News

Attorneys make pitch for railroad right-of-way claimants

Lindsay Brinton explains the process for filing a claim for compensation under a federal rail-trail conversion.

By Bill Moss, Published: June 7, 2021

Attorneys seeking clients to make claims for land they own along the future Ecusta Trail told landowners at meetings that they have nothing to lose by making a claim.

“This does not affect your property,” Lindsay Brinton said during a presentation last week. “We’re not looking to stop the trail or promote the trail. As we say, we’re trail neutral. We have clients who are really on both sides of the fence. If you choose to make a claim it does not affect your property in any way. You’re not acquiescing to the trail. Nothing different is going to happen whether you make a claim or not. It doesn’t affect the trail or affect your property in any way.”
Brinton and Meghan Largent with the St. Louis-based firm of LewisRice made presentations to landowners last week during four meetings at Etowah Valley Golf & Resort. Brinton said the firm has identified 400 property owners who may have claims for compensation under the federal law that governs the trail conversion process.
Originally constructed in 1894 by the Hendersonville and Brevard Railway, Telegraph and Telephone Co., the 20-mile line last carried a train in 2002. The Friends of Ecusta Trail has been pushing for the railbanking of the tracks since its formation in 2009 and this past April the current rail line owner, Blue Ridge Southern Railroad, formally asked the Surface Transportation Board to begin the process for the rail-trail conversion.
Partnering with Conversing Carolina, the Friends of Ecusta Trail won a Federal Highway Administration grant to cover most of the cost of purchasing the rail corridor and Henderson County was awarded a grant from the NCDOT to cover the first phases of construction.
Around 15 landowners, including homeowners, farmers and others, turned out for the attorneys’ presentation last Tuesday evening; the lawyers held three more information sessions last Wednesday.
Brinton said she expects the Surface Transportation Board to issue a Notice of Interim Trail Use or Abandonment (NITU) soon, a crucial step because that starts the clock for the “taking” of property for which the owner is entitled to compensation. The NITU imposes two new easements on private property owners’ land, one for the public-access recreational trail and the other for the possible renewal of railroad use, which is permitted under federal railbanking but rarely if ever happens. A 1990 U.S. Supreme Court case, Presault v. ICC, upheld the taking of private property under the Trails Act but said landowners are entitled to just compensation under the Fifth Amendment.
Claims for compensation, which are filed at the U.S. Court of Federal Claims in Washington, D.C., first determine ownership of the property then liability and amount of damages. Landowners who sold their property along the tracks to the railroad company outright do not have a claim. If the railroad had an easement instead of fee simple ownership, the landowner likely has a valid claim.
Brinton said the law firm hires local appraisers to determine land values. If they win a claim, landowners would receive the court-awarded compensation plus interest accrued from the date of the NITU, minus the one-third contingency fee to the attorneys.