In that particular case, the railroad originally had senior rights (some by fee, mostly by federal grant). The City of Canon City now owns most everything else in the gorge except a simple contract for the overhead crossing and it now currently is an ownership mess.
(Even though Santa Fe got through there first.)
Bridge over a railroad track hundreds of feet below? Might that be the little bridge (which I've walked) over the Royal Gorge (and former DRGW tracks) in Colorado?
It's an experience.
Such tunnel situations can be very different. Back in the day, for the railroad to simply acquire a full R-O-W (whatever that meant at that time and place) - the same as on either side of the tunnel - would be the simplest and easiest. No additional or special documentation needed, and the RR would have unlimited rights to run its pole lines up and over the hill, drill shafts to expedite the tunneling, install airshafts and fan houses for ventilation, etc.
If the RR preferred to obtain its rights by an easement instead, that could be written to obtain most of the same rights - some of which might not be needed for shorter tunnels or in that situation. If the easement was granted first, those rights too extend from the center of the earth to the heavens above, and everyone else up on the surface above afterwards takes their ownership subject to the RR's prior rights. Or, the easement could have just been limited to subsurface rights, in which case the owners above are basically oblivious to it. In most states such rights come with a duty to maintain the support for the owner above and the adjoiners' "lateral and subjacent support", all of which means that the people above should not be undermined from either directly below or real close on the sides.
So if that tunnel pre-existed the homes above, the railroad paid for its rights then. As a result, today the tunnel probably has a perfect right to be there, and because of that the RR owes and pays nothing to anyone. Public lands can be quite different as noted above (and elsewhere), but considering its low value and the lack of detailed mapping and planning - and anyone caring too much about such niceties - when most RR lines were laid out and built 100+ years ago, there probably wasn't any differentiation between R-O-W where the track would be out in the open on the surface, and R-O-W where the track was to be in a tunnel. Instead, the R-O-W was typically all granted or conveyed to the RR as just "R-O-W" without any further breakdown or limitation, for the RR to use as it saw fit.
Today - as Boyd's post above mentions - "air rights" = easement through the air above the ground are commonly used for bridge crossings, such as the recent (late 1990s - early 2000s) PennDOT Route 33 bridge over the Lehigh River and the Norfolk Southern line on the south side, between Easton and Bethlehem, PA. For new bridges over NS to eliminate grade crossings, NS seems to prefer that be covered by an easement that is defined in all 3 dimensions = horizontal locations (2) plus elevations (1), which is essentially air rights. Pipe and wire crossings are usually covered by a lesser form of rights - a mere "license".
These days, almost all crossings of a RR or by the RR over or under some other RR, road, or utility is regulated by the state's public utility commission (or similar). However, if it is only the RR that is acquiring a R-O-W across private land, what the RR acquires is in the first instance up to whatever it can negotiate with the landowner. If that isn't successful, then the RR can usually obtain what it needs through a taking by the Eminent Domain or condemnation process. Usually the RR won't acquire any more rights than it really needs - R-O-W vs. easement vs. subsurface rights, etc. - to avoid a legal challenge on that basis, plus to minimize the amount of compensation - "damages" - that it has to pay to the landowner. If the tunnel is a couple hundred feet below the surface of the land and there are no nearby effects (shafts, etc.), the damages amount could well be minimal or nominal ($1.00) = a legal version of "No harm, no foul".
- Paul North.
Near some little town out west there is a bridge that is over 1000 feet above a RR track. This bridge is famous as all it does is cross this gap and to the other side is no town or anything important. Forgive me I'm quite forgetting of names/places right now.The grandfather of a former minister in my church was the local town mayor and got that bridge built. They had to get permission for the bridge from the RR over 1000 feet below.
Modeling the "Fargo Area Rapid Transit" in O scale 3 rail.
That got me thinking, Doesn't state law come into play from time to time on these matters?
PL
I wouldn't doubt there are easements written into property deeds especially if the tunnel were dug after a homeowner, etc. procured the land. Come to think of it, somebody owned the land in the first place, and unless the railroad itself owned it, some kind of an agreement most likely had to be made with the landowner(s) above it. And remember, too, the landowner could be a government entity like a municipality or water district or state, etc.
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The above may or may not be true. I moved to Trieste, Italy a few years ago and moved into an apt in a ten story building. The building was built in 1960 when the railroad served the old port which was built in the late 1700's. In the mid-19'70's a new, modern port was constructed on the other side of a short peninsula, and by the early 80's, a 6-7 Km railroad tunnel was drilled to connect the main line to Venice with the new port. The tunnel runs somewhere right in front of our house, and when a train passes thru, you can hear the rumble (on the 9th floor!). The apts are owned by the tenants, and all were compensated at the time of construction.
The most likely situation is that the tunnel was there long before the houses, and the current homeowners get nothing. The old idea that a landowner owned a wedge of earth and sky extending from the center of the planet to the end of the Universe has long since succumbed to the crass realities of severed mineral rights, Federal control of airspace and a cosmos where everything from space junk to galaxies is in constant motion.
You would have to research the local property tax records to determine just what right-of-way the railroad owns and how they obtained it (purchase, land grant,???) Two parallel tunnels under the same plateau, built at different times, might have two vastly different answers.
Chuck
I noticed on Google Earth a railway tunnel that passed through a plateau covered by hundreds of houses. Does the railway have to pay the land owners above a fee to build a tunnel below? Or maybe they pay the city? What about tunnels in the mountains on public land? Do they buy the land up to the tunnel portals and it’s free (ha ha) to pass through the mountain?
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