April 19, 2018

Frederick Skillern: Real Estate Case Law — Easements and Public Roads (1)

Editor’s note: This is Part 10 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick B. Skillern

Durango & Silverton Narrow Gauge Railroad Company v. Wolf
Colorado Court of Appeals, August 1, 2013
2013 COA 118

Railroad right-of-way; incidental use doctrine.

A property owner whose land is subject to a railroad company’s easement for railroad purposes objects when the railroad company leases a portion of its right-of-way to a local nonprofit for a bicycle path. The owner’s predecessor in title granted the railroad company this right in 1881:

[Grantor] does hereby sell, grant, convey, and release unto the said Denver and Rio Grande Railway Company the right of way for a width of one hundred feet—fifty feet on each side of center line—for the construction of the said Railway. . . . Giving and granting unto [the D&RG] the right to excavate, fill, ditch, drain, erect cattle guards and crossings [etc.].

The property owners appeal the trial court’s summary judgment in favor of the Durango & Silverton Narrow Gauge Railroad. The court of appeals affirms.

In 2009, the Durango & Silverton agreed to grant the City of Durango a nonexclusive easement to extend a public recreation trail over its right-of-way and adjacent to the railroad tracks. The tracks remain in use. Part of the trail crosses the Wolf’s property. Durango paid DSNGRR $1 million specifically for continued operations and maintenance. The trail also will promote safe use of the right-of-way by pedestrians and bicyclists who walk and ride directly on the railroad tracks.

Wolf opposed the agreement, arguing that the 1881 right-of-way permitted use only for “railroad purposes” and that a recreation trail is not such a purpose. On cross-motions for summary judgment, the trial court held that the original deed conveyed an exclusive easement. It held that a railroad right-of-way is an expansive form of easement, giving the railroad company exclusive use and control of the right-of-way as long as it continues to operate a railroad. It also found that the use by the public was a railroad purpose, because it eliminated safety and liability problems and increased efficiency on any rail repairs.

Relying on state and federal case law, the court of appeals agrees that the right-of-way is more expansive than a typical easement, and that the Durango & Silverton has the right to exclusive use and control of the servient tenement. This use includes the right to lease portions of the right-of-way. It therefore affirms the judgment.

The appeals court does not address whether a public recreation trail is a “railroad purpose,” as the district court had found, relying instead on the “incidental use” doctrine. This doctrine, which has never been invoked in Colorado, states that a railroad may lease a portion of its right-of-way where the use is incidental to or not inconsistent with the railroad’s continued use of its right-of-way for railroad purposes. The public recreation trail meets both of these criteria, in the court’s view.

Wolf argues that the trial court erred by not requiring the joinder of five neighbors that he alleges are indispensable parties. Their property is also subject to DSNGRR’s right-of- way and are affected by the public recreation trail. The Court disagrees, holding that this dispute is governed in large part by the interpretation of the deed from Wolf’s predecessor, which is specific to Wolf’s property.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Colorado Court of Appeals: Incidental Use Doctrine Permits Railroad to Lease Right-of-Way if Consistent with Railroad Purpose

The Colorado Court of Appeals issued its opinion in Durango & Silverton Narrow Gauge Railroad v. Wolf on Thursday, August 1, 2013.

Railroad Right-of-Way—Non-Exclusive Easement—Summary Judgment—Incidental Use Doctrine.

Defendants Timothy Wolf and Katherine Turner (collectively, Wolf) appealed the trial court’s summary judgment in favor of plaintiff Durango & Silverton Narrow Gauge Railroad (DSNGRR). The Court of Appeals affirmed.

In 1881, DSNGRR’s predecessor in interest acquired a right-of-way from plaintiff’s predecessor in interest. In 2009, DSNGRR agreed to grant the City of Durango a nonexclusive easement to extend a public recreation trail over its right-of-way and adjacent to the railroad tracks (which are still in use), part of which would run through Wolf’s property. In return, Durango paid DSNGRR $1 million specifically for continued operations and maintenance. The trail also will promote safe use of the right-of-way by pedestrians and bicyclists who walk and ride directly on the railroad tracks.

Wolf opposed the agreement, arguing that the 1881 right-of-way permitted use only for “railroad purposes” and that a recreation trail is not such a purpose. On cross-motions for summary judgment, the trial court held that the original deed conveyed an easement that gave DSNGRR exclusive use and control of its right-of-way as long as it continues to operate a railroad. It also found that the use by the public was a railroad purpose, because it eliminated safety and liability problems and increased efficiency on any rail repairs.

On appeal, the Court agreed with the trial court that the right-of-way was more expansive than a typical easement and that DSNGRR had the right to exclusive use and control of it. The Court noted Colorado and federal precedent that railroad rights-of-way are more expansive than ordinary easements and include the right to exclusive use and control. This expansive easement includes the right to lease portions of the right-of-way.

The Court did not address whether a public recreation trail is a “railroad purpose,” because it found the trail satisfied the incidental use doctrine. This doctrine, applied here for the first time in Colorado, states that a railroad may lease a portion of its right-of-way where the use is incidental to or not inconsistent with the railroad’s continued use of its right-of-way for railroad purposes. The public recreation trail meets both of these criteria.

Wolf then argued that the trial court erred by not requiring the joinder of five indispensable parties whose property also was subject to DSNGRR’s right-of-way and were affected by the public recreation trail. The Court disagreed, finding that this dispute centered on the interpretation of the deed from Wolf’s predecessor, which only concerned the right-of-way on Wolf’s property. The judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Certified Question from U.S. Court of Federal Claims Answered by Colorado Supreme Court

The Colorado Supreme Court issued its opinion in Asmussen v. United States on Monday, July 1, 2013.

Real Property—Deeds—Construction and Operation—Railroad Easement Right-of-Way.

The Supreme Court considered a certified question from the U.S. Court of Federal Claims asking whether Colorado law presumes that abutting landowners own the underlying fee to the centerline of an abandoned railroad right-of-way. The Court determined that the centerline presumption is a common law rule of conveyance that presumes that a grantor who conveyed land abutting a right-of-way intended to convey land to the center of the right-of-way—to the extent that the grantor owned the property underlying the right-of-way and absent a contrary intent on the face of the conveyance. Therefore, although the Court held that the centerline presumption applies to railroad rights-of-way, it also held that, to claim presumptive ownership to the centerline of a railroad right-of-way, an adjacent landowner must produce evidence that his or her title derives from the owner of the land underlying the right-of-way. Accordingly, the Court answered the certified question in the negative.

Summary and full case available here.