Railroad closing a street. Help!

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Railroad closing a street. Help!
Posted by Vance on Monday, September 09, 2019 2:06 PM

Here is my situation, the railroad company here is wanting to close a road that is my only access to the back of my warehouse. Apparently, according to a survey the railroad owns 200' off the tracks and it includes this road. The street in question has been maintained by the city for over 70 years.  My building have been here since the 40's and I have rented it for almost 20 years. I load 18 wheelers out of the back with nowhere else to load/unload them. My land lord has owned my building since the 50's. The road is a well used road by other people( including the fire dept) as it is a main crossover street from our main street to a through street that runs across town. I've heard of a prescriptive easement but I'm not sure if that applies to the railroad wanting to close a street that everyone thought was a city street. If they are allowed to close this road it will put me out of business and render this warehouse property useless. Any thoughts? Thanks so much!!
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Posted by BaltACD on Monday, September 09, 2019 3:14 PM

Time for you and your lawyers to make yourselves known to the railroad, as well as the local government.  Road crossing closures do not take place in a vacuum, unless those affected keep quiet about the affects of the closure.  Do expect the railroad to push back.

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Posted by matthewsaggie on Monday, September 09, 2019 3:17 PM

You need to be consulting a qualified attorney on RR real estate matters (not just your local lawyer friend) to learn your options. Be ready to pay for his/her advise.

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Posted by csxns on Monday, September 09, 2019 3:48 PM

Vance
18 wheelers

Here in North Carolina if the road has too many 18 wheelers getting hit and the road is not used much they will close it ,it happend in Kings Mountain and Gastonia.

Russell

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Posted by Vance on Monday, September 09, 2019 4:18 PM

It is a well used road. Never a incident or accident in the 20 years I've been here.  
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Posted by tree68 on Monday, September 09, 2019 5:02 PM

Finding out the "why" might be telling.

As already noted, this sort of thing doesn't happen in a vacuum.  

Could it be that what used to amount to a private crossing has become a thoroughfare?  Perhaps the railroad is trying to force the municipality into upgrading the crossing - lights, gates, new crossing surface, etc (if it doesn't already have them).

Adverse possession, or some variation thereof (I'm not a lawyer....) may also come into play, especially if the railroad has been allowing unfettered use of the road and crossing for that long.  If it's just your business, then it's likely on you.  If the municipality is involved, it's probably on them, although you'll want to make your concerns known.

 

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Posted by diningcar on Monday, September 09, 2019 5:46 PM

If the RR owns 200 feet and this 'road' is on it then there should be an agreement with the RR by the City or ??. Was the railroad ROW acquired by deed or by easement? Cana ROW for the road be purchased?? 

These things can be very complicated, but can usually be worked out if people choose to be reasonable.

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Posted by Convicted One on Monday, September 09, 2019 6:46 PM

Vance
Any thoughts?

In addition to the other good advice already given to you....let me suggest that you contact a real estate broker and ask him about alternate locations.

I really don't know your market, but most industrial building landlords that I have experience with are always hungry for new tenants. You might shop around and get a nice "free rent" incentive that would help offset your cost of moving

Also, if your current landlord learns you are shopping for new space, that will give him an extra incnetive to work on your behalf trying to resolve this. Let him pay for the lawyer..... 

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Posted by Paul_D_North_Jr on Monday, September 09, 2019 8:38 PM

Follow the advice above about contacting competent and experienced legal counsel on this subject, which may be hard to do.  Usually such lawyers are in the state capital or major cities.  

Additionally: Contact your state public utility commission/ public service commission/ railroad commission - whatever the name of the agenccy that has jurisdiction over railroad grade crossings - if a crossing is involved, hard to tell from your post.  

If a crossing is involved, look it up in the FRA grade crossing database for whatever information can be obtained.

Google the "name of the railroad" and "private crossings" or "private roads" - you may find similar cases or at least the names of lawyers who have handled similar cases.  

Maybe 5 - 10 years ago there was a Pennsylvania case - literally, a "federal case" - involving NS wanting to close a private crossing that served several homeowners.  It was complicated, but apparently enough of the rulings went against the railroad that it gave up.  The court found numerous reasons why the railroad might not be able to do it.  But the case was essentially over when the court ruled that one homeowner has an actual written easement from the PRR, former owner of the railroad.  If the crossing had to stay open for him, there was no practical way to prevent the others on the road from also using it. 

- PDN. 

"This Fascinating Railroad Business" (title of 1943 book by Robert Selph Henry of the AAR)
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Posted by tree68 on Monday, September 09, 2019 9:38 PM

Paul_D_North_Jr
If a crossing is involved, look it up in the FRA grade crossing database for whatever information can be obtained.

If this is an "official" crossing, there will be a blue plate affixed to the crossbucks giving the FRA/DOT crossing number.  If there's no blue plate, you may have a tougher battle...

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Posted by mudchicken on Tuesday, September 10, 2019 6:32 AM

Too many missing details here. Is the OP sure the railroad is closing the crossing? (may be just repairing/ replacing the crossing in advance of a mechanized tie gang, etc.)  Correct to find a COMPETENT real estate attorney, but probably will be suing the landlord or the local government entity before trying to sue the railroad.

(1) What State?

(2) DOT #? - See PDN and Tree above. (DOT # records go back to the early 1970's. Unfortunately, state agencies now maintain the record and that creates headaches because they don't do a good job staying current.) Each of those DOT  numbers is unique and only applies to one place, plus they have a historical file attached.

(2a) Is it a public or private crossing (per the DOT List)....If it is a public crossing, only the state agency (DOT/PUC/RRC etc based on the particular state) in a public crossing can close it. If the city or county arbitrarilly decided the street is a public crossing, with out going through the state agency responsible for regulating the crossing, are they ever in trouble. (Happens plenty)

(3) How did the crossing get there? (See brother DC's comment) Kinda sounds like it's private from the initial post. If the landlord does not know, shame on him. Double shame on him if he bought the property without benefit of survey or title policy. Most states have statutes on the books that will not allow landlocked parcels to be created, sold, accessed or exchanged. Who screwed up? If the landlord does not know, find a new landlord and move. (His problem, not yours). Undocumented, wildcat crossings are a pain to deal with. If there is a public crossing involved, there is a railroad public works engineer involved - talk to him (DOT # and location in hand)

What was the purpose of the survey? (direct relationship/impact?) The surveyor is charged with showing apparent conflicts/encroachments - not solving them.(that's for the legal process) Still too many questions here.

 (4) If it's a private crossing, the railroad has every right to close the crossing. If nobody is willing to assume responsibility for right to cross, liablity and maintenance of the crossing, then the railroad is doing the proper thing by closing the crossing. The feds (FRA and FHWA) are putting considerable pressure out there to close as many at-grade crossings as possible (at least half of the exisiting ones in an attempt to reduce the number of grade crossing incidents - stupid zones). If the crossing is private, the railroad has every right to demand insurance and compliance from a using entity. Seriously doubt there is an easement in play, but they do happen. If the town is maintaining the road, why haven't they said anything ?????

(5) History of this thing? Interesting that there is also a parallel encroachment mentioned along with the crossing. If the thing is documented. there is a license agreement, easement, deed clause, PUC decision out there somewhere that would explain a lot. Very well could be a case of a license agreement that was not assigned to a new owner when an adjoining parcel was sold (Contract would be in breach and a title person or real estate entity plus the previous owner deserve to be sued. ).....Prescriptive Easement- A/P shortcut argument does not work very well in cases like this and if  you can't document the thing, the whole matter gets thrown out of court as fraudulent (you lose).

Far too many of these cases end up with dimestore lawyers being exposed as defective thinkers without command of the facts (or the lawMischief) and the crossing is removed. The threat of closing crossings is often the only way railroads can flush-out the responsible party.

Mudchicken Nothing is worth taking the risk of losing a life over. Come home tonight in the same condition that you left home this morning in. Safety begins with ME.... cinscocom-west
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Posted by Semper Vaporo on Tuesday, September 10, 2019 10:59 AM

Vance:  Could you give us the state/city and general location of this crossing.  I'd like to look at it using Google Earth to see the layout.  Others might also be able to offer other opinions about it.

Semper Vaporo

Pkgs.

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Posted by Vance on Tuesday, September 10, 2019 11:55 AM

Thanks everyone for all the replies! I'll try and answer some of the questions.

This is a street that runs parallel to the railroad, so there is no crossing the tracks.

We have involved a lawyer as of yesterday and they are looking into options.

The area is Hewett St in Springdale, Arkansas.

The railroad is the Arkansas Missouri Railroad and there office and shop are located on Hewitt St.

I have already met with the mayor and city attorney and they have said the railroad does own the street and can close it. The city has maintained the road forever.

I did meet with the owner of the railroad and she wants to close it for liability reasons and in case they want to expand. I'm not sure why after 115 years that is now a concern, I asked her about the city buying the road off of her and she said that she was not interested in that option.

A little about my warehouse. The front faces Center St but there is not enough room to fit a 53' truck and trailer. I can only load these out of the back.

As far as moving the cost to move my type of business is more then I could afford.  My rent is good and I have known my landlord for 20 years and she is a great. I know she will do whatever she can to keep me.

Here is the newspaper article about this. As you can see they aren't very friendly

https://www.arkansasonline.com/news/2019/sep/01/springdale-plans-new-railroad-crossing-/
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Posted by cx500 on Tuesday, September 10, 2019 6:19 PM

I notice that Vance did not say the street actually crosses the railroad, so most likely his access is from a roadway parallel to the track, in that 200' width.  That width would imply original station grounds, or perhaps even once a yard and/or terminal facilities sometime in the past.

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Posted by mudchicken on Tuesday, September 10, 2019 6:55 PM

cx500

I notice that Vance did not say the street actually crosses the railroad, so most likely his access is from a roadway parallel to the track, in that 200' width.  That width would imply original station grounds, or perhaps even once a yard and/or terminal facilities sometime in the past.

 

This is why the 200' location is important: 200' width is standard federal grant R/W width for 3-3-1875 Act...Depending where you are, you get in all kinds of color of title issues. If he's back east in the metes and bounds states, it's a totally different set of issues. Again the OP failed to supply enough detail.

Mudchicken Nothing is worth taking the risk of losing a life over. Come home tonight in the same condition that you left home this morning in. Safety begins with ME.... cinscocom-west
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Posted by tree68 on Tuesday, September 10, 2019 9:14 PM

I think several of us overlooked the possibility of it being a parallel road - focusing as we did on a crossing.

The issue still begs the question of adverse possession, given the other variables the OP provided.

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Posted by mudchicken on Tuesday, September 10, 2019 9:19 PM

tree68

I think several of us overlooked the possibility of it being a parallel road - focusing as we did on a crossing.

The issue still begs the question of adverse possession, given the other variables the OP provided.

 

If it's FGROW, adverse possession is out (you can't adverse claim against the sovereign - The GLO/BLM who still have a vested interest in what they granted to the railroad originally.

Mudchicken Nothing is worth taking the risk of losing a life over. Come home tonight in the same condition that you left home this morning in. Safety begins with ME.... cinscocom-west
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Posted by chutton01 on Wednesday, September 11, 2019 11:07 AM

Going on what the OP Vance stated, it looks to be Northwest Rags on this Map.
Hewitt St. is parallel to what looks like an extended switchback siding. 
If that is indeed the location, OP, would an easement direct to Huntsville Ave. cost too much (does the Baptist church own that land?). Did you discuss an easement with the railroad of the portion to Hewitt to access your rear driveway so the rest could be closed down?

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Posted by rdamon on Wednesday, September 11, 2019 11:42 AM

https://www.arkansasonline.com/news/2019/sep/01/springdale-plans-new-railroad-crossing-/?latest

The railroad also asked the city to close Hewitt Street, which serves as the eastern boundary of the railroad company's headquarters and shop, which front Emma. The railroad and city soon will announce a project to expand the railroad facilities and tie them into the downtown revitalization project, Cate said.

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Posted by Vance on Wednesday, September 11, 2019 12:01 PM
My company is Northwest Rags. We have met with the church last Sunday about the land. They will discuss if they want to sell the property, so I'm not sure if they will. The railroad said they might let us use that part if we accept ALL liability for that part of the street. My landlord and her lawyer already vetoed that. If a truck pulls on that part of the street after hours my gate will be closed and they will have to back up on the super busy 4 lane street. And we couldn't put up a fence due to the railroad needing access. The railroad is still waiting on the fire dept to say if they can close the street off, but with the new technology of fire trucks having a way to access gated areas with a sensor lock I'm not sure if that will prevent the closure.
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Posted by Murphy Siding on Wednesday, September 11, 2019 1:06 PM

     I don't see where you would need to buy the land from the church as much as you just need to lease a strip wide enough to get a driveway in? Could something be set up with a deposit that covers the cost of someday turning the driveway back into green grass and a monthly rent payment?

Thanks to Chris / CopCarSS for my avatar.

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Posted by mudchicken on Wednesday, September 11, 2019 1:16 PM

(1) Not FGROW. The railroad, St. Louis Arkansas and Texas Ry showed up in 1880. Land underneath (NW1/4 of the SE1/4 Section 36; T18N R30W 5thPM was patented to Quinton in 1844 (Patent 4175  8-1-1844)....Frisco (StL & SF) took full control of the railroad in 1882.... not a school section either.

Most likely the railroad has a deed to cover that area as it was building. The City most likely only had a revokable license agreement to occupy the R/W for all this time, going back to FRISCO or pre-Frisco Days (Also a good bet that the city lost their copy of the license agreement (no easement) over the years - Common occurence)...The A&M has every right to close the street.Happy brain-damage with that.

(2) Hope the attorney is on the ball enough to look at the railroad's vesting deed and see if there are any restrictive covenants. Since the BN spun off the railroad to the A&M in 1986, I'm willing to bet the locals have not kept up with the documentation[If they ever did] ... The agreement between the railroad and the town most likely is not in the courthouse and you'd be lucky to find any record of an ordinance or council/commissioners notes because local record keeping is so bad.

(3) The comment on the landlord having a survey and/or a title policy would really stick now. (with no subdivision plat in a city block, all tracts, you have a mess to deal with)... Just because the fire department needs access means that you get the same right.

(4) Regulating agency in Arkansas DOT/ Railroad Section (Not Public Service Commission)

From above, the city is more interested in appeasing one of it's major commercial employers and going concerns to keep it growing.

If the landlord cannot guarantee access, then you have them (her) in breach. Hope access over the church tracts to the north works out.

Mudchicken Nothing is worth taking the risk of losing a life over. Come home tonight in the same condition that you left home this morning in. Safety begins with ME.... cinscocom-west
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Posted by tree68 on Wednesday, September 11, 2019 1:42 PM

Your own driveway, parallel to Hewitt Street, would make the most sense.  If there's going to be a hiccup there (aside from getting the property owner to sell or otherwise agree to an easement) it might be the creation of a new driveway on Huntsville Ave.  Odds are you'll need an approval to do that.

If Hewitt is closed completely, that might go a little easier.

Said solution doesn't deal with the after-hours issue mentioned earlier, though.

 

 

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Posted by rdamon on Wednesday, September 11, 2019 2:10 PM

Quote from the article:

"City Council member Brian Powell hesitated before he cast his vote to accept the agreement. He said he doesn't like the railroad's actions, which he likened to bullying."

 

I would start with that councilman and see if he would support leaving Hewitt open to your driveway.

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Posted by mudchicken on Wednesday, September 11, 2019 2:22 PM

Like how? - The city has zero control of the situation (wish there was a way to see the agreement with the city, if there is one). Railroads have rights too.

In this case, there is more than one 800# gorilla in the room.

Mudchicken Nothing is worth taking the risk of losing a life over. Come home tonight in the same condition that you left home this morning in. Safety begins with ME.... cinscocom-west
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Posted by chutton01 on Wednesday, September 11, 2019 2:30 PM

Reading that article, looks like a host of things happened:
1) Tyson built a larger IT center on E. Meadow Ave., not far from the tracks.(fun with Google - the "2019" aerial view shows several small light industrial buildings, the "2017" street view shows the office under construction).
2) Springdale closed the E. Meadow Ave. crossing due to the new office
3) Springdale wants to open a new grade crossing somewhat further south, linking the two halfs of Maple Ave. (the eastern section seems to be a rather quiet residental street, unsuitable for heavy traffic...I guess for a little longer at least). Somehow this ties in with a renovation of a nearby park.
4) Railroad requested to close Hewitt Ave.
5) And here the OP is.

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Posted by charlie hebdo on Wednesday, September 11, 2019 2:31 PM

tree68

Finding out the "why" might be telling.

As already noted, this sort of thing doesn't happen in a vacuum.  

Could it be that what used to amount to a private crossing has become a thoroughfare?  Perhaps the railroad is trying to force the municipality into upgrading the crossing - lights, gates, new crossing surface, etc (if it doesn't already have them).

Adverse possession, or some variation thereof (I'm not a lawyer....) may also come into play, especially if the railroad has been allowing unfettered use of the road and crossing for that long.  If it's just your business, then it's likely on you.  If the municipality is involved, it's probably on them, although you'll want to make your concerns known.

 

 

I think the legal concept of  adverse possession my well apply here dependent on how long you have been using the property without opposition from the railroad.  The critical period varies from 5-40 years of continuous use,  depending on which state. 

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Posted by mudchicken on Wednesday, September 11, 2019 2:47 PM

That argument goes away with the railroad producing a copy of an agreement. Sounds like the city already conceded anyhow as part of a bargain for something else. (It isn't the OP's problem as much as the landlord's)

Mudchicken Nothing is worth taking the risk of losing a life over. Come home tonight in the same condition that you left home this morning in. Safety begins with ME.... cinscocom-west
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Posted by diningcar on Wednesday, September 11, 2019 4:30 PM

MC who has current experience is the most reliable advice in his situation. 

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Posted by Lithonia Operator on Wednesday, September 11, 2019 5:45 PM
What is FGROW?

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