Status of B&O Corridor Ownership Settled
Friday, 20 September 2002 00:00

A longterm obstacle to development of the B&O Trail was litigation that tied up the abandoned corridor in court over nine years. The following is an attempt to explain the litigation and its final resolution as of August 2002.

To simplify a complicated situation, railroads acquired land in several ways:

  1. Easements.
  2. Condemnation which, if done before 1905, could have been easements or warranty deeds depending on the deed wording. After 1905, condemnation could only be an easement for the railroad.
  3. Warranty deeds.

These handwritten railroad deeds and records are over one hundred years old. A map of deed types would look like patchwork. One landowner might have sold an easement and his neighbor could have sold a warranty deed to the railroad.

There was a statewide Indiana class action for all abandoned CSX railroad corridors. In order to speed up the findings, the City of Carmel and Clay Township successfully filed with the court to create a sub-class for the abandoned corridor that has since become the Monon Trail in Hamilton County.

Hamilton County Superior Court Judge Hughes issued ten rules of deed construction in November 1997 to determine ownership for the subclass. Nels Ackerson and Henry Price, attorneys representing adjacent landowners, and Baker and Daniels, attorneys for CSX Transportation (CSX), both appealed parts of the decision to the Indiana Appellate Court in June, 2000. The two points on which attorneys Ackerson and Price sought judgment were:

  1. In some cases, the railroad condemned the land after they located and constructed the railroad. They feel this gives the railroad an easement and not a warranty deed since they took possession before any deed was written.
  2. They contend that the term "right-of-way" appearing anywhere in a deed makes it an easement. Ackerson and Price say that a right-of-way refers to the property right to use a particular piece of land that is commonly called an easement.

The CSX attorneys maintained that there are two meanings to "right-of-way": 1. the railroad corridor land and 2. an easement. They contend that both meanings of the term appear in railroad deeds and that the term should be interpreted in the context of the whole deed.

In the fall of 2000 the Appellate Court ruled that it agreed with Judge Hughes' decision. Ackerson and Price then requested the Appellate Court to revisit its decision. This was denied Dec. 7th, 2000. They then appealed to the Indiana Supreme Court in January, 2001. On July 24, 2002, the Indiana Supreme Court denied a hearing of the case, thereby letting stand the Appellate Court decision.

In the meantime, negotiations had continued between the parties. These negotiations eventually resulted in a class action settlement that was approved by Judge Hughes on July 25, 2002. Ownership of over 600 miles of abandoned railroad corridors in 36 Indiana counties, including the B&O corridor in Marion, Hendricks, Putnam, and Parke Counties will be determined by the class.

Contrary to common misconceptions, the settlement does not automatically convey title to adjacent property owners. A review committee, comprised of attorneys representing both CSX and adjacent property owners, will now review each original deed and determine, based on the ten rules of deed construction which parcels belong to adjacent property owners and which belong to CSX. This review is expected to be completed by the end of September, 2002.

Those adjacent landowners who are determined to be the owners of the corridor and filed claim forms will receive payments from CSX of $1.50 per linear foot of corridor adjacent to their property lines. Of the over 9800 claim forms mailed out, as of July 25, 2002, approximately 1700 had been returned. If any adjacent property owners purchased portions of the corridor from CSX, and it is determined that CSX did not own those portions of the corridor in fee simple, CSX will refund the purchase price. The total liability of CSX for payments to adjacent property owners was capped in the settlement at $4.0 million. The administrative costs were capped at $750,000 and attorney fees for the class were capped at $2.25 million and will be paid by CSX.

Of the approximately 10,000 people in the original class, about 700 opted out of the class, so the settlement does not apply to them.

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