Fighting the Threatened “Utility Trespass”

By Michael J. Barron, Jr.

Every day across the country, railroad property lines are breached by people seeking access for any number of reasons.  Most fatal and serious injury occurrences on railroad property are suffered by trespassers.  Railroads are focused on keeping safety as priority No. 1—and that includes people who are on their property, with or without permission.

One of the cases we see most often concerns a utility consultant or utility contractor wishing to access property.  They will inevitably send their standard letter, which states they are at a public crossing, the railroad has no ownership interest to speak of, the crossing is dedicated to public use, and they are coming across whether you like it or not, but you can provide flaggers at your cost, if you please.

For the purposes of establishing your rights should litigation occur, there are some low-cost steps you can take that will ensure your railroad is as prepared and as protected as possible.  Taking these steps will put you in a better position to refuse access and may lead to an access agreement instead of litigation.

(1) Post your process on the web.

Make sure you have clear directions on your website for anyone who is seeking to cross your property.  Clearly state your requirements, including any necessary forms, safety requirements, insurance, indemnity, fees and flagging.

(2) Ensure that ownership documentation is in order.

In order to maintain a trespass claim, a railroad must prove the right to possession at the expense of others.

Identify the location at issue and obtain documentation that clearly shows the railroad’s ownership right.  This might even mean going back to the original acquisition deeds for the property from the late 1800s and reviewing the terms of title.  Is there an easement or full ownership for the railroad?  If necessary, the current railroad must be prepared to establish successorship to that original railroad.

(3) Review the relevant state law.

Next, you need to determine your state law.  Unfortunately, there is not a pre-emption decision at this time, which would set a national standard.

Some states are absolutely unhelpful, such as Wisconsin, Minnesota and Iowa.  They all have statutory or regulatory schemes that basically specify for the utilities to provide minimum information, some notice and a non-compensatory fee in order to get authority to cross the railroad.

In Indiana and Michigan, case law has declared that the addition of utilities at highway crossings is not considered an additional burden on the underlying property.  No compensation is required and utilities are part of the highway easement.

In more railroad property ownership friendly states, the general principle to establish is that the addition of a utility is an extra burden on the right of ownership.  Beware of an argument that says the highway statutes have rules that allow utilities to locate along highways.  Those simply regulate the relationship between the highway and the utility to ensure no interference between the two and have nothing to do with the relationship between the utility and the landowner.  This can impact any landowner, including a railroad.

(4) Put the requesting party on notice.

The next step would be to put together a well-written letter, addressing each of the utility consultant’s points with responses based on case law and safety.  Remember, this letter is probably going to become an exhibit in a complaint or filing, so it must be written as if it is going to be publicly viewed at some point or at least seen by a judge.  Consider copying the consultant’s client if that client is identified.

In the letter, emphasize safety:

• It creates a better picture for the judge and the court.
• To the extent you have any possible pre-emption argument, safety is always better to emphasize than compensation.
• It puts the other side on notice that the reasons the railroads have these rules are about safety considerations and not compensation considerations.

Finally, make it clear in the letter that any attempt at crossing without an agreement or exercise of eminent domain is a trespass.  Make sure that the threat of taking action to protect your business is credible.

(5) Notify company resources of the anticipated event.

If a railroad has a deputized police force or agents with the power to prevent trespassing, put them on notice about when the threatened crossing is going to take place.  Tell them to instruct the person or people that they cannot cross and that the local police will be called upon to prevent that crossing from happening.

If a utility continues to insist on the right to cross and to make an active threat of the right to cross, that gives a railroad the basis to seek declaratory relief and injunctive relief.

The irreparable harm to a business that has successfully been argued is the sanctity of property rights.  Taking someone’s property is a major issue, which is why states have reserved it specifically for express grants of eminent domain.

These lawsuits are expensive, and a railroad must make a commitment, as a client, to bringing this lawsuit.  The trespasser will still have the right, should he or she not wish to enter into your license, to seek eminent domain, which requires court action.

If a railroad has successfully established property rights and made the effort to alert the trespasser with credible action, a railroad may be successful in influencing the trespasser to enter into a license agreement and avoid the trespass action, an injunction action, and the time and expense of proving eminent domain.

This article originally appeared in the Spring 2019 Issue of Short Line Connector, available here:https://www.aslrra.org/web/News/Short_Line_Connector_Magazine/web/News/Short_Line_Connector.aspx?hkey=d9929f40-4f87-44de-b397-08114e84ba92

Please note that these materials are designed to give general and timely information in the covered subjects. These materials are not intended as legal advice or assistance with respect to individual problems.