Real Estate & Property Law

Railroad's right to land points to charter

By Alan Ackerman

TimesNews of North Carolina

The bill — which passed the House in May and sits before the Senate Judiciary Committee — would prepare the way for a light rail corridor, should the state choose to begin high-speed rail service. Light rail trains can't run on the currently laid track.

Following a story about Gibsonville's opposition to the proposed legislation, Albright e-mailed and left messages at the Times-News citing sections of the 1849 charter legislation he says gives the railroad until 1859 to complete work and to pay for any land it condemns along the track.

He also said the amount of the railroad's right of way is limited, and probably to no more than 10 feet.

'The 1849 enabling legislation does not grant the railroad any right of way whatsoever. The legislation allows the railroad to purchase right of way from individual property owners and to condemn and pay for the property of individuals for depots, railroad work yards, hotels, etc., but even in those cases the railroad could not condemn more than two acres from any one property owner, specifically 200 feet by 400 feet of property,' Albright said in an e-mail.

Dick Ellis, an attorney with the N.C. Railroad Co., disputes Albright's interpretation.

'I have the utmost respect for the Alamance County attorney, but I don't know what he's talking about,' Ellis said Tuesday. 'In general, along its 317 miles of track, the charter gave the railroad a significant right of way and explained that the railroad always has the right to utilize the land for railroad purposes.'

Nothing is more difficult than seeking to limit specifically empowered uses of property in a society of changing technology.  The likely result is a court, which will be mired in a very precise reading of the original statute.  The court will determine what rights were originally contemplated under the delegation and then determine whether there was a statutory intent to imply greater powers in the future.  The reality is that North Carolina needs the right of way for modern trains, yet is not sure if the subject right of way is the right of way, which should be utilized.

Full post as published by National Eminent Domain Blog on July 30, 2009 (boomark / email).