Do Fall River Residents Billed By MassDOT for Railroad Use Owe the State?

I read with great interest the Fall River Herald News article "Pay Up or Get Off" about local City residents who are being billed by MassDOT for use of the abandoned, former CSX railroad land abutting their properties.  When I hear reports of railroad land being claimed by states, cities or towns for bike paths, or as we have here, Bristol County residents being assessed what basically amounts to a land use fee, you have to ask the question:  Who owns the former railroad land under the tracks?  Or, more accurately, does the State own the land it is asking residents to pay rent for using?

The ownership and use of old, abandoned railway corridors is not as simple as it would appear.  Whether or not the State gets to collect "rent" or  "use fees" depends on what it bought from CSX.  Many times the railroad land under the tracks is not owned by the railroad.  Railroads typically acquire the right to build and construct railroad corridors in two different ways: 1) they buy the land (in fee simple) from the people who own the land, or 2) they purchase a right of way over the land, where the railroad is unable to purchase the land free and clear. 

Being granted a right of way over land to construct and maintain a railroad is drastically different than owning the land under the tracks free and clear.  By accounts in the article, the last train rolled through this area of Fall River 35 years ago.  It appears as though the tracks have long been abandoned and any right of way or easement had  been extinguished years ago.   Moreover, the right of way to construct and maintain a railroad is limited.  Clearly the MassDOT does not intend to have trains run on these tracks.  What right does the MassDOT have to charge rent on a long extinquished right of way?

Finally, Massachusetts has a law (a state statute) which addresses the ownership of narrow strips of land abutting larger parcels of land.  The law specifically applies to railroad land (see Rowley v. Massachusetts Electric) and gives ownership to the abutting land owners.  The situation concerning the MassDOT charging Fall River residents "rent" for use of what it claims is it's railroad land or right of way needs to be closely scrutinized by intense examination of the recorded deeds, starting with the initial acquisition of each abutting parcel of land by the railroad. The MassDOT needs to show each resident that it has a legal right to charge "rent."  It is a basic rule of property law that the State could only purchase what CSX owned.   The State owes the abutting residents an answer, especially since many of them, as good citizens and community members, maintained this abandoned land for years, mowing, clearing overgrowth and cleaning up the trash on land long neglected by the railroad.

Phillips & Garcia are Dartmouth-based trial lawyers handling individual and class action litigation in Bristol County. 508-998-0800.