A Railroad Right-of-Way May be Wider Than You (or Your Surveyor) Think

Erik Foster with Peter J. Griffiths, Counsel, Land Title Guarantee Company

A recent title insurance claim has taxed the minds of some of the state's dirt lawyers. Of the many issues in dispute, the investigation into the size and scope of a railroad right-of-way, and the ownership of the land under the railroad right-of-way, brought into sharp focus the diverse methods by which railroads acquired either ownership or easement rights to land.

In this claim, the quarter sections in issue had been conveyed for many decades subject to the right-of-way of the railroad concerned. As property in the area began to be developed, plats were recorded, and the legal descriptions within the quarter sections began to evolve. The property owners, surveyors, and even the county assessor recorded the width of the railroad right-of-way as one-hundred feet, this being the width of the portion of the property physically utilized by the railroad through most, if not all, of the county. However, in the development of the parcel which was the subject of the claim, the railroad asserted a claim to an additional one-hundred feet based on the original grant to the railroad under the General Railroad Act of 1875. As might be expected, this assertion of rights to the additional one-hundred feet set the research wheels into motion to learn more about the granting of rights-of-way to railroad companies.

Most of the railroad right-of-way acts pre-date Colorado's statehood. Consequently, the traditional resources for determining ownership and other rights cannot be relied upon to accurately reflect the true nature of the rights involved.

In the western part of the United States, most of the railroad rights-of-way were granted under one of the following Congressional Acts:

 1862 through 1871 - During this period, the grants (known as the "Charter Acts") granted the railroad companies fee title to a strip of land 400 feet in width. The exact position of the strip was not determined in the grant. The physical location was determined once the right-of-way was constructed and a survey map depicting the physical location was filed with the applicable Federal land office (think BLM, not the county assessor, as these Acts pre-dated the creation of such offices). Although the map determined the physical location of the right-of-way, title to the right-of-way related back to the date of the grant, and not to the date of the filing of the map. The fee title was regarded as a limited fee title as a result of various court interpretations holding that title reverted to the United States if the railroad no longer required the right-of-way for railroad purposes.

These grants also included the right to as much adjacent land as was needed by the railroad for its operations, including buildings, switching tracks, water tanks, and coal bins.

Importantly, the Charter Acts also included fee ownership to alternate sections of land, with the intention that the railroad companies could sell off these alternate sections to raise capital for the continuation and expansion of the railroad operations.

1871 through 1875 - Congressional grants made to the railroad companies were similar in scope to the Charter Acts, but the width was limited to 200 feet and the grants no longer included title to alternate sections for the railroad to sell.
General Railroad Right-of-Way Act of 1875 - Following public displeasure with the policy of outright grants of land to the railroad companies, the 1875 Act was passed, granting a 200 foot right-of-way across the land. Sixty-seven years later, the U.S. Supreme Court ruled that the 1875 Act granted only a right-or-way easement to the railroads--not fee title. As a result, the railroad companies have no rights under this Act to the underlying land, including the rights to the oil and mineral interests.

Under each of these Acts, Congress only had the power to conveylands still owned by the U.S. Government. If title had already passed, the "grant" was in the nature of a right to acquire, not a conveyance. In instances where the railroad had to purchase (or condemn) the underlying ownership, the railroads often opted to acquire only the 100 foot minimum right-of-way mandated by Congress, rather than the 200 foot or 400 foot right-of-way to which they were entitled. Accordingly, the width of any given right-of-way can vary from quarter section to quarter section by hundreds of feet.

The wrinkle to the title claim in issue was that the subject property straddled portions of two quarter sections -- one of which had gone to patent pre-1875, and the other of which had not. The assessor's records were wrong, the surveyor's work was inadequate, and it was not until we spent a day or two at the BLM offices in Applewood that we were able to locate the original source documents and thereby identify the true nature of the rights-of-way in issue. 

Some other considerations The original source documents are only available from the BLM or the Department of the Interior. The county records are secondary source materials and not necessarily reliable.

Savings statutes don't necessarily apply. Railroad rights-of-way are not subject to claims of adverse possession (unlike prime development lots in the City of Boulder), and condemnation rights are either limited or nonexistent.

The lesson learned is that any practitioner undertaking a transaction where the land abuts a railroad right-of-way should ascertain under which statute the railroad acquired title to its right-of-way, and should independently research the Federal data banks involved.