Eminent Domain & Land Use

Rails to Trails FAQs

How do I know if my property could be affected by a federal rail-trail conversion?

The federal government will not notify you directly regarding a rail-trail conversion. The railroad must publish notice of its abandonment of the line in a local newspaper, and the federal order authorizing the railroad to sell the right-of-way for a public park is published in the Federal Register. However, most landowners learn about these developments only through local news reports or correspondence from an attorney.

How is this a “taking” of my property?

State law often provides that once a railroad abandons using its right-of-way for railroad purposes, the right-of-way disappears, leaving the property owner with unencumbered possession. However, the federal Trails Act preempts state law and allows the railroad to instead sell the right-of-way for use as a public park, a use that would have almost always caused the right-of-way to be abandoned under state law. This happens when the Surface Transportation Board (STB) issues an order authorizing property that had been subject to the right-of-way to be converted to interim trail use and "railbanked" (kept in tact for possible future reactivation of the line as a railroad corridor).

When the Trails Act went into effect, there was no provision in the law for property owners to be compensated. However, in the 1980s, a couple in Vermont challenged the constitutionality of the Trails Act. The case went to the U.S. Supreme Court, which ruled that the Trails Act was constitutional because the federal government has the power of eminent domain: the right to take your private property for a public purpose. However, being that the Fifth Amendment to the Constitution provides, “nor shall private property be taken for public use, without just compensation,” the federal courts ruled that property owners whose land is taken as a result of the Trails Act must be compensated.

Do I have to file a lawsuit?

When the Trails Act is invoked to take private property it is an “inverse condemnation” case. This means that the government takes your property first and does not have to compensate you unless and until you file your claim for compensation and prove that the government took your property.

What if I don’t make a claim for compensation?

If you do not make a claim for compensation, you will not be paid compensation. This is not a situation where the government will offer to pay you for the land it has taken for the public project.

What if I don’t know how the original railroad obtained the right-of-way?

Your attorney must gather the documents necessary to prove the government liable for taking your property. This involves pulling historical records to determine the exact origin of the right-of-way adjacent to your property. At Lewis Rice, we will also acquire modern-day mapping, deeds, and other title records needed to prove the government took your property.

Will this lawsuit hurt or in any way affect the creation of a public recreational trail?

No, the lawsuit will not affect whether a trail is built. The lawsuit is against only the federal government for invoking its power of eminent domain to take your property and convert it to public-trail use. The lawsuit is not against the railroad, the trail group, or any other party. In fact, the Court of Federal Claims in Washington D.C. only hears cases for compensation against the federal government. The funds for the compensation come from the “Judgment Fund” at the U.S. Department of the Treasury, which is appropriated every year by Congress to pay the liabilities of the United States.

Why choose Lewis Rice?

Lewis Rice has represented clients across the country for more than a century and has the resources, experience, and support to represent landowners seeking to recover just compensation for the government’s taking of their property.

The attorneys in our Federal Takings & Rails-to-Trails Practice Group have significant experience and have successfully helped thousands of landowners across the country in recovering just compensation. We value the importance of property rights, and we understand the negative impact a Rail-to-Trail conversion has on landowners. If we know that the government’s offer is not adequate, we will go to every length to make sure landowners are fully compensated. We are not afraid to go to trial to make sure you are fairly paid. Indeed, we have a strong record of success in recovering just compensation for landowners along Rail-to-Trail conversions nationwide.

Our attorneys have spent much of their careers pioneering this area of the law, having assisted landowners in the leading cases that have been repeatedly cited by courts and attorneys. And, while our cases may include dozens of owners, we pride ourselves on making sure your claim gets the individualized attention you deserve.