’m guessing that the theory is that at the moment the rails are abandoned (removed) the easement is voided and the RR company or state loses any right to transfer or lease. Don’t know if any of these cases have reached final decision. It will be interesting to follow.
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